Referral of inquiry
On 27 November 2014, the Senate referred the Biosecurity Bill 2014 and
related bills to the Senate Rural and Regional Affairs and Transport Committee
for inquiry and report by 17 March 2015.
The Biosecurity Bill 2014 (the Biosecurity Bill) would introduce a new
regulatory framework for the management of biosecurity risks in Australian
territories. The bill would replace the Quarantine Act 1908, under which
biosecurity is currently managed. This new regulatory framework would be
supported by the proposed amendments in the Biosecurity (Consequential
Amendments and Transitional Provisions) Bill 2014, the Quarantine Charges
(Imposition—Customs) Amendment Bill 2014, the Quarantine Charges
(Imposition—Excise) Amendment Bill 2014 and the Quarantine Charges
(Imposition—General) Amendment Bill 2014.
In 1908, Parliament passed the Quarantine Act to provide one
unified, federal system of quarantine.
In the 106 years since its introduction, this national system has been the
subject of substantial revision. The Quarantine Act has been amended no fewer than
50 times. As noted in the explanatory memorandum to the Biosecurity Bill, the
result is a complex, century-old legislative framework that is 'difficult to
interpret and contains overlapping provisions and powers'.
Recent biosecurity reviews
Since its inception, Australia's biosecurity system has been subject to several
significant reviews. In recent years, these have included a review of the
system's capacity to manage the equine influenza outbreak in August 2007.
Reporting in April 2008, the review panel, chaired by
Commissioner the Hon. Ian Callinan AC, recommended,
among other measures, the establishment of the position of the Inspector
General of Horse Importation. It was envisaged that the Inspector would act as
an external auditor of quarantine premises and the performance of relevant
The then Government accepted the recommendation, establishing the position of the
Inspector General of Horse Importation in September 2008.
The position was subsequently incorporated into the role of the Interim
Inspector-General of Biosecurity.
A further review was undertaken in 2008. The Review of Australian
quarantine and biosecurity, chaired by Mr Roger Beale AO (the Beale review),
concluded Australia's biosecurity system 'is often the envy of other countries'.
However, the Beale review also forecast that significant reforms would be required
to ensure Australia's biosecurity system remains responsive to changing and
increasing biosecurity risks.
As summarised by the Department of Agriculture, the review recommended:
new biosecurity legislation to replace the Quarantine Act 1908;
improved partnerships with the states and territories and with
enhanced governance structures, including:
an independent commission to assess the biosecurity risks of
a national authority to undertake biosecurity operations; and
an Inspector-General of Biosecurity to audit the authority’s work;
a risk–return approach to biosecurity operational activities; and
additional funding for biosecurity activities and upgraded
information technology systems.
In response, the then Government established the Biosecurity Services
Group and the Biosecurity Advisory Council.
Additionally, to provide independent oversight of Australia's biosecurity
programs, in 2009 the position of the Interim Inspector-General of Biosecurity was
established by administrative arrangement. It is not a statutory position.
The Interim Inspector-General's responsibilities include functions previously
assigned to the Inspector General of Horse Importation.
The then Government also commenced development of a new legislative
framework for biosecurity regulation.
This work culminated in the Biosecurity Bill 2012 and the Inspector-General of
Biosecurity Bill 2012.
2012 draft legislative amendments
The Biosecurity Bill 2014 is closely modelled on draft legislation
introduced to the 43rd Parliament.
The Biosecurity Bill 2012 (the 2012 Bill) and the Inspector-General of
Biosecurity Bill 2012 were introduced in the House of Representatives on 28
November 2012. The provisions of the bills were referred to the Senate Rural
and Regional Affairs and Transport Committee for inquiry and report. The
committee received submissions on the proposed legislative changes and held
four hearings to ascertain the views of stakeholders, which included a broad
cross section of industry and state and territory governments.
The bills lapsed when Parliament was prorogued on 5 August 2013.
While recognising that the inquiry into the 2012 bills was conducted by a
differently constituted committee into a different set of the bills, the
committee is grateful for the work of the then Senate Rural and Regional
Affairs and Transport Legislation Committee. The committee has been mindful of
the evidence provided by the thirty-nine submitters to that inquiry, and by
witnesses who appeared at the hearings held in Canberra, Perth, Hobart and
While substantially replicating the 2012 draft legislation, the
Biosecurity Bill 2014 varies in three main respects:
The Biosecurity Bill 2014 would allow the pest and disease status
of each region to be included in a Biosecurity Import Risk Analysis (BIRA). The
2012 Bill did not allow for regional variations to be taken into account.
Submitters to the committee's 2012 inquiry were highly critical of that
The Inspector-General of Biosecurity Bill 2012 proposed to establish
the Inspector-General as a statutory officer, responsible for reviewing the
performance of functions and the exercise of powers by the Director of
Biosecurity, biosecurity officers and biosecurity enforcement officers. This
role would have also included reviewing the process for conducting BIRAs.
The 2014 bill package does not include a Inspector-General of Biosecurity Bill.
The current bill would retain the office of the Inspector-General of
Biosecurity as an administrative position.
Consequently, rather than having a clearly defined statutory role, the
Inspector-General's role would continue to be determined by the Minister.
In contrast to the approach taken in the 2012 Bill, the
Biosecurity Bill 2014 locates in the one chapter all proposed provisions
relating to monitoring, investigation, and enforcement powers. The Department
of Agriculture has advised that this approach reflects requirements in the Regulatory
Powers (Standard Provisions) Act 2014 and current legislative drafting
The Hon. Barnaby Joyce MP, Minister for Agriculture, has advised that these
changes are designed to take into account industry concern with the 2012 Bill.
The explanatory memorandum to the Biosecurity Bill 2014 also notes that the Government's
decision to retain the Inspector-General of Biosecurity as an administrative, rather than
a statutory, position reflects the Government's policy commitment to avoid
According to the Minister, retaining the Inspector-General of Biosecurity as an
administrative position is not intended to diminish the Inspector-General's capacity
'to provide constructive recommendations for improvements to Australia's biosecurity
Overview of provisions - Biosecurity Bill 2014
The Biosecurity Bill is intended to provide a high-level framework for
the regulation of biosecurity risks.
The draft legislation is principles-based, laying a foundation for biosecurity
management. It is envisaged that detailed operational requirements would be
contained in subordinate legislation.
The bill would be jointly administered by the Ministers for Health and Agriculture.
Comparison to Quarantine Act 1908
The regulatory impact statement accompanying the bill identifies a
number of flaws with the operation of the Quarantine Act. These include the
Duplicate and overlapping powers that cause confusion for
importers and others seeking to comply with the requirements of the Quarantine
Over-regulation, lack of flexibility and inconsistency between
current regulatory arrangements and businesses' operational practices and
A lack of penalty provisions, which restricts the Commonwealth's ability
to appropriately respond to the risk posed by people or companies who
repeatedly breach the Quarantine Act.
Limited powers to allow the management of invasive pests onshore,
making the Commonwealth dependent on inconsistent state and territory
Lack of clarity about the processes for ports to be proclaimed,
or to cease to be proclaimed, as a first point of entry.
An inability under the current legislative framework for
Australia to give effect to the International Maritime Organisation's Ballast
Water Management Convention.
To address these issues, the bill would remove existing duplication
within the Quarantine Act.
While many of the powers proposed in the bill are similar to those under the
Quarantine Act, the bill would also expand the regulatory framework.
The proposed new powers and procedures include:
powers to allow for the management of a wider range of pests and
a single, Australia-wide ballast water incident management regime,
which would allow for the management of the biosecurity risks posed by ballast
water held on domestic and international ships;
increased capacity for Australia to respond to multiple
contraventions of biosecurity laws—proposed measures include a 'fit and proper
person' test to consider a person's compliance history, and an 'associate test'
to consider whether a person applying for an import permit, for example, is an
associate of a person the Department of Agriculture does not consider to be a
fit and proper person;
flexible biosecurity measures to strengthen the Commonwealth's
capacity to manage the public health risks posed by serious communicable
civil penalty provisions, such as infringement notices, civil
penalties, and enforceable undertakings; and
expanded powers to enter and search premises with or without a
The bill would also promote a risk-based approach to biosecurity
intervention, under which resources are focused on the risks of greatest biosecurity
concern. The explanatory memorandum notes that 'the bill will support this
approach by providing flexible and responsive powers that allow biosecurity
officials to best target risk, based on the circumstances of each case'.
The regulatory impact statement explains:
Australia's biosecurity system is based on a risk based
approach to managing biosecurity risk. This approach focuses on the goods and
entities that are assessed as being the highest risk and puts a greater
emphasis on compliance.
It furthers advises that a risk-based approach is intended to reduce to the
costs, and the regulatory burden, for clients and government.
Structure of the Biosecurity Bill
The structure of the Biosecurity Bill differs from that of the
Quarantine Act. The legislation has been restructured to be easier to navigate
and, ideally, to allow powers and obligations to be more readily identified and
As noted in the explanatory memorandum, the bill can be divided into three main
areas, namely, operational chapters that support day-to-day biosecurity
business; standalone chapters that support specialist biosecurity situations;
and general administration chapters that support other necessary functions and
The operational chapters (Chapters 3, 4 and 6) set out the powers by
which biosecurity officials may identify, assess and manage biosecurity risks in
relation to goods, conveyances and onshore pest or disease incursions.
Chapter 3 would provide biosecurity officials the authority to manage
goods that may pose a biosecurity risk when entering Australia. Proposed
management options include the power to prohibit goods from being brought into
Australia. The level of potential risks would be determined by conducting a BIRA,
which is similar to the current Import Risk Analysis process.
Chapter 4 would provide for the assessment of the level of biosecurity
risk posed by conveyances entering Australian territory. Proposed biosecurity
measures include controlling the places where conveyances can land or moor, through
requiring conveyances to arrive at a declared first point of entry. This
chapter would establish the process by which the Director of Biosecurity or the
Director of Human Biosecurity may declare a location a first point of entry.
Chapter 6 would provide powers to control biosecurity risks within
Australia, including Australia's territorial waters. 'Biosecurity risk' would
be defined to include the likelihood of a disease or pest, including invasive
pests, entering Australian territory and the potential for the disease or pest
to harm human, animal or plant health, the environment or the economy.
Proposed powers to manage unacceptable levels of biosecurity risks include
the authority to establish 'biosecurity monitoring zones' in which biosecurity
officers may undertake monitoring and surveillance activities. The bill would
allow for two kinds of biosecurity monitoring zones—permanent biosecurity
monitoring zones and temporary biosecurity monitoring zones. It is proposed that
permanent biosecurity monitoring zones would be areas in Australian territories
that are considered to pose a high level of biosecurity risk—such as first
points of entry.
Where pest or disease incursions are identified, Chapter 6 would also allow
a biosecurity activity zone to be declared. It is proposed that biosecurity
officers would be authorised to control where and how people, goods or
conveyances enter or exit the zone.
Specialist biosecurity management
Chapters 2, 5, 7 and 8 outline and support specialist biosecurity
Chapter 2 contains proposed powers to manage biosecurity risks to human
health. These powers would only apply to listed human diseases as determined by
the Director of Human Biosecurity. Before imposing biosecurity measure, the principles
in Chapter 2, Part 1, Division II must be considered. The principles would
include that the decision-maker is satisfied the exercise of power is likely to
contribute to managing the risk, is appropriate and specifically tailored to
manage the risk, and that the circumstances are sufficiently serious to justify
the proposed exercise of powers. Biosecurity measures to manage the risk of
communicable diseases would include powers to issue a 'human biosecurity
control order', under which an individual may be required to comply with certain
biosecurity control measures such as vaccination, restrictions on the
individual's behaviour and requiring the individual to remain isolated.
Chapter 5 would introduce powers to allow the Commonwealth to respond to
the risks posed by ballast water in international and domestic vessels.
Measures in the proposed Australia-wide ballast water incident management
regime would include requiring the operator of a vessel to give a report if it
is intended that the vessel discharge ballast water in Australian seas. The
explanatory memorandum advises that the chapter seeks to further implement Australia's
obligations as a signatory to the International Health Regulations.
Chapter 7 would enable the Director of Biosecurity or the Director of
Human Biosecurity to approve arrangements to allow industry to carry out
activities to manage biosecurity risks associated with specified goods or
premises. The explanatory memorandum notes that the chapter would 'allow the
Commonwealth to partner with industry through an approved arrangement scheme',
under which industry participants may 'manage the biosecurity risks associated
with their own operations in the most efficient and effective way.'
Such an arrangement would be known as an 'approved arrangement'.
Chapter 8 outlines proposed powers to respond to biosecurity emergencies
and human biosecurity emergencies of national significance. The proposed powers
are intended to complement existing arrangements and state and territory
The Governor-General would be authorised to issue a 'biosecurity security
emergency' declaration if the Minister of Agriculture is satisfied that the special
powers contemplated in Chapter 8 of the bill are necessary to deal with biosecurity
emergencies of national significance. Proposed powers to respond to such
emergencies include the power to evacuate places and to restrict or prevent the
movement of persons, goods or conveyances between specified places.
General administration chapters
Chapters 1, 9, 10 and 11 are intended to provide a framework for the
administration of Australia's biosecurity system. While Chapter 9 is included
in the list of general administration chapters in the explanatory memorandum,
it contains significant coercive monitoring and entry, search and seizure
powers and therefore will be considered separately.
Chapter 1 addresses administrative matters such as jurisdiction,
commencement of the proposed legislation, and definitions of key terms.
Chapter 10 would create the positions of the Director of Biosecurity, the
Director of Human Biosecurity, biosecurity officers, biosecurity enforcement
officers and human biosecurity officers. According to the explanatory
memorandum it is intended that the Secretary of the Department of Agriculture would
be appointed as the Director of Biosecurity, and the Commonwealth Chief Medical
Officer would be appointed as the Director of Human Biosecurity.
Chapter 11 contains miscellaneous matters, that is, topics that do not
belong in other chapters but are considered important to the overall
administration of the bill. Matters include cost recovery, exemptions and
modifications, immunity, information sharing and reviewable decisions, as well
as provisions relating to the application of relevant treaties.
Coercive monitoring powers
Chapter 9 would introduce a range of new monitoring and enforcement
powers. The explanatory memorandum advises that these powers are intended to
operate as 'tools to manage compliance and enforcement' and are 'designed to
encourage clients to voluntarily comply with biosecurity requirements'.
Biosecurity officers would be authorised to enter and search premises with
consent or under a warrant. The bill would also provide biosecurity officers
additional powers to respond to biosecurity emergencies. In these
circumstances, biosecurity officers would be authorised to enter and search
premises without warrant.
The bill also contains a number of proposed offences. Aspects of the
proposed offences deviate from normal Commonwealth practice. Notably, the bill:
contains several strict liability offences;
contains penalties that exceed the recommended levels for like
offences in existing Commonwealth legislation;
reverses the evidential burden of proof in a number of cases; and
abrogates the privilege against self-incrimination.
The explanatory memorandum advises that all departures from the standard
Commonwealth approach to framing offences have been approved by the
Overview of provisions: Biosecurity (Consequential Amendments and
Transitional Provisions) Bill 2014
The Biosecurity (Consequential Amendments and Transitional Provisions)
Bill 2014 would introduce transitional arrangements, which are intended to
ensure a seamless transition from existing regulatory requirements under the
Quarantine Act to the proposed new biosecurity framework.
Directions and permits issued under the Quarantine Act would, for the most
part, continue to be valid and would take effect as if issued under the
Biosecurity Act. This would allow operators to transition to any new
requirements proposed under the Biosecurity Bill. It would also ensure that
arrangements, such as surveillance and control activities, in place at the time
the Quarantine Act was repealed would continue to be valid and enforceable.
For example, in relation to permits for first points of entry, such as
international airports and Australian ports, the explanatory memorandum
provides the following advice:
Schedule 3 provides a three-year transition period for first
points of entry...This three-year transition period will provide port and landing
place operators additional time to upgrade their facilities (if necessary) and
undertake any additional activity to satisfy the requirements. This transition
period can be extended.
Notably, the bill would repeal the Quarantine Act and the Quarantine
Charges (Collections) Act 2014. The repeal would
take effect on the day the operative provisions in the Biosecurity Bill (if
Provisions modelled on the Quarantine Charges (Collections) Act would be located
in the Biosecurity Bill.
The bill would also provide for consequential amendments to existing
Commonwealth legislation, to ensure the statute book takes account of the
proposed repeal of the Quarantine Act and the introduction of new biosecurity
legislation. Amendments are proposed to 20 Commonwealth Acts, which include the
Customs Act 1901, the Environmental Protection and Biodiversity
Conversation Act 1999, the Fisheries Management Act 1991 and the National
Health Act 1953.
Overview of provisions: Quarantine Charges (Imposition—Customs) Amendment
Bill 2014, Quarantine Charges (Imposition—Excise) Amendment Bill 2014 and the Quarantine
Charges (Imposition—General) Amendment Bill 2014
The biosecurity reform bills include three bills that would allow
government to recover the cost of indirect services that would be provided
under the Biosecurity Bill (if enacted). The Quarantine Charges
(Imposition—Customs) Act 2014, Quarantine Charges (Imposition—Excise)
Act 2014 and the Quarantine Charges (Imposition—General) Act 2014
outline the arrangements under which government may recover the costs associated
with the indirect biosecurity services provided by the Department of
Agriculture for the benefit of importers.
The bills would transfer these arrangements to the proposed new biosecurity
framework. As noted in the explanatory memorandum, this would 'sit alongside
the proposed fee-for-service cost recovery mechanisms in the Biosecurity Bill.'
This reflects current arrangements under the Quarantine Act.
Consideration by Parliamentary legislative scrutiny committees
The committee recognises the work undertaken by other Parliamentary
committees responsible for considering draft legislation. The Parliamentary
Joint Committee on Human Rights concluded that while the bills would limit
multiple rights, such as the right to freedom of movement and the right to
privacy, the limitations on these rights would be justified and compatible with
Australia's human rights obligations.
The Senate Standing Committee for the Scrutiny of Bills also examined
the Biosecurity Bill and related bills. The committee identified a number of
issues, and in most circumstances noted the detailed comments provided in the
explanatory memorandum. In some instances the committee requested further
information from the Minister for Agriculture and is awaiting a response. These
comments are discussed in more detail in chapter 2 of this report.
Conduct of inquiry
The committee advertised the inquiry on its webpage and in The
Australian, calling for submissions by 16 January 2015. The committee also
wrote to a range of organisations and individuals likely to have an interest in
the matters covered by the bills, drawing their attention to the inquiry and
inviting them to make written submissions.
The committee received 28 submissions, as listed in Appendix 1. Submissions
were published on the committee's inquiry webpage.
The committee held a hearing in Canberra on 11 February 2015. A list of
persons and organisations who gave evidence at the hearing is in Appendix 2.
The committee thanks the organisations and individuals that made
submissions to the inquiry or appeared at public hearings. The committee
acknowledges the efforts of the organisations and individuals who contributed
not only to this inquiry but to the inquiry into the 2012 bills. This work has
informed the committee's deliberations.
Note on references
References to Hansard are to proof Hansard. Page numbers may vary
between the proof and the official (final) Hansard.
Navigation: Previous Page | Contents | Next Page