BIOSECURITY BILL 2012 Explanatory Memorandum

Commonwealth of Australia Explanatory Memoranda

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BIOSECURITY BILL 2012

2010-2011-2012 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA SENATE BIOSECURITY BILL 2012 EXPLANATORY MEMORANDUM (Circulated by authority of the Minister for Agriculture, Fisheries and Forestry, Senator the Honourable Joe Ludwig)

Contents Purpose of the Bill ..................................................................................................................... 1 Why is the Bill necessary? ......................................................................................................... 1 Public consultation .................................................................................................................... 2 Legislative principles ................................................................................................................. 2 Managing risk effectively ...................................................................................................... 2 Improving productivity .......................................................................................................... 3 Strengthening partnerships..................................................................................................... 4 Sound administration ............................................................................................................. 4 Increased transparency ........................................................................................................... 5 Effect of the principle provisions ............................................................................................... 6 Consultation about provisions of the Bill .............................................................................. 6 Offences and penalties ........................................................................................................... 6 Criminal offences and penalties ......................................................................................... 6 Strict liability offences ....................................................................................................... 6 Civil offences and penalties ............................................................................................... 7 Infringement notices .......................................................................................................... 7 Enforceable undertakings....................................................................................................... 8 Reversing the evidential burden............................................................................................. 8 Abrogation of the privilege against self-incrimination .......................................................... 8 Limitations ............................................................................................................................. 9 Entry without warrant or consent ........................................................................................... 9 Exceptions from disallowance and sunsetting ..................................................................... 10 Outline of the Biosecurity Bill 2012......................................................................................... 12 Chapter 1 - Preliminary ....................................................................................................... 12 Chapter 2 - Managing biosecurity risks: human health....................................................... 12 Chapter 3 - Managing biosecurity risks: goods ................................................................... 12 Chapter 4 - Managing biosecurity risks: conveyances ........................................................ 14 Chapter 5 - Ballast water and sediment ............................................................................... 15 Chapter 6 - Managing biosecurity risks: monitoring, control and response ....................... 15 Chapter 7 - Approved Arrangements .................................................................................. 17 Chapter 8 - Biosecurity emergencies and human biosecurity emergencies ........................ 17 Chapter 9 - Compliance....................................................................................................... 18 Chapter 10 - Warrants ......................................................................................................... 18 Chapter 11 - Enforcement ................................................................................................... 19 Chapter 12 - Governance and officials ................................................................................ 19 Chapter 13 - Miscellaneous ................................................................................................. 20

The Bill's operation ................................................................................................................. 22 Date of effect and application .............................................................................................. 22 Financial impact ................................................................................................................... 22 Regulation impact statement .................................................................................................... 23 Executive summary.............................................................................................................. 23 Introduction and context ...................................................................................................... 27 Objectives and options to achieve them............................................................................... 32 Approved arrangements ....................................................................................................... 38 First points of entry .............................................................................................................. 46 Biosecurity zones ................................................................................................................. 55 Other aspects of the legislation ............................................................................................ 61 Preferred option, implementation and review ...................................................................... 65 Appendix A - International Health Regulation requirements ............................................. 67 Appendix B - Consultation feedback .................................................................................. 69 Appendix C - Reference list ................................................................................................ 75 Human Rights Compatibility Statement ................................................................................... 77 Notes on Clauses .................................................................................................................... 102 Chapter 1--Preliminary ..................................................................................................... 102 Part 1--Preliminary ....................................................................................................... 102 Part 2--Definitions ........................................................................................................ 105 Part 3--Constitutional and international law provisions ............................................... 141 Part 4-- Principles affecting decisions to exercise certain powers ............................... 143 Chapter 2--Managing biosecurity risks: Human Health ................................................... 146 Part 1--General protections and listing human diseases ............................................... 146 Part 2--Preventing risks to human health ..................................................................... 148 Part 3--Managing risks to human health: human biosecurity control orders ............... 152 Part 4--Managing biosecurity risks to human health: other biosecurity measures ....... 165 Chapter 3 - Managing biosecurity risks: goods ................................................................. 167 Part 1--Goods brought into Australia territory ............................................................. 167 Part 2--Biosecurity Import Risk Analyses .................................................................... 185 Part 3--Prohibited Goods etc. ....................................................................................... 187 Chapter 4--Managing biosecurity risks: conveyances ...................................................... 199 Part 1--Introduction ...................................................................................................... 199 Part 2--Conveyances entering Australian territory etc. ................................................ 199 Part 3--First points of entry and biosecurity entry points ............................................. 217 Part 4--Entry points for incoming aircraft and vessels ................................................. 221 Part 5--Ship sanitation .................................................................................................. 232

Chapter 5--Ballast water and sediment ............................................................................. 234 Part 1--Application and interpretation .......................................................................... 234 Part 2--Management of discharge of ballast water ....................................................... 235 Part 3--Ballast water management plans and ballast water management certificates .. 242 Part 4--Ballast water records ........................................................................................ 244 Part 5--Offence of disposal of sediment ....................................................................... 246 Part 6--Compliance and enforcement ........................................................................... 247 Part 7--Miscellaneous ................................................................................................... 250 Chapter 6--Managing biosecurity risks: monitoring, control and response ..................... 251 Part 1--Introduction ...................................................................................................... 251 Part 2--Assessment of level of biosecurity risk ............................................................ 252 Part 3--Biosecurity measures to manage unacceptable level of biosecurity risk ......... 259 Part 4--Biosecurity control orders ................................................................................ 271 Part 5--Biosecurity response zones............................................................................... 276 Part 6--Biosecurity monitoring zones ........................................................................... 282 Part 7--Biosecurity activity zones................................................................................. 288 Chapter 7--Approved arrangements ................................................................................. 292 Part 1--Introduction ...................................................................................................... 292 Part 2--Approval of proposed arrangement .................................................................. 292 Part 3--Variation of approved arrangement .................................................................. 294 Part 4--Suspension of Approved Arrangement ............................................................ 296 Part 5--Revocation of approved arrangement ............................................................... 299 Part 6--Powers and obligations of biosecurity industry participants ............................ 301 Part 7--Other provisions ............................................................................................... 303 Chapter 8--Biosecurity emergencies and human biosecurity emergencies ...................... 308 Part 1--Biosecurity emergencies ................................................................................... 308 Part 2--Human Biosecurity emergencies ...................................................................... 324 Chapter 9--Powers related to ensuring compliance with this Act .................................... 327 Part 1--Monitoring ........................................................................................................ 327 Part 2--Investigation ..................................................................................................... 330 Part 3--General provisions relating to monitoring and investigation ........................... 336 Part 4--Monitoring, searching and accessing certain premises .................................... 337 Part 5--Miscellaneous ................................................................................................... 339 Chapter 10--Entry to premises and warrants .................................................................... 342 Part 1--Introduction ...................................................................................................... 342 Part 2--Issue of warrants ............................................................................................... 342

Part 3--Entering premises with a warrant or consent, and taking possession with a warrant ........................................................................................................................... 349 Part 4--Entering premises without a warrant or consent .............................................. 353 Part 5--General provisions ............................................................................................ 355 Chapter 11--Enforcement ................................................................................................. 357 Part 1--Civil penalty provisions.................................................................................... 357 Part 2--Infringement notices ......................................................................................... 362 Part 3--Enforceable undertakings ................................................................................. 365 Part 4--Injunctions ........................................................................................................ 366 Part 5--Miscellaneous ................................................................................................... 368 Chapter 12--Governance and officials .............................................................................. 370 Part 1--Introduction ...................................................................................................... 370 Part 2--Director of Biosecurity ..................................................................................... 370 Part 3--Director of Human Biosecurity ........................................................................ 373 Part 4--Biosecurity officers and biosecurity enforcement officers ............................... 373 Part 5--Chief human biosecurity officers and human biosecurity officers ................... 381 Part 6--Miscellaneous ................................................................................................... 382 Chapter 13--Miscellaneous ............................................................................................... 384 Part 1--Review of decisions .......................................................................................... 384 Part 2--Confidentiality of information .......................................................................... 386 Part 3--Recovery of costs ............................................................................................. 390 Part 4--Exemptions from and modifications of this Act............................................... 397 Part 5--Miscellaneous ................................................................................................... 401

BIOSECURITY BILL 2012 Purpose of the Bill The Biosecurity Bill 2012 (the Bill) will provide the primary legislative means for the Australian Government to manage the risk of pests and diseases entering Australian territory and causing harm to animal, plant and human health, the environment and the economy. Why is the Bill necessary? Biosecurity is currently managed under the Quarantine Act 1908 and related subordinate legislation. Since the Quarantine Act was first drafted, Australia's biosecurity risks have changed significantly. Shifting global demands, growing passenger and trade volumes, increasing imports from a growing number of countries, population expansion and climate change all contribute to the modern biosecurity environment. The Quarantine Act has been progressively amended--no less than fifty times--to cater for the changing demands placed on the biosecurity system. This means that the legislation is complex to interpret and now has overlapping provisions and powers. Whilst the Quarantine Act has enabled the effective management of biosecurity risks to date, (and the Bill will largely reflect the current operation of the Quarantine Act), the Bill will provide a modern regulatory framework aimed at better managing risks in current and future trading environments. Australia's economy and environment benefit significantly from a strong biosecurity system. Australia has enjoyed a high degree of protection from biosecurity risks, based on natural advantages of relative geographical isolation, the absence of shared land borders and a border-focused system of biosecurity. These advantages have meant that the environment has been free of many pests and diseases common elsewhere and has positioned Australia well to prevent their entry. The freedom of the agricultural, fisheries and forestry sectors from the most destructive pests and diseases confers a higher degree of quality on and level of demand for Australia's exports. Australia's biosecurity system has been subject to review several times. More recently, recommendations made for improvements to the way it operates started with review-- Australian Quarantine: A shared responsibility (the Nairn review)--in 1995 and culminated in the 2008 independent review of Australia's quarantine and biosecurity arrangements--One biosecurity: a working partnership (the Beale review). The Beale review proposed significant reforms to strengthen the system, including the development of new biosecurity legislation. The legislation has been developed to simplify and clarify biosecurity regulatory requirements, enhancing Australia's capacity to manage biosecurity risks into the future. The intended result is, where appropriate, the reduction of unnecessary regulatory and administrative burden on users of the system - whilst still ensuring a robust set of powers and mechanisms to protect Australia's unique biosecurity status and environment. 1

Public consultation A comprehensive consultation process has been undertaken to inform the development of the Bill and all interested parties were encouraged to provide input. The consultation process also aimed to raise understanding of the intended outcomes of the Bill and provide an opportunity to work with interested parties to identify and resolve potential issues. During the development of the Bill, the departments consulted with state and territory governments and the Industry Legislation Working Group. The Working Group was established in 2009 and comprised representatives from the cargo, shipping, ports, supply chain and logistics, airline, airport, customs, environment, animal, plant, invasive species, primary producers and petroleum/exploration sectors. A number of communication channels were utilised to ensure key information effectively reached interested parties. This included the development of dedicated interactive website which featured the exposure draft of the legislation, all supporting explanatory material, a blog, information on the consultation process and information on how stakeholders could have their say. Key consultation and communications activities have also included state and territory government, industry and public meetings, an embassy briefing and a process for interested parties to submit comments on the exposure draft of the Bill. All input and comments were considered during the drafting of the legislation and the finalisation of the text of the Bill and resulted in further consideration of key aspects. Legislative principles The design of the Bill is based on five key themes. Each of these themes gives effect to those discussed in the Beale review which have been adopted as government policy. This ensures that the legislation provides a modern and solid framework for good decision making and administration. Managing risk effectively Consistent with government policy, the department is moving to a risk-based approach to biosecurity interventions in which resources are focused on the risks of greatest biosecurity concern. The Bill enables this policy approach, providing flexible and responsive powers for biosecurity officials to appropriately and effectively manage risks. Throughout the Bill, the threshold test that applies to the application of powers is a consideration of the level of biosecurity risk. The Bill will ensure that the well trained and skilled staff that manage Australia's biosecurity system will have appropriate powers to proportionately and appropriately deal with risk when that risk is considered unacceptable. For example, biosecurity officers have powers to assess the level of biosecurity risk, these include the power to inspect goods, take samples of goods, and carry out tests on any samples taken from goods. The Bill also provides that biosecurity officers may require a person to answer questions or produce documents relating to goods if they suspect that the person has information about the goods. Having assessed the level of biosecurity risk, a biosecurity officer may then access powers to manage that risk in a variety of ways--for example, through treatment or destruction. These powers are largely consistent with those currently provided under the Quarantine Act and ensure that the officer has access to the information and tools required to identify and manage risks into the future. 2

The process for managing the threat to human health of serious communicable disease will be flexible under the Bill. The Bill will provide for consideration of personal freedoms and rights to review in decision-making. It will provide a range of measures which can be tailored to accommodate an individual's circumstances and aims to ensure individual liberties and freedoms are considered in conjunction with the disease risk. The Bill is consistent with Australia's international obligations under the World Health Organization's International Health Regulations. The World Trade Organization (WTO) Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) contains the basic rules on food safety and animal and plant health requirements for trade between WTO member countries. The SPS Agreement requires that sanitary and phytosanitary (biosecurity) measures are based on science and applied only to the extent necessary to protect human, animal or plant life or health. The SPS Agreement allows WTO members to determine their own level of protection; however it must be applied in a consistent manner--this is known as the Appropriate Level of Protection (ALOP). Australia's ALOP is included in the Bill for several reasons. Importers and trading partners will have additional certainty of the standard that is being applied. It will also increase transparency in its application when assessing biosecurity risks. There is no inconsistency between Australia's biosecurity arrangements - as enabled within this Bill - and Australia's rights and obligations under the SPS Agreement. Along with appropriate powers to implement risk-based measures at the border and onshore, the new biosecurity legislation will provide international trading partners and stakeholders with a clear understanding of the level of biosecurity risk that Australia is prepared to accept. The Bill promotes a number of other international agreements, including putting a regulatory framework in place to enforce obligations under the International Convention for the Control and Management of Ships' Ballast Water and Sediments 2004 (see Chapter 5) and extending powers to allow for the management of invasive pests consistent with articles 7 and 8 of the Convention on Biological Diversity. In relation to the management of risks to the environment, the Bill will enshrine the practice of considering environmental risks in the definition of biosecurity risks. This is the core concept of the legislation and is part of the threshold test for the use of powers to assess and manage risk. Harm to the environment is given the same weight as human, animal and plant health Improving productivity The Bill aims to allow flexibility to meet changing demands and to ensure the biosecurity system is effective and sustainable into the future. Risk-based interventions will reduce the administrative burden on compliant clients, enabling faster clearance at the border through better targeting and focus on higher risk commodities and stakeholder behaviours. It will also reduce delays for industry and cut the costs for clients who actively and conscientiously take account of biosecurity risks. Over time, the Bill will deliver productivity benefits for businesses, industries and the government by replacing overly complex regulatory provisions and administrative practices. The removal of this complexity may reduce the costs associated with working within a complex system and the associated high levels of administration. 3

The development of a post-border regulatory framework for the Commonwealth, will complement state and territory government powers in this area. Effective post border controls will protect ongoing productivity of local industries and ensure that there are timely coordinated responses to any incursions. Working more efficiently onshore and ensuring that the appropriate level of regulation (commensurate with the risk level posed) is applied, will further contribute to an effective and efficient national biosecurity system for Australia. Strengthening partnerships A central tenet of the Nairn and the Beale reviews was the need to strengthen the partnership approach to reflect the shared responsibility for biosecurity between the Commonwealth, state and territory governments, industry (including importers, exporters, and onshore agriculture, fisheries and forestry sectors), trading partners and the broader community. The Bill gives effect to this tenet, recognising that achieving the best biosecurity outcomes for Australia requires a partnership approach. The framework to enable approved arrangements (Chapter 7) strengthens the government's cooperation with biosecurity industry participants by allowing stakeholders to manage the biosecurity risks associated with their operations where it is appropriate to do so. These arrangements provide an opportunity to appropriately share responsibility between government and businesses by allowing risks to be managed in the most efficient and effective way. The department is also working with state and territory governments, international trading partners, and organisations to share information, have clear roles and responsibilities across the continuum and ensure every biosecurity partner is supported to effectively manage biosecurity risk. This Bill provides the Commonwealth with powers to manage biosecurity risks associated with a disease or pest incursion anywhere within Australian territory (including the marine environment). These powers are intended to complement existing state controls and agreements between Australian governments, allowing the Commonwealth to work in partnership with the states and territories to manage disease or pest incursions and ensure that there are appropriate responses to management wherever the threat or harm occurs. Sound administration The Bill provides a high-level legislative framework to implement the government's policy to maintain Australia's biosecurity system. It provides the Commonwealth with the authority to develop subordinate legislative instruments, including regulations, to implement the more detailed policy. The inclusion of the operational elements in subordinate legislation provides the Commonwealth with a level of flexibility to meet changing demands and to ensure the biosecurity system is effective and sustainable into the future. The Bill also provides for a responsive enforcement regime to manage contraventions of the legislation. The department will have a choice of enforcement options (administrative, civil and criminal penalties) to provide greater capacity to respond meaningfully and proportionally to the breach by the responsible person. The Bill clearly sets out the legislative 4

requirements stakeholders must meet and the consequences of non compliance ensuring that stakeholders are aware of their responsibilities in managing biosecurity risks. The Bill provides an internal and merits review framework to allow affected persons, where appropriate, to seek review of decisions made under the legislation. This ensures that people who are affected by a decision can seek review from another decision maker and an independent body to test that decision. The Bill is designed to be modern legislation ensuring flexibility to adapt over time to changing and future demands, but also to provide certainty and appropriate modern review tools for those that are being regulated by the Bill. Increased transparency Increasing the transparency of the biosecurity system to stakeholders, including international trading partners, in the assessment and management of biosecurity risks was a key recommendation from the Beale review. Increased transparency will ensure that decisions are communicated and understood by stakeholders and will demonstrate the integrity of Australia's biosecurity system. The Bill makes transparent the Commonwealth's role in covering the field in relation to prohibiting or restricting the bringing in or importing of goods into Australian territory for the purposes of managing biosecurity risks associated with the goods. Accordingly, the Bill operates to exclude any state or territory law that purports to prohibit or restrict the bringing in or importing of goods on biosecurity grounds where to do so, would be contrary to Commonwealth law. In this situation, the State law may be found to be inconsistent with the Commonwealth law under section 109 of the Australian Constitution; if so the Act would prevail. It is intended that conditions on the importation of goods into Australian territory will be based on the outcomes of a national risk assessment process, taking into account justified regional differences in pest and disease status. The Bill will provide a statutory process to ensure transparency and accountability by clearly outlining roles and responsibilities, regulating the basis on which decisions are made and ensuring independence of scientific and operational decision making. For example, the Agriculture Minister is prohibited from giving directions to the Director of Biosecurity in relation to the conduct of a biosecurity import risk analysis or a decision by the Director of Biosecurity to issue a permit to import goods into Australian territory. This makes clear that decisions under the Bill are science- and evidence-based assessments and that biosecurity decision making is informed by current and robust scientific and economic evidence, and operational experience. 5

Effect of the principle provisions Consultation about provisions of the Bill The Attorney-General and the Attorney-General's Department have been consulted on all relevant provisions of the Bill. In particular, approval has been provided by the Attorney- General for the approach taken in relation to merits review, reversing evidential burdens, exemptions from the Legislative Instruments Act 2003, offence provisions and the power for biosecurity officers and biosecurity enforcement officers to enter premises and adjacent premises without consent or a warrant. Offences and penalties Criminal offences and penalties Criminal sanctions are consistently used in Commonwealth legislation to sanction conduct that has the potential to cause considerable harm to society, individuals or to Australia as a whole. The penalties for offences in the Bill are intended to reinforce the deterrent effect of the Bill and allow courts with capacity to respond meaningfully and proportionally to the worst breaches. However, if a serious contravention was to occur, which significantly impacted Australia's plant and animal health, local industries, the economy and the environment, the social and economic costs may be far greater than even the maximum fines imposed by the Bill. Penalties and the possibility of imprisonment in the most serious cases are a key part of achieving and maintaining a credible level of deterrence and complement the other types of enforcement action, such as civil penalties, infringement notices and enforceable undertakings. The maximum penalties provided in the Bill reflect the level of seriousness of the offences and have been set at levels high enough to cover the worst examples of offence. Penalties are generally consistent with the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers where appropriate and are generally higher where significant damage to animal, plant or human health, the environment or economy is possible, or where significant deterrence is considered necessary. Strict liability offences Strict liability offences are appropriate where--for reasons such as public safety and the public interest in ensuring that regulatory schemes are observed--the sanction of criminal penalties is justified. The offences also arise in a context where a defendant can reasonably be expected, because of his or her professional involvement, to know what the requirements of the law are, and the mental (or fault) elements can justifiably be excluded. The application of strict liability to certain offences has been carefully considered during the drafting of the Bill. Some offences do depart from the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. These departures have been approved by the Attorney-General as required. For example, in Chapter 5 there are a number of strict liability offences in relation to conduct associated with ballast water management. It can reasonably be expected that people who are responsible for the operation of vessels, such as a person in charge or operator of the vessel, can be expected to be aware of their duties and obligations to meet safety and environmental standards that could affect the marine environment. 6

The strict liability offences in Chapter 5 are appropriate in this context as there is public safety and public interest reasons in ensuring that this requirement is met as contravention would result in significant biosecurity risks, which may result in serious damage to plant and animal health, Australia's local industries, the economy and the environment. For all strict liability offences, the prosecution will have to prove the conduct of the accused person in charge or operator of a vessel. However, the accused person will still be able to rely on the defence of honest and reasonable mistake of fact. These clauses impose a maximum penalty that departs from the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. It should be noted that the offences and level of penalties are consistent with the benchmarks under the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 which is similar to this clause. This ensures consistency with other legislation dealing with discharge of liquid substances from vessels under international maritime treaties. Civil offences and penalties Civil penalty provisions have been included in this Bill to provide an alternative to prosecution for an offence. These provisions will ensure that there is an additional tool to ensure compliance with the requirements of the Bill, which was not available under the Quarantine Act. The civil penalty provisions in this Bill are considered appropriate and effective where contraventions involve significant biosecurity risks, which may result in serious damage to plant and animal health, Australia's local industries, the economy and the environment. Alternatively, civil penalties can be used in circumstances where contraventions are of a sufficient size to justify the expense and time required to take the matter to court or where because the contravention is by a body corporate the higher financial disincentive is most likely to be useful and effective. Across the Bill, the penalty for a body corporate is five times the penalty of a natural person. Contraventions of a civil penalty must be proved on the balance of probabilities in a relevant court, and if proven, the court may order a monetary amount to be paid as the penalty. Infringement notices An infringement notice is a notice of a pecuniary penalty imposed on a person by statute setting out particulars of an alleged offence. Infringement notices provide a simpler and faster remedy to suspected contravention of the Bill than formal civil or criminal proceedings. It gives the person to whom the notice is issued the option of either paying the penalty set out in the notice to expiate the offence or electing to have the matter dealt with by a court. Any provisions under the Bill to which the scheme applies must be prescribed in the regulations. The regulations will only prescribe provisions which are strict liability or civil penalties with a clear physical element. Infringement notices will be used as a low cost and efficient means by which the regulator can deal with minor offences and for wrongdoers to discharge their obligation without appearing before a court. If the person chooses not to pay the amount prescribed in the notice within the time specified, proceedings can be brought against the person in relation to the contravention. The Bill requires that an infringement notice can be issued where the Director of Biosecurity has reasonable grounds to believe a person has contravened an infringement notice provision prescribed in the regulations. 7

Enforceable undertakings The Bill will establish an enforceable undertaking scheme to encourage cooperation with directions under, and compliance with, the Act. Under the scheme, the Director of Biosecurity is able to accept written undertakings committing a person to particular action (or inaction) in order to prevent or respond to a contravention of the Act. Undertakings are enforceable in their own right and they may be entered into instead of, or in addition to, the Director of Biosecurity taking other disciplinary action. Undertakings provide a remedy other than financial sanctions to past or prospective contraventions of the Act. The undertaking can be cancelled by the Director of Biosecurity through a written notice. If the Director of Biosecurity considers that a regulated party has breached their undertaking, the Director may apply to the relevant court for an order. An order may require the regulated party to compensate those who have suffered loss or damage as a result of the breach, or another order as the court believes appropriate. Reversing the evidential burden Some clauses of this Bill place the evidential burden onto the defendant. An evidential burden requires a person to provide evidence of an asserted fact to a court. In some instances, the Bill places an evidential burden on an individual to adduce evidence of a reasonable excuse as to why they have failed to meet a duty or obligation. These provisions do not shift the legal burden to prove this fact. This shift is considered reasonable because it would be significantly more difficult for the prosecution to prove these elements, since the relevant information is known particularly to the defendant. The evidential burden is also on the defendant in relation to proving an exception to the offences of receiving or possessing prohibited goods or conditionally non-prohibited goods. It is justified that the defendant bears the evidential burden in relation to these importation offences as if the defendant did not bring or import the goods into Australian territory the defendant will have particular knowledge as to how the goods were obtained (for example the defendant may have purchased the goods from a shop within Australian territory and has evidence of the transaction e.g. a receipt, evidence of the EFTPOS transfer etc.). The shifting of evidential burden for these offences also implements the recommendations of the Commonwealth Ombudsman's 2009 Report: AQIS Compliance and Investigation Activities. The reversal of the onus of evidential burden in the above circumstances is considered to be consistent with the Australian Government Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. Abrogation of the privilege against self-incrimination The privilege against self-incrimination is an important common law and international law principle which provides individuals with a right not to answer questions or produce material which may incriminate the person of a criminal offence or expose the person to a civil penalty. However the privilege may be overridden in legislation where there is clear justification for doing so. Chapters 3, 4 and 6 provide powers to ask questions and require documents that will abrogate the privilege against self-incrimination. Removing the privilege in these circumstances is necessary to deal with the pressing and substantial concern that biosecurity risks are assessed and managed effectively. The abrogation of privilege is to ensure the effective assessment 8

and management of biosecurity risks posed by pests and diseases to plant and animal health, the environment, and the economy of Australia. Upholding the privilege in relation to individuals who have information regarding a biosecurity risk could have significant consequences such as reduced agriculture, fisheries or forestry productivity, serious environmental damage and increased costs associated with controlling pests and diseases. A disease outbreak (such as foot and mouth disease) has the potential to cause significant and long term damage to the Australian industries and the reputation of Australia and Australian products overseas. Whilst in some cases it may be feasible to obtain information by other means (for example, warrants), the additional time taken to obtain such information may significantly increase the risk of a disease or pest entering, establishing or spreading to Australia, or within Australian territory. Without these limitations, the Commonwealth's ability to manage biosecurity risks through a responsive, evidence-led approach will be significantly reduced. Removal of the privilege ensures that the assessment of biosecurity risk and application of response measures can occur as urgently as necessary and reflects the magnitude of the potential impacts biosecurity risks pose to Australia. Clause 661 provides the limitation that self-incriminatory disclosures made under these clauses cannot be used against the person making the disclosure in any proceedings. The only exception to use and derivative use immunity are in relation to proceedings arising out of sections 137.1 and 137.2 of the Criminal Code (in relation to false and misleading information and documents), and proceedings for the contravention of clause 507 or 508 (civil penalties for false or misleading information or documents). Limitations Chapter 1 provides a series of protections that apply to particular decisions made under the Bill. The clauses provide a series of limitations that biosecurity officials must satisfy themselves of, before exercising a power under a prescribed clause. These limitations have been inserted to ensure that any direction given or action undertaken is appropriate and adapted and does not impact on a person or his or her rights any more than is necessary to manage the level of biosecurity risk posed. This is consistent with international treaties such as the International Covenant on Civil and Political Rights (International Covenant on Civil and Political Rights) and the International Covenant on Economic, Social and Cultural Rights. These limitations provide an appropriate balance between individual rights and the management of biosecurity risks, allowing a biosecurity official to exercise the necessary powers to manage biosecurity risks. Entry without warrant or consent The Bill provides for a number of instances when a biosecurity officer and biosecurity enforcement officer may enter premises without a warrant. The provision for entry without warrant has been carefully considered during the drafting of the Bill and appropriately limited to the situations described below. First points of entry are a source of higher biosecurity risk. It is important that these risks are managed as quickly and efficiently as possible. As such, the Bill provides that a biosecurity officer may enter any premises at a first point of entry, without the consent of the occupier or person in charge of the premises, for the purpose of performing functions or exercising powers as a biosecurity officer. This will allow a biosecurity officer to establish whether a 9

biosecurity risk exists and undertake biosecurity measures that are necessary to address the risk. The Bill also allows a biosecurity enforcement officer to enter the premises at a first point of entry to assess non-compliance with the Act. Under an approved arrangement, biosecurity enforcement officers will be able to enter `relevant premises' during business hours to determine whether the Act has or is being complied with. It is appropriate in these circumstances for officers to enter without a warrant, because of the voluntary agreement between the Commonwealth and an industry participant for them to manage biosecurity risk. The ability to enter premises allows biosecurity enforcement officers to determine whether the Bill is being or has been complied with or that correct information has been supplied for the purposes of the Bill. Undertaking investigation and monitoring powers on premises will allow non-compliance to be more easily detected and ultimately reduced, leading to greater compliance with the Bill and therefore better management of biosecurity risks. A biosecurity enforcement officer may also enter `relevant premises' at any time if there are reasonable grounds to suspect there may be particular evidential material on the premises. During a biosecurity emergency period, biosecurity officers and biosecurity enforcement officers will be able to enter premises without consent or a warrant for the purpose of: exercising assessment powers in relation to the disease or pest listed in the emergency declaration exercising the powers contained in a biosecurity control order or a biosecurity response zone determination that is in force and specifies the declaration pest or disease, or to set up traps or equipment in relation to the declaration pest or disease. Biosecurity officers and biosecurity enforcement officers will also be able to enter premises that are adjacent to another property where they need to exercise these powers. This is required to allow for the quick entry to premises, so officers can carry out an assessment of the biosecurity risks associated with the declaration pest or disease and then, if required, urgently manage the biosecurity risks associated with them. A biosecurity officer can only enter premises if the officer suspects on reasonable grounds that the declaration pest or disease is present and the officer is accompanied by a biosecurity enforcement officer who is responsible for establishing entry to the premises and using force against things, such as opening doors or moving objects. Exceptions from disallowance and sunsetting The Bill provides for certain instruments to be exempt from disallowance and automatic sunsetting. Section 44 of the Legislative Instruments Act 2003 (LIA) provides that certain legislative instruments are exempt from disallowance under the LIA. A legislative instrument that is exempt from disallowance under the LIA, but is required to be registered, will still have to be tabled in the Parliament. Part 6 of the LIA provides for a comprehensive sunsetting regime (or automatic ceasing after ten years) for all non-exempt legislative instruments. The aim of sunsetting is to ensure that legislative instruments are reviewed regularly, retained only if needed, and kept up-to-date. There are several examples in the Bill where the provisions exempt instruments from disallowance and sunsetting under the LIA because of the nature of the instruments. For example, the determination for prohibited goods and conditionally non-prohibited goods are legislative instruments. However, the determinations are exempt from disallowance. This is 10

consistent with the current approach of the Quarantine Proclamation 1998 in that it is appropriate for the Parliament to delegate to the Director of Biosecurity the power to make this determination involving technical and scientific decisions in order to manage risks to Australia's biosecurity. Subjecting these determinations to disallowance could undermine the technical and scientific based decision making and frustrate risk management processes. In addition, disallowance of a determination made under this clause could lead to inadequate management of the biosecurity risks posed to human, plant and animal health, Australia's local industries, the environment and the economy. A determination is also exempt from the sunsetting provisions of the LIA. Under the Quarantine Proclamation 1998, the list of prohibited goods is frequently updated as a result of risk-based calculations of the level of biosecurity risk associated with the goods. A similar approach is likely to apply to a determination made under this clause as the department is likely to be reviewing the list of prohibited goods as part of its day-to-day risk management practices. Accordingly sunsetting is not necessary to maintain the currency of determinations made under this clause. 11

Outline of the Biosecurity Bill 2012 Chapter 1 - Preliminary Chapter 1 of the Biosecurity Bill 2012 (the Bill) sets out a number of administrative matters necessary for the operation of the Act, the definitions used in the Bill, as well as sections of the Constitution and international laws on which the Bill relies. This Chapter also defines Australia's Appropriate Level of Protection (ALOP) which, pursuant to Chapter 3, the Director of Biosecurity must apply when conducting a Biosecurity Import Risk Analysis and which the Director of Biosecurity and Director of Human Biosecurity must apply when conducting a risk assessment for the purpose of determining whether particular goods, or a particular class of goods, should be prohibited or conditionally non-prohibited goods. Part 4 of this Chapter outlines a number of principles that must be considered by a biosecurity official before making a decision to exercise a power under certain provisions of the Act. The principles provide an appropriate balance between individual rights and the management of biosecurity risks whilst still allowing a biosecurity official to exercise the necessary powers to manage biosecurity risks. Chapter 2 - Managing biosecurity risks: human health This chapter includes a range of powers to control the spread of communicable diseases that may cause serious harm to human health. These diseases will be specified as Listed Human Diseases by the Director of Human Biosecurity. Any person who exercises a power or imposes a biosecurity measure under this chapter must first consider the principles of general protection. The principles ensure that a power is exercised, or a biosecurity measure imposed, only when the circumstances are sufficiently serious to justify it, and only if it would be effective, is proportionate, and is no more restrictive or intrusive than is required to manage the risk. This chapter also seeks to further implement Australia's obligations as a signatory to the International Health Regulations (2005). The purpose of the International Health Regulations is to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with, and restricted to, public health. Chapter 3 - Managing biosecurity risks: goods Chapter 3 provides the Commonwealth with powers to assess and manage biosecurity risks associated with bringing or importing goods into Australian territory. The goods that arrive from outside Australian territory provide a direct pathway for biosecurity risks to enter into Australian territory. The provisions of this chapter are largely consistent with those currently provided under the Quarantine Act. Goods become subject to biosecurity control when the aircraft or vessel carrying the goods enters Australian territory, and continue to be subject to biosecurity control until they are released. Being subject to biosecurity control enlivens the powers in Part 1 of this Chapter, to assess or manage the biosecurity risks associated with these goods. A notice of intention to bring goods into Australia will be required for most goods that are intended to enter Australian territory. 12

To assist with the assessment of biosecurity risks and the movement of goods at first points of entry, goods are allowed to be unloaded from an aircraft or vessel unless a biosecurity officer directs otherwise. Biosecurity officers may direct the person in charge of an aircraft or vessel not to unload some or all of the goods if they suspect there is a biosecurity risk associated with the goods that requires management. Biosecurity Import Risk Analyses The Chapter provides that the Director of Biosecurity is responsible for undertaking Biosecurity Import Risk Analyses (BIRAs) to address biosecurity risks to achieve Australia's Appropriate Level of Protection (ALOP). The core requirements for the conduct of a BIRA are included in the Part. Regulations made for the purposes of this Part are intended to outline the process in which the Director of Biosecurity will announce the commencement of a BIRA process, release an issues paper (if required) and prepare a draft BIRA report, provisional BIRA report and final BIRA report. There will be multiple opportunities for the public and affected stakeholders to provide feedback via submissions throughout this process. The BIRA process will also be subject to independent scientific review, similar to the Eminent Scientists Group process outlined in the Quarantine Regulations, to ensure that the outcomes in the final BIRA have a solid scientific basis and independent review by the Inspector-General of Biosecurity to ensure that the BIRA process has been conducted correctly. Prohibited goods and permits to bring in goods The Chapter outlines the powers of the Director of Biosecurity and the Director of Human Biosecurity to manage risks associated with goods that are prohibited or conditionally non- prohibited from being brought into Australian territory. These powers give the Director of Biosecurity and the Director of Human Biosecurity flexibility to manage biosecurity risks associated with goods on a risk-return basis. In many cases, this means that biosecurity risks associated with goods can be assessed and managed before the goods are brought in or imported into Australian territory. As a result, the goods are less likely to pose a biosecurity risk on arrival and are less likely to require further intervention. It is intended that existing import conditions under the Quarantine Act will continue to operate under the Bill. The Director of Biosecurity may grant a permit to bring in or import conditionally non-prohibited goods into Australian territory. Permits are used administratively to place conditions on goods, as well as collect data and track the location of certain classes of goods that may pose a biosecurity risk. The Chapter provides that the Act will cover the field in relation to prohibiting or restricting the bringing in or importing of goods into Australian territory. This means that the Bill will override any State or Territory laws relating to prohibiting or restricting the importing or bringing in of goods, to the extent that they are inconsistent. For example, if a State prohibits the importation of a good and the Commonwealth permits the importation, the goods will be able to be imported. Certainty about roles and responsibilities will be increased, as authority to import goods into Australia will also authorise the goods to be imported into a state on the same conditions (if any). 13

Chapter 4 - Managing biosecurity risks: conveyances Chapter 4 of the Bill outlines the powers of biosecurity officers in relation to the management of biosecurity risks associated with conveyances entering into Australian territory from overseas. It also provides for the management of biosecurity risks associated with interactions between conveyances. Conveyances is a term used in the Bill to broadly refer to any aircraft, vessel, vehicle, or train (including railway rolling stock). Chapter 4 will also replace the first port provisions in the Quarantine Act with a first points of entry scheme. First points of entry are landing places or ports where aircraft, vessels, goods and people are required to arrive at when they first enter Australia from overseas. An aircraft or vessel becomes subject to biosecurity control when the aircraft or vessel enters Australian territory and continue to be subject to biosecurity control until it is released from biosecurity control. When a conveyance is subject to biosecurity control it means that biosecurity officers can exercise powers in relation to those conveyances to assess and manage any biosecurity risks. A conveyance may also become subject to biosecurity control through being exposed to an aircraft, vessel or prescribed goods that are subject to biosecurity control. This is intended to capture conveyances that have been exposed to other conveyances where there is potential for biosecurity risks to transfer between conveyances (for example, Asian Gypsy Moths can fly or be blown between vessels). A pre-arrival report will be required for most aircraft and vessels intending to enter Australian territory. These provisions are largely consistent with those currently provided under the Quarantine Act. First points of entry The Director of Biosecurity or Director of Human Biosecurity may determine that a specified landing place or port in Australian territory is a first point of entry for aircraft and vessels that are subject to biosecurity control. Aircraft and vessels that are subject to biosecurity control can only travel to a first point of entry approved to accept them, unless permission has been granted to travel to another landing place or port by the Director of Biosecurity or Director of Human Biosecurity or a direction is given by a biosecurity officer, human biosecurity officer or chief human biosecurity officer. Ship Sanitation Australia is a signatory to the International Health Regulations (2005) (IHR), which seeks to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade. The ship sanitation certification scheme is a requirement of the IHR, and seeks to control the international spread of disease through the surveillance and inspection of international shipping. The scope of the ship sanitation certification scheme includes sanitation health risks posed by vessels arriving or intending to arrive in Australia; and sanitation health risks posed by outgoing vessels to other countries. 14

Chapter 5 - Ballast water and sediment Chapter 5 of the Bill regulates the use of ballast water and management of sediment by Australian and foreign vessels in Australian seas. This will create a single, Australian-wide ballast water and sediment management regime. The Bill will ensure that Australia has a regulatory framework in place to enforce its obligations under the International Convention for the Control and Management of Ships' Ballast Water and Sediments, 2004 (`Ballast Water Convention'). The Ballast Water Convention will come into force (and become mandatory) 12 months after ratification by 30 countries representing 35 percent of the world merchant shipping tonnage. Ballast water is sea water that is taken up by a vessel and then held in tanks on board to improve its stability. Ballast is an essential part of maintaining a vessel's safe operation and is vital to most cargo loading and unloading activities. Ballast water and any sediment within the ballast water may contain live marine organisms that, if untreated, create a risk of exotic colonies becoming established when released into Australian seas. This has the potential to damage Australia's marine environment and adversely affect related industries. Chapter 5 will provide that ballast water that has not been managed in accordance with the requirements (as set out in the Chapter) represents an unacceptable biosecurity risk. The Chapter also provides a compliance framework to allow the enforcement of these requirements. This approach requires the Commonwealth to take over responsibilities that are normally held by the states and territories, and where necessary will override their existing legislation. Chapter 5 will not override state and territory environment protection laws which impose requirements once the ballast water or sediment has been released or removed from the vessel. The key difference between the Bill and the Ballast Water Convention is that the Ballast Water Convention requires ballast water management plans and certificates to be mandatory for all vessels. While the Bill will require the management of biosecurity risks relating to ballast water, ballast water management plans and certificates will only be mandatory for vessels that use a ballast water treatment system to treat their ballast water. This difference is due to the fact that when the Bill is implemented, the Ballast Water Convention is unlikely to be in force and many vessels (particularly foreign vessels) are not expected to be fully compliant with the Ballast Water Convention. The period of time between the Bill being implemented and the Ballast Water Convention being in force will give these vessels more time to become compliant. The Department of Foreign Affairs and Trade, Department of Regional Australia, Local Government, Arts and Sport, Department of Sustainability, Environment, Water, Population and Communities and the Attorney-General's Department have been consulted on the provisions of the Chapter. Chapter 6 - Managing biosecurity risks: monitoring, control and response Chapter 6 provides the Commonwealth with powers to manage biosecurity risks associated with a disease or pest incursion anywhere within Australian territory (including the marine 15

environment). The powers will allow the Commonwealth to assess, manage and monitor biosecurity risks in relation to a single good or premises, or over a larger area. These powers are intended to complement existing state controls allowing the Commonwealth to work in partnership with the states and territories to manage disease or pest incursions. Biosecurity Control Orders Once a disease or pest has been determined to be posing an unacceptable level of biosecurity risk, the Director of Biosecurity will have the ability to make a biosecurity control order to manage the risks in relation to a goods or premises (including a conveyance). The biosecurity control order must list powers and biosecurity measures available to manage the biosecurity risks posed by the disease or pest, including treatment and destruction of the goods or premises. In making a biosecurity control order, the Director of Biosecurity will have the flexibility to select the most appropriate powers. This means that the response can be tailored to the specific disease or pest. A biosecurity officer will not be able to exercise any powers in relation to good or premises to which a biosecurity control order is made, unless those powers are listed in the biosecurity control order. Determination of biosecurity zones The Chapter provides the Commonwealth with the power to determine biosecurity zones. The types of zones include: biosecurity response zone: a zone to manage biosecurity risks biosecurity monitoring zone (permanent or temporary): a zone to assess and monitor biosecurity risks, and biosecurity activity zone: a zone to manage biosecurity risks associated with carrying out biosecurity activities. Biosecurity response zones Where a biosecurity officer suspects on reasonable grounds that a pest or disease is present in or on goods or premises in an area, and that the disease of pest poses an unacceptable biosecurity risk, the Director of Biosecurity will be able to determine biosecurity response zone over that area in order to manage the risks. For example, where there is a pest or disease outbreak over a number of farms, the Director may declare a biosecurity response zone over those farms. The biosecurity zone determination must list the powers and biosecurity measures available to manage the biosecurity risks posed by the disease or pest. Biosecurity monitoring zones There are two types of biosecurity monitoring zones, permanent and temporary. Permanent biosecurity monitoring zones will automatically be placed within the permissible distance of the outer boundary of areas which have a high-level of biosecurity risk, such as first points of entry and international mail centres. The Chapter allows for additional high- biosecurity areas to be prescribed in the regulations. The Director of Biosecurity will be able to determine a temporary biosecurity monitoring zone if he or she is satisfied that it is necessary to do so for the purposes of monitoring whether a disease or pest has entered, emerged, established itself or spread into an area. The temporary biosecurity response zone determination must list the powers that are available in 16

the zone. These powers are limited to assessing the level of biosecurity risk, and include some identification and marking powers. Biosecurity activity zones The Director of Biosecurity will be able to determine a biosecurity activity zone for the purpose of managing biosecurity risks posed by a disease or pest associated with the exercise of powers or the performance of those functions or duties, performed by, or on behalf of the Commonwealth. This type of zone may be placed around premises under an approved arrangement, or a quarantine station (a location where animals or plants are quarantined on arrival into Australia). Chapter 7 - Approved Arrangements The Bill replaces the compliance agreement and quarantine approved premises schemes in the Quarantine Act (sections 46A and 66B) with a broader and more simple model. Under an agreement, referred to as an `approved arrangement', relevant persons can enter into an arrangement with the Commonwealth to undertake approved biosecurity activities themselves, if the party can demonstrate its ability to be consistent with strict standards designed to maintain the integrity of Australia's biosecurity system. Approved arrangements give parties (including individuals and corporations) the opportunity to voluntarily enter into an agreement intended to reduce their regulatory burden and increase their profitability by managing the biosecurity risks associated with their operations in the most efficient way. This Chapter allows a wider range of activities to be brought within the scope of an approved arrangement than is currently allowed under the Quarantine Act. If appropriate, approved arrangements may cover biosecurity activities at a single location, multiple locations, activities that are not tied to a location (for example, waste management activities) or an entire supply chain. This provides maximum flexibility in what may be included in an approved arrangement, as long as the biosecurity risks associated with them are being managed appropriately. All arrangements will be supported by an audit model to ensure that biosecurity activities are being carried out consistently with the person's approved arrangement. The approved arrangement model contributes toward the Nairn and Beale review recommendations of `shared responsibility' with industry in the management of biosecurity risks (recommendation 28). It also supports the biosecurity risk-return concept by combining the resources of the Commonwealth with relevant members of the community to more effectively manage biosecurity risks. Chapter 8 - Biosecurity emergencies and human biosecurity emergencies Chapter 8 is divided into two parts: biosecurity emergencies and human biosecurity emergencies. Biosecurity emergencies relate to diseases and pests that pose a severe and immediate threat on a nationally significant scale to animal or plant health, the environment or related economic activities. Human biosecurity emergencies relate to a listed human disease that poses a severe and immediate threat on a nationally significant scale to human health. The two categories of emergencies have been created because the circumstances and the biosecurity risks that lead to the declaration of each type of emergency are different, as is the response required from the Australian Government to manage the threat or harm posed. 17

Commonwealth powers are intended to complement existing state controls, allowing the emergency response to make use of resources available in both state and territory, and Commonwealth jurisdictions. They are also intended to complement existing agreements such as the Emergency Animal Disease Response Agreement, the Emergency Plant Pest Response Deed and the National Environmental Biosecurity Response Agreement. Chapter 9 - Compliance Chapter 9 establishes the monitoring, investigation and audit provisions of the Bill to ensure that biosecurity enforcement officers have the powers necessary to monitor and investigate compliance with the Bill and provides penalties for non-compliance with the Bill. This Chapter allows entry into premises, to monitor and investigate instances of non-compliance, by consent, with a warrant or in certain circumstances without a warrant. The ability to enter premises by consent or under a warrant allows biosecurity enforcement officers to determine whether the Bill is being or has been complied with or that information supplied for the purposes of the Bill is correct. Undertaking investigation and monitoring powers on premises will allow non-compliance to be more easily detected and ultimately reduced, leading to greater compliance with the Bill and therefore a better management of biosecurity risks. This Chapter provides the Director of Biosecurity and the Director of Human Biosecurity with the ability to apply the fit and proper person test and gather personal information from applicants. This is to ensure that persons covered by approved arrangements or who have been granted import permits are persons that are able to appropriately manage biosecurity risks. This chapter also provides for civil penalties for persons providing false or misleading information or documents for the purposes of the Bill. This will ensure that information provided for the purposes of the Bill is correct and therefore will ensure that the assessment and management of biosecurity risks will be able to be undertaken as effectively as possible. Chapter 10 - Warrants Chapter 10 contains general provisions relating to the various types of warrants that may be issued under the Bill. The Chapter allows for entry to premises and the taking of possession of conveyances or premises by consent, with a warrant, or in certain circumstances without a warrant or consent. The Chapter outlines how warrants may be applied for and issued, and provides the tests that must be satisfied in the issuing of warrants. Protections for certain persons are also set out, including in relation to consent and the rights of occupiers of premises. The ability to enter premises with a warrant allows biosecurity officers and biosecurity enforcement officers to gather information and evidence of non-compliance with the Act and to effectively assess, manage and monitor biosecurity risks as set out in Chapter 6. The ability to take possession of a conveyance or premises with a warrant allows biosecurity officers and biosecurity enforcement officers to exercise powers where required under Chapters 4 and 6 to effectively manage any biosecurity risks associated with the conveyance or premises. A biosecurity enforcement officer or a biosecurity officer may enter premises without a warrant or consent when exercising certain powers under Chapters 4, 8 and 9, where there is strong justification for doing so. A biosecurity officer or a biosecurity enforcement officer may enter any premises at a landing place or port, during a biosecurity emergency period, and premises related to an approved arrangement or first point of entry. 18

Chapter 11 - Enforcement Chapter 11 provides a framework of penalties, offences and other mechanisms to ensure that biosecurity officials have the powers necessary to appropriately respond to non-compliance with the Act. Civil penalty provisions are included in the Bill to provide an alternative to prosecution for an offence. The civil penalty provisions are considered to be appropriate and effective where contraventions are of sufficient size to justify the expense and time required to take the matter to court or where because the contravention is by a corporate entity the higher financial disincentive that civil penalties provide is most likely to be useful and effective. The infringement notice scheme set out in this Chapter provides a framework to deal with instances of non-compliance with the Bill that are less severe in nature. Enforceable undertakings allow the Director of Biosecurity to accept an undertaking from a person about compliance with a provision of this Bill. For example, a person may provide an undertaking to take steps to remedy an instance of non-compliance with this Bill, which the Director of Biosecurity may choose to accept instead of pursuing another penalty. The Bill allows biosecurity enforcement officers to secure a good or conveyance. Chapter 11 provides that where the court is required to determine the validity of a direction to secure a good or conveyance, the direction remains in place while the court considers the validity of the decision. The intention of this provision is not to interfere with the court's jurisdiction to make orders as it considers appropriate within its jurisdiction. The Bill also provides for the use of injunctions to restrain a person from non-compliance with the Act or to compel compliance with the Act. The Director of Biosecurity and the Director of Human Biosecurity may apply for the following types of injunctions: a restraining injunction; a performance injunction; or an interim injunction. Chapter 12 - Governance and officials Chapter 12 provides for the establishment of and responsibilities of the Director of Biosecurity, the Director of Human Biosecurity, and specific officers defined under the Bill. This Chapter provides that the Secretary of the Agriculture Department is the Director of Biosecurity. The Director of Biosecurity has the ability to exercise a number of powers across the Act considered appropriate to the seniority of his or her position. In addition to any other powers able to be exercised, Chapter 12 provides the Director of Biosecurity with a power of general administration of the Bill (excepting provisions administered by the Director of Human Biosecurity). The general administration power will allow the Director of Biosecurity to provide guidance for departmental staff and the general public in administering the Bill. Chapter 12 provides for the Director of Biosecurity to delegate his or her powers and SES employees may sub-delegate these powers to particular officials. The Director of Biosecurity will have the power to authorise people to be biosecurity officers and biosecurity enforcement officers. These officers' powers and functions under the Bill will be comparable to those of current quarantine officers. Chapter 12 outlines that the Director of Human Biosecurity is the person who occupies the position of Commonwealth Chief Medical Officer. The Director of Human Biosecurity will have the powers and functions conferred on them by this Act. The Director of Human 19

Biosecurity will have the power to appoint human biosecurity officers and chief human biosecurity officers. Chapter 13 - Miscellaneous Chapter 13 contains provisions on a range of concepts including reviewable decisions, confidentiality of information, recovery of costs, exemptions from and modifications to the Act, as well as a range of other miscellaneous clauses. Reviewable decisions Part 1 of Chapter 13 lists the different decisions across the Bill that are reviewable, and the relevant person for each reviewable decision. The relevant person for a reviewable decision may apply to the Director of Biosecurity for a review of that decision, unless it was made by the Director personally. The Bill also provides that applications can be made to the Administrative Appeals Tribunal for review of a decision made personally by the Director of Biosecurity or for review of a decision that has been reviewed by the Director of Biosecurity or other internal reviewer. Confidentiality of information Part 2 of Chapter 13 includes clauses relating to the disclosure and sharing of personal and commercial-in-confidence information (protected information). This Part also allows a person to share protected information with other Commonwealth agencies, state and territory agencies, organisations and individuals, as authorised by the Director of Biosecurity or Director of Human Biosecurity. Recovery of costs Part 3 of Chapter 13 allows the Agriculture Minister to recover costs of biosecurity activities undertaken by the department in line with government policies relating to cost recovery as administered by the Minister of Finance and Deregulation. The regulations will prescribe specified activities (chargeable activities) for which fees may be charged and the appropriate level of those fees. The regulations will not prescribe fees amounting to taxation. A number of compliance options are available in relation to fees prescribed in the regulations that are unpaid. Part 3 allows for conveyances to be detained and goods to be withheld if they are subject to a charge due to unpaid fees. If a fee has not been paid within 30 days of the owner of the goods or conveyance being provided written notice (or a longer period as specified in the notice), the withheld goods or detained conveyance may be sold to recover the unpaid fees. This Part also sets out how the proceeds of the sale of goods or conveyances may be dealt with. Part 3 also provides for recovering expenses relating to providing sustenance for animals and plants, and for the Minister to remit or refund fees in certain circumstances. Exemptions and modifications to the Act Part 4 allows exemptions from the Act to be made in the regulations. It allows exemptions to be made for conveyances, goods or people from any or all of the provisions in the Bill. Exemptions may apply for a specified time period, be subject to one or more conditions or apply to a particular geographical area. Part 4 also allows modification of any provision of the Act to be made in relation to conveyances, goods or people through the regulations. Modifications may apply for a specified time period, be subject to one or more conditions or apply to a particular geographical area. Modifications of the Act allow for the management of 20

biosecurity risks in certain circumstances where the standard provisions of the Bill do not enable appropriate management of biosecurity risks. Part 4 also allows regulations to be made to exempt vessels, people or goods from provisions of the Act to meet Australia's obligations under the Treaty between Australia and the Independent State of Papua New Guinea (PNG) concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters (the Torres Strait Treaty). This Chapter also deals with a number of miscellaneous clauses including, the management of abandoned and forfeited goods or conveyances, compensation arrangements for damage and destruction and removal of the right to the privilege against self-incrimination. 21

The Bill's operation Date of effect and application The Bill provides for staggered commencement of the Bill. Clauses 1 and 2 of the Bill will commence on the day the Bill receives Royal Assent. The remaining clauses of the Bill will commence on a day fixed by proclamation, or if no day is fixed for commencement within 12 months of Royal Assent, they will commence on the day after the end of the 12 months. Once the Bill receives Royal Assent, the Director of Biosecurity or the Director of Human Biosecurity will be able to make legislative instruments, and authorise various officers as outlined under Chapter 12 (through the operation of the Acts Interpretation Act 1901). These instruments and authorisations will come into effect when the operational provisions of the Bill commence. It is intended that the majority of the clauses of the Bill will commence 12 months after Royal Assent. The period between commencement of clauses 1 and 2 and the remaining clauses of the Bill is to allow time for the new requirements in the legislation to be communicated to stakeholders, industry participants and the general public, and allow biosecurity officials to undergo appropriate training. It will also provide additional time for consultation with states and territories regarding shared responsibilities and obligations under the Bill. Allowing time for communication and education is important as a number of policies included in the Bill do not exist under the Quarantine Act such as the new post border powers in Chapter 6 and enforcement regime in Chapter 11. It is important that stakeholders are aware of the new requirements--including the introduction of civil penalty provisions and an expanded infringement notice scheme--in the Bill so that they are not inadvertently non- compliant with these requirements. Proposed transitional arrangements will also allow time for stakeholders to adjust to the new legislative requirements, particularly where these requirements may lead to changes in business processes. For example, in relation to first points of entry, it is proposed that all ports and landing places declared under the Quarantine Act as a first port will automatically become a first point of entry under the Act. There will then be a period of time before these ports and landing places are required to comply with the requirements in the Act. Financial impact No significant direct or indirect financial impact on the Commonwealth will arise from the introduction of this Bill. 22

Regulation impact statement The Regulation Impact Statement, entitled Regulation Impact Statement Biosecurity Legislation been assessed as adequate by the Office of Best Practice Regulation. Executive summary Biosecurity involves `managing risks where there is a likelihood of a disease or pest entering Australia and establishing itself or spreading and potentially causing harm to human, animal, or plant health, the environment; or causing economic consequences'.1 Managing the entry, establishment and spread of pests and diseases is vital, not only for the wellbeing of Australia's population and native environment but also for the viability of some of Australia's most important sectors. In Australia, the management of biosecurity is achieved through collaboration between the Australian, state and territory governments, industry participants and other stakeholders. The Department of Agriculture, Fisheries and Forestry (DAFF) is the primary biosecurity agency at the national level. The Quarantine Act 1908 (`the Quarantine Act') provides the legislative basis for human, plant and animal quarantine activities in Australia and provides a national approach to protecting Australia from pests and diseases. Biosecurity risks have changed significantly since the core of the Quarantine Act was drafted over a century ago. In addition, the last significant review of the system in 2008, One Biosecurity: A Working Partnership found that, while Australia operates a good biosecurity system, there are a number of opportunities for improvement. In this context, the Australian Government has committed to reform its biosecurity legislation, and to address issues with - and replace - the Quarantine Act and its associated instruments. The proposed biosecurity legislation aims to manage biosecurity risks but in a more flexible manner than the current legislation. The proposed legislation provides an overarching legislative framework. Much of this framework is common, in practical terms, to the existing situation or provides heads of power for more detailed regulations, and in isolation does not represent substantive change from current policy or practice. This Regulatory Impact Statement (RIS) is focussed on only those parts of the proposed legislation that could be expected to generate substantive costs or benefits for stakeholders relative to the current situation. Three specific issues have been identified for analysis in this RIS and relate to: approved arrangements between government and industry participants introduction of a new policy for the approval of first points of entry use of biosecurity zones in prevention and control. This RIS considers each of these issues in terms of the problem being addressed, potential alternatives to the proposed biosecurity legislation, and the associated costs and benefits. 1 Draft Biosecurity Bill, section PM50 23

There is also a brief discussion of other changes with less significant impacts (such as those relating to human health). In addition to the benefits associated with reforms in the three areas outlined above, there is also a broad, unquantified benefit of the proposed biosecurity legislation that relates to the value of improving the overall quality of the legislative framework by reducing the costs associated with interpreting complex, prescriptive, outdated legislation (a benefit to both government and business). The legislative reform will also assist the plans for broader reform in biosecurity primarily in the form of more flexible legislative mechanisms that will allow change. Approved arrangements The Quarantine Act states that quarantine related activities must be performed by DAFF officers or under their direct supervision. This has led to the department implementing partnership arrangements with industry participants that are formalised through various provisions of the Quarantine Act. In particular, section 46A of the Quarantine Act is used where arrangements apply to a physical premise whilst section 66B is used where the arrangement applies to a specific quarantine activity performed on behalf of DAFF. Under section 46A and 66B each premise or activity is subject to a separate approval or agreement. As a result of the current legislative requirement, industry participants may be subject to multiple arrangements under one or both of the existing sections to ensure they are compliant. This leads to an increased regulatory burden on industry participants, and imposes a significant administrative burden on the department as well as creating inefficiency and duplication of process. More broadly, the current arrangements are seen as unduly restrictive and rigid, with insufficient flexibility to allow for partnerships between industry participants and government in respect of certain activities or types of premises. The proposed biosecurity legislation will transition those that are currently on a QAP or compliance agreement to an approved arrangement, and broaden the scope of operations that may be brought under an approved arrangement. The model of approved arrangements, within the context of the proposed biosecurity legislation, provides a mechanism whereby government and industry participants are able to work together to achieve biosecurity objectives. These arrangements are most beneficial when they are focused on areas where industry participants have an advantage over government in providing a particular service or facility (such as on the basis of efficiency or technical expertise). In these cases, having industry participants provide a service can allow a more flexible and expedient process to occur, which has benefits to both industry participants and government (for example, where industry participants are able to include particular biosecurity requirements within their usual business process, thereby avoiding the need to defer to biosecurity officials at that stage). There are three areas identified in this analysis where the proposed changes to approved arrangements are likely to have an impact (in terms of both costs and benefits to both industry participants and government): Broadening the scope and flexibility of approved arrangements between government and industry participants Where the changes influence the number and type of approved arrangements sought by industry participants with government. It is expected that in time, there would be an increase in the number of arrangements agreed between industry participants and government, primarily on the basis of the improved flexibility under the proposal, and the inclusion of `end- 24

to-end' systems within the proposed scope of approved arrangements. The increased number of parties subject to approved arrangements will allow for increased flexibility for those parties, providing more effective and efficient outcomes Reducing administrative complexity for government and industry participants Where the changes allow approved arrangements to be established and managed at a lower administrative cost than previously. It is expected that government and industry participants will benefit from reduced administrative costs, where the new arrangements allow a much more flexible approach to management Costs to transition to approved arrangements - most notably in relation to the fit and proper person test. First points of entry The Quarantine Act provides that overseas vessels must enter Australia at a first port of entry, as listed in the Quarantine Proclamation 1998. While the Quarantine Proclamation 1998 lists the 59 ports that are currently proclaimed as first ports of entry: there is no transparent process that sets out how ports come to be proclaimed, nor how ports may be removed from this list there are no requirements setting out how to identify suitable first ports (and associated infrastructure requirements) to ensure that the port can be serviced by biosecurity officials or that biosecurity risks can be managed there is little clarity around what area constitutes a port in terms of the geographical boundaries of a port (this is important when determining biosecurity risk). A number of proclaimed first points of entry are no longer receiving a substantive volume of international vessels (for a variety of reasons). Some are not in use at all. The current ambiguity surrounding the proclamation and management of first ports of entry has led to a number of vessels entering non-proclaimed ports (both with permission - which imposes a range of costs to process numerous `one off' applications, and without permission - which raises concerns around the effective management of biosecurity risks). The proposed biosecurity legislation will introduce clear requirements to provide certainty to port and landing place operators about the process to become a first point of entry, and the circumstances under which a first point of entry determination may be varied or revoked. Port operators would be positively impacted by the greater transparency and certainty within the first point of entry process. In addition, the decision to apply for first point of entry status lies with port operators and enables operators to choose the option that best aligns with their business objectives. Costs include application costs as well as potential costs to upgrade facilities to meet specific requirements that would be set out in regulations. Some may choose to forego their first point of entry status, with potential impacts on profitability and port users. DAFF would benefit from the proposed arrangements because the legislation will enable requirements for facilities for biosecurity officers to be set out in regulations. It would thereby help to ensure that officers have the necessary tools and facilities available to them at each port to carry out specific biosecurity duties relevant for that port. Vessel masters would be able to work within a superior framework, resulting in greater transparency of port requirements, potentially fewer applications to land at non-proclaimed 25

ports and greater flexibility to manage short term or seasonal use of ports. Vessel masters would also have greater certainty about the facilities available to them upon arriving at a first point of entry. Declaration of biosecurity zones The Australian Government currently assumes a relatively narrow biosecurity reach even though its constitutional powers allow for broader regulation. Specifically, the Australian Government has not yet exercised its absolute constitutional power but rather has focused on regulating border activities. Onshore activities have generally been the responsibility of state and territory governments, with assistance from the Australian Government in particular instances. This relatively narrow focus has caused a range of issues, including: additional, and sometimes overlapping, biosecurity measures imposed by individual states and territories the non-traceability of animal and plant matter of greater biosecurity interest once it passes the border inefficient strategies and actions due to the uncertain roles and responsibilities of both individual states and territories and the Australian Government inadequate information sharing and coordination between governments. The proposed biosecurity legislation provides additional powers to the Australian Government to manage biosecurity risks post-border. These powers include: biosecurity response zones, biosecurity zones, monitoring zones and biosecurity control orders. The potential impact of these changes on industry participants, and the community more broadly depend on: the extent to which they impose costs on business or individuals by restricting their normal operations (i.e. restricting access to property, restricting movement of people, vehicles or goods, requiring monitoring activities) the extent to which the new arrangements will improve the management of biosecurity risks, including reducing the potential spread of an introduced species or disease the frequency with which the measures are used. These powers complement rather than replace existing state powers. They may be used infrequently but provide a greater number of options for managing post border incursions in a timely and effective way, particularly if there are benefits in managing a response consistently across different jurisdictions. The extent of costs and benefits from these powers will vary considerably from case to case, depending on how they are applied. The key benefit of these changes will be improved management of incidents post-border and the resulting reduction in costs to stakeholders who could be affected if the pest/disease spread further. The costs associated with these powers will primarily be incurred by those industry participants within a declared zone or affected by a notice which may include costs of restrictions to movement of persons, livestock or goods, costs of providing access to property for monitoring. Importantly, these costs would be similar to those incurred when existing powers are exercised by state and territories. The additional cost of sometimes using these powers is likely to be small and in some cases could result in cost savings relative to the alternative of managing a response using different powers in each state. 26

Conclusion In most cases, the proposed biosecurity legislation provides the enabling powers for government, with additional details to be set in regulations. While key areas of costs and benefits can be identified, an estimate of the scale of costs and benefits cannot be provided in most cases without the detail that would be set in regulations. For instance, the potential compliance costs of meeting requirements for first points of entry would be determined based on the criteria and application process to be set in regulations. The impact analysis is, therefore, primarily qualitative. In that regard, the overall assessment is that the proposed biosecurity legislation is likely to generate a net benefit relative to the status quo, and is recommended for adoption. Introduction and context Biosecurity involves `managing risks where there is a likelihood of a disease or pest entering Australia and establishing itself or spreading and potentially causing harm to human, animal, or plant health, the environment; or causing economic consequences.'2 A number of factors mean that Australia is increasingly vulnerable to pests and diseases which threaten its biosecurity status. These include the increasing numbers of vessels, passengers and goods from higher risk origins entering Australia and the changing nature of trade and movement with a higher percentage arriving from higher risk countries. The work related to managing the associated biosecurity risks is expected to double in the next 10 years.3 The number of incursions of pests and diseases is increasing and there are also increasing demand from international trading partners for greater levels of assurance in relation to exports. If the existing approach to managing Australia's biosecurity system does not change, funding of the biosecurity system will need to grow proportionately with the increases in movements of vessels, people and goods to achieve the same level of biosecurity activity. It is questionable whether such an ongoing cost increase is sustainable. The existing approach to funding and targeting resources is unsustainable if Australia is to maintain its favourable biosecurity status. Australia, particularly its agriculture, fisheries, forestry and food industries, gains significant economic benefits from this status which would be adversely affected if it was not maintained. Breaches of the biosecurity system can also have significant implications for human health and biodiversity. The following sections provide an overview of recent events that provide an important context to the problems identified with the current legislation. The current situation 2 Draft Biosecurity Bill, section PM50 3 Based on Department of Agriculture, Fisheries and Forestry information. 27

Australia remains relatively free from many of the pests and diseases that affect primary industries, the environment and human health in other countries.4 However, in recent years Australia's borders have become increasingly vulnerable to pests and diseases. Australia's increased vulnerability is due to a number of factors including globalisation and the increased movement of goods and people across borders. Australia's favourable pest and disease status is important as it underpins Australia's agricultural and food sector and its ability to export and it is integral to the unique status of Australia's natural environment. One indicator of the economic benefit to Australia is the contribution of Australia's agriculture, fisheries and forestry industries to gross domestic product (GDP). In 2010-11 these industries contributed $36.2 billion in exports (or 3 per cent of GDP).5 The Department of Agriculture, Fisheries and Forestry (the Department) has primary responsibility for managing Australia's biosecurity system. In 2011-12, total funding for the Department's biosecurity programs is estimated at $509.5 million; the majority of which is comprised of $186 million from government appropriation and $295 million from external revenues. The need for new biosecurity legislation There are various reasons that have been identified for a shift in the approach of managing biosecurity. These are: the existing primary focus on interception at the border is a narrow and resource intensive response to the biosecurity continuum resources are allocated inefficiently to address different risks several key components of the biosecurity system at that time were identified as inadequate, inefficient or ineffective. The nature of biosecurity risks in Australia Biosecurity risks have the potential to impose significant costs on Australian firms, government and individuals if they are not managed effectively. One example of this is the discovery of red imported fire ants (non native species) in Queensland. The Australian Bureau of Agricultural and Resource Economics estimated the potential costs of this pest to Australia over a 30 year period to be nearly $9 billion.6 Currently, under emergency response arrangements (these include the Emergency Animal Disease Response Agreement, the Emergency Plant Pest Response Deed and the draft National Environmental Biosecurity Response Agreement.), the Australian Government is contributing to pest and disease eradication and other management programs at a cost of over $315 million; of which the Australian Government has or is committed to contribute half of all government costs. 4 Lizzio, J and Jones, C. March 2010. `Biosecurity and Australia's primary industries- the role of biotechnology,' Bureau of Rural Sciences. 5 Department of Agriculture, Fisheries and Forestry Annual Report 2010-11, Snapshot of agriculture, fisheries and forestry, Value of exports for agriculture, fisheries and forestry, 2010-11. www.daff.gov.au/about/annualreport/annual-report-2010-11/report-on-performance/quarantine-and-export- services. 6 Beale, Fairbrother, Inglis, Trebeck, "One Biosecurity: A Working Partnership," pg 2. 28

In the case of Foot and Mouth Disease, the recent Matthew's review7 commissioned the Australian Bureau of Agricultural and Resource Economics and Sciences to revisit the Productivity Commission's 2002 report on the economic impact of hypothetical foot and mouth disease outbreaks on Australia. The Australian Bureau of Agricultural and Resource Economics and Sciences estimated that over a ten year period there would be severe direct economic losses to the livestock and meat processing sector from an outbreak of foot and mouth disease. These losses ranged from $7.1 billion for a small three month outbreak, to $16.0 billion for a large 12 month outbreak (expressed in current dollar terms). Control and compensation costs were estimated to range between $25 million for the small outbreak, and $600 million for the large outbreak. Reflecting international experience, the economic impact of trade restrictions (export market closures) would be far greater than the cost of controlling the disease. The Beale Review and, prior to that, the Nairn Review were significant investigations into Australia's current biosecurity management framework and the current level of biosecurity risk Australia faces. These reports illustrate the nature of biosecurity risks to Australia, the potentially severe consequences should an incursion occur, as well as the need for government intervention. Therefore, this Regulatory Impact State (RIS) does not `re- prosecute' the need for quarantine activities at Australia's border from first principles in extensive detail. The role for government in mitigating biosecurity risks Government intervention or action is typically justified in instances of market `failure'. In this case, to take one example, the presence of negative externalities (a form of market failure where one party imposes costs on others that are not compensated or benefits that are not paid for) in the context of biosecurity has been widely documented. For example, the importer of a good containing a pest or disease does not usually bear the full costs of any resultant pest or disease outbreak. Rather, pests and diseases affect other producers through a loss of production and/or additional costs associated with the control of the pest and disease and consumers through the potential increase in price for affected goods or the unavailability of the affected good. After completing research and assessing the impacts of invasions, Perrings, Dehnen, Touza, & Williamson (2005) state that "responsibility for environmental protection lies with national governments and takes the form of quarantine regulations." Further "one of the most striking consequences of globalisation is the increase in the problem of invasive species" and subsequently invasion costs, indicating the growing need for government intervention.8 In Australia, the management of biosecurity is achieved through collaboration between the Australian, state and territory governments and other stakeholders. DAFF is the primary biosecurity agency; however there are a number of other Australian government agencies with responsibilities for border security and which participate in biosecurity decision making. Examples of these agencies include: 7 Matthews, Ken AO, "A review of Australia's preparedness for the threat of foot-and-mouth disease," October 2011, pg 3. 8 Perrings, C., Dehnen, K., Touza, J., & Williamson, M. (2005). How to manage biological invasions under globalisation. Ecology and Evolution , Vol.20. 29

the Department of Health and Ageing (DoHA) collaborates with state and territory government health agencies and other relevant agencies to develop, maintain and provide direction for human health issues and strict human quarantine policies to protect Australia from the introduction of serious communicable diseases9 the Department of Sustainability, Environment, Water, Population and Communities (DSEWPC) is involved in respect of matters about pests that affect Australia's unique environment and to ensure a strategic, effective and consistent approach is used to manage environmental threats the Australian Customs and Border Protection Service (Customs) has shared responsibility with DAFF to regulate and control movement into and out of Australia of people, cargo and vessels at airports, sea ports and mail centres the Department of Immigration and Citizenship (DIAC) manages the entry of travellers. In addition, state and territory governments have an integral involvement in managing and implementing onshore biosecurity activities.10 The core priority for DAFF in managing biosecurity risks is to focus resources on those areas of greatest risk and where government intervention is most needed.11 Priorities also include: the continued partnerships between Australian departments, state and territory governments, industry participants, clients and stakeholders the delivery of biosecurity services to support access to overseas markets and protect the economy and the environment from the impacts of unwanted pests and diseases. Australia focuses heavily on maintaining its biosecurity system across the continuum, applying measures to identify hazards and manage risks through preparedness, prevention, response and recovery strategies.12 This focus on the continuum supports consistent service delivery, provides effective biosecurity risk management, improves the efficiency and responsiveness of operations, and strengthens client relationships. Biosecurity risks have changed significantly since the core of the Quarantine Act was drafted over a century ago. Figure 1 below sets out some activities currently undertaken at the key points along the biosecurity continuum. 9 Department of Health and Ageing, `Annual Report, Outcome 14 - Biosecurity and Emergency Response', http://www.health.gov.au/internet/annrpt/publishing.nsf/Content/annual-report-0809-toc~0809- 2~0809-2-3~0809-2-3-14 10 Department of Agriculture, Fisheries and Forestry, `Biosecurity', http://www.daff.gov.au/bsg. 11 Department of Agriculture, Fisheries and Forestry, `About our Biosecurity System', http://www.daff.gov.au/bsg/system. 12 Lizzio, J and Jones, C. March 2010. `Biosecurity and Australia's primary industries - the role of biotechnology', Bureau of Rural Sciences. 30

Figure 1: Activities conducted across the biosecurity continuum �gathering and exchange of information on intelligence and surveillance �conducting import risk analyses and risk assessments �completing import policy reviews �conducting offshore assessments, treatments and inspections �screening and inspection of international passengers, cargo, mail, animals and plants �assessing and managing the associated biosecurity risks through targeting goods and vessels arriving in Australia for intervention �managing the high biosecurity risks of live animals and plants through containing, observing and/or treating at quarantine facilities �ensuring that imported foods are fit and safe for human consumption by inspecting and controlling upon arrival in Australia �eradicating or managing those pests and diseases that have established �monitoring Australia's environment for new pests or diseases that may have emerged Source: Department of Agriculture, Fisheries and Forestry, `Biosecurity', http://www.daff.gov.au/bsg. Currently the Australian Government predominantly focuses its resources on `at the border' activities. It also conducts some offshore activities, while the responsibility of onshore activities generally rests with state and territory agencies. Industry participants are able to participate in the management of biosecurity risks through the implementation of a partnership arrangement between DAFF and the industry participant whereby industry participants agree to meet biosecurity standards and/or perform a range of biosecurity functions. These are formalised through provisions under the Quarantine Act. Problems associated with current legislation There are several problems associated with the current legislation. It is not aligned to modern business realities, has been amended approximately 50 times resulting in poorly integrated provisions and is marked by inconsistent use of language, poor structure, a range of drafting styles and duplication or overlap of powers. Specific problems that have been identified and which are the focus of this RIS, are: the need for greater shared responsibility between the Australian, state and territory governments, and between government, business and community poorly specified obligations related to first points of entry insufficient powers to achieve biosecurity objectives. 31

Objectives and options to achieve them Government objectives The objectives of government action to address the problems evident in existing biosecurity legislation are to: manage Australian biosecurity risks to an acceptable level and subsequently manage the impact associated with biosecurity incidents (such as the introduction of pests and diseases into Australia) maximise the economic efficiency of the management of biosecurity risks. Options to achieve objectives This chapter sets out, at a high level, a range of options for meeting the government's objectives from no regulation through to the proposed biosecurity legislation. These are considered in more detail in the chapters that follow in relation to the specific areas that are the focus of this RIS. Components of the legislation that are not specifically considered in this RIS are also set out in Table 1, setting out the extent of any change to the relevant legislative arrangements and any impacts on stakeholders (if any). The current legislation The status quo involves maintaining the current regulatory approach, which is the Quarantine Act and associated subordinate instruments. For the purposes of analysis for this RIS, the status quo is assumed to maintain: the current approach to articulating the Acceptable Level of Protection the current approach to Import Risk Assessments and associated risk determinations industry participants partnership arrangements as administered under two separate sections in the Quarantine Act (sections 46A and 66B) the current approach to designating first ports of entry, whereby overseas vessels must enter Australia at a first port of entry proclaimed under the Quarantine Act the current governance arrangements the current cost recovery arrangements limited powers in post-border space a rigid enforcement regime with only the ability to undertake criminal prosecution. The proposed biosecurity legislation The proposed biosecurity legislation will replace the century old Quarantine Act and aims to create a responsive and flexible operating environment. The reforms will allow for better management of the risks of animal and plant pests and diseases entering, establishing and spreading in Australia and potentially causing harm to people, the environment and the economy. The proposed biosecurity legislation comprises two new bills; the Biosecurity Bill and the Inspector General of Biosecurity Bill. The Biosecurity bill consists of the following chapters: Chapter 1 - Preliminary: This chapter sets out a number of administrative matters and includes commencement, the objects of the Act, Australia's appropriate level of protection, binding of the Crown, geographical coverage, as well as how the Act will interact with state and territory laws. 32

Chapter 2 - Managing biosecurity risks: human health: This chapter covers the continued management of human health risks at Australia's borders. It outlines the measures which may be used to respond to the threat of serious communicable diseases. Chapter 3 - Managing biosecurity risks: goods: This chapter provides for the powers of biosecurity officers to evaluate the potential risks associated with the import or proposed import of goods, prohibit or conditionally allow goods to be imported into Australia and to manage risks associated with goods brought into Australia. Chapter 4 - Managing biosecurity risks: conveyances: This chapter outlines the establishment and management of first points of entry and the management of biosecurity risks associated with conveyances (vessels, aircraft, etc) entering into Australia's jurisdiction from overseas and with offshore installations. Chapter 5 - Ballast water and sediment: This chapter implements the International Convention for the Control and Management of Ships' Ballast Water and Sediments 2004 and creates a single, Australian-wide ballast water and sediment management regime. Chapter 6 - Managing biosecurity risks: monitoring, control and response: This chapter outlines powers to monitor and, where necessary, manage biosecurity risks when they emerge on-shore. Chapter 7 - Approved Arrangements: This chapter outlines the scope and principles of approved arrangements, the processes for application, approval and any subsequent changes to an arrangement with a biosecurity industry participant. Chapter 8 - Biosecurity emergencies and humans biosecurity emergencies: This chapter outlines the powers and provisions relating to the declaration of a state of biosecurity emergency and the management of associated biosecurity risks. Chapter 9 - Compliance: This chapter establishes the monitoring, investigation and audit provisions under the Bill. Chapter 10 - Warrants: This chapter contains general provisions relating to the various types of warrants that may be issued under the Bill. Chapter 11 - Enforcement: This chapter provides a modern regime of enforcement tools to respond to non-compliance including civil penalties and criminal offences as well as a range of administrative options such as an infringement notice scheme, enforceable undertakings and identity provisions. Chapter 12 - Governance and officials: This chapter makes clear the powers and responsibilities of the Director of Biosecurity, the Director of Human Biosecurity, and biosecurity officers, biosecurity enforcement officers, chief human biosecurity officers and human biosecurity officers. Chapter 13 - Miscellaneous: This chapter contains provisions on recovery of costs and protection from civil proceeding while also covering other provisions that do not fit under any of the other chapters. 33

In comparison to the current situation, Table 1 below describes the differences of the proposed biosecurity legislation as well as comments on the extent of impacts on stakeholders. This Regulation Impact Statement focuses on those areas that represent the most significant changes (and therefore impacts) for stakeholders (as discussed below). Table 1: Comparison between Quarantine Act and the current situation Chapter Compared to current legislation Outcome and impact 1. Preliminary Outlines constitutional heads of These changes provide clarity around heads power. of power but this does not have tangible The Commonwealth will cover the implications for stakeholders. field in relation to importation of The risk of inconsistent import conditions goods into Australia. imposed by States and Territories where Australia's Appropriate Level of they are inconsistent with Commonwealth Protection will be enshrined in the laws will be reduced but in practice, new legislation. inconsistent conditions can already be challenged because of Australia's obligations under World Trade and Free Trade agreements. Australia's Appropriate Level of Protection is already Government policy and in operation it will not be any different if it is included in legislation. In isolation, these changes are not expected to result in substantive impacts on stakeholders. 2. Managing More powers to manage human Consultation on the draft RIS revealed that biosecurity risks: biosecurity risks. the impact of these changes will be minor as human health Interventions tailored to there will be little practical change to current accommodate an individual's procedures despite greater clarity and circumstances. flexibility in the legislation. Further, only a small number of people are likely to be affected. For example, the changes do not affect the list of human diseases for which interventions are applied. 3. Managing Goods can be unloaded unless DAFF operations staff have advised that in biosecurity risks: directed not to unload. practice, the direction not to unload will not goods Reversal of onus of proof for impact current loading/unloading practices. illegally imported goods. The reversal of onus of proof will transfer Abandoned or forfeited goods will the evidence burden from Government to be able to be destroyed, sold, importers - overall it is expected it will be exported or otherwise disposed of. easier and less resource intensive for an importer to prove goods were imported legally than for Government to prove the reverse. This change may affect the outcomes of individual prosecutions. Flexibility to manage abandoned goods would provide benefits to government eg. in reduced storage and administrative costs but the quantum of benefits is expected to be minor. These changes were not subject to more detailed analysis because of their relatively minor overall impact. 4. Managing Greater transparency around first The changes to first points of entry represent biosecurity risks: points of entry. a substantive change to existing policy and conveyances Vessel sanitation certification will impact existing first points of entry and scheme. potential new first points of entry. Although the extent of impacts will depend on the detail in the regulations, some analysis of the high level impacts on stakeholders has been undertaken. Consultation revealed that the vessel sanitation certification scheme will not 34

materially impact existing processes as these certificates are, in practice, already recognised. 5. Ballast water Manage ballast water via exchange The ballast water changes reflect an and sediment or treatment systems. international convention that will come into Ballast water record books force 12 months after ratification by 30 required. counties representing 35 percent of the Ballast water management world's merchant shipping tonnage. As of certificate and management October 2012, 36 countries have ratified the plan required. convention representing 29% of world tonnage. Extensive consultation occurred prior to Australia ratifying the convention which included the development of a regulatory impact statement in 2007. Analysis of these impacts is not repeated in this RIS. 6. Managing New post border powers. These measures give the Commonwealth biosecurity risks: Information gathering powers. additional powers for managing biosecurity monitoring, Biosecurity control orders. risks post border. Most states and territories control and Biosecurity zones. already have similar powers. In practice, use response of Commonwealth state or territory powers will be coordinated under existing national agreements. Some analysis of possible impacts is included in the RIS. 7. Approved Improve approved arrangements These measures will provide greater arrangements with industry to cover: flexibility for industry to manage the Broader range of operations. biosecurity risks associated with their Less administration costs for operations. In practice, this is likely to have industry and government in the greatest benefits for large importers. managing Approved Arrangements for smaller operators are Arrangements. unlikely to change significantly. The Ability to vary, suspend or revoke potential impacts are analysed in this RIS. an Approved Arrangements. 8. Biosecurity Broadens the scope of the powers These provisions are similar to existing emergencies and to cover: powers in the Quarantine Act that have humans Threats to human, plant and never been invoked but are broadened to biosecurity animal health. include acting when there are potential emergencies The environment. impacts on the environment or economy. The economy. The powers are designed to manage serious situations and those that are not able to be anticipated. Given the similarities to existing powers and that they may never be invoked, it is not possible to predict substantive impacts on stakeholders and these have not been analysed. 9. Compliance Establishes the monitoring, These provisions outline the monitoring, investigation and audit provisions investigation and audit powers for ensuring under the Bill. compliance with the Bill, and are similar to Allows the Director of Biosecurity existing provisions in the Quarantine Act. or Director of Human Biosecurity The introduction of a fit and proper person to assess whether a person is fit test, in conjunction with the power to and proper in relation to require personal information for applications for things such as applications, is envisaged to increase the import permits or approved efficiency of the process by allowing the arrangements, and also allows the review of a complete application without Director of Biosecurity to require needing to seek additional information. personal information for These requirements are designed to protect applications. the integrity of the application process for importers and other stakeholders. In addition, the requirements assist in the management of biosecurity risk by ensuring that privileges such as import permits or approved arrangements are given only to those able to responsibly and appropriately handle them. 35

10. Warrants Contains general provisions The warrant provisions will allow for relating to the various types of appropriate officials to enter premises or warrants that may be issued exercise other specific powers for ensuring under the Bill. compliance with the Bill, or managing Allows for entry to premises and biosecurity risk. These provisions provide the taking of possession of for warrants to be issued and exercised in conveyances or premises by accordance with the Bill in circumstances consent, with a warrant, or in that are consistent with the Australian certain circumstances without a Government Commonwealth Guide to Framing warrant or consent. Offences, Infringement Notices and Enforcement Powers. It is not envisaged that in practice there will be a high number of warrants issued each year. 11. Enforcement More flexible, modern regime of The introduction of a civil penalty regime in penalties and offences to include: addition to existing criminal offences Infringement notices. provides the department with greater Enforceable undertakings. opportunity to take action where non- Civil penalties. compliance has been identified. This will Criminal sanctions. provide more flexibility than criminal sanctions alone to encourage behavioural change. The changes are consistent with normal practice in other sectors and are briefly outlined in this RIS. 12. Governance General administration power for This additional power will provide greater and Officials Director of Biosecurity to provide administrative transparency. It does not transparency, certainty and allow the Director to `reinterpret' legislation consistency on how the legislation but may provide some benefit for will be applied. stakeholders where there is uncertainty. The impacts for stakeholders will depend on the aspect of legislation being interpreted and the outcome and analysis of possible impacts would be speculative. 13. Increased ability to deny/stop These provisions are administrative in Miscellaneous services where fees are nature and details, particularly in relation to outstanding. cost recovery, will be provided in Reporting timeframes. regulations. The department may benefit Protection from civil proceedings from the increased incentive for service for officers performing functions users to pay fees. The reporting timeframes under the Act. are not substantially different to existing timeframes. The protection of officers performing functions under the Act is consistent with current practice. Possible impacts of these provisions are not analysed in this RIS. Inspector- Establishes the Inspector-General An interim Inspector-General has already General of of Biosecurity as a separate been appointed and the incremental cost of Biosecurity Bill statutory office: establishing the office in legislation is Statutory office reports to the therefore expected to be minimal. However, Minister. this office is expected to avoid the need for Quality of Processes. future Beale and Nairn style reviews - Report on reviews and findings avoiding the costs of conducting these (publically available). reviews would to some extent offset the costs of this office. These impacts are minor in nature and not analysed in detail in this RIS. 36

No regulation A `no regulation' option would involve no biosecurity controls and no measures to mitigate biosecurity risks to Australia. This option was not considered feasible because it does not achieve the objective of seeking to manage biosecurity risks to an acceptable level. It also is not consistent with Australia's international obligations. Self regulation A `self regulation' option would involve industry participants leading risk mitigation measures and taking responsibility for managing these risks. As self regulation measures can have no legal basis, their success relies on there being sufficient incentive to business to act in a way that mitigates risk (such as potential loss of revenue). These approaches are not effective in cases, such as in managing biosecurity risks, where the potential costs of an incident are high and wide ranging and may not fall on the party primarily responsible for managing those risks, and where it is difficult to identify the party that has not properly managed risks. Direct supervision by government Under a direct supervision option government takes full responsibility for biosecurity measures and industry participants have no role in mitigation measures. This approach was not progressed as it is not feasible from a resourcing perspective for governments and is not cost effective. It was also not consistent with the government's cost recovery policy or with the `shared responsibility' approach as outlined and recommended in both the Nairn and Beale reviews. Assessing impacts In developing proposed biosecurity legislation, a number of problems with the existing arrangements are addressed, the most significant of which relate to: 1. Approved arrangements 2. Management of first points of entry 3. Biosecurity zones that provide the Australian Government with additional powers to manage biosecurity risks post border. These areas were considered to impose the most significant impact, in part because some are new provisions, but also because they have the most wide reaching impacts on stakeholders. A fourth area, ballast water management also involves significant changes, however a RIS on ballast water proposals was prepared in 2007 and the proposals have already been subject to extensive consultation. 13 As the content in that RIS remains current, the changes to ballast water management are not considered in this RIS. The differences between the existing Quarantine Act or the current situation and the proposed legislation are summarised in Table 1. This table provides brief commentary on whether or not these differences are expected to have substantive impacts on stakeholders and therefore whether substantive analysis of the impacts in this RIS was warranted. Other areas within the new legislation either currently exist under the Quarantine Act or exist in state and territory legislation. 13 CIE (2007) Ballast water management,. A regulation impact statement, prepared for Department of Agriculture, Forestry and Fisheries by the Centre for International Economics Canberra & Sydney. 37

In most cases, the proposed biosecurity legislation provides the enabling powers for government, with specific details around implementation and compliance to be set in regulations. While key areas of costs and benefits can be identified, an estimate of the scale of costs and benefits cannot be provided in most cases. For instance, the potential compliance costs of meeting requirements for first points of entry would be determined based on the criteria and application process to be set in regulations. The impact analysis is, therefore, primarily qualitative. The focus of the analysis is on those elements which represent the most significant change and are considered to have the greatest potential impact on business and consumers. Each of these elements or issues are considered in turn in a thematic manner, that is, the nature of the problem, options and assessment are considered for each issue, before moving onto the next. This approach has been taken to assist the reader in working through one issue before moving onto the complexities of the next. After consideration of the most significant elements, the other less significant aspects of the proposed biosecurity legislation are briefly considered, before the RIS talks about implementation and review. Approved arrangements Nature of the problem Currently the responsibility for protecting Australia's international borders primarily falls on government, which may increase the risk of `moral hazard'. Moral hazard occurs when an individual or organisation is insulated from a risk or does not bear the cost of a risk occurring. Consequently the individual or organisation behaves differently, with a tendency to act less carefully than they otherwise would to mitigate the risk (as they have less incentive to work to reduce the probability of the risk occurring). For example, a vessel's captain may not adequately ensure the vessel harbours no pests or disease on board before entering Australian waters given the burden of checking the vessel falls on the Australian Government. This issue with the Quarantine Act was noted in a submission from the Quarantine and Exports Advisory Council to the Beale review, stating: "The responsibility of managing risk should not be a sole AQIS responsibility but be spread across corporate Australia. There should be a legislative mechanism to ensure corporate Australia and importers take responsibility for managing the risk by ensuring appropriate systems and procedures are in place."14 The burden on government will continue to increase moving forward given the expected increase in the volume of goods, vessels and people coming into and out of Australia. Further, the focus on government can ignore private sector expertise in risk management. The Quarantine Act requires that quarantine related activities are performed by DAFF officers or under their direct supervision. Sections 46A and 66B of the Quarantine Act create an exemption where DAFF can enter into arrangements (partnership arrangements) with industry participants to perform some of these functions themselves. Section 46A: allows the Director of Quarantine to approve a premises for the purpose of receiving, storing and dealing with goods subject to quarantine, referred to as a Quarantine Approved Premises (QAP). 14 Quarantine and Exports Advisory Council submission to the Beale review, p.3. 38

Section 66B: allows the Director to enter into a Compliance Agreement with an industry participant, which requires the industry participant to perform specific tasks in relation to goods that are subject to quarantine in an agreed manner. Under section 46A and 66B, each premise or activity is subject to a separate approval or agreement. As a result, industry participants may be subject to multiple arrangements under one or both of the existing sections to ensure they are compliant. This leads to increased regulatory burden on industry participants, and imposes a significant administrative burden on DAFF as well as creating inefficiency and duplication of process. More broadly, the current arrangements are seen as unduly restrictive and rigid, with insufficient flexibility to allow for partnerships between industry participants and government in respect of certain activities or types of premises. Options to address the problem No regulation No government intervention is not considered to be a feasible option as there are strong public interest concerns and potentially high risk events in relation to approved arrangements. The risks should be managed to a specified level for the broad benefit of the community and industry. Market forces are insufficient incentive for industry participants to appropriately manage biosecurity risks to Australia. They may limit their management activities to identifying and preventing harm to their own business rather than identifying and preventing harm to Australia. Some approved arrangement participants will also lack the expertise required to identify and manage biosecurity risks. The current legislation Under current legislation, QAP and compliance agreements are already in place that achieve, to some extent, the benefits of partnerships between industry participants and government. There are a number of aspects of current arrangements however which are not optimal, and therefore do not achieve all of the potential benefits of these types of arrangements. For instance, under the current legislation, large importers with control of their end to end supply chain processes are not able to take advantage of partnership arrangements with DAFF. As a result, any expertise they might have in managing risks is not utilised, and there may be higher costs to those participants and to government as a result of quarantine related activities being performed by DAFF. Continuing with the current legislation would lead to the continuation of the above mentioned problems and therefore this is not deemed to be a feasible option for the purposes of this RIS. The proposed biosecurity legislation The proposed approved arrangement provisions will allow for: consolidation of existing QAPs and compliance agreements into single approved arrangements a systems-based approach to managing biosecurity risks that will enable larger end to end importers to participate in an approved arrangement. 39

Under the proposed biosecurity legislation, the Director of Biosecurity and the Director of Human Biosecurity may, upon the application of a biosecurity industry participant, approve an arrangement for the performance of particular biosecurity functions, or the exercising of particular biosecurity powers to manage biosecurity risks. An arrangement must meet the requirements set out in the regulations. The legislation would be flexible enough to allow the Directors to consider any matter they determine to be relevant when approving an arrangement. If a Director reasonably believes that due to a change in circumstances an arrangement no longer meets the requirements on which the arrangement was approved (such as a change in the acceptable level of biosecurity risk), the Director may vary the arrangement, or require the biosecurity industry participant to vary the arrangement. Similarly, a biosecurity industry participant can request a variation to the arrangement. If the Director refuses a biosecurity industry participant's request for a variation, the Director will have to provide the reasons for the refusal. The Director would also be able to suspend or revoke an approved arrangement. If the Director requires a suspension or revokes an agreement, a show cause notice would be issued first, giving the biosecurity industry participant 14 days to respond. The Director would not be required to issue a show cause notice if the grounds for suspension or revocation are serious or urgent. If a biosecurity industry participant requests a suspension or revocation, the Director would be required to approve the request. If an approved arrangement has been suspended or revoked by a Director, the Director may require a biosecurity industry participant to take actions to ensure that biosecurity risks are still being adequately managed. Direct supervision A more prescriptive approach and greater government intervention is not feasible from a resourcing perspective for governments, not cost effective and not consistent with the `shared responsibility' concept. Assessment Approved arrangements are most beneficial where industry participants have an advantage over government in providing a particular service or facility (for example, where industry participants are able to include particular biosecurity requirements within their usual business process, thereby avoiding the need to defer to biosecurity officials at that stage). That said, not all organisations will necessarily experience net benefits from moving to approved arrangements, and the voluntary nature of the arrangements will mean that generally only those that received net benefits will transition to this type of arrangement. One submission highlighted that it is likely that small operations may not expect significant benefits from such a shift due to the upfront training and support costs required. The proposed legislation is likely to have an impact (in terms of both costs and benefits to both businesses and government): Broadening the scope and flexibility of approved arrangements between government and business where the changes influence the number and type of approved arrangements sought by industry participants with government Reducing administrative complexity for government and industry participants where the changes allow approved arrangements to be established and managed at a lower administrative cost than previously 40

Impacts associated with transition to approved arrangements - transition of existing agreements to approved arrangements is expected to take place within 18 months of commencement. Each of these factors is discussed in more detail in the following sections. Potential costs and benefits for industry participants Broadening scope and flexibility of approved arrangements between government and businesses Industry stakeholders' participation in partnership type agreements is currently voluntary, and would continue to be so under approved arrangements in the proposed biosecurity legislation. Costs associated with these arrangements, therefore, are incurred voluntarily by participants. It is reasonable to assume that industry participants not currently under a partnership type agreement will apply for an approved arrangement with government in cases where they believe that there is a net benefit for them of entering into the arrangement (over a reasonable timeframe for investment). A key element in the potential change in up-take of approved arrangements is the broadening in scope and flexibility of arrangements that can be agreed under the proposed biosecurity legislation. There are two main implications: 1. There is unlikely to be a significant impact on the scope or scale of businesses currently under QAPs or compliance agreements that have been agreed under the Quarantine Act. Those industry participants who have limited control over the supply chain of the commodity or product they are importing, would transition to an approved arrangement similar to the current model they are using, whether that be the procedural or premises based model. 2. Larger industry participants that control the whole of supply process for their commodity or product may move to an agreement under the new model if it lowers their net costs and they can effectively manage biosecurity risks using their own systems. This would not occur if an industry participant thought that moving to a broader arrangement under the new model would be too costly or not deliver the benefits in the long term to justify the implementation costs. The net change in the number of partnership type agreements in place would therefore be determined by the extent to which there is growth in the number of industry participants that seek new approved arrangements for their `end-to-end' business process and additional functions. The following information, provided by DAFF, provides a guide on the potential uptake of these new types of approved arrangements for larger industry participants: There are currently approximately 1000 industry participants that import what can be classified as `large' quantities.15 Of these large importers, it is expected that there would be approximately 100 that have the appropriate internal systems in place to satisfy the requirements of an approved arrangement, that is, there are 100 industry participants that would be able to complete an `end to end' risk analysis of their goods. It is anticipated that there would be 30-40 of these large industry participants that, already within their business model, satisfy the requirements and would need to 15 Large quantities, based on 2011/2012 departmental statistics, is an importer that has approximately one or more entries per week. 41

simply put together their risk analysis and business model for DAFF to review. This results in 60-70 importers (that is, the 100 industry participants minus the 30-40 that already satisfy these requirements) who may benefit from implementing an agreement under the new arrangement and who would incur some initial costs to ensure their business model and risk analysis adequately satisfies DAFF's requirements. The importers who are successful would need to undergo audit checks to verify their risk analysis and ensure they are adequately managing their biosecurity risks. It is expected that the majority of these industry participants would have a high degree of exposure to these types of audit processes under current arrangements. Therefore the audit process would most likely not deter these participants and would not affect uptake. Based on this analysis, it is reasonable to expect that there would be a small increase in the extent of approved arrangements agreed with industry participants under the proposed biosecurity legislation, though the additional agreements would be amongst larger importers and would have broader scope than current arrangements (that is, they would cover more business processes). Example of potential benefits from approved arrangements To demonstrate the potential benefits due to the proposed approved arrangement framework, the following example provides an illustration of potential benefits for an industry participant that chooses to be brought under the scope of an approved arrangement. Company A is a major importer of commodity X and has been importing this commodity into Australia for many years without any biosecurity breaches. The company has controls in place across the total supply chain for all products it imports into Australia. The company's owner is a diligent importer who understands the biosecurity risks associated with the products it imports and its systems are able to provide evidence to support this. On average, the company imports 10,000 containers of this commodity each year. Under current processes, all of these containers must be inspected by biosecurity officers regardless of the company's compliance history and biosecurity management controls in place. Under the new approved arrangement framework, the systems that Company A has in place would be recognised by DAFF as appropriate for managing the biosecurity risks associated with the goods the company is importing. Further, the low risk of Commodity X would also be taken into account due to the risk return approach enabled by legislation. Consequently, Company A would experience less intervention from DAFF. Out of the 10 000 containers, a lower percentage would be selected for inspection to provide assurance, or verify, that the company's arrangements effectively manage risks across the continuum. For this example, Company A's inspection rate could be reduced to 50 per cent of containers. (Note: this is to illustrate the potential benefit and does not reflect the true reduction for intervention that may be applied by DAFF). 42

Table 2: Impact on `Company A' each year Current Future Container Inspection Containers inspected 10 000 5 000(a) Time cost/container 60 minutes (b) 60 minutes (b) Total time cost 10 000 hours 5 000 hours Monetary cost/container $180(c) $180(c) Total monetary cost $1 800 000 $900 000 Potential time saving to Company A 5 000 hours Potential cost saving to Company A $900 000 Source: The numbers of containers for this example are fictional and represent no real industry participant. The new intervention rate and average time taken were assumed and the fee for service costs are using current (2011) fee for service rates DAFF currently enforces. Notes: (a) Assumed a reduced intervention rate of 50 per cent under new arrangements. (b) Assumed an average time taken of 60 minutes per container under both scenarios. (c) As per DAFF's fee for service rates, a rate of $90 per 30 minutes was used. Additional costs incurred outside quarantine fees are also incurred such as transport, container lifts and storage space at Quarantine Approved Premises (QAPs). However these have not been included as these would be charged by the QAP and not DAFF. Reduced administrative complexity in establishing and managing approved arrangements Most industry participants operate either as a QAP, or under compliance agreements, although: universities can operate a large number of QAPs some participants (such as waste providers) can operate as a QAP and also have a range of compliance agreements in place. Administrative costs The proposed biosecurity legislation could reduce the current administrative costs for both industry participants and government. Under the proposed biosecurity legislation, there could be one approved arrangement covering a range of activities of an industry participant rather than multiple arrangements as is the current process. Biosecurity officers would no longer be required to process multiple applications, assess multiple arrangements and complete multiple audits for those industry participants that apply under the new approved arrangement model. Application costs The Department intends to move away from the yearly renewals to a model that sees renewals required less frequently. Industry participants may benefit from reduced application costs (both time and money costs) because of the need for fewer agreements. Further, depending on their arrangement, product, supply chain or other detail, they may experience less disruption to their business processes. This is because an audit and compliance program could be aligned with a single approved arrangement rather than multiple audits for multiple existing arrangements. 43

Impacts associated with transition to approved arrangements Existing QAPs and compliance agreements will remain valid on commencement of the Act (one year after Royal Assent). The intent is to transition these existing agreements to approved arrangements within 18 months of commencement and/or as existing QAPs and agreements expire (two and a half years after the legislation receives Royal Assent). In transitioning across, participants will need to pass a fit and proper person test and there may be some time spent understanding the transition process and completing paperwork. The provisions under the proposed Biosecurity Legislation provide the Director of Biosecurity and the Director of Human Biosecurity with the ability to apply the fit and proper person test and gather personal information from applicants. Information to make a determination will comprise publically available information, information gathered in the course of conducting business with other government agencies and information provided by the person. This is to ensure that persons covered by approved arrangements or who have been granted import permits are persons that are able to appropriately manage biosecurity risks. This is important because such a person might be involved in the importation of high risk goods or be approved to undertake activities to manage their own biosecurity risks with oversight by the Commonwealth. An import permit or an approved arrangement is a privilege rather than a right and means that the person is allowed to do certain things the general public are not allowed to do. It is important that such persons are considered fit and proper to be able to conduct these activities and there is no reason to believe that the person will not operate within the scope of their approval or adhere to any conditions or requirements that are placed upon it. As per the Acts Interpretation Act 1901, person includes a corporation or an individual. The operational detail of changes to application processes and required content and information are not available. However, it is unlikely substantive new costs would be incurred as existing agreements are rolled over to an approved arrangement if the applicant is seeking to continue a similar arrangement. That said, a number of submissions highlighted examples of costs that might be incurred such as the development of manuals and procedures. To provide some indication of the potential magnitude of costs, it is assumed that: Time to deal with paper work related to the transition to an approved arrangement - assumed to be 30 minutes. 16 Fit and proper person test - processing fee: $42 . 17 Time required to comply with `fit and proper person' test requirements: 30 mins . 18 Value of time: $71 per hour (including on-costs and overheads) . Reduction in number of parties subject to an approved arrangement (currently around 1433 compliance agreements and 2824 QAPs, assume for illustrative 16 Estimated cost based on the fee for a National Police Check application from a non-government organisation (eg: commercial entities like brokers, migration agents etc) is $42. Source: http://www.afp.gov.au/what-we-do/police-checks/national-police-checks.aspx#fees. 17 The regulatory impact statement for the proposed amendments to the Children's Services Regulations 1998-Anaphylaxis Management and Criminal History Check estimates that complying with a police check will take on average 30 minutes of time. 18 Based on ABS, Weekly Average Earnings, Australia, May 2012 (fulltime, adult, total earnings) and grossed up to account for on-costs and overheads of 16.5 per cent and 50 per cent respectively. These estimates are based on published guidance that was derived from a number of generic and plausible estimates to be used in the absence of more specific data. (Government of Victoria, 2007, Victorian Guide to Regulation, Department of Treasury and Finance, Melbourne). Please note that this per hour estimate is not a net present value calculation. 44

purposes a 40 per cent reduction from these figures in terms of likely number of approved arrangements although precise number may differ from this). This equates to a total cost of around$289,000 assuming the costs of transition are all incurred at the beginning of the first year. Potential costs and benefits for Government There will be costs to government to transition those that currently operate as a QAP or under compliance agreements. This will involve assessing material that is provided by those seeking to transition across, and assessing whether applicants are fit and proper persons. As with other impacts in this chapter, the precise cost to government will depend on the nature and extent of the information that must be assessed. More broadly, there will be potential costs to government of administering a greater number of approved arrangements with industry participants than is currently the case. Summary of impacts Impact Industry participants Government Broader scope and flexibility of Increased number of arrangements Potential cost of administering a approved arrangements facilitated under new legislative greater number of approved settings arrangements with industry participants Reduced administrative Current arrangements can be managed Benefit through reduced costs of complexity in establishing and more efficiently at a lower cost to managing approved arrangements managing approved business (higher efficiency) arrangements Impacts associated with Cost of transitioning to approved Cost of transitioning businesses to transition to approved arrangement for each business approved arrangements. arrangements currently under QAP or compliance agreement. Public consultation Several submissions received during the consultation period stated that, in theory, approved arrangements are a cost effective and resource friendly option, however more information would be required to know whether they will in fact lead to savings. It was also stated that the approved arrangement provisions provides opportunities for regulatory burden reduction, decreased overall costs to industry and government and streamlining of systems. Submissions also highlighted the need for appropriate accreditation, auditing and performance monitoring systems using appropriately qualified auditors, exemptions from providing securities or mandatory securities and the need for more specific information on what arrangements can be approved, as the current legislation is quite specific. While several of the issues raised in submissions and throughout the consultation were the result of misinterpretation of the proposed biosecurity legislation, many others will be addressed in the regulations and accompanying polices and documentation. Importantly approved arrangements do not intend to significantly alter the existing QAP and compliance arrangement schemes. Rather the intention is to replace them with a single combined model that is more flexible and expands, rather than restricts, the circumstances in which an arrangement can be entered into with the Commonwealth. If current QAP arrangements with DAFF meet the requirements in the legislation for an approved arrangement (i.e. operations adequately manage risk and applicant meets fit and proper 45

person test), it is likely that they can continue unaltered as an approved arrangement under the new legislation. (Note: each arrangement will be considered on its individual merits, so approval cannot be guaranteed). In terms of using appropriately qualified auditors for approved arrangements, the provisions allow for the appointment of third party auditors. The auditor does not necessarily have to be a biosecurity officer but an expert in a relevant field. Comments were considered about the impact of requiring some organisations to provide a `security' as a condition of an approved arrangement.. Security is intended to be a compliance tool, so that if a Biosecurity Industry Participant does not manage biosecurity risks in accordance with its approved arrangement, the security may then be used by the Commonwealth to pay for managing that incident. This is not a mandatory provision within the legislation and is in fact a discretionary provision that may be used by the relevant Director. The financial capacity of an organisation to provide an amount of security and the level of biosecurity risk posed by the proposed arrangement will be considered by the Director. Approved arrangement regulations will be released for public consultation. First points of entry The Quarantine Act 1908 currently requires overseas vessels and aircraft entering Australia to arrive at a first port of entry, currently listed in the Quarantine Proclamations 1998. The Quarantine Act allows the Governor-General to proclaim a port or a landing place as a first port of entry, and may include conditions or restrictions, (eg a port may be limited to receiving a specific class of goods, vessels or aircraft). This is intended to ensure that a first port has the facilities to manage the quarantine risks associated with the people, goods, vessels and aircraft it receives. Vessels can be properly processed at these first ports and inspected (if required) by DAFF staff. Nature of the problem While the Quarantine Proclamation 1998 lists the 59 ports that are proclaimed as first ports of entry, there is currently no transparent process which sets out how ports qualify to be proclaimed or any requirements (including associated infrastructure requirements) that a first port must meet to ensure it can be serviced by biosecurity officials. Further, there is little clarity around what area constitutes a port in terms of geographical boundaries which is important for determining biosecurity risk. Likewise, there is no clear mechanism to remove a port or landing place's first port status, if the level of biosecurity risk is not being adequately managed, a condition of approval has been contravened or the first port of entry has been decommissioned. In fact there are a number of proclaimed first ports of entry listed in the Quarantine Proclamation 1998 that no longer receive a substantive volume of international vessels (for a variety of reasons) or are not in use at all (dormant first ports of entry). For example, the Port of Yamba is rarely used as a first port of entry and in the event it is used, can only be used for the landing of timber products arriving from New Zealand or Norfolk Island. There are around four to five dormant first points. There are also instances where investment and business needs (eg a new mine that commences operation) have led to some areas being used intensively over a short period of 46

time however the closest port may not be a proclaimed first port of entry. To use such a port, each vessel applies for permission under section 20AA of the Quarantine Act each time they enter the port. The approval is only valid for entry at that time and may be subject to conditions, and so some locations can be the subject of many one-off applications in a given year. This imposes administrative costs on vessel operators. Under s20D of the Quarantine Act, permission can also be sought to land a good at a port not proclaimed to receive that good (which may also be subject to conditions). Further, there is the potential that vessels can enter and leave a port which is not proclaimed without the knowledge of regulators. This particularly occurs in areas where there is new traffic and the port has not been proclaimed (ie where the system has not kept up to date with the most probable ports for vessel traffic, such as in new areas of industrial activity). These entries increase the biosecurity risks in the region where no biosecurity compliance is being undertaken. Options to address the problem No regulation A `no regulation' alternative would allow for anything to be imported through any port in Australia, irrespective of the level of biosecurity risk. This option is not feasible as it would unacceptably increase the risk of animal and plant pests and diseases entering, establishing, spreading and potentially causing harm to people, the environment and the economy. Self regulation Under `self-regulation', those arriving at a first point of entry would regulate their own activities according to industry participant's-formulated rules and codes of conduct, with industry participants solely responsible for enforcement. This is not a feasible option for first points of entry as there are strong public interest concerns and potentially high risk events in relation to first points of entry, of which many of the costs are not internalised by those operating the vessel arriving in Australia. In addition, market forces will not require industry participants to appropriately identify and manage biosecurity risks to Australia in relation to first points of entry. Those arriving at a first point of entry may limit their management activities to identifying and preventing harm to their own business rather than identifying and preventing harm to Australia. Some entering at a first point of entry will also lack the expertise required to identify and manage biosecurity risks. For example a commercial vessel arriving at a first port will not necessarily have a vested interest in any environmental impacts from any pests present on the vessel. As Biosecurity officers are experienced in regularly carrying out routine vessel inspections, they are more attuned to identifying obvious and (more importantly) potential biosecurity risks that aren't necessarily associated with immediate commercial impacts, such as mosquito larvae found in any receptacles. In a world of `self regulation', vessel masters may not have the skill/equipment/motivation to thoroughly inspect their vessel for pests, and send them to an entomologist for identification; which is routine (if necessary) for Biosecurity officers. The current legislation Continuing with the current legislation would lead to the continuation of the above problems, and therefore this is not considered to be a feasible option going forward. 47

Proposed biosecurity legislation Under the proposed biosecurity legislation, the Director of Biosecurity may determine a first point of entry for overseas aircraft or vessels. In deciding whether to make a first point of entry determination, the Director of Biosecurity must be satisfied that the requirements set out in the regulations are met and that the level of biosecurity risk associated with the operations of the port or landing place is acceptable. This is to ensure that biosecurity risks associated with the people, goods, vessels and aircraft it receives are being managed. The Director of Biosecurity can consider any matter that they deem relevant when determining whether they are satisfied. A first point of entry can be determined subject to conditions, for example a first point of entry may only be authorised to receive timber. All overseas vessels and aircraft subject to biosecurity control are required to go to a first point of entry when entering Australia. On entering a first point a master must ensure that the vessel or aircraft enters a biosecurity entry zone. Similarly a vessel or aircraft that is subject to biosecurity control may seek permission from the Director of Biosecurity to travel to a place that is not a first point of entry. A vessel or aircraft may seek permission from the Director of Biosecurity to unload goods at a port or landing place not determined to receive those goods. A biosecurity officer will have the power to direct a master of an overseas vessel or aircraft to enter a specific port or landing place, or to not enter one or more specific ports or landing places (these may or may not be first point of entry). The proposed biosecurity legislation will also give a biosecurity officer the ability to enter any landing place or port in Australia, to perform functions or exercise powers without the consent of the operator. The proposed biosecurity legislation will provide the Director of Biosecurity with the ability to suspend or revoke a first point of entry determination if the level of biosecurity risk is not being adequately managed, a condition of approval has been contravened or requirements for approval change. Assessment The proposed biosecurity legislation will provide flexibility for DAFF to negotiate with first point of entry operators regarding how they can manage their biosecurity risks to an acceptable level in the most efficient way. It will also establish the minimum level of regulation required to effectively manage biosecurity risks at a first point of entry while providing DAFF with the capacity to enforce any requirements or conditions. The proposed legislative approach effectively equates to direct supervision, as only government will have the ability to declare a first point of entry. This will ensure comprehensive powers for biosecurity officers to manage biosecurity risks at ports and landing places. The remainder of this section sets out the costs and benefits of the proposed biosecurity legislation specifically on: businesses (port operators and vessel masters) government 48

other stakeholders (consumers and the general public). Potential costs and benefits for business (port operators) Greater transparency and certainty Setting out requirements for first points of entry in regulations would provide a more transparent framework and accountable decision making process than is currently in place. This would clarify the responsibilities for port operators to be designated as a first point of entry, providing greater certainty both in terms of the application process, and the requirements to maintain this status over time. It would also ensure port operators are aware of the circumstances under which a first point of entry status may be revoked. While the benefits of improved transparency and certainty are difficult to quantify, they are important for business and strategic planning. The required investment in facilities for port operators to maintain first point of entry status is an important element in their forward investment planning - understanding what is required to maintain this status allows operators to determine the value of this status compared with the costs associated with maintaining the infrastructure over time. For some ports, this decision will make business sense, while for others it may not (as discussed in more detail below). For all of these decisions, certainty around government decision making helps to reduce risks associated with investment. Compliance costs Under the proposed biosecurity legislation, first point of entry port operators would be subject to a greater regulatory burden than is currently the case under the Quarantine Act. These compliance costs can be assessed across two broad categories: Costs associated with applying to become a first point of entry (including costs associated with demonstrating compliance, such as providing documentation, externally provided evidence, etc) Costs associated with upgrading current facilities to meet requirements (which may be achieved within a transition period). Application costs There would be a cost to industry participants associated with applying to become a first point of entry. There would be time costs associated with completing the application process and a possible monetary fee set by DAFF for submitting and assessing an application. In addition, this application process would involve a port operator demonstrating that it can manage the biosecurity risks associated with its operations in the application process before it can be determined as a first point of entry. This demonstration of adequacy or providing of evidence to meet biosecurity risks may be done through submitting detailed documentation and/or hosting site visits. It is expected that port operators would incur a cost to undertake these activities of compiling evidence to demonstrate their capabilities. Where possible the intention is to build on or use information already provided to other regulatory agencies such as the Australian Customs and Border Protection Service. Costs of upgrading facilities The second type of compliance cost relates to the potential need for some port operators to upgrade current facilities to meet requirements in the regulations. Some ports may not currently meet the requirements set in regulations, and would be required to undertake upgrades to meet standards (where they have committed to do so when applying for first 49

point of entry status). These upgrade costs may result from tasks such as delineating boundaries, providing for waste management and providing facilities for biosecurity officers. New requirements for providing particular facilities for biosecurity officers would most likely cause some current port operators to incur a cost. The extent of these costs will depend on the required outcomes set out in regulations and case by case assessment of how these outcomes can be met and will vary significantly across operators. Specifications for required facilities would reflect the size of the port, the port environs, the type of operations at the port and the type of goods, vessels, aircraft and people the port would receive. Some large operators may already have in place the required structures/facilities and will not incur any costs at all. Other operators may require significant upgrades or entirely new infrastructure. It is reasonable to assume that for some operators, implementation costs could be significant, and some may choose to not continue to be proclaimed under new requirements or have a different basis of proclamation. Additional maintenance costs relating to the upgrading facilities might also be incurred (above and beyond those maintenance costs already incurred), but this would depend on the nature of the upgrade requirements, and extent of current maintenance activity and size of operations. The transition time provided to operators to meet obligations will have an impact on the scale of implementation costs. This is because the length of transition time influences the costs associated with retiring existing infrastructure prematurely before normal upgrading schedules. The longer the transition time, the lower the implementation costs for ports. Conversely, the longer transition time will have an influence on the effectiveness of the plans, as this extends the period during which facilities have not been upgraded or extended as required. Under the proposed biosecurity legislation there will be a three year transition period once the Act commences which will be one year after Royal Assent, a total period of four years. Stakeholders considered three years to be an adequate period of time to allow a port or landing space to comply with the conditions required for approval. These expected compliance or regulatory costs are in addition to the current regulatory burden already imposed on industry participants by other Australian Government regulatory schemes. The list below highlights key schemes that are already in place and make up part of the regulatory environment surrounding industry participants that are involved in activities relating to first points of entry. Customs Regulations 1926 Maritime Transport and Offshore Facilities Security Regulations 2003 Aviation Transport Security Regulations 2005 Migration Regulations 1994 Agricultural and Veterinary Chemicals Regulations 1995 Imported Food Control Regulations 1993 Hazardous Waste (Regulation of Exports and Imports) Regulations 1996 Environment Protection and Biodiversity Conservation Regulations 2000. Costs of compliance will vary depending on how consistent the proposed changes to first points of entry build on these existing regulatory requirements. One consultation participant (a practising Customs Broker) stated that: "[Most first points of entry are already] established and should not need a lot of work/cost to meet the new conditions that could be applied. It is more likely to be `country' ports that would require more cost to meet the guidelines and conditions to operate as a first point. Correcting the current approved list and adjusting resources 50

to suit should see cost reductions and thereby allow resources to be better used. Often ports have surplus or under used infrastructure so there should not be a need for a lot of new and expensive infrastructure to be built, rather upgrading what already existing - again a cost savings to port operators and DAFF." Impact on ports that are not maintained as first points of entry Under the proposed biosecurity legislation, DAFF would be able to suspend or revoke port/landing places' first point of entry status. Some currently proclaimed ports may not meet the new requirements unless they undertake significant facility upgrades. Consequently, some landing places may choose to not apply to become a first point of entry under the proposed biosecurity legislation and thus have their first point of entry status revoked. This would mean that port would no longer be able to receive international vessels (for their first entry to Australia). There are currently 59 proclaimed First Sea Ports and 29 First Airports within Australia (a total of 92 first points of entry currently proclaimed).19 To determine the potential impact on industry participants, an evaluation of the status of current first points of entry (ports only) was undertaken. Through consultation with industry participants20, it is believed a portion of these may not be able to meet the requirements of being deemed a first point of entry under the proposed biosecurity legislation unless significant upgrades were undertaken to their facilities. Current first points of entry that may be unable to meet the requirements may be those ports which currently have restrictions in place as to whether or not animals, plants or goods can be landed there as the restrictions indicate that the port only undertakes a narrow or limited set of operations. This limitation in operations may in turn mean the port has a limited range of facilities available for biosecurity officers. Consequently, the port may decide that it would be inappropriate from a business perspective to maintain a first point of entry status given the potential significant cost of upgrading facilities and the benefit from maintaining first point status. Accordingly, a port under current restrictions may not apply under the new legislation resulting in the termination of their current first point of entry status. Table 3 highlights the proportion of first points of entry (sea ports only) that have total, partial or no restrictions in place regarding animals, plants or goods. Restriction was defined to be where no animals, plants or goods could be landed at the port, partial restrictions was considered to be if one or two items could not be landed, and unrestricted is where all three components could be landed at the first point of entry. As Table 3 illustrates, approximately 25 per cent of ports currently have a restricted status. It is these ports that may decide to forgo applying under the proposed biosecurity legislation and have their first point of entry status terminated. Table 3: Restrictions in place on sea ports that are currently first points of entry Type Number Percentage Restricted 16 25.4% Partially restricted 40 63.5% Unrestricted 7 11.1% Total 63 100% 19 Quarantine Proclamation 1998 as amended, made under section 13 of the Quarantine Act 1908. (Prepared 11 March 2005). 20 Consultations were completed with DAFF employees and with Ports Australia. 51

The requirements for first point of entry status are to be set in regulations. The extent to which these requirements may dissuade current first ports of entry from applying under the proposed biosecurity legislation is unclear, as the requirements are still to be determined. However, the requirements would include some flexibility to reflect port scale, environs, type of operations and type of good, vessel and people the port receives (ie smaller ports would not have the same requirements as larger ports). The costs for those ports that choose to not apply for first point of entry status under the proposed biosecurity legislation would be the loss of any profitable activities forgone. These costs will vary considerably across ports. The ports most likely to have their first point status not maintained are expected to be those ports that are currently under utilised and do not have the required facilities/ infrastructure in place to effectively manage biosecurity risks given their current limited use by international vessels. Potential costs and benefits for business (vessel masters) Increased transparency of port requirements and fewer applications to land at non-proclaimed ports The proposed changes to the legislation regarding first point of entry would also have an impact on vessel masters and pilots. Vessel masters and pilots seeking entry to Australia would have greater certainty as to what facilities would be afforded to them upon arriving at a first point of entry. It is expected that vessel masters would be more impacted by the change to legislation than pilots. This is because current use of first ports of entry by international vessels and aircraft differs. Most international aircraft arrive at a major airport that is a proclaimed first point of entry and most likely has adequate facilities for managing biosecurity risks (such as Sydney, Melbourne and Perth). Alternatively, due to passenger requirements, trade flows or new investment projects, vessels are sometimes required to land at a non-proclaimed first point of entry. Under current arrangements (s20AA and s20D), this requires individual vessel masters to seek permission to land from either the Health Minister or Director of Quarantine and (if sought under s20AA) the permission is valid for the specified entry only. This has resulted in multiple vessel masters incurring the cost of seeking permission to enter the same non-declared port that for a period of time may be under heavy use (for example for the commencement of a new mine). Under the proposed biosecurity legislation, an improved framework would be in place to manage short term port usage. The new framework would potentially allow for the declaration of a first point of entry for a period of time when heavily used which could then be revoked when the port usage by international vessels reduces. The framework would also mean that vessel masters have a more transparent view of those ports proclaimed as a first point of entry and thus could plan accordingly, avoiding the cost of seeking permission to land at a non-declared first point of entry. The approach under the proposed biosecurity legislation would also reduce the frequency of one-off applications from vessel masters to land at a non-proclaimed first point of entry. 52

Potential costs and benefits for Government The requirement for vessels and aircraft to enter at a first point of entry provides the ability to manage the department's resources appropriately and effectively. It would be inappropriate and costly for the department to service all Australian ports and it would be unsuitable to expect all port operators to provide the necessary facilities to manage biosecurity risks in case of a landing of a vessel or aircraft. Adequate facilities The requirements under the proposed biosecurity legislation would increase the efficiency and effectiveness of biosecurity officers by providing adequate facilities for officers to complete their biosecurity management objectives. It would mean that officers have the necessary tools and facilities available to them at each port to carry out specific biosecurity duties relevant for that port. That is, it would ensure that biosecurity risks are managed effectively as well as efficiently as the right facilities for each port would be available given each port has differing service needs and levels. A result of the requirements is that all DAFF officers would have a better understanding of each port's characteristics (for example boundaries, infrastructure) and be aware of the facilities to expect at each port. Thus officers would be able to better prepare and plan for managing biosecurity risks at each port, potentially reducing the time required to undertake activities at the port. Non-proclaimed ports The approach under the proposed biosecurity legislation would reduce the frequency of one- off applications from vessel masters to land at a non-proclaimed first point of entry (currently around one per day). It is estimated that this could reduce one-off applications by around 50 per cent. In turn, this would also increase the efficiency of biosecurity officers as it would lessen the frequency, time and associated monetary cost of sending a team of biosecurity officers to a non-proclaimed port to undertake appropriate biosecurity management tasks on the vessel who sought permission to land at a non-proclaimed port. Potential costs and benefits for other stakeholders (consumers and the general public) Consumers who use ports that do not continue as first points of entry Those businesses or individuals that may rely on the use of a particular port, which does not continue on as a first point of entry under the proposed biosecurity legislation may incur additional costs associated with using a different port to received goods. The extent to which this occurs will depend on which ports no longer continue as first points of entry, and which industry participants rely on these ports. As noted above, the ports which are most likely to not continue as a first point of entry are those which currently have limited use and provide a narrow range of services. It may be that some industry participants still rely on these ports due to their remoteness to other ports (that is, the next nearest port is a substantive distance away). 53

Summary of impacts Stakeholder Impact Description Effect Port Greater transparency and Greater transparency and certainty for port operators Positive operators certainty. relating to the first point of entry process due to requirements being set in regulations. Compliance costs and There would be two additional compliance costs applicable Negative regulatory burden. to those port operators who choose to apply for first point of entry status: 1) application and demonstration costs and 2) upgrade of facilities costs to meet the requirements set in the regulations. Change in first point of If the cost associated with upgrading facilities to meet the Negative entry status as decided by requirements within regulations is greater than the port operator. expected revenue generated from undertaking first point of entry activities, ports may decide to forgo applying for first point of entry status under the proposed biosecurity legislation. Vessel Greater transparency of Superior framework to work within resulting in greater Positive masters port requirements and transparency of port requirements and potential reduced potential reduced submissions to land at non-proclaimed ports. submissions to land at non-proclaimed ports. DAFF Greater efficiency and Greater efficiency and effectiveness in completing required Positive effectiveness in operational tasks due to the greater provision of facilities completing required by port operators and reduced visits to non-proclaimed operational tasks. ports. Other Impacts on consumers Negative stakeholders who use ports that do not continue as first points of entry. Public consultation There were few references to first points of entry within the submissions received and where mentioned were generally supportive of changes from the current approach of declaring first ports and landing places in the Quarantine Proclamation 1998 to a more streamlined and transparent process. It was stated that a key benefit would be more certainty for airport and port operators in the requirements to be a first point of entry operator. It was noted that there may be additional costs for non-compliant first point of entry operators to become compliant under the new legislation and this may cause some port operators financial hardship to invest in the equipment and infrastructure required. It was suggested that assistance should be afforded so these operators can comply with the new arrangements. Another submission supported the capacity for greater flexibility in defining first points of entry but made the point that the provision of infrastructure for quarantine purposes was now the responsibility of new owners/operators of ports seeking recognition as first points of entry. A government submission supported the ability for the proposed process to determine what is an appropriate first point of entry based on level of risk and ability to manage risks, with ongoing requirements to maintain a specific biosecurity status. The submission also stated that there is clear benefit in being able to set an appropriate level of protection from biosecurity threats when determining first point of entry, and to then require this level of protection. Compliance requirements for first points of entry will be provided in regulations and accompanying policies and guidelines to be released for public consultation. Assistance, 54

monetary or otherwise, is not an issue considered for the draft primary legislation and is a matter for government during implementation. Biosecurity zones The Australian Government currently assumes a relatively narrow biosecurity reach even though its Constitutional powers allow for broader regulation. Specifically, the Australian Government has not yet exercised its full Constitutional power but rather has focused on regulating border activities. The Quarantine Act 1908 currently allows for the creation of a monitoring and control area within 400 meters of a point where goods and cargo are discharged (eg at a first port of entry). In this area quarantine officers can carry out vector monitoring and control activities, but these monitoring powers are currently limited to human health risks. Onshore activities however have generally been the responsibility of state and territory governments, with the assistance from the Australian Government in particular instances. Nature of the problem This relatively narrow focus of the Australian Government has caused a range of issues, including: lack of powers for the Australian Government to manage incursions in Australia additional, and sometimes overlapping, biosecurity measures imposed by individual states and territories the non-traceability of animal and plant matter of greater biosecurity interest once it passes the border inefficient strategies and actions due to the uncertain roles and responsibilities of both individual states and territories and the Australian Government inadequate information sharing and coordination between the states and territories. There is disagreement over specific roles and responsibilities which is leading to gaps in the continuum and is therefore detrimental to Australia's biosecurity. The capacity of the Australian Government, state and territory governments to respond in emergency situations also varies, which may impact on the ability to effectively prevent the incursion of pest and disease. Options to address the problem No regulation A `no regulation' option would have the Australian Government playing no part in the post- border management of pests and diseases. This would leave the states and territories to manage post-border incursions of pests and diseases. This is inconsistent with the Australian Government's leadership role in the post-border biosecurity space as recognised by Australian Government/state agreements, decision making and consultative forums. The `shared responsibility' approach was also outlined and recommended in both the Nairn review and the Beale review. Self regulation Due to the involvement of the state and territories, it is not open to the Australian Government to initiate `self-regulation' arrangements under which businesses would regulate their own activities in relation to biosecurity zones according to industry participant's 55

formulated rules and codes of conduct, with industry participants taking sole responsibility for enforcement. `Self-regulation' is also not feasible as there would be many industry participants and others (including members of the public) moving within, and in and out of, biosecurity zones. Coordinating the activity and movement of these people would be almost impossible and, even if it were possible, it would be prohibitively burdensome from an administration perspective. Further, there are strong public interest concerns and high risks associated with biosecurity zones and market forces will not require industry participants to appropriately identify and manage biosecurity risks to Australia. Direct supervision Direct supervision would involve the Australian Government overriding state and territory laws in relation to biosecurity zones. This option is not feasible as the states and territories have important roles to play in the post-border biosecurity space as recognised by the Australian Government/state agreements, decision making and consultative forums. The `shared responsibility' approach was also outlined and recommended in both the Nairn review and the Beale review. The current legislation Continuing with the current legislation would lead to the continuation of the above problems, and therefore this is not deemed to be a feasible option going forward. The proposed biosecurity legislation The proposed biosecurity legislation will provide the Australian Government with greater capacity to assist with responses to post-border incursion of pests and diseases. While the powers are currently available to the states and territories, the biosecurity legislation will allow a nationally consistent response to pests or diseases through the use of one set of powers when needed. The biosecurity legislation will also extend the scope of the Australian Government's post border powers to include plant and animal biosecurity risks. The Australian Government will continue to work with states and territories through arrangements such as the Emergency Plant Pest Response Deed, the National Environmental Biosecurity Response Agreement and the Emergency Animal Disease Response Agreement to jointly manage biosecurity risks. The proposed biosecurity legislation will provide biosecurity officers with the power to order biosecurity measures in relation to goods, conveyances and fixed property, by issuing a biosecurity control order to manage biosecurity risks onshore. A biosecurity control order can only be issued where the biosecurity officer suspects on reasonable grounds that it is necessary to prevent or control the establishment or spread of a pest or disease. In addition, the Director of Biosecurity would have the ability to declare biosecurity zones (as well as sub zones within a zone) and to apply post border biosecurity measures within these zones. The powers that may be used in zones to manage risks onshore will be listed in the legislation. There will be three types of zones that can be declared by the Director of Biosecurity: Biosecurity zone (ongoing) - Biosecurity zones which are established on an ongoing basis will be used for those areas where there is a requirement for an area of biosecurity control on an ongoing basis. A good example of this is around a port or airport, where there is continual need for management of biosecurity risks, with the arrival of goods or persons. The powers available in biosecurity zones would: 56

- direct that biosecurity measures specified in the determination be taken in respect of goods, a conveyance or fixed property in the zone - direct specified persons, goods or conveyances to enter or leave the zone at a specified place or places or to submit to screening before entering or leaving the zone - direct that goods and conveyances not be moved into or out of the zone without permission (which may be subject to conditions) - allow biosecurity officers to enter and remain on private property in the zone for the purposes of performing powers and exercising powers under the Act (with an obligation to produce an identity card to a person in charge of the property) without consent - direct that the zone be identified and marked - require persons in charge of goods, conveyances or fixed property in the zone to answer questions and provide documents - enter private property in the zone without consent to inspect goods - enter private property in the zone to conduct pest and disease monitoring activities without consent - stop a conveyance for the purposes of inspecting the conveyance or goods on the conveyance - direct a person in the zone to leave the zone subject himself or herself to biosecurity measures specified in the determination on entering or leaving the zone inform another person, or other people, of matters specified in the direction - set up equipment or other structures in the zone, including on private property without consent - direct a person in charge of property to carry out pest and disease monitoring activities. Monitoring zone (ongoing or temporary) - A monitoring zone would allow a biosecurity officer to perform monitoring activities, to ensure that a pest or disease is not present at a location. It may be ongoing (such as around a first point of entry) or temporary (if declared around a biosecurity response zone). It is possible that a monitoring zone may be upgraded to a biosecurity response zone if a pest or disease is found in a monitoring zone, and affects multiple properties. Biosecurity response zone (temporary) - The Director of Human Biosecurity would have the power to declare a human health response zone and to apply post border measures to deal with listed human pest and diseases within the zone. The Act will not compel the Australian Government to act, but allows it to, complementing rather than replacing existing powers used by state and territory governments. Assessment A number of submissions stated that there is merit in the proposals regarding biosecurity zones to manage the risk and help prevent the negative impacts from pests and diseases. The value of a national approach and the Commonwealth playing a role in the management of serious threats was also recognised. Some state governments highlighted concerns around potential conflict between Commonwealth and state/territory regulation of zones. The intention is to consult closely with state and territory governments to ensure understanding and avoid any confusion. 57

It was emphasised during the consultation phase that the proposed powers provide another tool by which incursions could be managed and that they would operate within the exiting consensus arrangements. The potential impact of the proposed biosecurity legislation on business, and other stakeholders more broadly, is dependent on the following factors. The extent to which these measures may impose costs on business or other stakeholders by restricting their normal operations (i.e. restricting access to property, restricting movement of people, vehicles or goods, requiring monitoring activities). The extent to which the proposed arrangements will improve the management of biosecurity risks, including reducing the potential spread of an introduced species or disease. The frequency with which the measures may be used by government (ie the three types of zones noted above). Each of these factors is discussed in the following section. Potential costs and benefits for businesses The potential costs of new Biosecurity zone powers vary across the three types of zones that may be declared. Biosecurity zone (on-going) There are expected to be some transition costs for business at the time of establishment, although they are likely to be minor given the nature of the areas. The establishment of these zones is expected to have a relatively low impact, given existing arrangements in these areas (where there are already areas around ports and airports which manage biosecurity risks). Monitoring zone (on-going or temporary) The extent of costs to businesses and other stakeholders associated with a monitoring zone will vary considerably depending on the size of the area captured, and the monitoring activities that would take place in the zone. That said, given the nature of monitoring activities, the degree of cost associated with disruption and inconvenience is likely to be small (in particular in comparison to a biosecurity response zone). Biosecurity response zone (temporary) The declaration of a biosecurity response zone would involve the greatest degree of disruption and inconvenience for businesses and other stakeholders, and the highest potential cost. The likely costs of this measure depend on the extent of potential measures conducted within the response zone (such as restricting movement of people and goods into and out of the area, requiring use of property by biosecurity officials, requiring destruction of goods etc). In addition, costs are more likely to be incurred by business given the potential short lead time provided for business to adjust the changes (ie the zone can be declared at short notice with no opportunity for business to be prepared ahead of time). Under the base case, there are existing state and territory powers that can be used to impose a majority of these provisions and requirements. The costs associated with these measures, therefore, are only those that would not have otherwise been incurred by the use of similar powers at a state or territory level. 58

The extent of these costs would vary depending on the size of the area declared, the number of businesses operating within the zone, the measures taken by biosecurity officials and the length of time that the zone is declared. It is likely, therefore, that the costs associated with this measure would have wide variance (ie some may impose relatively low costs if they are applied to a small area, or the area does not include a large number of industry participants, while others may impose significantly higher costs). Potential costs and benefits for government The more significant costs to government relate to monitoring zones and biosecurity response zones: The extent of costs to government associated with a monitoring zone will vary depending on the size of the area captured, and the monitoring activities that would take place in the zone. That said, given that nature of monitoring activities, it is likely to be small (in particular in comparison to a biosecurity response zone). The declaration of a biosecurity response zone would involve costs for government to put in place the zone and undertake associated activities to address any risks. These measures however are only temporary and would be used on an as need basis, where an Australian Government response is required and is agreed with relevant jurisdictions. Potential costs and benefits for businesses and society The key benefit of the proposed changes will be improved management of biosecurity risks in: on-going management of risks around key areas where there are high levels of goods and persons entering Australia timely and consistent responses to particular incidents where pests or diseases are introduced to Australia. The potential benefits of this enhanced approach to management of risks will be realised by those industries the measures are put in place to protect (or manage exposure to risks). The extent of these benefits will vary across particular cases that biosecurity zones are used. Better or consistent management of biosecurity incidents are likely to have a benefit in terms of reducing the costs incurred by affected business, governments and other stakeholders (for example by limiting the spread of the pest or diseases). These costs include: loss of revenue from sales of commodities or goods, which cannot go ahead due to the introduction of a pest or disease losses associated with damage to industry participants reputation, which can be incurred over a much longer time period than the incident itself flow-on costs for associated industries and communities (for example, industry participants providing services to affected industry participants). The precise costs and benefits of the proposed biosecurity legislation depend on the manner and frequency with which the powers are used, which is uncertain. Likely frequency of application of powers The frequency of use of the proposed powers has significant impact on the overall costs and benefits of the proposed changes to powers. It is reasonable to assume that: Biosecurity zones -will be established around key areas, and are unlikely to be changed significantly over time (ie zones around ports or airports). 59

Monitoring zones - will be used relatively infrequently, will most often be used in conjunction with biosecurity response zones or around first points of entry. Biosecurity response zones - will be used infrequently, based on criteria set in regulations (which are still to be developed). The use of these zones will be focused on serious incidents which require post-border management (such as restricting movement of goods and persons). Summary of impacts Type of biosecurity Costs to businesses Benefits through Likely frequency of use zone and other improved response to of powers stakeholders of risk declaration of zone Biosecurity zone (on- Establishment costs for Benefits in improved In use continually in key going) industry participants efficiency in management of areas (eg ports and airports) within the biosecurity biosecurity risks in areas of zone (expected to be high risk small) Monitoring zone (on- Costs associated with Benefits to regions which Moderate to low frequency - going or temporary) allowing monitoring may be affected by the used in conjunction with activities on property spread of an introduced biosecurity response zones pest or disease (adjoining Also used around first points to biosecurity response of entry to monitor potential zone) risks associated with arriving vessels Biosecurity response Costs associated with High benefits concentrated Low frequency - used only in zone (temporary) allowing biosecurity within regions or industries the case of the introduction or management activities on directly impacted by the spread of pests or disease property, restrictions on incident (including adjacent that requires monitoring and movement of persons, areas at risk) control livestock and goods Will provide improved ways to manage incidents such as pest and disease outbreaks Public consultation Environmental organisations suggested the establishment of a biosecurity zone category for high value conservation areas with high biosecurity risks known as `conservation biosecurity zones', as the basis for implementing biosecurity measures, plans and monitoring. The zones should be declared by the Secretary of the Department of Sustainability, Environment, Water, Population and Communities (SEWPaC) on advice by a scientific committee, and biosecurity arrangements negotiated in bilateral agreements with state and territory governments. While there is scope to apply a zone to address a disease or pest risk the legislation does not allow for a pre-emptive zone for conservation purposes. Whilst the draft legislation clearly covers environmental biosecurity, environmental conservation at the Commonwealth level remains the responsibility of SEWPaC. Submissions from state governments considered the proposal to increase the Australian government's post border powers in relation to biosecurity zones important. In particular, the provisions that allow the Australian government to monitor for and manage incursions and implement emergency response procedures. The potential for conflict between the proposed biosecurity legislation and relevant state and territory legislation was also highlighted and clarity regarding roles and responsibilities, and a clear definition of when the Commonwealth may use these powers was deemed critical. 60

Administrative arrangements on how these powers will be used will be further developed with state and territory governments leading up to the implementation of the new legislation. Information will also be provided to stakeholders in the future as this content is developed. Other aspects of the legislation This section briefly considers other less significant aspects of the proposed biosecurity legislation. Travel movement restrictions There is a need for government to act to mitigate the risk of spreading communicable diseases to ensure that Australia complies with its international health obligations. Human Quarantine Officers currently have limited powers to restrict the movement of people out of Australia in instances where there is an increased threat of communicable diseases. Under the proposed biosecurity legislation, the Director of Human Biosecurity would have the ability to restrict a person suspected of having a listed human disease from travelling on an overseas passenger aircraft or vessel. Biosecurity interventions would be tailored to accommodate an individual's circumstances (e.g. their health, travel history or future movements), with the ability to escalate to broader responses as information becomes available. For example, an ill passenger could be ordered into isolation, ordered to undergo treatment or vaccination, ordered to stay at home for a period, ordered to report their health status regularly, or simply required to provide accurate contact details. The new legislation also seeks to further implement the International Health Regulations (2005) and provide the Australian Government with powers to prevent, protect against, control and provide a public health response to the national and international spread of disease. The proposed biosecurity legislation would allow the Director of Human Biosecurity to issue an alert to all border agencies and relevant operators, advising them of the travel restrictions in place. This alert would be used to ensure suspected individuals subject to a traveller movement restriction are not allowed to board an aircraft or vessel. The cost of travel movement restrictions is expected to be minimal due to the low expected frequency with which the power is expected to be invoked and the associated impact. While it is difficult to estimate the exact number of times this is likely to be used each year, it might be in the range of around 2-3 times per year on average. Should an individual be identified by Customs at the primary line as being subject to travel movement restrictions and being unable to travel, the impact would be the removal of their baggage from the aircraft or vessel and the voiding of the traveller's boarding pass. Affected individuals would potentially forfeit some or all of any payments made to the airline or vessel and other associated travel costs (eg accommodation at destination). Management of human remains Under the Quarantine Proclamation 1998, a permit is required for the importation of human remains that are not accompanied by a death certificate stating the cause of death, are not of a high risk nature or where the deaths occurred during transit. The current permit system 61

requires the involvement of staff from Department of Health and Ageing, the Department of Agriculture, Fisheries and Forestry, and the Department of Foreign Affairs and Trade. Human biosecurity risks associated with imported human remains are negligible due to the: low number of imported human remains (approximately 500 human remains are repatriated to Australia each year with less than 250 of these currently requiring an import permit (potentially even less than 100 per year)) the low likelihood of death from communicable disease of an Australian travelling overseas low global incidence or prevalence of the diseases which present a risk to human health in Australia high standards of infection control in Australia, particularly for funeral industry participants, which are regulated under occupational, health and safety legislation and practices high levels of vaccination, sanitation, hygiene and water safety in most areas of Australia high standards of health care available in Australia, and the speed and effectiveness of public health action. As a result of the negligible level of human biosecurity risk, an ongoing permit system (ie regulation) does not represent an efficient use of Australian Government resources. In the unlikely event that there is a communicable disease outbreak in Australia resulting from imported human remains, public health measures are likely to be successful in managing and preventing the spread of most diseases. Under the proposed biosecurity legislation, a permit would no longer need to be obtained to transport human remains into Australia, as human remains will generally be permitted to enter Australia without restriction. Requirements will only be applied to specific classes of remains, as specified by the Director of Human Biosecurity. Biosecurity risks associated with individuals who have died in transit will continue to be managed by State Police and the Coroner. Circumstances which alter the above factors may lead to changes in the human biosecurity risk associated with importing human remains. For example, the import volume and likelihood of death from communicable disease may be increased during wartime; or a large scale outbreak of a communicable disease may occur overseas. In those circumstances, the Australian Government can respond to changes in the human biosecurity risk level by placing import requirements on particular classes of human remains. From information provided by Department of Health and Ageing, approximately 500 human remains are repatriated to Australia each year with less than 250 of these currently requiring an import permit (potentially less than 100 per year). It is expected that these cases will no longer require an import permit and this would result in two benefits to those needing to repatriate remains into Australia. Firstly, there is the obvious benefit of avoiding both the associated fees and time cost associated with applying for a permit, estimated as follows: lodgement of import permit application fee (permit application fee) $150 assessment of import permit application fee (standard good) $40 average time to fill out the required documentation online 30 minutes. 62

Based on the estimate of around 100 permits currently per year, this equates to a NPV over 10 years of around $158,500.21 Most importantly for impacted parties however, there would no longer be the emotional cost incurred by those who may have recently suffered the death of a family member and must spend the time and effort navigating government processes when quite often these processes are not related to biosecurity risk and are unnecessary. Currently, 20 - 40 individuals die in transit to Australia. These would continue to be subject to current arrangements and would continue to fall under police jurisdiction. Sanctions and offences The proposed biosecurity legislation has been designed so that the most appropriate sanction for non-compliance can be applied. One major change from the Quarantine Act is the introduction of a civil penalty regime in addition to existing criminal offences, which provides the department with greater opportunity to take action where non-compliance has been identified. Submissions provided as part of the consultation process were generally in support of the civil penalty regime. The maximum penalties have been developed to respond to acts of serious non-compliance where significant biosecurity harm is caused to animal, plant or human health. The maximum penalty may not be appropriate in all circumstances and it is a decision for the courts to determine the most appropriate penalty during sentencing. Additionally, the proposed biosecurity legislation maintains the existence of an infringement notice scheme from the Quarantine Act for high volume, low complexity offences for example with airline passengers, and introduces an enforceable undertaking scheme as an alternative to a civil or criminal penalty. Inspector General of Biosecurity As part of its preliminary response to the Beale Review, the Australian Government agreed to establish a statutory office of the Inspector General of Biosecurity. In advance of the enabling legislation interim arrangements are in place. On 1 July 2009, the government appointed Dr Kevin Dunn as the Interim Inspector General of Biosecurity to provide independent assurance of the performance and appropriateness of biosecurity systems and risk management measures that are the responsibility of the biosecurity divisions within DAFF. The Interim Inspector General of Biosecurity is independent of the biosecurity divisions of DAFF and reports to the Australian Government Minister for Agriculture, Fisheries and Forestry. The incremental costs of a permanent Inspector General of Biosecurity therefore are expected to be minimal. However an Inspector General of Biosecurity is expected to avoid the need for future Beale and Nairn style reviews. 21 Based on ABS, Weekly Average Earnings, Australia, May 2012 (fulltime, adult, total earnings) and grossed up to account for on-costs and overheads of 16.5 per cent and 50 per cent respectively. These estimates are based on published guidance that was derived from a number of generic and plausible estimates to be used in the absence of more specific data. (Government of Victoria, 2007, Victorian Guide to Regulation, Department of Treasury and Finance, Melbourne). Please note that this per hour estimate is not a net present value calculation. 63

Regulations The Governor-General has the power to make regulations if they are required or permitted in the proposed biosecurity legislation or they are necessary or convenient to give effect to it. This type of general regulation power is common across Commonwealth legislation. The regulations will clarify and provide further detail on what is contained in the legislation and what will be included in policy. It is also anticipated that regulations may be similar to existing regulations. The department will work with the Office of Best Practice Regulation to determine the need for future RIS's. An example of regulations that are required is in relation to approved arrangements, which requires the relevant Director to be satisfied of the requirements in the regulations before approving an industry arrangement. An example of regulations that may be required to give effect to the proposed biosecurity legislation that are not specifically mentioned in the legislation, are regulations dealing with the response to a biosecurity emergency situation. Abandoned goods The proposed biosecurity legislation will also create a trigger for being able to deem potentially hundreds or thousands of goods as abandoned or forfeited each year. The current requirement to hold goods takes considerable time and effort for departmental staff in storing goods for extended periods of time (sometimes up to three months). For each of the goods, it can take staff a total of a few days in sending letters, providing response periods, and following up. Covering the field for imports The proposed legislation means that Commonwealth legislation will "cover the field" in respect of the prohibition or restriction of bringing in or importing goods into Australia. This means that the Act will override state or territory laws that relate to bringing in or importing goods to the extent they are inconsistent with Commonwealth laws and that state and territories will not be able to impose measures that are more restrictive than those imposed by the Commonwealth. The legislation provides considerable flexibility. For example, bringing in certain types of goods could be completely prohibited or could be allowed with conditions. Conditions imposed on the import of goods will be based on the outcomes of a national risk assessment process which takes into account regional differences in pest and disease status. This clarity in the legislation will increase industry certainty by eliminating any risk of inconsistent requirements imposed by states and territories. States and territories are already restricted, to an extent, from imposing more restrictive conditions as these can place Australia in violation of its international obligations with subsequent risks to trade. However, clarity in the legislation removes any doubt and means any attempts by the states and territories to do so can be readily challenged. Overall, this is expected to provide a benefit to Australia's trade relationships without losing the flexibility to accommodate regional differences. Overall impact of legislation on biosecurity The proposed legislation provides a legislative framework for Australia's biosecurity system. It will enshrine Australia's Appropriate Level of Protection (ALOP) in legislation. The World Trade Organization (WTO) `Agreement on the Application of Sanitary and Phytosanitary Measures' allows WTO members to determine their own level of protection; however, it must 64

be applied in a consistent manner. This is known as the Appropriate Level of Protection. That is, "providing a high level of sanitary and phytosanitary protection, aimed at reducing risk to a very low level, but not to zero." This does not represent any change in Australia's ALOP as it has been agreed administratively with the States and Territories for some time. However, it does provide importers and trading partners with additional certainty that the standard is being applied. The benefits of the legislation largely relate to its enabling of improved administrative and operational practices that in turn enable more efficient use of available biosecurity resources to target risk to achieve biosecurity outcomes consistent with Australia's ALOP. However, the legislation is not designed to introduce a new or stricter level of protection and, in that sense, it does not change the biosecurity outcomes that are being sought. Preferred option, implementation and review Preferred option This RIS has identified and considered a range of problems with the Quarantine Act. The assessment illustrates the anticipated costs and benefits of the proposed biosecurity legislation compared to the current situation, and demonstrates the potential for improved business processes through approved arrangements, better targeting of resources and greater administrative efficiency. Moreover there is a broad, unquantified benefit of the proposed biosecurity legislation from improving the overall quality of the legislative framework for biosecurity, including: Reducing the costs associated with interpreting complex, prescriptive and outdated legislation (a benefit to both government and business). Enabling the benefits of broader reform to be realised (a benefit which is unquantifiable but important to acknowledge in this analysis). Legislative reform will assist the plans for broader reform in biosecurity primarily in the form of more flexible legislative mechanisms that will allow change. Based on this analysis, proposed biosecurity legislation is assessed as representing an improvement over the base case and is the preferred option for Government consideration. Implementation and review The Act will comment one year after Royal Assent. In some instances, transitional arrangements will apply, for example for approved arrangements. Existing QAPs and compliance agreements will remain valid on commencement of the Act. The intent is to transition these existing agreements to approved arrangements within 18 months of commencement and/or as existing QAPs and agreements expire (two and a half years after the legislation receives Royal Assent). For first points of entry, under the proposed biosecurity legislation there will be a three year transition period once the Act commences which will be one year after Royal Assent, a total period of four years. The regulations will clarify and provide further detail on what is contained in the legislation and what will be included in policy. It is anticipated that regulations may be similar to existing regulations. The department will work with the Office of Best Practice Regulation to determine the need for future RIS's. 65

Ongoing monitoring of any reforms will be undertaken by the department to ensure that the objectives are being achieved and whether any further reforms are necessary. 66

Appendix A - International Health Regulation requirements Figure 2: International Health Regulations core capacity requirements for surveillance and response Community Level �detect events involving disease or death above expected levels �report all available information immediately to the appropriate health care team �implement preliminary control measures immediately Intermediate Level �confirm the status of reported events and support or implement control measures �assess reported events immediately and report essential information to the national level National Level �Assessment and notification: �assess reports of urgent events within 48 hours �notify the WHO immediately through the National Focal Point of all potential PHEICs �Public health response: �determine rapidly the control measures required to prevent furtherspread �provide support hrough specialised staff, laboratory analysis and logistical assistance �provide on-site assistance as required to support local investigations �provide links with senior officials to approve and implement containment/control measures �provide direct liaison with other relevant government ministries �provide links with key operational areas for the dissemination of information �establish, operate and maintain a national public health emergency response plan �provide all of the above on a 24 hour basis Source: World Health Organization. 2008. `The International Health Regulations (2005).' Second edition. World Health Organization, Switzerland, pg 40-41. 67

Figure 3: International Health Regulations core capacity requirements for airports, ports and ground crossings At all times �provide access to appropriate medical services and staff, equipment and premises �provide access to equipment and personnel for transport of ill travellers �provide trained personnel for the inspection of conveyances �ensure safe environment for travellers through inspection programs �provide a program and personnel for the control of vectors and reservoirs in/near points of entry Responding to events that may constitute a PHEIC �provide appropriate public health emergency response by establishing and maintaining a public health emergency contingency plan �provide assessment of and care for affected travellers or animals by establishing arrangements with local medical and veterinary facilities �provide appropriate space to interview suspect or affected persons �provide for the assessment and quarantine of suspect travellers �apply recommended measures to disinsect, derat, disinfect, decontaminate or otherwise treat baggage, cargo, containers, conveyances, goods or postal parcels �apply entry or exit controls for arriving and departing travellers �provide access to specially designated equipment and trained personnel for the transfer of travellers who may carry infection or contamination Source: World Health Organization. 2008. `The International Health Regulations (2005).' Second edition. World Health Organization, Switzerland, pg 41-42. 68

Appendix B - Consultation feedback In preparing the RIS, the department and the consultant, PricewaterhouseCoopers (PwC), consulted with the Department of Health and Ageing (DoHA). Industry roundtable The department and PwC also facilitated an industry roundtable on the RIS on 8th July, 2011. The Table 4 outlines the industry associations that participated in the industry roundtable. Each industry stakeholder was given the opportunity to provide additional information via email after the workshop. Table 4: Industry roundtable attendees Group Industry Association Shipping and Aviation Group Ports Australia AQIS Industry Cargo Consultative Committee Qantas Airways Carnival Australia Board of Airline Representatives Australia Shipping Australia Airports Association Conference of Asia Pacific Express Carriers Australian Petroleum Production and Exploration Association Industry Legislation Group AQIS Industry Cargo Consultative Committee Invasive Species CRC Invasive Species Council Animal Health Australia Plant Health Australia Custom Brokers and Forwarders Council National Farmers Federation Distribution and comments on the draft RIS In May 2012, a draft of the RIS was provided to members of the Industry Legislation Working Group for their consideration and comment. This working group comprises: Invasive Animals CRC Board of Airline Representatives of Australia DHL Qantas Conference of Asia Pacific Express Carriers Carnival Australia Plant Health Australia AQIS - Industry Cargo Consultative Committee Animal Health Australia Invasive Species Council National Farmers Federation Shipping Australia Australian Petroleum Production and Exploration Association Limited Brisbane Airport Corporation Customs Brokers and Forwarders Council of Australia Inc Ports Australia. 69

Following the public release of the RIS, PwC participated in 17 consultation meetings organised by the department on the proposed biosecurity legislation. The meetings were with State Government agencies and representatives of industry with some open to the general public (all capital cities and Newcastle). At the meetings, the department presented an outline of the proposed provisions in the draft Biosecurity and Inspector- General of Biosecurity Bills and PwC outlined possible impacts of the provisions in these bills on stakeholders, based on the analysis included in the draft RIS that was publicly released on 4 July 2012. The meetings could be characterised as mostly information sessions. Although many stakeholders asked questions and sought clarification of the provisions of the bills, only a few were in a position to identify specific impacts of the proposed biosecurity legislation on them and/or provide information that would help to improve the analysis in the RIS (eg data or concrete examples that demonstrated a relative change in impact due to the proposed biosecurity legislation compared to the existing legislation). Some stakeholders did identify impacts that were not directly related to the legislation. This is not surprising as there was a large amount of information for attendees to absorb and in many cases stakeholders did not seem to have extensively reviewed information about the legislation prior to the meetings. Further, much of the proposed biosecurity legislation updates existing legislative provisions and apart from improving clarity, may not result in day to day changes relative to the current situation for many stakeholders. In addition, the Act provides an overarching framework for biosecurity legislation. Much of the detail will be in subordinate legislation. It is expected that it will be easier for stakeholders to understand possible impacts on them when more of the detail in the subordinate legislation and in operational policies is released and/or developed. Stakeholders were also provided with the opportunity to provide additional information in written submissions. Approved arrangements Specific comments/questions: Have we considered how the arrangements affect small businesses (RIS presentation emphasises large businesses)? The RIS should not imply these arrangements are voluntary eg all quarantine approved premises will need one. What are the implications for moving goods under a biosecurity control order between first points of entry/biosecurity zones/a location with an approved arrangement and what are the cost/benefit implications of this? How will my existing quarantine approved premises /compliance agreement change - will it have to be reworked? Can I keep things the way they are? How can I know the implications for me until I know how audit and compliance arrangements might change? What will be the change in charges? The examples of possible savings for business in the RIS do not reflect the proposed changes - they could occur under the existing legislation. While there are benefits from industry playing an increased role in relation to risk management, approved arrangements could lead to poorer risk management outcomes if not managed properly. Universities may have multiple quarantine approved premises each with specific requirements, so any benefits from moving to an approved arrangement will depend on the details and requirements of that approved arrangement. 70

Issues and proposals for addressing them: The presentation and analysis in the RIS emphasised potential benefits for large importers with control of end to end processes of having the option of a single and less prescriptive arrangement. It has been assumed that benefits will mostly accrue to those businesses that do not already have a quarantine approved premises or compliance agreement but would enter into an approved arrangement under the new legislation. In most cases, stakeholders were more concerned to understand the transition arrangements for their existing QAPs or compliance agreements. Some of these represented smaller businesses and wanted to understand how the content of their existing arrangements could change and what new costs might be incurred and when they might need to change. It is understood that the incremental change for those with existing quarantine approved premises or compliance agreements would be relatively small but with potential to take advantage of additional flexibility that will be available in approved arrangements. The RIS sets out illustrative estimates of transitional costs. Some stakeholders commented that most businesses do not have a mix of quarantine approved premises and compliance agreements. This has been clarified in the RIS. One stakeholder attended several meetings and several times raised the issue of how the new provisions for biosecurity zones and approved arrangements provide for moving goods under biosecurity control between these areas. The department held scenario testing sessions with this stakeholder to clarify this. First points of entry Specific comments/questions: How many existing first ports might not apply for `first point of entry status'? What is likely to be the net change in number as these are transitioned to first points of entry? Comment made that about 40 per cent of existing first ports would not meet the new requirements. Does DAFF have a sense of this? Could an inland site be considered a first point of entry, eg an intermodal terminal and does this need to be considered in the analysis. If not, what status would it have and what arrangements would cover it? Are owners or operators of ports likely to incur the costs - one stakeholder's view was that it was the operators/stevedores most likely to be impacted but this needed to be clarified, i.e. who would apply for first point of entry status, the owner or operator? There may be costs associated with having the ability to accept quarantinable waste for some facilities, but it depends on the specific criteria that are developed. Issues and proposals for addressing them: Although the likely change in number of first ports as they are transitioned to first points of entry cannot be predicted with certainty, it may be possible to provide more information about the number of first ports not actively used as first ports or only used in a very limited way. It is difficult to assess in aggregate what proportion of first ports may not meet requirements and may need to invest in additional facilities if first point of entry 71

status is sought. Ultimately, although the regulations may provide some guidance, this will depend on case by case negotiations with DAFF on the nature and requirements of each first point of entry. Biosecurity zones Specific comments/questions: Stakeholders broadly, and state government representatives particularly, wanted to better understand how the Australian Government would use the proposed powers for declaring biosecurity zones, ie in what circumstances would they use them? How do these powers affect existing state powers and practices? What are specific examples of when they would be used? Stakeholders sought clarification about who would be obliged to act (state and territory government or the Australian Government) and how quickly and who would be responsible if there was a failure to act? Who would incur the costs of having the zones in place? (Australian or state governments or industry?) Some stakeholders sought clarification about whether these zones might be used to manage existing pests rather than new ones. Some stakeholders thought that the proposed arrangements could have helped to avoid previous inter-jurisdictional issues (for example in relation to fruit flies). Some stakeholders queried who currently pays monitoring costs, e.g. around airports. Is it industry or Government and who would pay these costs if a monitoring zone was declared? Could this be a cost for Government that isn't recognised in the RIS? One stakeholder advised that - since most incursions occur in one jurisdiction - it is reasonable to assume that the powers would be used infrequently. There were different views on whether the powers will lead to a more timely response. Ultimately it depends on how the arrangements will work in practice. Also need to carefully implement the changes to minimise the risk of confusion. There will be costs to the Australian Government associated with having and using the new powers. Issues and proposals for addressing them: Explain more clearly in the RIS the interplay between state based and Australian Government powers and how these could be used to implement agreements such as Emergency Animal Disease Response Agreement, Emergency Plant Pest Response Deed and National Environmental Biosecurity Response Agreement. Clarify that the provisions do not compel the Australian Government to act but give it the power to. Human health provisions No substantive comments on the impacts of these provisions outlined in the RIS were recorded. Other issues raised Specific comment/questions: What is the relationship between the national Appropriate Level of Protection and regional interests given the Australian Government will cover the field? Do they align in, for example, Tasmania (e.g. in relation to salmon, apples etc?) or will regional interests be negatively affected? 72

Inspector General - do aspects of the provisions in this Bill limit scope and impact of role? e.g. consultation with Director of Biosecurity on work program. What might be the costs associated with the secretariat? The provisions for Risk Import Analyses suggest information will be published - some stakeholders raised issues related to privacy etc. Is this likely to be any different to current provisions and what would the impacts be? New information gathering powers in the proposed biosecurity legislation could increase costs for government and/or industry depending on extent to which used and requirements on business. Can possible costs be acknowledged? Members of the National Farmers Federation sought clarification of whether the Australian Government's powers for `covering the field' in terms of import conditions might apply retrospectively, eg in the case of importing apples to Tasmania. One stakeholder asked for the consideration of the impact of transferring some decision making powers from the Minister to the Director of Biosecurity. Some stakeholders queried how a situation in which a container or containers could be not be unloaded would affect other cargo/containers if they could not be moved until the other containers were. Would it be managed differently to today and could that result in additional costs for some importers waiting for their goods to be unloaded? What documentation/information gathering is required to facilitate this and what costs would that impose? One stakeholder suggested that the RIS should consider an option involving increased harmonisation with food safety importation requirements. The RIS should consider the overall impact of the Bill on biosecurity in Australia, and results should acknowledge impacts on the community, government, and industry. Consultation with states and territories Consultation with states and territories has taken place as part of the legislation drafting process and through the consultation period following release of the draft Bills. Preliminary provisions in the Act include commencement, the objects of the Act, extension of the Act to external territories and concurrent operation with state and territory laws. The Act does not limit concurrent operation of state and territory laws except in relation to the regulation of the importation of goods and ballast water. The Australian Government will cover the field with respect to importation into Australia and Australian import conditions will be based on the outcomes of a national risk assessment process, taking into account regional differences in pest and disease status. The Australian Government may also choose to prohibit the importation of goods into part of Australia (e.g. particular states or territories), where scientifically justified. Additional biosecurity measures can be taken at a state level to respond to regional differences in pest and disease status. States and territories will continue to be consulted through a series of workshops to define this policy and through the Intergovernmental Agreement on Biosecurity. Submissions on the RIS A number of written submissions touched on the impact of the proposed legislation and the associated cost benefit analysis. Where relevant, these have been acknowledged and 73

discussed in the body of this RIS. In general, the majority of submissions sought additional detail which the subordinate legislation and supporting administrative guidance material is likely to address. Many stakeholder groups representing diverse perspectives recommended a wide range of proposals they felt would better address the government's aims for biosecurity reforms. The department has considered all submissions and notes that -- as can be expected with most regulatory systems--there are some stakeholders calling for more stringent regulation such as in environmental biosecurity and other stakeholders calling for less stringent regulations such as industry groups from the trading sector. 74

Appendix C - Reference list ABCRC. (n.d.). What is biosecurity? Retrieved 2011 14-August from Australian Biosecurity CRC for emerging infectious disease: http://www.abcrc.org.au/pages/about Affairs, S. F. (2010 November). The Torres Strait: Bridge and Border. From Defence and Trade References Committee: http://www.aph.gov.au/senate/committee/fadt_ctte/torresstrait/report/index.htm AQIS. Industry Partnerships: Discussion Paper. Australian Government. (2009 1-July). Vessel Clearance Fees and Charges. Retrieved 2011 15-September from Australian Quarantine and Inspection Service: http://www.daff.gov.au/aqis/avm/vessels/fees-charges Beale, R., Fairbrother, J., Inglis, A., & Trebeck, D. (2008). One Biosecurity: A Working Partnership. Commonwealth of Australia. Biosecurity New Zealand. (n.d.). The Biosecurity System. Retrieved 2011 3-August from Biosecurity New Zealand: http://www.biosecurity.govt.nz/biosec/sys CDC. (2010 11-August). 2009 H1N1 Flu. Retrieved 2011 10-November from Centers for Disease Control and Prevention: http://www.cdc.gov/h1n1flu/ Department of Agriculture, Fisheries and Forestry. (n.d.). About our Biosecurity System. Retrieved 2011 8-September from DAFF: www.daff.gov.au/bsg Department of Agriculture, Fisheries and Forestry. (n.d.). Biosecurity Strategic Policy Framework. Retrieved 2011 24-August from Department of Agriculture, Fisheries and Forestry: www.daff.gov.au/bio Department of Agriculture, Fisheries and Forestry. (2011). First Points of Entry Policy Paper. Department of Agriculture, Fisheries and Forestry. (2008 1-April). Terms of Reference. Retrieved 2011 8-September from Quarantine and Biosecurity Review: http://www.quarantinebiosecurityreview.gov.au/tor Department of Health and Ageing. Ship Sanitation Scheme Overview, Policy Paper. Gooday, P; Timcke, D; Lawson, K; Cox, A. (1999). Managing ocean resources. ABARE. Lizzio, J. a. (March 2010). Biosecurity and Australia's primary industries - the role of biotechnology. Bureau of Rural Sciences. Mesnard, A., & Seabright, P. (December, 2003). Migration and Quarantine in the Presence of Asymmetric Information about Risk of Infectious Disease. University of Toulouse. Perrings, C., Dehnen, K., Touza, J., & Williamson, M. (2005). How to manage biological invasions under globalisation. Ecology and Evolution , Vol.20. 75

Racaniello, V. (2009 8-April). Reverse zoonoses: Human viruses that infect other animals. Retrieved 2011 10-November from Virology blog: http://www.virology.ws/2009/04/08/reverse-zoonoses-human-viruses-that-infect-other- animals/ 76

Human Rights Compatibility Statement Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 Biosecurity Bill 2012 This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. Overview of the Bill The purpose of the Bill is to provide the primary legislative means for the Australian Government to manage the risk of pests and diseases entering Australian territory and causing harm to animal, plant and human health, the environment and the economy. In achieving this purpose, the Bill aims to promote the right to health, the right to life and also the right to an adequate standard of living, including food, water and housing as provided under the International Covenant on Economic, Social and Cultural Rights. The Bill is intended to replace the century-old Quarantine Act 1908 to provide a modern regulatory tool aimed at better managing biosecurity risks in the current and future trading environments. The Quarantine Act is currently very restrictive in its ability to manage ill individuals and only allows for ill or potentially ill individuals to be ordered into quarantine, vaccinated or directed to take medication. The Bill will provide a range of measures which can be tailored to accommodate an individual's circumstances and aims to ensure individual liberties and freedoms are considered in conjunction with the disease risk. It will provide for consideration of personal freedoms and rights to review in decision-making. The Bill is consistent with Australia's international obligations under the World Health Organization's International Health Regulations. The Bill is part of a broader biosecurity reform agenda, which is seeing a move towards a risk-based approach -- through rigorous science, evidence and intelligence -- allowing resources to be managed according to the level of risk. The Bill aims to reflect the shared responsibility for biosecurity between governments at all levels, business, industries, trading partners and the community. It is designed to highlight transparency and accountability and promote good governance and procedural fairness. The Bill is based on a broader set of constitutional powers than the Quarantine Act - including from the quarantine power, international and interstate trade and commerce powers, the external affairs power and the corporations power. This will enable the Commonwealth to regulate biosecurity risks at the border as well as post-border, when necessary. As a result, there will be additional powers to monitor and manage biosecurity risks when they are detected anywhere in Australian territory to help prevent pests and diseases from impacting upon human, animal or plant health, the environment and the economy. The Bill is also designed to draw upon and give effect to various international and domestic agreements and obligations. Internationally, these include the: World Trade Organization's Agreement on the Application of Sanitary and Phytosanitary Measures (known as the SPS Agreement); International Convention for the Control and Management of Ships' Ballast Water and Sediments; International Health Regulations (2005); Convention on Biological Diversity; United Nations Convention on the Law of the Sea; and the Torres Strait Treaty. 77

Domestically, these include the Intergovernmental Agreement on Biosecurity and various emergency response deeds, including the Emergency Animal Disease Response Agreement, Emergency Plant Pest Response Deed and the National Environmental Biosecurity Response Agreement. It is not the Commonwealth's intention to take over state or territory powers, but rather to complement and work collaboratively with states and territories in the management of biosecurity risks. Human rights implications List of rights engaged: Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) - right to life Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) - right to an adequate standard of living, including food, water and housing Article 12 of the ICESCR - right to health Article 15 of the ICESCR - right to enjoy and benefit from culture Article 17 of the ICCPR - right to protection from arbitrary interferences with privacy Article 14(3) of the ICCPR - right to be free from self-incrimination Article 14(2) of the ICCPR - right to the presumption of innocence, Article 12 of the ICCPR - right to freedom of movement, Article 24 of the ICCPR - right to protection of children Article 22 of the ICCPR - right to freedom of association Article 9 of the ICCPR - right to liberty and freedom from arbitrary detention Articles 7 and 10 of the ICCPR - right to freedom from torture and cruel or degrading treatment Article 9 of the ICCPR - right to seek review Articles 3 and 5 of the Convention on the Rights of Persons with Disabilities, and Article 3 of the Convention on the Rights of the Child. Right to life Article 6(1) of the ICCPR includes a duty on governments to take appropriate steps to protect the right to life of those within its jurisdiction, and an obligation to investigate arbitrary or unlawful killings or punish offenders. The United Nations Committee General Comment 6 (1982) states: ...the Committee has noted that the right to life has been too often narrowly interpreted. The expression "inherent right to life" cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures. In this connection, the Committee considers that it would be desirable for State parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics. The Bill represents a positive measure aimed at protecting the right to life, as an underlying objective is to prevent harm to human, animal and plant health through managing the risk of pests and diseases entering, establishing or spreading in Australian territory. For example, Chapter 5 promotes the right to life by containing clauses which may prevent ballast water from being released in Australian seas that contains human diseases, such as cholera. 78

Right to an adequate standard of living, including food, water and housing Article 11(1) of the ICESCR protects the right to an adequate standard of living, including food, water and housing. To protect this right, governments have an obligation to ensure the availability and accessibility of the resources necessary for the realisation of the right. The United Nations Committee on Economic, Social and Cultural Rights General Comment 12 (1999) notes that in the context of food, the concept of adequacy is to a large extent determined by prevailing social, economic, cultural, climatic, ecological and other conditions. The concept is also linked to the notion of sustainability, which implies food security, namely that food should be accessible for both present and future generations. The right to water has been recognised by the United Nations Committee as a subset of the rights entailed within the International Convention on Economic, Social and Cultural Rights, particularly Article 11(1) (right to an adequate standard of living) and also Article 12 (right to highest attainable standard of health) in General Comment 15 (2003). The General Comment provides: Water is required for a range of different purposes, besides personal and domestic uses, to realize many of the Covenant rights. For instance, water is necessary to produce food (right to adequate food) and ensure environmental hygiene (right to health). Water is essential for securing livelihoods (right to gain a living by work) and enjoying certain cultural practices (right to take part in cultural life). Nevertheless, priority in the allocation of water must be given to the right to water for personal and domestic uses. Priority should also be given to the water resources required to prevent starvation and disease, as well as water required to meet the core obligations of each of the Covenant rights. In managing the risk of pests and diseases entering, establishing or spreading in Australian territory, the Bill protects the right to food by minimising or preventing harm caused to plants and animals that could severely impact upon Australia's food production systems. The Bill can also been seen to protect the right to water, for instance through the management of ballast water under Chapter 5 designed to manage the risks of pest and diseases causing harm to Australia's marine environment. In addition to protecting these rights, the Bill may also operate to limit the right to an adequate standard of living, including food, water and housing. Clauses 363 and 365 of Chapter 6 enable the Director of Biosecurity to declare a biosecurity response zone and enables biosecurity enforcement officers to exercise a range of powers. Under clause 363 the Director of Biosecurity may declare a biosecurity response if a biosecurity officer suspects, on reasonable grounds, that a disease or pest that poses an unacceptable biosecurity risk is on the premises and the Director is satisfied that it is necessary to declare a zone for the purpose of managing the biosecurity risk posed by the pest or disease. Clause 365 enables a biosecurity enforcement officer to direct a person to leave the zone, which may include their residence, for a specified period (which may not exceed 24 hours). These clauses may potentially impact on the right to housing as it relates to accessing their own housing within a biosecurity response zone if they have been directed to leave the zone. 79

These clauses are reasonable, necessary and proportion to the legitimate aim of managing biosecurity risks posed by diseases and pests, particularly because any direction to leave a biosecurity response zone may only be for a maximum of 24 hours. Clause 342 enables the Director of Biosecurity to give written approval to a biosecurity officer to require premises be destroyed if the officer believes on reasonable grounds that the premises cannot be treated to manage the biosecurity risk associated with it. This clause may potentially impact on the right to housing. This clause is reasonable to the legitimate aim of managing biosecurity risks associated with a premises that cannot be treated. This clause is necessary and proportionate to the legitimate aim, particularly as clause 343 does not allow premises of high value to be destroyed in a review period which is granted under Part 1 of Chapter 13 and compensation is available to the owner of the premises under clauses 659 and 660. Right to health Article 12 of the ICESCR recognises the right of all individuals to enjoy the highest attainable standards of physical and mental health. This includes the application of measures for the prevention, treatment, and control of epidemic, endemic, occupation and other diseases (Article 12(2)). In addition, the United Nations Committee on Economic, Social and Cultural Rights has stated in General Comment 14 (2000) that health is a `fundamental human right indispensable for the exercise of other human rights', and that the right to health is not to be understood as the right to be healthy, but rather entails a right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health. The objects of this Bill include: managing the risk of contagion of a Listed Human Disease (as defined by clause 9) managing the entry, emergence, establishment or spread of a Listed Human Disease, and giving effect to Australia's international obligations as a signatory to the International Health Regulations 2005 (IHR). Therefore, this Bill engages strongly with this right. In particular, Chapter 2 advances the protection of public health by ensuring the Commonwealth has the power to control the spread of serious communicable diseases, and also ensures any person developing signs or symptoms of these diseases are provided with prompt medical assessment and treatment. Chapter 2 includes a number of measures to manage the risk of contagion posed to people by a Listed Human Disease. A human disease may only be specified as a Listed Human Disease if the Director of Human Biosecurity is satisfied that the disease is communicable, and may cause significant harm to human health. The broad range of measures available in the Bill allows officers to consider the disease risk together with the individuals' circumstances, including medical history, and apply the most appropriate and least restrictive measure in the circumstances. Any person who exercises a power or imposes a biosecurity measure under Chapter 2 must first consider the principles of general protection under clause 33. The principles ensure that a 80

power is exercised, or a biosecurity measure imposed, only when the circumstances are sufficiently serious to justify it, and only if it would be effective, is proportionate, and is no more restrictive or intrusive than is required to manage the risk. To ensure that officials consider the principles of general protection when exercising powers under the Bill, biosecurity measures may only be applied to individuals by issuing a Human Biosecurity Control Order (HBCO) under clause 58. This requires that officials specify details of the Listed Human Disease(s) that is (are) suspected and the biosecurity measure required to manage that disease. A HBCO must only be applied for as long as is necessary, and no longer than 28 days. A HBCO cannot be extended. If the officer believes a HBCO is still necessary to prevent the entry, emergence, establishment or spread of a Listed Human Disease, the officer must reapply the HBCO and consider the principles of general protection. In applying a HBCO, the officer must explain to the individual their rights and obligations, including their rights to review. The officer must also explain why the HBCO is being applied and the risks to the individual of the Listed Human Disease and the contagion risk the individual may pose to the community. To further advance the protection of an individuals' health, clause 80 specifies biosecurity measures (such as medication, treatment, or medical examination), may only be applied by officers who have appropriate medical training or clinical expertise. In addition, clause 92 requires that these measures must be conducted using appropriate medical and professional standards. Further advancing the protection of this right, clause 34 specifies that there should be no interference with life threatening medical needs when exercising any power or imposing any measure in relation to an individual under Chapter 2. The Bill seeks to further implement Australia's obligations as a signatory to the IHR. The purpose of the IHR is to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with, and restricted to, public health. Consistent with the requirements of the IHR, clause 106 requires that all reasonable expenses associated with an individual complying with biosecurity measures applied in a HBCO must be met by Commonwealth. This ensures that all ill individuals who are subject to public health measures do not incur undue personal cost. In addition to protecting an individual's right to health, the Bill may also operate to limit the right to health. Article 4 of the ICESCR provides that countries may subject economic, social and cultural rights only to such limitations `as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.' The United Nations Committee has stated that such limitations must be proportionate, and must be the least restrictive alternative where several types of limitations are available, and that even where such limitations are permitted, they should be of limited duration and be subject to review. 81

Clauses 201, 205 and 206 of Chapter 4 enable the Director of Biosecurity to exercise a range of powers with respect to the movement of conveyances subject to biosecurity control (including to remain in a specified place or moving the conveyance to a specified place, which with respect to clause 205 may include a place outside Australian territory) for the purpose of managing biosecurity risks relating to conveyances. Clause 243 enables the Director of Biosecurity to direct the person in charge of an aircraft not to land at any landing place in Australian territory. Similarly, clause 251 enables the Director of Biosecurity to direct the person in charge of a vessel not to moor the vessel at any port in Australian territory. These clauses may potentially impact upon the right to health, as it relates to access to health facilities and goods, including essential medications and services. These clauses are reasonable, necessary and proportionate to the legitimate aim of assessing and managing biosecurity risks related to conveyances. The right to health under Article 12(1) of the ICESCR may be permissibly limited in this instance because it may be necessary to prevent harm to human, animal or plant health. The clauses are reasonable and proportionate to the legitimate aim, particularly because the clauses do not require individuals to remain on board a vessel subject to a direction. Part 4 of Chapter 1 contains protections that apply where the Director of Biosecurity makes a decision under this clause (for example, a direction must be no more intrusive or restrictive than is required in the circumstances), and these protections apply to clauses 205, 243 and 251. Subclause 31(4) in Chapter 1 contains the additional protection that, in exercising powers in relation to a conveyance, a biosecurity official must consider the impact of the exercise of the power on the health and safety of any persons on board the conveyance. Clause 303 of Chapter 5 enables the Director of Biosecurity to exercise a range of powers with respect to the movement of a vessel (including keeping a vessel out of a port or requiring the vessel to remain at a specified place) where there are clear grounds for believing that an offence under the Chapter has been committed. There is no requirement that individuals remain on board a vessel subject to a direction. However, directions under this clause may result in individuals being prevented from disembarking from a vessel subject to a direction (for example, to stay out of a port). This may potentially impact upon the right to health, as it relates to access to health facilities and goods, including essential medications and services. This clause is reasonable, necessary and proportionate to the legitimate aim of preventing potentially significant harm to the marine environment and related industries, and giving effect to Australia's international rights and obligations relating to ballast water management, for the reasons outlined below in relation to Article 12 of the ICCPR. The right to health under Article 12(1) of the ICESCR may be permissibly limited in this instance because, as outlined above, the clause is necessary on public health grounds (for instance, by preventing the spread of human diseases contained within ballast water under Chapter 5). The clause is reasonable and proportionate to the legitimate aim, for the reasons outlined above in relation to Chapter 4. Right to enjoy and benefit from culture Article 15 of ICESCR protects the right of all persons to take part in cultural life and to enjoy the benefits of scientific progress and its applications. The United Nations Committee on Economic, Social and Cultural Rights (General Comment 21, 2009) has stated that culture encompasses: 82

ways of life, language, oral and written literature, music and song, non-verbal communication, religion or belief systems, rites and ceremonies, sport and games, methods of production or technology, natural and man-made environments, food, clothing and shelter and the arts, customs and traditions. The Committee has stated that cultural rights may be exercised by a person as an individual, in association with others, or within a community or group. The Committee has also stated that countries should guarantee that the exercise of the right to take part in cultural life takes due account of the values of cultural life, which may be strongly communal or which can only be expressed and enjoyed as a community by Indigenous peoples. Indigenous peoples' cultural values and rights associated with their ancestral lands and their relationship with nature should be regarded with respect and protected. Countries must take measures to recognise and protect the rights of Indigenous peoples to own, develop, control and use their communal lands, territories and resources. Indigenous peoples have the right to act collectively to ensure respect for their right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions. Division 2 of Chapter 1 promotes the right to enjoy culture under Article 15 of the ICESCR, by allowing for exemptions to be made to enable free movement of traditional inhabitants and the performance of lawful traditional activities within the Torres Strait protected zone, in line with Articles 10 and 11 of the Torres Strait Treaty. The protected zone is a geographical zone in the Torres Strait region which was established under Article 10 of the Torres Strait Treaty in order to acknowledge and protect the traditional way of life and livelihood of traditional inhabitants, including their free movement. Traditional inhabitants are Torres Strait Islanders who are Australian citizens that live in the protected zone or the adjacent coastal area of Australia, or citizens of Papua New Guinea that live in the protected zone or the adjacent coastal area of Papua New Guinea, and who maintain traditional customary associations with areas or features in or in the vicinity of the protected zone in relation to their subsistence or livelihood or social, cultural or religious activities. Right to protection from arbitrary interference with privacy Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual's privacy, family, home or correspondence, and protects a person's honour and reputation from unlawful attacks. This right may be subject to permissible limitations where those limitations are provided by law and are non-arbitrary. In order for limitations not to be arbitrary, they must seek to achieve a legitimate objective and be reasonable, necessary and proportionate to this purpose. Chapter 2 contains a number of powers which engage with this right. These powers involve the collection and use of personal information, sharing of information between agencies, providing for collection of body samples, and providing for mandatory disclosure of information. Entry and exit requirements under clauses 43 and 44 may include requirements to provide declarations or evidence relating to their health status or medical treatments, or information on where they have travelled prior to entering Australia. For example, individuals may be required to produce evidence that they have received a vaccination for yellow fever if they have travelled through an area where there is a risk of yellow fever transmission. To ensure 83

that these requirements are a proportionate and legitimate restriction of an individual's privacy, these requirements are limited to the provision of information that directly relates to preventing the entry, establishment and spread of Listed Human Diseases. Chapter 2 also provides for sharing of personal information between agencies in specific circumstances. If an individual is subject to a traveller movement measure in a HBCO, clause 96 includes a requirement that the following Commonwealth bodies are notified using a travel movement measure alert: the Agriculture Department the Immigration Department the Foreign Affairs Department The Australian Customs and Border Protection Service, and the National Focal point. To protect an individual's privacy, the alert is restricted to the specified Commonwealth bodies, all of whom have responsibility relating to the movement of conveyances, goods and passengers into and from Australia. In addition, clause 96 restricts the information which can be shared to ensure that only the information necessary to clearly identify the individual subject to the measure, and any known travel details of that individual. A travel movement measure alert informs the responsible Commonwealth bodies to ensure ill passengers are prevented from boarding a passenger airline or vessel. This manages the risk of contagion to other passengers in the confines of a passenger aircraft or vessel, and the risk of spread of a Listed Human Disease to another country. To protect an individual's privacy and reputation, clause 98 specifies that Traveller movement measure alerts must be destroyed within 6 months of no longer being in force. If an individual has signs or symptoms, or has been exposed to a Listed Human Disease, it may be necessary for that individual to undergo an examination or provide body samples for diagnosis. The test for application of a HBCO, and the principles of general protection ensure that these measures are only used if it is the least intrusive or restrictive measure which may be applied in the circumstances. In addition, clause 89 specifies that samples may only be required for the purpose of diagnosing a Listed Human Disease. In specified situations, it may be vital that officers can quickly obtain information from individuals in order to prevent the entry, emergence, establishment or spread of Listed Human Diseases. Wherever possible, the Commonwealth will rely on voluntary disclosure of this information, however, in some circumstances, an individual may be unwilling to disclose information about their health status, potential exposure and travel history. In such cases, the need to address public risk will justifies the requirement for individuals to answer questions or provide documents under clauses 53 and 54. To ensure that there is no arbitrary interference with an individual's privacy, these provision specify that biosecurity officials may only ask questions and require documents if they are satisfied that an individual has been exposed to a Listed Human Disease; or exposed to another individual who has signs or symptoms of a Listed Human Disease; or the questions relate to human remains or an individual who has died in transit or on arrival in Australia. Chapters 3 and 4 contain clauses allowing a biosecurity officer to ask questions or to require persons to provide documents for the legitimate purpose of assessing the level of biosecurity 84

risk associated with goods or conveyances (see clauses 123, 124, 199 and 200). Collecting, using, storing and sharing personal information may operate to interference with the right to privacy. In asking questions or requiring persons to provide documents, these clauses may require the provision of personal information incidentally in the exercise of these powers. These clauses are necessary to achieving a legitimate aim, because biosecurity officers need access to this information in order to properly assess the level of biosecurity risk and then to be able to manage any biosecurity risks appropriately. They are reasonable and proportionate to this aim because their application is limited to circumstances where the biosecurity officer suspects on reasonable grounds that a person or persons have relevant information or documents, and it must be for the purpose of assessing biosecurity risk. Chapters 3 and 4 contain clauses requiring persons to provide information prior to their arrival in Australian territory, such as a notice of intention to unload goods in Australian territory under clauses 118 and 119, and pre-arrival reporting for conveyances entering Australian territory under clause 193 and 194. Collecting, using, storing and sharing personal information may operate to interference with the right to privacy. In requiring the provision of particular information, these clauses may require the provision of personal information incidentally in the exercise of these powers. These pre-arrival reporting clauses are for the legitimate purpose of effectively managing biosecurity risks upon arrival of the conveyance into Australian territory. It is necessary to have accurate and up to date information upon entry of goods or a conveyance into Australian territory, in order to be able to effectively manage any associated biosecurity risks. These clauses are reasonable and proportionate as they only apply in particular circumstances, as stated above, and the persons required to provide the information or documents can be expected to be aware of these obligations, such as the owner or operator of the aircraft or vessel. Chapter 6 provides for powers to enter premises, and for powers to be exercised on those premises, including the ability to search the premises, inspect, take extracts or copies of documents and sample anything on the premises. These clauses may operate to limit the right to protection from arbitrary interference with privacy by enabling the entry of premises, including residential premises, the searching of premises and the taking of documents which may include personal information. The purpose of these powers is to determine whether there is a disease or pest that may pose an unacceptable level of biosecurity risk on the premises, or to determine whether a disease or pest that may pose an unacceptable level of biosecurity risk has entered, established or spread in a zone established under Chapter 6. These Chapter 6 clauses are necessary to achieve the legitimate purpose of monitoring and managing biosecurity risks when they emerge post-border, because without these powers biosecurity officers would not have sufficient information to be able to effectively assess or manage post-border biosecurity risks. These clauses are reasonable and proportionate to achieve the legitimate aim, as the powers in these clauses can only be exercised in particular circumstances and reflect the serious potential harm that may be caused by biosecurity risks arising post-border. For instance, entry to premises under Chapter 6 is only allowed under consent or a warrant. A warrant to enter premises may only be granted if there are reasonable grounds for suspecting that a pest or disease - that poses an unacceptable level of biosecurity risk - may be present on the premises, or it is reasonably necessary to monitor whether such a pest or disease has entered, established itself or spread in the premises. The protection in clause 518 of Chapter 10 also applies, to provide a requirement for officers entering premises under an entry warrant to provide identification to the appropriate person. 85

Chapter 8 provides for powers to control the establishment or spread of a declared disease or pest in Australian territory during a biosecurity emergency period (such as a severe and widespread outbreak of foot and mouth disease that affects multiple Australian states). Such powers include the power to: secure goods and conveyances; ask questions or require documents to be produced; set up traps in order to monitor diseases or pests; destroy goods; and enter premises without a warrant or consent. These clauses may also operate to limit the right to privacy for reasons set out above. These Chapter 8 clauses are necessary to achieve the legitimate purpose of controlling the establishment or spread of a declared disease or pest in Australian territory. If these powers were not provided for, biosecurity officers would be unable to gather sufficient information to effectively assess and manage biosecurity risks during an emergency period. The clauses are both reasonable and proportionate to this purpose because they can only be exercised during a declared biosecurity emergency period in certain circumstances. For instance, entry to premises under Chapter 8 of this Bill is only allowed during a biosecurity emergency period for the purpose of controlling the establishment or spread of a declared disease or pest in Australian Territory. These powers may only be exercised during a biosecurity emergency period, which can be declared if the Minister is satisfied that: a disease or pest poses a severe and immediate threat, or is causing harm, on a nationally significant scale to animal or plant health, the environment or economic activities relating to animals, plants or the environment; and the declaration is necessary to prevent or control the establishment or spread of the disease or pest. Additional protections include that under clause 527 of Chapter 10, a person entering premises without a warrant under Chapter 8 must announce that he or she is authorised and provide identification. Chapters 9 and 10, provide for powers to enter premises, and a number of monitoring and investigation powers to be exercised on those premises. These powers include the ability to search the premises, inspect, take extracts or copies of documents and sample anything on the premises. The purpose of these powers is to ensure that relevant information required under the Bill, and information required to assess compliance with the Bill, is accessible and available to biosecurity officials when required. The powers referred to above engage Article 17 by providing for entry to premises and the power to collect information, which may incidentally require the collection of personal information. Entry to premises under Chapters 9 and 10 is only allowed under consent or a warrant, and a warrant to enter premises may only be granted for the purposes of: determining whether the Bill has been, or is being, complied with determining whether information supplied for the purposes of the Bill is correct, or there are reasonable grounds for suspecting that there may be evidential material on the premises. The threshold tests that are laid out above are designed to ensure that any interference with the right to privacy is lawful and is only to ensure compliance with the Bill or to manage biosecurity risk. There are clauses included in the Bill designed to ensure that any interference with the right to privacy is lawful and protect individual's rights. They include: obligations on biosecurity enforcement officers when entering with consent or under warrant (clauses 517-520), which include the requirement that consent of the occupier is only to be given voluntarily; and where entry is with a warrant, announcement must be made before entry and details of the warrant given to the occupier the limitations on use of force against things as outlined in clause 521 86

the particular premises able to be accessed without a warrant have been specified in the Bill (see clauses 185 and 195A). Entry for the purposes of this clause may be done without a warrant or consent as the relevant premises relate to approved arrangement where consent to entry is implied by the voluntary nature of the arrangement (and will be a condition of the approved arrangement), and in the case of first point of entry premises, stakeholders affected will be informed of this power through the public release of a determination by the Director of Biosecurity or the Director of Human Biosecurity establishing a place to be a first point of entry. The power to enter premises without a warrant is limited to these places to ensure that persons who have not been previously aware of these powers will not be affected. Chapter 9 also provides the Director of Biosecurity and the Director of Human Biosecurity with the ability to apply a fit and proper person test and gather personal information from applicants (see Divisions 2 and 3 of Part 6 of Chapter 9). These particular clauses engage Article 17 by expressly requiring the release of personal information. The fit and proper person test is for the legitimate objective of ensuring that persons covered by approved arrangements or who have been granted import permits (including high risk goods) are persons that are able to appropriately and responsibly manage biosecurity risks. The personal information that is to be supplied under clause 506 is designed to work in conjunction with the fit and proper persons test and will allow confirmation of a person's identity. To ensure that the above clauses are reasonable, proportionate and necessary, clauses 505 and 506 specify that the fit and proper person test and collection of personal information for applications can be only be applied to approved arrangements and import permits. That is, they only extend to circumstances which provide for a privilege rather than a right--they are not requirements placed on the general public. Any additional provision linking to either the fit and proper persons test or collection of personal information is required to be specified in the regulations. Clause 505 further provides an exhaustive list of the matters that the Director of Biosecurity and Director of Human Biosecurity must have regard to in determining whether a person is fit and proper, for example, whether a person has been convicted of an offence against the Quarantine Act. Additionally, Part VIIC of the Crimes Act 1914 applies to the fit and proper person test. This allows, in certain circumstances, that the person does not need to disclose spent convictions and requires persons who are aware of the spent convictions to disregard the convictions. The powers contained in the clauses above are required to be exercised in compliance with the Privacy Act 1988, which means that there are additional protections on the use and storage of personal information collected under these clauses. The clauses listed above involving the collection, use and storage of personal information are also subject to the confidential information clauses contained in Part 2 of Chapter 13. These apply to limit the circumstances and purposes for which personal information obtained in accordance with the Act can be recorded, disclosed or used (for example, contacting the importer regarding the application). The protections described above are necessary, reasonable and proportionate to the legitimate purpose of investigating and ensuring deterrence for non-compliance with the Bill that may adversely affect animal, plant or human health, the environment or the economy. 87

Right to be free from self-incrimination Article 14(3)(g) of the ICCPR protects the right to be free from self-incrimination in the determination of a criminal charge by providing that a person may not be compelled to testify against him or herself or confess guilt. The common law also recognises the privilege against self-incrimination which applies unless expressly or impliedly overridden by statute. The privilege against self-incrimination may be subject to permissible limits. Any limitations must be for a legitimate objective, and be reasonable, necessary and proportionate to that objective. The Bill operates to limit the right in Article 14(3)(g) of the ICCPR by expressly removing the privilege against self-incrimination in relation to the following information-gathering clauses of the Bill (as listed in 661): clauses 43, 44, 67, 68, 83 (information gathering for human biosecurity) clauses 118, 119, 123 and 124 (requiring a person to answer questions or produce documents to assess the level of biosecurity risk of goods brought into Australian territory) clauses 193, 194, 199 and 200 (requiring a person to answer questions or produce documents to assess level of biosecurity risk of conveyances entering Australian territory) clauses 318 and 319 (requiring a person to answer questions or produce documents relating to goods or premises for the purpose of assessing biosecurity risk under Chapter 6) subclause 435(1) (audit powers in relation to approved arrangements) clauses 448 and 449 (requiring a person to answer questions or produce documents relating to biosecurity emergencies) subclause 495(3) (requiring information for monitoring and investigation purposes) Removing the privilege in the circumstances outlined above is necessary to meet the pressing and substantial concern that biosecurity risks are assessed and managed effectively. These limitations are aimed at achieving the legitimate objective of the effective assessment and management of biosecurity risks posed by pests and diseases to plant and animal health, the environment, and the economy of Australia. Upholding the privilege in relation to individuals who have information regarding a potential biosecurity risk could have significant consequences such as reduced agriculture, fisheries or forestry productivity, serious environmental damage or increased costs associated with controlling pests and diseases. A disease outbreak (such as foot and mouth disease) has the potential to cause significant and long term damage to the Australian industries and the reputation of Australia overseas. Whilst in some cases it may be feasible to obtain information by other means (for example, warrants), the additional time taken to obtain such information may significantly increase the risk of a disease or pest entering, establishing or spreading to Australia, or within Australian territory. Without these limitations, the Commonwealth's ability to manage biosecurity risks through a responsive, evidence-led approach will be significantly reduced. Removal of the privilege ensures that the assessment of biosecurity risk and application of response measures can occur as urgently as necessary and reflects the magnitude of the potential impacts biosecurity risks pose to Australia. 88

These limitations are reasonable and proportionate to achieving the objective, as the Bill provides for both use and derivative use immunities. Clause 661 provides the limitation that self-incriminatory disclosures made under these clauses cannot be used against the person making the disclosure in any proceedings. The only exception to the use and derivative use immunity are in relation to proceedings arising out of sections 137.1 and 137.2 of the Criminal Code 1995 (Cth) (in relation to false and misleading information and documents), and proceedings for the contravention of subclauses 13(1), (2) or (4) of this Bill (civil penalties for failing to comply with a direction). Accordingly, the abrogation of the privilege against self-incrimination in relation to the above-listed matters is aimed at achieving the legitimate objective of protecting Australia's human, plant and animal health, and the environment and economy, and is reasonable, necessary and proportionate. Right to the presumption of innocence Article 14(2) of the ICCPR states that everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. The right to presumption of innocence is also a fundamental common law principle. Laws which shift the burden of proof to a defendant, commonly known as `reverse burden provisions', can be considered a limitation of the presumption of innocence. This is because a defendant's failure to discharge a burden of proof or prove an absence of fault may permit their conviction despite reasonable doubt as to their guilt. This includes where an evidential or legal burden of proof is placed on a defendant or where strict liability is applied to an offence. Reverse burden offences will not necessarily be inconsistent with the presumption of innocence provided that the reverse burden pursues a legitimate objective and is reasonable, necessary and proportionate to achieving that objective. Whether a reverse burden provision impermissibly limits the right to the presumption of innocence will depend on the circumstances of the case, and the particular justification for the reverse burden. Relevant factors to consider when determining if a reverse burden provision is justified include whether: the penalties are at the lower end of the scale the offences arise in a regulatory context where participants may be expected to know the duties and obligations the offences only impose an evidential burden (as the prosecution must still disprove the matters beyond reasonable doubt if the defendant discharges the evidential burden), and the burden relates to facts which are readily provable by the defendant as matters within their own knowledge or to which they have ready access. The Bill may operate to limit the right to be presumed innocent through imposing an evidential burden on the defendant in relation to a range of matters and through the application of strict liability to a range of offences in the Bill. Evidential burdens When a defendant bears an evidential burden in relation to an exception, it means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable 89

possibility that the exception is made out. If this is done, the prosecution must refute the exception beyond reasonable doubt. Clauses 140 and 188 of Chapter 3 create offences relating to bringing in or importing goods into Australian territory. These offences contain exceptions (for instance under subclause 140(7) a defendant may rely upon the exception that they contravened the direction because they issued the same direction to another person who failed to comply with it) where the defendant bears the evidential burden of proving the exception. It is necessary that the defendant bears the evidential burden in these clauses in order to achieve the legitimate purpose of ensuring goods in Australian territory that potentially pose a biosecurity risk may be located by biosecurity officials. These clauses are reasonable and proportionate to the legitimate objective because the information or facts are uniquely within the defendant's knowledge. For example, under clause 188 if the defendant did not bring or import the goods into Australian territory, they will have peculiar knowledge of how they obtained the goods such as information about where they purchased them. Clauses 207 and 218 of Chapter 4 create offences for unauthorised persons boarding conveyances, or for persons in charge of conveyances who allow the boarding of unauthorised persons in certain circumstances. The defendant bears an evidential burden in relation to proving the exceptions that are available for these offences (for example, the exception in subclause 217(2) that the person did not know, and could not reasonably be expected to have known, that the conveyance was subject to biosecurity control when the person boarded the conveyance, or that the person had appropriate permission to board the conveyance). It is necessary that the defendant bears the evidential burden in these clauses in order to achieve the legitimate purpose of ensuring unauthorised persons do not board conveyances that are subject to biosecurity control. These clauses are reasonable and proportionate to the legitimate objective because the information or facts are uniquely within the defendant's knowledge. Clauses 270, 276, 277, 279, 282, 283 and 284 of Chapter 5 provide exceptions to the offence of discharging ballast water in Australian seas under clause 269 (for instance, it is an exception that ballast water has been managed for discharge, that discharge is part of an acceptable ballast water exchange, or that ballast water was taken up and discharged at the same place). The defendant bears the evidential burden with respect to these exceptions. It is necessary that the defendant bears the evidential burden in these clauses in order to achieve the legitimate purpose of ensuring ballast water is appropriately managed in Australian territory. These clauses are reasonable and proportionate to the legitimate objective because the defendant will have the requisite knowledge to adduce evidence of the exception (that is, they have the appropriate records, such as the ships log book or ballast water records, to show they did not commit the offence). In addition, the defendant bears the evidential burden of proving an exception for the following clauses: clause 294, which creates an offence in relation to failing to keep requisite records in relation to an Australian vessel's ballast water management system clause 299, which provides a exception to the offence of disposing sediment in Australian seas (under clause 298), and clause 305, which provides a strict liability offence for contravening a direction under Division 3 of Part 6 of Chapter 5. 90

Similar justification applies in that the defendant will have the requisite knowledge to establish the exceptions available (that is, that they have the appropriate records, such as the ships log, to show they did not commit the offence). Clauses 328, 349 and 374 of Chapter 6 create offences relating to unauthorised persons, who move, deal with or interfere with notices affixed to goods or conveyances, or equipment and structures in a biosecurity response zone, in certain circumstances. These clauses provide exceptions where the defendant is authorised to engage in the conduct under the Act or another Australian law, and the defendant bears the evidential burden of proving these exceptions. It is necessary that the defendant bears the evidential burden in these clauses in order to achieve the legitimate purpose of ensuring only authorised persons deal with goods, conveyances, equipment or structures in a biosecurity response zone. These clauses are reasonable and proportionate because the defendant will have the requisite knowledge to adduce evidence of the exception (that is, that they were authorised under Australian law). Clauses 454 and 455 of Chapter 8 create offences relating to interfering with, removing or defacing a notice affixed to goods or a conveyance, or to moving, dealing or interfering with goods or a conveyance, during a biosecurity emergency period. The defendant bears the evidential burden with respect to exceptions to these offences (contained in subclauses 454(5) and 455(5) respectively). It is necessary that the defendant bears the evidential burden in these clauses in order to achieve the legitimate purpose of ensuring unauthorised persons do not move, deal, or interfere with goods or conveyances to which a notice has been affixed during an emergency period. These clauses are reasonable and proportionate to the legitimate objective because the defendant will have the requisite knowledge to adduce evidence of the exception (that is, that they were authorised under this Act or another Australian law to engage in the conduct). Clause 607 of Chapter 12 creates an offence of strict liability where a person fails to return an identity card in the prescribed circumstances. The defendant bears the evidential burden of proving the exception that the identity card was lost or stolen. It is necessary that the defendant bears the evidential burden in this clause in order to achieve the legitimate purpose of preventing identity cards from being obtained and used by unauthorised persons. This clause is reasonable and proportionate to the legitimate objective because the defendant will have the requisite knowledge to adduce evidence of this exception, and also because the penalty for this offence is low (1 penalty unit). Chapter 4 of the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers was considered in the development of these clauses and is considered consistent with the proposed reverse burden of proof. Agreement of the Attorney-General was sought and received in relation to these clauses. The offence-specific exceptions included in the Bill are compatible with Article 14(2) of the ICCPR. In consideration that the offences specified above: 1. impose an evidential, rather than legal burden, on the defendant, and 2. the burden relates to facts which are readily within the person's knowledge the offences are necessary, reasonable and proportionate to the legitimate objective of protecting Australia's human, plant and animal health, and the environment and economy, and is reasonable, necessary and proportionate. 91

Strict liability offences The application of strict liability negates the requirement to prove fault and allows a defence of honest and reasonable mistake of fact to be raised (see section 6.1 of the Criminal Code). The application of strict liability and the offences to which it relates have been developed with regard to the Senate Standing Committee for Scrutiny of Acts Sixth Report of 2002 on Application of Absolute and Strict Liability Offences in Commonwealth Legislation and to the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. In relation to bringing or importing goods into Australian territory, Chapter 3 provides for the following strict liability offences: a person who engages in conduct that results in interference with, removal of or a defacement of a biosecurity control notice affixed to goods (clause 126); and a person who receives or has in their possession prohibited or conditionally non-prohibited goods (clause 188). These offences are necessary to achieve the legitimate objective of deterring conduct which involves goods posing an unacceptable biosecurity risk. They are reasonable and proportionate as they are not punishable by imprisonment, and 60 penalty units is the highest maximum penalty that may be imposed. These clauses provide exceptions that are additional to the defence of honest and reasonable mistake of fact that is available under section 9.2 of the Criminal Code. In relation to conveyances entering Australian territory, Chapter 4 provides the following strict liability offences: a person who engages conduct that results in interference with, removal of or a defacement of a biosecurity control notice affixed to a conveyance (clause 202); and a person in charge of a conveyance who fails to comply with requirements for a prescribed quarantine signal (clause 223). These offences are necessary to achieve the legitimate aim of deterrence of offences involving conveyances posing an unacceptable biosecurity risk. They are reasonable and proportionate as they are not punishable by imprisonment, and they impose a maximum penalty of 50 penalty units, which is at the lower end of the scale. Clause 202 provides offence-specific exceptions, and the defence of honest and reasonable mistake of fact under section 9.2 of the Criminal Code apply to both clauses. Chapter 5, regulating the management of ballast water by vessels in Australian seas, contains strict liability offences in relation to: a person in charge or operator of a vessel in Australian seas that discharges ballast water (subclause 269(3)); a person in charge or operator of a vessel in Australian seas that discharges ballast water for the purpose of safety, accident or pollution minimisation and fails to comply with reporting requirements under subclause 284(4); a person in charge of a vessel that does not have a ballast water management system as required by subclause 292(2); a person in charge of a vessel who fails to make a record of ballast water operations and the disposal of sediment in accordance with subclause 293(3); a person in charge of a vessel who fails to retain records in accordance with subclause 294(4); a person in charge or operator of a vessel in Australian seas that disposes sediment, other than to a sediment reception facility (subclause 298(3)); the owner of an Australian vessel that fails to produce a ballast water record, or a copy of the record, in accordance with subclause 301(4); and a person in charge of a vessel who fails to comply with a direction under Division 3, Part 6 of Chapter 5 (subclause 305(1)). The offences depart from the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers by imposing higher maximum penalties than those recommended in the guide. Agreement of the Attorney-General was sought and received in relation to these clauses. The maximum penalty that may be imposed 92

for these offences range from 80 penalty units (subclause 301(4)) to 2000 penalty units (subclause 305(1)). Subclauses 292(2), 293(3) and 294(4) impose a maximum penalty of 200 penalty units, and subclauses 269(3), 284(4), and 298(3) attract maximum penalties of 500 penalty units. The defence of honest and reasonable mistake of fact under section 9.2 of the Criminal Code is available for the above ballast water offences. Some of these offences contain additional exceptions: exceptions to the offence under subclause 269(3) are contained in Divisions 3 to 8 of Part 2 of Chapter 5; exceptions to the offence under subclause 284(4) are contained in clauses 270, 276, 277, 279 and 282; clause 299 sets out specific exceptions in relation to the offence under subclause 298(3); and subclauses 305(2), 305(3) and 305(4) set out exceptions available to the offence under clause 305. Management of ballast water is for the legitimate aim of preventing potentially significant damage to Australia's marine environment and adverse affects to related industries. This will help ensure that the objects of the Bill in relation to ballast water -- to provide for managing the biosecurity risks related to ballast water and to give effect to Australia's international rights and obligations -- are met and maintained. The strict liability offences outlined above are necessary to achieve this legitimate aim because they are needed for effective deterrence to contraventions of the relevant obligations under the Bill. The application of strict liability in these ballast water clauses is reasonable and proportionate to achieve the legitimate aim. The clauses are only directed at persons in charge, operators or owners of vessels, who can be expected to be responsible and aware of the requirements of the legislation. The application of strict liability in the above clauses are drafted to be consistent the International Convention for the Control and Management of Ships' Ballast Water and Sediments 2004, a treaty signed by Australia but not yet ratified. Where relevant, the penalties for these clauses ensure consistency with equivalent offences and penalties of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (see in particular sections 21, 22(1B)(1), 22(1B(3), 23(5), 25(3), 27(1)(m), 27(2) and 27A(5)). These higher maximum penalties are proportionate given the potentially significant harm to the marine environment that can be cause by the commission of the offences. Therefore due to the regulatory nature of the scheme and the availability of exceptions for these clauses, the high penalties are reasonable and proportionate to the legitimate aim of the effective ballast water management for vessels in Australian seas. Right to freedom of movement The right to freedom of movement under Article 12 of the ICCPR includes the right to move freely within a country for those who are lawfully within the country, the right to leave any country and the right to enter a country of which you are a citizen. The right may be restricted in certain circumstances, including where the restriction is justified on any of the following grounds: to protect national security, public order, public health or morals or the rights and freedoms of others. The restriction must be necessary and proportionate to protect the purpose for which it is imposed, and should be as least intrusive as possible to achieve the desired result. A number of provisions in the Bill may operate to restrict the movement of individuals, through the application of biosecurity measures in a HBCO, establishing conditions for 93

individuals entering or leaving the country, and regulating or excluding individual's entry onto public lands which have been declared a human biosecurity response zone. Many of the biosecurity measures applied using a HBCO will restrict an individual's movement. A HBCO may only be applied by specified officers (clause 80), and if the individual has signs or symptoms of, or has been exposed to a Listed Human Disease; or if the individual has not complied with an entry requirement under clause 43. These strict limitations in the application of a HBCO ensure that measures applied relate only to the management of a Listed Human Disease, and are a proportionate and legitimate limitation to an individual's freedom of movement. Broadly, biosecurity measures can be categorised as information gathering measures, restricting behaviour measures and treatment measures. Individuals under a HBCO may be required to contact a human biosecurity officer or chief human biosecurity officer if they develop signs or symptoms of a Listed Human Disease (clause 84). This measure is applicable, for example, where an individual has been exposed to a Listed Human Disease but is not exhibiting signs or symptoms and aims to ensure that individuals potentially suffering from serious communicable disease are monitored in the event they develop the Listed Human Disease. Individuals under a HBCO may also be required to comply with a restrict behaviour measure (clause 85). This may require a person to remain in their homes, or not visit specific places for a specified period of time. This may consequentially prevent individuals from attending work or education for the specified time. Certain members of the community are particularly vulnerable to some communicable diseases, such as children and the elderly. This restriction seeks to reduce the risk of spread to these members of the community. An ill individual may be required by a HBCO to attend a specified medical facility to facilitate assessment and treatment of ill individuals, including undergoing an examination, providing body samples for diagnosis, treatment or undergoing a vaccination (clauses 88, 89 and 90). It is essential, where an individual is suspected of suffering from a Listed Human Disease, that the individual be moved to an appropriate place where medical treatment and privacy can be assured. Individuals under a HBCO may also be temporarily restricted from travelling on international passenger aircraft and vessels, for up to 28 days (clause 94). These aircraft and vessels often carry large numbers of passengers in close proximity for long periods of time, and temporary restrictions may be necessary to prevent ill individuals from travelling while they present a risk of contagion to other passengers. This power also prevents the spread of Listed Human Diseases to other countries in line with Australia's obligations as a signatory to the IHR. As a measure of last resort, an ill individual may be isolated at a specified medical facility under a HBCO (clause 95). Isolation would be applied in situations where an individual presents a significant risk of contagion and does not consent to a less restrictive measure, or isolation is the most or only effective measure in managing the Listed Human Disease. Individuals may be required by a HBCO to wear specified clothing or equipment designed to prevent the spread of disease (clause 86). This may include requiring an individual to wear a 94

face mask to prevent the potential spread of a respiratory disease such as Severe Acute Respiratory Syndrome (SARS). Some communicable diseases may be spread by particles on a person, or on their personal effects or clothing. If such a disease is suspected, a HBCO may require an individual to undergo decontamination (clause 87). This may include undertaking a decontamination shower. Management of some communicable diseases may require long term medication but not hospitalisation (clause 91). Individuals who do not, or no longer, pose a serious risk of contagion may be permitted under a HBCO to continue their medication and complete their treatment outside of a medical facility. Chapter 2 provides for the Health Minister to determine requirements for people arriving in or leaving Australia (clauses 43 and 44). This is consistent with the requirements of Annexe 1B of the IHR, for member states to have the ability to apply entry and exit requirements in response to public health risks and emergencies of international concern. The requirements also seek to place an obligation on individuals to take public health precautions prior to travel to ensure they do not enter or leave Australia with a Listed Human Disease. Entry requirements allow the Commonwealth to prevent the risk of the entry, emergence, establishment and spread of a Listed Human Disease at Australia's borders. Exit requirements seek to prevent the spread of Listed Human Diseases to passengers on aircraft or vessels, or to other countries in line with Australia's obligations as a signatory to the IHR. Entry requirements may include the requirement for individuals to provide evidence of specified vaccination or treatment, or provide a declaration on their health status if they have travelled from a country where there is a disease outbreak. Exit requirements may include individuals undergoing screening, such as completing a health declaration, prior to leaving Australia. Typically these requirements are consistent with recommendations of the World Health Organization under Part III of the IHR, to prevent the global spread of communicable disease. Part III of the IHR allows the WHO to make temporary recommendations in response to Public Health Events of International Concern. These recommendations may include health measures to prevent or reduce the international spread of disease. Health Measures are defined in the IHR to be measures to prevent the spread of disease or contamination, but do not include security or law enforcement measures. Individuals that have not complied with an entry requirement may present a risk of contagion, and therefore measures may be required to manage potential risk to human health. To ensure that entry and exit requirements are a proportionate and legitimate limitation to an individual's freedom of movement, these requirements must be for the purposes of preventing the entry, emergence, establishment or spread of a Listed Human Disease (clause 58). While entry and exit requirements do impose conditions on the right of individuals to enter or leave Australia, these limitations are not applied on the basis of nationality, but are applied on the basis of where an individual has travelled or is travelling to, consistent with Article 2 of the ICCPR. The Director of Human Biosecurity has the power to establish a human health response zone to manage small incidents such as a localised disease outbreak or a laboratory hazard 95

(Division 3). In declaring the response zone, the Director of Human Biosecurity may determine requirements for people entering or leaving the zone, or require individuals to evacuate the zone. The Director must consult with the Chief Health Officer in the relevant state or territory prior to declaring the zone. The determination may only be in place for 3 months. In order to ensure that response zones are a proportionate and legitimate restriction of an individual's freedom of movement, the zone must only be for preventing or controlling the spread of a Listed Human Disease, and the Director must be satisfied that the requirements are appropriate and adapted to prevent, or reduce the possibility of, the emergence, establishment or spread of the specified Listed Human Disease. Subclause 111(5) specifies that the Director of Human Biosecurity must not set requirements that subject individuals to biosecurity measures imposed under a HBCO. These measures must still be imposed using a HBCO and the associated protections of human rights and rights to review would continue to apply. In order to deal with nationally significant risks to human health, clauses 475 and 476 provides the Minister with the power to determine requirements or give directions during a human biosecurity emergency. A human biosecurity emergency may only be declared if the Health Minister is satisfied that a Listed Human Disease is causing a severe and immediate threat to human health, and the declaration is necessary to prevent the entry, establishment, emergence or spread of that Listed Human Disease (clause 473). Human biosecurity emergency requirements or directions include restrictions to the free movement of individuals such as preventing public access to specified areas. To ensure that these restrictions are reasonable and proportionate to the protection of public health, these powers are limited to responding to a Listed Human Disease. Prior to determining requirements or giving directions, clauses 475 and 476 require the Minister must be satisfied that: the requirement or direction is likely to be effective, or contribute to, achieving the purpose for which it was determined the requirements or directions are appropriate and adapted to prevent or control the spread of the Listed Human Disease the requirement or direction is not more restrictive or intrusive than is required in the circumstances the manner in which the requirement is applied is no more restrictive or intrusive than is required, and the requirements or directions are only applied for as long as is necessary. Clause 303 of Chapter 5, relating to the management of ballast water in Australian seas, enables the Director of Biosecurity to exercise a range of powers with respect to the movement of a vessel (including keeping a vessel out of a port or requiring the vessel to remain at a specified place) where there are clear grounds for believing that an offence under the Chapter has been committed. There is no requirement that individuals must remain on board a vessel subject to a direction. However, directions under this clause may affect the movement of individuals on a vessel, for example, where a direction requiring a vessel to stay out of a port results in individuals being hindered from immediately disembarking the vessel at port. 96

Management of ballast water is for the legitimate aim of preventing significant damage to Australia's marine environment and adverse affects to related industries. This will help to ensure that the objects of the Bill in relation to ballast water -- to provide for managing the biosecurity risks related to ballast water and to give effect to Australia's international rights and obligations -- are met and maintained. Clause 303 is necessary to achieve this aim because the ability to regulate the movement of vessels is required to prevent potential threats to the marine environment, and to ensure the overall effectiveness of the ballast water management regime. For example, a vessel may be ordered to remain at a specified place to investigate whether an offence has been committed, or, if an offence has been committed, to prevent any further risk of the spread of exotic colonies from the release of ballast water held on the vessel. The right to freedom of movement under Article 12 of the ICCPR may be permissibly limited in this instance because the clause is necessary on public health grounds. For example, this clause may be used to prevent a vessel holding ballast water potentially containing human diseases (such as cholera) from releasing the ballast water in Australian seas. Clause 303 is reasonable and proportionate to the legitimate aim of preventing significant harm to the marine environment and related industries. The clause is proportionate to the potentially significant harm that could be caused by the threat to the marine environment if the direction relating to the movement of the vessel is not made. As stated above, there is no requirement in the clause for an individual to remain on the vessel and alternative arrangements may be made for people to leave a vessel subject to a direction under this clause. Part 4 of Chapter 1 contains the additional safeguard that prior to the direction being made, the Director of Biosecurity must take into account the impact of issuing the direction on any persons on board the vessel, must ensure that exercising the power is appropriate and adapted to achieving its purpose, and must ensure that the direction is no more intrusive or restrictive than is required in the circumstances. These additional safeguards mean that a direction under this clause will only be given where it is deemed necessary for a legitimate aim. Further, if a vessel is unduly detained or delayed, the Commonwealth is required to pay reasonable compensation for any losses or damage incurred by the owner of the vessel as a result of the undue detention or delay. Clauses 201, 205 and 206 of Chapter 4 enable the Director of Biosecurity to exercise a range of powers with respect to the movement of conveyances subject to biosecurity control (including to remain in a specified place or moving the conveyance to a specified place, which with respect to clause 205 may include a place outside Australian territory) for the purpose of managing unacceptable biosecurity risk. These clauses are necessary, proportionate and reasonable to achieve the aim of effective management of unacceptable biosecurity risk, for reasons as outlined above in relation to Article 12 of the ICCPR. Clause 243 of Chapter 4 enables the Director of Biosecurity to direct the person in charge of an aircraft not to land at any landing place in Australian territory. Similarly, clause 251 enables the Director of Biosecurity to direct the person in charge of a vessel not to moor the vessel at any port in Australian territory. Both of these clauses are necessary to achieve the legitimate aim of managing biosecurity risk, as in both instances the Director of Biosecurity must be satisfied on reasonable grounds that the direction is necessary to achieve this purpose, and that biosecurity measures cannot be taken to manage the risk. The clauses are reasonable and proportionate to achieving the legitimate aim, as the direction must be revoked if there is no longer an unacceptable level of biosecurity risk. 97

Under Part 4 of Chapter 1, prior to making a direction, the Director of Biosecurity must take into account the impact of issuing the direction on any persons on board the conveyance, must ensure that exercising the power is appropriate and adapted to achieving its purpose, and must ensure that the direction is no more intrusive or restrictive than is required in the circumstances. Clauses 363 and 365 of Chapter 6 enable the Director of Biosecurity to declare a biosecurity response zone and enables biosecurity enforcement officers to exercise a range of powers. Under clause 363 the Director of Biosecurity may declare a biosecurity response zone if a biosecurity officer suspects, on reasonable grounds, that a disease or pest that poses an unacceptable biosecurity risk is on the premises and the Director is satisfied that it is necessary to declare a zone for the purpose of managing the biosecurity risk posed by the pest or disease. Clause 365 enables a biosecurity enforcement officer to direct a person to leave the zone for a specified period (which may not exceed 24 hours). These clauses may operate to impact the right to freedom of movement as it relates to individuals being able to move within a zone declared to be a biosecurity response zone. These clauses are reasonable, necessary and proportion to the legitimate aim of managing biosecurity risks posed by diseases and pests, particularly because any direction to leave a biosecurity response zone may only be for a maximum of 24 hours. In addition, the protections under Part 4 of Chapter 1 as discussed above apply in relation to decisions made under these clauses. Clauses 443 and 444 of Chapter 8 enable the Agriculture Minister, during a biosecurity emergency period, to make determinations including in relation to restricting or preventing the movement of persons, goods or conveyances or causing goods or conveyances to be removed from specified places. These clauses are reasonable and proportionate because in giving such a direction, the Minister (including delegated officers such as the Director of Biosecurity, biosecurity officers, biosecurity enforcement officers, or a national response agency executive) must be satisfied that the direction is appropriate and adapted to preventing or controlling the establishment or spread of the declaration disease or pest in Australian territory, or part thereof. `Appropriate and adapted' also incorporates the international law principle of proportionality. The use of these words is further intended to ensure that the exercise of the Agriculture Minister's power to give directions or take actions is consistent with Australia's international human rights obligations, such as the right to freedom of movement under Article 12 of the ICCPR and the right to be free from arbitrary or unlawful interferences with a person's privacy under Article 17 of the ICCPR. Protection of the rights of the child Article 24 of the ICCPR provides for the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State. In addition, Australia's human rights framework also considers the Convention on the Rights of the Child (Article 3). Consistent with these protections, clause 36 provides that children must not be subject to biosecurity measures under Chapter 2 unless reasonable steps have been taken to contact a parent or guardian. After first taking care of any urgent or life threatening medical needs of an ill child, the Commonwealth must then take reasonable steps to contact a parent or guardian before any measures are applied in a HBCO. 98

Protection of the rights of persons with disabilities Consistent with the Convention on the Rights of Persons with Disabilities (Article 3) the Bill advances this right by providing for special protections for the rights of individuals who may be incapable of understanding the nature and effect of requirements under the Bill, or may be incapable of consenting to biosecurity measures. Individuals may be incapable due to disability, or temporarily as a result of illness. Individuals may not be subject to biosecurity measures under Chapter 2 of the Bill unless the Commonwealth has taken reasonable steps to contact a parent or guardian. Any urgent or life threatening medical needs of the individual must first be met, and a parent or guardian must then be contacted as soon as possible. However, the individual may still be required to remain at a place for up to six hours. This allows the Commonwealth to manage any potential risk of contagion, while contacting a parent or guardian prior to the application of measures in a HBCO. Right to freedom of association Article 22 of the ICCPR recognised the right of individuals to free association with others. A number of powers in Chapter 2 of this Bill may restrict this right, in that individuals subject to a HBCO may also be consequentially restricted from attending places where a large number of people may gather, such as a shopping centres, school, work or sporting event. There is an increased risk of spread of communicable diseases in venues where large numbers of people may be gathered in close proximity. Restrictions to the movement of ill individuals to these venues protects the rights of the community to be free from contagion risk, In addition, the limitations on imposing a HBCO ensure that such restrictions are proportionate and legitimate restrictions to individual's rights. Right to liberty and freedom from arbitrary detention The ICCPR recognises the right of all individuals to liberty and freedom from arbitrary detention. In all decisions relating to the management of human biosecurity risk, the conflicting interests of the individual and. the community must be considered. In some circumstances, the community risk is such that an individual's liberty must be restricted to ensure they do not endanger the health of others. As a consequence, this Bill contains a number of powers permitting the Commonwealth to require individuals to remain at a place or to detain individuals for the purpose of public health, thus restricting this right. Prior to imposing a HBCO, officers may require an individual to remain at a place in order to assess potential risk of contagion (clause 66). To ensure that this is a proportionate and legitimate restriction of an individual's liberty, this only applies if the officer believes that the individual has signs or symptoms of a Listed Human Disease, or has been exposed to a Listed Human Disease. This power only applies for up to 6 hours and may not be extended. After that time the officer must apply measures in a HBCO or release the individual. Clause 101 specifies that individuals may be detained under this Bill if they fail to comply with a requirement to remain at a place, or if they fail to comply with an isolation measure that has been affirmed after review by the Director of Human Biosecurity. Before an individual is detained, consideration must be given to the principles of general protection. In addition, an individual may only be detained if they pose a significant risk of contagion. 99

The power to detain individuals has been vested only in law enforcement officers under subclause 101(3) as they have sufficient training and skills to ensure the power is exercised in line with Commonwealth guidelines. To ensure that the above powers do not amount to arbitrary restriction of an individual's liberty, the Bill includes the following protections if an individual is: required to remain at a place or is detained, and that individual is not an Australian Citizen, then the Commonwealth must inform the individual of their right to seek consular assistance, and facilitate contact with a consulate if it is requested. detained, then they must be advised of their right to contact anyone, including a legal representative; and detained for failing to comply with an isolation measure, the detention must only be for the purpose of moving the ill individual to a specified medical facility so that they may be assessed and treated. If an individual does not consent to a biosecurity measure, then they may seek internal review by the Director of Human Biosecurity. In conducting a review, the Director of Human Biosecurity must give consideration to factors affecting the health of the individual, and the reasons why they do not consent to the measure. The Bill prescribes timeframes for the Director to complete the review to limit the time that an individual's liberty may be restricted. Individuals may seek external merits review under Administrative Appeals Tribunal Act 1975 (if applicable) or the Administrative Decisions (Judicial Review) Act 1977. Right to freedom from torture and cruel, inhuman or degrading treatment The right of individuals not to be subjected to cruel, inhumane or degrading treatment is protected in Article 7 of the ICCPR. To advance the protection of this right, the Bill specifies that force must not be used against an individual to require them to comply with a biosecurity measure specified in a HBCO. Clause 99 provides that individuals may be prevented from leaving Australian Territory if a traveller movement measure is in force. However, officers must not use more force or subject the person to greater indignity than is necessary to detain the individual or prevent them from escaping. Article 10 of the ICCPR further protects the right of an individual to be treated with humanity and dignity if detained. Consistent with this protection, if an individual is required to remain at a place or placed under an isolation order, and they are not an Australian citizen; then the individual must be informed of their right to seek consular assistance. In addition, officers must provide a reasonable time to allow the individual to seek consular assistance, and facilitate communication with a consular office if requested (clause 100). This aims to ensure that all individuals are able to understand the nature and effect of requirements under the Bill, and are able to provide informed consent to biosecurity measures which may be imposed, regardless of language or nationality. If an individual is detained, clause 102 specifies that officers must use no more force or subject the individual to greater indignity than is necessary and reasonable, and that detention must be in a place that affords adequate personal privacy. In addition, Clause 102 also requires the Commonwealth to advise the individual of their right to contact anyone, 100

including a legal representative, and to provide facilities for the ill individual to contact that person. Review of administrative decisions Article 9 of the ICCPR provides individuals with the right to seek review of administrative decisions to which they are subject. The Bill provides protection of this right by providing that individuals subject to health measures applied in a HBCO may seek review if they do not consent to that measure. All individuals may seek an internal review by the Director of Human Biosecurity (clause 70). Individuals may also seek review of isolation and travel movement measures by the Administrative Appeals Tribunal (AAT) (clause 73). This is in addition to the general right of all individuals to seek review of administrative decisions under the Administrative Decisions (Judicial Review) Act 1977. Chapter 2 contains provisions obliging officials to inform individuals of their right to seek review (clause 59). In addition, there is an obligation on the Director of Human Biosecurity to ensure that individuals have access to facilities to enable them to apply for review (clause 73). The Bill also specifies timeframes for the making of applications and the handing down of decisions by the ATT (clauses 74, 75 and 76). This ensures that individuals are provided with a timely and meaningful review. Conclusion The Bill is compatible with the human rights outlined above because in some instances it supports their aims and to the extent that it may limit these rights, these limitations are reasonable, necessary and proportionate to achieve legitimate objectives. 101

Notes on Clauses Chapter 1--Preliminary Part 1--Preliminary Clause 1 Short title This clause provides that the Bill, when enacted, may be cited as the Biosecurity Act 2012. Clause 2 Commencement This clause provides for the commencement of the Bill. The effect of items within the table in subclause (1) is to enable different parts of the Bill to commence at different times. Each provision of the Bill specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 in the table. Item 1 of the table provides that clauses 1 and 2 of the Bill (and anything in the Bill not elsewhere covered by the table) will commence on the day the Bill receives Royal Assent. Item 2 of the table provides that clauses 3 to 671 of the Bill will commence on a day fixed by proclamation, or if no day is fixed for commencement within 12 months of Royal Assent these clauses will commence on the day after the end of the 12 months. Once the Bill receives Royal Assent, the Director of Biosecurity or the Director of Human Biosecurity will be able to make legislative instruments, and authorise various officers as outlined under Chapter 12 (through the operation of the Acts Interpretation Act 1901). These instruments and authorisations will come into effect when the remaining Chapters of the Bill commence. It is intended that the majority of the clauses of the Bill will commence 12 months after Royal Assent. The period between commencement of clauses 1 and 2 and the remaining clauses is to allow time for the new requirements in the legislation to be communicated to stakeholders, industry participants and the general public, and allow biosecurity officials to undergo appropriate training. It will also provide additional time for consultation with states and territories regarding shared responsibilities and obligations under the Bill. Allowing time for communication and education is important as a number of policies included in the Bill do not exist under the Quarantine Act 1908 such as the new post border powers in Chapter 6 and enforcement regime in Chapter 11. It is important that stakeholders are aware of the new requirements--including the introduction of civil penalty provisions and an expanded infringement notice scheme--in the Bill so that they are not inadvertently non- compliant with these requirements. Clause 3 Guide to this Act This clause provides a concise overview of each Chapter of the Bill. It provides that the Bill is about managing diseases and pests that may cause harm to human, animal or plant health or the environment, and sets out the general purposes of each of the Chapters of the Bill, including the powers that may be exercised and the functions that may be performed under the clauses of that Chapter. 102

Clause 4 Objects of this Act This clause provides that the objects of the Act are to provide for managing: biosecurity risks the risk of contagion of a listed human disease the risk of listed human diseases entering Australian territory or a part of Australian territory, or emerging, establishing themselves or spreading in Australian territory or a part of Australian territory risks related to ballast water, and biosecurity emergencies and human biosecurity emergencies. Additionally, the Bill will give effect to Australia's international rights and obligations, including under the International Health Regulations, the SPS Agreement and the Biodiversity Convention (see clause 9 for further details of these international agreements). Any exercise of power or performance of a function or duty under the Bill by a biosecurity official, including by the Director of Biosecurity or Director of Human Biosecurity, must be consistent with the objects. Clause 5 Appropriate Level of Protection (ALOP) for Australia against biosecurity risks This clause defines the Appropriate Level of Protection (ALOP) for Australia. The World Trade Organization (WTO) Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) contains the basic rules on animal and plant health and food safety standards for trade between WTO member countries. The SPS Agreement requires that sanitary (relating to human and animal) and phytosanitary (relating to plant) measures are based on science and applied only to the extent necessary to protect human, animal or plant life or health. The SPS Agreement allows WTO members to determine their own appropriate level of sanitary and phytosanitary protection; however it must be applied in a consistent manner--this is known as the ALOP. Consistent with the SPS Agreement, Australia bases its sanitary and phytosanitary measures on international standards developed by the World Organisation for Animal Health, on the International Plant Protection Convention and the Codex Alimentarius where such measures exist and where the measures meet Australia's ALOP. This Bill will manage biosecurity risks, while food safety risks in imported food are managed under the Imported Food Control Act 1992 in accordance with the Australia New Zealand Food Standards Code. The Australian Government, with the agreement of the state and territory governments has expressed Australia's ALOP as `providing a high level of sanitary and phytosanitary protection, aimed at reducing biosecurity risks to a very low level, but not to zero'. Australia's ALOP is included in the Bill to provide additional certainty for importers and trading partners that the ALOP is applied when undertaking risk assessments to determine if, and under what conditions, goods may be brought into Australia. When performing a function or exercising a power under the Biosecurity Import Risk Analysis (BIRA) process (outlined in Chapter 3) and risk assessments conducted for the bringing in, or importation of particular goods into Australian territory, the Director of Biosecurity must apply Australia's ALOP. Where risks do not meet Australia's ALOP, biosecurity measures may be identified to reduce the risk to a level that meets Australia's ALOP. If no biosecurity measures are available to do this, the import will not be allowed. 103

This policy recognises that Australia has the right to protect its unique biosecurity status and that a zero risk stance is impractical as it would mean that people, conveyances or goods would not be able to enter Australian territory. Clause 6 Act binds the Crown This clause provides that the Act will bind the Crown in each of its capacities. This means that the Commonwealth and state and territory governments will be bound to comply with the provisions of the Act. This clause also provides that the Crown will not be liable to be prosecuted for an offence, subject to civil proceedings for a civil penalty order, or given an infringement notice. This means that the Act will apply to the Commonwealth and state and territory governments, but in a modified way so as to avoid a situation occurring where, for example, a government is liable to pay an infringement notice to itself. Clause 7 Extension of Act to Christmas Island, Cocos (Keeling) Islands and other prescribed external Territories This clause provides that the Act will extend to Christmas Island and Cocos (Keeling) Islands. It also provides that the Act, or any provision of the Act may be extended to other external territories as prescribed in the regulations. However, provisions relating to the management of ballast water, as outlined in Chapter 5, will apply to all external territories of Australia. This clause supports the policy approach not to extend the Act to other external territories unless a formal, scientifically based, risk assessment such as a pest and disease survey has been undertaken (e.g. as has been done in the case of Christmas Island and Cocos (Keeling) Islands). This approach has been taken because the biosecurity risks associated with external territories where a risk assessment has not been undertaken are unknown, and free movement of people, conveyances and goods between such territories and mainland Australia could pose a significant biosecurity risk. When a pest and disease survey has been completed with respect to a specific external territory it is appropriate that the Biosecurity Bill apply to that territory to ensure that any identified biosecurity risks are able to be managed. This is consistent with the objects of the Bill (see clause 4) and the extension of the Bill to Christmas Island and Cocos (Keeling) Islands. Parliament will have the opportunity to scrutinise the extension of the Bill to an external territory when the enabling regulations are tabled in each House of the Parliament. Clause 8 Concurrent operation of State and Territory laws Clause 8(1) provides that the Act does not exclude or limit the operation of a state or territory law that is capable of operating concurrently with this Act. This is subject to two exceptions which are discussed below. Section 109 of the Constitution invalidates a state law to the extent that it is inconsistent with a Commonwealth law. Determining whether a state law is inconsistent with a Commonwealth law involves interpreting both laws. If the Commonwealth law is interpreted as operating to the exclusion of state law, the state law will be inconsistent with the Commonwealth law and invalid. A concurrent operation provision, such as clause 8, is used in interpreting the Commonwealth law to determine whether it operates to the exclusion of state law. It indicates the Parliament's intention that the Commonwealth law should not operate to the exclusion of state law to the extent that the laws are capable of operating concurrently. In some cases, the 104

laws may not be able to operate concurrently in specific instances despite the general intention that the laws should. This clause therefore indicates the Parliament's intention that the Act should not operate to the exclusion of state law, i.e. it is not intended to cover the subject matter exclusively or exhaustively. Without limiting the effect of subclause 8(1), subclause 8(2) clarifies that the Act is not intended to exclude the concurrent operation of state laws imposing offences or civil penalties, where the same or similar conduct is also an offence or subject to a civil penalty under the Act. Under subclause 8(3), subclause 8(2) applies even if the penalty, fault elements, defences or exceptions that apply to the offence or civil penalty provisions under the state law differ to those set out in the Act. There are exceptions to the application of this clause in relation to Chapter 5 and the provisions relating to the prohibition or restriction of bringing in or importing goods into Australia (Part 3 of Chapter 3). Clauses 267 and 169, respectively, set out the intended effect of those parts of the Act on state and territory laws. Despite the inclusion of this clause in the Act, there may be state laws that are not able to operate concurrently with the Act in particular cases. Some examples of the state laws that may not operate concurrently with a Commonwealth law in the biosecurity context would be where a state law which seeks to require animals to be held in one place and a biosecurity measure under Commonwealth law requires particular animals to go to a premises controlled by the Commonwealth, or where a state law purports to ban the use of a particular vaccine and the Commonwealth law requires its use. In these instances the state laws may be inconsistent with the Commonwealth law and so the Commonwealth law would prevail. This clause applies to territory laws in the same way as it applied to state laws. While s109 of the Constitution does not does not apply to territory laws, similar principles apply in relation to the inconsistency or repugnancy of territory laws with Commonwealth laws. Part 2--Definitions Clause 9 Definitions This clause provides definitions for the Bill. Notes are provided below on each definition. acceptable ballast water exchange This definition provides that `acceptable ballast water exchange' has the meaning given by clause 275. An acceptable ballast water exchange refers to when a prescribed proportion (by volume) of ballast water in the tank of a vessel is discharged at an acceptable location and replaced by refilling the ballast water tank. See clause 275 and ballast water exchange for further details. This term is used in Chapter 5 in relation to ballast water management. accompanying person for a child or incapable person This definition provides that the term `accompanying person' for a child or incapable person refers to a parent, guardian or next of kin of the child or incapable person, or a person authorised by a parent, guardian or next of kin of a child or incapable person under clause 38 to accompany the child or incapable person. 105

acquisition of property This definition provides that `acquisition of property' has the same meaning as in section 51(xxxi) of the Constitution which currently provides: "The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws." adjacent premises warrant This definition provides that an `adjacent premises warrant' means a warrant issued as a result of the test in table item 7 in clause 511 being met. That is, an adjacent premises warrant can be issued where it is reasonably necessary that one or more biosecurity enforcement officers should have access to the premises for the purpose of: (a) gaining access to adjacent premises to perform functions, or exercise powers, as a biosecurity enforcement officer; or (b) accompanying a biosecurity officer who needs to gain access to adjacent premises to perform functions, or exercise powers, under or for the purposes of the Bill. Administration of a vessel This definition provides that administration of a vessel has the same meaning as in the Ballast Water Convention which currently provides: "Administration" means the Government of the State under whose authority the ship is operating. With respect to a ship entitled to fly a flag of any State, the Administration is the Government of that State. With respect to floating platforms engaged in exploration and exploitation of the sea-bed and subsoil thereof adjacent to the coast over which the coastal State exercises sovereign rights for the purposes of exploration and exploitation of its natural resources, including Floating Storage Units (FSUs) and Floating Production Storage and Offloading Units (FPSOs), the Administration is the Government of the coastal State concerned." Agriculture Department This definition provides that `Agriculture Department' refers to the Department administered by the Agriculture Minister. Agriculture Minister This definition provides that `Agriculture Minister' refers to the Minister that administers the Primary Industries Levies and Charges Collection Act 1991. Agriculture Secretary This definition provides that `Agriculture Secretary' refers to the Secretary of the Agriculture Department. This term is used in the definition of Director of Biosecurity. aircraft This definition provides that `aircraft' refers to any machine or craft that can derive support in the atmosphere from the reactions of the air, other than the reactions of the air against the earth's surface. This term is used in the definition of conveyances. Chapter 4 includes specific provisions in relation to aircraft, vessels and other conveyances. Under this Bill, an aircraft which is transported on another conveyance (for example, on an aircraft carrier or as cargo) is considered to be a good and not a conveyance. This is intended to exclude such aircraft from provisions of the Bill that deal with biosecurity risks associated 106

with aircraft that convey people or goods into Australian territory (for example, clause 193 - pre-arrival reporting). Biosecurity risks associated with such aircraft will be managed under Chapter 3. However, in relation to Chapter 5 and Part 3 of Chapter 13 (and any provision of the Bill that relates to Chapter 5 and Part 3 of Chapter 13) an aircraft which is transported on another conveyance will not be considered a good so that ballast water on such a conveyance can be managed under Chapter 5, and the cost recovery provisions in Chapter 13 apply to the conveyance. ALOP (short for Appropriate Level of Protection) This definition provides that ALOP has the meaning given by clause 5. See the note to clause 5 above for the meaning of ALOP. animal This definition provides that a reference to an animal in this Bill includes a dead animal and any part of an animal. Chapter 3 provides that the Director of Biosecurity may prohibit (absolutely or subject to conditions) goods from being brought or imported into Australian territory. This may include prohibiting (absolutely or subject to conditions) or requiring a permit for the bringing in or importation of live or dead animals, parts of animals or animal products as they are considered goods under this Bill. appropriate ballast water records This definition provides that a vessel is considered to have `appropriate ballast water records' if it has on board records made in accordance with clause 295 for an Australian vessel and clause 296 for a foreign vessel, where the records are sufficient to allow any biosecurity risk associated with the vessel's ballast water or sediment to be identified and assessed. These records include a ballast water record system to record the details of a vessel's ballast water uptake and discharge (for all vessels which carry ballast water in Australian seas), a ballast water management certificate and a ballast water management plan (for Australian vessels with ballast water treatment systems). See clauses 295 and 296 for further details. appropriate person This definition outlines who an `appropriate person' is in relation to premises or conveyances which are the subject of certain warrants. Specifically: for premises to which an entry warrant or a premises possession warrant relates, or premises entered under a provision referred to in clause 526, the appropriate person is the occupier of the premises, or another person who apparently represents the occupier, or For a conveyance to which a conveyance possession warrant relates, the appropriate person is the person responsible for the conveyance, or another person who apparently represents a person responsible for the conveyance. Note that if an entry warrant relates to a conveyance, the appropriate person is the person occupying the conveyance, or another person who apparently represents that person (see subclause (a) of the definition of premises in clause 9). approved arrangement See the note to clause 10 below for the meaning of approved arrangement. 107

Australian law This definition provides that `Australian law' refers to a law of the Commonwealth or a law of a state or territory. This term is also intended to include any subordinate legislation made under such a law. Australian seas This definition provides that `Australian seas' means the waters of Australia (including the internal waters of Australia) within the outer limits of the territorial sea of Australia, including every external Territory to which the Bill extends (see clause 7 for the extension of the Bill to external territories). This term is used in Chapter 5 in relation to ballast water management and is affected by the operation of clause 262 (vessels in dry dock) and 263 (foreign vessels near the Australian Antarctic Territory). Australian territory See the note to clause 11 below for the meaning of Australian territory. Australian vessel This definition provides that `Australian vessel' refers to vessels that have Australian nationality under section 29 of the Shipping Registration Act 1981. The Shipping Registration Act 1981 currently provides that the following ships are taken to be Australian ships and to have Australian nationality: registered ships unregistered ships (other than ships required to be registered), being: - Australian-owned ships referred to in section 13 of the Shipping Registration Act 1981 - ships wholly owned by residents of Australia or by residents of Australia and Australian nationals or - ships operated solely by residents of Australia or Australian nationals or both. The term also refers to a vessel whose administration is the Commonwealth (see Administration of a vessel). This term is used in Chapter 5 in relation to ballast water management. baggage This definition provides that `baggage' refers to goods that are carried on a conveyance by or for a person who is on board the conveyance (including the person in charge and members of the crew of the conveyance). This term is used in the decontamination provisions of the Bill (clauses 87 and 598) to specify what things may be decontaminated in addition to a person and his or her immediate personal effects. Goods are only considered baggage if a person intended them to be carried in such a way. For example, if a person is travelling on a conveyance and an article which they had sent by post was consigned on the same conveyance, the article would not be considered his or her baggage and could not be decontaminated under clause 87 or 598. Powers in Chapter 3 relating to assessment and management of biosecurity risks associated with goods would apply in relation to the article. ballast water This definition provides that `ballast water' has the same meaning as in the Ballast Water Convention which currently provides: 108

"Water with its suspended matter taken on board a ship to control trim, list, draught, stability or stresses of the ship." Ballast is an essential part of maintaining a vessel's safe operation and is vital to most cargo loading and unloading activities. Ballast water contains live marine organisms that, if untreated, may create a risk of exotic colonies becoming established when released into Australian seas. This has the potential to damage Australia's marine environment and adversely affect related industries. This term is used in Chapter 5 which specifies ballast water management requirements in order to implement the majority of the Ballast Water Convention and manage biosecurity risks associated with ballast water. Chapter 5, however, does not generally apply to permanent ballast water in sealed tanks (see clause 265). Ballast Water Convention This definition provides that `Ballast Water Convention' refers to the International Convention for the Control and Management of Ships' Ballast Water and Sediments 2004. The Convention is not yet in force, however Chapter 5 is intended to ensure that Australia has a regulatory framework for ballast water management in place to enforce its obligations under the Convention when it comes into effect. ballast water exchange `Ballast water exchange' refers to when ballast water in the tank of a vessel is discharged and replaced by refilling the ballast water tank. See also acceptable ballast water exchange. ballast water management This definition provides that `ballast water management' has the same meaning as in the Ballast Water Convention which currently provides: "Mechanical, physical, chemical, and biological processes, either singularly or in combination, to remove, render harmless, or avoid the update or discharge of Harmful Aquatic Organisms and Pathogens within Ballast Water and Sediments." Chapter 5 is intended to ensure that Australia has a regulatory framework for ballast water management in place to enforce its obligations under the Ballast Water Convention, including the requirement for vessels to keep appropriate ballast water records. Ballast water that has not been managed in accordance with the requirements set out in Chapter 5 will be considered an unacceptable biosecurity risk and it will be an offence to discharge such ballast water. ballast water management certificate This definition provides that a `ballast water management certificate' has the meaning given by clause 288 and is a document which certifies that a vessel, and any equipment on the vessel, can manage the vessel's ballast water in accordance with its ballast water management plan. Chapter 5 provides that Australian vessels need to be surveyed when requested by the Director of Biosecurity or at a time specified in the regulations in order to keep a valid certificate. Clause 288 outlines items that the certificate certifies in relation to both Australian vessels and foreign vessels, and who the certificate must be issued or endorsed by. A ballast water management certificate must be in place in order for a vessel to maintain appropriate ballast water records. 109

ballast water management plan This definition provides that a `ballast water management plan' is a document that outlines the ballast water management methods used by a vessel as well as the disposal of sediments. A ballast water management plan must be in place in order for a vessel to have appropriate ballast water records. See clause 286 for further information. ballast water operation This definition provides that `ballast water operation' refers to when ballast water is taken up into a vessel or discharged from a vessel (whether deliberately, accidently or part of a ballast water exchange), or treated or circulated on a vessel for the purposes of ballast water management. This term is used in Chapter 5 in relation to ballast water management. ballast water reception facility This definition provides that `ballast water reception facility' refers to a facility in Australian territory that has been approved by the Director of Biosecurity under clause 278 to receive ballast water for treatment or disposal. This term is used in Chapter 5 in relation to ballast water management. ballast water record system This definition provides that `ballast water record system' refers to a system for making and keeping records of a vessel's ballast water and ballast water operations in order to manage biosecurity risks associated with ballast water. This term is used in Chapter 5 in relation to ballast water management. See also appropriate ballast water records. Biodiversity Convention This definition provides that `Biodiversity Convention' refers to the Convention on Biological Diversity 1992, done at Rio de Janeiro on 5 June 1992, as amended and in force for Australia from time to time. This term is used in relation to the application of this Bill in relation to invasive pests (clause 25). biosecurity activities This definition provides that `biosecurity activities' has the meaning given by clause 403 which refers to activities carried out under an approved arrangement to manage biosecurity risks associated with goods, premises or other things. For example, the treatment of goods under an approved arrangement to manage biosecurity risk associated with those goods would be considered a biosecurity activity. See also Chapter 7 for further details. biosecurity activity zone This definition provides that a `biosecurity activity zone' has the meaning given by subclause 393(1) and is a zone that may be determined by the Director of Biosecurity to manage biosecurity risks in relation to an area in Australian territory where powers are exercised or functions or duties are performed by, or on behalf of, the Commonwealth under this Bill. It is intended that this zone will be used in relation to premises where an approved arrangement is in place or where a Commonwealth facility manages biosecurity risks. The Director may only make a biosecurity activity zone determination if satisfied it is necessary to manage biosecurity risks posed by the exercise of powers or performance of functions under the Bill in the area. A biosecurity activity zone is ongoing and will remain in force until the determination is revoked. See Part 7 of Chapter 6 for further details. 110

biosecurity activity zone determination This definition provides that a `biosecurity activity zone determination' means a determination made under subclause 393(1) by the Director of Biosecurity. A zone determination will set out the powers available in a biosecurity activity zone, which may include: the power to cause the biosecurity activity zone to be identified by affixing notices or by markings or otherwise the power to cause goods or premises in the biosecurity activity zone to be identified by affixing notices or by markings or otherwise the power to direct a person in the biosecurity activity zone to leave the biosecurity activity zone for a specified period (which must not be longer than 24 hours) powers in relation to entry and exit requirement (clause 331), and any other power prescribed by the regulations. As this type of zone is determined in relation to premises where powers or functions are performed under the Act (on, or on behalf of, the Commonwealth) consent or a warrant will not be required to enter premises in the area specified in the determination. See Part 7 of Chapter 6 for further details. biosecurity control notice This definition provides that a `biosecurity control notice' is a notice (in the form approved by the Director of Biosecurity) which may be affixed to goods or conveyances that are subject to biosecurity control and states that goods or conveyances are subject to biosecurity control. See clauses 126 and 202 for further details. biosecurity control order This definition provides that a `biosecurity control order' (BCO) is an order that may be made by the Director of Biosecurity under clause 351 to manage an unacceptable level of biosecurity risk in relation to goods or premises. For a BCO to be made by the Director of Biosecurity under clause 351, a biosecurity officer must suspect on reasonable grounds that a disease or pest may be present in or on goods or premises, that the disease or pest poses an unacceptable level of biosecurity risk, and that biosecurity measures are needed to reduce the biosecurity risk posed by the disease or pest to an acceptable level. The BCO will specify the biosecurity measures that a biosecurity officer may take to manage the identified biosecurity risk, such as treatment of goods or premises, or specifying entry and exit requirements in relation to premises. If a biosecurity risk is present over an area rather than in relation to particular goods or premises, it is intended that the biosecurity risk would instead be managed by determining a biosecurity response zone in relation to the area. biosecurity control order warrant This definition provides that a `biosecurity control order warrant' refers to a warrant issued as a result of the test in table item 2 of the table in clause 511 being met. Biosecurity control order warrants may be issued by an issuing officer if the officer is reasonably satisfied that the test in clause 511 is met. it is reasonably necessary for one or more biosecurity officers or a biosecurity enforcement officers to enter the premises (without consent of the owner or occupier) in relation to which a biosecurity control order made under 351 is in force to exercise powers for the purpose of managing the biosecurity risk posed by the pest or disease. 111

A biosecurity officer must have reasonable grounds to suspect a disease or pest is present on or in the premises that poses an unacceptable level of biosecurity risk for a warrant to be issued. A biosecurity control order warrant may only be applied for by a biosecurity enforcement officer, however the warrant may authorise one or more biosecurity officers along with one or more biosecurity enforcement officers to access the premises. biosecurity emergency This definition provides that a `biosecurity emergency' refers to an emergency that is declared to exist under clause 441(1). The biosecurity emergency provisions in Chapter 8 outline the powers and provisions relating to biosecurity emergency declarations and the management of associated biosecurity risks. The emergency powers in the Bill are intended to be used in circumstances where the scale and significance of an emergency requires management at a national level, such as a severe and widespread outbreak of foot and mouth disease that affects multiple Australian states. See Chapter 8 for further details. biosecurity emergency declaration This definition provides that `biosecurity emergency declaration' refers to a declaration of a biosecurity emergency made by the Governor-General under subclause 441(1). A biosecurity emergency declaration will specify the disease or pest that the declaration relates to, the nature of the biosecurity emergency and the conditions that gave rise to it and the period during which the declaration is in force (see subclause 441(3)). biosecurity emergency period This definition provides that a `biosecurity emergency period' refers to the period of time during which a biosecurity emergency declaration is in force under subclause 441(3). biosecurity enforcement officer This definition provides that `biosecurity enforcement officer' (BEO) refers to an officer authorised by the Director of Biosecurity under clause 584. A BEO will have specific powers additional to those of a biosecurity officer. For example a BEO may apply to an issuing officer for a warrant to enter premises under the Bill under Chapter 10. BEOs will be trained in entering premises as well as how to appropriately use force against things. biosecurity entry point See the note to clause 12 below for the meaning of biosecurity entry point. biosecurity industry participant See the note to clause 13 below for the meaning of biosecurity industry participant. biosecurity measures This definition provides that `biosecurity measures' refers to measures to manage any of the following: biosecurity risks the risk of contagion of a listed human disease the risk of listed human diseases: - entering Australian territory or a part of Australian territory or - emerging, establishing themselves or spreading in Australian territory or a part of Australian territory. biosecurity emergencies and human biosecurity emergencies. 112

Biosecurity measures may be required under a number of provisions of the Bill (e.g. clauses 58, 128, 204, and 333) in order to manage biosecurity risks associated with people, goods, conveyances or premises. Biosecurity measures available in relation to people include, but are not limited to, decontamination, examination, vaccination, treatment, medication or isolation. Biosecurity measures available under the Bill in relation to goods, conveyances and premises include, but are not limited to, movement, requiring samples, treatment, exportation or destruction. Applying biosecurity measures is a key concept in relation to managing biosecurity risks (to meet the objects of the Act) and in relation to reducing biosecurity risk to an acceptable level in order to meet Australia's ALOP. biosecurity monitoring zone This definition provides that `biosecurity monitoring zone' means either a permanent or a temporary biosecurity monitoring zone. Biosecurity monitoring zones are in place to monitor whether a pest or disease that may pose an unacceptable level of biosecurity risk has or is likely to enter, emerge, establish or spread in an area. This may be done, for example by setting up insect traps or other equipment. The Bill provides for biosecurity monitoring zones in Chapter 6. biosecurity monitoring zone warrant This definition provides that `biosecurity monitoring zone warrant' refers to a warrant issued as a result of the test in table item 4 of the table in clause 511 being met. A biosecurity monitoring zone warrant may be issued if entry to premises (without consent of the owner or occupier) is necessary in a biosecurity monitoring zone (see clause 511 for further details). A biosecurity monitoring zone warrant may only be applied for by a biosecurity enforcement officer. biosecurity officer This definition provides that `biosecurity officer' means a person authorised under clause 583 of this Bill. Biosecurity officers will be the main personnel performing functions and exercising powers under this Bill. Biosecurity enforcement officers will also be authorised under this Bill and will have additional powers in relation to enforcement and compliance. biosecurity official This definition provides that `biosecurity official' is a term used to mean any of the following officers--biosecurity officer, biosecurity enforcement officer or the Director of Biosecurity. biosecurity response zone Subclause 363(1) sets out the criteria that must be satisfied for a biosecurity response zone to be determined. A `biosecurity response zone' is a zone that may be determined by the Director of Biosecurity in order to manage biosecurity risks where risks have been identified over a specified area. The Director may make a biosecurity response zone determination if the Director is satisfied that a disease or pest is present and it is necessary for the purpose of managing the biosecurity risk posed by a disease or pest. A biosecurity response zone may be declared, for example, where a biosecurity risk may have a major impact on an industry or community or has a high potential of spreading to other areas. If the biosecurity risk is not present over a large area, the risk may instead be dealt with by making a biosecurity control order in relation to goods or premises. An area may also be determined to be a biosecurity response zone under Part 5 of Chapter 6 during a biosecurity emergency period (see clause 463). 113

biosecurity response zone determination This definition provides that a `biosecurity response zone determination' is a determination made by the Director of Biosecurity under clause 363(1) that a specified area is a biosecurity response zone. Clause 364(1) specifies the content required to be included in a biosecurity response zone determination, including the powers that may be exercised in a response zone. These powers may include treatment or destruction of goods or premises which pose a biosecurity risk, and setting entry or exit requirements to the affected properties (for example, requiring people to undertake decontamination before exiting the zone). biosecurity response zone warrant This definition provides that `biosecurity response zone warrant' refers to a warrant issued as a result of the test in table item 3 of the table in clause 511 being met. Biosecurity response zone warrants may be issued if entry to premises (without consent of the owner or occupier) is necessary in a biosecurity response zone (see clause 511 for further details). A response zone warrant may only be applied for by a biosecurity enforcement officer. biosecurity risk This definition provides that `biosecurity risk' (except as provided by clause 309) means: the likelihood of a disease or pest: - entering Australian territory or a part of Australian territory or - establishing itself or spreading in Australian territory or a part of Australian territory and the potential for any of the following: - the disease or pest to cause harm to human, animal or plant health - the disease or pest to cause harm to the environment - economic consequences associated with the entry, establishment or spread of the disease or pest. Biosecurity risk is a core concept in the Bill and draws on and is consistent with Australia's obligations under the SPS Agreement. See also clause 309 for the modified definition of `biosecurity risk' in relation to the Chapter 6. biosecurity risk assessment warrant This definition provides that `biosecurity risk assessment warrant' refers to a warrant issued as a result of the test in table item 1 of the table in clause 511 being met. Biosecurity risk assessment warrants may be issued if entry to premises (without consent of the owner or occupier) is necessary in order to assess biosecurity risks associated with goods or premises. Biosecurity risk assessment warrants may not be issued in relation to goods or conveyances which are subject to biosecurity control or goods in relation to which an exposed goods order is in force (see clause 311 for the application of Chapter 6). A biosecurity risk assessment warrant may only be exercised by a biosecurity enforcement officer. BIRA (short for Biosecurity Import Risk Analysis) This definition provides that `Biosecurity Import Risk Analysis' (BIRA) has the meaning given by clause 163, which outlines that it is a risk analysis that may be conducted in order to evaluate the level of biosecurity risks associated with the import or proposed import of goods into Australian territory. BIRAs may identify conditions that must be met to manage the level of biosecurity risks associated with the goods to a level that achieves Australia's 114

Appropriate Level of Protection (ALOP). Clause 164 provides that a BIRA is conducted by the Director of Biosecurity. See Part 2 of Chapter 3 for further details on the BIRA process. chargeable activity This definition provides that `chargeable activity' has the meaning given by subclause 628(1), The regulations may prescribe fees that may be charged in relation to chargeable activities carried out by, or on behalf of, the Commonwealth in performing functions and exercising powers under the Bill. chief human biosecurity officer This definition provides that a `chief human biosecurity officer' is a medical practitioner employed by a state or territory body that has been appointed by the Director of Human Biosecurity to exercise powers and perform functions under this Bill. child This definition provides that a `child' is a person less than 18 years old. Christmas Island This definition provides that `Christmas Island' means the Territory of Christmas Island which is an external territory to which this Bill applies (see clause 7 for the application of this Bill in relation to external territories). civil penalty order This definition provides that a `civil penalty order' is an order for a person to pay the Commonwealth a pecuniary penalty for contravention of a civil penalty provision of the Bill. Clause 535 provides that the Director of Biosecurity or the Director of Human Biosecurity may apply to a relevant court for an order in relation to a person who is alleged to have contravened a civil penalty provision of this Bill. The penalty for a body corporate is five times the penalty of a person. civil penalty provision This definition provides that a `civil penalty provision' is a provision of this Bill (where the provision is a subsection or a section that is not divided into subsections or a subregulation or a regulation that is not divided into subregulations) made under the Bill) that sets out at its foot a pecuniary penalty, or penalties, indicated by the words `civil penalty'. Civil penalties can be applied to a variety of contraventions of the Act, and have been included in addition to criminal offences with the intention of providing flexibility to take action where non- compliance has been identified. The Director of Biosecurity or the Director of Human Biosecurity may apply to a relevant court for a civil penalty order where a person contravenes a civil penalty provision. coastal sea of Australia or an external Territory This definition provides that `coastal sea' of Australia or an external territory has the same meaning as in subsection 15B(4) of the Acts Interpretation Act 1901, which currently provides: "the territorial sea of Australia, and the sea on the landward side of the territorial sea of Australia and not within the limits of a State or internal Territory, and includes the airspace over, and the sea-bed and subsoil beneath, any such sea." 115

This definition provides that `coastal sea' of an external territory has the same meaning as in subsection 15B(4) of the Acts Interpretation Act 1901, which currently provides: "the territorial sea adjacent to the Territory, and the sea on the landward side of the territorial sea adjacent to the Territory and not within the limits of the Territory, and includes the airspace over, and the sea-bed and subsoil beneath, any such sea." This term is used in the definition of Australian territory (clause 11). Cocos (Keeling) Islands This definition provides that Cocos (Keeling) Islands means the Territory of Cocos (Keeling) Islands. The Cocos (Keeling) Islands are an external territory to which this Bill applies (see clause 7 for the application of this Bill in relation to external territories). commercial-in-confidence This definition provides that the term `commercial-in-confidence' has the meaning given in clause 14. This clause outlines the criteria that must be demonstrated to the Director of Biosecurity for information to be classified as `commercial-in-confidence'. See 14 for further details. Commonwealth body This definition provides that the term `Commonwealth body' includes a Department of State, or an authority, of the Commonwealth. This term is used in Chapter 13 in relation to disclosure of protected information (see clause 616). competent authority This definition provides that a `competent authority' is the authorised body of a member state that is responsible for implementing the International Health Regulations. conditionally non-prohibited goods This definition provides that `conditionally non-prohibited goods' has the meaning given by subclause 171(2), which provides that conditionally non-prohibited goods are goods, or classes of goods, specified in a determination in force under subclause 171(1). The Director of Biosecurity and the Director of Human Biosecurity may jointly determine that that specified goods, or a specified class of goods, must not be brought or imported into Australian territory unless specified conditions (including conditions for administrative purposes) are complied with. For example, the Director may prohibit certain wood products from being brought in or imported unless the products undergo treatment such as fumigation. See clause 171 for further details. constitutional trade and commerce This definition provides that `constitutional trade and commerce' means trade or commerce between Australia and places outside Australia, trade or commerce among states, or trade or commerce within a territory, between a state and territory or between two territories. The definition reflects the extent of the Commonwealth's legislative power to regulate trade and commerce in reliance on section 51(i) and section 122 of the Constitution. The term is used in Division 2 of this Chapter in relation to clause 23 (severability). 116

conveyance This definition provides that `conveyance' has the meaning given by clause 15. Clause 15 provides that conveyance means any vessel, aircraft, vehicle, or train (including railway rolling stock). The regulations may prescribe additional means of transport for the purpose of this definition, which is intended to allow for new developments in transport methods into the future. Chapter 4 provides for the management of biosecurity risks associated with conveyances in Australian territory. conveyance possession warrant This definition provides that a `conveyance possession warrant' means a warrant issued as a result of the test in item 8 of the table in clause 511 being met. That is, a conveyance possession warrant can only be issued where: a person has not complied with a request of a biosecurity officer under subclause 208(4) within a specified time period a person has not complied with a request of a biosecurity officer under subclause 336(4) within a specified time period a notice has been provided to the owner or the operator of the conveyance under subclauses 209(3) or 341(3), or a certificate in relation to the conveyance has been issued under clauses 209(4)(b) or 341(4)(b). covered by, in relation to an approved arrangement See clause 13 for the meaning of `covered by', in relation to an approved arrangement. damage, in relation to data This definition provides that `damage' in relation to data includes damage by erasure of data or addition of other data. Clause 533 provides that the Commonwealth is liable to pay compensation for damage to electronic equipment, including damage to data recorded on the equipment, where the damage occurred because insufficient care was exercised in selecting the person who was to operate the equipment or insufficient care was exercised by the person operating the equipment (see clause 533 for further information). declaration disease or pest, in relation to a biosecurity emergency declaration and a biosecurity emergency period This definition provides that `declaration disease or pest' means the disease or pest specified under paragraph 441(3)(a) (the disease or pest to which the declaration relates) in the biosecurity emergency declaration that specifies the biosecurity emergency period. See Chapter 8 for further details. declaration listed human disease, in relation to a human biosecurity emergency declaration and a human biosecurity emergency period This definition provides that `declaration listed human disease' means the listed human disease specified under paragraph 473(3)(a) (the listed human disease to which the declaration relates) in the human biosecurity emergency declaration that specifies the human biosecurity emergency period. See Chapter 8 for further details. Director of Biosecurity This definition provides that `Director of Biosecurity' refers to the person who is, or is acting as, the Agriculture Secretary, as specified in subclause 578(1). The Director has specified 117

powers and functions under the Bill, including a power of general administration. Chapter 12 outlines who the Director of Biosecurity may delegate his or her powers to. Director of Human Biosecurity This definition provides that the `Director of Human Biosecurity' refers to the person appointed by the Health Minister as the Commonwealth Chief Medical Officer, as specified in subclause 582(1). disease This definition provides that `disease' refers to the signs or symptoms of an illness or infection caused by a disease agent, a collection of signs or symptoms that is clinically defined (for which the causal agent is unknown), or a disease agent that has the potential to cause an illness or infection (either directly or indirectly). This broad definition is intended to ensure the widest range of biosecurity risks and human health risks may be assessed and managed under this Bill. disease agent This definition provides that `disease agent' includes, but is not limited to, a microorganism, an infectious agent and a parasite. This definition is intended to clarify what is meant by disease agent in the definition of disease. enactment This definition provides that `enactment' means an Act of the Commonwealth, a state or a territory, as well as an instrument (including rules, regulations and by-laws) made under an Act of the Commonwealth, a state or a territory. engage in conduct This definition provides that `engage in conduct' means to do an act, or omit to perform an act. entry warrant This definition provides that `entry warrant' refers to any of the following warrants authorising entry to premises: a biosecurity risk assessment warrant a biosecurity control order warrant a biosecurity response zone warrant a biosecurity monitoring warrant a monitoring warrant an investigation warrant, and an adjacent premises warrant. environment This definition provides that `environment' includes ecosystems and their constituent parts, and natural and physical resources. `Environment' is a term used in the definitions of biosecurity risk and pest. This broad definition is intended to ensure that biosecurity risks and pests may be assessed and managed in the widest possible range of circumstances. evidential burden This definition provides that `evidential burden' in relation to a matter means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists 118

or does not exist. For example, a person who bears the evidential burden in relation to adducing evidence that he or she received prohibited goods through legal means under clause 188, it means that he or she must adduce evidence that suggests the reasonable possibility that the goods were received through legal means--for example the purchase receipt for the goods from a retailer in Australian territory. evidential material This definition provides that `evidential material' refers to material which is, is suspected to be, or may be in the future, evidence of an offence committed in relation to the Act (or an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act), or material that is evidence that a civil penalty provision of the Act that has been contravened. This term is used in Chapters 9, 10 and 11. exposed conveyance This definition provides that `exposed conveyance' means an exposed conveyance within the meaning of subclause 192(2) or (3). That is, an exposed conveyance is a conveyance that becomes subject to biosecurity control when it is exposed to an aircraft or vessel that is subject to biosecurity control (other than those referred to in paragraph 192(1)(a)), or a conveyance that becomes subject to biosecurity control when it re-enters Australian territory (after being exposed to another conveyance outside of Australian territory) and is subject to paragraph 192(1)(b). exposed goods This definition provides that `exposed goods' has the meaning given by clause 156(3), which refers to goods (other than goods that are subject to biosecurity control) that are suspected by a biosecurity officer, on reasonable grounds, to have been exposed to goods or a conveyance that is or are subject to biosecurity control. exposed goods order This definition provides that an `exposed goods order' means an order made under subclause 157(3). For an exposed goods order to be made under subclause 157(3), a biosecurity officer must suspect, on reasonable grounds, that there is an unacceptable level of biosecurity risk associated goods that have been exposed to goods or a conveyance that is subject to biosecurity control. An exposed goods order allows a biosecurity officer to exercise the powers in Divisions 4, 5, 6, 7, 8 and 10 of Chapter 3 in relation to the exposed goods in the same way the officer would exercise those powers in relation to goods that are subject to biosecurity control. Clause 157 sets out where goods must be to enable a biosecurity officer to make an exposed goods order in relation to them. The goods must be: within the precincts of a landing place or port, on board a conveyance that is subject to biosecurity control on premises owned or controlled by the Commonwealth where biosecurity measures can be taken for the purposes of managing biosecurity risks, or on premises where biosecurity activities are carried out by a biosecurity industry participant (BIP) in accordance with an approved arrangement covering the BIP. An exposed goods order ceases to be in force if when the order expires or is revoked, or if the goods are released from biosecurity control under Division 9 of Chapter 3. exposed to See clause 16 for the meaning of `exposed to'. 119

Federal Circuit Court This definition provides that `Federal Circuit Court' means the Federal Circuit Court of Australia. This term is used in the definition of relevant court. Federal Court This definition provides that a reference to the `Federal Court' is a reference to the Federal Court of Australia. This term is used in the definition of relevant court. Finance Minister This definition provides that `Finance Minister' means the Minister administering the Financial Management and Accountability Act 1997. This term is used in clause 629. first point of entry See clause 17 for the meaning of `first point of entry'. Foreign Affairs Department This definition provides that `Foreign Affairs Department' refers to the Department administered by the Minister administering the Diplomatic Privileges and Immunities Act 1967. The Foreign Affairs Department is specified in clause 96 as one of the departments that the Director of Human Biosecurity must notify if a traveller movement measure is included in a human biosecurity control order. foreign vessel This definition provides that `foreign vessel' refers to a vessel that is not an Australian vessel. The term is used in Chapter 5 in relation to ballast water management. goods See clause 18 for the meaning of `goods'. harbour This definition outlines that `harbour', for the purposes of the definition of port, includes: a navigable estuary, river, creek or channel a haven, roadstead, dock pier or jetty, or any other place in or at which vessels can obtain shelter or load and unload goods or embark and disembark passengers. This definition is based upon the definition of `harbour' in the Navigation Act 2012. This is to ensure consistency with other Commonwealth legislation to the extent possible while meeting the needs of the Biosecurity Bill. The definition of harbour is used in Chapter 4 in relation to a first point of entry. Health Department This definition provides that `Health Department' refers to the department administered by the Health Minister. Health Minister This definition provides that `Health Minister' is the Minister that administers the National Health Act 1953. 120

Health Secretary This definition provides that `Health Secretary' means the Secretary of the Health Department. high-value conveyance This definition provides that a conveyance is considered to be a `high-value conveyance' if it is of a value greater than the amount prescribed by the regulations for the purpose of this definition. Certain powers in Chapter 4 and Chapter 6 that relate to high-value conveyances are only available to biosecurity officers with the written approval of the Director of Biosecurity. For example, clause 207 provides that a biosecurity officer may require a conveyance which poses an unacceptable biosecurity risk to be treated, however an officer must receive written approval from the Director of Biosecurity in order to require treatment that may damage a high-value conveyance. This differentiation is intended to ensure that the Director of Biosecurity (or a delegate) makes decisions that relate to high-value conveyances while still providing operational practicality for biosecurity officers to require the treatment of a conveyance (other than high-value conveyances) where necessary. high-value goods This definition provides that goods are considered `high-value goods' if the goods are of a value greater than the amount prescribed by the regulations for the purpose of this definition. Certain powers in Chapter 3 and Chapter 6 that relate to high-value goods are only available to biosecurity officers with the written approval of the Director of Biosecurity. For example, clause 133 provides that a biosecurity officer may require goods (other than high-value goods) which pose a biosecurity risk to be destroyed, however an officer must receive written approval from the Director of Biosecurity in order to destroy high-value goods. This differentiation is intended to ensure that the Director of Biosecurity (or his or her delegate) makes decisions that relate to high-value goods while still providing operational practicality for biosecurity officers to require treatment or destruction of goods (other than high-value goods) where necessary. human biosecurity control order This definition provides that a `human biosecurity control order' is an order that is imposed on an individual under clause 58 that may have a listed human disease. This order applies measures to be used to control the risks posed by serious communicable diseases. human biosecurity emergency This definition provides that a `human biosecurity emergency' refers to an emergency that is declared to exist under subclause 473(1) or (2). The human biosecurity emergency provisions in Chapter 8 outline the powers and provisions relating to human biosecurity emergency declarations and the management of associated human biosecurity risks. The emergency powers in the Bill are intended to be used in circumstances where the scale and significance of an emergency requires management at a national level. See Chapter 8 for further details. human biosecurity emergency declaration This definition that `human biosecurity emergency declaration' refers to a declaration of a human biosecurity emergency made by the Governor-General under subclause 473(1) or (2). A human biosecurity emergency declaration will specify the listed disease the declaration 121

relates to, the nature of the human biosecurity emergency and the conditions that gave rise to it and the period during which the declaration is in force. human biosecurity emergency period This definition provides that a `human biosecurity emergency period' refers to the period of time during which a human biosecurity emergency declaration is in force. human biosecurity officer This definition provides that a `human biosecurity officer' is an employee of a state or territory body with clinical expertise that has been appointed by the Director of Human Biosecurity to exercise powers and perform functions under this Bill. human disease This definition provides that a `human disease' is a pest or disease that has the potential to enter, emerge, establish itself or spread in Australia and cause harm to human health. human health response zone This definition provides that a `human health response zone' is a specified area that has been established to prevent or reduce the risk of a disease from entering, emerging, establishing itself or spreading in Australia and causing harm to human health. human health risk This definition provides that a `human health risk' is the potential risk of a pest or disease entering, emerging, establishing itself or spreading in Australia and causing harm to human health. human remains This definition provides that `human remains' are the remains of all or any part of the body of a deceased human, but does not include cremated remains. Immigration Department This definition provides that `Immigration Department' refers to the department administered by the minister administering the Migration Act 1958. The Immigration Department is specified in clause 96 as one of the departments that the Director of Human Biosecurity must notify if a traveller movement measure is included in a human biosecurity control order. import, in relation to goods This definition provides that `import' in relation to goods, does not include unloading the goods for temporary purposes only (for example, to unload other goods). This term is used in Chapter 3 in a number of contexts, including provisions that outline the requirement to obtain a permit to bring or import certain goods into Australian territory (see Division 3 of Chapter 3). The Bill also refers to goods being `brought in' to Australian territory--this term is similar to `import' however it also captures goods which are brought in for temporary purposes, such as goods that are on board a conveyance but are not unloaded in Australian territory (for example, ship stores), or goods that are transported by land from the port or landing place of arrival in Australia to another port or landing place in Australia on the way to a final destination outside of Australian territory. 122

incapable person This definition provides that an `incapable person' is a person aged 18 or older, that is not capable of understanding requirements imposed under a human biosecurity control order, or is not able to indicate their consent to a measure imposed under a human biosecurity control order. This includes individuals that are incapable due to permanent disability or temporary illness. incoming aircraft or vessel This definition provides that `incoming aircraft or vessel' means an aircraft or vessel that has entered Australian territory during a flight or voyage that commenced outside Australian territory, and intends to arrive (or has arrived) at a landing place or port in Australian territory. This term is used in Chapter 4. incoming passenger aircraft or vessel This definition provides that an `incoming passenger aircraft or vessel' is an aircraft carrying six or more passengers, or a vessel carrying twelve or more passengers, that is entering Australia. infringement notice provision This definition provides that `infringement notice provision' has the meaning given by clause 556, which provides that the regulations may specify a provision to be an infringement notice provision. The infringement notice scheme may be used to encourage compliance in situations where there is a high volume of low risk non-compliance with the Act. The infringement notice scheme may apply to civil penalty provisions or strict liability criminal sanctions in the Act and can be used where the non-compliance does not require an assessment of fault. For example, an infringement notice could be issued for failing to: comply with reporting obligations respond to a notice, or provide requested information. A person issued with an infringement notice will have the option of paying the amount specified in the notice as an alternative to court proceedings being brought against them. installation This definition provides that `installation' has the meaning provided by clause 19. That is, an installation is a structure that can float and be moved, is used in exploring or exploiting natural resources (or related operations or activities) with equipment that is on or a part of the structure, and is either attached to or resting on the seabed, or attached to a structure attached to or resting on the seabed. The definition of a vessel includes an installation for the purposes of the Bill. See the note to clause 19 for further details. internal waters of Australia This definition provides that `internal waters of Australia' has the same meaning as in section 10 of the Seas and Submerged Lands Act 1973, where it is defined as `any waters of the sea on the landward side of the baseline of the territorial sea', and to avoid doubt, includes waters within the limits of a state. This term is used in the definition of Australian seas. 123

International Health Regulations This definition provides that `International Health Regulations' are the regulations prepared by the World Health Organization to prevent and respond to the international spread of communicable disease. international mail centre This definition provides that `international mail centre' refers to a place approved by the Chief Executive Officer of Customs under section (f) of the definition of `Customs place' in subsection 183UA(1) of the Customs Act 1901. Chapter 6 provides that a permanent biosecurity monitoring zone will be in place around all international mail centres (see clause 376). invasive pest This definition provides that `invasive pest' refers to a pest that is an alien species within the meaning of the Biodiversity Convention that is not capable of infesting humans, animals or plants; acting as a vector for a disease; or causing disease in any other way. This definition is intended to capture invasive pests such as lantana or bitou bush that may cause harm to human, animal or plant health or the environment (by, for example, affecting plant communities or water catchments) although they do not cause harm through infesting humans, animals or plants, or acting as a vector for or cause of disease. See clauses 24 and 25 for the application of this Bill in relation to invasive pests. Article 8(h) of the Biodiversity Convention imposes an obligation to 'prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species'. The Guiding Principles in relation to article 8(h), adopted by the Conference of the Parties to the Biodiversity Convention (COP 6 Decision VI/23), define 'alien species' as referring to a species, subspecies or lower taxon, introduced outside its natural past or present distribution. Therefore, an 'alien species', for the purposes of the Convention and also this definition, can include species that are not native to a particular part of Australia, as well as species that are not native to Australia as a whole. investigation powers This definition provides that `investigation powers' has the meaning given by clauses 486, 487 and 489 which allow biosecurity enforcement officers to gather evidential material that relates to the contravention of offences and civil penalty provisions in the Bill. A biosecurity enforcement officer may enter premises (with consent of the owner or under an investigation warrant), and exercise investigation powers if the officer has reasonable grounds for suspecting that there may be evidential material on any. Investigation powers include: the power to search premises and any thing on the premises for the evidential material the power to inspect, examine, take measurements of or conduct tests on evidential material the power to make any still or moving image or any recording of the premises or evidential material the power to take onto the premises equipment and materials required for the purpose of exercising powers in relation to the premises the power to sample any thing on the premises; the power to operate electronic equipment on premises if entry to the premises is under an investigation warrant: 124

- the power to search the premises and any thing on the premises for the kind of evidential material specified in the warrant; and - the power to seize evidential material of that kind if the biosecurity enforcement officer finds it on the premises. investigation warrant This definition provides that `investigation warrant' means a warrant issued as a result of the test in table item 6 of the table in clause 511 being met. An investigation warrant may be issued if entry to premises (without consent of the owner or occupier of the premises) is necessary in order to obtain evidential material in relation to contravention of a provision of the Bill. An investigation warrant may only be exercised by a biosecurity enforcement officer. isolation measure This definition provides that `isolation measure' refers to a measure applied in a human biosecurity control order. This measure requires an individual to remain isolated in a specified medical facility to prevent other members of the community from being exposed to a listed human disease. issuing officer This definition provides that `issuing officer' refers to a magistrate, or Judge of the Federal Court or the Federal Circuit Court who has the power to issue a warrant under this Bill. It is intended that warrants provided for in Chapter 10 will be issued to allow entry to premises (including conveyances) under this Bill for the purposes of assessing or managing biosecurity risks, or monitoring or investigating compliance with the Act. See clause 532 for conferral of powers on an issuing officer. just terms This definition provides that `just terms' has the same meaning as in section 51(xxxi) of the Constitution, which currently provides: "the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws" The term is used in this Bill in relation to acquisition of property. landing place, in relation to aircraft This definition provides that `landing place' means any place where an aircraft can land, including an area of land or water, or an area on a building or a vessel. The term is used in Chapter 4 to outline where aircraft that are subject to biosecurity control can and cannot land. See also first points of entry. late payment fee This definition provides that a `late payment fee' has the meaning given by clause 630, which is an additional fee that is payable if a basic fee that is due and payable under the regulations is not paid at or before the time specified in the regulations. life-threatening situation This definition provides that, in relation to the execution of an investigation warrant in relation to premises, `life-threatening situation' means a situation that a biosecurity officer or a biosecurity enforcement officer believes, on reasonable grounds, involves a serious and imminent threat to a person's life, health or safety that requires the officer to leave the premises. This definition is important in determining when an officer, or person assisting the 125

officer, may complete the execution of an investigation warrant after temporary cessation, under clause 522. listed human disease This definition provides that `listed human disease' refers to a human disease that is communicable and may cause serious harm to human health. managed for discharge This definition provides that `managed for discharge' refers to ballast water that has met the ballast water management requirements set out in Chapter 5. See clauses 271 and 275 for further details. medical facility This definition provides that `medical facility' refers to a place where ill individuals are assessed and provided with health care. This includes permanent facilities such as hospitals and clinics, and may also include facilities that are temporarily designated for this purpose. monitoring powers This definition provides that `monitoring powers' has the meaning given by clauses 480, 481 and 483, which allow biosecurity enforcement officers to monitor whether the Act is, or has been, complied with and whether information provided for the purposes of this Act is correct. Chapter 9 provides that where a biosecurity enforcement officer has entered premises (with consent of the owner or under a monitoring warrant), he or she may exercise monitoring powers to monitor compliance with the Act and to determine whether information provided for the purposes of the Act is correct. Monitoring powers include: the power to search premises and any thing on the premises the power to observe any activity conducted on the premises the power to inspect, examine, take measurements of or conduct tests on any thing on the premises the power to make any still or moving image or any recording of the premises or any thing on the premises the power to inspect any document on the premises and take extracts from, or make copies of such document the power to take onto the premises equipment and materials require for the purpose of exercising powers in relation to the premises the power to sample any thing on the premises, and the power to operate electronic equipment on premises. monitoring warrant This definition provides that `monitoring warrant' means a warrant issued as a result of the test in table item 5 of the table in clause 511 being met. A monitoring warrant may be issued if entry to premises (without consent of the owner or occupier of the premises) is necessary in order to monitor whether the Act is, or has been, complied with or whether information provided for the purposes of the Act is correct. A monitoring warrant may only be exercised by a biosecurity enforcement officer. 126

National Focal Point This definition provides that `National Focal Point' refers to the designated point of contact for the sharing of information with other States party to the International Health Regulations, as specified in the National Health Security Act 2007. national response agency This definition provides that `national response agency' refers to the Agriculture Department and all biosecurity officers and biosecurity enforcement officers, or a body that is declared to be a national response agency by the Agriculture Minister under clause 450. A national response agency may be declared to assist with the Commonwealth's response to a biosecurity emergency. It is intended that national response agencies will be used to direct people, staff biosecurity zones, close roads and assist with the application of biosecurity measures during a biosecurity emergency. During a biosecurity emergency period, the Agriculture Minister may delegate specified powers of the Agriculture Minister to the executive head of a national response agency including powers relating to determining requirements, giving directions and taking actions, asking questions and requiring documents. The executive heads of these agencies may further delegate specified powers to employees of that agency, including powers relating to giving directions and taking actions, asking questions and requiring documents. officer of Customs This definition provides that `officer of Customs' has the same meaning as in the Customs Act 1901. This term is used in Chapter 2. operator of a conveyance See clause 20 for the meaning of `operator' of a conveyance. outgoing aircraft or vessel This definition provides that `outgoing aircraft or vessel' refers to an aircraft or vessel that is departing from Australia. outgoing passenger aircraft or vessel This definition provides that `outgoing passenger aircraft or vessel' refers to an aircraft carrying six or more passengers, or a vessel carrying twelve or more passengers, that is departing from Australia. passenger This definition provides that `passenger' refers to an individual travelling on an aircraft or vessel, but does not include the crew of that aircraft or vessel. passenger aircraft This definition provides that `passenger aircraft' refers to an aircraft that can carry six or more passengers. passenger vessel This definition provides that `passenger vessel' refers to a vessel that can carry 12 or more passengers. 127

permanent biosecurity monitoring zone This definition provides that `permanent biosecurity monitoring zone' has the meaning given by clause 376 and refers to a biosecurity monitoring zone that is permanently in place within the permissible distance of the outer boundary of a first point of entry, an international mail centre, a biosecurity activity zone or any other place in Australian territory prescribed by the regulations. It is intended that permanent biosecurity monitoring zones will be used to monitor whether pests or diseases that may pose an unacceptable level of biosecurity risk have entered, or are likely to enter, emerge, establish or spread from places that are known to be subject to high traffic of goods or conveyances that are subject to biosecurity control. Powers available in a permanent biosecurity monitoring zone include: powers available to assess biosecurity risk in Chapter 3 the power to cause the biosecurity monitoring zone to be identified the power to cause goods or premises in the biosecurity monitoring zone to be identified the power to set traps or set up equipment or other structures in the zone, and any other power prescribed by the regulations in relation to permanent biosecurity monitoring zones. permissible distance This definition provides that `permissible distance' in relation to a permanent biosecurity monitoring zone is 400 metres, or greater if prescribed in the regulations for the purposes of this definition. permissible purpose This definition provides that `permissible purpose' means a purpose that promotes the objects of the Act (see clause 5). This term is used in provisions relating to confidentiality of information in Chapter 13. Personal and commercial-in-confidence information may be collected for a permissible purpose (e.g. through processing a permit application). Records may be made of that information and it may be disclosed or used for a permissible purpose in the exercise of powers or performance of functions under the Bill (e.g. to contacting the person who made the application about the application). personal information This definition provides that `personal information' has the same meaning as in section 6 of the Privacy Act 1988 which currently provides the meaning as: "Information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion." This term is used in provisions relating to confidentiality of information in Chapter 13. person assisting This definition provides that `person assisting' has the meaning given by clause 531. A biosecurity officer may be assisted by other persons in exercising powers and performing functions referred to in subclause 531(1) if that assistance is necessary and reasonable. Similarly, a biosecurity enforcement officer may be assisted by other persons in entering premises, and exercising powers and performing functions referred to in subclause 531(1), if that assistance is necessary and reasonable. A person giving such assistance to a biosecurity 128

officer or a biosecurity enforcement officer is a person assisting the officer. See 531 for further details. person in charge See clause 21 for the meaning of `person in charge'. person responsible for a conveyance This definition provides that a `person responsible for a conveyance 'means the owner of the conveyance, the person in charge of the conveyance or the operator of the conveyance. See clauses 20 and 21 for further details in relation to the meaning of the terms `person in charge of a conveyance' and `operator of a conveyance'. pest This definition provides that `pest' refers to a species, strain or biotype of a plant or animal, or a disease agent, that has the potential to cause, either directly or indirectly, harm to human, animal or plant health or the environment. This broad definition is intended to ensure that the widest range of biosecurity risks and human health risks may be assessed and managed under this Bill. See clauses 24 and 25 for the application of this Act in relation to pests, and also the definition of invasive pests. plant This definition provides that a reference to `plant' in this Bill includes a dead plant and any part of a plant. Chapter 3 provides that the Director of Biosecurity may prohibit (absolutely or subject to conditions) goods from being brought or imported into Australian territory. This may include prohibiting (absolutely or subject to conditions) or requiring a permit for the bringing in or importation of plants, parts of plants or plant products as they are included in the definition of goods under this Bill. port This definition provides that `port' includes a harbour. See the notes to harbour above for further information. possession warrant This definition provides that `possession warrant' refers to a premises possession warrant or a conveyance possession warrant that authorises the taking of possession of premises or conveyances. PPSA security interest This definition provides that a `PPSA security interest' means a security interest within the meaning of the Personal Property Securities Act 2009 and to which that Act applies (other than a transitional security interest within the meaning of that Act). This term is used in Chapter 13 in relation to the cost recovery provisions. The Personal Property Securities Act 2009 applies to certain security interests in person property. See section 8 (interests to which the Act does not apply), section 12 (meaning of security interest) and Chapter 9 (transitional provisions) of that Act. Further, see section 308 of the Personal Property Securities Act 2009 for the meaning of transitional security interest. 129

premises This definition provides that `premises' includes a structure, building or conveyance; a place (whether or not enclosed or built on), including a place situated underground or under water; or a part of either of the previous. This broad definition is intended to ensure that powers provided in the Bill are able to be exercised in the widest range of locations in order to manage biosecurity risk. Conveyances are included in the definition of premises in most of the Bill as the same policy that applies to premises generally applies to conveyances (see clauses 470 and 501 for examples of clauses where `premises' does not include a conveyance). premises possession warrant This definition provides that `premises possession warrant' refers to a warrant issued as a result of the test in item 9 of the table in clause 511 being met. A biosecurity enforcement officer may apply for a premises possession warrant where a biosecurity officer has requested under subclause 339(1) for the owner of premises to arrange for the premises to be dealt with or destroyed, and the request has not been complied with. Premises possession warrants will allow biosecurity officers to access to premises in order to manage biosecurity risks associated with the premises. prescribed contact information This definition provides that `prescribed contact information' refers to the contact information that is required to be provided by the operators of passenger aircraft and vessels, individuals that may be suffering from a listed human disease, or close personal contacts of individuals that may be suffering from a listed human disease. prescribed quarantine signal This definition provides that `prescribed quarantine signal' means the signal prescribed under subclause 223(2). Quarantine signals are internationally-recognised signals (e.g. flags or lights) on conveyances that indicate the state of health of the people on board. Quarantine signals are prescribed in this Bill in accordance with the International Code of Signals. It is intended that the requirements for how the quarantine signal is to be displayed will be covered in the regulations. prohibited goods This definition provides that `prohibited goods' has the meaning given by subclause 170(2) and refers to goods (or classes of goods) that the Director of Biosecurity and Director of Human Biosecurity have jointly determined are prohibited from being imported or brought into Australian territory. The Directors may only determine that goods are prohibited goods if satisfied that the level of biosecurity risk associated with the goods (or class of goods) is unacceptable and that biosecurity measures would not be able to be taken to reduce that level of biosecurity risk to an acceptable level. The Directors must apply the ALOP for Australia in conducting a risk assessment for the purpose of determining whether particular goods (or classes of goods) should be prohibited goods (see subclause 170(4)). protected information This definition provides that `protected information' refers to personal information, or information that is commercial-in-confidence that: 130

is obtained under, or in accordance with, this Act is derived from a record of personal information, or information that is commercial- in-confidence, that was made under, or in accordance with, this Act; or is derived from a disclosure or use of personal information, or information that is commercial-in-confidence, that was made under, or in accordance with, this Act. This term is used in provisions relating to confidentiality of information in Chapter 13 which outlines the circumstances that a person can record, disclose or otherwise use protected information for the purposes of the Bill (i.e. a permissible purpose) (see clauses 615 to 626). Also, see clause 14 for the meaning of commercial-in-confidence. protected person This definition provides that `protected person' has the meaning given by subclause 670(6) and refers to a person protected from civil proceedings under clause 670. Civil proceedings involve legal disputes between individuals based on one person claiming that the other has failed in his or her legal duty. Protection from civil proceedings is intended to allow those required under the Bill to make decisions and take action to manage biosecurity risk appropriately without the fear of being sued. This protection does not however extend to protection from criminal prosecution where a protected person is alleged to have committed an offence. Those protected under the Bill include a person who is or was the following: the Agriculture Minister the Health Minister the Director of Biosecurity the Director of Human Biosecurity a biosecurity officer a biosecurity enforcement officer a chief human biosecurity officer a human biosecurity officer an officer or employee of the Agriculture Department or the Health Department; a person who is authorised to perform functions and exercise powers under Chapter 8, and a person who is appointed as an analyst under clause 663. protected zone This definition provides that `protected zone' has the meaning given by clause 651 which is the zone established under Article 10 of the Torres Strait Treaty, being the area bounded by the line described in Annex 9 to the Treaty. protected zone area This definition provides that `protected zone area' has the meaning given by clause 651 which is the protected zone established under the Torres Strait Treaty, or an area in the vicinity of the protected zone prescribed in regulations made under clause 651. The area in the vicinity of the protected zone is included in the definition of this term to ensure that traditional inhabitants navigating protected zone vessels (which may not have access to accurate navigation equipment) are provided with a buffer zone in which they may travel while still being considered protected zone vessels. 131

protected zone vessel This definition provides that `protected zone vessel' has the meaning given by clause 651, which refers to a vessel that meets the conditions set out in that clause. Protected zone vessels are vessels that are used to transport traditional inhabitants in the protected zone. See clause 651 for further details of how Australia will meet its obligations under the Torres Strait Treaty in this Bill. related provision This definition provides that `related provision' refers to an offence against the Act, a civil penalty provision under the Act, or an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act. The term is used in Chapter 9 in relation to securing evidential material. release from biosecurity control This definition provides that `release from biosecurity control' refers to when goods and conveyances are no longer subject to biosecurity control. Clauses 160 and 221 provide that goods and conveyances are released from biosecurity control when: a biosecurity officer notifies the person in charge (or owner or operator in the case of a conveyance) that the goods or conveyance is released from biosecurity control a biosecurity industry participant who is authorised to release the goods or conveyance under an approved arrangement notifies the person in charge (or owner or operator in the case of a conveyance) that the goods or conveyance is released from biosecurity control the goods or conveyance are destroyed the goods or conveyance leave Australian territory. relevant court This definition provides that `relevant court' refers to the Federal Court, the Federal Circuit Court or a court of a state or territory that has jurisdiction in relation to matters arising under the Bill. relevant Director, in relation to a proposed arrangement or an approved arrangement This definition provides that `relevant Director', when used in relation to a proposed arrangement or approved arrangement, refers to the Director of Biosecurity in all instances unless the arrangement provides for biosecurity activities to be carried out in relation to human health risks only. If the arrangement relates only to human health risks, the Director of Human Biosecurity is the relevant Director. relevant person This definition provides that `relevant person' for a reviewable decision refers to a person listed in column 3 of the table in subclause 610(1), or for a reviewable decision prescribed in the regulations made for the purposes of subclause 610(2), the person prescribed in the regulations to clause 610. A relevant person, in relation to a reviewable decision, is the person that may apply for the decision to be reviewed. See clause 610 for further information. relevant premises This definition provides that `relevant premises' has the meaning given by clause 498 and refers to any premises at which biosecurity activities are carried out by a biosecurity industry participant that is covered by an approved arrangement and any landing place or port that is determined to be a first point of entry. Chapter 9 provides for monitoring powers and 132

investigation powers in relation to relevant premises in order to monitor and investigate compliance with the Bill. reportable biosecurity incident This definition provides that `reportable biosecurity incident' refers to an incident relating to a biosecurity risk that must be reported to a biosecurity officer or the Director of Biosecurity (for incidents reportable in Chapter 3) or the relevant Director (for incidents reportable in Chapter 7). Division 8 of Part 1 of Chapter 3 provides that in relation to goods that are subject to biosecurity control, the Director of Biosecurity may determine that an act, or omission or event is a reportable biosecurity incident--for example, the escape of a live animal from a vessel in Australian territory. Reportable biosecurity incidents will be listed in a legislative instrument made by the Director of Biosecurity. If a person in charge of goods, or a person in charge of the vessel or aircraft that brought the goods into Australian territory, becomes aware of a reportable biosecurity incident in relation to goods, the person must report the incident to a biosecurity officer or the Director of Biosecurity as soon as practicable after becoming aware of the incident. A person commits an offence and is liable to a civil penalty for contravention of this reporting requirement. See clause 153 and clause 154 for further details. In Chapter 7, clause 429 provides that a report must be made to the relevant Director if an act, omission or event specified in an approved arrangement occurs, or if a condition of the approved arrangement requires a report to be made to the relevant Director if an act, omission or event specified in the condition occurs. If a biosecurity industry participant covered by an approved arrangement fails to carry out biosecurity activities in accordance with the arrangement or contravenes a condition or other requirement of the arrangement and a reportable biosecurity incident occurs, the court may make an order requiring the person to pay the Commonwealth all or part of the costs incurred by the Commonwealth in dealing with the incident. See clauses 429 to 430 for further details. Reportable biosecurity incidents are intended to ensure persons in charge of goods, persons in charge of vessels or aircraft that bring goods into Australian territory, and biosecurity industry participants report any biosecurity incidents to a biosecurity officer or the Director of Biosecurity in order to ensure the biosecurity risk is assessed and managed. reviewable decision This definition provides that a `reviewable decision' has the meaning given by subclauses 610(1) and (2). Subclause 610(1) lists decisions that are reviewable and subclause 610(2) provides that regulations may prescribe further decisions that are reviewable decisions. Clause 610 also lists the relevant person for each reviewable decision (the person who may apply for the decision to be reviewed). Different decisions across the Bill will be reviewable--the relevant person for a decision may apply to the Director of Biosecurity or the Director of Human Biosecurity (for decisions that relate to human health only) for a review of that decision, unless it was made personally by either Director. Applications can be made to the Administrative Appeals Tribunal for a decision made personally by the Director of Biosecurity, or for a decision that has been reviewed by the Director of Biosecurity or other internal reviewer. It is intended that reviewable decisions will 133

allow people in relation to whom a decision has been made under this Act to have the decision reviewed if the person is not satisfied that the decision was made correctly, and potentially re-made if the original decision was found to be incorrect. sanitation health risk The definition provides that `sanitation health risk' for the purposes of the Vessel Sanitation Scheme is a risk to human health which may spread internationally and cause serious harm to human health. sediment This definition provides that `sediment' has the same meaning as `sediments' in the Ballast Water Convention, which refers to "matter settled out of ballast water within a ship". This term is used in Chapter 5 in relation to ballast water management. sediment reception facility This definition provides that `sediment reception facility' refers to a facility in Australian territory for receiving sediment from vessels for treatment or disposal in a way authorised under a Commonwealth law or a state or territory law (if the facility is in a state or territory). This term is used in Chapter 5 in relation to ballast water management. ship's pilot This definition provides that `ship's pilot' refers to a person who does not belong to, but has the conduct of, a vessel. The term is commonly used to refer to a person with extensive knowledge of conditions applicable to the port that a vessel wishes to enter. The ship's pilot boards the vessel to pilot it into the port and ensure it docks safely. This term is used in the definition of person in charge of a conveyance. SPS Agreement This definition provides that `SPS Agreement' refers to the Agreement on the Application of Sanitary and Phytosanitary Measures 1994 set out in Annex 1A to the World Trade Organization (WTO) Agreement as in force for Australia from time to time. The SPS Agreement contains the basic rules on animal and plant health and food safety standards for trade between WTO member countries. It requires that sanitary (relating to human and animal) and phytosanitary (relating to plant) measures are based on science and applied only to the extent necessary to protect human, animal or plant life or health The SPS Agreement allows WTO members to determine their own appropriate level of sanitary and phytosanitary protection (ALOP), which must be applied in a consistent manner. State or Territory body This definition provides that a reference to a `state or territory body' includes a Department of State, or an authority of a state or territory. subject to biosecurity control This definition provides that `subject to biosecurity control' has the meaning given by clause 117 in relation to goods, and clause 191 or clause 192 in relation to conveyances. Goods and conveyances that arrive from outside Australian territory--or in some circumstances, interact with goods or conveyances that have arrived from outside Australian territory--provide a direct pathway for biosecurity risks to enter into Australian territory. This Bill makes those goods and conveyances subject to biosecurity control. When goods or conveyances are 134

subject to biosecurity control, biosecurity officers can exercise powers in relation to them to manage any associated biosecurity risks. Subject to biosecurity control operates to manage biosecurity risks, but also as a limit on the exercise of powers by biosecurity officers. Where goods or conveyances are subject to biosecurity control, a number of powers of biosecurity officers can be exercised in relation to those goods or conveyances. Chapter 3 provides powers in relation to goods, and Chapter 4 provides powers in relation to conveyances. These powers cease to be available once the goods or conveyances are released from biosecurity control. Once goods and conveyances are released from biosecurity control, any further assessment or management of biosecurity risk must occur through the exercise of assessment and management powers in Chapter 6. For example, if a shipment of goods was released from biosecurity control after being inspected at the border, and a biosecurity risk was later identified, a biosecurity control order may be made in relation to the goods to manage the biosecurity risk associated with the goods. survey authority This definition provides that `survey authority' refers to a person authorised by the Director of Biosecurity under clause 289 to be a survey authority. It is intended that regulations will prescribe a scheme for survey authorities to perform a number of functions in relation to ballast water management certificates of Australian vessels on behalf of the Commonwealth (see clause 290). The Director may only authorise a survey authority under this clause if the Director is satisfied the person has suitable qualifications to perform these functions. suspended goods This definition provides that `suspended goods' has the meaning given by subclause 179(2), which provides that suspended goods are goods that the Director of Biosecurity has determined must not be brought, or imported, into Australian territory for a specified period. tank This definition provides that `tank' includes a space or compartment. The term is used in the definition of ballast water exchange. This definition is intended to ensure that any space or compartment that can contain ballast water is captured by the term ballast water exchange. temporary biosecurity monitoring zone This definition provides that `temporary biosecurity monitoring zone' has the meaning given by subclause 382(1) and refers to a biosecurity monitoring zone in relation to which the Director of Biosecurity has made a temporary biosecurity monitoring zone declaration. It is intended that temporary biosecurity monitoring zones will be used to monitor whether pests or diseases that may pose an unacceptable level of biosecurity risk have, or are likely to, enter, emerge, establish or spread from a specified area. For example, a temporary monitoring zone may be determined around a biosecurity response zone to allow biosecurity officers to monitor the area surrounding the response zone and determine whether the pest or disease in relation to which the response zone was determined has spread beyond the zone. temporary biosecurity monitoring zone determination This definition provides that a `temporary biosecurity monitoring zone determination' is a determination made under clause 382(1) that specifies the particular biosecurity measures or powers that a biosecurity officer may use to manage an identified biosecurity risk in a 135

temporary biosecurity monitoring zone. Clause 383 specifies the required contents of a temporary biosecurity monitoring zone determination, including the powers that may be exercised in a temporary biosecurity monitoring zone. this Act This definition provides that any reference to `this Act' includes instruments made under this Act. Torres Strait Treaty This definition provides that `Torres Strait Treaty' has the meaning given by clause 651 and refers to the Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters 1978. Articles of the Torres Strait Treaty that are relevant to this Bill include: Article 10.3 which states that `the principle purpose of the Parties in establishing the protected zone is to `acknowledge and protect the traditional way of life and livelihood of the traditional inhabitants including their traditional fishing and free movement' Article 11.3 which states that, `subject to the other provisions of the Torres Strait Treaty, each Party shall continue to permit free movement and the performance of lawful traditional activities in and in the vicinity of the protected zone by the traditional inhabitants of the other Party', and Article 16 which states that `each Party shall apply immigration, customs, quarantine and health procedures in such a way as not to prevent or hinder free movement or the performance of traditional activities in and in the vicinity of the protected zone by the traditional inhabitants of the other Party'. See clause 651 for further details of how Australia will meet its obligations under the Torres Strait Treaty in this Bill. traditional activities This definition provides that `traditional activities' has the meaning given by clause 651, which refers to the meaning given in the Torres Strait Treaty. traditional inhabitant This definition provides that `traditional inhabitants' has the meaning given by clause 651, which refers to the meaning given in the Torres Strait Treaty. traveller movement measure This definition provides that `traveller movement measure' refers to a measure applied in a human biosecurity control order. This measure prevents an individual from travelling on an overseas passenger airline or vessel for up to 28 days. This measure seeks to prevent the spread of serious communicable diseases to other passengers, and to prevent the international spread of disease. United Nations Convention on the Law of the Sea This definition provides that `United Nations Convention on the Law of the Sea' refers to the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982. This term is used in clause 29 in relation to foreign vessels. 136

unduly detained or delayed This definition provides that `unduly detained or delayed' in relation to Ballast Water Management refers a vessel being unduly detained or delayed under articles 7.2, 8, 9, or 10 of the Ballast Water Convention. These articles relate to undue detainment or delay in the course of: requiring additional surveys or certifications that are not required under the Convention investigating a suspected violation of the Convention and subsequent sanctions against a vessel inspection and sampling to determine whether a vessel is in compliance with the Convention, and detaining a vessel that has violated the Convention. Chapter 5 provides that if a vessel is unduly detained or delayed as a result of an action undertaken by a biosecurity officer, the owner may claim reasonable compensation from the Commonwealth (see clause 307). This is intended to safeguard owners against financial loss if a vessel is detained longer than was required to ensure compliance with the ballast water management provisions of the Bill, or if there was no basis for the detention. vessel This definition outlines which types of conveyances are considered to be a `vessel' under this Bill. The term refers to any kind of vessel used in navigation by water, however propelled or moved, including a barge, lighter or other floating craft, and an air-cushion vehicle (or other similar craft, used wholly or primarily in navigation by water). This definition provides that vessel also includes an installation, and any floating structure. warrant This definition provides that `warrant' refers to any warrant issued under clause 510 or clause 514. Warrants may be issued to biosecurity enforcement officers where entry to premises (including conveyances) without consent is required in order to manage biosecurity risks associated with the premises or a conveyance. See also: biosecurity risk assessment warrant biosecurity control order warrant biosecurity response zone warrant biosecurity monitoring zone warrant monitoring warrant investigation warrant adjacent premises warrant conveyance possession warrant premises possession warrant possession warrant World Trade Organization Agreement This definition provides that `World Trade Organization Agreement' refers to the Marrakesh Agreement 1994 that established the World Trade Organization. See SPS Agreement for how this Agreement relates to this Bill. 137

Clause 10 Meaning of approved arrangement This clause provides that an approved arrangement is an arrangement for which an approval is in force under paragraph 404(1)(a), including a varied arrangement for which an approval is in force under paragraph 404(1)(a) as it applies because of subclause 410(3). In order to be approved, an arrangement must meet the requirements set out in the regulations, the applicant must meet a fit and proper person test, and the relevant Director must consider that the level of biosecurity risk associated with the operation of the arrangement is acceptable. Once an application has been approved by the relevant Director, the applicant will become a biosecurity industry participant. All arrangements will be supported by an audit model that ensures the biosecurity risks are being adequately managed. Chapter 7 outlines the scope and principles of approved arrangements, the processes for application, approval and any subsequent changes to an arrangement with a biosecurity industry participant. Clause 11 Meaning of Australian territory This definition outlines the application of provisions referring to `Australian territory'. A reference in a provision of this Bill to `Australian territory' is defined to mean a reference to Australia, Christmas Island, the Cocos (Keeling) Islands (and any external Territory to which that provision extends), and the airspace over these areas. It also refers to the coastal sea of Australia, of Christmas Island, of the Cocos (Keeling) Islands (and of any other external Territory to which that provision extends). Clause 12 Meaning of biosecurity entry point This clause defines the term `biosecurity entry point' for aircraft, vessels and goods in relation first points of entry. Clauses 226 and 232 allow the Director of Biosecurity to designate a specified area of a port or landing place as a `biosecurity entry point' in a first point of entry determination. These designated entry points are flexible non-mandatory enforcement tools intended to ensure that aircraft, vessels and goods with a specific type of biosecurity risk (i.e. timber) are being taken to the appropriate place within a first point of entry where they can be managed effectively. Clause 13 Meaning of biosecurity industry participant and covered by This clause clarifies terms used in Chapter 7. It defines the term `biosecurity industry participant' to mean a person who is the holder of an approved arrangement (until the agreement is approved, the person is referred to as an `applicant'). It also explains that the biosecurity industry participant is considered to be `covered by' the approved arrangement. Provisions in the Bill that refer to a biosecurity industry participant covered by an arrangement refer to a biosecurity industry participant who is operating in accordance with his or her approved arrangement. See Chapter 7 for further details. Clause 14 Meaning of commercial-in-confidence This clause defines the meaning of the term `commercial-in-confidence' in relation to information. Under this Bill, information is considered commercial-in-confidence if a person can demonstrate to the Director of Biosecurity that all of the following apply in relation to the information: release of the information would cause competitive detriment to the person the information is not in the public domain the information is not required to be disclosed under another Australian law, and 138

the information is not readily discoverable. This term is used in the definition of protected information. Clause 15 Meaning of conveyance This clause provides that the term `conveyance' refers to any vessel, aircraft, vehicle, or train (including railway rolling stock). The regulations may prescribe additional means of transport for the purpose of this definition, which is intended to allow for new developments in transport methods into the future. Chapter 4 provides for the management of biosecurity risks associated with conveyances in Australian territory. This clause also provides that: a reference to a conveyance does not include a reference to a conveyance that is being carried on board another conveyance (except in Part 3 of Chapter 13 and any clause of this Bill to the extent that it relates to that Part) a reference to an aircraft does not include a reference to an aircraft that is being carried on board another conveyance, and a reference to a vessel does not include a reference to a vessel that is being carried on board another conveyance (except in Chapter 5 and any clause of this Bill to the extent that it relates to that Chapter). These exceptions are provided for so that ballast water can be managed under Chapter 5 in relation to a vessel carried on board another conveyance, and the cost recovery provisions in Chapter 13 will continue to apply to a conveyance carried on board another conveyance. Clause 16 Meaning of exposed to This clause provides the meaning of the term `exposed to'. This term is used in Chapters 2, 3 and 4 to describe persons and things that have been in physical contact with, in close proximity to, or exposed to, contamination, infestation or infection from other people or things. In this clause, `thing' includes goods, conveyances and premises. Powers are available in Chapters 2, 3 and 4 in relation to goods, conveyances or premises and people that are exposed to other people or things in order to manage biosecurity risks associated with exposure. Clause 17 Meaning of first point of entry This clause defines the term `first point of entry' in relation to aircraft, vessels and goods that are subject to biosecurity control. In relation to aircraft and vessels that are subject to biosecurity control, a first point of entry describes the landing place or port where aircraft and vessels must arrive after entering Australian territory, as determined under paragraph 225(1)(a) or paragraph 231(1)(a). In relation to goods that are subject to biosecurity control, or exposed goods in relation to which a exposed goods order is in force, a first point of entry describes a landing place or port determined under clause 225(1)(b) or clause 231(1)(b) to be a first point of entry for those goods (or a class of goods that includes those goods). See Part 2 of Chapter 4 for further details. 139

Clause 18 Meaning of goods This clause provides that the term `goods' includes the following: an animal a plant (whether moveable or not) a sample or specimen of a disease agent a pest mail, and any other article, substance or thing (including, but not limited to, any kind of moveable property). It also provides that the term does not include ballast water or human remains, which are separately defined terms under clause 9. Cremated remains are excluded from the definition of human remains so will be treated as goods for the purpose of the Bill. In most cases goods also includes a conveyance that is being carried on board another conveyance (see clause 15). Clause 19 Meaning of installation This clause provides that the term `installation' refers to a structure that is either attached to or resting on--or attached semi-permanently or permanently to a structure that is attached to or resting on--the seabed, and: is able to float or be floated, and is able to move or be moved, as an entity from one place to another, and is, or is to be, wholly or principally used in: - exploring or exploiting natural resources (such as fish or minerals) with equipment that is on or forms part of the structure, or - operations or activities associated with, or incidental to, activities in relation to exploring or exploiting natural resources. This term is used in the definition of vessel. Clause 20 Meaning of operator of a conveyance This clause provides that `operator' in relation to a conveyance, means: if there is a body corporate or an unincorporated body responsible for the operation of the conveyance--that body, and in any other case--the person in charge of the conveyance. This term has an alternative meaning when it is used in Chapter 5. In Chapter 5, operator of a conveyance has the same meaning as `company' in the Annex to the Ballast Water Convention which currently provides that company means: "the owner of the ship or any other organisation or person such as the manager, or bareboat charterer, who has assumed the responsibility for operation of the ship from the owner of the ship and who on assuming such responsibility has agreed to take over all the duties and responsibilities imposed by the International Safety Management Code." Clause 21 Meaning of person in charge This clause defines the term `person in charge'. The term may refer to the owner of a thing or a person in possession or control of a thing depending on whether it is used in relation to goods or conveyances. 140

In relation to goods, `person in charge' refers to the owner of the goods or a person (other than a biosecurity officer or biosecurity enforcement officer) who is in possession or control of the goods. Person in charge of goods also includes a biosecurity industry participant who is in possession or control of the goods as authorised by an approved arrangement covering the biosecurity industry participant. In relation to conveyances, `person in charge' refers to the person in charge or command of the conveyance, but does not include a ship's pilot. Ship's pilots are excluded from this definition as although they may be in charge of a conveyance, they are not legally responsible for the conveyance in the same way as an owner, operator or captain of the conveyance would be. The concept of person in charge is used in the Bill instead of owner (the term generally used in the Quarantine Act 1908), as it reflects the broad range of people who are responsible for goods and conveyances. The inclusion of a broad range of people in the definition is intended to increase the operational practicality of the Bill, for example where the owner of a conveyance is not in Australian territory and a biosecurity officer needs to give a direction in relation to the conveyance in order to assess or manage biosecurity risk. Part 3--Constitutional and international law provisions Division 1--Introduction Clause 22 Guide to this Part The guide provides a concise overview of Part 3 of Chapter 1. Part 3 contains provisions relating to the Constitution (such as the constitutional powers relied on for this Act), the application of the Act in relation to pests, protections in the Constitution, as well as provisions that ensure that the Act is consistent with the rights that foreign aircraft and vessels have under the United Nations Convention on the Law of the Sea. Division 2--Constitutional and international law provisions Clause 23 Severability This clause provides for continued operation of the Bill (or provisions of the Bill) in the event of a successful constitutional challenge. It sets out the various constitutional heads of power upon which the Bill can draw if its operation is expressly confined to acts or omissions under those constitutional powers. This clause is intended to ensure that the Bill is given the widest possible operation consistent with Commonwealth constitutional legislative power. This clause provides that the Bill draws on the following constitutional powers: Quarantine power section 51(ix) of the Constitution External affairs power section 51(xxix) of the Constitution Trade and commerce power section 51(i) of the Constitution Fisheries power section 51(x) of the Constitution Aliens power section 51(xix) of the Constitution Corporations power section 51(xx) of the Constitution Territories and Commonwealth section 122 of the Constitution and the 141

places power Commonwealth places (Application of Laws) Act 1970 Postal power section 51(v) of the Constitution Sickness benefits power section 51(xxiiiA) of the Constitution Census and statistics power section 51(xi) of the Constitution Clause 24 Application of this Act in relation to pests that are quarantine risks or invasive pests The definition of 'pest' in clause 9 of the Bill is broadly expressed to capture a wide range of pests. Subclause 24(1) limits the application of the Act (other than Part 1 of Chapter 8) to those pests which may pose quarantine risks (paragraph (a)) or are invasive pests (paragraph (b)). See clause 9 for the definition of `invasive pest' and clause 25 for the application of the Act in relation to invasive pests. Part 1 of Chapter 8, which deals with biosecurity emergencies, applies only to pests which may pose quarantine risks (subclause 24(2)). Together with the definition of 'pest', clause 24 is intended to ensure that the widest range of pests that may pose a biosecurity risk can be dealt with under the Act, consistent with Commonwealth legislative power. Clause 25 Application of this Act in relation to invasive pests This clause provides for the application of the Act in relation to invasive pests where this relies only on the external affairs power as engaged by the Biodiversity Convention (see clause 9 for the definition of invasive pest). The external affairs power (section 51(xxix) of the Constitution), in its treaty implementation aspect, supports legislation that is capable of being reasonably considered appropriate and adapted to fulfilling the obligations and benefits of a treaty (Victoria v Commonwealth (1996) 187 CLR 419 at 487-488). Clause 25 is intended to limit the effect of the Act to ensure that, in its application to invasive pests, it is appropriately supported by the external affairs power. The clause does this by limiting the extent to which a provision of the Act confers a power, function or right, or imposes an obligation, in relation to an invasive pest to the circumstances set out in subclause 25(2). First, it is limited to the purpose of preventing the introduction of, or controlling or eradicating, invasive pests which threaten ecosystems, habitats or species. The second limitation is that the conferral of the power, function or right, or imposition of the obligation, must be reasonably capable of being considered appropriate and adapted to give effect to Australia's obligations under Articles 7 and 8 of the Biodiversity Convention. For example, Article 8(h) of the Convention imposes obligations on Australia to prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species. The effect of paragraph 25(1)(b) is that the limitations in subclause 25(2) do not apply where the application of provisions of the Act to invasive pests would be supported by other sources of legislative power, that is, other than the external affairs power as engaged by the Biodiversity Convention. 142

Clause 26 Compensation for acquisition of property This clause is intended to ensure, for the purposes of section 51(xxxi) of the Constitution, that if the operation of the Act results in the acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay reasonable compensation to the person. This clause also provides for the person to institute court proceedings if the Commonwealth and the person do not agree on the amount of compensation. See also clause 9 for definitions of acquisition of property and just terms. Clause 27 Freedom of interstate trade, commerce and intercourse This clause provides that a power or function conferred by this Act is not to be exercised in a way that prevents free trade and commerce among the states and territories of Australia. Clause 28 Commonwealth not to give preference This clause is intended to ensure that a power of function conferred by this Act is not exercised or performed in a way that gives preference to one State or part of one State. This clause is not intended to limit the Commonwealth's ability to consider regional differences in biosecurity risk between the states and territories that are based on valid scientific evidence. Clause 29 Application of the Act to foreign aircraft and vessels This clause provides that the Act only applies to foreign aircraft or vessels to the extent that the application is consistent with the exercise of rights of foreign aircraft or vessels in accordance with the United Nations Convention on the Law of the Sea, above or in any of the following: the territorial sea of Australia the exclusive economic zone waters of the continental shelf. Part 4-- Principles affecting decisions to exercise certain powers Clause 30 Guide to this Part This clause provides a guide to Part 4 of Chapter 1. It provides that a biosecurity official who is making a decision to exercise a power under certain provisions of this Act must first consider the principles set out in this Part. The principles aim to ensure that the power is exercised only if exercising the power is likely to be effective in, or to contribute to, achieving the purpose for which the power is to be exercised, is appropriate and adapted for its purpose, and is no more restrictive or intrusive than is required. It also provides that where a power is to be exercised in relation to a conveyance, the biosecurity official must consider the impact of the exercise of the power on the health and safety of any persons on board the conveyance. Clause 31 The principles This clause outlines a list of factors, known as `the principles', which a biosecurity official must be satisfied of before exercising a number of specified powers in the Bill. The principles must be applied to the following decisions made under the specified clauses of the Bill (or instruments in force under these clauses): to give approval for a direction requiring an aircraft or vessel to be moved to a place outside Australian territory (paragraph 205(3)(a)) to give approval to cause an aircraft or vessel to be moved to a place outside Australian territory (paragraph 205(3)(b)) 143

to give approval for a conveyance to be removed from Australian territory, destroyed or otherwise disposed of (paragraph 208(5)(d)) to give approval for a conveyance to be destroyed (subclause 209(2)) to give approval for a direction requiring an aircraft not to land at any landing place in Australian territory (subclause 243(2)) to give approval for a direction requiring a vessel not to be moored at any port in Australian territory (subclause 251(2)) to enter premises at a landing place or port in Australian territory (subclause 254(2)) to give a direction about movement of a vessel that may have been involved in the commission of an offence against Chapter 5 (clause 303) any power that may be exercised by a biosecurity official under Chapter 6 any power that may be exercised by a biosecurity official under Divisions 5 and 6 of Part 1 of Chapter 8 any power that may be exercised by a biosecurity official under Subdivision B of Division 2 of Part 4 of Chapter 12 to deal with an abandoned conveyance (clause 655), and to deal with a forfeited conveyance (clause 656). Subclause (2) outlines the principles that a biosecurity official must be satisfied of when making a decision under these clauses are that: that exercising the power is likely to be effective in, or to contribute to, achieving the purpose for which the power is to be exercised that exercising the power is appropriate and adapted to achieve that purpose that the manner in which the power is to be exercised is no more restrictive or intrusive than is required in the circumstances if the power is to be exercised in relation to an individual--that the power is no more restrictive or intrusive than is required in the circumstances, and if the power is to be exercised during a period--that the period is only as long as is necessary. If the power is to be exercised in relation to a conveyance, subclause (3) provides the biosecurity official must also consider the impact of the exercise of the power on the health and safety of any persons on board the conveyance. This is consistent with Article 6 of the International Covenant on Civil and Political Rights (ICCPR) which provides for the right to life. For example, when making the decision to issue a direction for an aircraft or vessel not to go to a specific location, or be secured, a biosecurity official should consider whether the conveyance has adequate fuel and supplies to comply with this direction and whether any persons on board require life saving medical treatment. These principles have been included in the Bill to ensure that any direction given or action undertaken is necessary, appropriate, and adapted and does not impact on a person or their rights any more than is necessary to manage the level of biosecurity risk posed. This is consistent with international treaties such as the ICCPR and the International Covenant on Economic, Social and Cultural Rights. These principles provide an appropriate balance between individual rights and the management of biosecurity risks, allowing a biosecurity officer to exercise the necessary powers to manage biosecurity risks. Subclause (4) provides that the principles are not required to be applied in relation to the making of a biosecurity control order or the making of a legislative instrument under Chapter 6 (including a biosecurity control order or a legislative instrument made under Chapter 6 in 144

accordance with Division 5 or 6 of Part 1 of Chapter 8). This is because the decision to make a biosecurity control order or a legislative instrument does not directly impact upon an individual or his or her rights. The impact will occur when a biosecurity official exercises the powers listed in the order, therefore the principles will apply to the decisions that may be included in the order. See also clause 33, which provides for principles affecting the exercise of power under Chapter 2. 145

Chapter 2--Managing biosecurity risks: Human Health Part 1--General protections and listing human diseases Division 1--Introduction Clause 32 Guide to this Part This clause provides a guide to this part. Division 2--Protections Subdivision A--General protections Clause 33 The principles All decisions made under the human biosecurity chapter are bound by principles of general protection. The person making the decision must be satisfied of all the following matters: that exercising the power, or imposing the biosecurity measure, is likely to be effective in preventing, reducing or controlling the risk that exercising the power or imposing the biosecurity measure is proportionate to the risk that the circumstances are sufficiently serious to justify exercising the power, or imposing the biosecurity measure that the power, or the biosecurity measure, is the least restrictive or intrusive power that could be exercised in relation to, or measure that could be imposed on, the individual that the manner in which the power is to be exercised, or the biosecurity measure is to be imposed, is the least restrictive or intrusive manner that the period during which the power is to be exercised, or the biosecurity measure is to be imposed, is only for as long as necessary. The principles are intended to inform all decisions made under this chapter. An officer, in making a decision, must take into account each of these principles. The principles provide for consideration of the rights enshrined in the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the personal protections enshrined in the International Health Regulations 2005 (IHR), the seriousness of the circumstances and the balance between the public interest in giving an order or including a measure against the public interest in upholding the individual's liberty. These decisions are made by the officer, using their personal knowledge of infectious disease control in a public health capacity. The principles can inform internal review, merits review and judicial review, thus adding an additional layer of protection for an individual affected by a decision. Guidelines issued by the Director of Human Biosecurity will provide officials with guidance in relation to the exercise of their powers. 146

Clause 34 No interference with urgent or life-threatening medical needs This power expressly provides that the urgent or life-threatening medical needs of an individual will prevail over the provision of any measures under this chapter to address human biosecurity risk. Officers must ensure that, when making a decision with respect to biosecurity risk, that they first consider the urgent or life-threatening needs of the individual. This is in addition to considerations of the principles at clause 33 above. Subdivision B--Protections for children and incapable persons Clause 35 Child or incapable person may be accompanied A child is defined as a person less than 18 years old. An incapable person is defined as someone who is 18 years old or older, and who is incapable (whether temporarily or permanently) of: understanding the nature, effect or purposes of carrying out a biosecurity measure; or, indicating whether they do or do not consent to a biosecurity measure. To ensure compliance with Commonwealth guidelines and international obligations, this provision requires that a child or incapable person may be accompanied at all times while subject to the provisions of the Act. Clause 36 Officer to contact parent, guardian or next of kin etc, of unaccompanied child or incapable person A child or incapable person must not be subject to a requirement under this chapter unless an officer has taken reasonable steps to contact a parent, guardian or next of kin. To avoid doubt, an officer must address the urgent or life-threatening needs of the child or incapable person in the first instance. This provision creates an obligation on an officer to contact the parent, guardian or next of kin of a child or incapable person to ensure they are accompanied or provided with the option of being accompanied while under a human biosecurity control order. An officer bears an obligation to explain the rights of a parent, guardian or next of kin under clause 35 and clause 38 and allow them to accompany the child or incapable person. Clause 37 Requirement to comply with direction An accompanying person must comply with any direction given to him/her by an officer. This provision explicitly provides that an accompanying person is obligated to comply with directions of an officer, despite not being subject to a human biosecurity control order themselves. Clause 38 Parent, guardian or next of kin may authorise person to accompany child or incapable person A parent, guardian or next of kin may nominate another person to accompany a child or incapable person. This provision addresses circumstances where a parent, guardian or next of kin are unable to be with the child or incapable person themselves. This ensures that children and incapable persons always have access to a person who can make decision on their behalf. 147

Clause 39 Giving consent An accompanying person may give consent on behalf of a child or incapable person. To avoid doubt, this provision makes it explicit that the consent of an accompanying person under Part 3 is taken to be consent of the child or incapable person. Conversely, if an accompanying person does not consent, it is taken that the child or incapable person does not consent. Clause 40 Exception for requiring an individual to remain at a place A child or incapable person can be subject to the requirement to remain at a place (clause 66) without being accompanied or the officer taking reasonable steps to contact a parent, guardian or next of kin. This provision is provided where there is an urgent need to address a potential risk of contagion. This may result in a child or incapable person being moved to a medical facility as a priority and there may not be sufficient time to contact a parent, guardian or next of kin. However, no further measures can be applied to, or actions taken in regard to, the child or incapable person until a parent, guardian or next of kin is contacted. Division 3--Listing human diseases Clause 41 Determining listed human diseases In addition to the principles at clause 33 above, powers and functions under the human biosecurity chapter are restricted to managing a listed human disease. This provision vests the Director of Human Biosecurity with the power to declare a disease to be a listed human disease, if they consider that the disease may be communicable and cause significant harm to human health. Many of the powers and functions within this chapter are personally invasive. To ensure there are appropriate safeguards for individuals, the powers and functions in this chapter flow only in response to preventing or managing the entry, establishment, emergence or spread of a listed human disease in Australia or to another country. The instrument declaring listed human diseases is exempted from the disallowance provisions of the Legislative Instruments Act 2003. This ensures the Commonwealth will have the continual use of powers and functions in this chapter to control serious communicable diseases. Part 2--Preventing risks to human health Division 1--Introduction Clause 42 Entry requirements This clause provides a guide to this part. Division 2--Entry and exit requirements Clause 43 Entry requirements This provision vests the Health Minister with powers to determine one or more requirements for all individuals or a class of individuals entering Australia. These requirements may only 148

be for the purpose of preventing the entry, establishment, emergence or spread of a listed human disease. The provision of entry requirements allows the Commonwealth to identify human biosecurity risks posed by individuals intending to enter Australia, and establish mitigating measures to be performed prior to arrival to address any potential risks. The requirements primarily relate to the provision of information to inform officers of the individual's risk status; however some requirements may require the individual to undertake a vaccination or course of treatment prior to arrival in Australia. Requirements under this provision may include requiring Yellow Fever certification (a recommendation under Article 36 and Annexes 6 and 7 of the IHR) and identifying when individuals have travelled to high risk areas. Clause 44 Exit requirements The Health Minister may activate exit requirements for individuals or operators of overseas passenger vessels or aircraft leaving Australia, for the purpose of preventing the spread of a listed human disease to another country. Exit requirements may also be activated if a recommendation has been made to the Minister by the WHO under Part III of the IHR. Similar to the requirements for entry above, exit requirements allow the Commonwealth to identify human biosecurity risks posed by individuals intending to leave Australia. The requirements provide a spectrum of options to respond to the range and scale of human biosecurity risks. These include providing public information in airports and seaports to advise of human biosecurity risks; and provision for the Commonwealth to conduct screening of passengers as they exit Australia. These requirements have been drafted to be consistent with recommendations under the IHR (e.g. Article 43) relating to the taking of additional health measures to help prevent the international spread of disease. Clause 45 Civil penalties for failing to comply with certain entry and exit requirements This provision sets the penalty for individuals failing to comply with entry requirements under clause 43, for operators failing to comply with a requirement to perform a specified treatment, or for individuals who fail to comply with exit requirements specified under clause 44(6)(d), (e), (f), (g), or (h). Division 3--Contact information for operators Clause 46 Requirements for operators to provide 24/7 contact information An operator of an overseas aircraft or vessel must provide the Director of Human Biosecurity with the prescribed contact information for an individual nominated by the operator. The prescribed information will include phone, fax and email. The contact information is intended to be used to allow the Director of Human Biosecurity to contact operators about a listed human disease outbreak or an individual or class of individuals. The ability to contact operators quickly allows the Commonwealth to share information and plan and prepare for any human biosecurity risk that is present on the operator's aircraft or vessel. 149

This provision, together with the amendments to the NHS Act sharing of information provisions, allows the operator to provide information to the Commonwealth about human biosecurity risk on their vessel or aircraft without contravening the information privacy principles or the national privacy principles. Division 4--Pratique Clause 47 Positive pratique Pratique is defined to be a permission to enter an Australian port, disembark and embark passengers, and unload and load goods. A vessel or aircraft cannot disembark or unload unless pratique has been granted in some form. Automatic pratique is granted to all vessels and aircraft arriving in Australia unless the aircraft or vessel is a class specified by the Director of Human Biosecurity as being subject to manual pratique (see clause 48 below). This provision allows for permission to disembark and unload to be given automatically, on entry into Australia and where no human biosecurity risks have been reported. Clause 48 Negative Pratique This provision allows the Director of Human Biosecurity to specify the circumstances in which automatic pratique is taken to not have been granted and when manual pratique must be given. These circumstances may relate to reporting of signs and symptoms of, or exposure to a listed human disease (as part of pre-arrival reporting); or issues relating to ship sanitation (contained in Part 5 of Chapter 4). The Director of Human Biosecurity may specify, in an instrument, the classes of vessels and aircraft that are to be granted manual pratique; and the requirements for complying with manual pratique. In the absence of automatic pratique being applicable, an officer must grant an aircraft or vessel manual pratique. The requirements of being granted manual pratique may relate to additional pre-arrival reporting obligations, treatment measures or inspection on arrival, or the requirement for a biosecurity officer to be present for unloading or disembarking. Clause 49 Pre-departure reporting The person in charge of an overseas passenger vessel or aircraft may be required to make a pre-departure report, providing the Commonwealth with information about the individuals, cargo and aircraft/vessel. The Commonwealth may use pre-departure information to notify the next port's National Focal Point of an impending biosecurity risk, which is consistent with the Commonwealths obligations under the IHR to prevent the international spread of disease. Pre-arrival reporting requirements are specified in Chapter 4. Division 5--Preventative biosecurity measures Clause 50 Determining preventative biosecurity measures Where there is a human biosecurity risk posed by a listed human disease, and an identified practice or process would contribute to the establishment or spread of the disease, the Health Minister has the power to apply a measure to prohibit or restrict the practice or process. The Minister must be satisfied that the measure is likely to prevent, or reduce the risk of, the entry into Australia, or the emergence, establishment or spread in Australia, of the disease; 150

and that the measure is appropriate in all the circumstances. The determination must specify the period in which it is in force and has a maximum duration of 12 months. This provision allows the Commonwealth, in a domestic context, to prescribe biosecurity measures to respond to an outbreak of a disease or the reasonable belief that there is likely to be an outbreak of a disease. The measures imposed under this provision provide temporary management of a human biosecurity risk within a state or territory, until the state or territory is able to create provisions within their own legislation to manage the risk in the long term. The determination will specify the Commonwealth powers and functions available to the state/territory to manage the risk; and the state/territory officers who are to be vested with these powers/functions, under the agreement of the state/territory. Only one determination will be made in relation to a particular behaviour or practice. Before making the determination, the Minister must consult with each state and territory and the Director of Biosecurity. Agreement of a state or territory is required before the determination can apply in that state/territory. Clause 51 Civil penalty for failing to comply with preventative measures This provision sets the penalty for failing to comply with a preventative biosecurity measure under clause 50 above. Division 6--Information gathering powers Clause 52 Who may ask questions and require written information All officers - Biosecurity Officers, Human Biosecurity Officers, Chief Human Biosecurity Officers and the Director of Human Biosecurity have the power to ask questions. Officers must be able to ask questions and request written information of individuals in order to determine the nature of, and manage, human biosecurity risks. Under this provision all officers have powers to ask individuals questions relating to their health and exposure to listed human diseases. Clause 53 Asking questions and requiring answers from particular individuals An officer may ask questions and require answers where: An individual is in a biosecurity response zone (see clause 111 to clause 113), or A Human Biosecurity Control Order (HBCO) is in force (see clause 58 to clause 65). This power allows an officer to ask questions of an individual who is in a biosecurity response zone, or if a HBCO is in force. Questions may only be asked in relation to the level of biosecurity risk of the individual. While this provision allows officers to ask questions of a broader scope than in clause 52 above, the questions must still be related to assessing biosecurity risks. The Act also contains separate powers to allow officers to ask questions in relation to biosecurity risks posed by goods (Chapter 3) and conveyances (Chapter 4). Clause 54 Asking questions and requiring answers from any individual This power differs from clause 53 above, in that an officer may ask any person questions if: 151

the officer is satisfied that an individual has one or more signs or symptoms of a listed human disease the officer is satisfied the person has been exposed to another individual who has signs or symptoms of a listed human disease, or the question relates to human remains, a death in transit or someone who has died on arrival. The power allows an officer to ask questions of fellow passengers, crew or family and friends that were travelling with the ill individual. The presence of a sign or symptom of a listed human disease provides a sufficient causal link to justify asking questions of those who have travelled near the ill individual or an individual who has died in transit. The purpose of asking questions has been cast broadly to include the purpose of preventing the entry, establishment, emergence, or spread of a disease and preventing the spread of a listed human disease to another country. Clause 55 Requiring an individual to provide written information This power allows an officer to require an individual to provide written information if: the officer is satisfied that an individual has one or more signs or symptoms of a listed human disease the officer is satisfied the person has been exposed to another individual who has signs or symptoms of a listed human disease, or the question relates to human remains, a death in transit or someone who has died on arrival. This allows an officer to ask questions of fellow passengers, crew or family and friends that were travelling with the ill individual. The presence of a sign or symptom of a listed human disease provides a sufficient causal link to justify asking questions of those who have travelled near the ill individual or an individual who has died in transit. The purpose of asking questions has been cast broadly to include the purpose of preventing the entry, establishment, emergence, or spread of a disease and preventing the spread of a listed human disease to another country. Clause 56 Offence for failing to comply with a requirement This provision imposes a penalty on individuals who fail to answer a question or provide written information when required under this division. This is a penalty of strict liability. Part 3--Managing risks to human health: human biosecurity control orders Division 1--Introduction Clause 57 Guide to this Part This clause provides a guide to this Part. 152

Division 2--Imposing human biosecurity control orders on individuals Subdivision A--imposing, varying and revoking human biosecurity control orders (HBCO) Clause 58 Imposing a human biosecurity control order on an individual A HBCO is an administrative tool for managing human biosecurity risks in an individual. This power outlines the officers who can impose a HBCO, noting that some measures imposed under a HBCO are personally invasive and therefore restricted in their application to those officers with clinical expertise or who are medical practitioners. This power also provides the threshold test for applying a HBCO. A HBCO may only be applied where there are signs and symptoms of or exposure to a listed human disease; or an entry requirement relating to a listed human disease has not been complied with. This restricts intervention to only those diseases identified by the Director of Human Biosecurity as warranting Commonwealth intervention. It may be imposed on an individual on arrival in Australia. To facilitate this, the ability to apply the HBCO in the first instance is vested with a biosecurity officer. A biosecurity officer is restricted from applying any measures that require clinical expertise or qualifications to make informed decisions about management of an individual with a listed human disease. Clause 59 Contents of a human biosecurity control order A HBCO must include the following information: The grounds under which the HBCO was imposed - i.e. which limb of the threshold test at clause 58 has been satisfied The listed human disease in relation to which the order is imposed - this can include more than one listed human disease where the signs or symptoms are not sufficiently clear to point to only a single disease; noting that some listed human diseases will initially exhibit the same signs and symptoms If the person has signs or symptoms, those signs or symptoms The prescribed contact information, which will include name and address. Each biosecurity measure imposed or to be imposed and an explanation as to why the measure is required - this is included as a record of events under the HBCO; and information about how the biosecurity measure is to be undertaken The period in which the order is in force - up to a maximum of 3 months The HBCO must also explain the responsibilities and liabilities of the individual and the Commonwealth. Paragraph (h)(i) outlines this, including requirements to notify of contact details, review and offences for non-compliance The HBCO must also contain contact details of a chief human biosecurity officer that an individual may contact for information and support. The content outlined in this provision provides information for the individual and other officers to facilitate the management of a listed human disease. The requirement to provide an explanation why a particular measure is being imposed helps the individual to understand why they are subject to a HBCO. It also imposes an obligation on the officer to turn their mind to the reasons for imposing a measure, and that they have considered the principles in making the decision. 153

A maximum duration of 3 months has been specified in part to address the difficulties with diagnosing and treating the disease. The principles apply to ensure an officer does not apply a measure or enforce the HBCO for longer than is reasonably necessary to address the risk. The order cannot be extended. If the time expires and the individual still requires management, a new HBCO must be created. This ensures all the tests are revisited and also provides that a HBCO cannot be kept in place indefinitely. The provision of contact details for a chief human biosecurity officer is to ensure an individual has an avenue to contact a medical practitioner who can provide expert advice. Consent is not required by an individual before a HBCO is imposed, however there are requirements for notifying a person they are subject to a HBCO (see clause 61) and consent is required for all biosecurity measures. There are also a range of review mechanisms (see Subdivisions D and E of this part). Clause 60 Form of a human biosecurity control order A HBCO must be in the form approved by the Director of Human Biosecurity. This allows for consistent application of the requirements of the Act. Clause 61 Giving a human biosecurity control order to an individual This provision requires officers to give a copy of the HBCO to the individual. If they cannot do so as soon as reasonably practicable, then the officer must read the HBCO to the individual and follow up with the written form within 24 hours. If the contents of the order or the written HBCO are not provided within 24 hours the HBCO is invalid. As a HBCO does not require consent to be applied, it is essential that a person is given a copy of the HBCO. It is also good regulatory practice that a person is made aware that they are subject to obligations under the Act. The option to read out the HBCO and follow up with a written copy was developed to address issues that arise in remote locations where the officer may be making verbal orders over the phone. They must follow up with the written copy, which can be send via email, fax etc. Clause 62 Varying a human biosecurity control order A variation to a HBCO must be related to the risk posed by the person or be of a minor technical nature. There are limitations on the power to vary, as not all officers may apply all measures. An officer may only vary measures that he/she may validly impose. This prohibits biosecurity officers from varying a measure that is restricted in its application to a human biosecurity officer or a chief human biosecurity officer. Clause 63 Giving notice of a variation to a human biosecurity control order Consistent with giving a human biosecurity control order to an individual at clause 61, this provision requires the officer to give a copy of the varied HBCO to the individual. If they cannot do so as soon as reasonably practicable, then the officer must read the HBCO to the individual and follow up with the written form within 24 hours. If the contents of the varied order or the written HBCO are not provided within 24 hours the HBCO is invalid. 154

Clause 64 Revoking a human biosecurity control order A chief human biosecurity officer or a human biosecurity officer may revoke a HBCO in two circumstances: if the officer is satisfied that the individual does not pose a risk of contagion; or the order no longer contributes to reducing the risk of a listed human disease entering, emerging, establishing or spreading in Australia. This provision allows for an officer to revoke a HBCO where there is no longer a contagion risk; or where the risk is widespread in the community and a HBCO no longer contributes to reducing or controlling the risk. This ensures that Commonwealth intervention is only sustained for as long as is necessary or appropriate to manage the risk. A HBCO may also expire. An officer may specify when all measures applied expire and thus the HBCO also expires. Alternatively the HBCO expires after 3 months if not revoked earlier (see also clause 59). Clause 65 Notifying Director of Human Biosecurity of imposition, variation or revocation of human biosecurity control order This provision requires all officers imposing, varying or revoking an HBCO to inform the Director of Human Biosecurity that this has occurred. Subdivision B--Powers if officer intends to impose human biosecurity control order Clause 66 Requiring an individual to remain at a place This power allows an officer to require an individual to remain at specified place for up to 6 hours. This allows the officer time to seek information and impose a HBCO if it is required. The individual may be detained (see clause 101) for up to 4 hours to enforce this requirement. Clause 67 Providing contact information In proposing to apply a HBCO, an officer may require an individual to provide the prescribed contact information. Contact information will be prescribed in the Regulations, and will include the individual's name, address, contact phone number and passport number. Clause 68 Requirement for an individual to notify changes to contact details An individual subject to a HBCO must notify a chief human biosecurity officer as soon as practicable if their prescribed contact information changes. It is essential that the Commonwealth has valid contact information for any individual subject to a HBCO. Subdivision C--When an individual is required to comply with a biosecurity measure Clause 69 Consenting to a biosecurity measure A person may consent to a biosecurity measure included in a HBCO. If an individual does not consent to a measure, then an officer may apply to the Director of Human Biosecurity for a direction to comply under clause 70. Clause 70 Director of Human Biosecurity may give direction requiring compliance This provision allows for the Director of Human Biosecurity to make an administrative decision as to the validity of the measure and to issue a direction to comply. A failure to 155

comply with this direction permits the Director to seek enforcement of the decision by a court. In circumstances where an individual has refused to comply with a biosecurity measure, an officer may request the Director of Human Biosecurity to issue a direction to an individual to comply with the biosecurity measure. In deciding whether to issue a direction, the Director of Human Biosecurity must conduct a review of the diagnosis and the biosecurity measure proposed to be included in the HBCO. The Director must take into account the reasons why the individual has refused to consent, and factors which may affect that individual's health, The Director of Human Biosecurity may also take into account any other matter they consider relevant. If requested, the Director of Human Biosecurity must perform a review and advise the individual of the outcome of that review within 72 hours. The Director of Human Biosecurity must perform an internal review, every 28 days, on all directions relating to measures where review via the ADJR and AAT is not available. Clause 71 When a direction to comply with biosecurity measures ceases to be in force This provision specifies when a direction given in accordance with clause 70 to comply with a biosecurity measure ceases to be in force. Clause 72 When an individual is required to comply with a biosecurity measure If the Director of Human Biosecurity issues a direction to comply with measures under clause 83 (managing contacts), clause 87 (Decontamination), clause 88 (examination), clause 89 (body samples), or clause 90 (Vaccination or treatment), the individual is required to comply with the direction when: the 7 day period to seek external merits review under the ADJR Act has expired and an application has not been made; or an application for review has been made under the ADJR Act, the application has been finally determined, and the resulting order is that the individual is required to comply with the measure. For any other biosecurity measures, an individual is required to comply if the Director of Human Biosecurity has given a direction to comply under clause 70, and the direction has not lapsed. Although the Act does not include any specific provisions, this does not negate the general right of all individuals to seek a second medical opinion in relation to their medical diagnosis and treatment. If an individual seeks a second medical opinion, The Director of Human Biosecurity may take this into account when making a decision to issue a direction requiring an individual to comply with a biosecurity measure. Subdivision D--AAT review of isolation and traveller movement measures Clause 74 Applications Where the Director of Human Biosecurity has issued a direction to an individual to comply with an isolation or traveller movement measure, this power provides an individual with an 156

automatic, independent avenue for merits review of that decision through the Administrative Appeals Tribunal. The Commonwealth bears the obligation of informing individuals of their right to seek review. In the situation where an individual is subject to more than one decision, this provision specifies that an application made with respect to a decision (the first decision) is also taken to be an application relating to a further decision (the second decision), unless the AAT gives the individual notice to make a separate application. This allows the AAT to review similar decisions together, or direct the individual to make a second application if the second decision is of a different nature. Clause 75 Reasons and documents This provision specifies that s28 (obtaining reasons for decision) of the AAT Act will not apply in respect to a direction by the Director of Human Biosecurity to comply with an isolation or traveller movement measure. Clause 70 requires the Director of Human Biosecurity to provide reasons for requiring an individual to comply with a biosecurity measure. In addition, this provision instead places an obligation for the Director of Human Biosecurity to provide to both the Tribunal and the individual, reasons for the decision and every other document that is in the Director's possession or under his/her control, and is relevant to the review of the decision by the Tribunal. The Director of Human Biosecurity must be notified as soon as possible under s29(11) of the AAT Act that an application for review has been made, and must lodge all relevant documents within 2 days. In the instance where a second decision is made with respect to an individual, the Director of Human Biosecurity must inform the AAT as soon as possible that a second decision has been made, and relevant documents must be lodged within 2 days. The AAT may extend the timeframe for any documents to be lodged, and this will ordinarily be in writing. However this may not occur during times where the Tribunal is required to manage the review of a large number of decisions in a short period of time. Clause 76 Time period for making a decision This power requires the Tribunal to make a decision with respect to directions which are in force within 7 days, to ensure the continued ability of the Commonwealth to protect public health and manage the risk of contagion posed by an individual. The Tribunal may extend the time to make a decision if they are satisfied it is reasonable to do so, but may only extend the time period once. If the Tribunal does not make a decision within 7 days, or within the specified extended time period, then the decision by the Director of Human Biosecurity is taken to be affirmed. Clause 77 Limitation on Administrative Appeals Tribunal power to stay etc decisions This provision prevents the Tribunal from making an order to stay a decision despite subsections 41(2) to (6) of the AAT Act. Individuals that are subject to an isolation or traveller movement measure have demonstrated signs or symptoms of, or exposure to, a listed human disease. The individual has been isolated or restricted from travelling because they pose a serious communicable disease risk to the community. This prevents an individual from being released from isolation or travelling on an international passenger airline or vessel, while they pose a risk of contagion to the community. 157

Subdivision E--Other provisions relating to external review of isolation and traveller movement measures Clause 78 Time period for making applications under the Administrative Decisions (Judicial Review) Act 1977 Under the ADJR Act, an individual has 28 days to seek review of an administrative decision. The Commonwealth has a reduced capacity for managing the risk of contagion during the period that an individual has available to submit an application for review. This provision requires individuals to submit the application for review within seven days, to allow for the continued management of disease risk. The Commonwealth bears the obligation of informing individuals of their right to seek review. Clause 79 Judicial review of isolation and traveller movement measures An individual may seek review of a traveller movement measure or isolation measure under the Judiciary Act 1903 (Cth), the Administrative Decisions (Judicial Review) Act 1977, or under s75 of the Constitution. Under this provision, a requirement for an individual to be subject to a traveller movement measure, or remain isolated under a HBCO, remains in force unless a court finally determines the validity of the decision to impose the requirement. Whilst an individual may seek review of the decision to impose a traveller movement measure or isolation order in a court; this provision ensures that they must remain in isolation, or the traveller movement measure remains in place, until the court has comprehensively reviewed the case and made a final determination. The intention of this provision is to ensure that where an individual is subject to a traveller movement measure, or has been placed in isolation to manage their disease risk, a temporary injunction cannot be sought to release the individual, pending a court determination as to the validity of the decision to impose the measure in question. This provision does not extend the ordinary operation of an isolation or traveller movement measure. Isolation and traveller movement measures will cease to be in force if they would have ordinarily expired while the individual seeks review. Division 3--Biosecurity measures that may be included in a human biosecurity control order Subdivision A--General provisions relating to including biosecurity measures in a human biosecurity control order Clause 80 Who can include a biosecurity measure in a human biosecurity control order There are 2 types of human biosecurity officers established in Chapter 11 of the Bill. Chief Human Biosecurity Officers are state and territory officers authorised by the Director of Human Biosecurity, and must be medical practitioners. 158

Human Biosecurity officers are state, territory or Commonwealth officers appointed by the Director of Human Biosecurity. State and territory officers are nominated by their respective state or territory under an arrangement with the Commonwealth. Human Biosecurity Officers are authorised by the Director of Human Biosecurity if he/she is satisfied that the person has appropriate clinical expertise. The Director of Human Biosecurity must specify training and qualification requirements for Chief Human Biosecurity Officers and Human Biosecurity Officers. As they are vested with medical qualifications or clinical expertise, all chief human biosecurity officers and human biosecurity officers may apply all biosecurity measures. Biosecurity officers may only include a restricted range of biosecurity measures in a human biosecurity control order. Biosecurity officers do not have medical expertise and are therefore restricted to applying biosecurity measures that are not personally invasive and do not require medical expertise to apply. Clause 81 Informing individuals of the risk This provision requires all officers to take reasonable steps to explain the risk of a listed human disease to the individual's health and the health of the public. It is intended that this step will assist in obtaining consent to the taking of biosecurity measures. It also imposes an obligation on the Commonwealth to explain the risks and ensure the individual can make an informed decision about the management of their health. Clause 82 Test for including a biosecurity measure in a human biosecurity control order There is a single threshold test for the application of any and all biosecurity measures - that the application of a measure contributes to reducing or controlling the risk of contagion of a listed human disease; or a listed human disease entering Australia, or emerging, establishing itself or spreading in Australia. The use of a single threshold test for the application of all measures allows for consistent decision making and reduces the administrative burden of satisfying multiple tests for the management of a single listed human disease. Subdivision B--Biosecurity measures that may be included in a human biosecurity control order Clause 83 Managing contacts In many cases, an individual will have exposed others to a listed human disease before they are identified by an officer. In these circumstances, the Commonwealth will seek to identify and contact any individuals who have travelled with, or been in close contact with, the ill individual. The Commonwealth may then follow up with the individual and their contacts to inquire after their health and to ascertain if they have any signs or symptoms of a listed human disease. This is essentially a contact tracing power, and also acts as an authorisation for sharing protected information that would otherwise be in contravention of the Privacy Act 1988. 159

Clause 84 Contacting officer with health status This power requires a person to contact an officer with information regarding the presence or absence of signs or symptoms of a listed human disease for a specified period of time. In many cases an individual will not have sufficient signs or symptoms of a listed human disease to warrant intensive intervention; however they may pose a risk, and may be asked to provide updates to a specified officer on the presence or absence of signs or symptoms of a listed human disease. This allows the Commonwealth to monitor an individual while allowing them to continue their journey or return home. If an individual develops further signs or symptoms, an officer may vary a HBCO and apply additional biosecurity measures to better manage the risk. Clause 85 Restricting behaviour An individual may be required to do, or not to do, any of the following activities: Going to and remaining at the individual's intended place of residence Not to visit a specified place or class of place where there is an increased risk of contagion Not to have contact with a class of individuals where the class is of increased risk of exposure. In some circumstances, an individual who has, or is suspected of having, a listed human disease does not have to be managed in a medical facility. The most effective and least restrictive and invasive decision may be to allow the individual to go home, subject to restrictions in their behaviour. This may include advising them to not go to work or to places where there is a high risk of contagion. It may also include restricting their exposure to particular classes of people, such as children, pregnant women or the elderly. The terminology with respect to `specified place or class of place' has been described in terms of the risk of contagion rather than in terms of the type of place, so as not to restrict its application to places of a certain size or character. It may include a workplace, school or hospital facility. This power may be imposed by a chief human biosecurity officer or human biosecurity officer. Clause 86 Risk minimisation interventions This power allows an officer to require an individual to wear specified clothing or equipment (such as a face mask or gloves). The officer must specify the circumstance where they must be worn; the period in which it is to be worn and instructions for correct wear. For listed human disease that are respiratory in nature, effective mitigation measures may include wearing facemasks and gloves to prevent the spread of airborne disease particles. This power may be imposed by a chief human biosecurity officer, human biosecurity officer, or biosecurity officer Clause 87 Decontamination This provision allows for decontamination of an individual and their personal effects where the suspected listed human disease can be carried on the body and transmitted by close contact. An officer must specify when and where the decontamination is to take place and who is to conduct the decontamination. 160

This power, if applied, it would need to be undertaken immediately to contain the contagion risk or to prevent establishment, emergence or spread of a listed human disease. Decontamination of an individual may be exercised by chief human biosecurity officers or human biosecurity officers. Decontamination of personal effects may be exercised by chief human biosecurity officers, human biosecurity officers or biosecurity officers. Clause 88 Undergoing an examination This power allows for a chief human biosecurity officer or a human biosecurity officer to require an individual to undertake a specified examination relating to the diagnosis of a listed human disease. Safeguards have been provided by restricting the undertaking of an examination to a medical facility and providing that an individual may seek a review of the decision. This power may be imposed by chief human biosecurity officers or human biosecurity officers. Clause 89 Requiring body samples for diagnosis An individual may be required to provide body samples for determining the presence of a listed human disease. Regulations must specify taking, storage, transport and labelling of samples, and may also specify any other purpose for which body samples may be collected. Samples may also be provided to the World Health Organization (WHO), on request, for use in detecting, assessing or responding to a listed human disease. This is consistent with Australia's obligations under the IHR to assist the WHO and State Parties in addressing international disease threats. Safeguards have been provided with respect to this power by restricting the collection of body samples subsequent to examination at a medical facility. Body samples may only be required by a chief human biosecurity officer or a human biosecurity officer. Clause 90 Receiving a vaccination or treatment An individual may be required to receive a specified vaccination or undergo a specified form of treatment in order to manage a listed human disease. This requirement may only be imposed after an examination at a medical facility has been undertaken. This power may be imposed by a chief human biosecurity officer or a human biosecurity officer. Clause 91 Receiving medication This differs from the power at clause 90, in that it allows for an individual to be directed to take medication to manage a listed human disease outside of a specified medical facility. Management of some communicable diseases may require long term medication but not hospitalisation, and this allows for individuals who no longer present a risk of contagion to continue medication and complete their treatment outside of a medical facility. This power may be imposed by a chief human biosecurity officer or a human biosecurity officer. 161

Clause 92 Appropriate medical or other standards to be applied A biosecurity measure conducted under clause 88 (examination), clause 89 (requiring body samples for diagnosis), or clause 90 (receiving vaccination or treatment) must be carried out in a manner consistent with appropriate medical standards and/or other relevant professional standards. The provision is intended to ensure that appropriate medical and/or professional standards are complied with in undertaking personally invasive measures. Clause 93 No use of force to require compliance with certain biosecurity measures This provision prevents the use of force against an individual to require them to comply with any biosecurity measures that are included in a HBCO. However, reasonable force may be used to prevent an individual from boarding an overseas vessel or aircraft in contravention of a Traveller Movement Measure (clause 94); or to detain a person who fails to comply with an isolation order (clause 95). The use of force is restricted to law enforcement for the purposes of clause 101 and requiring a person to remain at a place in clause 66; and to an officer of customs for the purpose of clause 99. Clause 94 Traveller movement measure An individual may be placed under a traveller movement measure, which has the effect of restricting the individual's departure from Australia on an overseas passenger aircraft or vessel for up to 28 days. Travel restrictions apply only to overseas passenger aircraft and vessels. An individual may leave Australian on any other aircraft or vessel. Overseas passenger aircraft and vessels pose a high risk of contagion because they carry hundreds of passengers that will be in close proximity to the ill individual for many hours. A traveller movement measure may only be applied where an individual poses a significantly high risk of contagion risk and has indicated an intention to leave Australia or is suspected of intending to do so. This power does not require consent; however the individual must be notified that they are subject to the restriction. If a restriction is applied, a traveller movement alert must be issued; notifying border agencies and state and territory health departments of the details of the restriction (see clause 96). This power may be imposed by a chief human biosecurity officer or human biosecurity officer. Clause 95 Order into isolation An individual who is at a medical facility may be required to remain isolated until the individual is authorised, in writing, to leave. Isolation in many cases is considered the measure of last resort, and is applied where consent is not given for less invasive or less restrictive measures or alternative measures have not been effective. 162

This power may be imposed by a chief human biosecurity officer or human biosecurity officer. Subdivision C--Provisions relating to traveller movement measures Clause 96 Traveller movement measure alert The Director of Human Biosecurity must alert the agencies/departments in subclause (1) and may alert the agencies/departments in subclause (3) that a traveller movement measure has been applied to an individual. To ensure that an individual who has been placed under a traveller movement measure is restricted from travelling, the Director of Human Biosecurity must notify border agencies and may notify operators of overseas passenger aircraft and vessels of the restriction and provide information about the individual. This power acts as an authorisation for sharing protected information that would otherwise be in contravention of the Privacy Act 1988. Clause 97 Contents of traveller movement measure alert An alert must include the name of the individual, his/her passport number, and a statement that a restriction is in force in relation to the individual and they must not board an overseas passenger aircraft or vessel. The alert must also specify the duration of the measure, any known travel details of the individual and the contact details for a chief human biosecurity officer that may be contacted for information in relation to the measure. The alert contains essential information to allow Commonwealth agencies and operators to correctly identify and enforce a traveller movement measure. Clause 98 Destruction of a traveller movement measure alert This power requires that all Commonwealth agencies and operators that are provided with a traveller movement measure alert must destroy the alert within 6 months of being advised that the alert is no longer in force. Clause 99 Prevention from leaving Australia A Customs officer may use reasonable force to prevent an individual who is subject to a traveller movement measure from boarding an overseas passenger aircraft or vessel. An individual is not detained or arrested by this power. While they are prevented from boarding the aircraft or vessel, they are free to leave the passenger terminal. Division 4--Other provisions relating to human biosecurity control orders Subdivision A--Consular assistance Clause 100 Consular assistance Where an officer or human biosecurity officer has applied a measure in a HBCO that requires an individual to remain at a place under clause 66 or isolated under clause 95; or an individual is detained under clause 101, and the individual is a non-citizen; the officer must as soon as practicable inform the individual that they may request consular assistance. 163

If this provision is not complied with by the officer, the individual must be released. An officer must provide an individual with the opportunity to contact their consular for assistance when any measure that results in restricting the individual's liberty is included in a HBCO. Subdivision B--Detention Clause 101 Detention This power allows a law enforcement officer to detain an individual where they fail to comply with an isolation measure or fail to remain at a specified place required under clause 66. Detention may only be performed by an officer of the Australian Federal Police, a state or territory police officer or a protected services officer. When enforcing an isolation order, the detention is for the purpose of moving the individual to the medical facility specified in that order. If the individual refuses to comply with an isolation order, the Commonwealth may seek an injunction from the court requiring the individual to stay isolated. In all decisions relating to the management of human biosecurity risk, the conflicting interests of the individual vs. the community must be considered. In some circumstances, the community risk is such that the individual must be detained to ensure they do not endanger the health of others. This may require an individual to be isolated. The power to detain an individual has been vested only in law enforcement officers as they have sufficient training and skills to ensure the power is exercised in line with Commonwealth guidelines. Clause 102 Rules relating to detention An officer must not use more force, or subject any individual to greater indignity, than is necessary and reasonable to detain the individual and prevent them from escaping detention. An officer must detain the individual in a place that affords the individual personal privacy. As soon as practicable after detaining the person, the officer must inform the detainee that they may communicate with any person, including a legal representative, and this must be facilitated. An individual must be released from detention when they comply with the measure, or 4 hours after the individual was first detained. Clause 103 Release from detention Detention must not be used as de-facto arrest power and is only applicable to ensure to ensure an individual remains at a specified place, or complies with an isolation measure. Where detention is used to require an individual to remain at a place under clause 66, detention must end after 4 hours. It cannot be re-applied. An officer must make a decision whether to take further action within the 4 hours or the individual must be released. When the detention is for the purposes of enforcing an isolation order, an individual is released from detention once they have been taken to the medical facility specified in the isolation order. However, the individual is still required to remain isolated at the medical facility as specified in the HBCO. 164

Clause 104 Offence for escaping from detention An individual commits an offence if the individual escapes from a detention under clause 101. Subdivision C--Miscellaneous Clause 105 Offence for failing to comply with a human biosecurity control order This provision imposes a penalty on individuals if they fail to comply with a biosecurity measure included in a HBCO, after the Director of Human Biosecurity has given a direction for that individual to comply with the requirement under clause 72. Clause 106 Expenses incurred complying with human biosecurity control orders The Commonwealth is liable to pay for reasonable expenses incurred in complying with a biosecurity measure as part of a HBCO. This provision is consistent with the recommendations of the IHR. Part 4--Managing biosecurity risks to human health: other biosecurity measures Division 1--Introduction Clause 107 Guide to this Part This clause provides a guide to this Part. Division 2--Managing deceased individuals Clause 108 Human remains brought into Australia Human remains are permitted into Australia without restriction unless they are a class of remains specified under subclause (2). The Director of Human Biosecurity may specify in an instrument the classes that are subject to particular requirements, and what those requirements are. Clause 109 Officer may specify requirements for managing human remains This power gives a biosecurity officer the power to intervene and manage any human remains if an officer is satisfied the remains are likely to be infected with a listed human disease. Clause 110 Individuals who have died in transit or on arrival This power provides for the Director of Human Biosecurity to specify requirements for the management of individuals that die in transit or on arrival in Australia. Consistent with the management of human remains at clause 108, individuals who have died in transit are to be managed as individuals under the Act, rather than as goods. Unlike the importation of human remains, there is no person who is clearly responsible for an individual who has died in transit. In all cases, the individual will be referred to the state or territory for management. This power is provided to allow the Director of Human Biosecurity to manage any imminent biosecurity risk posed by the body at the point of arrival in Australia and before they become the responsibility of the state or territory. 165

Division 3--Human Health Response Zones Clause 111 Determining human health response zones The Director of Human Biosecurity may determine that a specified area of a state or territory is a biosecurity response zone if the Director of Human Biosecurity is satisfied that it is necessary for the purposes of preventing the emergence, establishment or spread in Australia of a listed human disease. The determination must specify the listed human disease to which the determination relates and any entry or exit requirements for individuals entering or leaving the zone. The Director of Human Biosecurity must be satisfied that the requirements are appropriate and adapted to prevent, or reduce the possibility of, the emergence, establishment or spread in Australia, of the specified listed human disease. The determination can only be in place for up to 3 months. This provision has been drafted to address isolated, short term incidents or outbreaks of a listed human disease. It allows the Commonwealth to activate the provisions of the Act to prevent or reduce the possibility of the emergence, establishment or spread of the disease, and is designed to complement existing state and territory legislation. If the incident or outbreak spreads beyond a single state or territory, an emergency must be declared and the zone will cease to be in force. Clause 112 Consultation requirements Before making a determination under clause 111, the Director of Human Biosecurity must consult with the Chief Health Officer for each state or territory in which the zone will lie; and the Director of Biosecurity. This provision ensures that the state/territory in which the zone is created is fully aware of the intervention of the Commonwealth to address the biosecurity risk. The Director of Biosecurity is also notified in the event the risk has implications for animal or plant health; or where biosecurity officers are requested to assist in managing the risk within the zone. Clause 113 Notification requirements This provision is intended to place an obligation on the Commonwealth to make public the declaration of a response zone. It is essential that individuals directly affected by the declaration of the zone are notified that provisions of the Act may be applicable to them. This requirement is in addition to the requirement under the Legislative Instruments Act 2003 that requires the determination to be published on the Federal Register of Legislative Instruments. Clause 114 Civil penalty for failing to comply with a requirement of a human health response zone determination This provision imposes a civil penalty on individuals who fail to comply with a requirement that is specified in a human health response zone determination under clause 101. 166

Chapter 3 - Managing biosecurity risks: goods Part 1--Goods brought into Australia territory Division 1--Introduction Clause 115 Guide to this Part The Part provides powers to manage biosecurity risks associated with goods brought in or imported into Australian territory from overseas. The Part provides that goods become subject to biosecurity control when they enter Australian territory. Once they are subject to biosecurity control, this Part provides powers to assess and mange biosecurity risks associated with these goods. In addition biosecurity officers will have the power give directions concerning the unloading of goods from a conveyance. The Part also sets out the mechanisms for releasing goods from biosecurity control. Clause 116 Objects of this Part The objects of Part 1 are to provide for the assessment of the level of biosecurity risk associated with goods being brought or imported into Australian territory; and to provide for biosecurity measures to be taken in relation to those goods if the level of biosecurity risk associated with them is considered to be unacceptable. Consistent with the objects of Part 1, Division 4 of Part 1 provides biosecurity officers with the power to take action to assess the level of biosecurity risk, such as inspecting goods, asking questions or requiring documents to be produced in relation to goods or giving a direction regarding the movement of goods. If the level of biosecurity risk associated with the goods is found to be unacceptable during the assessment phase, biosecurity officers have powers under Division 5 of Part 1 to require biosecurity measures to be taken to manage the risk. Division 2--Goods are subject to biosecurity control Clause 117 Goods brought into Australian territory are subject to biosecurity control This clause applies in relation to goods that are brought into Australia territory on an aircraft or vessel that has entered Australian territory during a flight or voyage that commenced outside Australia. These goods become subject to biosecurity control when the aircraft or vessel carrying the goods enters Australian territory. Being subject to biosecurity control enlivens the powers in this Part, to assess or manage the biosecurity risks associated with the goods. This threshold for becoming subject to biosecurity control reflects the biosecurity risks associated with goods brought into Australia from overseas. Any goods that arrive from outside Australian territory provide a direct pathway for biosecurity risks to enter into Australian territory. The policy of subject to biosecurity control enables an assessment of the biosecurity risks that may be present and management of those risks. The goods will remain subject to biosecurity control until they have been released from biosecurity control in accordance with Division 10 of this Part. 167

In order to ensure that the powers in this Part are available to assess and manage biosecurity risk associated with these goods, goods which are released from biosecurity control by virtue of leaving Australian territory on an aircraft or vessel that is travelling between places in Australia will become subject to biosecurity control when the aircraft or vessel re-enters Australian territory. For example, a vessel arriving from overseas may arrive at an Australian port, after unloading goods, it may move to another port, these provisions ensure that if the vessel happens to leave Australian territory on its voyage to the other Australian port, the goods on board the vessel, remain subject to biosecurity control when in Australian territory. Division 3--Notice of goods to be unloaded in Australian territory Clause 118 Notice must be given of goods to be unloaded in Australian territory Clause 118 sets out the requirements for a notice to be provided that goods are intended to be brought or imported into Australian territory and unloaded at a port or landing place--in order to allow for the assessment of biosecurity risks with the goods. The notice will also be required for transhipped goods and goods brought in for temporary purposes. An example of transhipped goods is where a container is unloaded at a port, travels to another port by road, and is loaded onto another vessel. This clause also outlines the requirements of the notice. Specifically, the notice must: include the information in relation to the goods that is prescribed by the regulations be given in the manner, and to the person prescribed by the regulations be given during the period prescribed by the regulations (which may end at any time before or after the goods are unloaded), and be in a form or forms approved by the Director of Biosecurity. Details of each of these requirements are to be prescribed in the regulations. Prescribing these details in the regulations gives the Commonwealth flexibility to amend the information required to be provided, and how and when the information is to be given in response to changes in level of biosecurity risk. The notice must be given by a person prescribed by the regulations in relation to the goods. The prescribed person will be the person who has access to the information set out in the notice. Additionally, the regulations may also prescribe exceptions to the requirement to give a notice under this section. For example, it is envisaged that personal baggage and international mail will be exempted from these requirements. This clause provides that a person prescribed by the regulations in relation to the goods must provide the notice, and provides that the maximum penalty for contravention of this provision is two years imprisonment, or a fine of 120 penalty units, or both. A contravention may also give rise to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. To rely on the exception, a person bears the evidential burden which means that the defendant must adduce evidence which points to being exempted by the regulations. It will then be incumbent on the prosecution to establish that this exception does not apply. Additionally, a person may commit an offence or contravene a civil penalty if the person provides false or misleading information or documents (see clauses 507 and 508 in relation to 168

civil penalties and sections 137.1 and 137.2 of the Criminal Code for details of these offences). This clause provides that the requirements in this clause apply whether or not the person is in Australian territory when the notice is required to be given or when the goods are unloaded. This clause is not subject to the privilege against self-incrimination (see clause 661). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as it will allow biosecurity officers to determine whether an unacceptable biosecurity risk is present and put appropriate biosecurity measures in place to address that risk. Given the potential seriousness of the biosecurity risk and the need for a timely response it is not preferable to wait for a warrant to be issued to obtain this information. Whilst the privilege against self-incrimination is abrogated in relation to this clause, the Bill provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person (see clause 661). Clause 119 Notice of goods to be unloaded in Australian territory - requirement to give additional or corrected information This clause creates an obligation on the person who provided notice under clause 118 to provide additional or corrected information where the information provided in the original notice is incomplete or incorrect. This clause provides that the maximum penalty for contravention of this provision is two years imprisonment, or a fine of 120 penalty units, or both. A contravention may also give rise to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. In addition, sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents. This information will allow more accurate assessment of biosecurity risk associated with the goods which is intending to enter in Australian territory. As this requirement relates specifically to the notice provided under clause 117 the requirement to provide additional or correct information is not subject to the privilege against self-incrimination. This information will allow more accurate assessment of biosecurity risk associated with the goods which are intended to be unloaded in Australian territory if the circumstances surrounding the goods change. This clause is not subject to the privilege against self-incrimination (see clause 661). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as it will allow biosecurity officers to determine whether an unacceptable biosecurity risk is present and put appropriate biosecurity measures in place to address that risk. Given the potential seriousness of the biosecurity risk and the need for a timely response it is not preferable to wait for a warrant to be issued to obtain this information. Whilst the privilege against self-incrimination is abrogated in relation to this clause, the Bill provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person (see clause 661). 169

Division 4--Assessment of level of biosecurity risk Clause 120 Biosecurity risk assessment powers This clause provides that the assessment powers in this Division apply and can be exercised in relation to goods that are subject to biosecurity control or exposed goods which have an exposed goods order in force (see Division 9) for the purposes of assessing the level of biosecurity risk. Clause 121 Direction to secure goods This clause provides a biosecurity officer with the power to secure goods in a specified mannerfor example, by giving a direction to ensure that the goods not be moved. A biosecurity officer may direct the person in charge of goods to secure the goods. Securing the goods will allow a biosecurity officer to exercise the other assessment powers in this Division, and ensures that any biosecurity risks associated with the goods are contained. A person who contravenes a direction to secure the good is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. Clause 122 Inspecting goods and taking samples This clause provides a biosecurity officer with the power to inspect and take samples of goods to identify whether a disease or pest is present and assess the level of biosecurity risk. A biosecurity officer may inspect, search and physically examine the goods. A biosecurity officer may take and test samples of the goods themselves. Alternatively he or she may direct a person in charge of the goods to deliver samples of the goods, or arrange for a person with appropriate qualifications or expertise to take samples and test the goods. For example, where the goods are in a remote location, the biosecurity officer may arrange for a person to take samples and send them to be assessed. A person who contravenes a direction to provide a sample is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. Clause 123 Asking questions about goods This clause provides biosecurity officers with the power to require a person to answer questions in relation to the goods. Where a biosecurity officer suspects on reasonable grounds that a person has information in relation to the goods, the officer may require the person to answer questions or provide information in writing in relation to the goods. This power assists biosecurity officers to assess the level of biosecurity risk associated with the goods by ensuring that the biosecurity officer has access to all the necessary information to determine the level of biosecurity risk. For example, a biosecurity officer may ask questions or seek information about the previous movements of the goods in order to determine whether the goods have been in a location known to have a specific biosecurity risk A person who contravenes a requirement to answer questions or provide information is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. In addition, section 137.1 of the Criminal Code creates an offence for providing false or misleading information. 170

This clause is not subject to the privilege against self-incrimination (see clause 661). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as it will allow biosecurity officers to determine whether an unacceptable biosecurity risk is present and put appropriate biosecurity measures in place to address that risk. Given the potential seriousness of a biosecurity risk and the need for a timely response it is not preferable to wait for a warrant to be issued to obtain this information. Whilst the privilege against self-incrimination is abrogated in relation to this clause, the Bill provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person (see clause 661). Clause 124 Requiring documents in relation to goods to be produced This clause provides biosecurity officers with the power to require a person to produce documents in relation to goods. Where a biosecurity officer suspects on reasonable grounds that a person has custody or control of specific documents in relation to goods, the biosecurity officer may require the person to produce those documents. A biosecurity officer may make copies of, or take extracts from a document that has been produced, and may remove the document from the place where it was produced in order to make copies or take extracts. Similar to clause 123, this power assists biosecurity officers to assess the level of biosecurity risk associated with the goods by ensuring that the biosecurity officer has access to all the necessary information to determine the level of biosecurity risk. A person who contravenes the requirement to produce documents may be subject to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. In addition, section 137.1 of the Criminal Code creates an offence for providing false or misleading information. This clause is not subject to the privilege against self-incrimination. For the reasons previously discussed in the notes to clause 123, the privilege against self-incrimination is abrogated to give biosecurity officers timely access to documents to effectively assess risks and ensure that appropriate biosecurity measures are in place to manage identified biosecurity risks (see clause 661 for further discussion of the privilege against self-incrimination). Clause 125 Movement etc. of goods This clause provides biosecurity officers with the power to give directions to a person in charge of goods. A biosecurity officer will be able to give a direction to not move, deal with or interfere with the goods. This will be used to ensure that any potential pests or diseases in or on the goods are contained. In addition, the biosecurity officer may give a direction that the goods be moved as soon as practicable to a place specified by a biosecurity officer, or any other direction relating to the movement of the goods. This will allow a biosecurity officer to direct that goods be moved to an area where potential risks can be reduced or better managed, for example that timber products be moved away from forested areas. The biosecurity officer will also have an ability to cause goods to be moved. This power can be used, for example where a person in charge contravenes a direction to move the good. A person who contravenes a direction to relating to the goods is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. 171

Clause 126 Biosecurity control notice may be affixed to goods or given to person in charge of goods This clause provides a biosecurity officer with the power to affix a biosecurity control notice to or near to the goods or to provide a notice to the person in charge of the goods. This power ensures that biosecurity officer can affix notices to provide notice that goods are subject to biosecurity control and movements are restricted. This clause provides that a person must not interfere with, remove or deface the notice affixed to the goods unless the person is authorised to do so under an approved arrangement, or he or she has been given a direction by a biosecurity official or otherwise has permission under the Act. A person who interferes with, removes or defaces the notice in contravention of this clause is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. It will be an exception to be authorised under an Australian law to interfere, remove or deface the notice. To rely on the exception, a person bears the evidential burden, which means that the defendant must adduce evidence which points to the authorisation. It will then be incumbent on the prosecution to establish that this exception does not apply. Clause 127 Unauthorised persons must not move etc. goods in relation to which a direction has been given This clause applies to goods that are the subject of a direction to secure under clause 121, a direction not to move, deal or interfere with, or any other direction relating to its movement under clause 125, goods which have been moved under clause 125 or goods to which a biosecurity control notice is affixed under clause 126. This clause provides that a person must not move, deal or interfere with these goods unless the person is authorised to do so under an approved arrangement, or he or she has been given a direction by a biosecurity official or otherwise has permission under the Act. A person who moves, interferes or deals with the goods in contravention of this clause is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. It will be an exception to be authorised under an Australian law to move, interfere or deal with the goods. To rely on the exception, a person bears the evidential burden, which means that the defendant must adduce evidence which points to the authorisation. It will then be incumbent on the prosecution to establish that this exception does not apply. Division 5 -- Biosecurity measures to manage unacceptable level of biosecurity risk Clause 128 Biosecurity measures may be required in relation to goods This clause provides that where a biosecurity officer suspects, on reasonable grounds, that the level of biosecurity risk associated with the goods that are subject to biosecurity control is unacceptable, the officer may require biosecurity measures to be taken in relation to the goods as set out in this Division. These biosecurity measures allow a biosecurity officer to manage biosecurity risks to an acceptable level. This power also extends to exposed goods (see clause 159). 172

Clause 129 Movement of goods This clause provides that biosecurity officers can require goods to be moved to a particular place, to be left at as specified place for a specified period of time or require any other action relating to the movement of the goods. This power ensures that a biosecurity officer can, for example, move goods to a location which would reduce the level of biosecurity risk posed by the goods, or to places where biosecurity measures can be carried out. For example, a biosecurity officer may give a direction to move a shipping container to a wash bay. A person who contravenes a direction relating to the movement of the goods, may commit an offence or be liable for a civil penalty (see clause 137). Clause 130 Treatment of goods This clause provides biosecurity officers with the power to require that goods be treated in a specific manner. If the goods are high-value goodsthat is the value of the goods is greater than the amount prescribed in the regulationthe goods must not be treated in a way that the biosecurity suspects may damage the goods without the written approval of the Director of Biosecurity. This extra step reflects the impact ordering such a treatment might have on the owner of the goods and the potential loss of value caused by the treatment. Regardless of the value of the goods, if the treatment might damage the goods, a person in charge must be asked to agree to the treatment (see clause 131). This power ensures that biosecurity officers can order necessary treatments for goods to manage biosecurity risks and reduce those risks to an acceptable level. For example, a biosecurity officer may require goods with an ant infestation to be fumigated. A person who contravenes a direction relating to the treatment of the goods may commit an offence or be liable for a civil penalty (see 137). Clause 131 Treatment that may damage goods This clause outlines the requirements for notifying the person in charge of goods where a biosecurity officer suspects on reasonable grounds that the treatment required under clause 130 is likely to damage the goods. Before any treatment is carried out, a biosecurity officer must, by notice in writing or orally, inform a person in charge of the goods that the treatment is likely to result in damage to the goods and request the person to agree to the treatment of the goods. A biosecurity officer will be able to carry out the specified treatment without having to meet the notification requirements if he or she suspects on reasonable grounds that a disease or pest that may be present in or on the goods may pose a high level of biosecurity risk and that the goods must be treated as soon as practicable to manage the biosecurity risks to an acceptable level. If a notice is given requesting agreement to treatment, and a person in charge does not respond or does not agree to the treatment within 30 days, a biosecurity officer may in writing request that the person in charge arrange for the goods to be dealt with or destroyed within a specified period. If the person in charge does not comply with this request the 173

biosecurity officer may take possession of the goods and cause them to be exported, destroyed or otherwise disposed of. This clause allows a biosecurity officer to seek agreement and give a notice orally. This is appropriate for situations where the biosecurity officer is in direct contact with the person in charge of the goods, for example, at an airport where the officer is inspecting a person's baggage. The notification requirement gives a person in charge of goods a reasonable opportunity to address the biosecurity risks associated with the goodswith appropriate consequencesif the biosecurity risks have not be managed. The clause excludes a biosecurity industry participant from the definition of `person in charge' of goods, if the biosecurity industry participant is in possession or control of goods only because of a direction given to the participant by a biosecurity officer. This reflects that it would not be appropriate for the biosecurity industry participant to agree to treatment that may damage goods, where they do not have a relationship to the owner of the goods and the goods are only in their possession because of the actions of the biosecurity officer. Clause 132 Export of goods This clause allows a biosecurity officer to require goods to be exported from Australian territory. The biosecurity officer may arrange for the goods to be exported or direct a person in charge of the goods to arrange for the goods to be exported. Exporting offers an alternative way to deal with the biosecurity risks (in addition to treatment or destruction of the goods). As these provisions apply to goods that have been brought or imported into Australia, it is appropriate that the goods can be exported, to ensure that the biosecurity risks can be managed. For example, it is envisaged that these goods would be returned to their country of origin. A person who contravenes a direction to export the goods may commit an offence or be liable to a civil penalty (see clause 137). Clause 133 Destruction of goods This clause provides biosecurity officers with the power to require that goods be destroyed. If the biosecurity officer suspects on reasonable grounds that the goods cannot be effectively treated, the biosecurity officer may, subject to the notification requirements, require the goods to be destroyed. If the goods are high-value goodsthat is the value of the goods is greater than the amount prescribed in the regulationthe goods must not be destroyed without written approval of the Director of Biosecurity. The decision to require high-value goods be destroyed is a reviewable decision under clause 610. If a review is being undertaken, the good can only be destroyed if the biosecurity officer is satisfied that the goods pose a high level of biosecurity risk and the risks cannot be managed for long enough to allow a review to be finally determined. The requirement that the Director approve the destruction of high-value goods along with the review function reflect the monetary outlay that an owner may have invested in the good and 174

ensures that an owner or person in charge is able to access review mechanisms to protect his or her goods. A biosecurity officer must not cause high-value goods to be destroyed until the end of the review period, for any review of the decision to destroy the good to be completed or until an application for review (including an appeal) has been determined. If the goods have been destroyed, because the biosecurity risks cannot be managed for the duration of any review or appeal, no application for review can be made and any review or related proceedings are taken to be discontinued. A person who contravenes a direction to destroy goods may commit an offence or be liable to a civil penalty (see clause 137). Clause 134 Regulations may provide for other biosecurity measures The clause allows for regulations to prescribe additional biosecurity measures that a biosecurity officer may use in relation to good. Subclause (2) limits the biosecurity measures that can be prescribed by the regulations. The biosecurity measures in the regulations must not be measures that are of a kind set out in Division 4 of this Part (biosecurity risk assessment powers), a measure of another kind set out in this Division, or a biosecurity measure relating to decontamination (see Division 2 of Part 4 of Chapter 12). This ensures that the regulations do not contain biosecurity measure already available in the legislation. It also ensures that any notification or processes in place in the legislation are not circumvented. An example of a regulation is one that prescribes that certain animals are to be isolated (quarantined). Subsections (3) and (4), allow the regulations to prescribe notification requirements and set processes and for carrying out the biosecurity measures. Clause 135 Powers of biosecurity officer if biosecurity measures are required The clause provides that where a biosecurity officer requires biosecurity measures to be taken in relation to goods under clauses 129, 130, 133 or a regulation made under clause 134, the biosecurity officer can direct a person, or arrange for a person to carry out the biosecurity measures. The biosecurity officer can also carry out the biosecurity measure personally. Where the biosecurity officer gives a direction to a person to carry out a biosecurity measure, or arranges for someone to carry out the biosecurity measure, the biosecurity officer may supervise the person carrying out the biosecurity measures. This ensures that the biosecurity measures are carried out properly, and where they have not been carried out in accordance with the directions, the biosecurity officer can take action to manage the biosecurity risks. A person who contravenes a direction to carry out biosecurity measures may be liable to a civil penalty and may commit an offence (see clause 137). Clause 136 Biosecurity officer may affix notice to goods Clause 136 allows a biosecurity officer, to affix a notice to goods in relation to which biosecurity measures have been required under this Division or a regulation made under clause 134. 175

This notice will state that the level of biosecurity risks associated with the goods is unacceptable, that biosecurity measures have been required in relation to those goods and that a person may be liable to a civil penalty or offence if the move or interfere with the goods to which the notice relates (see clause 138). The notice is designed to inform a person not to move or interfere with the goods. If it is not possible to affix the notice to the goods, the person exercising the power may affix the notice as near as reasonably practicable. A person must not interfere with, remove or deface the notice unless the person is authorised to do so under an approved arrangement or they been given a direction or permission by a biosecurity official or otherwise has permission under the Act. An unauthorised person who interferes with, removes or defaces the notice may be liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. It will be an exception to be authorised under an Australian law to interfere, remove or deface the notice. To rely on the exception, a person bears the evidential burden, which means that the defendant must adduce evidence which points to the authorisation. It will then be incumbent on the prosecution to establish that this exception does not apply. Clause 137 Person must comply with direction to take biosecurity measures This clause creates both a civil and criminal offence for contravening a direction to take measures given by a biosecurity officer under this Division (see clauses 129, 130 132, 133 and 134). The maximum penalty for contravening a direction is five years imprisonment, or a fine of 300 penalty units, or both if the elements of a fault-based offence are established. The maximum civil penalty for a contravention is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, and reflects the severity of the potential consequences of the commission of the offence. If directions are not complied with, significant biosecurity risks may ensue and result in serious damage to plant and animal health, Australia's local industries, the economy and the environment. A court would be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. Clause 138 Unauthorised persons must not move etc. goods to which notice has been affixed This clause provides that a person must not move, deal or interfere with the goods where a notice has been affixed under subclause 136(1) unless the person is authorised to do so under an approved arrangement, or he or she has been given a direction by a biosecurity official or otherwise has permission under the Act. An unauthorised person who moves, deals or interferes with these goods may commit an offence or be liable to a civil penalty. The maximum penalty for contravening this requirement is five years imprisonment, or a fine of 300 penalty units, or both if the elements of a fault-based offence are established. The maximum civil penalty for a contravention is 120 penalty units. It will be an exception to be authorised under an Australian law to move, interfere or deal with the goods. To rely on the exception, a person bears the evidential burden, which means that the defendant must adduce evidence which points to the authorisation. It will then be incumbent on the prosecution to establish that this exception does not apply. 176

These powers are required to ensure biosecurity officers can carry out functions under this Part by affixing notices to goods restricting their movement so that biosecurity measures can be conducted to manage any identified biosecurity risks. Division 6--Unloading goods at landing places or ports Clause 139 Application of this Division This Division applies in relation to goods that are or will be subject to biosecurity control and are intended to be unloaded from the aircraft or vessel carrying the goods at a landing place or port in Australian territory. The powers in this Division also apply in relation to exposed goods (see clause 159). Clause 140 Person in charge may allow goods to be unloaded from aircraft or vessel subject to direction etc. Clause 141 Person may unload goods from aircraft or vessel subject to direction etc. These clauses outline the circumstances in which: a person in charge of an aircraft or vessel can allow the unloading of goods at a landing place or port, and a person, such as a stevedore can unload goods from a vessel or aircraft. These clauses provide that goods can be unloaded: subject to any directions given by a biosecurity officer, or in accordance with the requirements in clauses 142, 143, 144, 145 and 149. A biosecurity officer may give the person in charge of aircraft or vessels, or another person, a direction relating to the unloading of the goods from the aircraft or vessel. This direction may relate to not allowing some or all of the goods to be unloaded from the aircraft or vessel. For example, where a particular shipping container poses a high level of biosecurity risk, a biosecurity officer may direct the person in charge not to unload that shipping container. A person who contravenes a direction given by a biosecurity officer under these clauses may commit an offence or be liable to a civil penalty. The maximum penalty for contravening a direction is five years imprisonment, or a fine of 300 penalty units, or both if the elements of a fault-based offence are established. The maximum civil penalty for a contravention is 120 penalty units. It will be an exception to both the offence and civil penalty in clause 140, if the person in charge of the aircraft of vessel gave a direction to a person under clause 141, and the direction was in the same terms as that given by a biosecurity officer and the other person contravened the person in charge's direction. For example, if a biosecurity officer directs the person in charge of a vessel not to unload a container, and the person in charge has passed that direction on to the stevedore, if the stevedore unloads the container, the person in charge will not be liable. To rely on the exception, a person bears the evidential burden, which means that the defendant must adduce evidence which points to the exception. It will then be incumbent on the prosecution to establish that this exception does not apply. Notwithstanding these clauses, nothing may be unloaded from the aircraft or vessel unless pratique has been granted in relation to the aircraft or vessel (see clauses 47 and 48). 177

Clause 142 Goods must not be unloaded except at first point of entry for those goods or with permission Clause 143 Permission to unload goods at landing place or port other than first point of entry for those goods Clause 142 provides that a person in charge of a vessel or aircraft that brought goods into Australian territory must not allow the goods that are subject to biosecurity control to be unloaded unless: the landing place or port is a first point of entry for those goods, or permission has been given by the Director of Biosecurity for the goods to be unloaded at that port or landing place. First points of entry will be determined to receive specific goods, depending on the biosecurity risks associated with the goods and the facilities at the first point to manage the biosecurity risks. This clause ensures that biosecurity risk assessment process for determining a first point of entry is not circumvented. A person who unloads goods at a landing place or port that is not a first point of entry for those goods, without permission, may commit an offence or be liable to a civil penalty. The maximum penalty for contravening clause 142 is five years imprisonment, or a fine of 300 penalty units, or both if the elements of a fault-based offence are established. The maximum civil penalty for a contravention is 120 penalty units. Clause 143 provides that a person in charge or the operator of an aircraft of vessel that is intending to bring goods into Australian territory may request the Director of Biosecurity to give permission to unload the goods at a first point of entry not determined to receive those goods. On receiving a request, the Director of Biosecurity may--by notice in writing--give permission (subject to any conditions specified in the notice). This clause provides flexibility by ensuring that alternative arrangements can be made to unload goods at a landing place or port not determined to receive those goods. A person who has been given permission subject to conditions and contravenes the conditions may commit an offence or be liable to a civil penalty. The requirement to comply with any conditions will be placed on the person who sought permission; the operator of the aircraft or vessel or the person in charge of the aircraft or vessel, or both. The maximum penalty for contravening a condition is five years imprisonment, or a fine of 300 penalty units, or both if the elements of a fault-based offence are established. The maximum civil penalty for a contravention is 120 penalty units. Notwithstanding these clauses, nothing may be unloaded from the aircraft or vessel unless pratique has been granted in relation to the aircraft or vessel (see clauses 47 and 48). Clause 144 Goods must be brought to biosecurity entry point for those goods at first point of entry Clause 145 Permission to bring goods to alternative biosecurity entry point at first point of entry These clauses apply if: the aircraft or vessel that brought goods into Australian territory has arrived at a first point of entry for that aircraft or vessel, and there is a biosecurity entry point at the first point of entry for goods that are to be unloaded from the aircraft or vessel. 178

A person in charge of the aircraft or vessel must ensure goods that are unloaded are brought to a biosecurity entry point as soon as practicable, unless the person in charge has been given: a direction by a biosecurity officer, or permission in accordance with clause 145 for the goods to be brought to an alternative biosecurity entry point. A person may be liable to a civil penalty if he or she contravenes this requirement. The maximum civil penalty for a contravention is 120 penalty units. Clause 144 provides biosecurity officers with the power to give directions to the person in charge or the operator of a vessel or aircraft. The direction may require that the goods be brought to an alternative biosecurity entry point at the first point of entry. A biosecurity officer will be able to use the direction power to manage biosecurity risks associated with the goods. A person who has been given a direction and contravenes the direction may commit an offence or be liable to a civil penalty. The requirement to comply with a direction will be placed on the person who was given the direction; the operator of the aircraft or vessel or the person in charge of the aircraft or vessel, or both. The maximum penalty for contravening a direction is five years imprisonment, or a fine of 300 penalty units, or both if the elements of a fault-based offence are established. The maximum civil penalty for a contravention is 120 penalty units. Clause 145 outlines the process for the Director of Biosecurity to give permission to unload goods at an alternative biosecurity entry point. A person in charge, or an operator, of an aircraft of vessel that brought goods into Australian territory may request the Director of Biosecurity to give permission to unload the goods at a biosecurity entry point that is not a biosecurity entry point for those goods. On receiving a request, the Director of Biosecurity may--by notice in writing--give permission (subject to any conditions specified in the notice). This clause provides flexibility by ensuring that alternative arrangements can be made to unload goods biosecurity entry points not determined to receive provides those goods. A person who has been given permission subject to conditions and contravenes the conditions may commit an offence or be liable to a civil penalty. The requirement to comply with any conditions will be placed on the person who sought permission; the operator of the aircraft or vessel or the person in charge of the aircraft or vessel, or both. The maximum penalty for contravening a condition is five years imprisonment, or a fine of 300 penalty units, or both if the elements of a fault-based offence are established. The maximum civil penalty for a contravention is 120 penalty units. These clauses ensure that biosecurity risk assessment processes for determining biosecurity entry points at first points of entry are not circumvented, recognising that there are times when flexibility to allow alternative arrangements are necessary. It is appropriate that both the operator of the aircraft or vessel and the person in charge of the goods are liable to these offences, as they will either be giving permission for the goods to be unloaded from the vessel or aircraft, or be the person unloading the goods. 179

Notwithstanding these clauses, nothing may be unloaded from the aircraft or vessel unless pratique has been granted in relation to the aircraft or vessel (see clauses 47 and 48). Clause 146 Unauthorised persons must not move etc. goods that have been unloaded from aircraft or vessel This clause provides that a person must not move, deal with or interfere with goods that are subject to biosecurity control and have been unloaded from the aircraft or vessel unless the person authorised to do so under an approved arrangement, or he or she has been given a direction by a biosecurity official or otherwise has permission under the Act. In addition the regulations may prescribe circumstances in which a person may move, deal or interfere with goods that are subject to biosecurity control and have been unloaded from the vessel or aircraft that brought them into Australia. For example, it is intended that the regulations will be used to exempt people carrying their personal luggage from the plane to the arrival hall from contravening the Act. It will also be an exception to be authorised under an Australian law. To rely on these exceptions, a person bears the evidential burden, which means that the defendant must adduce evidence which points to these an exception in the regulations or authorisation. It will then be incumbent on the prosecution to establish that these exceptions do not apply. An unauthorised person who moves, deals with or interferes with these goods may commit an offence or be liable to a civil penalty. The maximum penalty for contravening this requirement is five years imprisonment, or a fine of 300 penalty units, or both if the elements of a fault-based offence are established. The maximum civil penalty for a contravention is 120 penalty units. Clause 147 Receiving or possessing goods unloaded from aircraft or vessel in contravention of this Division This clause provides that a person who receives or has in his or her possession goods that were unloaded from an aircraft or vessel in contravention of this Division is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. This civil penalty is a compliance tool, to ensure that the biosecurity risks associated with the goods under this Division are managed in accordance with any direction or condition. It will be an exception if the person did not know, or could not reasonably be expected to know that the goods were unloaded in contravention of this Division. To rely on the exception, a person bears the evidential burden, which means that the defendant must adduce evidence which points to these facts. It will then be incumbent on the prosecution to establish that this exception does not apply. Division 7--Unloading goods from aircraft or vessel displaying prescribed quarantine signal Clause 148 Application of this Division This clause applies in relation to goods that: are subject to biosecurity control including exposed goods (see clause 159), and are unloaded from an aircraft or vessel that is displaying the prescribed quarantine signal. 180

Clause 149 Unloading goods from aircraft or vessel displaying prescribed quarantine signal This clause provides that a person must not unload goods from an aircraft or vessel if: the goods are subject to biosecurity control or are exposed goods (see clause 159), and the aircraft or vessel was displaying the prescribed quarantine signal (see clause 223 in relation to when an aircraft or vessel must display the prescribed quarantine signal). This clause does not apply if a person: is authorised to do so under an approved arrangement, or has been given a direction or permission by a biosecurity official or is otherwise allowed under the Act. A vessel or aircraft displaying a quarantine signal may have a high level of biosecurity risk. This clause ensures that the biosecurity risks are not spread by unloading the goods. A person who unloads goods in contravention of this clause may commit an offence or be liable to a civil penalty. The maximum penalty for contravening this clause is five years imprisonment, or a fine of 300 penalty units, or both if the elements of a fault-based offence are established. The maximum civil penalty for a contravention is 120 penalty units. It will be an exception to be authorised under an Australian law to unload goods from an aircraft or vessel displaying the prescribed quarantine signal. To rely on the exception, a person bears the evidential burden, which means that the defendant must adduce evidence which points to the authorisation. It will then be incumbent on the prosecution to establish that this exception does not apply. Clause 150 Receiving or possessing goods unloaded from aircraft or vessel displaying prescribed quarantine signal This clause provides that a person must not receive or have in his or her possession goods unloaded from an aircraft or vessel if the goods are subject to biosecurity control or are exposed goods and the aircraft or vessel is displaying the prescribed quarantine signal. This clause does not apply if the person: is authorised to do so under an approved arrangement, or has been given a direction or permission by a biosecurity official or is otherwise authorised under the Act. This clause appropriately places responsibility on people receiving or possessing goods to ensure that they are aware of the circumstances of the goods arrival and biosecurity status. A person who receives goods unloaded in contravention of this clause may commit an offence or be liable to a civil penalty. The maximum penalty for contravening this clause is five years imprisonment, or a fine of 300 penalty units, or both if the elements of a fault- based offence are established. The maximum civil penalty for a contravention is 120 penalty units. It will be an exception if the person did not know, or could not reasonably be expected to know that the goods were unloaded in contravention of this Division or if the person is authorised under an Australian law. To rely on the exception, a person bears the evidential burden, which means that the defendant must adduce evidence which points to these facts. It will then be incumbent on the prosecution to establish that these exceptions do not apply. 181

Division --Reporting biosecurity incidents Clause 151 Application of this division This Division applies to goods that are subject to biosecurity control. The Division will also apply in relation to exposed goods (see clause 159). Clause 152 Director of Biosecurity may determine acts, omissions or events to be reportable biosecurity incidents This clause provides the Director of Biosecurity with the ability to determine what constitutes a biosecurity incident in relation to goods that are subject to biosecurity control or exposed goods (see clause 159). A biosecurity incident can be an act, omission or event. The reporting of biosecurity incidents will allow for biosecurity officers to efficiently manage biosecurity risks associated with an incident. Such a determination will be a legislative instrument. For example, a person in charge of a vessel may be required to report any insect activity on the vessel. This will allow biosecurity officers to assess if the insect activity is a biosecurity risk and if necessary, carry out biosecurity measures to manage the biosecurity risks associated with any insects. Clause 153 Reporting by person in charge of aircraft or vessel that brought goods into Australian territory Clause 154 Reporting by person in charge of goods These clauses provide that a person in charge of an aircraft or vessel that brought goods into Australia and the person in charge of goods once they are unloaded must report any biosecurity incident that he or she is aware of to the Director of Biosecurity or a biosecurity officer as soon as practicable after becoming aware of the incident. It is important that biosecurity incidents are reported as soon as practicable, to ensure that any biosecurity risks associated with the incident can be managed to an acceptable level, to limit the risk associated with any pest or disease entering, establishing or spreading into Australian territory. It is appropriate that the requirement to report these incidents sits with the person in charge of the aircraft, vessel or goods as he or she is most likely to become aware that a biosecurity incident has occurred as he or she is in possession of the goods. A person who fails to report a biosecurity incident may commit an offence or be liable to a civil penalty. The maximum penalty for contravening this clause is two years imprisonment, or a fine of 120 penalty units, or both if the elements of a fault-based offence are established. The maximum civil penalty for a contravention is 120 penalty units. The obligation to report a biosecurity incident applies whether or not the person was in Australian territory when they became aware of the biosecurity incident. This reflects that an incident can occur outside Australian territory, and that having an incident reported as soon as practicable allows for the efficient management of biosecurity risks. Clause 155 How reports must be made Clause 155 outlines the process for how reports of biosecurity incidents are to be made. This clause provides the Director of Biosecurity the ability to determineby legislative instrumentthe information that must be included in the report (required by clauses 153 and 154) and the way in which the report must be made. 182

If a report is not made in accordance with these requirements, the report is not taken to have been made. This ensures that all reports are made in the appropriate manner, allowing for biosecurity measures (if required) to be carried out in a timely manner. Division 9--Goods exposed to goods that are subject to biosecurity control Clause 156 Application of this Division This Division applies to goods if a biosecurity officer suspects, on reasonable grounds, that the goods have been exposed to goods or conveyances that are subject to biosecurity control and goods in relation to which a biosecurity control order under clause 157 has been made. These goods are defined as exposed goods. This Division extends some of the powers available in this Part to exposed goods, allowing for biosecurity risks to be efficiently assessed and managed. Clause 157 Assessment and management of biosecurity risk associated with exposed goods A biosecurity officer may exercise the powers in Division 4 of this Part for the purpose of identifying and assessing the level of biosecurity risk associated with exposed goods. If the biosecurity officer suspects on reasonable grounds that the biosecurity risks associated with exposed goods is unacceptable, the biosecurity officer may issue an exposed goods order in accordance with clause 158extending some of the powers in this Part to manage the biosecurity risks with the exposed goods. The assessment powers in Division 4 of this Part can only be exercised in relation to exposed goods if the goods: are within the precincts of a landing place or port are onboard a conveyance which is subject to biosecurity control (see Division 2 of Part 1 of Chapter 4) are on premises owned or controlled by the Commonwealth where biosecurity measures can be taken for the purpose of managing biosecurity risk, or are on premises where biosecurity activities are carried out in accordance with an approved arrangement. Limiting the exercise of these powers to these areas reflects that these are areas with a high level of biosecurity risk, which have a direct connection to the goods being brought or imported into Australia. It is appropriate that these powers extend to these goods, as exposed goods potentially have an unacceptable level of biosecurity risk by virtue of coming into contact with goods or conveyances that are subject to biosecurity control. In situations where this Part does not apply and the goods are suspected of having an unacceptable level of biosecurity risk, the biosecurity risks can be assessed and managed by the provisions in Chapter 6. Clause 158 Exposed goods orders This clause outlines the requirements for an exposed goods order. An exposed goods order must: be in writing specify the exposed goods which it relates to, and 183

the period in which it is in force. An exposed goods order is not a legislative instrument. The exposed goods order is intended to notify the person in charge of exposed goods that the provisions in this Part apply in relation to the goods. Clause 159 Effect of exposed goods order This clause outlines the effect of an exposed goods order. If an exposed goods order is in force in relation to exposed goods, the powers in Divisions 4, 5, 6, 7, 8 and 10 of this Part will apply to the exposed goods as if they were subject to biosecurity control. This ensures that biosecurity officers can use the powers to manage and assess the biosecurity risks associated with the goods. An exposed goods order made in relation to exposed goods ceases to be in effect when the order expires, is revoked or the goods are released from biosecurity control in accordance with Division 10. If an exposed goods order is in force in relation to goods, and the goods are released from biosecurity control by virtue of leaving Australian territory (in accordance with clause 160) on a conveyance on a journey between places in Australian territory and the exposed goods order has not expired or been revoked, the exposed goods order takes effect again when the conveyance re-enters Australian territory. This is appropriate as the biosecurity risks associated with the exposed goods, have not been managed to an acceptable level. Division 10--Release of goods from biosecurity control Clause 160 When goods brought into Australian territory are released from biosecurity control This clause outlines the circumstances in which goods are released from biosecurity control. Goods will be released from biosecurity control if: a notice is given to a person in charge of the goods by a biosecurity officer or a biosecurity industry participant who is authorised to release the goods in accordance with an approved arrangement the goods are prescribed goods and the goods leave a designated biosecurity control release area at a first point of entry or an international mail centre the goods are destroyed, or the goods leave Australian territory. Goods are released through these mechanisms in recognition that the goods no longer pose an unacceptable level of biosecurity risk. If goods are released from biosecurity control by leaving Australian territory on a conveyance that is on a journey between places in Australian territory, the goods become subject to biosecurity control again when the conveyance returns to Australian territory during that journey (see clause 117). This is appropriate as the biosecurity risks associated with the exposed goods, has not been assessed or managed to an acceptable level. A notice which releases goods from biosecurity control is not a legislative instrument. The regulations may provide that a specified area at a first point of entry or an international mail centre is a designated biosecurity control release area. These designated areas reflect that it will not be possible for a biosecurity officer to personally release all goods--either orally or 184

in writing. For example, international mail will be released from biosecurity control when it leaves an international mail centre. The regulations will also prescribe goods that are released by this mechanism, it is envisaged that these will include personal baggage and international mail. This limits the goods released by the mechanism, and allows biosecurity officers to focus on goods which pose a higher level of risk. Biosecurity officers will still be able to use the assessment and management powers in this Chapter to manage any unacceptable level of biosecurity risk associated with these goods. Clause 161 Notice releasing goods from biosecurity control This clause provides that a notice issued under clause 160 may be issued in writing or verbally. This clause also allows for notices that are issued by an automated electronic system to release goods from biosecurity control. The automated system must comply with the requirements in the regulations. An automated notice is taken to be issued by a biosecurity officer so that the practical effect of this notice is to release the goods under clause 160. This provision also makes it clear that an automated release notice in relation to goods has no effect to the extent that it is inconsistent with an earlier direction given in relation to the goods by a biosecurity officer under this Act. Part 2--Biosecurity Import Risk Analyses Division--Introduction Clause 162 Guide to this Part This clause provides a concise guide to this Part's objectives. This Part confers on the Director of Biosecurity the power to conduct Biosecurity Import Risk Analyses (BIRA). A BIRA can be conducted for goods that are to be imported or proposed to be imported. A BIRA is an evaluation of the level of biosecurity risk associated with the goods. It also identifies conditions that must be met to manage the level of biosecurity risk associated with the goods to a level that achieves Australia's Appropriate Level of Protection (ALOP). Division 2--Biosecurity Import Risk Analyses Clause 163 What is a Biosecurity Import Risk Analyses (BIRA) This clause defines a BIRA as a scientific evaluation of the level of biosecurity risk associated with goods. The BIRA can identify conditions that must be satisfied to manage the level of biosecurity risk to achieve Australia's ALOP as outlined in clause 5. Clause 164 Director of Biosecurity may conduct a BIRA This clause confers the power for the Director of Biosecurity to undertake a BIRA in relation to particular goods and provides that the Director must apply Australia's ALOP in conducting the BIRA. The Director of Biosecurity can determine the order in which BIRAs are conducted subject to any direction from the Agriculture Minister under clause 165. 185

Clause 165 Agriculture Minister may direct Director of Biosecurity to commence a BIRA This clause provides that the Agriculture Minister may issue a written direction to the Director of Biosecurity to commence a BIRA in relation to a particular good. Aside from this direction, the clause provides that the Director of Biosecurity is not subject to any directions from the Minister or the Commonwealth Government about the conduct, findings or outcomes relating to the BIRA. This means that although the Agriculture Minister can ensure that BIRAs are being conducted in accordance with Australia's international trade priorities, at the same time the BIRA process and scientific decision-making are independent from any direction or influence. These directions are not a legislative instrument for the purposes of section 5(1) of the Legislative Instruments Act 2003. Written directions of this nature will be based on the international trade policies and priorities of the government of the day. This is further reinforced by the requirement that written direction must be tabled in both Houses of Parliament with 15 sittings days of the written notice being issued. This allows for Parliament oversight over the BIRAs being conducted. Clause 166 Process for conducting a BIRA This clause provides that the BIRA process must be conducted in accordance with the process prescribed by the regulations and take into account the matters set out in the guidelines made by the Director of Biosecurity (if any). The Director of Biosecurity can make guidelines setting out matters to be taken into account when conducting a BIRA. This may include for example, factors to be considered when deciding whether to commence a BIRA process or how the level of biosecurity risk identified should be assessed against Australia's ALOP. Guidelines must be made publicly available on the Department of Agriculture, Fisheries and Forestry's website to ensure that the BIRA process is transparent for industry and other persons who have a legitimate interest in the outcome of the BIRA process. For the purposes of section 5(1) of the Legislative Instruments Act 2003, the guidelines are not a legislative instrument. This is to recognise the fact that guidelines issued for BIRAs are administrative in their nature. The Director of Biosecurity may also request that the Director of Human Biosecurity prepare a statement of the human health risk associated with the importation of the proposed goods. This ensures that human health impacts are properly considered in the BIRA process. Clause 167 Reports This clause provides that the regulations must require the Director of Biosecurity to prepare draft, provisional and final BIRA reports. Each of the reports must be published and contain the information prescribed by the regulations. It is intended that stakeholders will be able to comment on the draft BIRA report. The provisional BIRA report will build on the draft BIRA report, taking into account stakeholder comments. After the provisional BIRA report is published, there will be an appeal period. After the conclusion of the review period, the final BIRA report will be issued. 186

Part 3--Prohibited Goods etc. Division 1--Introduction Clause 168 Guide to this Part This Part provides the Director of Biosecurity and the Director of Human Biosecurity with the power to determine goods that must not be brought or imported into Australian territory (prohibited goods) and goods that may be brought or imported into Australian territory subject to conditions (conditionally non-prohibited goods). The Part also allows permits to be issued to bring or import certain conditionally non-prohibited goods into Australian territory. In addition, the Director of Biosecurity will have the power to determine that the bringing or importation of certain goods into Australian territory is suspended for up to six months. The Part creates offences and civil penalties for bringing in or importing goods into Australian territory in contravention of the determination. Clause 169 Exclusion of State and Territory laws This clause indicates Parliament's intention that Part 3 of Chapter 3 covers the field in relation to prohibiting or restricting the bringing in or importing of goods into Australian territory for the purposes of managing biosecurity risks associated with the goods. Accordingly, the Act should operate to exclude any state or territory law that purports to prohibit or restrict the bringing in or importing of goods on biosecurity grounds. Section 109 of the Constitution invalidates a state law to the extent that it is inconsistent with a Commonwealth law. Determining whether a state law is inconsistent with a Commonwealth law involves interpreting both laws. If the Commonwealth law is interpreted as operating to the exclusion of State law, the State law will be inconsistent with the Commonwealth law and invalid. A provision such as clause 169, which sets out Parliament's intention to exclude the operation of State laws will be used in interpreting the Commonwealth law to determine whether it does exclude a particular State law. An example of where the Act may operate to the exclusion of a state law would be if a state law purports to prohibit the importation of a good on biosecurity grounds and the Act permits the importation. The State law may be inconsistent with the Commonwealth law under s 109 of the Constitution; if so the Act would prevail and the goods would be able to be imported. It is intended that conditions on the importation of goods into Australian territory will be based on the outcomes of a national risk assessment process, taking into account regional differences in pest and disease status. This clause applies to territory laws in the same way as it applied to state laws. While s 109 of the Constitution does not apply to Territory laws, similar principles apply in relation to the inconsistency or repugnancy of Territory laws with Commonwealth laws. This provision is intended to increase certainty about roles and responsibilities with respect to bringing or importing goods into Australian territory. Consistent with the World Trade Organization's Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), authority to import goods into Australia will also authorise the goods to be imported into a state or territory on the same conditions (if any). The risk assessment process 187

will consider regional differences between states and territories and will allow for different conditions where they are based on scientific grounds. Division 2--Prohibited goods and conditionally non-prohibited goods Clause 170 Prohibited goods Clause 171 Conditionally non-prohibited goods These clauses provide that the Director of Biosecurity and the Director of Human Biosecurity may jointly determine that certain goods or class of goods that are brought into Australian territory or imported are prohibited absolutely (prohibited goods) or are prohibited unless certain conditions are satisfied (conditionally non-prohibited goods). The conditions can be in relation to the way the goods are used and may include that the goods not be brought or imported into Australian territory unless a permit, authorising the goods to be bought or imported into Australian territory has been issued under Division 3 of this Chapter. The Director of Biosecurity and the Director of Human Biosecurity can only prohibit the bringing in or importation of a good (or class of goods) if they are satisfied that the level of biosecurity risk associated with the goods, or the class of goods, is unacceptable and biosecurity measures would not be able to be taken to reduce that level of biosecurity risk to an acceptable level. The power to prohibit the bringing in or importation of goods into Australia provides protection from serious diseases and pests coming into Australia. Consistent with the SPS Agreement the Director of Biosecurity and the Director of Human Biosecurity must apply the ALOP in conducting a risk assessment for the purpose of determining whether particular goods, or a particular class of goods, should be prohibited goods or conditionally non-prohibited goods. The determinations for prohibited goods and conditionally non-prohibited goods are legislative instruments for the purposes of section 5(1) of the Legislative Instruments Act 2003. The determinations are exempt from disallowance under section 44(2) of the Legislative Instruments Act 2003. It is appropriate for the Parliament to delegate to the Director of Biosecurity and the Director of Human Biosecurity the power to make these determinations involving technical and scientific decisions in order to manage risks to Australia's biosecurity. Subjecting these determinations to disallowance could undermine the technical and scientific based decision making and frustrate risk management processes. These determinations are critical to the management of biosecurity risks posed by the importation of certain types of goods. If these determinations were to be disallowed, a large majority of imports would be likely to cease due to the uncertainty caused. This would have a significant impact on the economy and may lead to comparable restrictions being put on Australia's exports by Australia's trading partners. In addition, disallowance of a determination made under this clause could lead to inadequate management of the biosecurity risks posed to human, plant and animal health, Australia's local industries, the environment and the economy. A determination made under these clauses is also exempt from the sunsetting provisions of the Legislative Instruments Act 2003. It is anticipated that the list of prohibited goods is frequently updated as a result of risk-based calculations of the level of biosecurity risk associated with the goods. A similar approach under a determination made under these clauses will be used with the department reviewing the list of prohibited goods as part of its 188

day-to-day risk management practices. Accordingly sunsetting is not necessary to maintain the currency of determinations made under these clauses. The Directors will be able to vary or revoke a determination in accordance with subsection 33(3) of the Acts Interpretation Act 1901. Clause 172 Security may be required in relation to conditionally non- prohibited goods This clause provides the Director of Biosecurity with the discretion to require security to be given to conditionally non-prohibited goods that are intended to be, or are brought or imported into Australian territory. The Director of Biosecurity must have regard to criteria prescribed by the regulations. The regulations may prescribe the range of matters set out in this clause, including the form, amount, timing of the security and circumstances when the security may be kept and used. Securities can be used to ensure that the Commonwealth is not left to meet the costs of applying biosecurity measures to non-compliant goods. This is particularly where the importer is not an Australian resident as it is difficult to take enforcement action to recover costs for biosecurity measures undertaken with respect to the goods such as treatment, destruction or export of the goods. As an added compliance tool, if a permit to import conditionally non-prohibited goods is required under this Bill, the Director of Biosecurity may refuse to consider the application for the permit until the security is given. Division 3--Permits to bring or import goods into Australian territory Clause 173 Application of this Division This Division applies in relation to conditionally non-prohibited goods that must not be brought or imported into Australian territory unless the Director of Biosecurity has granted a permit. A permit allows the Commonwealth to keep track of what conditionally non-prohibited goods are being brought or imported into the Australia. This ensures that any biosecurity risks associated with these goods can be monitored and managed. In issuing a permit, the Director of Biosecurity may place conditions on the permit. Clause 174 Person may apply for permit This clause provides that a person may make an application to the Director of Biosecurity for a permit to bring in or import conditionally non-prohibited goods. The permit will authorise the applicant or a person acting on behalf of the applicant to bring or import goods into Australian territory. The permit application must be in a form approved by the Director of Biosecurity. In addition, the application must include the information prescribed by the regulations. Under clause 628, the regulations may prescribe that an application must be accompanied by a specified fee. Clause 506 provides that the Director of Biosecurity may, by legislative instrument, specify kinds of personal information that are required to be provided with an application for a 189

permit. If personal information is required to be provided with the application and the information is not provided, the application is taken not to have been made. Permits are used administratively to place conditions on goods, as well as to collect data and track the location of certain classes of goods that may pose a biosecurity risk. Clause 175 Director of Biosecurity may grant permit This clause allows the Director of Biosecurity to grant a permit authorising particular goods or a particular class of goods to be brought or imported into Australian territory when an application is received under clause 174. In making this decision the Director of Biosecurity is under an obligation to apply the ALOP to any risk assessment undertaken. This clause outlines the matters that the Director of Biosecurity must take into account in making a decision. The Director must consider: if the permit were to be granted, the level of biosecurity risk associated with the goods whether it is necessary to impose conditions to reduce the biosecurity risk to an acceptable level, and any personal information that is required to be provided with the application for the permit (see clause 506). The Director may also consider: whether the person is a fit and proper person (see clause 505), and any other matters relating to the goods or applicant the Director of Biosecurity considers relevant. The ability to consider other relevant matters provides the Director of Biosecurity with flexibility to consider a variety of factors relating to the goods or the applicant, such as the applicants history of complying with permit conditions. In addition the Director of Biosecurity is permitted to refuse to consider an application where the requirement for a security to be paid under clause 172 has not been met. The Director must issue a permit in writing. In deciding whether to grant a permit, the Director of Biosecurity is not subject to directions from the Agriculture Minister in relation to the application (see clause 581). A decision to refuse to grant a permit is reviewable under clause 610. Clause 176 Conditions of permit This clause provides that a permit issued under clause 175 may be subject to conditions as specified in the permit. This provides the mechanism for ensuring the conditions on conditionally non-prohibited goods are complied with. For example, wood products being imported from overseas may be required to undergo fumigation or heat treatment prior to leaving their place of export. This clause also provides the Director with the power to, in accordance with the regulations, vary or revoke a condition on a permit, or impose further conditions on the permit. These powers are intended to ensure that the biosecurity risks associated with the bringing in, or importation, of goods continue to be managed to an acceptable level. If the Director is not satisfied this is the case, he or she can require that conditions attached to a permit be varied or 190

revoked; or that further conditions are imposed. For example, where a new biosecurity risk has been identified in relation to goods under a permit, the Director may vary a permit, to impose a condition that manages the newly identified biosecurity risk. Conditions on a permit may: require the holder of the permit to do specified things in relation to the goods to which the permit relates, and be required to be met either before or after the goods are brought or imported into Australian territory. The conditions provide flexibility to manage biosecurity risks associated with goods being brought or imported into Australian territory. Conditions may include a requirement that a good not be used for certain purposes--for example that animal feed not be used for human consumption. A decision to impose, vary or revoke a condition on a permit is reviewable under clause 610. A person who holds a permit issued under clause 175 may commit an offence or be liable to a civil penalty if the person contravenes a condition of the permit (see clause 187). Clause 177 Variation, suspension or revocation of permit This clause provides that the Director may in accordance with the regulations, vary, suspend or revoke a permit issued under clause 175. In deciding whether to vary, suspend or revoke a permit, the Director of Biosecurity is not subject to directions from the Agriculture Minister in relation to the application (see clause 581). These powers are intended to ensure that the biosecurity risks associated with the bringing in, or importation, of goods continue to be managed to an acceptable level. If the Director is not satisfied this is the case, he or she can require that a permit be varied, suspended or revoked. Where a permit is revoked, any permit conditions will continue to apply to the goods that have been brought in or imported. This ensures the ongoing management of biosecurity risks. Division 4--Suspended goods Clause 178 Director of Biosecurity may suspend bringing or importation of goods into Australian territory for a period This clause outlines when the Director of Biosecurity may make a determination to suspend the bringing or importation of specified goods or a class of goods for a period of up to six months. The Director may only suspend the bringing in or importation of specified goods or class of goods if he or she is satisfied that the level of biosecurity risk associated with the goods, or class of goods is unacceptable. These goods are called `suspended goods.' For example, if there was a foot and mouth disease outbreak in another country, the Director may make a determination suspending the bringing in or importation of all animals or specified animal product into Australian territory from that country. In making this decision the Director of Biosecurity is under an obligation to apply the ALOP to any risk assessment undertaken. The determination must set out the reasons for the suspension. 191

A determination made under this clause is exempt from disallowance under section 44(2) of the Legislative Instruments Act 2003. It is appropriate for the Parliament to delegate to the Director of Biosecurity the power to make this determination involving technical and scientific decisions in order to manage risks to Australia's biosecurity. Subjecting these determinations to disallowance could undermine the technical and scientific based decision making and frustrate risk management processes. A determination made under this clause is critical to the management of biosecurity risks posed by the importation of goods. If these determinations were to be disallowed, a large majority of imports likely cease due to the uncertainty created. This would have a significant impact on the economy and may lead to comparable restrictions being put on Australia's exports by Australia's trading partners. In addition, disallowance of a determination made under this clause could lead to inadequate management of the biosecurity risks posed to human, plant and animal health, Australia's local industries, the environment and the economy. A determination made under this clause is also exempt from the sunsetting provisions of the Legislative Instruments Act 2003. A determination that the bringing or importation of specified goods or a specified class of goods (including conditionally non-prohibited goods) into Australian territory is suspended will only place a suspension for up to six months; therefore sunsetting provisions are not appropriate for determinations under this clause. A determination made under this clause will prevail over any determination made under clause 171 to the extent of the inconsistency. This ensures that the suspension will take precedence. This is appropriate given the potential seriousness of biosecurity risks associated with a suspension. Clause 179 Variation of determination suspending bringing or importation of goods into Australian territory The Director of Biosecurity can vary a determination made under clause 178 to extend the period of suspension specified in the determination for a further period for up to six months. If after this time the level of biosecurity risk is still unacceptable, the determination of prohibited goods will be amended. The period of suspension can be extended more than once. This clause does not limit the application of subsection 33(3) of the Acts Interpretation Act 1901 in relation to a determination under clause 178. Clause 180 Effect on permit of determination suspending bringing or importation of goods into Australian territory Where a determination is made under clause 178 suspending the bringing in or importation of prescribed goods, it is deemed that any current permits in respect of those suspended goods are also suspended for the time specified. The intention is to ensure that any permits issued prior to the suspension of the good in the determination are automatically suspended at the time the determination comes into effect to ensure that these goods do not enter Australian territory. The suspension will only take effect from the date of the determination, and will not retrospectively affect the validity of the permit that was issued prior to the determination being made. Permit holders will be directly notified in writing that permits have been suspended. In addition to directly notifying affected import permit holders, a public notification will usually be published on the import condition 192

database (currently ICON) and through an industry notice on the DAFF website which also gets distributed to major stakeholders. Division 5--Forfeiture of prohibited goods Clause 181 Prohibited goods etc. may be forfeited to the Commonwealth This clause outlines the circumstances where goods can be forfeited to the Commonwealth where they have been brought into Australian territory in contravention of the Act. A biosecurity officer may take possession of goods if they are brought or imported into Australian territory and the good are: prohibited (see clause 170) conditionally non-prohibited and an applicable condition applying to the goods has not been complied with (see clauses 171 and 176), or suspended goods (see clause 178). An applicable condition includes both a condition placed on a permit and a condition in relation to any conditions on the goods set out in the conditionally non-prohibited goods determination. It is important that biosecurity officers are able to take possession of prohibited goods and these goods can be forfeited to the Commonwealth to enable the risks in relation to these types of goods to be managed. It also recognises that being in possession of these goods is an offence and it is appropriate that the Commonwealth takes possession of these goods. The Director of Biosecurity may determine that these goods are forfeited to the Commonwealth. If the determination is made in writing it is not a legislative instrument. Before making this determination, the Director of Biosecurity must inform the person in charge of the goods that a biosecurity officer may take possession of the goods and that the goods will be forfeited to the Commonwealth unless the person in charge arranges for the goods to be dealt with in a specified manner, such as destroyed or exported, or for requirements specified by the Director to be complied with, within a specified period. A failure by the Director of Biosecurity to inform the person of this does not affect the validity of the determination or the forfeiture of the goods. Once the Director makes a determination that the goods are forfeited a biosecurity officer may take possession of the goods, and cause them to be sold, destroyed, exported or otherwise disposed of. Once the goods are forfeited, they become the property of the Commonwealth. This ensures that the Commonwealth can deal with the goods in the most appropriate manner. This reflects that prohibited goods, conditionally non-prohibited goods and suspended goods pose a high level of biosecurity risk and that biosecurity measures will need to be carried out to manage the risks to an acceptable level. The clause excludes a biosecurity industry participant from the definition of `person in charge' of goods, if the biosecurity industry participant is in possession or control of goods because of a direction given to the participant by a biosecurity officer. 193

Division 6--Offences and civil penalty provisions Clause 182 Bringing or importing prohibited goods etc. into Australian territory This clause creates a fault-based offence where a person brings or imports into Australian territory prohibited goods or suspended goods. A person who brings or imports into Australian territory prohibited goods or suspended goods may commit an offence or be liable to a civil penalty. The maximum penalty for contravening this clause is five years imprisonment, or a fine of 300 penalty units, or both if the elements of a fault-based offence are established. The maximum civil penalty for a contravention is 120 penalty units. Given the potential seriousness of the biosecurity risks posed by prohibited goods it is appropriate that the court be able to impose a high penalty. For example, an outbreak of a disease has the potential to cause significant and long term damage to the reputation of Australian industries and the reputation of Australia overseas. This could also have adverse impacts on other industries and communities not affected by the initial outbreak; it may also result in increased costs associated with controlling pests and diseases. Clause 183 Bringing or importing prohibited goods etc. into Australian territory and obtaining a commercial advantage This clause creates a fault-based offence where a person obtains (or may obtain) a commercial advantage over competitors, or potential competitors, by bringing or importing into Australian territory prohibited goods suspended goods. An example would be the importation of prohibited plant bulbs or seeds for a nursery business and thereby creating a commercial advantage over other nurseries. The maximum penalty for contravening a this clause is ten years imprisonment, or a fine of 2000 penalty units, or both if the elements of a fault-based offence are established. Where the offender is a body corporate the maximum penalty is a fine of 10 000 penalty units. A court would be able to consider the significance of the offence and the intent of the person and determine that a less significant penalty should be applied. The penalties in this clause are higher than those outlined in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. Obtaining a commercial advantage from bringing in or importing prohibited goods are aggravated circumstances that warrant the additional penalty because of the added monetary benefit that can be gained by an individual involved in this behaviour. The penalties for this offence are intended to reinforce the deterrent effect of the Bill and allow the court greater capacity to respond meaningfully and proportionally to the worst breaches. Additionally, these types of goods pose significant biosecurity risks, which may result in serious damage to plant and animal health, Australia's local industries, the economy and the environment. Depending upon the nature and scale of the biosecurity risk, the social and economic costs of controlling and cleaning up the damage may be far greater than even the maximum penalties imposed by the Bill. Therefore, the overall objective is to increase compliance with the Act and decrease the need to resort to prosecution to achieve this aim. 194

Clause 184 Bringing or importing prohibited goods etc. into Australian territory and causing harm or loss to environment or economic consequences This clause creates a fault-based offence where a person brings or imports into Australian territory prohibited goods or suspended goods that cause--or have the potential to cause-- harm or loss to the environment or economic consequences. For example a person intentionally brings in a biological agent with an animal disease with the intention to cause damage to Australia's livestock industries. This offence is intended to protect the integrity of Australia's borders. The maximum penalty for contravening this clause is ten years imprisonment, or a fine of 600 penalty units, or both if the elements of a fault-based offence are established. The penalties in this clause are higher than those outlined in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. A court would be able to consider the significance of the offence and the intent of the person and determine that a less significant penalty should be applied. The penalties for this offence are intended to reinforce the deterrent effect of the Bill and allow court greater capacity to respond meaningfully and proportionally to the worst breaches. Additionally, these types of goods pose significant biosecurity risks, which may result in serious damage to plant and animal health, Australia's local industries, the economy and the environment. Depending upon the nature and scale of the biosecurity risk, the social and economic costs of controlling and cleaning up the damage may be far greater than even the maximum penalties imposed by the Bill. Therefore, the overall objective is to increase compliance with the Act and decrease the need to resort to prosecution to achieve this aim. Clause 185 Contravening conditions applying to conditionally non-prohibited goods brought or imported into Australian territory This clause creates a fault-based offence where a person brings in, or imports conditionally non-prohibited goods into Australian territory in contravention of a condition specified in the determination made under clause 171. The maximum penalty for contravening this clause is five years imprisonment, or a fine of 300 penalty units, or both if the elements of a fault- based offence are established. The maximum civil penalty for a contravention is 120 penalty units. For example, a commercial importer of dogs may be granted an import permit with conditions that imported dogs must be certified to be rabies free by a vet and the dog must not originate from a country that has rabies present. The person may commit an offence under this clause if these conditions are not complied with; that is, the person knows that the dog has come from a country where rabies is present and the dog has not been tested for rabies. The penalties in this clause reflect a greater level of harm potentially caused by this type offence. A court would be able to consider the significance of the offence and the intent of the person and determine that a less significant penalty should be applied. The penalties for this offence are intended to reinforce the deterrent effect of the Bill and allow court greater capacity to respond meaningfully and proportionally to the worst breaches by responsible persons. Not complying with the conditions imposed when granting the permit can pose significant biosecurity risks, which may result in serious damage to plant and animal health, Australia's 195

local industries, the economy and the environment. Depending upon the nature and scale of the biosecurity risk, the social and economic costs of controlling and cleaning up any damage may be far greater than even the maximum penalties imposed by the Bill. Therefore, the overall objective is to increase compliance with the Act and decrease the need to resort to prosecution to achieve this aim. It will be an exception to the offence, if the person who brought or imported the goods into Australian territory: did not do the act, or omit to do the act, that constituted the failure to comply with the condition did not aid, abet, counsel or procure that act or omissions, and was not in any way, knowingly concerned in, or party to, that act or omission (whether directly or indirectly and whether by an act or omission of the person). This provides an exception to a person who brought or imported the goods, and who did not contravene or was not involved in the contravention of a condition. To rely on the exception, a person bears the evidential burden which means that the defendant must adduce evidence which points to them not being responsible for contravention of a condition. It will then be incumbent on the prosecution to establish that this exception does not apply. Clause 186 Contravening conditions applying to conditionally non-prohibited goods brought or imported into Australia territory and obtaining a commercial advantage This clause creates a fault-based offence where a person obtains (or may obtain) a commercial advantage over competitors, or potential competitors, by bringing or importing into Australian territory conditionally non-prohibited goods in contravention of a condition specified in the determination made under clause 171. For example, an importer may be granted a permit which imposes the condition that a good is only permitted for animal use. In contravention of this condition the person diverts these goods for human consumption in order to avoid business costs associated with obtaining an import permit or meeting other requirements under this Bill. The maximum penalty for contravening a this clause is ten years imprisonment, or a fine of 2000 penalty units, or both if the elements of a fault-based offence are established. Where the offender is a body corporate the maximum penalty is a fine of 10 000 penalty units. A court would be able to consider the significance of the offence and the intent of the person and determine that a less significant penalty should be applied. Obtaining a commercial advantage from bringing in or importing prohibited goods in contravention of a condition are aggravated circumstances that warrant the additional penalty because of the added monetary benefit that can be gained by an individual involved in this behaviour. The penalties for this offence are intended to reinforce the deterrent effect of the Bill and allow the court greater capacity to respond meaningfully and proportionally to the worst breaches. Additionally, these types of goods pose significant biosecurity risks, which may result in serious damage to plant and animal health, Australia's local industries, the economy and the environment. Depending upon the nature and scale of the biosecurity risk, the social and economic costs of controlling and cleaning up the damage may be far greater than even the 196

maximum penalties imposed by the Bill. Therefore, the overall objective is to increase compliance with the Act and decrease the need to resort to prosecution to achieve this aim. It will be an exception to the offence, if the person who brought or imported the goods into Australian territory: did not do the act, or omit to do the act, that constituted the failure to comply with the condition did not aid, abet, counsel or procure that act or omissions, and was not in any way, knowingly concerned in, or party to, that act or omission (whether directly or indirectly and whether by an act or omission of the person). This provides an exception to a person who brought or imported the goods, and who did not contravene or was not involved in the contravention of a condition. To rely on the exception, a person bears the evidential burden which means that the defendant must adduce evidence which points to them not being responsible for contravention of a condition. It will then be incumbent on the prosecution to establish that this exception does not apply. Clause 187 Contravening conditions of a permit This clause creates a fault-based offence where a person contravenes a condition of a permit issued under clause 175. The clause also creates an offence for contravening a condition of a permit where a permit has been suspended or revoked under clause 177 and the condition on the permit continues to apply due to subclause 177 (3). A person who contravenes a condition on a permit may commit an offence or be liable to a civil penalty. The maximum penalty for contravening a condition on a permit is five years imprisonment, or a fine of 300 penalty units, or both if the elements of a fault-based offence are established. The maximum civil penalty for a contravention is 120 penalty units. Given the potential seriousness of the biosecurity risks posed by conditionally non-prohibited goods it is appropriate that the court be able to impose a high penalty. For example, conditions placed on a permit are intended to reduce the level of biosecurity risk to an acceptable level. If the conditions are not complied with, the goods will pose an unacceptable biosecurity risk which has the potential to cause serious damage to plant and animal health, Australia's local industries, the economy and the environment. Clause 188 Receiving or possessing prohibited goods etc. brought or imported into Australian territory This clause creates a strict liability offence when a person receives or possesses prohibited goods or suspended goods. For this offence, the prosecution will have to prove only the conduct of the person accused. The penalty for the offences is 60 penalty units. It will be an exception to this offence if: the goods were not brought or imported into Australian territory; the defendant did not bring or import the goods into Australian territory; the defendant brought or imported the goods into Australian territory, but at the time they were brought in they were not prohibited goods or suspended goods; and the goods are the progeny of other goods that were legally brought or imported into Australian territory. 197

To rely on the exception, a person bears the evidential burden which means that the defendant must adduce evidence which points to an exception. It will then be incumbent on the prosecution to establish that this exception does not apply. There is justification in this case for shifting the evidential burden in these importation offence provisions as if the defendant did not bring or import the goods into Australian territory, he or she will have knowledge of how they obtained the goods, for example, the shop that they purchased them from. The findings of the Commonwealth Ombudsman report `Compliance and investigations activities of the Australian Quarantine and Inspection Service (AQIS) Report One: audit of policies, procedures, systems and processes' (No. 13, August 2009 http://www.ombudsman.gov.au/files/investigation_2009_13.pdf) supports the approach towards strict liability offences in suspected importation offences (paragraph 6.1 of the report). As highlighted in paragraph 4.5 of the report, it is not presently an offence to own illegally imported goods, whilst it is an offence to import those same goods. Clause 188 gives effect to the recommendations of the Commonwealth Ombudsman by requiring the defendant to adduce evidence that either they did not import or bring in the prohibited or suspended goods, or that the goods are the progeny of other legally imported goods. 198

Chapter 4--Managing biosecurity risks: conveyances Part 1--Introduction Clause 189 Objects of this Chapter This clause provides the main objects of Chapter 4. These are: to provide for the assessment of the level of biosecurity risk associated with conveyances entering Australian territory from outside Australian territory, including by: controlling the places where those conveyances can land or be moored and controlling the movement of conveyances that are subject to biosecurity control while they are in Australian territory to provide for biosecurity measures to be taken in relation to conveyances where the level of biosecurity risk is considered unacceptable, and to give effect to Australia's rights and obligations in relation to ship sanitation for the purposes of the International Health Regulations. A conveyance does not include a conveyance that is being carried on board another conveyance (15). This might be a lifeboat that is being carried on board another vessel. Instead this conveyance is treated as a good under Chapter 3 for the purposes of the Act (18). This is because such conveyances are not travelling under their own power and not all of the conveyance powers are appropriate, for example the requirement to enter a first point of entry. Part 2--Conveyances entering Australian territory etc. Division 1--Introduction Clause 190 Guide to this Part This clause provides an overview of Part 1 of Chapter 4. Key provisions include when conveyances become subject to biosecurity control, pre-arrival reporting, powers to assess the level of biosecurity risk, powers to undertake biosecurity measures, boarding and leaving conveyances, releasing conveyances from biosecurity control and quarantine signals. Division 2--Conveyances that are subject to biosecurity control Clause 191 Aircraft and vessels entering Australian territory This clause applies to an aircraft or vessel that has entered Australian territory during a flight or voyage that commenced outside Australia. The aircraft or vessel becomes subject to biosecurity control when the aircraft or vessel enters Australian territory. (Part 3 of this Chapter deals with points of entry for aircraft and vessels that are subject to biosecurity control). When an aircraft or vessel is subject to biosecurity control, the powers in this Part are enlivened to enable the assessment and management of any biosecurity risks associated with that aircraft or vessel. Overseas aircrafts and vessels provide a direct pathway for biosecurity risks to enter into Australian territory from overseas. These powers reflect the serious nature of biosecurity risks that can arrive in Australian onboard. 199

The aircraft or vessel will remain subject to biosecurity control until it has been released from biosecurity control (see Division 7 for release from biosecurity control). Aircraft or vessels which are released from biosecurity control by leaving Australian territory (under clause 221) while travelling between places in Australian territory, become subject to biosecurity control again when they re-enter Australian territory. For example, a vessel arriving from overseas may arrive at an Australian port, then after unloading goods, it may move to another port. This clause ensures that if the vessel happens to leave Australian territory on its voyage to the other Australian port, the vessel remains subject to biosecurity control and the powers to assess and manage any biosecurity risks on board are still available. Clause 192 Conveyances exposed to other conveyances that are subject to biosecurity control This clause provides that a conveyance will become subject to biosecurity control if it is exposed to another conveyance already subject to biosecurity control in a particular way (see clause 16 for the definition of `exposed to'). This clause is included to capture conveyances that interact with another conveyance that poses a biosecurity risk, if there is a chance that the biosecurity risk will be transferred between the two conveyances (for example, Asian Gypsy Moths that can fly or be blown between vessels). A conveyance that is not already subject to biosecurity control will become subject to biosecurity control if it is exposed to: an aircraft or vessel that is subject to biosecurity control because of clause 191 a conveyance that is subject to biosecurity control under this clause, or goods that are subject to biosecurity control and of a kind prescribed in the regulations. This means that if a conveyance is exposed to another conveyance that is subject to biosecurity control, another exposed conveyance that is subject to biosecurity control or prescribed goods that are subject to biosecurity control, that conveyance will become subject to biosecurity control itself upon exposure. A conveyance is also subject to biosecurity control if, in the course of a journey, it leaves Australian territory, is exposed to another conveyance while it is outside Australian territory and then re-enters Australian territory. The conveyance will become subject to biosecurity control when it re-enters Australian territory. Similar to clause 191, an exposed conveyance remains subject to biosecurity control until it is released from biosecurity control (see Division 7 for release from biosecurity control). Additionally, if an exposed conveyance is released from biosecurity control (clause 221) by leaving Australian territory during a journey between places in Australian territory, the exposed conveyance becomes subject to biosecurity control again when it re-enters Australian territory during that journey. The Director of Biosecurity can determine by legislative instrument that clause 192 does not apply in relation to specified conveyances or specified conveyances in specified circumstances. This allows the Director of Biosecurity to determine that specific interactions between conveyances are exempt and a conveyance that would ordinarily be subject to biosecurity control is not. This might include a conveyance that carries a minimal chance of a 200

biosecurity risk being transferred from one conveyance to another, such as a vessel that interacts with another vessel to refuel it or interacts with a low-risk fishing vessel. Division 3--Pre-arrival reporting etc. Clause 193 Pre-arrival reporting This clause provides that the operator of an aircraft or vessel must give a pre-arrival report if the aircraft or vessel enters or intends to enter Australian territory in certain circumstances. Reports are to be given before or when an aircraft or vessel arrives, to allow for any associated biosecurity risks to be managed more efficiently and effectively. Specifically, a pre-arrival report is required if the aircraft or vessel: intends to enter, or enters, Australian territory on a flight or voyage that commenced outside Australian territory, or after being exposed to another conveyance while outside Australian territory, or intends to be, or is exposed to a conveyance that is subject to biosecurity control or prescribed goods that are subject to biosecurity control. The obligation to provide a pre-arrival report rests with the operator of the aircraft or vessel, as he or she is the person who has access to the required information. The person in charge of a conveyance is the person in charge of its operation, such as the captain of a vessel. (Clause 16 in Chapter 1 provides that the operator of a conveyance also includes the body corporate, or unincorporated body responsible for the operation of the conveyance). A pre-arrival report must: include the information in relation to the aircraft or vessel that is prescribed by the regulations be given in the manner, and to the person prescribed by the regulations be given during the period prescribed by the regulations (which may end at any time before or after the aircraft or vessel enters Australian territory, or is exposed to another conveyance in Australian territory), and be in a form or forms approved by the Director of Biosecurity. Details of each of these requirements are prescribed in the regulations, as this gives the Commonwealth flexibility to amend the information required as well as how and when that information is to be given. This may change over time in response to changes in the different levels of biosecurity risk. In recognition that different classes of aircraft or vessels may pose different levels of biosecurity risk, the regulations may also prescribe different requirements for notices for different classes of aircraft or vessels. The regulations may also prescribe exceptions to the requirement for a pre-arrival report to be provided. This allows reporting by exception to occur, where a report is only required if certain criteria is met. For example, aircraft may be required to provide a report if a person has died on board, however if no-one has died, then a report is not required. A person commits an offence and is liable to a civil penalty if the person contravenes clause 193. The maximum penalty for contravention of clause 193 is two years imprisonment, or a fine of 120 penalty units, or both. The maximum civil penalty for contravention of clause 193 is 120 penalty units. This applies whether or not the person is in Australian territory when they are required to give the report. 201

It will be a defence for a party required to report to be covered by an exception, for example an exemption in the regulations. To rely on this exception, the person bears the evidential burden, which means that the person must adduce evidence which points to the fact that he or she was authorised not to provide the required report. It will then be up to the prosecution to establish that this exception does not apply. This clause is not subject to the privilege against self-incrimination (see clause 661). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as it will allow biosecurity officers to determine whether an unacceptable biosecurity risk is present and put appropriate biosecurity measures in place to address that risk. Given the potential seriousness of the biosecurity risk and the need for a timely response, it is not preferable to wait for a warrant to be issued to obtain this information. Whilst the privilege against self-incrimination is abrogated in relation to this clause, the Bill provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person (see clause 661). Clause 194 Pre-arrival reporting - requirement to give additional or corrected information This clause requires an operator of an aircraft or vessel that has reported under clause 194 to provide additional or corrected information as soon as practicable if he or she becomes aware the information provided in the original report is incomplete or incorrect. This obligation applies whether or not the person is in Australian territory when they are required to give the report. A person commits an offence and is liable to a civil penalty if the person contravenes clause 194. The maximum penalty for contravention of clause 194 is two years imprisonment, or a fine of 120 penalty units, or both. The maximum civil penalty for contravention of clause 194 is 120 penalty units. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 507 and 508 create offences for providing false or misleading information or documents. This information will allow a more accurate assessment of biosecurity risks associated with conveyances that intend to enter Australian territory. As this requirement relates specifically to the report provided under clause 193, the requirement to provide additional or correct information is not subject to the privilege against self-incrimination (the same reasoning in clause 193 above applies). Clause 195 Persons on incoming aircraft or vessel may be required to provide information to assess biosecurity risk This clause provides that a person who enters, or intends to enter, Australian territory on an incoming aircraft or vessel and is included in a prescribed class of persons must provide the Director of Biosecurity with information for the purpose of assessing the level of biosecurity risk associated with the person and the goods that the person has with him or her. The kind of information that will be required and the manner in which it must be provided to be approved by the Director of Biosecurity. 202

This allows the Director of Biosecurity to determine specific categories of persons entering Australian territory who will be required to provide specific information about themselves or their goods. For example, a person arriving from a country where there has been a biosecurity risk outbreak might be required to provide additional information about where they have travelled and the goods being brought back into Australia, to enable a more detailed assessment of the potential biosecurity risks. A person is liable to a civil penalty if the person is required to provide information under clause 195 and fails to comply with that requirement. The maximum civil penalty for a contravention of clause 215 is 120 penalty units. In addition, sections 137.1 and 137.2 of the Criminal Code and clause 507 create offences for providing false or misleading information or documents. Division 4--Assessment of level of biosecurity risk Clause 196 Biosecurity risk assessment powers This clause states that Division 4 sets out powers that may be exercised for the purpose of assessing the level of biosecurity risk associated with a conveyance that is subject to biosecurity control. Clause 197 Securing conveyance This clause gives a biosecurity officer the power to direct the person in charge or the operator of a conveyance to secure the conveyance in a manner and for the period specified by the biosecurity officer. This period must not exceed 48 hours. This ensures that the conveyance is only secured for as long as is necessary to assess the level of biosecurity risk and inconveniences the person in charge as little as possible. A direction to secure a conveyance might be given to restrict movement of the conveyance or restrict access to the conveyance or to lock up a certain part of the conveyance (such as an area where food is stored). A direction to secure a conveyance does not prevent a person on board the conveyance from leaving that conveyance. Securing a conveyance is an important tool as it allows a biosecurity officer to assess the level of biosecurity risk in relation to the conveyance (by exercising the other assessment powers of this division) while limiting the possibility that biosecurity risks associated with the conveyance are spread. If judicial review is sought in relation to a direction under this clause, the direction will remain in force until a court finally determines the validity of the direction (clause 573). This ensures that any biosecurity risks are secured while a final decision is made. A person is liable to a civil penalty if the person contravenes clause 197. The maximum penalty is 120 penalty units. Clause 198 Inspecting conveyance This clause gives a biosecurity officer the power to conduct a physical inspection of a conveyance to assess the level of biosecurity risk associated with it. For example, a biosecurity officer may carry out a hull inspection of a vessel to assess whether there is any biofouling present. 203

This power allows the biosecurity officer to gather important information that will allow him or her to make an accurate assessment of the level of biosecurity risk. Clause 199 Asking questions about conveyance This clause gives biosecurity officers the power to require a person to answer questions in relation to a conveyance, if the biosecurity officer suspects on reasonable grounds that a person has information in relation to the conveyance. The officer may require the person to answer questions or provide information in writing in relation to the conveyance. This power assists biosecurity officers in assessing the level of biosecurity risk associated with a conveyance by ensuring that the biosecurity officer has access to all the information necessary to accurately determine the level of biosecurity risk. For example, a biosecurity officer may ask questions or seek information about the previous movements of a conveyance in order to determine whether the conveyance has been in a location known to have a specific biosecurity risk (for example, the natural habitat of Giant African Snails). A person is liable to a civil penalty if the person contravenes clause 199. The maximum penalty is 120 penalty units. In addition, section 137.1 of the Criminal Code and clause 507 create an offence for providing false or misleading information. This clause is not subject to the privilege against self-incrimination (clause 661). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as it will assist biosecurity officers in determining whether an unacceptable biosecurity risk is present and putting appropriate biosecurity measures in place to manage that risk. Given the potential seriousness of a biosecurity risk and the need for a timely response, it is not preferable to wait for a warrant to be issued to obtain this information. Whilst the privilege against self-incrimination is abrogated in relation to this clause, the Bill provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person (clause 661). Clause 200 Requiring documents relating to conveyance to be produced This clause gives biosecurity officers the power to require a person to produce specified documents in relation to a conveyance, if the biosecurity officer suspects on reasonable grounds that a person has custody or control of specific documents in relation to the conveyance. A biosecurity officer may make copies of, or take extracts from a document that has been produced and may remove the document from the place where it was produced in order to make copies or take extracts. Similar to clause 199, this power assists biosecurity officers in assessing and managing the level of biosecurity risk associated with a conveyance, by ensuring that the biosecurity officer has access to all the necessary information to determine the level of biosecurity risk. A person is liable to a civil penalty if the person contravenes clause 200. The maximum penalty is 120 penalty units. In addition, section 137.1 of the Criminal Code and clause 508 create an offence for providing false or misleading information. This clause is not subject to the privilege against self-incrimination. For the reasons discussed in clause 199, the privilege against self-incrimination is abrogated to give biosecurity officers 204

timely access to documents to effectively assess risks and ensure that appropriate biosecurity measures are in place to manage any identified biosecurity risks. The protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person also applies (clause 661). Clause 201 Movement of conveyance This clause gives a biosecurity officer the power to give directions to the person in charge or the operator of the conveyance about movement of the conveyance. Biosecurity officers will be able to give a direction to: not move, deal with or interfere with the conveyance move the conveyance as soon as practicable to a specified place (except outside of Australian territory), or any other direction relating to the movement of the conveyance. Biosecurity officers will also be able to cause the conveyance to be moved to another place (except outside of Australian territory). Restrictions on these powers ensure that an aircraft or vessel cannot be directed outside of Australian territory for the purposes of assessing biosecurity risks. This is because such a direction is of a more invasive nature and it has not yet been established whether there is an unacceptable level of biosecurity risk. The ability to issue directions gives biosecurity officers a greater ability to prevent potential pests or diseases in or on the conveyance from spreading and establishing in Australian territory. For example, a direction might be given for a vessel with Asian Gypsy moth to be moved to any area away from shore with a lower level of biosecurity risk. A direction to move a conveyance does not prevent a person on board the conveyance from leaving that conveyance. A person is liable to a civil penalty if the person contravenes clause 201. The maximum civil penalty for a contravention is 120 penalty units. Clause 202 Biosecurity control notice may be affixed to conveyance or given to person in charge of conveyance This clause gives a biosecurity officer the power to affix a biosecurity control notice to (or near as reasonably practicable to), a conveyance or to give a biosecurity control notice to the person in charge of the conveyance. This allows an officer to carry out his or her functions by affixing a notice to a conveyance informing others that its movement is restricted so that assessment powers can be exercised. A person must not interfere with, remove or deface a notice affixed to a conveyance under clause 202, unless the person is authorised to do so under an approved arrangement, has been given a direction under the Act by a biosecurity official, or otherwise has permission under clause 595. There is also an exception if the person is authorised under the Act or another Australian law. To rely on this exception, the person bears the evidential burden, which means that the person must adduce evidence which points to the fact that he or she was authorised to interfere with, remove or deface the notice. It will then be up to the prosecution to establish that this exception does not apply (clause 552). 205

A person is liable to a civil penalty if the person contravenes clause 202. The maximum civil penalty for a contravention is 120 penalty units. Clause 203 Unauthorised persons must not move etc. conveyance in relation to which a direction has been given This clause applies to a conveyance that has been secured in accordance with clause 197, a conveyance in relation to which a direction not to move, deal or interfere with has been given, a conveyance that has been moved under clause 201, or a conveyance that a biosecurity control notice has been affixed to under clause 202. A person must not move, deal or interfere with these conveyances unless the person is authorised to do so under an approved arrangement, the person has been given a direction under the Act by a biosecurity official, or otherwise has permission under clause 595. There is also an exception if the person is authorised under the Act or another Australian law. To rely on this exception, the person bears the evidential burden, which means that the person must adduce evidence which points to the fact that he or she was authorised to move, deal or interfere with the conveyance. It will then be up to the prosecution to establish that this exception does not apply (clause 552). A person is liable to a civil penalty if the person contravenes clause 203. The maximum civil penalty for a contravention is 120 penalty units. Division 5--Biosecurity measures to manage unacceptable level of biosecurity risk Clause 204 Biosecurity measures may be required in relation to conveyance This clause provides that if a biosecurity officer suspects on reasonable grounds the level of biosecurity risk associated with a conveyance that is subject to biosecurity control is unacceptable, the officer may require biosecurity measures to be taken in relation to a conveyance as set out in Division 5. This is to ensure that if biosecurity measures are needed to manage an unacceptable level of biosecurity risk associated with a conveyance, they can be required by an officer. Examples of biosecurity measures include treatment, movement or destruction. Clause 205 Movement of certain aircraft and vessels This clause applies in relation to aircraft and vessels that are subject to biosecurity control because they have entered or re-entered Australian territory (clause 191). A biosecurity officer may direct the person in charge or the operator of the aircraft or vessel: not to move with, deal with or interfere with the aircraft or vessel a direction to move the aircraft or vessel, as soon as practicable, to a specified place (including outside of Australian territory), or any other direction relating to the movement of the aircraft or vessel. A biosecurity officer can also cause an aircraft or vessel to be moved to another place, including outside of Australian territory. A direction to move the aircraft or vessel outside of Australian territory--or an aircraft or vessel is caused to move outside of Australian territory--can only be given with the written permission of the Director of Biosecurity. 206

This power ensures that biosecurity officers can move a conveyance to a location where biosecurity measures can be carried out. For example, an officer may give a direction to a vessel with a burnt pine longecorn infestation to move outside Australian territory. Directions to move or causing an aircraft or vessel to move outside of Australian territory are justified in these circumstances, as the level of biosecurity risk has been assessed as unacceptable and removal may be required to mitigate the risk. Given the invasive nature of such a direction and the possible human rights implications, the approval of the Director of Biosecurity is required before it can be given by a biosecurity officer and the principles in clause 31 must be considered when the decision whether or not to give approval is made. If a direction is not complied with, the person in charge and the operator of the vessel may each commit an offence or contravene a civil penalty provision (clause 214). Clause 206 Movement of exposed conveyances This clause applies to an exposed conveyance that is subject to biosecurity control because it has been exposed to another conveyance that is subject to biosecurity control (clause 192). This clause provides a biosecurity officer with the power to give to the person in charge or operator of the conveyance a direction: not to move, deal with or interfere with the conveyance to move the conveyance, as soon as practicable, to a specified place (except outside of Australian territory), or any other direction relating to the movement of the conveyance. A biosecurity officer can also cause the conveyance to be moved to another place, except outside of Australian territory. This power ensures that biosecurity officers can move a conveyance to a place where biosecurity measures can be carried out. This must not include a direction to move the vessel outside Australian territory. This limitation is appropriate, as in most circumstances the exposed conveyances will be an Australian vessel, which mainly travel within Australian territory. If a direction is not complied with, the person in charge and the operator of the vessel may each commit an offence or contravene a civil penalty provision (clause 214). Clause 207 Treatment of conveyance This clause gives biosecurity officers the power to require a conveyance to be treated in a specified manner. If a treatment might damage the conveyance, the person in charge or the operator of the conveyance must be asked to agree to the treatment (clause 208). This power ensures that biosecurity officers can treat conveyances in order to manage biosecurity risks. For example, a biosecurity officer may require conveyance with an Asian gypsy moth infestation to be treated. A biosecurity officer must not require a high value conveyance to be treated in a manner that the officer suspects on reasonable grounds is likely to damage a conveyance without the written approval of the Director of Biosecurity. This ensures that treatments that may damage can be used if they are warranted, but the more invasive decision to require treatment that 207

might damage a conveyance of high value (an amount to be determined in the regulations), appropriately sits at a higher level of responsibility. Clause 208 Treatment that may damage conveyance This clause applies if a biosecurity officer requires a conveyance to be treated in a specified manner under clause 207 and the biosecurity officer suspects on reasonable grounds that the treatment of the conveyance in that manner is likely to damage the conveyance. Before any treatment is carried out, a biosecurity officer must, by notice in writing, inform the person in charge or operator of the conveyance that the conveyance is required to be treated in a specified manner, the treatment is likely to damage the conveyance and request the person in charge or operator to agree to the treatment of the conveyance. A biosecurity officer will be able to carry out the specified treatment without having to meet the notification requirements if he or she suspects on reasonable grounds that there is a high level of biosecurity risk associated with the conveyance and that the conveyance must be treated as soon as practicable to manage the biosecurity risks to an acceptable level. If a notice is given above and the person in charge or operator of the conveyance does not notify a biosecurity officer in writing within 30 days that the person or operator agrees to the specified treatment, a biosecurity officer may in writing request the person in charge or operator to arrange for the conveyance to be destroyed or removed from Australian territory, or dealt with in a manner specified in the request, within the period in the request. The notification requirement gives the person in charge or operator of the conveyance different options to address biosecurity risks associated with the conveyance and a reasonable opportunity to implement them. It also allows a biosecurity officer to take further action to address an unmanaged biosecurity risk if the person in charge or operator does not comply with the notification. If the conveyance is not dealt with in the manner specified in the request or removed from Australian territory within the period specified within the request, a biosecurity enforcement officer may, with the written approval of the Director of Biosecurity, take possession of the conveyance and cause the conveyance to be removed from Australian territory, destroyed or otherwise disposed of. Before giving approval the Director of Biosecurity must consider the principles in 31. This ensures that a more invasive decision to require treatment that might damage a conveyance of high value more appropriately sits at a higher level of responsibility and must be made in light of protections designed to ensure a person's human rights are adequately considered. A biosecurity officer must not take possession of the conveyance unless the owner has consented in writing or taking possession is authorised by a conveyance possession warrant. (See Parts 2 and 3 of Chapter 10 for the obligations and powers of biosecurity enforcement officers in taking possession of a conveyance under warrant). This ensures that the officer has appropriate level of authority before they can take possession of a conveyance and exercise their powers. 208

If a conveyance is to be destroyed, a biosecurity officer can cause any goods on board the conveyance to be removed before it is destroyed. This ensures that goods on board are not unnecessarily destroyed while treating the biosecurity risk associated with the conveyance. Clause 209 Destruction of conveyance This clause provides a biosecurity officer with the power to require conveyances to be destroyed if he or she considers on reasonable grounds that the conveyance cannot be effectively treated. This allows the officer to effectively manage the biosecurity risk associated with the conveyance if there are no further options available to do so. A biosecurity officer must not require a conveyance to be destroyed without the written approval of the Director of Biosecurity, who must be satisfied of the principles in clause 31. This ensures that a more invasive decision to destroy a conveyance more appropriately sits at a higher level of responsibility and must be made in light of protections designed to ensure a person's human rights are adequately considered. The decision to require conveyance to be destroyed is a reviewable decision, with both internal review and Administrative Appeals Tribunal review available (see Part 1 of Chapter 13).The conveyance must not be destroyed until after any review of related proceeding (including appeal) has been finally determined (clause 210), unless notice is not required to be given below. Before causing a conveyance to be destroyed, the biosecurity officer must also give written notice to the owner or operator of the conveyance, stating that the conveyance is required to be destroyed, the reasons for its destruction, request that the owner arrange for the conveyance to be removed from Australian territory or destroyed in the manner specified in the notice, within the period specified in the notice. A biosecurity officer does not have to provide this written notice however, if despite making reasonable efforts, the officer has been unable to locate the person in charge or operator of the conveyance and certifies in writing to this effect. This ensures that biosecurity officers are not prevented from exercising their powers to adequately manage unacceptable biosecurity risks if the person in charge or operator of the conveyance cannot be found. The notification requirement gives the person in charge or operator of the conveyance different options to address the biosecurity risks associated with the conveyance and a reasonable opportunity to implement them. It also allows a biosecurity officer to take further action to address an unmanaged biosecurity risk if the person in charge or operator does not comply with the notification. If the person in charge or the operator of the conveyance is given written notice and the conveyance is not removed from Australian territory or destroyed in the manner specified in the notice, within the period specified in the notice, the officer may take possession of the conveyance and cause the conveyance to be destroyed. The biosecurity officer may also do this if a certificate has been issued stating that the owner or operator of the conveyance cannot be found. The biosecurity officer cannot cause the conveyance to be destroyed without the written permission of the Director of Biosecurity, who must consider the principles in clause 31. Again, this ensures that a more invasive decision to require treatment that might damage a 209

conveyance of high value more appropriately sits at a higher level of responsibility and must be made in light of protections designed to ensure a person's human rights are adequately considered. A biosecurity officer must not take possession of the conveyance unless the owner has consented in writing or the officer is authorised under a conveyance possession warrant. (See Parts 2 and 3 of Chapter 10 for the obligations and powers of biosecurity enforcement officers in taking possession of a conveyance under warrant). This ensures that the officer has appropriate level of authority before he or she can take possession of a conveyance and exercise their powers. If a conveyance is to be destroyed, a biosecurity officer can cause any goods on board the conveyance to be removed before it is destroyed. This ensures that goods on board are not unnecessarily destroyed while treating the biosecurity risk associated with the conveyance. Clause 210 Conveyance must not be destroyed during review period This clause provides that if a biosecurity officer has given a notice in relation to a conveyance under clause 209 (destruction of conveyance), the officer must not cause the conveyance to be destroyed until after the period in which an application can be made for review of the decision. If an application for review has already been made, the officer must not cause the conveyance to be destroyed until after the review or related proceedings have been finally determined. The biosecurity officer does not need to wait for the application period to finish or review to take place however, if the biosecurity risk associated with the conveyance is high and cannot be managed for long enough to allow applications to be made or reviews to be finally determined. This ensures that uncontainable and high levels of biosecurity risk can be managed immediately, without treatment being delayed by review proceedings. If such a delay were to take place, this increases the chances of a significant biosecurity risk spreading and causing damage. If a biosecurity officer causes a conveyance to be destroyed before the end of the period in which an application can be made, and no application for review was made before the conveyance was destroyed, an application for review of the decision to require the conveyance to be destroyed cannot be made. This is because once a conveyance has been destroyed there is no longer grounds for review, as the decision cannot be remade. If an application for review of a decision to destroy a conveyance has been made and a biosecurity officer causes the conveyance to be destroyed before the review or related proceeding has been finally determined, the review or related proceeding is taken to be discontinued when the conveyance is destroyed. This is because once a conveyance has been destroyed there is no longer grounds for review, as the decision cannot be remade. Clause 211 Regulations may provide for other biosecurity measures This clause allows the regulations to provide that a biosecurity officer may require a specified kind of biosecurity measure to be taken in relation to a conveyance (prescribed biosecurity measure). This gives flexibility in the management of biosecurity risks by allowing additional biosecurity measures to be identified and authorised under the Act. 210

The regulations made for this purpose must not allow a biosecurity officer to require any of the following kinds of biosecurity measures to be taken in relation to a conveyance: a biosecurity measure of a kind set out in Division 4 of this Part (biosecurity risk assessment powers) a biosecurity measure of a kind set out in this Division (managing an unacceptable biosecurity risk), and a biosecurity measure of a kind set out in Subdivision B of Division 2 of Part 4 of Chapter 12 (decontamination of persons and personal effects). This prevents existing biosecurity measure powers under the Bill from being included in the regulations. Regulations may also provide for, or in relation to, other matters relating to a prescribed biosecurity measure. Some examples of what regulations might include are included at subsection (3), but this is not intended to limit what can be included in the regulations. Clause 212 Powers of biosecurity officer if biosecurity measures are required This clause provides that where a biosecurity officer requires any biosecurity measure to be taken in relation to a conveyance in accordance with clause 207 (treatment), clause 208 (treatment that might damage), clause 209 (destruction) or a regulation made under clause 211, the biosecurity officer may: direct the person in charge of the conveyance to carry out the biosecurity measure direct the operator of the conveyance to arrange the biosecurity measure to be carried out carry out the biosecurity measure, or arrange for a person with appropriate qualifications or expertise to carry out the biosecurity measure. This means that if a biosecurity officer can require a measure to be taken, the officer can direct the person in charge or operator of the conveyance to carry it out, carry it out themselves or arrange for a person with appropriate qualification and expertise to carry it out. This provides flexibility in the overall management of biosecurity risks by allowing management activities to be carried out in the most efficient way possible. For example, if a conveyance is in a remote location that would require significant travel for a biosecurity officer, the officer may arrange for another qualified person to carry out the biosecurity measure. If the biosecurity officer directs a person to carry out a biosecurity measure or arranges for an appropriately qualified person to carry it out, the officer may supervise the taking of the biosecurity measure. This allows the officer to require another more appropriate person to carry out the measure and be satisfied that the measure is being carried out correctly. If a direction is not complied with, the person in charge and the operator of the vessel may each commit an offence or contravene a civil penalty provision (clause 214). Clause 213 Biosecurity officer may affix notice to conveyance This clause allows a biosecurity officer to affix a notice to a conveyance, or as near as reasonably practicable, in relation to which biosecurity measures have been required under Division 5 or a regulation made under clause 211. 211

This notice must state that the level of biosecurity risks associated with the conveyance is unacceptable, that biosecurity measures have been required in relation to that conveyance and that a person may be liable to a civil penalty or offence if the person moves or interfere with conveyances to which the notice relates, under this clause or clause 215. These notices are intended to inform relevant persons of the requirement not to move or interfere with the conveyance, if there is an unacceptable level of biosecurity risk and biosecurity measures are required. If a person interferes with, removes or defaces the notice he or she is liable for a civil offence, unless the person is authorised to do so under an approved arrangement, a direction or permission has been given under the Act by a biosecurity official or permission has been given under clause 595. The maximum civil penalty for a contravention is 120 penalty units. It will be an exception to be authorised under the Act or another Australian law. To rely on the exception, a person bears the evidential burden, which means that the defendant must adduce evidence which points to the authorisation. It will then be incumbent on the prosecution to establish that this exception does not apply. Clause 214 Person must comply with direction to take biosecurity measures This clause creates both a civil and criminal offence for failing to comply with a direction under this Division (clauses 205, 206 or 212). A person who is given a direction commits an offence if he or she is the person in charge or the operator of an aircraft or vessel, is given a direction and engages in conduct that contravenes that direction. The person in charge commits an offence if the operator is given a direction that is not complied with and the operator commits an offence if the person in charge is given a direction that is not complied with. The maximum penalty for a contravention is five years imprisonment, or a fine of 300 penalty units, or both. This ensures that both persons who are responsible for the conduct of the aircraft or vessel can be given a direction in relation to its movement and be held responsible if that direction is not complied with. For example the operator might be an airline carrier who is responsible for scheduling flights and determining where an aircraft lands, while the operator might be a pilot who lands the aircraft. Both are responsible for the movement of the aircraft and for ensuring that directions are complied with. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers and reflects the severity of the potential consequences of the commission of the offence. If directions are not complied with, significant biosecurity risks may be realised and result in serious damage to plant and animal health, Australia's local industries, the economy and the environment. A court would be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. The person in charge and the operator of an aircraft or vessel are each liable to a civil penalty if he or she is given a direction and it is not complied with. The maximum civil penalty for a contravention is 120 penalty units. 212

Clause 215 Unauthorised persons must not move etc. conveyance in relation to which biosecurity measures have been required This clause provides that a person must not move, deal or interfere with a conveyance where a notice has been affixed under clause 213, unless the person authorised to do so under an approved arrangement, he or she has been given a direction by a biosecurity official or otherwise has permission under clause 595. It will be an exception to be authorised under an Australian law to move, interfere or deal with the goods. To rely on the exception, a person bears the evidential burden, which means that the defendant must adduce evidence which points to the authorisation. It will then be incumbent on the prosecution to establish that this exception does not apply. An unauthorised person who moves, deals or interferes with the conveyance may commit an offence or be liable to a civil penalty. The maximum penalty for contravening this requirement is five years imprisonment, or a fine of 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. Division 6--Boarding and leaving conveyances Clause 216 Application of this Division This clause states that Division 6 applies to a conveyance that is subject to biosecurity control. Clause 217 Unauthorised persons must not board conveyance This clause provides that a person must not board a conveyance that is subject to biosecurity control, unless the person: is authorised to do so in accordance with an approved arrangement needs to do so to comply with a direction given under the Act by a biosecurity official; or has been give permission to do so under clause 595. This does not apply if: the person is authorised under the Act or under another Australian law the person engages in the conduct in the circumstances prescribed by regulations the person did not know, or could not reasonably be expected to know, that the conveyance was subject to biosecurity control when the person boarded the conveyance, or the person boarded the conveyance with the permission of the person in charge or the operator of the conveyance. A person who wishes to rely on the above exceptions bears the evidential burden, which means that the person must adduce evidence which points to the fact that they were allowed to board the conveyance. It will then be up to the prosecution to establish that this exception does not apply. The regulations may prescribe circumstances in which a person may board a conveyance that has arrived at a landing place or port within Australian territory and is subject to biosecurity control. For example, the regulations may prescribe that a passenger can board a cruise ship that is subject to biosecurity control. 213

A person must not board an incoming aircraft or vessel unless pratique has been granted in relation to that aircraft or vessel (clause 47 and 48). A biosecurity officer may direct the person in charge or the operator of a conveyance to permit the officer to board the conveyance (clause 593). A person who contravenes this requirement commits an offence and may also be liable for a civil penalty. The penalty for contravention is five years imprisonment, a fine of 300 penalty units, or both if the elements of a fault-based offence are established and up to 120 penalty units if a civil penalty is made out. Clause 218 Person in charge must not allow unauthorised persons to board conveyance This clause provides that the person in charge of a conveyance that is subject to biosecurity control must not allow an unauthorised person to board the conveyance, unless: the person in charge is authorised to allow the person to board under an approved arrangement the person in charge needs to allow the person to board in order to comply with a direction under the Act by a biosecurity official the person in charge has been given permission to do so under clause 595, or the other person has been given permission to do so under clause 595. This does not apply if: the person in charge of the conveyance is authorised to do so under the Act or another Australian law the other person is permitted to board in the circumstances prescribed by the regulations made under this clause, or the person in charge of the conveyance told the other person that they were not permitted to board the conveyance. A person who wishes to rely on the above bears the evidential burden, which means that the person must adduce evidence which points to the fact that he or she was authorised to allow the person to board the conveyance. It will then be up to the prosecution to establish that this exception does not apply. A person must not board an incoming aircraft or vessel unless pratique has been granted in relation to that aircraft or vessel (clauses 47 and 48). A biosecurity officer may direct the person in charge or the operator of a conveyance to permit the officer to board the conveyance (clause 593). A person commits an offence and is liable to a civil penalty if the person contravenes clause 218. The maximum penalty for contravention of clause 218 is five years imprisonment, or a fine of 300 penalty units, or both. The maximum civil penalty for a contravention of clause 218 is 120 penalty units. Clause 219 Operator must not allow unauthorised person to board conveyance This clause provides that the operator of a conveyance that is subject to biosecurity control must not allow a person to board the conveyance, unless: the operator is authorised to allow the person to board under an approved arrangement 214

the operator needs to allow the person to board in order to comply with a direction under the Act by a biosecurity official the operator has been given permission to do so under clause 595, or the other person has been given permission to do so under clause 595. This does not apply if: the operator is authorised to do so under the Act or another Australian law the other person is permitted to board under regulation made under this clause, or the operator of the conveyance told the other person that he or she was not permitted to board the conveyance. A person who wishes to rely on the above bears the evidential burden, which means that the person must adduce evidence which points to the fact that he or she was authorised to allow the person to board the conveyance. It will then be up to the prosecution to establish that this exception does not apply. A person must not board an incoming aircraft or vessel unless pratique has been granted in relation to that aircraft or vessel (clauses 47 and 48). A biosecurity officer may direct the person in charge or the operator of a conveyance to permit the officer to board the conveyance (clause 593). A person commits an offence and is liable to a civil penalty if the person contravenes clause 219. The maximum penalty for contravention of clause 219 is five years imprisonment, or a fine of 300 penalty units, or both. The maximum civil penalty for contravention of clause 219 is 120 penalty units. Clause 220 Person in charge of conveyance may leave conveyance unless directed not to do so This clause provides that the person in charge of the conveyance that is subject to biosecurity control may leave the conveyance unless a biosecurity officer directs the person not to do so. A biosecurity officer may direct the person in charge of the conveyance not to leave the conveyance for a specified period, which must be not longer than 24 hours. This ensures that the person in charge of a conveyance can be required to stay on the conveyance if he or she is needed to move the conveyance, or to assist a biosecurity officer exercising powers in relation to the conveyance. A maximum timeframe has been imposed to ensure that the person in charge is only inconvenienced for as long as is required to assist the officer. A person commits an offence and is liable to a civil penalty if the person is given is given a direction under clause 220 and contravenes that direction. The maximum penalty for a contravention of clause 220 is five years imprisonment, or a fine of 300 penalty units, or both. The maximum civil penalty for a contravention of clause 220 is 120 penalty units. Division 7--Release of conveyances from biosecurity control Clause 221 When conveyance is released from biosecurity control This clause provides that a conveyance is released from biosecurity control if: 215

a biosecurity officer notifies (in writing or orally) the person in charge of the conveyance, the owner of the conveyance or the operator of the conveyance that the conveyance is release from biosecurity control a written notice releasing the conveyance from biosecurity control is given to the person in charge of the conveyance by a biosecurity industry participant who is authorised to release the conveyance in accordance with an approved arrangement covering the biosecurity industry participant the conveyance is destroyed, or the conveyance leaves Australian territory. This ensures that conveyances are released from biosecurity control when they no longer pose a biosecurity risk. If the conveyance is released from biosecurity control by leaving Australian territory and that conveyance is on a journey between places in Australian territory, the conveyance becomes subject to biosecurity control again when the conveyance returns to Australian territory during that journey (clause 191). This is appropriate as the biosecurity risks associated with the conveyance has not been assessed or managed to an acceptable level. A notice releasing the conveyance from biosecurity control is not a legislative instrument. Division 8--Miscellaneous Clause 222 Information about biosecurity requirements must be given to persons on board incoming aircraft or vessels This clause provides that the person in charge or the operator of a conveyance that is subject to biosecurity control because of clause 191, must ensure that every person on board is given information about Commonwealth biosecurity requirements. This information is required to ensure that every person on board is aware of biosecurity requirements that may impact upon them when they enter Australian territory. A person is liable to a civil penalty if the person contravenes clause 222. The maximum civil penalty for a contravention of clause 222 is 120 penalty units. The content and form of the information must have been approved by the Director of Biosecurity or the Director of Human Biosecurity. The information may be given in writing or orally, including by means of audio or audio visual recording. Clause 223 Quarantine signal This clause provides that the person in charge of the conveyance within Australian territory must ensure that the prescribed quarantine signal is displayed on the conveyance in the circumstances and in the manner prescribed by the regulations. The regulations must prescribe the quarantine signal as well as the circumstances and manner in which the signal must be displayed within Australian territory. Quarantine signals provide a warning that there may be a high level of biosecurity risk associated with the conveyance or the people, or things on board the conveyance. It is important that these signals are correctly displayed so that biosecurity officers and other relevant persons are made aware that there is a biosecurity risk on board and can take effective measures to manage it to an acceptable level. 216

A person commits a strict liability offence if the person contravenes clause 223. The maximum penalty for contravention of clause 223 is a fine of 50 penalty units. This clause imposes a higher maximum penalty which departs from the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. A strict liability offence is appropriate in this context as there is public safety and public interest reasons in ensuring that quarantine signals are correctly displayed. The accused person will still be able to rely on the defence in the Criminal Code (Part 9) of honest and reasonable mistake of fact. Part 3--First points of entry and biosecurity entry points Division 1--Introduction Clause 224 Guide to this Part This clause provides an overview of the powers available to the Director of Biosecurity and the Director of Human Biosecurity to determine that a landing place or port is a first point of entry for aircraft and vessels that are subject to biosecurity control. Division 2--First points of entry and biosecurity entry points for incoming aircraft and goods Clause 225 Determination of landing places that are first points of entry for aircraft or goods that are subject to biosecurity control This clause allows the Director of Biosecurity or Director of Human Biosecurity to determine that a specified landing place in Australian territory is a first point of entry for: aircraft generally or a specified class of aircraft that are subject to biosecurity control, and goods or a specified class of goods that are subject to biosecurity control or are subject to an exposed goods order in Chapter 3. A Director can only make a determination in relation to a landing place if he or she is satisfied that the requirements (if any) prescribed in the regulations are met and the level of biosecurity risk associated with the operations at the landing place is acceptable. For the purpose of being satisfied, a Director may have regard to any matter he or she may consider relevant. First points of entry are required to ensure overseas aircraft and any goods on board enter Australia at a designated place that has the appropriate facilities to effectively manage any biosecurity risks associated with them. Overseas aircraft and goods bring with them a range of different biosecurity risks that, if they are not managed appropriately, may result in foreign pests and diseases establishing or spreading and negatively impacting upon Australia's plant and animal health, local industries, environment and economy. A Director can consider a range of factors when determining whether he or she is satisfied that the level of biosecurity risk associated with the operations at the landing place is acceptable. This may include the location of the landing place, (a landing place in Queensland for example might experience higher temperatures than one in Victoria, which would allow particular types of pests or disease to flourish that would otherwise be killed by the cold), the surrounding environment, (a landing place close to trees or an area of high wind increases the risk of wood-based pests or plant spores establishing and spreading) or the 217

facilities available to manage biosecurity risks (some landing places might have treatment options on site, while others require a good to travel inland, increasing the level of biosecurity risk). Other matters the Director might think are relevant in determining whether he or she is satisfied may include matters of national interest, economic or defence considerations. Clause 226 Biosecurity entry points for aircraft and goods that are subject to biosecurity control This clause allows the determination of a specified landing place as a first point of entry to designate a biosecurity entry point for: aircraft generally or a specified class of aircraft that are subject to biosecurity control, and goods or a specified class of goods that are subject to biosecurity control or are subject to an exposed goods order under Chapter 3. Biosecurity entry points are a designated area within a landing place that an aircraft or goods must enter as soon as practicable upon arriving at the first point of entry. For example, if a Director determines a landing place to be a first point of entry that can accept bulk grain, but considers that the biosecurity risks associated with that import need to be managed at a specific location within the landing place, the Director can designate that location to be a biosecurity entry point for bulk grain and all aircraft that import bulk grain must take them there as soon as practicable after they arrive. This might involve the aircraft landing, unloading the bulk grain and then transporting it to the biosecurity entry point. Biosecurity entry points are an optional tool that can be used by a Director if he or she is satisfied one is necessary, depending on a range of factors such as the size and location of the landing place or the types of biosecurity risks associated with its operations. Clause 227 Determination may be subject to conditions This clause provides that a determination that a landing place is a first point of entry may specify conditions that relate to (but are not limited to) an owner or lessee of the landing place, a person or body that is responsible for carrying out operations at the landing place or the operations carried out at the landing place. A Director can impose any condition he or she considers necessary. This allows flexibility in the management of first points of entry and enables a Director to permit a landing place to accept overseas aircraft and vessels, while maintaining control over how specific risks are dealt with to ensure that they are managed to an acceptable level. An example of a condition that might be placed upon a first point of entry is that it can only receive timber products during a season where risks can be better managed, such as winter when timber-based pests find it more difficult to establish and spread. This is likely to be on the basis that the landing place has some facilities to manage the biosecurity risks associated with timber, but not extensive ones. Clause 228 Determination may have effect for specified period This clause provides that the determination of a first point of entry may be expressed to have effect for a specified period. If there is a specified period, the Director who determined the first point of entry may vary the determination to extend or shorten the period. 218

This gives the Director flexibility when determining and managing first points of entry. Not all first points of entry are required to be in place indefinitely. For example, the owner or lessee of a landing place may wish to have that landing place determined as a first point of entry to allow goods and equipment to be imported that are required for the operation of a mining operation located nearby. On this basis, a Director may determine the landing place to be a first point of entry only for the length of time the mine is expected to be constructed or operational. This also prevents first points of entry from being determined and then retaining their status when it is no longer required. It ensures that there is a pre-determined point in time when the need for a landing place to be a first point of entry can be reassessed and a decision made whether the biosecurity risks are being managed to an acceptable level. (Noting that biosecurity risks can be reassessed by a Director at any point under clause 229 and a determination varied or revoked if it is required). Clause 229 Variation and revocation of determination etc. This clause allows a Director who determined a landing place to be a first point of entry to vary or revoke the determination or a condition specified in the determination if he or she is satisfied that: one or more of the requirements prescribed by the regulations in relation to the landing place are no longer being met the level of biosecurity risk associated with the operations at the landing place has become unacceptable a condition specified in the determination has not been or is not being met the landing place is no longer required to be a first point of entry for aircraft generally, a specified class of aircraft, specified goods or a specified class of goods, or a circumstance prescribed by the regulations has occurred. This ensures that if a Director assesses the biosecurity risks associated with the operations at the landing place and determines the operations cannot or are not being appropriately managed (for any of the reasons above), there are options available to reduce the operations at the first point of entry so the biosecurity risks can be managed, or revoke the determination and cease all operations. Given the high level of biosecurity risk associated with aircraft and goods that enter a first point of entry from overseas, it is vital that biosecurity risks are being managed to an acceptable level in order to prevent diseases and pests establishing and spreading and causing harm to Australia's plant and animal health, industries, environment and economy. Clause 230 Determination is a legislative instrument This clause states that a determination made under clause 225 or an instrument that varies or revokes a determination made under clause 225 is a legislative instrument, but is not subject to disallowance or sunsetting under the Legislative Instruments Act 2003. The decision to determine, vary or revoke a first point of entry determination is a technical and scientific decision based on whether the biosecurity risks are able to be satisfactorily managed. 219

If the determination, variation or revocation of first points of entry were disallowed, there is an increased risk that biosecurity risks will enter at a first point of entry that does not have the operational capacity to manage them satisfactorily. This poses a significant risk that a pest or disease will spread and result in damage to Australia's plant and animal health, industries, environment or economy. Division 3--First points of entry and biosecurity entry points for incoming vessels and goods Clause 231 Determination of ports that are first points of entry for vessels or goods that are subject to biosecurity control This clause allows the Director of Biosecurity or Director of Human Biosecurity to determine that a specified port in Australian territory is a first point of entry for: vessels generally or a specified class of vessels that are subject to biosecurity control, and goods or a specified class of goods that are subject to biosecurity control or are subject to an exposed goods order in Chapter 3. A Director can only make a determination in relation to a port if he or she is satisfied that the requirements (if any) prescribed in the regulations are met and the level of biosecurity risk associated with the operations at the port is acceptable. For the purpose of being satisfied, a Director may have regard to any matter he or she may consider relevant. A Director can consider a range of factors when determining whether he or she is satisfied that the level of biosecurity risk associated with the operations at the port is acceptable. The examples and reasoning under clause 225 also apply to this clause. Clause 232 Biosecurity entry points for vessels and goods that are subject to biosecurity control This clause allows the determination of a specified landing place as a first point of entry to designate a biosecurity entry point for: vessels generally or a specified class of vessels that are subject to biosecurity control, and goods or a specified class of goods that are subject to biosecurity control or are subject to an exposed goods order under Chapter 3. The examples and policy explanation under clause 226 also apply to this clause. Clause 233 Determination may be subject to conditions This clause provides that a determination that a port is a first point of entry may specify conditions that relate to (but are not limited to) an owner or lessee of the landing place, a person or body that is responsible for carrying out operations at the port or the operations carried out at the port. The examples and policy explanation under clause 227 also apply to this clause. 220

Clause 234 Determination may have effect for specified period This clause provides that the determination of a first point of entry may be expressed to have effect for a specified period. If there is a specified period, the Director who determined the first point of entry may vary the determination to extend or shorten the period. The examples and policy explanation under clause 228 also apply to this clause. Clause 235 Variation and revocation of determination etc. This clause allows a Director who determined a port to be a first point of entry to vary or revoke the determination or a condition specified in the determination if he or she is satisfied that: one or more of the requirements prescribed by the regulations in relation to the port are no longer being met the level of biosecurity risk associated with the operations at the port has become unacceptable a condition specified in the determination has not been or is not being met the port is no longer required to be a first point of entry for vessels generally, a specified class of vessels, specified goods or a specified class of goods, or a circumstance prescribed by the regulations has occurred. The examples and policy explanation under clause 229 also apply to this clause. Clause 230 Determination is a legislative instrument This clause states that a determination made under clause 231 or an instrument that varies or revokes a determination made under clause 231 is a legislative instrument, but is not subject to disallowance or sunsetting under the Legislative Instruments Act 2003. The policy explanation under clause 230 also applies to this clause. Part 4--Entry points for incoming aircraft and vessels Division 1--Introduction Clause 237 Guide to this Part This clause provides an overview of the requirements for incoming aircraft and vessels to land or moor at a first point of entry and, if relevant, brought to a biosecurity entry point. It also provides powers for biosecurity officials to enter ports and landing places to exercise powers and functions. Division 2--Entry points for aircraft that intend to land in Australian territory Clause 238 Application of this Division This clause clarifies that Division 2 applies to aircraft that intend to land at a landing place in Australian territory. Clause 239 Aircraft must land at first point of entry This clause requires that an aircraft must not land at a landing place in Australian territory that is not a first point of entry, unless permission has been given under clauses 241 or a direction has been given under clauses 242 or 244. 221

This is intended to ensure that aircraft and goods that arrive from overseas which may have an unacceptable level of biosecurity risk, arrive at a location that has the facilities available to assess any biosecurity risks and manage them to an acceptable level. Aircraft or goods arriving at a landing place that is not a first point of entry and does not have the capacity to manage the biosecurity risks poses a threat that a disease or pest may enter, establish or spread and causing harm to Australia's plant and animal health, local industries, environment and economy. A person commits an offence if he or she is the person in charge or the operator of the aircraft, the aircraft is subject to biosecurity control and the person permits the aircraft to land at a landing place that is not a first point of entry for the aircraft. The person in charge commits an offence if the operator contravenes clause 239 and the operator commits an offence if the person in charge contravenes clause 239 (see policy explanation in clause 214). The maximum penalty for contravention of clause 239 is five years imprisonment, or a fine of 300 penalty units, or both. This offence does not apply if permission is given under clause 241 or a direction is given under clause 242 or 244. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers and reflects the severity of the potential consequences of the commission of the offence. If an aircraft lands at a landing place that is not a first point of entry, significant biosecurity risks may be realised and result in serious damage to plant and animal health, Australia's local industries, the economy and the environment. A court would be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. The person in charge and the operator of an aircraft or vessel are each liable to a civil penalty if he or she contravenes clause 239. The maximum civil penalty for a contravention is 120 penalty units. Clause 240 Aircraft must be brought to relevant biosecurity entry point (if any) at first point of entry This clause states that if an aircraft has landed at a first point of entry for the aircraft and there is a biosecurity entry point for that aircraft, the aircraft must be brought to that biosecurity entry point as soon as practicable. Biosecurity entry points are a designated area within a landing place that an aircraft or goods must enter as soon as practicable upon arriving at the first point of entry. They are an optional tool that can be used by a Director if he or she is satisfied one is necessary, depending on a range of factors such as the size and location of the landing place or the types of biosecurity risks associated with its operations. A person commits an offence if he or she is the person in charge or the operator of the aircraft, the aircraft is subject to biosecurity control, the aircraft has landed at a first point of entry for the aircraft, there is a biosecurity entry point for the aircraft and the person does not ensure the aircraft is brought to that point as soon as practicable. The person in charge commits an offence if the operator contravenes clause 240 and the operator commits an offence if the person in charge contravenes clause 240 (see policy explanation in clause 214). 222

The maximum penalty for contravention of clause 240 is five years imprisonment, or a fine of 300 penalty units, or both. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers and reflects the severity of the potential consequences of the commission of the offence. If an aircraft is not brought to a relevant biosecurity entry point, significant biosecurity risks may be realised and result in serious damage to plant and animal health, Australia's local industries, the economy and the environment. A court would be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. The person in charge and the operator of an aircraft or vessel are each liable to a civil penalty if he or she contravenes clause 240. The maximum civil penalty for a contravention is 120 penalty units. As outlined in Chapter 3, if there is a biosecurity entry point at the first point for goods that may be unloaded from an aircraft, the person in charge of the aircraft must ensure the goods are brought to that biosecurity entry point (unless permission has been given for the goods to be brought to an alternative biosecurity entry point at the first point of entry - see clauses 144 and 145). Clause 241 Permission for aircraft to land at landing place that is not first point of entry for aircraft This clause allows the person in charge or the operator of an aircraft to request in writing that the Director of Biosecurity or the Director of Human Biosecurity give permission for the aircraft to land at a specified landing place in Australian territory that is not a first point of entry for that aircraft. The person in charge or operator may also request permission for goods to be unloaded at the specified landing place or port under Chapter 3 (see clause 143). If the relevant Director receives such a request, he or she may provide written notice to the person in charge or the operator of the aircraft giving the person in charge or operator permission to land at the landing place specified in the request. This permission can be given subject to any conditions specified in the notice. This allows further flexibility in the management of first points of entry, by giving a Director the ability to grant permission for an aircraft to arrive at a landing place that is not a first point of entry. The permission may be for one arrival or multiple arrivals over a specified period of time. The ability to apply conditions to this permission enables a Director to allow an aircraft to land at an alternative landing place, while maintaining control over how specific biosecurity risks are dealt with and ensuring that they are managed to an acceptable level. An example might be a light aircraft that only operates 3 months of the year and requires access to landing places that are not first points of entry. A Director may give the aircraft permission to arrive at those two landing places within the 3 month period and unload passengers, subject to a condition that they arrive at a specified location within the port where biosecurity officers are available to assess and manage the biosecurity risks associated with the people and goods on board. 223

A Director may consider any relevant factors he or she considers appropriate in deciding whether or not to grant permission for an aircraft to land at a landing place that is not a first point of entry. This may include whether the biosecurity risks associated with the aircraft can be managed to a satisfactory level, the location of the landing place, the surrounding environment, the facilities available, the accessibility of biosecurity officers and any national interest, economic or defence considerations. A person commits an offence if he or she is the person in charge or the operator of the aircraft, the person is given a permission under this clause, the permission is subject to conditions, the person engages in conduct and the conduct contravenes the conditions. The person in charge commits an offence if the operator contravenes clause 241 and the operator commits an offence if the person in charge contravenes clause 241 (see policy explanation in clause 214). The maximum penalty for a contravention of clause 241 is five years imprisonment, or a fine of 300 penalty units, or both. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers and reflects the severity of the potential consequences of the commission of the offence. If an aircraft enters a landing place that is not a first point of entry without permission, significant biosecurity risks may be realised and result in serious damage to plant and animal health, Australia's local industries, the economy and the environment. A court would be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. The person in charge and the operator of an aircraft or vessel are each liable to a civil penalty if he or she contravenes clause 241. The maximum civil penalty for a contravention is 120 penalty units. Clause 242 Direction requiring aircraft to land, or not land, at specified landing place This clause allows a biosecurity officer to give a direction to the person in charge or the operator of an aircraft requiring the aircraft to land at a specified landing place in Australian territory or give a direction not to land at one or more specified landing places in Australian territory (these may or may not be a first point of entry). A direction can only be given if the biosecurity officer is satisfied that it is necessary to manage the biosecurity risks associated with the aircraft or any person or thing on board the aircraft. This ensures that a direction can only be given if there is a relevant biosecurity risk that needs to be managed via a direction. This clause enables a biosecurity officer to prevent an aircraft from entering a particular landing place if it is necessary to manage a biosecurity risk on board. A direction will apply even if the landing place is otherwise approved to accept that class of aircraft or good. This allows a biosecurity officer to make an independent assessment of the relevant biosecurity risks, particularly in unusual circumstances, and direct an aircraft accordingly. An example might be if a landing place temporarily does not have the facilities required to manage a particular type of biosecurity risk, or there are temporary environmental conditions (such as a large storm) that affect the level of biosecurity risk. A biosecurity officer can direct the aircraft to enter another landing place where the biosecurity risks can be managed to an 224

acceptable level. Another example is if an aircraft is determined to have an unusual type of biosecurity risk that can only be managed at a particular landing place. A biosecurity officer can direct that aircraft to enter that landing place only. A direction must not be given that requires the aircraft not to land at any landing place in Australian territory. This type of direction can only be given by the Director of Biosecurity. A biosecurity officer must revoke a direction if he or she is no longer satisfied that it is necessary to manage biosecurity risks associated with the aircraft or any person or thing on board the aircraft. This ensures that if the biosecurity risk that led to the direction being given no longer exists or has been managed to an acceptable level, the aircraft is once again free to travel to any first point of entry. The requirement does not, by implication, act as a limit on the power of a biosecurity officer to revoke a direction given under this clause. Clause 243 Direction requiring aircraft not to land at any landing place in Australian territory This clause allows a biosecurity officer to give the person in charge or the operator of an aircraft a direction not to land at any landing place in Australian territory (this may or may not be a first point of entry). The person in charge or the operator may each commit an offence or be liable to a civil penalty for failing to comply with such a direction (see clause 245). A biosecurity officer must not give a direction under this clause without the written approval of the Director of Biosecurity. Before giving approval, the Director of Biosecurity must consider the principles in clause 31 of Chapter 1. The Director of Biosecurity must not give approval unless satisfied on reasonable grounds that the level of biosecurity risk associated with the aircraft or any person or thing on board the aircraft is unacceptable and biosecurity measures cannot be taken to reduce that level of biosecurity risk to an acceptable level. This power enables a direction to be given by a biosecurity officer to prevent an aircraft from entering a particular landing place if he or she is satisfied there is an unacceptable biosecurity risk on board and the officer has approval from the Director of Biosecurity. The direction will only be give if Director of Biosecurity is satisfied that the level of risk cannot be managed to an acceptable level, justifying the denial of entry to any landing place or port in Australian territory. A direction will apply, even if the landing place is otherwise approved to accept that class of aircraft or good. This allows an independent assessment of the relevant biosecurity risks to be made and an aircrafts movement to be directed accordingly. A decision not to allow an aircraft to enter any landing place effectively denies that aircraft the right to enter Australian territory. Requiring the approval of the Director of Biosecurity ensures that a decision of this magnitude is approved at the appropriate level, allowing for the consideration of more stringent requirements, such as whether a direction is necessary and proportionate and what the effect will be upon the health and safety of the persons on board (see clause 31). Note that the defence of sudden and extraordinary emergency in Division 10.3 of the Criminal Code 1995 applies to this clause. 225

A direction by the Director of Biosecurity not to enter any landing place or port cannot be given only for the purpose of managing human biosecurity risks. This ensures that any direction given is compliant with Australia's international obligations under the World Health Organization's International Health Regulations. A biosecurity officer must revoke a direction if the Director of Biosecurity is satisfied that the biosecurity risks associated with the aircraft or any person or thing on board the aircraft are no longer unacceptable, biosecurity measures can be taken to reduce the level of biosecurity risk associated with the aircraft or any person or thing onboard to an acceptable level or the direction should be revoked for any other reason. This ensures that if the biosecurity risk that led to the direction being given no longer exists or can be managed to an acceptable level, the aircraft is once again free to travel to any first point of entry. Clause 244 Direction requiring aircraft to land, or not land, at specified landing place - management of human health risks This clause allows a chief human biosecurity officer or a human biosecurity officer to give the person in charge or the operator of an aircraft a direction requiring the aircraft to land at a specified landing place in Australian territory or a direction not to land at one or more specified landing places in Australian territory (this may or may not be a first point of entry). The person in charge and the operator may each commit an offence or be liable to a civil penalty for failing to comply with such a direction (see clause 245). This power can only be exercised by a chief human biosecurity officer or a human biosecurity officer if the officer is satisfied on reasonable grounds that the direction is necessary to manage human biosecurity risks associated with the aircraft or any person or thing on board the aircraft. A direction must not be given by a chief human biosecurity officer or a human biosecurity officer requiring the aircraft not to land at any landing place in Australian territory. This ensures that any direction given is compliant with Australia's international obligations under the World Health Organisation's International Health Regulations. A chief human biosecurity officer or human biosecurity officer must revoke a direction if he or she is no longer satisfied that it is necessary to manage human biosecurity risks associated with the aircraft or any person or thing on board the aircraft. This ensures that if the human biosecurity risk that led to the direction being given no longer exists or has been managed to an acceptable level, the aircraft is once again free to travel to any first point of entry. The requirement does not, by implication, act as a limit on the power of a chief human biosecurity officer or human biosecurity officer to revoke a direction given under this clause. Clause 245 Person who is given direction must comply with it This clause provides that a person who does not comply with a direction given under Division 2 of Part 4 commits an offence and is liable to a civil penalty. The maximum penalty for contravention of clause 245 is five years imprisonment, or a fine of 300 penalty units, or both. The maximum civil penalty for contravention of clause 245 is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers and reflects the severity of the potential consequences of the 226

commission of the offence. If directions are not complied with, significant biosecurity risks may be realised and result in serious damage to plant and animal health, Australia's local industries, the economy and the environment. A court would be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. Division 3--Entry Points for vessels that intend to be moored in Australia Clause 246 Application of this Division This clause clarifies that Division 3 applies to vessels that intend to moor at a port in Australian territory. Clause 247 Vessel must be moored at first point of entry This clause requires that a vessel must not be moored at a port in Australian territory that is not a first point of entry, unless permission has been given under clauses 249 or a direction has been given under clauses 250 or 252. This is intended to ensure that vessels and goods that arrive from overseas which may have an unacceptable level of biosecurity risk, arrive at a location that has the facilities available to assess any biosecurity risks and manage them to an acceptable level. Vessels or goods arriving at a port that is not a first point of entry and does not have the capacity to manage the biosecurity risks poses a threat that a disease or pest may enter, establish or spread and causing harm to Australia's plant and animal health, local industries, environment and economy. A person commits an offence if he or she is the person in charge or the operator of the vessel, the vessel is subject to biosecurity control and the person permits the vessel to be moored at a port in Australian territory that is not a first point of entry. The person in charge commits an offence if the operator contravenes clause 247 and the operator commits an offence if the person in charge contravenes clause 247 (see policy explanation in clause 214). The maximum penalty for a contravention of clause 247 is five years imprisonment, or a fine of 300 penalty units, or both. This offence does not apply if permission is given under clause 249 or a direction is given under clause 250 or 252. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers and reflects the severity of the potential consequences of the commission of the offence. If a vessel is not moored at a first point of entry, significant biosecurity risks may be realised and result in serious damage to plant and animal health, Australia's local industries, the economy and the environment. A court would be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. The person in charge and the operator of an aircraft or vessel are each liable to a civil penalty if he or she contravenes clause 247. The maximum civil penalty for a contravention is 120 penalty units. 227

Clause 248 Vessel must be brought to relevant biosecurity entry point (if any) at first point of entry This clause states that if a vessel is moored at a first point of entry for the vessel, and there is a biosecurity entry point for that vessel, the vessel must be brought to that biosecurity entry point as soon as practicable. Biosecurity entry points are a designated area within a port that a vessel or goods must enter as soon as practicable upon arriving at the first point of entry. They are an optional tool that can be used by a Director if he or she is satisfied one is necessary, depending on a range of factors such as the size and location of the port or the types of biosecurity risks associated with its operations. A person commits an offence if he or she is the person in charge or the operator of the vessel, the vessel is subject to biosecurity control, the vessel has been moored at a first point of entry for the vessel, there is a biosecurity entry point for the vessel and the person does not ensure that the vessel is brought to that entry point as soon as practicable. The person in charge commits an offence if the operator contravenes clause 248 and the operator commits an offence if the person in charge contravenes clause 248 (see policy explanation in clause 214). The maximum penalty for a contravention of clause 248 is five years imprisonment, or a fine of 300 penalty units, or both. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers and reflects the severity of the potential consequences of the commission of the offence. If a vessel is not brought to a relevant biosecurity entry point, significant biosecurity risks may be realised and result in serious damage to plant and animal health, Australia's local industries, the economy and the environment. A court would be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. The person in charge and the operator of an aircraft or vessel are each liable to a civil penalty if he or she contravenes clause 248. The maximum civil penalty for a contravention is 120 penalty units. As outlined in Chapter 3, if there is a biosecurity entry point at the first point for goods that may be unloaded from a vessel, the goods must be brought to that biosecurity entry point (unless permission has been given for the goods to be brought to an alternative biosecurity entry point at the first point of entry - see clauses 144 and 145). Clause 249 Permission for vessel to be moored at a port that is not first point of entry for vessel This clause allows the person in charge or the operator of a vessel to request in writing that the Director of Biosecurity or the Director of Human Biosecurity give permission for the vessel to land at a specified port in Australian territory that is not a first point of entry for that vessel. The person in charge or operator may also request permission for goods to be unloaded at the specified landing place or port under Chapter 3 (see clause 143). If the relevant Director receives such a request, he or she may provide written notice to the person in charge or the operator of the vessel giving the person in charge or operator 228

permission to land at the port specified in the request. This permission can be given subject to any conditions specified in the notice. This allows further flexibility in the management of first points of entry, by giving a Director the ability to grant permission for a vessel to arrive at a port that is not a first point of entry. The permission may be for one arrival or multiple arrivals over a specified period of time. The ability to apply conditions to this permission enables a Director to allow a vessel to moor at an alternative port, while maintaining control over how specific biosecurity risks are dealt with and ensuring that they are managed to an acceptable level. The same example used in clause 241 applies to this clause. A Director may consider any relevant factors he or she considers appropriate in deciding whether or not to grant permission for a vessel to land at a port that is not a first point of entry. This may include whether the biosecurity risks associated with the vessel can be managed to a satisfactory level, the location of the port, the surrounding environment, the facilities available, the accessibility of biosecurity officers and any national interest, economic or defence considerations. A person commits an offence if he or she is the person in charge or the operator of the vessel, the person has been given a permission under this clause that is subject to conditions and the person engages in conduct that contravenes the conditions. The person in charge commits an offence if the operator contravenes clause 249 and the operator commits an offence if the person in charge contravenes clause 249 (see policy explanation in clause 214). The maximum penalty for a contravention of clause 249 is five years imprisonment, or a fine of 300 penalty units, or both. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers and reflects the severity of the potential consequences of the commission of the offence. If a vessel moors at a port that is not first point of entry without permission, significant biosecurity risks may be realised and result in serious damage to plant and animal health, Australia's local industries, the economy and the environment. A court would be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. The person in charge and the operator of an aircraft or vessel are each liable to a civil penalty if he or she contravenes clause 249. The maximum civil penalty for a contravention is 120 penalty units. Clause 250 Direction requiring vessel to be moored, or not to be moored, at specified port This clause allows a biosecurity officer to give a direction to the person in charge or the operator of a vessel requiring the vessel to moor at a specified port in Australian territory or give a direction not to moor at one or more specified ports in Australian territory (these may or may not be a first point of entry). A direction can only be given if the biosecurity officer is satisfied that it is necessary to manage the biosecurity risks associated with the vessel or any person or thing on board the 229

vessel. This ensures that a direction can only be given if there is a relevant biosecurity risk that needs to be managed via a direction. The same policy justifications and examples used in clause 242 apply to this clause. Clause 251 Direction requiring vessel not to be moored at any port in Australian territory This clause allows a biosecurity officer to give the person in charge or the operator of a vessel a direction not to moor at any port in Australian territory (this may or may not be a first point of entry). The person in charge or the operator may each commit an offence or be liable to a civil penalty for failing to comply with such a direction (see clause 245). A biosecurity officer must not give a direction under this clause without the written approval of the Director of Biosecurity. Before giving approval, the Director of Biosecurity must consider the principles in clause 31 of Chapter 1. The Director of Biosecurity must not give approval unless satisfied on reasonable grounds that the level of biosecurity risk associated with the vessel or any person or thing on board the vessel is unacceptable and biosecurity measures cannot be taken to reduce that level of biosecurity risk to an acceptable level. A direction by the Director of Biosecurity not to enter any port cannot be given only for the purpose of managing human biosecurity risks. This ensures that any direction given is compliant with Australia's international obligations under the World Health Organization's International Health Regulations. A biosecurity officer must revoke a direction if the Director of Biosecurity is satisfied that the biosecurity risks associated with the vessel or any person or thing on board the vessel are no longer unacceptable, biosecurity measures can be taken to reduce the level of biosecurity risk associated with the vessel or any person or thing onboard to an acceptable level or the direction should be revoked for any other reason. The same policy justifications and examples used in clause 243 apply to this clause. Clause 252 Direction requiring vessel to moor, or not be moored, at specified port - management of human health risks This clause allows a chief human biosecurity officer or a human biosecurity officer to give the person in charge of a vessel a direction requiring the person in charge or the operator to moor at a specified port in Australian territory or a direction not to moor at one or more specified ports in Australian territory (this may or may not be a first point of entry). The person in charge and the operator may each commit an offence or be liable to a civil penalty for failing to comply with such a direction (see clause 245). This power can only be exercised by a chief human biosecurity officer or a human biosecurity officer if the officer is satisfied on reasonable grounds that the direction is necessary to manage human biosecurity risks associated with the vessel or any person or thing on board the vessel. A direction must not be given by a chief human biosecurity officer or a human biosecurity officer requiring the vessel not to land at any port in Australian territory. This ensures that 230

any direction given is compliant with Australia's international obligations under the World Health Organisation's International Health Regulations. A chief human biosecurity officer or human biosecurity officer must revoke a direction if he or she is no longer satisfied that it is necessary to manage human biosecurity risks associated with the vessel or any person or thing on board the vessel. This ensures that if the human biosecurity risk that led to the direction being given no longer exists or has been managed to an acceptable level, the vessel is once again free to travel to any first point of entry. The requirement does not, by implication, act as a limit on the power of a chief human biosecurity officer or human biosecurity officer to revoke a direction given under this clause. Clause 253 Person who is given direction must comply with it This clause provides that a person who does not comply with a direction given under Division 3 of Part 4 commits an offence and is liable to a civil penalty. The maximum penalty for contravention of clause 253 is five years imprisonment, or a fine of 300 penalty units, or both. The maximum civil penalty for contravention of clause 253 is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers and reflects the severity of the potential consequences of the commission of the offence. If directions are not complied with, significant biosecurity risks may be realised and result in serious damage to plant and animal health, Australia's local industries, the economy and the environment. A court would be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. Division 4--Miscellaneous Clause 254 Biosecurity officer etc. may enter landing places or ports This clause applies in relation to a landing place or port in Australian territory where an aircraft or vessel that is subject to biosecurity control has landed or moored, or intends to land or be moored. A biosecurity officer or biosecurity enforcement officer may enter any premises at the landing place or port without the consent of a person in charge of the premises for the purpose of performing functions, or exercising powers, under the Act. For the purposes of this clause, `premises' does not include a conveyance. Chapter 9 also provides for entry to premises for monitoring and searching purposes. Before entering premises at a landing place or port, the biosecurity official must be satisfied of the principles outlined in clause 31 of Chapter 1. This ensures that a more invasive decision to enter premises without a warrant or consent must be made in light of protections designed to ensure a person's human rights are adequately considered. A biosecurity officer is not authorised to enter premises unless they are accompanied by a biosecurity enforcement officer. This ensures that an officer with the appropriate level of training and expertise is establishing entry. The obligations and powers of biosecurity enforcement officers entering premises under this clause is contained in Part 4 of Chapter 10. Biosecurity officers require the ability to enter premises at a port or landing place without a warrant in order to establish whether a biosecurity risk exists, and if so, undertake biosecurity measures that are necessary to address the risk. 231

Landing places and ports are places where pests and diseases can potentially enter Australia via international goods, vessels and aircraft. It is important that the risks associated with these are managed as quickly and efficiently as possible, to ensure they do not establish and spread in Australia and impact upon our animal and plant health, local industries and economy. First points of entry are part of a regulatory scheme and will have agreed to give biosecurity officers the right to enter premises. Part 5--Ship sanitation Division 1--Introduction Clause 255 Guide to this Part Division 2--Ship sanitation Clause 256 Application of this Division This clause defines `international vessels' for the purposes of the scheme. An international vessel is a vessel that has arrived from a voyage outside Australia; or intends to leave Australia. Clause 257 Regulations may prescribe scheme in relation to ship sanitation This clause allows for the making of regulations to prescribe the detail of the scheme. The regulations may provide for: determining the level of vessel sanitation health risk associated with an international vessels circumstances in which the level of vessel sanitation health risk is deemed to be unacceptable the issuance of internationally recognised certification relating to sanitary conditions on board an international vessel recognition of certificates issued by, or on behalf of, competent authorities (e.g. authorities of foreign countries) designation of ports where inspections may be performed for the purposes of the Scheme measures which may be taken to manage vessel sanitation health risks associated with the vessel, and the sharing of information obtained under the scheme with other States party to the IHR. Articles 19 and 20 of the IHR require States party to the IHR to designate airports and ports with the capacity to manage and respond to public health risks and public health emergencies of international concern. This includes the capability to perform inspections and issue Ship (Vessel) Sanitation certificates. The IHR sets out a scheme with two different certificates. A Ship (Vessel) Sanitation Control Exemption certificate is issued when sanitary conditions aboard a vessel do not present a public health risk. A Ship (Vessel) Sanitation Control Certificate is issued when there is evidence of factors which present a public health risk, and control measures have been undertaken to manage those risks. 232

Consistent with Articles 24 and 27 of the IHR, the regulations will provide the Commonwealth with the capability to inspect ships and apply measures such as disinfect, disinsect, de-rat or decontaminate the conveyance in order to manage potential risks to human health. The regulations will provide for the issuance of Ship Sanitation certificates at Australian ports consistent with Annexe 3 (Model Ship San certificates) and Article 39 of the IHR. Clause 258 Declaring ports at which vessels may be inspected for the purposes of the scheme This clause allows the Director of Human Biosecurity to designate those ports in Australia where inspections may be performed, and certificates issued, in accordance with the scheme. Articles 19 and 20 of the IHR require States party to the IHR to designate airports and ports with the capacity to manage and respond to public health risks and public health emergencies of international concern. This includes designation of ports with the capability to perform inspections and issue Vessel Sanitation certificates. Article 20 of the IHR also requires that member states provide the WHO with a list of ports authorised to offer ship sanitation certificates. The list of authorised ports is published to inform both member states and operators of international vessels regarding ports where inspections may be performed and certificates issued. Clause 259 Assessing and managing sanitation health risks This clause links the vessel sanitation certification scheme to the powers and functions in Part 2 of Chapter 4, which provide for inspection and treatment of international vessels. Where there is evidence of a human biosecurity risk, the powers in Part 2 of Chapter 4 give the Commonwealth the power to inspect vessels and require measures to be taken to manage human health risks. Some clauses contained in Part 2 of Chapter 4 which apply to vessels generally are specifically excluded from the operation of the vessel sanitation certification scheme. These are expressly excluded as they are not required for the operation of the scheme and they are outside the scope of the scheme provided for by the IHR. 233

Chapter 5--Ballast water and sediment Part 1--Application and interpretation Division 1--Introduction Clause 260 Guide to this Part The guide outlines how the scheme for the management of ballast water and sediment will operate. Division 2--Application and interpretation Clause 261 Extension of Chapter to every external Territory This clause provides that this Chapter extends to all external territories of Australia. This includes Ashmore and Cartier Islands, Christmas Island, Cocos (Keeling) Islands, Coral Sea Islands, Heard Island and McDonald Islands and Norfolk Island. It does not however include the Australian Antarctic Territory which is specifically excluded under clause 263. Clause 262 Vessels in dry dock in Australia This clause outlines that the ballast water management scheme applies to a vessel in dry dock. Clause263 Foreign vessels in waters adjacent to Australian Antarctic Territory This clause provides that a vessel within the limits of the territorial sea (12 nautical mile zone) of the Australian Antarctic Territory is not in Australian seas. This is consistent with Australia's obligations pursuant to article 4 of the Antarctic Treaty 1961. Clause 264 References to the person in charge of a vessel do not include persons exercising certain powers This clause provides that references to a person in charge of a vessel do not include a person exercising powers under an Australian law. The purpose of this clause is to exempt Commonwealth, state and territory officers who are in control of a vessel such as a ship's pilot or in a law enforcement or maritime rescue capacity. Clause 265 Permanent ballast water in sealed tanks not subject to this Chapter This clause provides that the ballast water management scheme does not apply to permanent ballast water which is in a sealed tank of a vessel and which cannot be discharged from the vessel. It is not appropriate to include this type of ballast water in the scheme as it cannot be discharged and therefore does not pose an unacceptable biosecurity risk to Australia's marine environment. Clause 266 Relationship with other Commonwealth laws This clause provides that the Chapter complements other Commonwealth laws and does not substitute other current Commonwealth laws. This is to recognise that this Chapter is part of a broader scheme of Commonwealth laws that protect the marine environment from pollution from vessels in Australian seas such as the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 and the Protection of the Sea (Harmful Anti-fouling Systems) Act 2006. 234

Clause 267 Relationship with State and Territory laws Subclause 267(1) sets out Parliament's intention that Chapter 5 covers the field in relation to biosecurity risks associated with ballast water or sediment. Accordingly, the Act operates to exclude any State or Territory law that purports to deal with ballast water or sediment (see clause 169 for discussion on covering the field). However, subclause 267(2) indicates that Chapter 5 is not intended to exclude or limit the concurrent operation of State or Territory laws in respect of the treatment or disposal of ballast water or sediment after it has been removed from a vessel. This is to recognise that State and Territory environment protection laws may impose additional requirements once the ballast water or sediment has been released or removed from the vessel. It also ensures that Australia can give effect to the Ballast Water Convention. Part 2--Management of discharge of ballast water Division 1--Introduction Clause 268 Guide to this Part This guide provides a concise overview of the Part's objectives. The Part creates an offence of discharging ballast water in Australian seas. There are six exceptions available to the offence. Division 2--Offence of discharging ballast water Clause 269 Offence -- discharging ballast water in Australian seas This clause creates an offence where the person in charge or operator of a vessel discharges ballast water from the vessel in Australian seas. The maximum penalty for contravention is a fine of 2000 penalty units if the elements of a fault-based offence are established. There is also a strict liability offence with a maximum fine of 500 penalty units. It is acknowledged that the penalties for these offences depart from the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. The primary reason for this departure is that the commission of this offence would result in significant biosecurity risks, which may result in serious damage to plant and animal health, Australia's local industries, the economy and the environment. These penalties are consistent with the penalty benchmarks under section 21 of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983. This ensures consistency with other Commonwealth legislation implementing international treaties for the protection of the marine environment. A strict liability offence is appropriate in this context as there is public safety and public interest reasons in ensuring that this requirement is met, and the person in charge or operator of a vessel can be reasonably expected to know about the restrictions imposed on the discharge of ballast water because of their professional expertise. For this clause, the prosecution will have to prove the conduct of the accused person in charge or operator of a vessel. However, the accused person will still be able to rely on the defence in the Criminal Code (Part 9) of honest and reasonable mistake of fact or the exceptions provided in the chapter. 235

The exceptions in this Part are outlined in clauses 270, 276, 277, 279, 282 and 283 which are discussed below. To rely on an exception, a person bears the evidential burden, which means that the defendant must adduce evidence which points to the exception. It will then be incumbent on the prosecution to establish that these exceptions do not apply. It is acknowledged that the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers indicates that shifting the evidential burden of proof to a defendant should be kept to a minimum. There is justification in these cases for shifting the evidential burden as the person will have the requisite knowledge to establish the exceptions, such as the vessels ballast water records (see Part 4 of this Chapter). The provisions have been drafted as exceptions, rather than defences, as this reflects the evidentiary burden being placed on the defendant to adduce evidence of the exception and not a legal burden to prove the defence. Division 3--Exceptions: ballast water management Subdivision A--Exception Clause 270 Exception-- ballast water has been managed for discharge This clause provides that an exception to 269 is that the ballast water discharged from the vessel has been managed for discharge. Subdivision B of Division 3 sets out the circumstances where ballast water has been managed for discharge. This exception recognises where appropriate management techniques have been applied to ballast water discharge, risks of harmful organism or pathogens being in the ballast water can be sufficiently reduced. To rely on the exception, a person bears the evidential burden, which means that the defendant must adduce evidence which points to the ballast water being managed for discharge. It will then be incumbent on the prosecution to establish that the exception does not apply. Subdivision B --Methods of ballast water management Clause 271 Approved method of ballast water management This clause provides one definition of `managed for discharge' for the purposes of ballast water management (see also clause 275). For ballast water to be considered to be managed for discharge under this clause, the vessel must: use a method of ballast water management approved by the Director of Biosecurity (see clauses 272 and 273) have a current ballast water management plan, a ballast water management certificate that is in force and appropriate ballast water records have carried out the management of the ballast water in accordance with the ballast water management plan, and meet any requirements prescribed in the regulations about managing and discharging ballast water. In line with the Ballast Water Convention, meeting these requirements will contribute to the management of the transfer of harmful aquatic organisms and pathogens by assuring that ballast water is managed in an appropriate way. 236

Clause 272 Method of ballast water management - application for approval This clause sets out the process for an application to be made to the Director of Biosecurity for approval of a method of ballast water management. Ballast water management may be a ballast water treatment system, a prototype ballast water treatment system or some other method. The decision of the Director of Biosecurity to accept or reject the method of ballast water management is a reviewable decision under clause 610. The decision must be made within 28 days of the application being made and in accordance with the process set out in regulations. If a decision is not made within 28 days, the application for an exemption is taken to be refused. This ensures that the applicant can seek an internal review of the decision. If the Director of Biosecurity requests additional information regarding the application in writing from the applicant, the 28 day period stops on the day the notice is given, the period begins again on the day the information is provided. As the methods of ballast water management may be used by other vessels, this clause requires that a notice of approval is published on the Agriculture Department's website. This ensures efficiency in assessing applications, as methods of ballast water management only need to be approved once. Clause 273 Method of ballast water management -approval of method approved by foreign country This clause provides the Director of Biosecurity with the ability to approve or reject methods of ballast water management which have been approved by foreign countries in accordance with the Ballast Water Convention (whether or not the foreign country has signed the Convention). This approval is a legislative instrument for the purposes of section 5(1) of the Legislative Instruments Act 2003. This approval process ensures that the Director of Biosecurity and Parliament has appropriate oversight of all methods of ballast water management used in Australian seas. Clause 274 Prescribing matters by reference to other instruments This clause sets out an exception to the limitation on the incorporation by reference rule in section 14(2) of the Legislative Instruments Act 2003. This is to allow the incorporation by reference of international instruments from the International Maritime Organization (such as guidelines issued under the Ballast Water Convention that are updated after meetings of the technical committees) into regulations. These may include guidelines on assessing methods of ballast water management. Subdivision C--Ballast water exchange Clause 275 Management by ballast water exchange This clause provides one definition of `managed for discharge' for the purposes of ballast water management (see also clause 271). For ballast water to be considered to be managed for discharge under this clause, the vessel must: ensure that the prescribed proportion (by volume) of the ballast water in the tank immediately before the discharge had been taken up in an acceptable ballast water 237

exchange. This means that ballast water in the tank of a vessel is discharged at an `acceptable location' and replaced by refilling the ballast water tank, and have appropriate ballast water records. The clause also defines the concept of an `acceptable ballast water exchange' as one where the exchange is conducted in an area declared by the Director of Biosecurity as an `acceptable location' and in any prescribed circumstances for that area as set out in the declaration. This means that the Director of Biosecurity can consider and provide particular areas where the discharging and taking up of ballast water is adequately controlled, or where the risks of harmful organisms or pathogens spreading is low, consistent with the Ballast Water Convention. A declaration made under this clause is a legislative instrument for the purposes of section 5(1) of the Legislative Instruments Act 2003. The regulations may also prescribe any other additional requirements for an acceptable ballast water exchange including the circumstances in which the prescribed proportion (by volume) of the ballast water in the tank of a vessel is taken to have been taken up in an acceptable ballast water exchange. In line with the Ballast Water Convention, meeting these requirements will contribute to the management of the transfer of harmful aquatic organisms and pathogens by assuring that ballast water is managed in an appropriate way. This clause allows a vessel to conduct a ballast water exchange without having a ballast water management plan or ballast water management certificate as required by clause 271. This provides an option for managing ballast water without having to have a ballast water treatment system or another method of ballast water management. This will assist with the implementation of this Chapter, as it provides an option for vessels to manage ballast water for discharge and provides time for these vessels to install a method of ballast water management or be surveyed in order to get a ballast water management certificate. Division 4--Exception: discharge as part of acceptable ballast water exchange Clause 276 Exception - discharge as part of acceptable ballast water exchange This clause provides an exception to the offence under 269 where the discharge of ballast water is carried out as part of an acceptable ballast water exchange in accordance with clause 275. To rely on the exception, a person bears the evidential burden, which means that the defendant must adduce evidence which points to the discharge being part of an acceptable ballast water exchange. It will then be incumbent on the prosecution to establish that the exception does not apply. Division 5--Exception: approved discharge to ballast water reception facility Clause 277 Exception - approved discharge to ballast water reception facility This clause provides an exception to the offence of discharging ballast water (clause 269) where the discharge of ballast water is made to a ballast water reception facility approved under clause 278. The ballast water must be treated or disposed of at the facility in accordance with the approval. A ballast water reception facility may include a land based facility or a vessel. 238

To rely on the exception, a person bears the evidential burden, which means that the defendant must adduce evidence which points to the ballast water being discharged at a ballast water reception facility. It will then be incumbent on the prosecution to establish that the exception does not apply. Clause 278 Discharge to ballast water reception facility - application for approval This clause outlines the process for an application to be made to the Director of Biosecurity for approval of a discharge of ballast water to a ballast water reception facility and the manner in which the ballast water is to be treated or disposed of at the facility. A ballast water reception facility may include a vessel (see clause 9 for definition of `ballast water reception facility'). This clause allows the person in charge or operator of vessels which are unable to make use of other exceptions to propose ways for managing their ballast water for discharge. The decision to accept or reject the application is a reviewable decision under clause 610 and it must be made within 28 days of the application and in accordance with the process set out in regulations. If a decision is not made within 28 days, the application for an exemption is taken to be refused. This ensures that the applicant can seek an internal review of the decision. There is an obligation on the Director of Biosecurity to not approve a manner of treating or disposing of ballast water that would contravene a law of a state or territory. This is in recognition that a ballast water reception facility may be on the land or in coastal waters of a state or territory and subject to environment protection laws. If the Director of Biosecurity requests additional information regarding the application in writing from the applicant, the 28 day period stops on the day the notice is given, the period begins again on the day the information is provided. Division 6--Exception: discharge covered by exemption Clause 279 Exception - discharge covered by exemption This clause provides an exception to the offence of discharging ballast water (clause 269) where the discharge of ballast water is exempt under clause 280 and there has been compliance with any conditions of the exemption. To rely on the exception, a person bears the evidential burden, which means that the defendant must adduce evidence which points to the discharge being covered by an exemption. It will then be incumbent on the prosecution to establish that the exception does not apply. Clause 280 Director of Biosecurity may grant exemptions This clause outlines the process for making an application to the Director of Biosecurity for an exemption of one or more discharges of ballast water that are part of the vessel's voyages between specified ports or locations. For example, the Director of Biosecurity may grant an exemption to a vessel which only travels between ports that have a low risk of harmful 239

aquatic organisms and pathogens. The exemption is only for a specified period and may be in whole or in part, and may be subject to conditions. The decision of the Director of Biosecurity is a reviewable decision under clause 610 and must be made within 28 days after the application is made and in accordance with the process set out in the regulations. If a decision is not made within 28 days, the application for an exemption is taken to be refused. This ensures that the applicant can seek an internal review of the decision. The clause also provides that the Director may use a computer program to make decisions whether to grant an exemption. This program may conduct a risk assessment of any exemption. Clause 281 Variation and revocation of exemption This clause outlines the grounds on which the Director of Biosecurity can vary or revoke an exemption, in writing, to the owner, person in charge or operator of the vessel or an agent of the vessel. This clause provides the flexibility for the Director of Biosecurity to actively manage biosecurity risks of ballast water in situations where significant non-compliance with the exemption has occurred or an unacceptable biosecurity risk has been identified after the exemption has been granted. Decisions of the Director of Biosecurity are reviewable decisions under clause 610. This clause is intended to exclude the general powers of variation and revocation under s33(3) of the Acts Interpretation Act (as it is intended that an exemption will only be varied or revoked under 281, and that a decision to use the power in this clause is reviewable). Division 7--Exception: taking up and discharging ballast water at same place Clause 282 Exception - taking up and discharging ballast water at same place This clause provides an exception to the offence of discharging ballast water (clause 269) where the discharge of ballast water occurs in the same port or point where the ballast water had been taken up. This ballast water poses a low risk of harmful aquatic organisms or pathogens spreading. This exception is qualified that the ballast water taken up is not mixed with ballast water that has not been managed in accordance with Division 3 of this Part. To rely on the exception, a person bears the evidential burden, which means that the defendant must adduce evidence which points to the ballast water being taken up and discharged at the same place. It will then be incumbent on the prosecution to establish that the exception does not apply. Division 8--Exceptions and reporting requirements relating to safety, accidents and pollution Clause 283 Exceptions - safety, accidents and pollution This clause provides exceptions to the offence of discharging ballast water (clause 269) where the discharge has occurred for reasons of safety, an accident or pollution. To rely on the exception, a person bears the evidential burden, which means that the defendant must 240

adduce evidence which points to the exceptions. It will then be incumbent on the prosecution to establish that the exceptions do not apply. It is not an offence to discharge ballast water for reason of ensuring the safety of the vessel in an emergency, or for saving life at sea. An example of this would be where a vessel is in distress due to extreme weather conditions and the release of the ballast water would ensure the vessel would remain seaworthy. It is also not an offence to discharge ballast water as a result of damage to the vessel or equipment on the vessel. To establish the exception the owner, person in charge or operator of the vessel must demonstrate that all reasonable precautions to prevent or minimise the discharge were taken before and after its occurrence, the discovery of the damage and the discovery of the discharge. The person in charge, owner and operator of the vessel must not have intentionally caused the damage or been reckless as to the occurrence of the damage. An example of being reckless as to the occurrence of the damage would be the owner of the vessel not ensuring the proper maintenance of the ballast water tanks and ballast water treatment systems that it led to the damage. It is also not an offence to discharge ballast water where the discharge has occurred to avoid or minimise pollution from the vessel. An example of this would be vessel carrying oil or hazardous substances that were in danger of capsizing or breaking up due to extreme weather conditions. In this instance releasing ballast water to enable the vessel to be stabilised or to reduce structural stresses on the vessel would be acceptable. Clause 284 Report of discharge relating to safety, accident or pollution This clause outlines the obligation to report to the Director of Biosecurity in the event of a discharge of ballast water in Australian seas, where there has been an emergency, accident or a risk of pollution. The reporting obligation does not arise where the discharge of ballast water is covered by one of the exceptions in clauses 270, 276, 277, 279 or 282, as these discharges are managed and pose a low risk. These discharges will also be recorded in the ballast water records of the vessel (see Part 4 of this Chapter). To rely on these exceptions, a person bears the evidential burden, which means that the defendant must adduce evidence which points to the exceptions. It will then be incumbent on the prosecution to establish that theses exceptions do not apply. This clause makes it a strict liability offence for the person in charge or operator of the vessel to not make a report as required under this clause. The maximum penalty for contravention is 500 penalty units. This clause imposes a higher maximum penalty which departs from the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. A strict liability offence is appropriate in this context as there is public safety and public interest reasons in ensuring that this requirement is met as the commission of this offence would result in significant biosecurity risks, which may result in serious damage to plant and animal health, Australia's local industries, the economy and the environment. For this clause, the prosecution will have to prove the conduct of the accused person in charge or operator of a vessel. The accused person will be able to rely on the defence in the Criminal Code (Part 9) of honest and reasonable mistake of fact. These penalties are consistent with the penalty benchmarks under section 22 of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983. This ensures consistency with other 241

Commonwealth legislation implementing international treaties for the protection of the marine environment. Part 3--Ballast water management plans and ballast water management certificates Division 1--Introduction Clause 285 Guide to this Part This guide provides a concise overview of the Part's objectives. The Part provides for ballast water management plans and ballast water management certificates for vessels to be issued, endorsed and recognised. Division 2 outlines the requirements of ballast water management plans and provides a regulation-making power to prescribe a scheme for the Director of Biosecurity to approve ballast water management plans for Australian vessels. Division 3 outlines the requirements of ballast water management certificates and provides a regulation- making power to prescribe a scheme for the Director of Biosecurity and survey authorities to survey vessels for the purposes of certification. Division 2--Ballast water management plans Clause 286 Ballast water management plan This clause outlines the requirements of ballast water management plans for Australian and foreign vessels. For an Australian vessel, a management plan deals with both the ballast water management for the vessel and the disposal of sediments from the vessel's ballast water. The plan must be approved by the Director of Biosecurity (see clause 287 for approval of ballast water management plans). For a foreign vessel, a management plan deals with ballast water management for the vessel and the disposal of sediments from the ballast water which meets the requirements prescribed by the regulations and the Administration of the vessel has approved (see clause 9 for the definition of `Administration'). Clause 287 Approval of ballast water management plan for Australian vessel This clause provides that regulations may prescribe a scheme for the Director of Biosecurity to approve, amend or cancel a ballast water management plan of an Australian vessel. A decision made by the Director of Biosecurity to approve, amend or cancel a ballast water manage plan is a reviewable decision under clause 610. The approval of ballast water management plans will be consistent with the Ballast Water Convention. Division 3--Ballast water management certificates Clause 288 Ballast water management certificate This clause outlines the requirements for ballast water management certificates for Australian and foreign vessels. A ballast water management certificate certifies that a vessel has an approved ballast water management plan, and that any equipment on the vessel such as ballast water treatment systems, is capable of giving effect to the plan. For foreign vessels, the regulations may also prescribe additional requirements that need be met in the certificate. This ensures that any certificate is issued in accordance with the Ballast Water Convention. A ballast water management certificate can be issued or endorsed by the Director of Biosecurity or a survey authority, or in the case of a foreign vessel, by their Administration. 242

Clause 289 Director of Biosecurity may authorise person to be survey authority This clause provides the Director of Biosecurity with the power to authorise, in writing, a person to be a survey authority. In making this decision, the Director of Biosecurity must be satisfied that the person has suitable qualifications to perform the functions of a survey authority. The authorisation is not a legislative instrument for the purposes of section 5(1) of the Legislative Instruments Act 2003. Although the survey authority can charge a fee under this division, it cannot amount to taxation. It is appropriate that the Director of Biosecurity can authorise a person to be survey authority due to the facilities, skills and technical expertise required to survey a vessel. An example of a survey authority may be a vessel classification society. Clause 290 Issue or endorsement etc of ballast water management certificate on behalf of the Commonwealth This clause sets out a regulation-making power to prescribe a scheme for the Director of Biosecurity or a survey authority to do on behalf of the Commonwealth, any of the following in relation to an Australian vessel: survey a vessel to determine whether a ballast water management certificate should be endorsed for the vessel issue, endorse or withdraw a ballast water management certificate for the vessel extend the period the ballast water management certificate is in force, and amend the expiry date on a ballast water management certificate. The regulations may also prescribe a scheme for the Director of Biosecurity or survey authority to do on, behalf of the Commonwealth, any of the following in relation to a foreign vessel on request by the vessel's Administration: survey a vessel to determine whether a ballast water management certificate should be endorsed for the vessel, and issue or endorse a ballast water management certificate for the vessel. For instance, a foreign vessel's Administration may make a request when the vessel is undergoing repairs in Australia. As discussed, under clause 289, it is appropriate that a survey authority is able to perform these tasks on behalf of the Commonwealth given the facilities, skills and technical expertise required. Decisions made by the Director of Biosecurity or a survey authority to refuse to issue, endorse or amend a ballast water management certificate or to refuse to extend the period during which such a certificate is in force or a decision to withdraw such a certificate for an Australian vessel are reviewable decisions under clause 610. Decisions made by the Director of Biosecurity or a survey authority to refuse to issue or endorse a ballast water management certificate for a foreign vessel are reviewable decisions under clause 610. 243

A ballast water management certificate issued or endorsed under this clause is not a legislative instrument for the purposes of section 5(1) of the Legislative Instruments Act 2003. Part 4--Ballast water records Division 1--Introduction Clause 291 Guide to this Part The guide provides a concise overview of the Part's objectives. Part 4 sets out how vessels are to keep records of their ballast water operations and that there are different record- keeping requirements for Australian and foreign vessels. This Part imposes strict liability offences, where the prosecution will have to prove only the conduct of the accused. It is acknowledged that the strict liability offences in this Part impose a penalty which departs from the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. It should be noted that the offence and level of penalty are consistent with offences in the Protection of the Sea (Prevention of Pollution from Ships) Act 1983. These provisions are a reflection of the Australian Government's international obligations to protect the marine environment through strict enforcement of a verifiable record-keeping scheme. The commission of an offence of this nature could result in a significant biosecurity risk leading to serious damage to plant and animal health, Australia's local industries, the economy and the environment. Because of these public safety and public interest reasons the sanction of criminal penalty is justified. For the strict liability offences, the prosecution will have to prove the conduct of the accused person in charge or operator of a vessel. The accused person will be able to rely on the defence in the Criminal Code (Part 9) of honest and reasonable mistake of fact. Division 2--Australian vessels Clause 292 Australian vessel must have ballast water record system This clause requires Australian vessels capable of carrying ballast water to have onboard a ballast water record system that complies with the requirements (if any) prescribed by the regulations. The clause notes that a ballast water system is a system for making and keeping records of details about the vessel's ballast water and ballast water operations (see clause 9 for definition of `ballast water record system'). This clause creates an offence of strict liability against the person in charge of an Australian vessel if the vessel does not have a compliant ballast water record system onboard. Contravention of this clause gives rise to a maximum penalty of 200 penalty units. Clause 293 Recording ballast water operations and disposal of sediment This clause provides the mandatory record-keeping requirements for an Australian vessel conducting ballast water operations or disposing of sediment. A record required to be kept by this clause must: be made using the vessel's ballast water record system 244

be made as soon as practicable after the operation is conducted or the sediment is disposed of, and comply with any requirements prescribed by the regulations. This clause creates an offence of strict liability against the person in charge of an Australian vessel if the clause requires a record to be made and it is not made in accordance with this clause. Contravention of this clause gives rise to a maximum penalty of 200 penalty units. This clause also provides that a person may commit a fault-based offence if they make a record using an Australian vessel's ballast water record system which is false or misleading record. Contravention of this clause gives rise to a maximum penalty of 200 penalty units. Clause 294 Records must be retained This clause requires that ballast water records must be retained for a total of five years-- including that the records must be retained onboard the vessel for two years after the record is made. After this two year period, records can be retained either onboard the vessel or in the control of the owner of the vessel. Additionally, in the circumstances where an Australian vessel (with no crew onboard) is being towed by another vessel, a record on the other vessel is taken to be onboard the Australian vessel. This clause creates an offence of strict liability against the owner of an Australian vessel if the clause requires a record to be retained and it is not retained in accordance with this clause. Contravention of this clause gives rise to a maximum penalty of 200 penalty units. The retention of ballast water records allows for the tracing of uptake and discharge of ballast water and assists in carrying out risk assessments on the vessel's ballast water. The clause provides an exception to contravention in circumstances where the record was lost or destroyed; and the loss or destruction was beyond the control of the present owner of the vessel or the person who was the owner of the vessel at that time. To rely on the exception, a person bears the evidential burden, which means that the defendant must adduce evidence which points the exception. It will then be incumbent on the prosecution to establish that the exception does not apply. There is justification for the shifting the evidential burden in this case as the defendant will have knowledge of whether the loss or destruction of the records was beyond his or her control. Clause 295 Appropriate ballast water records for Australian vessel This clause outlines the circumstances in which an Australian vessel has `appropriate ballast water records'. The clause defines `appropriate ballast water records' as records that: are made in accordance with clause 293that are sufficient to allow any biosecurity risks associated with the vessel's ballast water or sediment to be identified and assessed, and are not false or misleading. By having onboard appropriate ballast water records, an Australian vessel can use certain methods of ballast water management to deal with ballast water discharged in Australian seas under Division 3 of Part 2 of this Chapter. 245

Additionally, in the circumstances where an Australian vessel (with no crew onboard) is being towed by another vessel, a record on the other vessel is taken to be onboard the Australian vessel. Division 3--Foreign vessels Clause 296 Appropriate ballast water records for foreign vessel This clause outlines the circumstances in which a foreign vessel has `appropriate ballast water records'. The clause defines `appropriate ballast water records' as records that: are sufficient to allow any biosecurity risks associated with the vessel's ballast water or sediment to be identified and assessed meet the requirements (if any) that are prescribed by the regulations, and are not false or misleading. This clause provides a regulation-making power for any additional requirements for an appropriate ballast water record for foreign vessels. The jurisdiction of the Bill does not extend to foreign vessels outside Australian seas. However this requirement will apply to foreign vessels in Australian seas and will ensure that by having onboard appropriate ballast water records, the requirements of this Chapter will be met. Where a foreign vessel has appropriate ballast water records they can use certain methods of ballast water management to deal with ballast water discharged in Australian seas. This clause also outlines the process of record retention in circumstances where a foreign vessel is being towed by another vessel. A record that is on board the vessel being towed is taken to be on board the foreign vessel. Part 5--Offence of disposal of sediment Division 1--Introduction Clause 297 Guide to this Part This guide provides a concise overview of the Part's objectives. The Part creates an offence of disposing of sediment in Australian seas and the exceptions to the offence. Division 2--Offence of disposing of sediment Clause 298 Offence - disposing of sediment in Australian seas This clause imposes a fault-based offence for the person in charge or operator of a vessel to dispose of sediment from the vessel--other than at a sediment reception facility--in Australian seas. Contravention of this clause may result in a maximum penalty of 2000 penalty units. This clause also creates a strict liability offence where the person in charge or operator of the vessel does not dispose of sediment in the prescribed manner under this clause. The maximum penalty for the offence is 500 penalty units. A strict liability offence is appropriate in this context as there is public safety and public interest reasons in ensuring that this requirement is met as the commission of this offence could result in significant biosecurity risks, which may result in serious damage to plant and animal health, Australia's local 246

industries, the economy and the environment. For this clause, the prosecution will have to prove the conduct of the accused person in charge or operator of a vessel. However, the accused person will still be able to rely on the defence in the Criminal Code (Part 9) of honest and reasonable mistake of fact. This clause imposes a maximum penalty that departs from the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. The offences and level of penalties are consistent with the benchmarks under the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 which is similar to this clause. This ensures consistency with other legislation dealing with discharge of liquid substances from vessels under international maritime treaties. The primary reason for this departure is that the commission of this offence would result in significant biosecurity risks, which may result in serious damage to plant and animal health, Australia's local industries, the economy and the environment. Clause 299 Exception - safety, accidents and pollution This clause provides that it will not be an offence to dispose of sediment if the disposal has occurred for reason of ensuring the safety of the vessel in an emergency or saving life at sea. It will also not be an offence to dispose of sediment if the disposal has been accidental or as a result of damage to the vessel, or equipment on the vessel. To establish the exception, the person in charge, owner and the operator of the vessel must demonstrate that all reasonable precautions to prevent or minimise the discharge were taken and that the damage was not intentional or reckless. It will also not be an offence to dispose of sediment if the disposal of the sediment has occurred to avoid or minimise pollution from the vessel. An example of this would be vessel carrying oil or hazardous substances that were in danger of capsizing or breaking up due to extreme weather conditions. In this instance releasing sediment to enable the vessel to be stabilised or to reduce structural stresses on the vessel would be acceptable. To rely on the exception, a person bears the evidential burden, which means that the defendant must adduce evidence which points to the exception. It will then be incumbent on the prosecution to establish that these exceptions do not apply. There is justification in this case for shifting the evidential burden as the defendant will have knowledge of the circumstances in which the disposal occurred and whether it was for the reasons of safety, accident or avoidance of pollution. Part 6--Compliance and enforcement Division 1--Introduction Clause 300 Guide to this Part The guide provides a concise overview of the Part's objectives. The Director of Biosecurity and biosecurity officers are conferred three enforcement powers, to require the production of ballast water records; issue directions not to discharge ballast water; and issue directions on the movement of the vessel. 247

Division 2--Power to require owner of Australian vessel to provide ballast water records Clause 301 Power to require owner of Australian vessel to provide ballast water records This clause provides that a biosecurity officer may require the owner of an Australian vessel to provide a ballast water record that is required to be retained under clause 294. A biosecurity officer may make copies of, or take extracts from, a record and may remove the record for this purpose. A person who is required to produce a record under this clause must do so as soon as reasonably practicable. Australian vessels are subject to this power outside Australian seas. Contravention of this clause is a strict liability offence with a maximum penalty of 80 penalty units. Even though this clause imposes a higher maximum penalty for an offence of this nature that departs from the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, it is consistent with the penalty for a similar offence under section 27(2) of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983. The primary reason for this departure is that the commission of this offence could result in significant biosecurity risks which may result in serious damage to plant and animal health, Australia's local industries, the economy and the environment. For this offence, the prosecution will have to prove the conduct of the accused person in charge or operator of a vessel. The accused person will be able to rely on the defence in the Criminal Code (Part 9) of honest and reasonable mistake of fact. Division 3--Directions powers Clause 302 Directions not to discharge ballast water This clause provides that the Director of Biosecurity or a biosecurity officer may issue a direction to the person in charge of a vessel in Australian seas not to discharge ballast water. This power can be exercised if the Director of Biosecurity or a biosecurity officer is satisfied that a sample of the ballast water indicates an unacceptable level of biosecurity risk; or if the procedures required in the ballast water management plan have not been implemented by the person in charge of the vessel or crew. The conditions must be for the purposes of reducing the biosecurity risk associated with the vessel to an acceptable level. There is a corresponding power to revoke or vary the direction. The Director of Biosecurity or biosecurity officer may direct the person in charge of the vessel not to discharge ballast water until conditions specified in the direction are met. These conditions must be for the purposes of reducing the biosecurity risks associated with the vessel to an acceptable level. These conditions may include a carrying out a maintenance check on any ballast water treatment system to ensure that the system is working or requiring the person in charge of the vessel or crew demonstrate any ballast water procedures. This clause provides the circumstances in which the direction can be issued that the person in charge of the vessel must comply with the direction. A person who fails to comply with a direction given under this clause may commit an offence under clause 305. Clause 303 Directions about movement of vessel This clause provides that if the Director of Biosecurity has clear grounds for believing that an offence against this Chapter has been committed by an Australian vessel; or a foreign vessel 248

in, or proceeding to, a port in Australia then the Director can direct the person in charge of the vessel in certain ways. Directions can relate to: removing a vessel from a port as soon as practicable keeping the vessel out of a port taking the vessel to a repair yard or sediment reception facility as soon as practicable, and keeping the vessel in a specified location. The person in charge of the vessel must comply with the direction. A person who fails to comply with a direction given under this clause may commit an offence under clause 305. A direction issued under this clause is a reviewable decision under clause 610. Clause 304 Directions about movement of vessel - variation or revocation This clause permits the Director of Biosecurity to either vary or revoke a direction in relation to the movement of the vessel made under clause 303. A decision to vary is a reviewable decision under clause 610. The Director of Biosecurity may revoke or vary a direction to allow a vessel to leave Australian seas, or to continue on its journey. Securities can be used as a compliance tool to ensure that the vessel does not discharge ballast water which poses an unacceptable biosecurity risk. This clause permits the Biosecurity Director to require payment of a security by the person in charge of the vessel in certain circumstances. The criteria for the amount of security are also specified. A security may cover the cost of all penalties, and other costs and expenses that could be payable by the owner or person in charge of the vessel, in respect of each offence that was the basis of the direction given under clauses 302 or 303. Clause 305 Offence - contravening a direction This clause provides that a contravention of a direction from the Director of Biosecurity or a biosecurity officer under this Division is an offence. This offence is a strict liability offence, which means that the prosecution will have to prove only the conduct of the accused (that is that the person contravenes a direction). A maximum penalty of 2000 penalty units can be imposed. This clause imposes a higher maximum penalty that departs from the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. The level of penalty is consistent with the penalty imposed under section 27(5) of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 which is similar to this clause. The primary reason for this departure is that the commission of this offence would result in significant biosecurity risks, which may result in serious damage to plant and animal health, Australia's local industries, the economy and the environment. This clause outlines the exceptions available for the person in charge of a vessel for reasons of safety, or saving life at sea. This clause also outlines that an offence does not occur if the contravention was accidental and resulted from damage to the vessel or its equipment and all reasonable efforts were made to comply with the direction and that the damage was not intentional or reckless. 249

A person, who wishes to rely on these exceptions, bears the evidential burden which means that the defendant must adduce evidence which points to these exceptions. It is acknowledged that the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, indicates that shifting the evidential burden to a defendant should be kept to a minimum. There is justification in this case for shifting the evidential burden in this case as the defendant will have knowledge of the circumstances of the release of the ballast water from the vessel. Clause 306 Manner of giving directions etc This clause sets out that a direction or notice of revocation of a direction may be given or varied by any means of communication (including electronic means). If the direction is given, varied or revoked by a means other orally, the direction, variation or revocation must be provided the recipient in writing, setting out the effect of the direction, This clause outlines that a written direction is not a legislative instrument. Part 7--Miscellaneous Clause 307 Compensation for undue detention or delay of vessel This clause implements Article 12 of the Ballast Water Convention which requires reasonable compensation to be paid where a vessel is unduly detained or delayed (see clause 9 for definition of `unduly detained or delayed') as a result of an action undertaken by a biosecurity officer under Chapter 5. An undue delay or detention is any delay longer than necessary for the purposes of ensuring compliance with Chapter 5. The delay or detention of a vessel may cost the owner of the vessel a large amount of money for each day the vessel is not in service. This clause ensures that where a vessel is unduly detained or delayed, the owner of the vessel can seek compensation for any costs of the delay. For example, any costs associated with not meeting delivery deadlines. This clause also provides a dispute resolution mechanism in a relevant court if the owner of the vessel and the Commonwealth do not agree on the amount of compensation. The reference to a relevant court is a court that exercises federal jurisdiction including a state or territory Supreme Court. The purpose of this clause is to safeguard owners against financial loss if the vessel is detained longer than was required to ensure compliance or if there was no basis for the detention. 250

Chapter 6--Managing biosecurity risks: monitoring, control and response Part 1--Introduction Clause 308 Guide to this Part The guide outlines how the modifications apply in relation to this Chapter. This Part modifies the definition of biosecurity risk for this Chapter, sets out the main objects of this Chapter and provides that this Chapter does not apply in relation to certain goods and conveyances. Clause 309 Modified meaning of biosecurity risk This clause amends the definition of `biosecurity risk' for the purposes of this Chapter to include the concept of `emergence of a disease or pest'. The addition of `emerge' in the definition of biosecurity risk will expand the coverage of the powers available in this Chapter to cover emerging pests and diseases that are found or already established in some parts of Australia and spread to other parts of Australia, such as Hendra virus. It also includes a separate definition of biosecurity risk relating to invasive pests. The amended definition of biosecurity risk relating to `invasive pests' is consistent with the Convention for Biological Diversity (Biodiversity Convention). In particular the clause refers to the potential for invasive pests to cause harm to `ecosystems habitats or species'. This definition gives effect to Articles 7 and 8 of the Biodiversity Convention. This allows the Commonwealth's post-border powers to deal with a wider range of pests (see clauses 24 and 25). The wording of this amended definition has been agreed to by the Department of Foreign Affairs and Trade and the Attorney-General's Department's Office of International Law. Clause 310 Objects of this Chapter This clause provides a concise overview of the Chapter's objectives. The Chapter provides powers to assess, monitor and manage biosecurity risks posed by a disease or pest that may be present in or on goods and premises within Australian territory. The powers in this Chapter will not apply to all goods or conveyances in Australian territory (see clause 311). In addition, note 2 outlines that unless otherwise stated in the provision, a reference to premises also includes conveyances (see paragraph (a) of the definition of `premises' in clause 317). Clause 311 Application of this Chapter This clause limits the circumstances in which the powers in this Chapter can be used. This Chapter does not apply to goods and conveyances which are subject to biosecurity control or exposed goods in relation to which an exposed goods order is in force (see Division 9 of Part 1, Chapter 3). The biosecurity risks associated with these goods will be managed under the provisions in Chapter 3. The biosecurity risks associated with conveyances not covered by this Chapter will be managed under Chapter 4. This limitation reflects the additional powers available in Chapter 3 and Chapter 4 and the different sources of risk caused by goods that come into Australia from overseas. The powers in this Chapter may be used in relation to all other goods, conveyances and premises where a biosecurity officer suspects on reasonable grounds that a disease or pest may pose an unacceptable level of biosecurity risk. 251

Part 2--Assessment of level of biosecurity risk Division 1--Introduction Clause 312 Guide to this Part The guide provides a concise overview of the Part's objectives. The Part provides powers to assess the level of biosecurity risk posed by a disease or pest that may be in or on goods and premises in Australian territory. This Part also sets out the circumstances in which the powers may be exercised, the threshold test for exercising the powers and the purposes for which the powers can be exercised. In addition, it provides offences for contravening directions or requirements made in line with the biosecurity risk assessment powers. Division 2--Circumstances in which biosecurity risk assessment powers may be exercised Clause 313 Reasonable suspicion that disease or pest may pose unacceptable level of biosecurity risk This clause outlines the circumstances in which a biosecurity officer can use the powers within Division 3 of this Part to assess the level of biosecurity risk. Before a power can be exercised under Division 3 of this Part a biosecurity officer must suspect on reasonable grounds that a disease or pest is present in or on goods or premises and that the disease or pest may pose an unacceptable level of biosecurity risk. The threshold test for using the assessment powers in this Chapter is different from the tests in Chapter 3 and Chapter 4 where a biosecurity officer can assess a good or conveyance because it is subject to biosecurity control without having to form a suspicion about the risk associated with that particular good or conveyance. The higher threshold reflects that the powers in this Part are used to assess biosecurity risks associated with goods and premises within Australian territory, and has been set at a level that considers the impact of the powers on an individual, goods or premises. Additionally, the Division outlines the particular purposes for which these powers can be used, To: establish whether the disease or pest is present identify the disease or pest (if possible), and assess the level of biosecurity risk posed by the disease or pest. In exercising the powers set out in Division 3 of this Part, a biosecurity officer or a biosecurity enforcement officer may be assisted by other people, for example someone can assist by setting up monitoring equipment (see note 4). The application of clause 311 means that these assessment powers must not be exercised in relation to goods or conveyances that are subject to biosecurity control or goods in relation to which an exposed goods order is in force. In addition, the application of clause 311 means that powers in this division must be exercised in accordance with the principles. Clause 314 Exercise of biosecurity risk assessment powers in premises This clause outlines that a biosecurity officer or biosecurity enforcement officer may enter any premises in Australian territory for the purposes outlined in clause 313. These purposes 252

are to establish whether a disease or pest is present, to identify the disease or pest and to assess the level of biosecurity risk posed by the disease or pest. This clause ensures that a biosecurity officer or a biosecurity enforcement officer exercises powers consistent with the purposes provided for in clause 313. This clause provides that a biosecurity officer or a biosecurity enforcement officer will not be authorised to enter a premises unless the occupier of the premises has consented to the entry, or where the entry is made under a biosecurity risk assessment warrant (see Parts 2 and 3, Chapter 10). If the occupier of the premises has required that identification be shown, an officer cannot enter premises by consent unless the officer has shown their identity card. This is intended to assure an occupier of the identity of the officer. This clause notes that if the premises can only be accessed by entering other premises, the officer may require an adjacent premises warrant (see Division 3 of Part 4, Chapter 10). This type of warrant will allow an officer to enter premises to get to other premises where the officer needs to exercise biosecurity risk assessment powers. Division 3--Biosecurity risk assessment powers Clause 315 Application of this Division This clause provides that the biosecurity risk assessment powers set out in this Division may be exercised in relation to goods or premises for any of the purposes referred to in clause 313. The powers can be used to: establish whether a disease or pest is present identify the disease or pest (if possible), and assess the level of biosecurity risk posed by the disease or pest. Clause 316 Directions to secure goods or conveyance This clause provides a biosecurity officer with the power to secure goods or a conveyance. A biosecurity officer may direct the person in charge of goods or a conveyance to secure the goods or conveyance in accordance with the biosecurity officer's instructions. Securing the goods or conveyances will allow a biosecurity officer to exercise the other assessment powers in this Division, and ensures that any biosecurity risks associated with the goods or conveyance do not spread. This power cannot be exercised in relation to premises (other than a conveyance) such as a building, structure or piece of land. Entry and exit requirements for premises (other than a conveyance) can only be imposed when managing biosecurity risks--either through a biosecurity control order (see subclause 351(2)) or when a biosecurity response or activity zone has been determined (see subclauses 363(2) and 397). A person is liable to a civil penalty for contravention of a direction to secure the goods or conveyance. The maximum civil penalty for a contravention is 120 penalty units. Where a person is given a direction to secure the goods or conveyance in accordance with a biosecurity control order or a biosecurity response zone determination and the person contravenes that direction, he or she may commit an offence under clause 325. 253

Clause 317 Inspections and taking samples This clause provides a biosecurity officer with the power to inspect and take samples of goods and premises (including a conveyance). It allows a biosecurity officer to inspect goods or premises. The meaning of inspect is not defined in the legislation so has its ordinary English meaning. A biosecurity officer may inspect, search and physically examine the goods or premises. This clause allows a biosecurity officer to take samples of the goods or premises personally. Alternatively, the officer may direct a person in charge of the goods or premises to deliver samples of the goods or premises, or arrange for a person with appropriate qualifications or expertise to take samples of the goods or premises. For example, where a premises or goods are in a remote location, the biosecurity officer may arrange for a person to take samples and send them to be assessed. A person who contravenes a direction to provide a sample is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. Where a person in charge of goods or premises is given a direction to take a sample of a good or premises in accordance with a biosecurity control order or a biosecurity response zone determination and the person contravenes that direction, he or she may commit an offence under clause 325. Clause 318 Asking questions about goods or premises This clause provides biosecurity officers with the power to require a person to answer questions in relation to goods or premises (including conveyances). An officer can require a person to answer questions or provide information where a biosecurity officer suspects on reasonable grounds that a person has information in relation to the goods or premises. This power will be used to gather relevant information that will contribute to the effective assessment of the level of biosecurity risk. For example, a biosecurity officer may ask questions or seek information about the previous movements of goods or a conveyance in order to determine where the suspected pest or disease came from, or whether the disease or pest has spread to these locations. A person is liable to a civil penalty if the person contravenes the requirement to answer questions or provide information. The maximum civil penalty for a contravention is 120 penalty units. In addition, section 137.1 of the Criminal Code creates an offence for providing false or misleading information. Clause 318 is not subject to the privilege against self-incrimination. The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as it will allow biosecurity officers to determine whether a pest or disease is present at a location and put biosecurity measure in place in a timely manner. Given the potential seriousness of the biosecurity risk and the need for a timely response it is not preferable to wait for a warrant to be issued to obtain this information. For example, an outbreak of a disease such as foot and mouth has the potential to cause significant and long term damage to the reputation of Australian industries and the reputation of Australia overseas. This could also have adverse impacts on other industries and communities not affected by the initial outbreak. It may also result in increased costs associated with controlling pests and diseases. 254

The Bill provides individuals with a protection where any self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person (see clause 661). Where a person is required to answer questions or provide information in accordance with a biosecurity control order or a biosecurity response zone determination and the person contravenes that requirement, he or she may commit an offence under clause 326. Clause 319 Requiring documents in relation to goods or premises to be produced This clause provides biosecurity officers with the power to require a person to produce documents in relation to goods or premises (including conveyances). Where a biosecurity officer suspects on reasonable grounds that a person has custody or control of documents in relation to the goods or premises, the biosecurity officer may require that person to produce those documents. This power will be used to gather relevant information that will contribute to the effective assessment of the level of biosecurity risk, and gathering relevant documents relating to the goods or premises (such as previous import permits, or receipts providing proof of purchase). A person who contravenes the requirement to produce documents is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. Additionally, section 137.1 of the Criminal Code creates an offence for providing false or misleading information. Clause 319 is not subject to the privilege against self-incrimination. For the reasons previously discussed in clause 318, it will allow biosecurity officers to effectively assess risks by ensuring timely access to documents and information to ensure that appropriate measures are in place to manage the entry, emergence, establishment or spread of the disease or pest (see clause 661). Where a person is required to produce documents in accordance with a biosecurity control order or a biosecurity response zone determination and the person contravenes that requirement, he or she may commit an offence under clause 327. Clause 320 Directions relating to movement etc. of goods or a conveyance This clause provides biosecurity officers with the power to give directions to a person in charge of goods or a conveyance. A biosecurity officer will be able to give a direction to not move, deal with or interfere with the goods or a conveyance. This power will be used to ensure that any potential pests or diseases in or on the goods or conveyance are contained and not spread. In addition, the biosecurity officer may give a direction that the goods or conveyance be moved, as soon as practicable, to a place specified by a biosecurity officer, or any direction relating to the movement of the goods or conveyance. This will allow a biosecurity officer to direct that goods or a conveyance be moved to any area to lower the level of biosecurity risk (such as directing timber products to be moved away from forested areas). The biosecurity officer will also have the ability to cause goods or a conveyance to be moved. This means that the officer will be able to get another person to carry out the movement 255

direction. This power can be used where a person in charge contravenes a direction to move the good or conveyance. This clause does not apply to premises (other than a conveyance), such as a building or areas of land, as it is not possible for these premises to be moved to another location. A person is liable to a civil penalty if the person contravenes a direction to relating to the goods or conveyance. The maximum civil penalty for a contravention is 120 penalty units. Where a person in charge of goods or a conveyance is given a movement direction in relation to the goods or conveyance in accordance with a biosecurity control order or a biosecurity response zone determination and the person contravenes that direction, he or she may commit an offence under clause 325. Clause 321 Biosecurity officer may affix notice to goods or a conveyance Clause 322 Unauthorised persons must not move etc goods or conveyance in relation to which a direction has been given Clause 321 allows a biosecurity officer to affix a notice to, or as near as reasonably practicable to, goods or conveyances that are subject to a direction to be secured or a movement direction (see clauses 316 and paragraphs 320(1)(a) and (b)). Under clause 321 the notice is required to state that: a disease or pest may be present in or on the goods or conveyance the disease or pest may pose an unacceptable biosecurity risk the goods or conveyance have been secured or moved in accordance with this Chapter, and a person may be liable for a civil penalty or offence if that person does any of the conduct that is outlined under subclauses (3) and (4), clause 322 or clause 328. The notice is designed to inform people that a good or conveyance may pose a biosecurity risk and to provide a mechanism to communicate to people that the good or conveyance is subject to a direction to be secured, or subject to a movement direction. The notice also ensures that a person is aware of the potential penalties associated with contravention of this clause and related clauses. The clauses provide that a person is liable to a civil penalty if the person interferes with, removes or defaces the notice (clause 321), or moves, deals or interferes with goods or conveyances to which a notice is affixed (clause 322). The maximum civil penalty for a contravention is 120 penalty units. The person does not contravene this clause if the person is authorised under an approved arrangement, he or she has been given a direction by a biosecurity official or permission under clause 595 of the Act, or is authorised by an Australian law. To rely on these exceptions, the person bears the evidential burden, which means that the person must adduce evidence which points to the authorisation. It will then be up to the prosecution to establish that the exception does not apply. Where a notice has been affixed to, or as near as practicable to, goods or a conveyance in accordance with a biosecurity control order or a biosecurity response zone determination and the person moves or interferes with the good or conveyance, he or she may commit an offence under clause 328. 256

Clause 323 Operating electronic equipment This clause provides for biosecurity enforcement officers to operate electronic equipment on premises for a purpose for which the premises was entered, and use a disk, tape or other storage device that is on the premises and can be used with the equipment or is associated with it. If any relevant data is found on the electronic equipment, a biosecurity officer can exercise the powers outlined in subclause (4). `Relevant data' means information relevant to a purpose for which the premises were entered. The ability to access relevant data is required to assist with the management of biosecurity risk, as information relevant to the management of risk may be stored or accessed through electronic equipment. Additional powers of biosecurity enforcement officers are outlined in subclause (4), which allows biosecurity enforcement officers to: operate electronic equipment on the premises to put relevant data into documentary form and remove the documents from the premises, or operate electronic equipment on the premises to transfer the relevant data onto a disk, tape or other storage device (that is brought to the premises for the exercise of the power or is on the premises and the use of which for that purpose has been agreed in writing by the occupier of the premises) and remove the disk, tape or other storage device from the premises. Under subclause (4) a biosecurity enforcement officer may only operate electronic equipment as outlined above if the officer believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment. This ensures that officers take due care with equipment that is likely to be valuable to the occupier of the premises when obtaining the information required to effectively assess biosecurity risks. If a biosecurity enforcement officer causes damage to electronic equipment, clause 533 outlines the circumstances when the Commonwealth is liable to pay compensation. Clause 324 Expert assistance to operate electronic equipment This clause allows a biosecurity enforcement officer to exercise certain powers if the officer enters premises under a relevant warrant (that is, a biosecurity risk assessment, biosecurity control order or biosecurity response zone warrant) and that warrant authorises the officer to exercise these powers. A biosecurity enforcement officer may secure electronic equipment on premises if the officer suspects on reasonable grounds that: there is relevant data on the premises the relevant data may be accessible by operating the equipment expert assistance is required to operate the equipment, and the relevant data may be destroyed, altered or otherwise interfered with if action to secure the equipment is not taken. The equipment may be secured by locking it up, placing a guard or any other means. This allows a biosecurity enforcement officer to secure equipment that may have relevant information on it but requires a person with a higher level of expertise than the officer to access it. The 24 hour period gives the biosecurity enforcement officer time to locate an expert and for that expert to access the information. 257

The biosecurity enforcement officer must give notice to the occupier of the premises, or another person who apparently represents the occupier, of the intention to secure the equipment and the fact that it may be secured for up to 24 hours. This ensures that the occupier of the premises is informed about what actions are being taken with regard to their property and for how long. The equipment may then be secured for up to 24 hours, or until it has been operated by an expert, whichever occurs earlier. This ensures that the equipment is only secured, and the occupier inconvenienced, for as long as is necessary to obtain the relevant information. The biosecurity enforcement officer may apply to an issuing officer for an extension of the 24 hour period if the officer believes on reasonable grounds that the equipment needs to be secured for longer than 24 hours. Before making an application for an extension, the biosecurity enforcement officer must give notice to the occupier of the premises, or another person who apparently represents the occupier, of the officer's intention to apply for an extension. The occupier or other person is entitled to be heard in relation to that application. The 24 hour period may be extended more than once. An extension to the 24 hour period is intended to give the biosecurity enforcement officer more time to locate an expert and for that expert to access the information if it is required. Allowing the occupier a chance to be heard in relation to an application ensures procedural fairness by allowing the occupier to provide information that might be relevant to the issuing officer's final decision. Division 4--Offences Clause 325 Contravention of direction Clause 326 Contravention of requirement to answer questions etc. Clause 327 Contravention of requirement to produce documents Clause 328 Unauthorised person must not move etc. goods or conveyance to which notice has been affixed This Division creates offences for contravening a direction or requirement under this Part. These clauses modify the civil penalty provisions within Division 3 of this Part to create fault based offences in certain circumstances (see subclauses 316(2), 317(4), 318(2), 319(3), 320(2) and 322(1) for civil penalties). These offences only apply in relation to contraventions relating to powers that are exercised in accordance with a biosecurity control order or a biosecurity response zone determination. For example, it will be an offence to contravene a direction to secure a good where that direction was given in relation to a biosecurity response zone. This distinction reflects the greater potential consequences for not complying with a requirement or direction when a biosecurity officer is using their powers to manage biosecurity risk rather than using their powers to assess whether there is a risk to manage. A person commits an offence if the person contravenes one of these clauses. The maximum penalty for contravention of these clauses is five years imprisonment, or a fine of 300 penalty units, or both. Subclause 94(1) does not apply if the person is authorised to engage in the conduct under this Act or under another Australian law. To rely on this exception, a person bears the evidential burden, which means that the person must adduce evidence which points 258

to the authorisation. It will then be up to the prosecution to establish that this exception does not apply. Part 3--Biosecurity measures to manage unacceptable level of biosecurity risk Division 1--Introduction Clause 329 Guide to this Part This guide provides an overview of the Part's objectives. This Part provides a list of powers, including biosecurity measures, which may be used for the purpose of managing biosecurity risks posed by a disease or pest. These powers include the ability to impose entry or exit requirements in relation to premises, to direct treatment and destruction of goods and premises, and powers provided for in the regulations. These powers can only be exercised if the power is specified in a biosecurity control order that relates to the goods or premises or the power is specified in a biosecurity response zone determination that relates to goods or premises within a biosecurity response zone. Additionally, the Part sets out offences and civil penalty provisions that apply for contraventions of the clauses in this Part. Division 2--Powers that may be exercised: general Subdivision A--Circumstances in which powers may be exercised Clause 330 Circumstances in which powers set out in this division may be exercised This clause outlines that powers can be exercised in relation to goods and premises under a biosecurity control order, or goods and premises within a biosecurity response zone. In order to exercise these powers, the powers must be listed in the biosecurity control order (see clause 351) or in the biosecurity response zone determination (see clause 363). A power from this Division that is listed in a biosecurity control order or a biosecurity response zone determination must be exercised for the purpose of managing the biosecurity risks posed by a disease or pest to which the order or zone determination relates. The application of clause 31 means that the powers in this Division must be exercised in accordance with the principles set out in that clause. Subclause (2) notes that this clause has effect subject to subclause 397(2) which allows the powers set out in clauses 331 and 332 relating to entry and exit requirements to be exercised in a biosecurity activity zone. Subdivision B--Powers relating to entry to and exit from premises Clause 331 Entry and exit etc. requirements--persons This clause outlines the powers that a biosecurity officer may exercise in relation to premises (including conveyances). This clause provides that a biosecurity officer may, by notice in writing, impose requirements, in relation to the premises requiring that: people enter or leave the premises at specific places specified classes of persons not enter the premises people entering or in the premises wear specified clothing or equipment, or 259

people not interfere with the premises. If there is a requirement imposed that people wear specified clothing or equipment, the notice must also specify the circumstances and the timing or period the person is required to wear the clothing or equipment. The notice must also provide instructions for wearing the clothing or equipment where relevant. Any clothing and equipment which is required to be worn must be designed to prevent a disease or pest from emerging, establishing itself or spreading in the premises (for example, disposable covers to place over a person's shoes). This power will be used to manage the risks associated with people spreading a pest or disease from premises. The clause imposes a limitation on the exercise of this power. Except as permitted by this clause, a notice cannot require an individual to be subject to a measure of a kind that is set out in Subdivision B of Division 3 of Part 3, Chapter 2. These measures can only be included in a human biosecurity control order. These limitations ensure that the processes and safeguards in relation to requiring biosecurity measures under Chapter 2 remain in place. Biosecurity officers will be able to require decontamination under Subdivision B of Division 2 of Part 4 of Chapter 12. A notice under this clause must be affixed at each entry and exit point of the premises, and is not a legislative instrument. A person may commit an offence or be liable to a civil penalty for contravention of a requirement under this clause (see clause 347). Clause 332 Entry and exit etc. Requirements--goods and conveyances This clause outlines the powers that a biosecurity officer may exercise in relation to premises (including conveyances). This clause provides that a biosecurity officer may, by notice in writing, impose requirements that, in relation to the premises: a person brings goods on to the premises at specified places specified classes of goods not be brought on to the premises conveyances entering or leaving the premises do so at specified places, or specified classes of conveyances are not to enter the premises. Similar to clause 331, this power will be used to manage the risks associated with people spreading a pest or disease from premises. A notice under this clause must be affixed at each entry and exit point of the premises, and is not a legislative instrument. A person may commit an offence or be liable to a civil penalty for contravention of a requirement under this clause (see clause 347). Subdivision C--Powers relating to treatment of goods, conveyances or premises Clause 333 Treatment of goods This clause provides biosecurity officers with the power to require goods to be treated in a specified manner. If the goods are high-value goodsthat is the value of the goods is greater than the amount prescribed in the regulationthe goods must not be treated in a way that the biosecurity officer suspects may damage the goods without the written approval of the Director of Biosecurity. This extra step reflects the impact that ordering such a treatment might have on the owner of the goods and the potential loss of value caused by the treatment. 260

Regardless of the value of the goods, if the treatment might damage the goods, a person in charge must be asked to agree to the treatment (see clause 334). This power ensures that biosecurity officers can order necessary treatments for goods to manage biosecurity risks and reduce those risks to an acceptable level. For example, a biosecurity officer may require goods with an ant infestation to be fumigated. Clause 334 Treatment that may damage goods This clause outlines the notification requirements where treatment may damage goods. Where a biosecurity officer suspects, on reasonable grounds, that a treatment specified under clause 333 may damage goods, the officer must provide a notice in writing to a person in charge of the goods informing them of the likelihood of damage. The notice will also request that the person agree to the treatment of the goods. A biosecurity officer will be able to carry out the specified treatment without having to meet the notification requirements if: the officer suspects, on reasonable grounds, that a disease or pest that may be present in or on the goods which may pose an high level of biosecurity risk, and the officer is satisfied that the goods must be treated as soon as practicable to reduce the biosecurity risks to an acceptable level. This recognises that in certain circumstances, the delay caused by following the notification process outlined in this clause would mean that pests or diseases that potentially pose a high biosecurity risk have the opportunity to emerge, establish or spread in Australian territory. If a notice is given requesting agreement to treatment, and a person in charge does not agree to the treatment or does not respond to the notice within 30 days, a biosecurity officer may request that the person arrange for the goods to be dealt with, or destroyed, in a manner and within the period specified in the request. This period allows adequate time for the person in charge to decide how to deal with the notice and any subsequent request. If the goods are not dealt with, or destroyed, in a manner and within the period specified in the request then a biosecurity officer may take possession of the goods and cause them to be destroyed or otherwise disposed of. These notification processes give a person in charge of goods a reasonable opportunity to address the biosecurity risks associated with the goods, with appropriate consequences if the biosecurity risks have not be managed. The clause excludes a biosecurity industry participant from the definition of `person in charge' of goods, if the biosecurity industry participant is in possession or control of goods only because of a direction given to the participant by a biosecurity officer. This reflects that it would not be appropriate for the biosecurity industry participant to agree to treatment that may damage goods where they do not have a relationship to the owner of the goods and the goods are only in their possession because of the actions of the biosecurity officer. Clause 335 Treatment of conveyance This clause provides biosecurity officers with the power to require conveyances to be treated in a specified manner. 261

If the conveyance is a high-value conveyancethat is the value of the conveyance is greater than the amount prescribed in the regulationthe conveyance must not be treated in a way that the biosecurity officer suspects may damage the conveyance without the written approval of the Director of Biosecurity. This extra step reflects the impact that ordering such a treatment might have on the owner of the conveyance and the potential loss of value caused by the treatment. Regardless of the value of the conveyance, if the treatment might damage the conveyance, a person in charge or operator of the conveyance must be asked to agree to the treatment (see clause 336). Clause 336 Treatment that may damage conveyance This clause outlines the notification requirements where treatment may damage a conveyance. Where a biosecurity officer suspects, on reasonable grounds, that a treatment specified under clause 335 may damage a conveyance, the officer must provide a notice in writing to a person in charge or the operator of the conveyance informing them of the likelihood of damage. The notice will also request that the person agree to the treatment of the conveyance. A biosecurity officer will be able to carry out the specified treatment without having to meet the notification requirements if: the officer suspects, on reasonable grounds, that a disease or pest that may be present in or on the conveyance which may pose an high level of biosecurity risk, and the officer is satisfied that the conveyance must be treated as soon as practicable to reduce the biosecurity risk to an acceptable level. This recognises that in certain circumstances, the delay caused by following the notification process outlined in this clause would mean that pests or diseases that potentially pose a high biosecurity risk have the opportunity to emerge, establish or spread in Australian territory. If a notice is given requesting agreement to treatment, and a person in charge or operator of a conveyance does not agree to the treatment or does not respond to the notice within 30 days, a biosecurity officer may request that the person in charge or operator arrange for the conveyance to be dealt with, or destroyed, in a manner and within the period specified in the request. This period allows adequate time for the person in charge or operator to decide how to deal with the notice and any subsequent request. If the conveyance is not dealt with, or destroyed, in a manner and within the period specified in the request then a biosecurity enforcement officer may take possession of the conveyance. Once a biosecurity enforcement officer is in possession of the conveyance, a biosecurity officer may cause the conveyance to be disposed of or--with the written approval of the Director of Biosecurity--destroyed. However, a biosecurity enforcement office must not take possession of a conveyance unless the owner of the conveyances has consented in writing, or it is authorised by a conveyance possession warrant (for issue of these warrants see Parts 2 and 3 of Chapter 10). These notification processes give a person in charge or operator of a conveyance a reasonable opportunity to address the biosecurity risks associated with the conveyance, with appropriate consequences if the biosecurity risks have not be managed. 262

If the conveyance is to be destroyed under this clause, a biosecurity officer may cause any goods on board the conveyance to be removed before the conveyance is destroyed. This power may be used in circumstances where the risk posed by the conveyance is not transferred to the goods, and also recognises that the goods may be owned by someone different to the conveyance. Clause 337 Treatment of premises (other than a conveyance) This clause provides biosecurity officers with the power to require premises (other than conveyances) to be treated in a specified manner. This clause applies in relation to premises that are a structure or building or part of a structure or building. Conveyances are treated under clause 335. Premises must not be treated in a way that the biosecurity officer suspects may damage the premises without the written approval of the Director of Biosecurity. This extra step reflects the impact ordering such a treatment might have on the owner of the premises and the potential loss of value caused by the treatment. If the treatment might damage the premises, the owner must be asked to agree to the treatment (see clause 338). Clause 338 Treatment that may damage premises (other than a conveyance) This clause outlines the notification requirements where treatment may damage premises. This clause outlines the requirements for notifying the owner of premises where a biosecurity officer suspects on reasonable grounds that the treatment required under clause 337 is likely to damage the premises. This clause provides that the officer must provide a notice in writing to the owner of the premises informing them of the likelihood of damage. If a biosecurity officer cannot, despite making reasonable efforts, locate the owner of the premises and the owner of the premises is not the occupier of the premises then the officer must give the notice to the occupier. This notice must request the occupier to agree to the treatment of the premises. A biosecurity officer will be able to carry out the specified treatment without having to meet the notification requirements if: the officer suspects, on reasonable grounds, that a disease or pest may be present in or on premises which may pose an high level of biosecurity risk, and the officer is satisfied that the premises must be treated as soon as practicable to reduce the biosecurity risks to an acceptable level. This recognises that in certain circumstances, the delay caused by following the notification process outlined in this clause would mean that pests or diseases that potentially pose a high biosecurity risk have the opportunity to emerge, establish or spread in Australian territory. If the biosecurity officer cannot, despite making reasonable efforts, locate the owner or occupier of the premises or the treatment must be carried out as soon as practicable due to an unacceptable level of biosecurity risk, the biosecurity officer must affix a notice to, or as near as reasonably practicable to, the premises. The notice affixed to premises must state that: a pest or disease may be present in or on the premises that the disease or pest may pose an unacceptable level of biosecurity risk 263

the premises is required to be treated in a specified manner for the purpose of managing the biosecurity risk, and the treatment is likely to damage the premises. This process ensures that there is appropriate notification, even if the owner or occupier cannot be located. These notification processes give an owner or occupier of the premises a reasonable opportunity to address the biosecurity risks associated with the premises, with appropriate consequences if the biosecurity risks have not be managed. Clause 339 Dealing with premises (other than a conveyance) if owner does not agree to treatment etc. This clause provides options to a biosecurity officer in a situation where the owner of the premises does not consent to treatment requested in a notice issued under clause 338. If a notice is given requesting agreement to treatment, and the owner does not agree to the treatment or does not respond to the notice within 30 days, a biosecurity officer may request that the owner arrange for the premises to be dealt with, or destroyed, in a manner and within the period specified in the request. This period allows adequate time for the owner to decide how to deal with the notice and any subsequent request. A request to arrange for premises to be destroyed may only relate to premises that are a structure or building or part of a building or structure. If the premises is not dealt with, or destroyed, in a manner and within the period specified in the request then a biosecurity enforcement officer may take possession of the premises. Where notice has been affixed to, or as near as practicable to, the premises in accordance with subclause 338(6) (if the owner or occupier cannot be located), a biosecurity enforcement officer may--at any time after the end of 30 days after the notice is affixed--take possession of the premises. Once a biosecurity enforcement officer is in possession of the premises, a biosecurity officer may cause the premises to be treated or--with the written approval of the Director of Biosecurity--destroyed. However, a biosecurity enforcement officer must not take possession of premises unless the owner of the premises has consented in writing or the taking of possession is authorised by a premises possession warrant (see Parts 2 and 3, Chapter 10). This extra step is required in the case of premises because of the monetary value of premises, and the potential loss of value caused by the treatment. Ensuring that this process is completed with consent, or through a warrant process, provides further protection for the people affected by this decision. This clause further provides that if there are goods in or on premises that are going to be destroyed, the biosecurity officer may cause these goods to be removed first. This power may be used in circumstances where the risk that is posed by the premises is not transferred to the goods, and also recognises that the goods may be owned by someone different to the premises. 264

These notification processes give an owner reasonable opportunity to address the biosecurity risks associated with the premises, with appropriate consequences if the biosecurity risks have not been managed. Subdivision D--Powers relating to destruction of goods, conveyances and other premises Clause 340 Destruction of goods This clause provides biosecurity officers with the power to require--subject to the notification requirements and review period--that goods be destroyed, where the biosecurity officer suspects on reasonable grounds that the goods cannot be effectively treated. If the goods are high-value goodsthat is the value of the goods is greater than the amount prescribed in the regulationthe goods must not be destroyed without written approval of the Director of Biosecurity. The decision to give approval for high-value goods to be destroyed is a reviewable decision under clause 610. Before causing high-value goods to be destroyed, a biosecurity officer must give a notice to the owner of the goods stating that the goods are to be destroyed and the reasons for destruction. However high-value goods may be destroyed without this notice being given to the owner if a biosecurity officer has: not been able, despite making reasonable efforts, to locate the owner of the goods, and has certified in writing to that effect. If a biosecurity officer cannot--despite making reasonable efforts--locate the owner of the goods, the goods may be forfeited to the Commonwealth (see clause 654). Unless the biosecurity officer has not been able to locate the owner, high-value goods must not be destroyed until after any review or related proceedings (including any appeal) have been finalised. This reflects the monetary value of high-value goods, and that their destruction may cause monetary loss to the owner (see clause 343). In addition, the owner of the destroyed goods may be entitled to compensation (see clauses 659 and 660). Clause 341 Destruction of conveyance This clause provides biosecurity officers with the power to require--subject to the notification requirements and review period--that a conveyance be destroyed, where the biosecurity officer suspects on reasonable grounds that the conveyance cannot be effectively treated. The conveyance cannot be destroyed without the written approval of the Director of Biosecurity. The decision to give approval for the conveyance to be destroyed is a reviewable decision under clause 610. Before causing the conveyance to be destroyed, a biosecurity officer must give a notice to the owner or operator of the conveyance stating that the conveyance is to be destroyed, the reasons for destruction and requesting the owner of the operator of the conveyance arrange for the conveyance to be destroyed. However, the conveyance may be destroyed without this notice being given to the owner or operator if a biosecurity officer has: 265

not been able, despite making reasonable efforts, to locate the owner or operator of the conveyance, and has certified in writing to that effect. If a biosecurity officer cannot--despite making reasonable efforts--to locate the owner or operator of the conveyance, the conveyance may be forfeited to the Commonwealth (see clause 656). Unless the biosecurity officer has not been able to locate the owner or operator of the conveyance, the conveyance must not be destroyed until after any review or related proceedings (including any appeal) have been finalised (see clause 343). This reflects the monetary value of the conveyance and that its destruction may cause monetary loss to the owner. In addition, the owner of the destroyed conveyance may be entitled to compensation (see clauses 659 and 660). If a notice has been given to owner or operator of the conveyance and the conveyances has not been destroyed in the specified manner or the owner or operator cannot be located a biosecurity enforcement officer may take possession of the conveyance and with the written approval of the Director of Biosecurity--cause it to be destroyed. A biosecurity enforcement officer will only be able to take possession of a conveyances--to destroy the conveyance--with the consent of the owner or operator of the conveyance or under a conveyance possession warrant (see Parts 2 and 3 of Chapter 10). This requirement does not apply in relation to a conveyance which has been forfeited to the Commonwealth. Ensuring that this process is completed with consent or oversighted through a warrant process provides further protection for the people affected by this decision. Before the conveyance is destroyed, a biosecurity officer may cause any goods on board the conveyance to be removed. This power may be used in circumstances where the risk posed by the conveyance is not transferred to the goods; also recognising that the goods may be owned by someone different to the conveyance. Clause 342 Destruction of premises This clause applies to structures, buildings or a part of a structure or building. It does not apply to a place that is not enclosed or built on or a place situated underground or under water. This recognises that those `premises' that are excluded cannot be destroyed. This clause provides biosecurity officers with the power to require--subject to the notification requirements and review period--that a premises be destroyed, where the biosecurity officer suspects on reasonable grounds that the premises cannot be effectively treated. The premises cannot be destroyed without the written approval of the Director of Biosecurity. The decision give approval for the premises to be destroyed is a reviewable decision under clause 610. Before causing the premises to be destroyed, a biosecurity officer must give a notice to the owner of the premises stating that premises are to be destroyed and the reasons for destruction. 266

However, the premises may be destroyed without this notice being given to the owner or operator if a biosecurity officer has: not been able, despite making reasonable efforts, to locate the owner of the premises, and has certified in writing to that effect. Unless the biosecurity officer has not been able to locate the owner the premises, the premises must not be destroyed until after any review or related proceedings (including any appeal) have been finalised (see clause 343). This reflects the monetary value of the premises and that its destruction may cause monetary loss to the owner. In addition, the owner of the destroyed premises may be entitled to compensation (see clauses 659 and 660). A biosecurity enforcement officer will only be able to take possession of premises--to destroy the premises--with the consent of the owner of the premises or under a premises possession warrant (see Parts 2 and 3 of Chapter 10). Before premises are destroyed, a biosecurity officer may cause any goods in or on the premises to be removed. This power may be used in circumstances where the risk posed by the premises is not transferred to the goods; also recognising that the goods may be owned by someone different to the premises. Clause 343 High-value goods, conveyances, or premises must not be destroyed during review period This clause applies if a biosecurity office has given a notice in relation to high-value goods, a conveyance or other premises in accordance with subclauses 340(3), 341(5) or 342(4). These notices are notices to the owner (or operator in the case of conveyances), notifying them of destruction. This clause provides that a biosecurity must not cause the destruction of high-value goods, conveyances or premises until the end of the period which an application may be made for review and if an application is made--after the review or any related proceeding has been finally determined. This includes applications for both merits and judicial review. A biosecurity officer will be able cause the destruction of the high-value goods, conveyance or premises without having to wait for the review period to end, if the biosecurity officer is satisfied that: a disease or pest that may be present in or on the goods, conveyance or premises poses a high level of biosecurity risk, and the biosecurity risk cannot be managed for long enough to allow a review of the destruction of the goods, conveyance or premises, and any related proceedings. If the goods, conveyance or premises have been destroyed because the biosecurity risks cannot be managed for the duration of any review or appeal, no application for review can be made and any review or related proceedings is taken to be discontinued. Once the goods or premises have been destroyed, there is no value in continuing such proceedings as the destruction has taken place and the decision cannot be changed. 267

Division 3--Powers provided by regulations Clause 344 Regulations may provide for other biosecurity measures This clause outlines that the regulations may provide that a biosecurity officer may require a specified kind of biosecurity measure (a prescribed biosecurity measure) in relation to goods or premises. In this clause, premises includes a conveyance. These measures cannot apply to certain goods or conveyances as outlined in clause 311. Subclause (2) limits the biosecurity measures that can be prescribed in the regulations. This subclause precludes the listing of any of the following types of biosecurity measures: those measures that may be included in a human biosecurity control order (Division 3 of Part 3, Chapter 2) those measures that are named as biosecurity risk assessment powers (Division 3 of Part 2, Chapter 6) those measures that provide powers to require measures to be taken (Division 2 of Part 3, Chapter 6) of this Part, and those measures relating to decontamination (Division 2 of Part 4, Chapter 12). This ensures that the regulations do not contain biosecurity measures already available in the legislation. It also ensures that any notification or processes in place already in the legislation are not circumvented (for example certain timeframes for notification or requirements to affix notices). This clause also allows for other matters relating to a prescribed biosecurity measure to be set out in the regulations. This can includes matters such as notification requirements and limitations on measures during review periods. An example of an additional biosecurity measure that may be prescribed in the regulation is the power to impose movement restrictions in relation to animals during an outbreak (for example, equine influenza). This may mean that no animals are able to move within a biosecurity response zone while the zone determination is in place (see Part 5 of this Chapter for biosecurity response zones). These powers can only be exercised in relation to goods or premises if the power is specified in a biosecurity control order that relates to the goods or premises or the power is specified in a biosecurity response zone determination that relates to goods or premises within a biosecurity response zone. Division 4--Other powers Clause 345 Powers of a biosecurity officer if biosecurity measures are required This clause provides that a biosecurity officer can direct a person, or arrange for a person, to carry out the biosecurity measures required under Subdivision C (treatment powers) or Subdivision D (destruction powers) of Division 2 of this Part, or under a regulation made for the purposes of clause 344. The biosecurity officer can also carry out the biosecurity measure themselves. 268

A biosecurity officer may: in relation to goods--direct a person in charge of the goods to carry out biosecurity measures in relation to conveyances--direct the person in charge or operator of the conveyance to carry out biosecurity measures, and in relation to premises--direct the owner of the premises to carry out biosecurity measures. Where the biosecurity officer givers a direction to a person to carry out a biosecurity measure, or arranges for someone to carry out the biosecurity measure, the biosecurity officer may supervise the taking of the biosecurity measure. This ensures that the biosecurity measures are carried out properly, and where they have not been carried out in accordance with the directions, the biosecurity officer can take action to manage the biosecurity risks. A person who is given a direction to carry out biosecurity measures, and contravenes that direction, may be liable to a civil penalty and may commit an offence (see clause 348). Clause 346 Biosecurity officer may affix notice to goods or premises Clause 346 allows a biosecurity officer to affix a notice to goods or premises (including a conveyance) when biosecurity measures to manage unacceptable levels of biosecurity risk (Division 2 of Part 3) or a regulation made for the purposes of clause 344 have been required. The notice affixed to goods or premises must state that: a pest or disease may be present in or on the goods or premises that the disease or pest may pose an unacceptable level of biosecurity risk that biosecurity measures have been required to manage biosecurity risks associated with the goods or premises, and that a person may be liable for a civil penalty or offence if the move or interfere with the goods or premises to which the notice relates under this clause or clause 349. This ensures that there is appropriate notification, even if the person in charge, owner or occupier cannot be located. If it is not possible to affix the notice to the goods or premises, the person exercising the power may affix the notice as near as reasonably practicable. The notice is designed to inform people that a good or premises may pose a biosecurity risk and to provide a mechanism to communicate to people that the good or premise has had biosecurity measures required. The notice also ensures that a person is aware of the potential penalties associated with contravention of this and related clauses. If a person interferes with, removes or defaces the notice he or she is liable for a civil penalty (unless the person is authorised to do so under an approved arrangement or, or he or she has been given a direction by a biosecurity official or permission under clause 595 of the Act). The maximum civil penalty for a contravention is 120 penalty units. It will be an exception to be authorised by an Australian law to interfere with, remove or deface a notice. To rely on this exception, a person bears the evidential burden, which means that the defendant must adduce evidence which points to the authorisation. It will then be incumbent on the prosecution to establish that this exception does not apply. 269

Division 5--Offences and civil penalty provisions This Division creates a number of criminal penalties. While the criminal penalties available are higher than the maximum penalties stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, the penalties are intended to reflect the severity of the potential consequences of the commission of the offence. If the provisions are not complied with, significant biosecurity risks may be realised. This may result in serious damage to plant and animal health, Australia's local industries, the economy and the environment. A court would be able to consider the significance of the offence and the intent of the person and determine whether a lesser penalty than the maximum should be applied. Clause 347 Contravention of requirement relating to entering or leaving etc. premises This clause creates an offence for contravening an entry or exit requirement issued under clause 331 or 332. A contravention of these clauses will give rise to a maximum penalty of five years imprisonment, or a fine of 300 penalty units, or both, if the elements of a fault- based offence are established. A contravention may also give rise to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. The penalty levels in this provision reflect the severity of the potential consequences if requirements for entry or exit are not complied with while biosecurity officers are managing biosecurity risks. For example, if a person allows goods to exit premises in contravention of a requirement, those goods may spread biosecurity risk to more locations. This may result in serious damage to plant and animal health, Australia's local industries, the economy and the environment. Clause 348 Person must comply with direction This clause creates an offence for contravening a direction given under clause 345. A contravention of this clause will give rise to a maximum penalty of five years imprisonment, or a fine of 300 penalty units, or both, if the elements of a fault-based offence are established. A contravention may also give rise to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. The penalty levels in this provision reflect the severity of the potential consequences if directions are not complied with while biosecurity officers are managing biosecurity risks. For example, if a person is directed to treat a good in a particular way and that person does not, the risk that was being managed has the potential to spread elsewhere. This may result in serious damage to plant and animal health, Australia's local industries, the economy and the environment. Clause 349 Unauthorised persons must not move etc. goods or conveyance to which notice has been affixed Where a notice has been affixed to goods or a conveyance under subclause 346(1) a person will contravene this section if the person moves, deals with or interferes with goods or a conveyance. This will be a contravention unless the person is authorised to do so under an approved arrangement or, or he or she has been given a direction by a biosecurity official or permission under clause 595 of the Act. It will be an exception to be authorised by an Australian law to move, deal or interfere with goods or conveyances to which a notice is affixed. To rely on this exception, a person bears 270

the evidential burden, which means that the defendant must adduce evidence which points to the authorisation. It will then be incumbent on the prosecution to establish that this exception does not apply. Contravening this clause may mean that a person commits an offence which may give rise to a maximum penalty of five years imprisonment, or a fine of 300 penalty units, or both, if the elements of a fault-based offence are established. This person may also be liable to a civil. The maximum civil penalty for a contravention is 120 penalty units. These powers are required to ensure biosecurity officer can carry out his or her functions, by affixing notices to goods or conveyances restricting their movement so that assessment and biosecurity activities can be conducted to establish the level of biosecurity risk posed and manage any identified biosecurity risks to reduce the threat or harm. Part 4--Biosecurity control orders Division 1--Introduction Clause 350 Guide to this Part The Guide provides a concise overview of the Part's objectives. Where a biosecurity officer suspects on reasonable grounds that a pest or disease poses an unacceptable level of biosecurity risk, the Director of Biosecurity will have the ability to make a biosecurity control order to manage the risks. The biosecurity control order will specify the particular biosecurity measures or powers that a biosecurity officer can use to manage the identified risk (see Part 3 of this Chapter). In making a biosecurity control order, the Director of Biosecurity will have the flexibility to select the most appropriate powers to manage the specific risk. This means that the response can be tailored to the specific disease or pest. Division 2--Making, varying and revoking biosecurity control orders Clause 351 The Director of Biosecurity may make biosecurity control order to manage an unacceptable level of biosecurity risk This clause provides the Director of Biosecurity with the power to make a biosecurity control order in relation to goods or premises (including conveyances). This order can be made when a biosecurity officer suspects on reasonable grounds that a disease or pest may be present in goods or premises and that the disease or pest poses an unacceptable level of biosecurity risk. The ability to make a biosecurity control order is given to the Director of Biosecurity rather than a biosecurity officer to ensure that there is appropriate oversight of the exercise of powers under an order. The Director of Biosecurity can only make the biosecurity control order if satisfied that biosecurity measures need to be taken in relation to the goods or premises for the purposes of managing the biosecurity risks posed by the disease or pest. This threshold requirement means that an order can only be made and powers exercised in relation to the disease or pest where the Director is satisfied that this will contribute to the management of the biosecurity risk. 271

A biosecurity control order can relate to more than one disease or pest if the above tests are satisfied in relation to those diseases or pests. The application of clause 311 means that powers in a biosecurity control order must not be used in relation to goods or conveyances that are subject to biosecurity control or exposed goods in relation to which an exposed goods order is in force. A biosecurity control order may be varied under clause 356 to add or remove additional powers, or may be revoked under clause 357 where the pest or disease no longer poses an unacceptable level of biosecurity risk. To limit the circumstances in which a biosecurity control order can be varied or revoked, subsection 33(3) of the Acts Interpretation Act 1901 does not apply in relation to this clause. Clause 352 Content of a biosecurity control order This clause outlines the content requirements of a biosecurity control order made under clause 351. The biosecurity control order must state that: a biosecurity officer suspects on reasonable grounds that a disease or pest may be present in goods or premises and that the disease or pest poses an unacceptable level of biosecurity risk, and the Director of Biosecurity is satisfied that biosecurity measures need to be taken in relation to the goods or premises for the purposes of managing the biosecurity risks posed by the disease or pest. Additionally, the biosecurity control order must specify the goods or premises to which the order relates, each disease or pest which poses an unacceptable level of biosecurity risk and has been identified and the nature of the biosecurity risks to be managed. The inclusion of details about the nature of the biosecurity risks to be managed means that a biosecurity control order can be used where the disease or pest has not been identified, and all that can be identified are the signs and symptoms of the disease or pest. This will allow an order to be made in relation to a newly discovered or unidentifiable disease or pest; or in circumstances where the tests have proved inconclusive or are yet to be finalised. The biosecurity control order must also specify each of the powers that will be used to assess and manage the risk. Powers which may be included are biosecurity risk assessment powers (Division 3 of Part 2), powers to require biosecurity measures to be taken (Division 2 of Part 3) and powers set out in a regulation made for the purposes of clause 344. Listing the powers which are available each time a biosecurity control order is made means that only the powers which are necessary for those particular circumstances are allowed to be exercised. The notice will also provide notification to the public about the powers which are available in relation to the goods or premises. A biosecurity control order can be in force for up to 12 months, but must not be in force for any longer than the Director of Biosecurity considers necessary to manage the biosecurity risk. An order cannot be extended. If the biosecurity risk posed after 12 months is still unacceptable, another biosecurity order will need to be made. This clause puts on obligation on the Director to consider whether the risk posed still justifies another biosecurity control order. The potentially invasive nature of powers that can be exercised in a biosecurity control order, such as the power to stop people from entering a premises (potentially their house) should only be available for as long as is necessary to manage the biosecurity risks. 272

Additionally, this clause outlines that a power must not be listed in the order unless the Director of Biosecurity is satisfied that the exercise of these powers is appropriate and adapted to managing the biosecurity risk posed by the disease or pest. This means that the use of the power is a proportionate response to the management of biosecurity risk. Where the biosecurity control order is made in relation to a conveyance, it will also apply to all the goods in or on the conveyance. Similarly where the biosecurity control order is made in relation to premises, it will also apply to all the conveyances and goods in or on the conveyance. Clause 353 Form of a biosecurity control notice This clause outlines the form of the biosecurity control notice, which must be in writing and be in a form approved by the Director of Biosecurity. A biosecurity control order is not a legislative instrument. Clause 354 Biosecurity control order to be given to person in charge etc. of goods or premises or affixed to goods or premises This clause outlines the notice requirements for a biosecurity control order. For a biosecurity control order made in relation to goods or conveyances, a biosecurity officer mustwhere it is practicable to do sogive a copy of the order to the person in charge of the goods or conveyance. Where it is not practicable to do so, a biosecurity officer must affix a copy of the order, as near as practicable to the goods or conveyance. For biosecurity control orders made in relation to premises other than a conveyance, a biosecurity officer mustif practicable to do sogive a copy of the order to the occupier of the premises or a person who apparently represents the occupier. Where it is not practicable to do so, a biosecurity officer must affix a copy of the order, as near as practicable to the premises. This notification requirement is intended to notify the person in charge or the occupier about the biosecurity control notice. The notice will also provide notification to the public about risk and the powers to manage the risk which are available in relation to the goods or premises. A person who interferes with, removes or defaces a biosecurity control order may be liable to a civil penalty (see clause 361). Clause 355 Circumstances in which biosecurity control order ceases to be in force This clause sets out the circumstances in which a biosecurity control order ceases to be in force. An order will cease to be in force if the order expires, is revoked, or the goods or premises to which the order relates have been destroyed. This ensures that a biosecurity control order is only in place for as long as it is required to manage biosecurity risks posed by the disease or pest to which it relates. Clause 356 Variation of a biosecurity control order This clause provides that the Director of Biosecurity may vary a biosecurity control order in the circumstances set out in this clause. 273

A biosecurity control order may be varied if the Director of Biosecurity is satisfied that the level of biosecurity risk posed by the disease or pest is no longer unacceptable, or to vary the powers available in the order to manage the biosecurity risk posed by the disease or pest. This allows for flexibilityif a particular approach has not effectively managed the riskto include additional powers to achieve that purpose. For example, the original order may not have restricted the movement of goods into or out of a property, however the disease or pest has now spread so that power is required to effectively manage the risk. Additionally, a biosecurity control can be varied where another disease or pest, posing an unacceptable level of biosecurity risk, may be present in or on the goods or premises to which the order relates, and that biosecurity measures are required to manage the biosecurity risks associated with the new disease or pest. The ability to add additional disease or pests to a biosecurity control order ensures that biosecurity risks can be managed efficiently, through allowing action in a timely manner by having a single biosecurity control order. The order may also be varied if the variation is of a minor technical nature to ensure administrative changes can be made. Any additional powers listed in the varied biosecurity control order must be appropriate for managing the biosecurity risk posed by the disease or pest to which the biosecurity control order relates. A variation to a biosecurity control order is not a legislative instrument. A variation will take effect immediately after it is made. The notification requirements for a variation of a biosecurity control order are the same as those set out in clause 354--with notices given to the person in charge or occupier as relevant or affixed to or as near as practicable to the goods, conveyance or premises. A biosecurity officer must remove all copies of the original order that were affixed to, or as near as reasonably practicable to, the goods, conveyance or premises. A person, who interferes with, removes or defaces a biosecurity control order which is affixed to, or as near as practicable to may be liable to a civil penalty (see clause 361). Clause 357 Revocation of a biosecurity control order This clause provides that the Director of Biosecurity must revoke a biosecurity control order when the risk posed by each disease or pest to which the order relates is no longer unacceptable. The potentially invasive nature of powers that can be exercised in a biosecurity control order, such as the power to stop people from entering a premises (potentially their house) should only be available for as long as is necessary to manage the biosecurity risks. A revocation must be in writing but is not a legislative instrument. A revocation will take effect immediately after it is made. This clause also outlines the notice requirements for the revocation of the biosecurity control order. The revocation notice must be given to the person in charge of goods or a conveyance, or to the occupier of the premises. A biosecurity officer must remove any copies of the original order that were affixed to, or as near as reasonably practicable to the goods, conveyance or premises. 274

This ensures that if the Director of Biosecurity determines that there is no longer an unacceptable level of biosecurity risk, the order is revoked, rather than allowing the order to lapse. This reflects the potentially invasive nature of powers that can be exercised under a control order. Division 3--Powers that may be exercised under biosecurity control order Clause 358 Powers that may be exercised - general This clause outlines the powers that may be exercised under a biosecurity control order. For the purpose of managing the biosecurity risk posed by the disease or pest, powers specified in the order under subclauses 352(2)(d), (e) or (f) or a power set out in Division 4 of Part 3 (clauses 345 and 346) may be exercised. The application of clause 311 means that powers in a biosecurity control order must not be used in relation to goods or conveyances that are subject to biosecurity control or exposed goods in relation to which an exposed goods order is in force. In exercising the powers set out in Division 3 of this Part, a biosecurity officer or a biosecurity enforcement officer may be assisted by other persons (for example, someone setting up monitoring equipment). In addition the application of clause 31 means that powers in this Division must be exercised in accordance with the principles. Clause 359 Exercise of powers in premises This clause outlines that a biosecurity officer or biosecurity enforcement officer may enter any premises within Australian territory for the purpose of exercising powers in accordance with clause 358. This clause provides that a biosecurity officer or a biosecurity enforcement officer will not be authorised to enter a premises unless the occupier of the premises has consented to the entry, or where the entry is made under a biosecurity control order warrant (see Parts 2 and 3, Chapter 10). If the occupier of the premises has required that identification be shown, an officer cannot enter premises by consent unless the officer has shown their identity card. This is intended to assure an occupier of the identity of the officer. This clause notes that if the premises can only be accessed by entering other premises, the officer may require an adjacent premises warrant (see Division 3 of Part 4, Chapter 9). This type of warrant will allow an officer to enter premises to get to other premises where the officer needs to exercise biosecurity risk assessment powers. Clause 360 Power to secure goods or premises to deal with another disease or pest This clause outlines the circumstances in which a biosecurity officer will be able to secure a good or premises to deal with another disease or pest. If a biosecurity control order is in force under clause 351 in relation to goods or premises and a biosecurity officer enters in accordance with the requirements of clause 359, then the biosecurity office may secure goods or premises. 275

A biosecurity officer may secure goods or premises that are subject to a biosecurity control order for up to 24 hours if: the biosecurity officer suspects, on reasonable grounds, that another disease or pest (other than which the biosecurity control order relates) may be present that the other disease or pest may pose an unacceptable level of biosecurity risk, and the biosecurity officer believes, on reasonable grounds, that it is necessary to secure these goods or premises, without the authority of a biosecurity risk assessment warrant or a biosecurity control order warrant, in order to manage the biosecurity risks posed by the other disease or pest. This ensures, that where a biosecurity officer suspects that another disease or pest is present on a good or premises, these goods or premises can be secured until the biosecurity control order is varied (see clause 356). Where entry to premises is made under a warrant, a new warrant may be needed to authorise the biosecurity officer to exercise the powers specified in the varied biosecurity control order. Division 4 -- Civil penalty provision Clause 361 Unauthorised persons must not interfere with etc. biosecurity control order affixed to goods or premises The clause states that if a person interferes with, removes or defaces a biosecurity control order notice the person is liable for a civil penalty (unless the person is authorised to do so under an approved arrangement or, or he or she has been given a direction by a biosecurity official or permission under clause 595 of the Act). The maximum civil penalty for a contravention is 120 penalty units. It will be an exception to be authorised by an Australian law to interfere with, remove or deface a biosecurity control order. To rely on this exception, a person bears the evidential burden, which means that the defendant must adduce evidence which points to the authorisation. It will then be incumbent on the prosecution to establish that this exception does not apply. Part 5--Biosecurity response zones Division 1--Introduction Clause 362 Guide to this Part This guide provides an overview of the Part's objectives. This Part allows the Director of Biosecurity to determine an area of Australian territory is a biosecurity response zone to manage the unacceptable level of biosecurity risk posed by a disease or pest in relation to the area. The biosecurity response zone determination will specify the particular biosecurity measures or powers that a biosecurity officer can use to manage the identified risk (see Parts 2 and 3 of this Chapter and clause 365 for a list of powers). In determining a biosecurity response zone, the Director of Biosecurity will have the flexibility to select the most appropriate powers to deal with the pest or disease. 276

Division 2--Biosecurity response zone determinations Clause 363 Director of Biosecurity may determine biosecurity response zone This clause provides that the Director of Biosecurity may determine that a specified area in Australian territory is a biosecurity response zone if: a biosecurity officer suspects on reasonable grounds that a disease or pest may be present in or on goods or premises in the area, and the disease or pest poses an unacceptable level of biosecurity risk, and the Director of Biosecurity is satisfied that it is necessary to make the determination for the purposes of managing the biosecurity risk posed by the disease or pest. The Director may determine that a specified area is part of a biosecurity response zone even if the area is already part of another biosecurity response zone, a monitoring zone or a biosecurity activity zone. The zone determination may also relate to more than one disease or pest if the above tests are satisfied in relation to those diseases or pests. The ability to determine a biosecurity response zone is given to the Director of Biosecurity rather than a biosecurity officer to ensure that there is appropriate oversight over the exercise of powers under a zone determination. The application of clause 311 means that powers in a biosecurity response zone determination must not be used in relation to goods or conveyances that are subject to biosecurity control or exposed goods in relation to which a biosecurity response zone determination is in force. A zone determination will be able to be varied or revoked in line with section 33(3) or the Acts Interpretation Act 1901. A determination made under clause 363 is exempt from disallowance under section 42 of the Legislative Instruments Act 2003. It is appropriate for the Parliament to delegate to the Director of Biosecurity the power to make this determination involving technical and scientific decisions in order to manage risks to Australia's biosecurity. Subjecting this determination to disallowance could undermine the technical and scientific based decision making and frustrate risk management processes. A determination made under this clause is critical to the management of biosecurity risks. If this determination were to be disallowed, the Commonwealth's ability to manage biosecurity risks relating to a disease or pest incursion will be limited. This could have a significant impact on the economy and could likely lead to restrictions being put on Australia's exports by Australia's trading partners. In addition, disallowance of a determination made under this clause could lead to inadequate management of the biosecurity risks posed to human, plant and animal health, Australia's local industries, the environment and the economy. Clause 364 Content of a biosecurity response zone determination This clause outlines the content requirements of a biosecurity response zone determination made under clause 363. The biosecurity response zone determination must state that: a biosecurity officer suspects on reasonable grounds that a disease or pest may be present in goods or premises in the zone and the disease or pest poses an unacceptable level of biosecurity risk, and the Director of Biosecurity is satisfied that it is necessary to make the determination for the purposes of managing the biosecurity risk posed by the disease or pest. 277

Additionally, the determination must specify each disease or pest which poses an unacceptable level of biosecurity risk and has been identified and the nature of the biosecurity risks to be managed. The inclusion of details about the nature of the biosecurity risks to be managed means that a biosecurity response zone can be used where the disease or pest has not been identified, and all that can be identified are the signs and symptoms of the disease or pest. This will allow a biosecurity response zone to be determined in relation to a newly discovered or unidentifiable disease or pest; or in circumstances where the tests have proved inconclusive or are yet to be finalised. The determination must also specify each of the powers that will be used to assess and manage the risk. Powers which may be included are biosecurity risk assessment powers (Division 3 of Part 2), powers to require biosecurity measures to be taken (Division 2 of Part 3), powers set out in a regulation made for the purposes of clause 344 and the additional biosecurity response zone powers set out in clause 365. The determination must also set out the period for which the determination is to be in force. Listing the powers which are available each time a biosecurity response zone determination is made means that only the powers which are necessary for those particular circumstances are allowed to be exercised. The notice will also provide notification to the public about the powers which are available in relation to the zone. A biosecurity response zone determination can be in force for up to 12 months, but must not be in force for any longer than the Director of Biosecurity considers necessary to manage the biosecurity risk. A determination cannot be extended. If the biosecurity risk posed after 12 months is still unacceptable, another biosecurity response zone determination will need to be determined. This clause puts on obligation on the Director to consider whether the risk posed still justifies another biosecurity response zone determination. The potentially invasive nature of powers that can be exercised in a biosecurity response zone, such as the power to stop people from entering a premises (potentially their house) should only be available for as long as is necessary to manage the biosecurity risks. Additionally, this clause outlines that a power must not be listed in the determination unless the Director of Biosecurity is satisfied that the exercise of these powers is appropriate and adapted to managing the biosecurity risk posed by the disease or pest. This means that the use of the power is a proportionate response to the management of biosecurity risk. Clause 365 Additional powers that may be specified in a biosecurity response zone determination This clause outlines additional powers that can be used in a biosecurity response zone. These powers include: the power to cause the biosecurity response zone to be identified (including by affixing notices or markings) the power to cause goods or premises (including conveyances) within the zone to be identified (including by affixing notices or markings) the power to direct a person in the biosecurity response zone to leave the zone for up to 24 hours, and the power set up traps or set up equipment or other structures within the zone. 278

These powers will assist with the management of biosecurity risk. By having the zone, and the goods and premises within the zone identified, a biosecurity officer will be able to quickly identify any goods or premises which may have a pest or disease present. In addition, it will notify the public of the potential biosecurity risks associated with the area, goods or premises. The power to direct persons out of the zone will assist with treatment or destruction of goods and premises within the zone. The 24 hour time period, is adequate to ensure that biosecurity measures can be carried out. Clause 366 Consultation requirements This clause outlines the requirement to consult with relevant state and territory bodies. Before determining a biosecurity response zone, the Director of Biosecurity must consult the head of the body in the state or territory that is responsible for biosecurity matters. This clause provides for a mechanism to reduce jurisdictional uncertainties and facilitate activities where matters cross state and territory boundaries. Clause 367 Notification requirements This clause requires the Director of Biosecurity to ensure that the biosecurity response zone determination is made public in any way that he or she sees fit. This is in addition to the requirements for registration under the Legislative Instruments Act 2003. For example, the Director of Biosecurity may advertise in the media local to the area where the zone has been determined or may put the determination on the Agriculture Department's website. This ensures that the public will be aware of the biosecurity response zone and any powers or requirements associated with it. A biosecurity response zone determination is not invalidated by a failure to meet the notification requirements in this clause. Division 3--Powers that may be exercised in biosecurity response zones Clause 368 Powers that may be exercised--general This clause outlines the powers that may be exercised when a biosecurity response zone determination is in force. For the purpose of managing the biosecurity risk posed by the disease or pest, the powers specified in the order under paragraphs 364(2)(c), (d), (e) or (f) or a power set out in Division 4 of Part 3 (clauses 345 and 346) may be exercised. The application of clause 311 means that powers in a biosecurity response zone must not be used in relation to goods or conveyances that are subject to biosecurity control or exposed goods in relation to which an exposed goods order is in force. In exercising the powers set out in Division 3 of this Part, a biosecurity officer or a biosecurity enforcement officer may be assisted by other persons (for example, someone setting up monitoring equipment). In addition the application of clause 31 means that powers in this Division must be exercised in accordance with the principles. If the biosecurity response zone overlaps with another zone that is already determined, then the powers available under that other zone determination can be exercised in the overlapping area. This note is provided to make it clear that the determination of another zone does not affect the powers that were previously available under the original zone determination. 279

Clause 369 Exercise of powers in premises This clause outlines that a biosecurity officer or biosecurity enforcement officer may enter premises in a biosecurity response zone for the purpose of exercising powers in accordance with clause 368. This clause provides that a biosecurity officer or a biosecurity enforcement officer will not be authorised to enter a premises unless the occupier of the premises has consented to the entry, or where the entry is made under a biosecurity response zone warrant (see Parts 2 and 3, Chapter 10). If the occupier of the premises has required that identification be shown, an officer cannot enter premises by consent unless the officer has shown their identity card. This is intended to assure an occupier of the identity of the officer. Clause 370 Powers to secure goods or premises to deal with another disease or pest This clause outlines the circumstances in which a biosecurity officer will be able to secure a good or premises to deal with another disease or pest. If a biosecurity officer enters premises in a biosecurity response zone as authorised by clause 369--for the purpose of exercising powers in accordance with clause 368--then the biosecurity officer may secure relevant goods or premises in the zone in accordance with this clause. A biosecurity officer may secure relevant goods or premises for up to 24 hours if: the biosecurity officer suspects, on reasonable grounds, that another disease or pest (other than which the biosecurity response zone determination relates) may be present and that the other disease or pest may pose an unacceptable level of biosecurity risk, and the biosecurity officer believes, on reasonable grounds, that it is necessary to secure these goods or premises, without the authority of a biosecurity risk assessment warrant or a biosecurity response zone warrant, in order to manage the biosecurity risks posed by the other disease or pest. This ensures that where a biosecurity officer suspects that another disease or pest is present on a good or premises, these goods or premises can be secured until the determination is varied (see subsection 33(3) of the Acts Interpretation Act 1901). Alternatively, a biosecurity control order can be made in relation to the goods or premises. Where entry to premises is made under a warrant, a new warrant may be needed to authorise the biosecurity officer to exercise the powers specified in the varied biosecurity response zone determination. Division 4--Offences and civil penalty provisions This division creates offences and civil penalties relating to the biosecurity response zone powers listed in clause 365. The offences and civil penalty provisions within Division 4 of Part 2 and Division 5 of Part 3 will also apply within a biosecurity response zone. While the criminal penalties available is higher than the maximum penalties stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, the penalties are intended to reflect the severity of the potential consequences of the commission of the offence. If the provisions are not complied with, 280

significant biosecurity risks may ensue. This may result in serious damage to plant and animal health, Australia's local industries, the economy and the environment. A court would be able to consider the significance of the offence and the intent of the person and determine whether a lesser penalty than the maximum should be applied. Clause 371 Unauthorised persons must not interfere with etc. notices or markings identifying biosecurity response zone Clause 372 Unauthorised persons must not interfere with etc. notices or markings identifying goods or premises in biosecurity response zone These clauses states that if a person interferes with, removes or defaces a notice or markings identifying the biosecurity response zone (clause 371) or goods or premises within the zone (clause 372)--the person is liable to a civil penalty (unless the person is authorised to do so under an approved arrangement or has been given a direction by a biosecurity official or permission under clause 595 of the Act). The maximum civil penalty for a contravention is 120 penalty units. It will be an exception to be authorised by an Australian law to interfere with, remove or deface a notice or markings. To rely on this exception, a person bears the evidential burden, which means that the defendant must adduce evidence which points to the authorisation. It will then be incumbent on the prosecution to establish that this exception does not apply. Clause 373 Person must comply with direction This clause creates an offence for contravening a direction to leave a biosecurity response zone (paragraph 365(c)). A contravention of this clause will give rise to a maximum penalty of five years imprisonment, or a fine of 300 penalty units, or both, if the elements of a fault- based offence are established. A contravention may also give rise to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. The penalty levels in this provision reflect the severity of the potential consequences if directions are not complied with while biosecurity officers are managing biosecurity risks. For example, if a person is directed to treat a good in a particular way and that person does not, the risk that was being managed has the potential to spread elsewhere. This may result in serious damage to plant and animal health, Australia's local industries, the economy and the environment. Clause 374 Unauthorised persons must not interfere with etc. equipment etc. set up in biosecurity response zone This clause outlines the circumstances when a person is prohibited from interfering with equipment set up within a biosecurity response zone under the power referred to in paragraph 365(d). The clause provides that if a person interferes with, removes or defaces any trap equipment or structure set up in a biosecurity response zone--the person is liable to a civil penalty (unless the person is authorised to do so under an approved arrangement, or has been given a direction by a biosecurity official or permission under the Act under clause 595). A contravention of this clause will give rise to a maximum penalty of five years imprisonment, or a fine of 300 penalty units, or both, if the elements of a fault-based offence are established. A contravention may also give rise to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. 281

It will be an exception to be authorised by an Australian law to interfere with, remove or deface any trap equipment or structure set up in a biosecurity response zone. To rely on this exception, a person bears the evidential burden, which means that the defendant must adduce evidence which points to the authorisation. It will then be incumbent on the prosecution to establish that this exception does not apply. Part 6--Biosecurity monitoring zones Division 1--Introduction Clause 375 Guide to this Part This guide provides an overview of the Part's objectives. This Part allows the Director of Biosecurity to determine a biosecurity monitoring zone to establish whether a disease or pest which poses an unacceptable level of biosecurity has or is likely to entered, or has emerged, established itself or spread in, the zone. There are two types of biosecurity monitoring zones; permanent biosecurity monitoring zones and temporary biosecurity monitoring zones. Division 2--Permanent biosecurity monitoring zones Subdivision A--Areas that are permanent biosecurity monitoring zones Clause 376 Permanent biosecurity monitoring zones This clause outlines the areas within Australian territory which are permanent biosecurity monitoring zones. Permanent biosecurity monitoring zones will be established at areas which have an elevated-level of biosecurity risk, such as first points of entry (See Part 3 of Chapter 4), international mail centres, biosecurity activity zones and other places as prescribed by the regulations. The clause outlines that these zones can be established within the permissible distance of the outer boundary of these areas. Permissible distance means 400 metres or a greater distance as prescribed in the regulations. The regulations must not prescribe an additional place under the regulations, unless the Director of Biosecurity is satisfied that there is a high level of biosecurity risk associated with the area. This is appropriate as such places should be permanently monitored due to the high level biosecurity risk associated with the areas. Subdivision B--Powers that may be exercised in permanent biosecurity monitoring zones Clause 377 Powers that may be exercised--general This clause outlines the powers that may be exercised in a permanent biosecurity monitoring zone in relation to goods and premises. Biosecurity risk assessment powers (Division 3 of Part 2, Chapter 6) may be exercised in a permanent biosecurity monitoring zone--excluding the powers available under clauses 320, 323 and 324 which relate to movement of goods and conveyances and operating electronic equipment. If additional powers are required because of a biosecurity risk, alternative management measures (such as a biosecurity control order or biosecurity response zone) will need to be established. 282

This clause outlines additional powers which can be exercised in a permanent biosecurity monitoring zone. These powers include: the power to cause the permanent biosecurity monitoring zone to be identified (including by affixing notices or markings) the power to cause goods or premises (including conveyances) within the zone to be identified (including by affixing notices or markings) the power set up traps or set up equipment or other structures within the zone, and any powers prescribed in the regulations for the purposes of this clause. These powers will assist with the assessment and monitoring of biosecurity risk in areas which have a higher biosecurity risk because of the nature of activities undertaken at that site. Additionally, demarking the zone will notify the public of the potential biosecurity risks associated with the area, goods or premises. Subclause (3) limits the biosecurity measures that can be prescribed in the regulations. This subclause precludes the listing of: those measures that may be included in a human biosecurity control order (Division 3 of Part 3, Chapter 2) those measures that are named as biosecurity risk assessment powers (Division 3 of Part 2, Chapter 6) those measures that provide powers to require measures to be taken (Division 2 of Part 3, Chapter 6) of this Part, and those measures relating to decontamination (Division 2 of Part 4, Chapter 12). This ensures that the regulations do not contain biosecurity measures already available in the legislation. It also ensures that any notification or processes in place already in the legislation are not circumvented (for example certain timeframes for notification or requirements to affix notices). The powers in this clause may only be exercised in relation to goods or premises within a permanent biosecurity monitoring zone for the purposes of monitoring whether a disease or pest that a biosecurity officer suspects on reasonable grounds that this disease or pest may pose an unacceptable level of biosecurity risk--has or is likely to enter, emerge, establish itself or spread in the zone. In addition the application of clause 31 means that powers in this Division must be exercised in accordance with the principles. Clause 378 Exercise of powers in premises This clause outlines that a biosecurity officer or biosecurity enforcement officer may enter any premises within a permanent biosecurity monitoring zone for the purposes of exercising powers in accordance with clause 377. This clause provides that a biosecurity officer or a biosecurity enforcement officer will not be authorised to enter a premises unless the occupier of the premises has consented to the entry, or where the entry is made under a biosecurity monitoring zone warrant (see Parts 2 and 3, Chapter 10). If the occupier of the premises has required that identification be shown, an officer cannot enter premises by consent unless the officer has shown their identity card. This is intended to assure an occupier of the identity of the officer. 283

Subdivision C--Civil penalty provisions This division creates civil penalties relating to the permanent biosecurity monitoring zone powers listed in subclause 377(2). The offences in Division 2 of Part 3 will also apply within a permanent biosecurity monitoring zone. Clause 379 Unauthorised persons must not interfere with etc. notices or markings identifying permanent biosecurity monitoring zone Clause 380 Unauthorised persons must not interfere with etc. notices or markings identifying goods or premises in a permanent biosecurity monitoring zone Clause 381 Unauthorised persons must not interfere with etc. equipment etc. set up in a permanent biosecurity monitoring zone These clauses state that if a person interferes with, removes or defaces a notice or markings identifying the permanent biosecurity monitoring zone (clause 379) or goods or premises within the zone (clause 380) or any trap equipment or structure set up in a permanent biosecurity monitoring zone (clause 381)--the person is liable to a civil penalty (unless the person is authorised to do so under an approved arrangement or has been given a direction by a biosecurity official or permission under clause 595 of the Act). It will be an exception to be authorised by an Australian law. To rely on this exception, a person bears the evidential burden, which means that the defendant must adduce evidence which points to the authorisation. It will then be incumbent on the prosecution to establish that this exception does not apply. These powers are required to ensure biosecurity officer can carry out his or her functions, by setting up equipment and affixing notices to goods or conveyances restricting their movement so that assessment and monitoring can be conducted to determine if a pest or disease has or is likely to enter, emerge, establish itself or spread in the zone. Division 3--Temporary biosecurity monitoring zones Subdivision A--Temporary biosecurity monitoring zone determinations Clause 382 Director of Biosecurity may determine temporary biosecurity monitoring zone This clause allows the Director of Biosecurity to determine, by legislative instrument, a temporary biosecurity monitoring zone. The Director of Biosecurity may determine an area if satisfied that it is necessary for the purpose of monitoring whether a disease or pest that may pose an unacceptable level of biosecurity risk, has or is likely to, enter, emerge, establish itself or spread in the area. For example, it is envisaged that temporary biosecurity monitoring zones will be determined around biosecurity response zones, to ensure that the disease or pest has not spread. The temporary biosecurity monitoring zone may cover the whole or part of specified premises-- but cannot include a conveyance. A zone can be declared over an area which is part of another temporary biosecurity monitoring zone. The ability to determine a temporary biosecurity monitoring zone is given to the Director of Biosecurity rather than a biosecurity officer to ensure that there is appropriate oversight over the exercise of powers under a zone determination. 284

A zone determination will be able to be varied or revoked in line with section 33(3) or the Acts Interpretation Act 1901. A determination made under clause 382 is exempt from disallowance under section 42 of the Legislative Instruments Act 2003. It is appropriate for the Parliament to delegate to the Director of Biosecurity the power to make this determination involving technical and scientific decisions in order to manage risks to Australia's biosecurity. Subjecting this determination to disallowance could undermine the technical and scientific based decision making and frustrate risk management processes. A determination made under this clause is critical to the management of biosecurity risks. If this determination were to be disallowed, the Commonwealth's ability to manage biosecurity risks relating to a disease or pest incursion will be limited. This would have a significant impact on the economy and would likely lead to comparable restrictions being put on Australia's exports by Australia's trading partners. In addition, disallowance of a determination made under this clause could lead to inadequate management of the biosecurity risks posed to human, plant and animal health, Australia's local industries, the environment and the economy. Clause 383 Content of a temporary biosecurity monitoring zone determination This clause outlines the content requirements of a temporary biosecurity monitoring zone determination. The determination must also specify each of the powers that will be used to monitor the risk. Powers which may be included in a determination are biosecurity risk assessment powers (Division 3 of Part 2) and powers in clause 384 that may be exercised in relation to goods or premises (including conveyances). However, the powers set out in clauses 320, 323 and 324 relating to the movement of goods and conveyances and the operation of electronic equipment must not be specified in the determination. The determination must also set out the period for which it is to be in force. Listing the powers which are available each time a temporary biosecurity response zone determination is made means that only the powers which are necessary for those particular circumstances are allowed to be exercised. The notice will also provide notification to the public about the powers which are available in relation to the zone. A temporary biosecurity monitoring zone can be in force for up to 12 months, but must not be in force for any longer than the Director of Biosecurity considers necessary to monitor the biosecurity risk. A temporary monitoring zone determination cannot be extended. If the biosecurity risk posed after 12 months is still requires monitoring, this clause outlines that another zone determination can be made over the same area. This clause puts on obligation on the Director to consider whether the risk posed still justifies another temporary biosecurity monitoring zone. The potentially invasive nature of powers that can be exercised in a zone, such as the power to leave a premise for up to 24 hours, should only be available for as long as is necessary to monitor the biosecurity risks. Additionally, this clause outlines that a power must not be listed in the determination unless the Director of Biosecurity is satisfied that the exercise of these powers is appropriate and adapted to managing the biosecurity risk posed by the disease or pest. This means that the use of the power is a proportionate response to the management of biosecurity risk. 285

Clause 384 Additional powers that may be specified in a temporary biosecurity monitoring zone determination This clause outlines additional powers that may be exercised in a temporary biosecurity monitoring zone. These include: the power to cause the biosecurity monitoring zone to be identified the power to cause goods or premises (including conveyances) within the zone to be identified the power set up traps or set up equipment or other structures within the zone, and any powers set out in the regulations. These powers will assist with the assessment and monitoring of biosecurity risk. By having the zone and goods and premises within the zone identified, a biosecurity officer will be able to quickly identify any goods or premises which may have a pest or disease present. In addition it will notify the public of the potential biosecurity risks associated with the area, goods or premises. Subclause (2) limits the biosecurity measures that can be prescribed in the regulations. The powers in the regulations must not be measures that may be included in a human biosecurity control order in Division 3 of Part 2 of Chapter 2, the biosecurity risk assessment powers in Division 3 of Part 2 of this Chapter, the powers to require biosecurity measures to be take in Division 2 of this Part, a biosecurity measure listed in the regulations made under clause 344 and the decontamination powers in Division 2 or Part 4 in Chapter 12. This ensures that the regulations do not contain biosecurity measures already available in the legislation. It also ensures that any notification or processes required by other provisions in the legislation are not circumvented. Clause 385 Consultation requirements This clause outlines the requirement to consult with relevant state and territory bodies. Before determining a temporary monitoring zone, the Director of Biosecurity must consult the head of the body in the state or territory that is responsible for biosecurity matters. This clause provides for a mechanism to reduce jurisdictional uncertainties and facilitate activities where matters cross state and territory boundaries. Clause 386 Notification requirements This clause requires the Director of Biosecurity to ensure that the temporary biosecurity monitoring zone determination is made public in any way that he or she sees fit. This is in addition to the requirements for registration under the Legislative Instruments Act 2003. For example, the Director of Biosecurity may advertise in the media local to the area where the zone has been determined. This ensures that the public will be aware of the temporary biosecurity monitoring zone and any powers or requirements associated with it. A temporary biosecurity monitoring zone determination is not invalidated by a failure to meet the notification requirements in this clause. 286

Subdivision B--Powers that may be exercised in a temporary biosecurity monitoring zone Clause 387 Powers that may be exercised--general This clause outlines the powers that may be exercised when a biosecurity response zone is in force. For the purpose of monitoring biosecurity risk that may be posed by entry, emergence, establishment or spread of the disease or pest, the powers specified in the temporary biosecurity monitoring zone determination made under paragraphs 383(1)(a) or (b) may be exercised. The application of clause 311 means that powers in a biosecurity monitoring zone must not be used in relation to goods or conveyances that are subject to biosecurity control or exposed goods in relation to which an exposed goods order is in force. In exercising the powers set out in Division 3 of this Part, a biosecurity officer or a biosecurity enforcement officer may be assisted by other persons (for example, someone setting up monitoring equipment). In addition the application of clause 31 means that powers in this Division must be exercised in accordance with the principles. Clause 388 Exercise of powers in premises This clause outlines that a biosecurity officer or biosecurity enforcement officer may enter premises within a temporary biosecurity monitoring zone for the purpose of exercising powers in accordance with clause 387. This clause provides that a biosecurity officer or a biosecurity enforcement officer will not be authorised to enter a premises unless the occupier of the premises has consented to the entry, or where the entry is made under a biosecurity monitoring zone warrant (see Parts 2 and 3, Chapter 10). If the occupier of the premises has required that identification be shown, an officer cannot enter premises by consent unless the officer has shown their identity card. This is intended to assure an occupier of the identity of the officer. Subdivision C--Civil penalty provisions Clause 389 Unauthorised persons must not interfere with etc. notices or markings identifying temporary biosecurity monitoring zone Clause 390 Unauthorised persons must not interfere with etc. notices or markings identifying goods or premises in temporary biosecurity monitoring zone Clause 391 Unauthorised persons must not interfere with etc. equipment etc. set up in a temporary biosecurity monitoring zone These clauses state that if a person interferes with, removes or defaces a notice or markings identifying the biosecurity monitoring zone (clause 389) or goods or premises within the zone (clause 390) or any trap equipment or structure set up in a biosecurity response zone (clause 391)--the person is liable to a civil penalty (unless the person is authorised to do so under an approved arrangement or has been given a direction by a biosecurity official or permission under clause 595 of the Act). The maximum civil penalty for a contravention is 120 penalty units. It will be an exception to be authorised by an Australian law. To rely on this exception, a person bears the evidential burden, which means that the defendant must adduce evidence 287

which points to the authorisation. It will then be incumbent on the prosecution to establish that this exception does not apply. These powers are required to ensure biosecurity officer can carry out his or her functions, by setting up equipment and affixing notices to goods or conveyances restricting their movement so that assessment and monitoring can be conducted to monitor biosecurity risks. Part 7--Biosecurity activity zones Division 1--Introduction Clause 392 Guide to this Part This guide provides a concise overview of the Part's objectives. This Part allows the Director of Biosecurity to determine a biosecurity activity zone where powers are exercised or functions or duties are performed by, or on behalf of, the Commonwealth. The Director must be satisfied it is necessary for the purpose of managing biosecurity risks before making a determination. Biosecurity activity zones may be determined over premises such as an approved arrangement premises, or over a biosecurity facility (such as a quarantine station). Division 2--Biosecurity activity zone determinations Clause 393 Director of Biosecurity may determine biosecurity activity zone This clause provides that the Director of Biosecurity may determine that a specified area in Australian territory is a biosecurity activity zone if: the area is a place where powers are exercised or functions or duties are performed by the Commonwealth or on behalf of the Commonwealth (for example, a place where an approved arrangement is located), and the Director of Biosecurity is satisfied that it is necessary to make the determination for the purposes of managing the biosecurity risk associated with exercising those powers of performing those functions or duties. The Director may determine that a specified area is part of a biosecurity activity zone even if the area is already part of a biosecurity response zone or a monitoring zone. The biosecurity activity zone may consist of the whole or part of specified premises (other than a conveyance), including premises on which a biosecurity industry participant carries out biosecurity activities as authorised by an approved arrangement covering the biosecurity industry participant. The ability to determine a biosecurity activity zone is given to the Director of Biosecurity rather than a biosecurity officer to ensure that there is appropriate oversight over the exercise of powers under a zone determination. A zone determination will be able to be varied or revoked in line with section 33(3) or the Acts Interpretation Act 1901. A determination made under clause 393 is exempt from disallowance and the sunsetting provisions under the Legislative Instruments Act 2003. It is appropriate for the Parliament to delegate to the Director of Biosecurity the power to make this determination involving technical and scientific decisions in order to manage risks 288

to Australia's biosecurity. Subjecting this determination to disallowance could undermine the technical and scientific based decision making and frustrate risk management processes. A determination made under this clause is critical to the management of biosecurity risks. If this determination were to be disallowed, the Commonwealth's ability to manage biosecurity risks relating to a disease or pest incursion will be limited. This would have a significant impact on the economy and would likely lead to comparable restrictions being put on Australia's exports by Australia's trading partners. In addition, disallowance of a determination made under this clause could lead to inadequate management of the biosecurity risks posed to human, plant and animal health, Australia's local industries, the environment and the economy. It is also appropriate that the biosecurity activity zone determinations are exempt from the sunsetting requirement--as the zones will remain in place as long as functions and powers are exercised in accordance with the Act at that location. Given the scope of where a biosecurity activity zone can be determined, there may be a large number of zones declared. In addition clause 396 ensures that these determinations must be revoked where it is no longer necessary for powers to be exercise in a zone in accordance with clause 397. Clause 394 Consultation requirements This clause outlines the requirement to consult with relevant state and territory bodies. Before determining a biosecurity activity zone, the Director of Biosecurity must consult the head of the body in the state or territory that is responsible for biosecurity matters. This clause provides for a mechanism to reduce jurisdictional uncertainties and facilitate activities where matters cross state and territory boundaries. Clause 395 Notification requirements This clause requires the Director of Biosecurity to ensure that the biosecurity activity zone determination is made public in any way that he or she sees fit. This is in addition to the requirements for registration under the Legislative Instruments Act 2003. For example, the Director of Biosecurity may advertise in the media local to the area where the zone has been determined. This ensures that the public will be aware of the biosecurity activity zone and any powers or requirements associated with it. A biosecurity activity zone determination is not invalidated by a failure to meet the notification requirements in this clause. Clause 396 Revocation of biosecurity activity zone determination The Director of Biosecurity must revoke a biosecurity activity zone, where it is no longer necessary for powers to be exercise in a zone in accordance with clause 397. For example, the Director of Biosecurity may revoke a biosecurity activity zone determination if an approved arrangement no longer operates in a specified area. This would not be revoked until any biosecurity risks that were being managed by the zone were no longer a concern. A revocation of a biosecurity activity zone determination will be a legislative instrument, but is exempt from disallowance under section 42 of the Legislative Instruments Act 2003. This is consistent with the disallowance exemption for the determination itself. It will take effect immediately after it is made. 289

Division 3--Powers that may be exercised in biosecurity activity zones Clause 397 Powers that can be exercised This clause outlines the powers that may be exercised in a biosecurity activity zone in relation to goods and premises. This clause outlines additional powers which can be exercised in a biosecurity activity zone. These powers include: the power to cause the biosecurity activity zone to be identified (including by affixing notices or markings) the power to cause goods or premises (including conveyances) within the zone to be identified (including by affixing notices or markings) the power to direct a person in the zone to leave the zone for up to 24 hours, and any powers prescribed in the regulations for the purposes of this clause. The powers provided in relation to entry and exit requirements (see clauses 331 and 332) may also be exercised in a biosecurity activity zone. These powers will assist with the assessment and monitoring of biosecurity risk in areas which have a higher biosecurity risk because of the nature of activities undertaken at that site. Additionally, demarking the zone will notify the public of the potential biosecurity risks associated with the area, goods or premises. Subclause (3) limits the biosecurity measures that can be prescribed in the regulations. This subclause precludes the listing of: those measures that may be included in a human biosecurity control order (Division 3 of Part 3, Chapter 2) those measures that are named as biosecurity risk assessment powers (Division 3 of Part 2, Chapter 6) those measures that provide powers to require measures to be taken (Division 2 of Part 3, Chapter 6) of this Part those measures relating to decontamination (Division 2 of Part 4, Chapter 12), and those measures provided for by the regulations made under clause 344. This ensures that the regulations do not contain biosecurity measures already available in the legislation. It also ensures that any notification or processes in place already in the legislation not circumvented (for example certain timeframes for notification or requirements to affix notices). The powers in this clause may only be exercised in relation to goods or premises within a biosecurity activity zone for the purposes of managing biosecurity risk. In addition the application of clause 31 means that powers in this division must be exercised in accordance with the principles. Clause 398 Use of force This clause provides that the use of force by a biosecurity enforcement officer performing functions and exercising powers in a biosecurity activity zone against things as is necessary and reasonable in the circumstances. The use of force may allow, for example: the opening of doors or the movement of things to assist with the execution of a warrant. 290

This clause does not authorise the use of force against a person. This is to ensure protection to individuals and to clarify that physical force on an individual cannot be used in the exercise of powers authorised by a warrant. Division 4--Offences and civil penalty provisions Clause 399 Unauthorised persons must not interfere with etc. notices or markings identifying biosecurity activity zone Clause 400 Unauthorised persons must not interfere with etc. notices or markings identifying goods or premises in a biosecurity activity zone These clauses state that if a person interferes with, removes or defaces a notice or markings identifying the biosecurity activity zone (clause 399) or goods or premises within the zone (clause 400)--the person is liable to a civil penalty (unless the person is authorised to do so under an approved arrangement or has been given a direction by a biosecurity official or permission under clause 595 of the Act). It will be an exception to be authorised by an Australian law. To rely on this exception, a person bears the evidential burden, which means that the defendant must adduce evidence which points to the authorisation. It will then be incumbent on the prosecution to establish that this exception does not apply. Clause 401 Person must comply with direction This clause creates an offence for failing to comply with a direction given under paragraph 397(1)(c) to leave a biosecurity activity zone. A contravention of this clause will give rise to a maximum penalty of five years imprisonment, or a fine of 300 penalty units, or both, if the elements of a fault-based offence are established. A contravention may also give rise to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. The penalty levels in this provision reflect the severity of the potential consequences if directions are not complied with while biosecurity officers are managing biosecurity risks. For example, a person may be directed to leave a biosecurity activity zone so that biosecurity measures can be carried out to manage biosecurity risk. If the risk is not managed to an acceptable level, this may result in serious damage to plant and animal health, Australia's local industries, the economy and the environment. 291

Chapter 7--Approved arrangements Part 1--Introduction Clause 402 Guide to this Chapter This clause provides an overview of the approved arrangements model. Key provisions include approving, varying and suspending approved arrangements the powers and obligations of biosecurity industry participants (BIPs) and audit powers. Part 2--Approval of proposed arrangement Clause 403 Person may apply to relevant Director for approval of proposed arrangement to carry out biosecurity activities This clause allows a person (including a non-natural person such as a corporation) to apply to the Director of Biosecurity or the Director of Human Biosecurity (relevant Director) for approval of an arrangement that allows the person to carry out specified activities (biosecurity activities) to manage the biosecurity risks associated with specified goods, premises or other things. The nature of activities covered by an arrangement will be consistent with the rest of the Bill. For example an arrangement should not allow a biosecurity industry participant to manage an invasive pest onshore in a way that is not consistent with the Convention on Biological Diversity (consistent with Chapter 6). Clause 404 Relevant Director must decide whether or not to approve proposed arrangement This clause allows the relevant Director, upon receiving an application under clause 403, to approve an arrangement or refuse to approve an arrangement. The relevant Director may approve an arrangement if satisfied that the arrangement meets the requirements set out in the regulations, the applicant is a fit and proper person (see clause 505) and the level of biosecurity risk associated with the arrangement is acceptable. These requirements are intended to ensure that applicants have the relevant facilities and expertise to manage their biosecurity risks effectively and they are a suitable person to be entering into an agreement with the Commonwealth (that is, they do not have a history of non-compliance under the Act). When deciding whether he or she is satisfied, the relevant Director can consider any matter he or she considers relevant. The relevant Director may also approve an arrangement subject to any conditions he or she considers appropriate. For example, a condition may be that goods are treated to an agreed upon standard and suitable records are kept to verify that this has occurred. The conditions that are put in place will depend upon the nature and level of biosecurity risks associated with the approved arrangement and what measures are required to manage them to an acceptable level. Clause 405 Proposed arrangement may be approved subject to condition requiring security to be given This clause allows the relevant Director--if he or she considers it appropriate having regard to the criteria (if any) prescribed by the regulations--to require a security to be given in relation to the operation of the approved arrangement as a condition of approval. This means that the BIP must provide the security before the arrangement is deemed to have been 292

approved. This is intended to be a compliance tool, so that if a BIP does not manage biosecurity risks in accordance with its approved arrangement, the security may then be used by the Commonwealth to pay for managing that incident. For example, if a proposed arrangement involves biosecurity activities being conducted by a BIP with a history of low level non-compliance, (such as non-compliance with administrative requirements that does not necessarily justify refusing or revoking its arrangement), the relevant Director may approve the arrangement subject to a security being paid. If the BIP is non-compliant with its arrangement, the BIP may forfeit the security paid to the Commonwealth. The regulations may prescribe criteria the relevant Director must have regard to in requiring a security to be given and make provision for or in relation to the security that may be required. The form of the security, the amount, who must give the security, when the security must be given, the circumstances in which the security may be retained and the circumstances in which the security, or any part of the security must be repaid, will also be set out in the regulations. Clause 406 Notice of decision This clause requires the relevant Director to notify an applicant for approval of a proposed arrangement whether the application is approved or not. The notification must be in writing and must specify any conditions to which the approved arrangement is subject and the period for which the approved arrangement is to be in force. This ensures that if an application is approved, the applicant knows exactly when the approved arrangement commences and any conditions that apply when operating under the approved arrangement. If the application has been refused, the notification ensures procedural fairness by letting the applicant know that the application has been refused and the reasons for the refusal, allowing an appeal of the decision. Clause 407 Period of effect of approved arrangement This clause provides that an approved arrangement takes effect on the day notice is given by the relevant Director to the BIP under clause 416 (the date of the signature on the notice) or, if applicable, a later day specified in that notice. An approved arrangement remains in force for the period of time specified in the notice, unless it is revoked earlier. This allows the relevant Director to determine that an approved arrangement should take effect immediately or at a later date, depending upon the nature of the biosecurity activities under the arrangement. Clause 408 Restrictions on applications for approval of proposed arrangements etc. This clause provides that if a person's application for an arrangement is refused or a BIP's approved arrangement is revoked, (a person referred to as the `first person'), the relevant Director may do both or either of the following on one or more occasions: refuse the application for approval of a proposed arrangement under clause 403 by an associate of the first person, or issue an associate of the first person who is a BIP or becomes a BIP with a notice requesting he or she show cause within 14 days why his or her approved arrangement should not be suspended in whole or in part, or revoked. 293

The notice must be in writing, state the grounds on which the notice is given and include a statement setting out the associate's right to seek review of a decision to suspend or revoke his or her approved arrangement. This ensures the process for decision making is transparent by letting the associate know the basis for a potential decision that affects his or her interests and giving them a chance to bring further information to the relevant Director's attention that might impact upon the ultimate decision. The word `associate' covers a person who is or was a consultant, advisor, partner, representative on retainer, employer or employee of the first person or a corporation the first person is employed by or has shares in; a spouse, de facto, or family member of the first person; a family member of a spouse or de facto partner of the first person or any other person who was directly or indirectly concerned with or in a position to control the business or an undertaking of the first person or a corporation he or she is employed by or has shares in. (See section 2D of the Acts Interpretation Act 1901 for the meaning of de facto partner). The intent of the associates test is to ensure that an applicant for an arrangement or a person who holds an approved arrangement is a suitable person to be responsible for managing biosecurity risks and to enter into an agreement with the Commonwealth, in light of the potential consequences of non-compliance. It aims to do this by preventing a person the relevant Director has determined should not hold an approved arrangement from obtaining another arrangement via an associate, such as a family member or business partner, on his or her behalf; or by ensuring a person involved in the behaviour that resulted in non-compliance of the first person can be refused an arrangement or have his or her approved arrangement suspended or revoked if the relevant Director deems it is appropriate. Clause 409 Transfer of approved arrangement This clause provides that an approved arrangement cannot be transferred to another person except in the circumstances outlined in the regulations. This is to ensure that, except under specified circumstances, every proposed BIP is required to meet fit and proper person requirements in clause 505 to establish whether it is a suitable person to enter into an arrangement with the Commonwealth. Part 3--Variation of approved arrangement Division 1--Application by biosecurity industry participant Clause 410 Application for approval of varied arrangement This clause allows a BIP to apply to the relevant Director to vary an approved arrangement covering the BIP. The BIP must not implement a varied arrangement it has applied for unless the relevant Director has approved it and given the BIP written notice of the approval. This is to ensure that a BIP's operations do not change before the relevant Director has determined whether the associated biosecurity risks can be managed to an acceptable level. An application for a variation will be assessed using the same criteria for a new application in clauses 404 to 407. This is intended to allow the relevant Director to assess whether the proposed variation to the approved arrangement will continue to manage the biosecurity risks associated with the relevant biosecurity activities to an acceptable level (with or without conditions) and refuse to approve the variation if it does not. 294

Division 2--Variation required by relevant Director Clause 411 Relevant Director may vary or require variation of approved arrangement This clause allows the relevant Director to give the BIP a written notice varying the conditions of its approved arrangement, (including imposing new conditions), or requiring the BIP to vary its approved arrangement as specified in the notice. The relevant Director can give the BIP a notice if he or she is satisfied: the arrangement no longer meets the requirements on the basis of which the approval was given the BIP is no longer a fit and proper person (clause 505) a condition of the arrangement has been contravened the level of biosecurity risk associated with the operation of the arrangement has changed a change needs to be made to the arrangement to correct a minor or technical error in the arrangement, or the arrangement needs to be varied for any other reason. Allowing the relevant Director to make variations is intended to ensure that the biosecurity risks associated with the biosecurity activities under the approved arrangement continue to be managed to an acceptable level. If the relevant Director is not satisfied that this is the case, he or she can require that a BIP's arrangement be varied. If a person no longer meets the fit and proper person requirements or contravenes a condition of approval, the relevant Director may determine that he or she is still a suitable person to hold an agreement with the Commonwealth, but in a reduced capacity, and vary the approved arrangement to reflect this. A change in the level of biosecurity risk associated with the approved arrangement may mean that measures previously used to manage the biosecurity risk to an acceptable level are no longer achieving this aim, and the relevant Director may vary an arrangement to reflect this. For example a pest or disease outbreak in another country may increase the level of biosecurity risk associated with the importation of a particular good and additional measures are required to reduce that risk to an acceptable level. The approved arrangement may be varied to incorporate the additional measures. Minor or technical variations are more administrative in nature and may include a change such as the spelling of the name of the location where the biosecurity activities will be required. Clause 412 Notice varying conditions of approved arrangement This clause provides that a notice varying the conditions of an approved arrangement must specify the conditions that are to be varied, details of the variation and any new conditions that will be imposed on the approved arrangement (if applicable). This ensures that the BIP is aware of exactly what conditions apply to the operation of the approved arrangement so it can comply with them. 295

Clause 413 Date of effect of variation of conditions of approved arrangement This clause provides that a variation of an approved arrangement by notice under paragraph 411(1)(a) takes effect on the day that notice is given (the date of the signature on the notice) or, if applicable, a later day specified in the notice. This ensures the relevant Director can determine that a variation should take effect immediately or at a later date, depending upon the nature of the biosecurity activities under the arrangement and the variation made. Clause 414 Notice requiring approved arrangement to be varied This clause provides that a notice under paragraph 411(1)(b) requiring a BIP to vary an approved arrangement covering it must specify the variations required and require the BIP to give the relevant Director the varied arrangement by the date specified in the notice. If the BIP gives a varied arrangement to the relevant Director, it cannot be implemented until the relevant Director has approved the variation and given the BIP notice of this in writing. The application for variation will then be assessed using the same criteria as a new application for an approved arrangement under clauses 404 to 407. This allows the relevant Director to assess whether the proposed variation to the approved arrangement will continue to manage the biosecurity risks associated with the relevant biosecurity activities to an acceptable level and refuse to approve a variation if it does not. As opposed to clause 411 (variation required by the relevant Director) this allows a BIP to decide the best way to manage risk within their business operations. Part 4--Suspension of Approved Arrangement Division 1--Suspension requested by biosecurity industry participant Clause 415 Biosecurity industry participant may request relevant Director to suspend all or part of approved arrangement This clause allows a BIP to request the relevant Director to suspend all or part of an approved arrangement covering it. This request must be in writing; and specify whether the whole arrangement or part of an arrangement is to be suspended, the proposed date the suspension is to take effect, the period of the suspension and include any other information prescribed by the regulations. The proposed suspension date cannot be before the end of the notice period specified in the regulations. This is to ensure that the relevant Director has adequate time to consider the application. If the relevant Director receives a request from the BIP to suspend an approved arrangement covering it, the Director must, by written notice, suspend the approved arrangement covering the BIP for the period specified in the notice. If the BIP requests that the relevant Director suspend part of an approved arrangement covering it, the relevant Director must decide whether to suspend the approved arrangement as requested and notify the BIP in writing of his or her decision. This ensures that if the BIP requests that its approved arrangement is suspended, the relevant Director must approve that request. This reflects the voluntary nature of the approved arrangements model by allowing BIPs to modify their approved arrangement if they no longer have the facilities or expertise to manage the biosecurity risks associated with their operations, or the BIP determines there is no longer a financial or commercial advantage in continuing to operate in this way under the approved arrangement. 296

The relevant Director can still determine exactly when the suspension of the approved arrangement will take effect. This ensures that the relevant Director can make certain that any biosecurity risks associated the biosecurity activities that were being conducted by the BIP continue to be managed to an acceptable level after the arrangement is modified. The relevant Director may also refuse a request from a BIP to suspend part of its approved arrangement. This ensures that part of an approved arrangement cannot be suspended if the relevant Director is not satisfied that biosecurity risks can continue to be managed to a satisfactory level under the remaining part of the approved arrangement. The BIP will still have the option to apply for its approved arrangement to be suspended in a different way, suspended completely or to have its arrangement revoked if it is not satisfied with the decision. If a relevant Director receives a request from a BIP to suspend part of an approved arrangement covering the BIP and does not make a decision within the period prescribed by the regulations, the relevant Director is taken to have refused the request at the end of that period. This is to ensure there is a definite end point where a decision is taken to have been made and the BIP can apply for a review of the decision under clause 610 in Chapter 13. Division 2--Suspension by relevant Director Clause 416 Relevant Director may suspend approved arrangement Clause 417 Notice of suspension Clause 418 Period of suspension Clause 419 Management of biosecurity risks during suspension period Clause 416 allows the relevant Director--of his or her own initiative--to suspend all or part of an approved arrangement for a period if the Director is satisfied that: the arrangement or part of the arrangement no longer meets the requirements on the basis of which the approval was given the BIP is no longer a fit and proper person (see clause 546) a condition of the arrangement has been contravened the level of biosecurity risk associated with the arrangement has changed the BIP is liable to pay a fee prescribed in the regulations (including a late payment fee) that is due and payable, or the BIP is an associate of a person who has been refused an approved arrangement or a person who was a BIP covered by an approved arrangement that has been revoked (see subclause 408(4)). The relevant Director must not suspend an approved arrangement for a reason other than the associate test unless he or she has given written notice to the BIP that specifies the grounds upon which the arrangement or part of the arrangement is to be suspended, requests that the BIP provide a written statement within 14 days showing cause why the arrangement or part of the arrangement should not be suspended and includes a statement setting out the BIP's right to seek a review of the decision. If the relevant Director proposes to suspend an approved arrangement using the associate test, he or she must follow the relevant process outlined in clause 408. The relevant Director does not have to provide written notice to the BIP however if satisfied that the grounds for the suspension are serious or urgent. This ensures that any biosecurity 297

risks that pose a high level of risk can be managed immediately in order to reduce the threat or harm posed as quickly and efficiently as possible. Clause 417 provides that if the relevant Director decides to suspend an approved arrangement or part of an approved arrangement under clause 416, the Director must give the BIP written notice stating that the arrangement or part of the arrangement is suspended for the period specified in the notice. This ensures procedural fairness by having a transparent process for decision making, letting the BIP know the basis for a potential decision that affects its interests and giving the BIP a chance to bring further information to the relevant Director's attention that might impact upon the ultimate decision. Clause 418 provides that the suspension of an approved arrangement, or part of an approved arrangement, takes effect on the day the notice is given under clause 417 (the date of the signature on the notice) or, if applicable, a later day specified in the notice. If the relevant Director issues the BIP with a notice requesting the BIP provide a written statement showing cause under clause 416, or issues the BIP with a notice in relation to the associate test under clause 408, the suspension must not take effect until 14 days after the notice is given. This is to ensure that the BIP has enough time to respond in writing to the relevant Director before any suspension takes effect. The relevant Director may further vary the period during which an approved arrangement or part of an approved arrangement is suspended or revoke the suspension of an approved arrangement or part of an approved arrangement by issuing the BIP with a written notice. This gives the relevant Director the ability to manage the biosecurity risks if they are ongoing and not resolved within the original suspension period. Clause 419 provides that if an approved arrangement or part of an approved arrangement covering a BIP is suspended, the relevant Director may issue the BIP with a direction in writing to take specified action within a specified period to manage any biosecurity risks associated with the goods, premises or other thing the BIP would have been authorised to deal with if the approved arrangement had not been suspended. This clarifies that even though the BIP's arrangement is not currently in effect, a biosecurity officer can still issue a direction on how to manage the biosecurity risks associated with goods, premises or other things under the BIP's control (similar to any other person issued a direction under the Act). If the relevant Director issues the BIP with a direction to take specified action to manage biosecurity risks, the BIP does not take the action within the period and the BIP is not the owner of the goods, premises or other thing, the relevant Director may direct the owner in writing to take the specified action within a specified period. This ensures that if the BIP does not comply with a direction, there is another person who has responsibility for the goods, premises or other thing that a biosecurity officer can direct to undertake the action and manage the biosecurity risk posed. A person commits an offence and is liable to a civil penalty if the person contravenes clause 419. The maximum penalty for contravention of clause 419 is five years imprisonment, or a fine of 300 penalty units, or both. The maximum civil penalty for contravention of clause 419 is 120 penalty units. 298

Part 5--Revocation of approved arrangement Division 1--Revocation requested by biosecurity industry participant Clause 420 Biosecurity industry participant may request relevant Director to revoke approved arrangement This clause allows a BIP to request the relevant Director to revoke an approved arrangement covering it. This request must be in writing, specify a proposed date the revocation is to take effect and include any other information prescribed by the regulations. The proposed revocation date cannot be before the end of a notice period specified in the regulations. This is to ensure that the relevant Director has adequate time to consider the application. If the relevant Director receives a request from the BIP to revoke an approved arrangement covering it, the relevant Director must, by written notice, revoke the approved arrangement with effect on the day specified in the notice. This ensures that if the BIP requests that its approved arrangement is revoked, the relevant Director must approve that request. This reflects the voluntary nature of the approved arrangements model by allowing BIPs to withdraw from their approved arrangement if they no longer have the facilities or expertise to manage the biosecurity risks associated with their operations, or the BIP determines there is no longer a financial or commercial advantage. The relevant Director can still determine exactly when the revocation of the approved arrangement will take effect. This ensures that the relevant Director can make certain that any biosecurity risks associated the biosecurity activities that were being conducted by the BIP continue to be managed to an acceptable level after the arrangement is revoked. Division 2--Revocation by relevant Director Clause 421 Relevant Director may revoke approved arrangement Clause 422 Notice of revocation Clause 423 Date of effect of revocation Clause 424 Management of biosecurity risks after revocation Clause 421 allows the relevant Director--of his or her own initiative--to revoke an approved arrangement if satisfied: that the arrangement no longer meets the requirements on the basis of which the approval was given the BIP is no longer a fit and proper person (see clause 505) a condition of the arrangement has been contravened the level of biosecurity risk associated with the operation of the arrangement has changed the BIP is liable to pay a fee prescribed in the regulations (including a late payment fee) that is due and payable, or the BIP is an associate of a person who has been refused an approved arrangement or a person who was a BIP covered by an approved arrangement that has been revoked (see subclause 408(4)). The relevant Director must not revoke an approved arrangement for a reason other than the associate test unless he or she has given written notice to the BIP that specifies the grounds upon which the arrangement is to be revoked, requests that the BIP provide a written 299

statement within 14 days showing cause why the arrangement should not be revoked and includes a statement setting out the BIP's right to seek a review of the decision. If the relevant Director proposes to revoke an approved arrangement using the associate's test, he or she must follow the relevant process outlined in clause 408. The relevant Director does not have to provide written notice to the BIP however if the grounds for the revocation are serious or urgent. This ensures that biosecurity risks that pose a high level of risk can be managed immediately in order to reduce the threat or harm posed as quickly and efficiently as possible. Clause 422 provides that if the relevant Director decides to revoke an approved arrangement under clause 421, the relevant Director must give the BIP written notice stating that the arrangement is revoked. This ensures procedural fairness by having a transparent process for decision making and letting the BIP know the basis for a decision that affects the BIP's interests. Clause 423 provides that the revocation of an approved arrangement takes effect on the day the notice is given under clause 422 (the date of the signature on the notice) or, if applicable, a later day specified in the notice. If the relevant Director issues the BIP a notice requesting the provision of a written statement showing cause under clause 421, or provides the BIP with a notice in relation to the associate test under clause 408, the revocation must not take effect until 14 days after the notice is given. This is to ensure that the BIP has enough time to respond in writing to the relevant Director before any revocation takes effect. Clause 424 provides that if an approved arrangement covering a BIP is revoked, the relevant Director may issue the former BIP with a direction in writing to manage any biosecurity risks associated with the goods, premises or other thing the former BIP would have been authorised to deal with if its approved arrangement had not been revoked within a specified period. This clarifies that even though the BIP's arrangement is no longer in effect, a biosecurity officer can still issue them with a direction on how to manage the biosecurity risks associated with goods, premises or other things under its control (similar to any other person issued a direction under the Act). If the relevant Director issues the former BIP with a direction, and the BIP does not take the action within the period specified in the direction and the former BIP is not the owner of the goods, premises or other thing, the relevant Director may issue the owner with a direction in writing to take the specified action within a specified period. This ensures that if the BIP does not comply with a direction, there is another person with responsibility for the goods, premises or other thing that a biosecurity officer can direct to undertake the action and manage the biosecurity risk posed. A person commits an offence and is liable to a civil penalty if the person contravenes clause 424. The maximum penalty for contravention of clause 424 is five years imprisonment, or a fine of 300 penalty units, or both. The maximum civil penalty for contravention of clause 424 is 120 penalty units. 300

Part 6--Powers and obligations of biosecurity industry participants Division 1--General Clause 425 Authorisation to carry out biosecurity activities in accordance with approved arrangement Clause 426 Biosecurity industry participant must carry out biosecurity activities in accordance with approved arrangement etc. Clause 425 provides that a BIP is authorised to carry out biosecurity activities in accordance with the approved arrangement for the purposes of the Act, except for the extent to which its approved arrangement is suspended under Part 4 or if carrying out the activities is inconsistent with a direction given to the BIP by a biosecurity officer under clause 427. If the BIP's approved arrangement has been revoked under Part 5, the former BIP is not authorised to carry out biosecurity activities in accordance with the approved arrangement for the purposes of the Act at any time after the revocation takes effect. This clarifies that a BIP is only authorised to carry out biosecurity activities in accordance with its approved arrangement when the arrangement is in effect and covers the BIP, not during a period when it has been suspended or if it has been revoked. Clause 426 provides that if a BIP is authorised to carry out biosecurity activities in accordance with an approved arrangement covering the BIP and the BIP fails to carry out biosecurity activities in accordance with its arrangement or contravenes any requirements or conditions specified in the arrangement, the BIP commits an offence and is liable to a civil penalty. The maximum penalty for a contravention of clause 426 is five years imprisonment, or a fine of 300 penalty units, or both. The maximum civil penalty for contravention of clause 426 is 120 penalty units. Clause 427 Biosecurity officer may give direction to biosecurity industry participant to manage biosecurity risks Clause 427 allows a biosecurity officer to give a direction to a BIP in relation to the operation of its approved arrangement if the biosecurity officer is satisfied it is necessary to do so to manage the biosecurity risks associated with the operation of the arrangement. A direction may require the BIP to carry out an activity that is not covered by its approved arrangement or require the BIP not to carry out an activity in accordance with its approved arrangement. A biosecurity officer may not however require a BIP to carry out an activity that it does not have the qualifications, expertise or resources to. This means that regardless of what biosecurity activities have been authorised in a BIP's approved arrangement, the BIP is still required to follow the direction of a biosecurity officer, even if the direction is not consistent with its approved arrangement. This ensures that biosecurity officers have ultimate responsibility for the management of biosecurity risks and can require a BIP to manage its risks in a different way if it is deemed necessary and the BIP has the facilities and expertise to comply with the direction. A BIP commits an offence and is liable to a civil penalty if the BIP contravenes clause 427. The maximum penalty for contravention of clause 427 is five years imprisonment, or a fine of 300 penalty units, or both. The maximum civil penalty for contravention of clause 427 is 120 penalty units. 301

Clause 428 Biosecurity industry participant may charge fee in relation to biosecurity activities carried out This clause allows a BIP who is authorised to carry out biosecurity activities under an approved arrangement covering the BIP to charge a fee in relation to those activities. A BIP may also charge a fee for any activities carried out when complying with a direction from a biosecurity officer under clause 427. This is to allow a BIP to receive reasonable payment in return for its services. Consistent with restrictions upon the Commonwealth, any fees charged by the BIP for functions performed on behalf of the Commonwealth must not amount to taxation. Division 2--Biosecurity Incidents Clause 429 Reporting biosecurity incidents This clause provides that if an act, omission or event occurs (known as a reportable biosecurity incident) that is specified in a BIP's approved arrangement or is a condition of its approved arrangement, the BIP must make a report to the relevant Director. An example of a reportable biosecurity incident might be the detection of a pest in goods that were imported under the approved arrangement. The requirement that certain biosecurity incidents are reported ensures that the Commonwealth is made aware of the biosecurity risk posed and can direct the BIP or undertake urgent actions to manage that risk to an acceptable level if required. The way the report must be made and the information that must be included in the report will be determined by the relevant Director by legislative instrument. If the report does not comply with these requirements, the report is taken not to have been made. A BIP may commit an offence or be liable to a civil penalty if the BIP fails to comply with any requirements specified in an approved arrangement covering the BIP or a condition of an approved arrangement (see clause 426). This clause does not limit the operation of Division 7 of Part 1 of Chapter 3, which deals with the reporting of biosecurity incidents in relation to goods that are subject to biosecurity control. BIPs will still be required to comply with these requirements, if applicable. Clause 430 Costs of dealing with biosecurity incidents This clause allows the relevant Director to apply to a relevant court for a costs order if a current or former BIP failed to carry out biosecurity activities in accordance with an approved arrangement covering the BIP, a biosecurity incident occurred in relation to the operation of the arrangement, this was caused by the BIP's failure to comply with its arrangement and the Commonwealth incurred costs dealing with the biosecurity incident. The court may, upon the application of the relevant Director, make a costs order will require the BIP to pay to the Commonwealth all or part of the costs incurred by the Commonwealth. The relevant Director must apply for a costs order within 6 years of the biosecurity incident occurring. This ensures that there is a set period of time during which the BIP may be held liable. In deciding whether to make a costs order, the relevant court may have regard to the nature and extent to which the BIP failed to comply with its approved arrangement, the circumstances in which the biosecurity incident occurred, the nature and extent of any damage caused by the BIP's failure to comply, the level of biosecurity risk associated with 302

the incident, the amount of costs incurred by the Commonwealth in dealing with the incident, whether the BIP has previously had a costs order made against them in relation to a biosecurity incident or any other matter the court considers relevant. This ensures that the court can consider a range of different factors relevant to BIP's level of responsibility and how the Commonwealth's costs were incurred when making its decision. Part 7--Other provisions Division 1--Applications for approval Clause 431 Applications to which this Division applies Clause 432 Requirements for applications These clauses state that an application for an approved arrangement made under Part 2 or an application to vary an approved arrangement under Division 1 or Part 3 must be in the form approved by the relevant Director (if a form of application has been approved), include the information prescribed in the regulations and be accompanied by a copy of the arrangement or varied arrangement that is to be approved and any other documents prescribed by the regulations. This ensures that the relevant Director receives all of the relevant information required in order to determine if he or she is satisfied the applicant can manage the biosecurity risks associated with its proposed arrangement and that the applicant is a suitable person to enter into an agreement with the Commonwealth. An application for an approved arrangement may require an application fee, as outlined in Chapter 13. This allows the Commonwealth to recover costs incurred when administering the approval process. The relevant Director may also approve different types of forms for different types of applications. This reflects the broad nature of the approved arrangements model and allows the relevant Director to differentiate between straight forward and more complex categories of applications by establishing different requirements. Clause 433 Dealing with applications This clause provides that the relevant Director must make a decision in relation to an application within a consideration period prescribed by the regulations for an application of that kind. This reflects the broad nature of the approved arrangements model and ensures that the relevant Director can differentiate between straight forward types of applications that are quicker to process and more complex applications that require further research and analysis and therefore take more time. The consideration period begins on the day the application was received by the relevant Director. If the relevant Director does not make a decision within the consideration period, he or she is taken to have refused the application. This is to ensure there is a definite end point where a decision is taken to have been made and the applicant can apply for a review of the decision if they choose. The relevant Director can issue a written notice requesting that the applicant, or any other person the relevant Director considers may have information relevant to the application, provide specified information or documents relevant to the application within a specified period. 303

The consideration period identified in the regulations is extended each time the relevant Director makes a request, for a period of time starting when the request was made and ending the day the information or documents are received by the relevant Director or the last day of the period if the information or documents are not received. This ensures that if the relevant Director requires additional information in order to properly assess an application (particularly more complex ones) and make a decision regarding whether the biosecurity risks can be managed to a satisfactory level, he or she has time to request and receive this information before the consideration period runs out and a decision to refuse the application is considered to have been made. Division 2--Audit powers Clause 434 Relevant Director may require audit to be carried out This clause provides that the Director of Biosecurity, or the Director of Human Biosecurity, may require an audit to be carried out in relation to the following: whether a BIP is acting in accordance with, or complying with any requirements or conditions in an approved arrangement that covers the BIP for the purposes of considering: an application under clause 403 for approval of a proposed arrangement, or an application under clause 410 for approval of a varied arrangement. The ability to conduct an audit in relation to an approved arrangement assists the relevant Director to determine whether the BIP is complying with or will comply with their arrangement. Alternatively, an audit may be used to determine whether a BIP has the capacity to comply with the terms of a new or varied approved arrangement. This is an important consideration in determining whether the biosecurity industry participant is a suitable person to continue to hold or enter into an arrangement with the Commonwealth to manage biosecurity risks. An audit must be carried out by a biosecurity officer or an auditor approved in writing by the relevant Director. Any auditor approved must be appropriately qualified and experienced. This is intended to ensure that any auditor appointed has the relevant qualifications and expertise to conduct an audit of the activities or proposed activities covered by an approved arrangement. Some arrangements will involve more standard equipment to manage biosecurity risks, like a wash bay, while others might involve highly specialised equipment, such as equipment used in a university research laboratory. The regulations may specify requirements in relation to carrying out audits, including requirements relating to any report to be provided on an audit. Clause 435 Powers of auditors This clause states that an auditor carrying out an audit under clause 434 may require any person to produce any documents, records or things that the auditor is satisfied are relevant to the audit. This ensures that the auditor has access to all the relevant information that they need in order to conduct a comprehensive and effective audit. A person commits an offence and is liable to a civil penalty if the person contravenes this requirement. The maximum penalty for a contravention is six months imprisonment or 30 penalty units. The maximum civil penalty for a contravention is 30 penalty units. Section 304

137.2 of the Criminal Code and clause 508 also apply to this clause and create a fault based offence for providing false or misleading documents. This clause is not subject to the privilege against self-incrimination. This is required to ensure that the relevant person is complying with the Act and the terms of his or her approved arrangement. Abrogating the privilege allows the discovery and management of non-compliance to be uncovered more efficiently and for any associated biosecurity risks to be managed quickly and effectively. An approved arrangement is a voluntary agreement and the biosecurity industry participant's compliance with audits will be required in order to enter into one. The nature of the biosecurity risks being managed under an approved arrangement means there is a public benefit in quickly obtaining accurate information outweighs any potential harm to the person required to provide that information. In addition, any harm to the individual is minimised by the protection under subclause 661(2). An auditor may also require any person to provide the auditor with reasonable facilities and assistance for the effective exercise of powers under this Division. This ensures that the auditor can efficiently carry out the audit without undue delay by having to seek facilities elsewhere or requiring other persons to provide assistance. A person commits an offence and is liable to a civil penalty if the person contravenes this requirement. The maximum penalty for a contravention is six months imprisonment. The maximum civil penalty for a contravention is 30 penalty units. Division 3--Miscellaneous Clause 436 Giving false or misleading information to a biosecurity industry participant Clause 437 Giving false or misleading documents to a biosecurity industry participant These clauses provide that a person is liable to a maximum civil penalty of 120 penalty units if person knowingly gives false and misleading information or documents to a BIP and the information is given in connection with biosecurity activities that are being, or are to be, carried out by the BIP in accordance with an approved arrangement. The person is also liable to the same civil penalty if he or she omits any matter or thing without which the information is misleading. A person is not liable for a civil penalty if the information that he or she provides is not false or misleading in a material particular. This means that a person will not be liable for providing false or misleading information which is trivial or inconsequential). An exception also applies if person omitted information but the exclusion of that information did not result in the overall information being misleading in a material particular. A person is also not liable if the BIP does not take reasonable steps to inform the person that he or she may be liable to a civil penalty before he or she provides information. A person providing documents is not liable to the civil penalty if he or she provides documents that are not false or misleading in a material particular. A person is also not liable if the person produces a document that is signed by the person, (or in the case of a body corporate, a competent officer of the body corporate), stating that to their knowledge the 305

document is false or misleading in a material particular and setting out the information in the document that is to their knowledge false or misleading. To rely on these exceptions, the person bears the evidential burden, which means that the person must adduce evidence which points to the fact that he or she was authorised to make the record or disclosure. It will then be up to the prosecution to establish that this exception does not apply. These clauses are intended to dissuade persons from providing false or misleading information to BIPs, thereby ensuring that BIPs have access to information relevant that is reliable and correct when conducting activities under an arrangement. If a BIP relies upon false of misleading information, this has the potential to increase the level of biosecurity risk associated with its activities and may cause serious consequences. Clause 438 Obstruction or hindrance of person acting in accordance with approved arrangement This clause provides that it is an offence for a person to obstruct or hinder another person who is carrying out biosecurity activities in accordance with an approved arrangement or taking action in accordance with a direction from relevant Director or a biosecurity officer in relation to an approved arrangement that was suspended or revoked. A person commits an offence and is liable to a civil penalty if the person contravenes clause 438. The maximum penalty for contravention of clause 438 is five years imprisonment, or a fine of 300 penalty units, or both. The maximum civil penalty for contravention of clause 438 is 120 penalty units. This ensures that a BIP operating under an approved arrangement is able to conduct themselves in accordance with its arrangement or a valid direction under the Act free from interference. If a BIP is hindered, this has the potential to increase the level of biosecurity risk associated with its activities and may cause serious consequences. Clause 439 Protection from civil proceedings This clause provides that no civil proceedings may lie against the Commonwealth or a person who is or was a BIP for anything done or omitted to be done in good faith by them in carrying out biosecurity activities in accordance with an approved arrangement, complying with a direction from a biosecurity officer under clause 427 or by another person who was providing assistance to the BIP or former BIP in carrying out the activities or complying with the direction. In addition, no civil proceedings may lie against the Commonwealth or a person who is or was a BIP in relation to anything done by an animal used by them in carrying out biosecurity activities under its approved arrangement or complying with a direction from a biosecurity officer under clause 427. This ensures that BIPs are able to carry out biosecurity activities under their approved arrangement without being subjected to civil proceedings, as long as they performed their functions in good faith. A BIP is considered to have acted in good faith when acting in accordance with its approved arrangement or a direction under the Act. 306

This clause is subject to clause 26 (acquisition of property), clause 307 (undue detention or delay of vessel) and clause 533 (damage to electronic equipment). This is consistent with the Commonwealth's obligations under the Act, where reasonable compensation might be paid. 307

Chapter 8--Biosecurity emergencies and human biosecurity emergencies Part 1--Biosecurity emergencies Division 1--Introduction Clause 440 Guide to this Part This clause provides an overview of powers available to deal with biosecurity emergencies of national significance. Key provisions are the declaration of an emergency, emergency requirements, actions and directions, declaring national response agencies, modifications of the Act and entry to premises during an emergency. Division 2--Declaration of biosecurity emergency Clause 441 Governor-General may declare that a biosecurity emergency exists This clause allows the Governor-General to declare that a biosecurity emergency exists if the Agriculture Minister is satisfied that a disease or pest is posing a severe and immediate threat, or is causing harm, to animal or plant health; the environment; economic activities related to animals, plants or the environment. The threat or harm must be on a nationally significant scale. The threshold test is consistent with the World Trade Organization Agreement on the Application of Sanitary and Phytosanitary Measures, in particular the reference to `economic activities related to animals, plants or the environment.' This clause requires that before a declaration is made, the Agriculture Minister must be satisfied that the declaration is `necessary' to prevent or control the spread or establishment of the disease or pest. This means that once a biosecurity emergency has been declared, an assessment has been made that a particular disease or pest poses a nationally significant threat or is causing nationally significant harm and the activation of emergency powers is necessary to manage it. The intent is to ensure that emergency powers under clauses 443, 444, 448 and 449 are exercised only when they are necessary to prevent or control the spread or establishment of the declaration pest or disease. A biosecurity emergency declaration must specify the disease or pest that led to the declaration (declaration disease or pest), the nature of the biosecurity emergency, the conditions that gave rise to the emergency and the period during which the emergency declaration is in force. The emergency period must be no longer than the Agriculture Minister considers necessary to prevent or control the establishment or spread of the declaration disease or pest; or, in any case, no longer than three months. (This period can be extended under clause 442). The emergency period is limited to a maximum of three months to ensure there is a fixed point in time where the emergency declaration is evaluated to determine whether the circumstances that led to the declaration still exist and emergency powers are still required. The potentially invasive nature of powers that can be exercised during an emergency period, such as the power to enter premises without a warrant or consent, means that an emergency declaration should only be available for as long as is necessary to manage the threat or harm posed. 308

The Governor-General must revoke a biosecurity emergency declaration if the Agriculture Minister is no longer satisfied the declaration disease or pest poses a severe and immediate threat, or is causing harm, to animal or plant health; the environment; economic activities related to animals, plants or the environment on a nationally significant scale; or the declaration is necessary to prevent or control the establishment or spread of the disease or pest in Australian territory or part of Australian territory. This ensures that if the Agriculture Minister determines that the circumstances that led to the biosecurity emergency no longer exist, the declaration is revoked rather than allowing the biosecurity emergency period to lapse. As discussed above, this reflects the potentially invasive nature of powers that can be exercised during an emergency period, which should only be available for as long as is necessary to manage the threat or harm posed. An emergency declaration is a legislative instrument, but disallowance under section 42 of the Legislative Instruments Act 2003 does not apply. This is because the decision whether to declare an emergency should be scientifically based and made in accordance with an assessment of the relevant biosecurity risks. If an emergency declaration was disallowed, nationally significant biosecurity risks would go unmanaged and the Commonwealth would be unable to take the fast and urgent action to manage a threat or harm to Australia's local industries, economy and the environment. Clause 442 Governor-General may extend biosecurity emergency period This clause allows the Governor-General to extend the biosecurity emergency period for up to three months if the Agriculture Minister is satisfied that the declaration disease or pest continues to pose a severe and immediate threat, or is continuing to cause harm, to animal or plant health; the environment; economic activities related to animals, plants or the environment on a nationally significant scale; and the extension is necessary to prevent or control the establishment or spread of the disease or pest in Australian territory or part of Australian territory. The Governor-General may extend a biosecurity emergency period more than once. This means that if the Agriculture Minister evaluates the biosecurity emergency declaration and determines that the circumstances that led to the declaration still exist and emergency powers are still required, the emergency period can be extended for up to three months. Depending on the nature of the declaration disease or pest and the level of biosecurity risk posed, an extended period of time might be required to manage the threat or harm posed. For example, a severe national outbreak of foot and mouth disease might require a period of 12 months or more to manage. On this basis there is no limit on the number of extensions that can be made by the Governor-General. An emergency declaration variation under this clause is a legislative instrument, but disallowance under section 42 of the Legislative Instruments Act 2003 does not apply. This is because the decision of whether to extend an emergency period should be scientifically based and made in accordance with an assessment of the relevant biosecurity risks. If an emergency period was not extended, nationally significant biosecurity risks would go unmanaged and the Commonwealth would be unable to take the fast and urgent action to manage a threat or harm to Australia's local industries, economy and the environment. 309

Division 3--Emergency requirements, directions and actions Clause 443 Agriculture Minister may determine emergency requirements during biosecurity emergencies This clause allows the Agriculture Minister, during a biosecurity emergency period, to determine any requirement that the Minister is satisfied is appropriate and adapted to preventing or controlling the establishment or spread of the declaration disease or pest in Australian territory or part of Australian territory. Requirements are broad requirements issued by the Agriculture Minister about how the response to a declaration disease or pest should be managed. This may include conditions that must be met by people, goods or conveyances within a designated area when they enter or leave a specified type of place. For example, that every person inside a biosecurity response zone takes a foot bath before they leave the zone. The words `appropriate and adapted' have been used to create the appropriate link between the Agriculture Minister exercising the power to determine an emergency requirement and the quarantine constitutional head of power. The determination of an emergency requirement is a legislative instrument, but disallowance under section 42 of the Legislative Instruments Act 2003 does not apply. This is because the decision of whether to impose an emergency requirement should be scientifically based and made in accordance with an assessment of the relevant biosecurity risks. If an emergency requirement was disallowed, this would severely affect the Commonwealth's ability to manage nationally significant biosecurity risks by implementing a fast and urgent response to the threat or harm posed to Australia's local industries, economy and the environment. The power to determine emergency requirements is intended to allow the Agriculture Minister to determine any requirement that is needed to manage the declaration disease or pest on a national scale. The specific requirements that are determined by the Agriculture Minister will depend upon a range of factors such as the origin, nature and scale of biosecurity risk associated with the declaration disease or pest and its location within Australian territory. Some examples are listed under subclause (3) to give an indication of the types of requirements that might be determined by the Agriculture Minister but this is not intended to limit the types of requirements that may be determined by the Agriculture Minister. Any emergency requirement determined by the Agriculture Minister will have effect despite any provision of any other Australian law. This ensures that during a biosecurity emergency period any person, who acts in accordance with a requirement from the Agriculture Minister (or an executive head delegate)--in circumstances where their actions would ordinarily be in contravention of another law--will not be liable for an offence under that Australian law. This clause does not override any other Australian law, which means that unless a person's compliance with the requirement conflicts with another law, that law will continue to be in force. The determination of an emergency requirement will have effect until the end of the biosecurity emergency period, unless the requirement is revoked earlier. This is to ensure that when a biosecurity emergency period ends, people are no longer required to comply with 310

requirements specifically determined to address the threat or harm posed by the emergency circumstances. Clause 444 Agriculture Minister may give directions and take actions during biosecurity emergencies This clause allows the Agriculture Minister, during a biosecurity emergency period, to give a direction to any person or take any action he or she is satisfied is appropriate and adapted to preventing or controlling the establishment or spread of the declaration disease or pest in Australian territory or part of Australian territory. Directions can be issued directly to a person by the Agriculture Minister related to the management of the declaration disease or pest. For example, a direction can be given to a person requiring them to secure a good or conveyance so it can be treated. Actions are a specific action undertaken to give effect to a requirement or a direction, for example, moving goods or a conveyance. The words `appropriate and adapted' have been used to create the appropriate link between the Agriculture Minister exercising the power to give directions or take action and the quarantine constitutional head of power. `Appropriate and adapted' also incorporates the international law principle of proportionality. The use of these words is further intended to ensure that the exercise of the Agriculture Minister's power to give directions or take actions is consistent with Australia's international human rights obligations, such as the right not to be subjected to arbitrary or unlawful interferences with a person's privacy under Article 17 of the International Covenant on Civil and Political Rights. The power to issue directions or undertake actions is intended to allow the Agriculture Minister to give any direction or take any action that is necessary to manage the declaration disease or pest on a national scale. The specific directions issued or actions undertaken by the Agriculture Minister will depend upon a range of factors such as the origin, nature and scale of biosecurity risk associated with the declaration disease or pest and its location within Australian territory. Some examples are listed under subclauses (2) and (3) to give an indication of the types of direction or actions that might be issued or undertaken by the Agriculture Minister but this is not intended to limit the types of actions or directions available to the Agriculture Minister. This clause allows the Agriculture Minister to give a direction of a general or specific nature to the Director of Biosecurity or an officer or employee of the Commonwealth (including a biosecurity enforcement officer or a biosecurity officer) about the performance of his or her functions or exercise of his or her powers. This is to ensure that the Minister is the sole person in charge of coordinating the national biosecurity emergency response. Otherwise conflicting directions or actions might be undertaken during a biosecurity emergency, limiting the effectiveness of the response. This power cannot be delegated, as it would not be appropriate for the executive head of a national response agency or a national response agency employee to be able to issue the Director of Biosecurity, a biosecurity enforcement officer or a biosecurity officer with a direction about how he or she performs his or her functions or exercise his or her powers. 311

A direction may be given or an action taken despite any provision of any other Australian law. This ensures that during a biosecurity emergency period any person who acts in accordance with a direction from the Agriculture Minister (or an executive head delegate or a national response agency employee subdelegate) or undertakes an action in accordance with this clause, and their actions would be in contravention of another law, is not liable for an offence or a non-compliance under that Australian law. This clause does not override any other Australian law, which means that unless a person complying with the direction or undertaking the action conflicts with another law, that law will continue to be in force. A direction to a biosecurity officer or a biosecurity enforcement officer can be given despite any restriction specified in the officer's instrument of authorisation under subclauses 588(2) or 589(2). This is to ensure that during a biosecurity emergency response officers can be given additional functions and powers that are usually restricted, but required during a biosecurity emergency to respond to the threat or harm posed. A direction ceases to have effect at the end of the biosecurity emergency period, unless revoked earlier. This ensures that once a biosecurity emergency period has ended, people are no longer required to comply with directions specifically given to address the threat or harm posed by the emergency circumstances. Merits review to the Administrative Appeals Tribunal is not available for a decision to issue an emergency direction or undertake an action during a biosecurity emergency. This is to ensure the Commonwealth can undertake fast and urgent actions to manage the threat or harm posed by the declaration disease or pest to Australia's local industries and economy without waiting for a review period to pass. Clause 445 Limits on power to give directions and take actions This clause establishes limitations over the Agriculture Minister's decision to give a direction or undertake an action under clause 444. Before exercising this power, the Agriculture Minster must be satisfied that exercising the power is likely to be effective in, or contribute to, achieving the purpose for which it is being exercised; that the manner in which it is exercised is no more restrictive or intrusive than required in the circumstances; that, when exercised in relation to an individual, it is no more restrictive or intrusive than required in the circumstances; that, if exercised during a period, the period is only for as long as necessary; that, if exercised in relation to a conveyance, the Agriculture Minister has considered the impact upon the health and safety of any persons on board the conveyance. These limitations also apply to a person who exercises a power in accordance with a delegation or subdelegation from the Agriculture Minister. The limitations do not apply to directions given to Commonwealth officials, because this type of direction does not directly impact upon a person or his or her rights. Limitations have been inserted to ensure that any direction given or action undertaken is necessary and proportionate and does not impact on a person or his or her rights any more than is necessary to manage the level of biosecurity risk posed. This is consistent with international treaties such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The person exercising a power must be satisfied that any direction given or action undertaken is likely to be effective in or contribute to achieving its purpose (subclause (1)(a)) and that the 312

period in which it is exercised is only for as long as necessary (subclause (1)(d)). The direction given or action undertaken must also be no more intrusive or restrictive than is required under the circumstances (subclause (1)(b)). While already covered by subclause (1)(b), for clarity a separate subclause (1)(c) has been included requiring that, when exercised in relation to an individual, a direction given or action undertaken is no more intrusive or restrictive than is required under the circumstances. This ensures that a person's rights and the impact of the decision upon them are one of the factors considered when the decision to issue a direction or undertake an action is made. The person exercising the power must also be satisfied that when giving a direction or undertaking an action the impact upon the health and safety of the people on board is considered (subclause (2)). This is consistent with Article 6 of the International Covenant on Civil and Political Rights which provides for the right to life. For example, the decision to issue a direction for an aircraft or vessel not to enter Australia should consider whether the conveyance has adequate fuel and supplies to comply with this direction and whether any persons on board require life saving medical treatment. Clause 446 Limit on requiring individuals to be subject to certain biosecurity measures This clause prevents a requirement determined by the Agriculture Minister or a direction given by the Agriculture Minister from requiring an individual to be subject to a biosecurity measure of a kind set out in Subdivision C of Division 3 of Part 3 of Chapter 2. These are measures that may be included in a human biosecurity control order, such as examinations, requiring body samples for analysis and receiving vaccinations, medications or treatment. These types of biosecurity measures should not be implemented during a biosecurity emergency period as they are specifically designed to manage human biosecurity risks, not biosecurity risks relevant to a disease or pest. If such a measure does need to be implemented, it will be done using the powers in Chapter 2 or the powers in Part 2 of this Chapter. This clause does not prevent a requirement determined by or a direction given by the Agriculture Minister from requiring an individual to wear specified clothing or equipment (or both) designed to prevent a disease or pest from establishing or spreading. It also does not prevent the Director of Biosecurity or a biosecurity officer from exercising his or her powers under Subdivision B of Division 2 of Part 4 of Chapter 12. These powers allow for an individual to be decontaminated or for an individual's clothing and personal effects to be decontaminated. These powers are not specific to addressing a human biosecurity risk and might be required in a biosecurity emergency to manage the declaration disease or pest. Clause 447 Person must comply with emergency requirements and directions A person must comply with a requirement determined by the Agriculture Minister (or an executive head delegate) or a direction given by the Agriculture Minister (or an executive head delegate or a national response agency subdelegate) that applies to them. If the person is subject to a requirement or a direction and engages in conduct that contravenes the requirement or the direction, the person commits an offence and is liable to a civil penalty. The penalty for contravention of this clause is up to a maximum of five years imprisonment, or a fine of 300 penalty units, or both. The maximum civil penalty for a contravention of this clause is 120 penalty units. These penalties reflect the high level of threat or harm posed by the declaration disease or pest and the potential consequences of non-compliance. 313

Clause 448 Asking questions relating to biosecurity emergencies During a biosecurity emergency, this clause allows the Agriculture Minister to require a person who is suspected on reasonable grounds of having information relating to the biosecurity emergency to answer questions or provide information in writing. This power is required to allow information to be gathered about the declaration disease or pest (such as where a conveyance with a declaration disease or pest onboard has travelled to) and be able to make a more informed assessment of whether there is a biosecurity risk, what level of biosecurity risk is posed and what biosecurity measures are required to manage it. A requirement imposed continues to have effect whether or not the emergency period has ended, until the person complies with the requirement or the person is informed by the Agriculture Minister or a biosecurity officer that the answer or information is no longer required. Although the circumstances that led to a biosecurity emergency being declared may no longer exist on a nationally significant scale, this ensures that activities to assess and manage the declaration disease or pest can continue if required. In particular assessment and monitoring activities will be required to determine if the declaration disease or pest is still present and/or has spread, what level of biosecurity risk is posed and to inform a decision whether an emergency declaration is required in the future. A person commits an offence and is liable to a civil penalty if he or she is subject to a requirement and he or she fails to comply with the requirement. The penalty for a contravention is up to a maximum of five years imprisonment, or 300 penalty units, or both. The maximum civil penalty is 120 penalty units. These penalties reflect the high level of threat or harm posed by the declaration disease or pest and the potential consequences of non- compliance. The privilege against self-incrimination has been abrogated for this clause. This is because the information being gathered under these clauses is urgently required in a biosecurity emergency to allow for the assessment and management of a significant threat or harm to Australia's local industries, economy and the environment. Individuals who are required to provide information that might incriminate them are given a protection in clause 661, that self-discriminatory disclosures cannot be used against the person either directly in court (`use' immunity) or indirectly to gather other information against the person (`derivative use' immunity). The exception in the Criminal Code of providing false or misleading documents under section 137.1 or 137.2 and clause 507 still apply. Clause 449 Requiring documents relating to biosecurity emergencies This clause allows the Agriculture Minister to require a person, during a biosecurity emergency, whom the Minister suspects on reasonable grounds has the custody or control of documents relating to the biosecurity emergency to produce specified documents to the Agriculture Minister. These powers may be delegated to an executive head or subdelegated to a national response agency employee. The same reasoning for the policy, penalties and abrogation of the privilege against self- incrimination outlined above in clause 448 applies to this clause. 314

Division 4--National response agencies Clause 450 Agriculture Minister may declare national response agency This clause allows the Agriculture Minister to declare a national response agency for the purposes of the Act. This may include the Australian Defence Force, a Commonwealth body or a part of a Commonwealth body. The Agriculture Department is included in the definition of a national response agency and therefore the department (including the Director of Biosecurity, biosecurity officers and biosecurity enforcement officers) will automatically become a national response agency when the Act comes into effect. The Australian Defence Force (ADF) has been listed in this clause as its personnel have specific training and expertise that can be utilised to assist with a biosecurity emergency response. For example, issuing directions, manning biosecurity zones or closing down roads and diverting traffic. Any power exercised must be performed in accordance with the ADF's delegation or subdelegation. A national response agency emergency declaration is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003. This information has been included in the Bill to assist readers and is not intended in itself to provide an exemption. Clause 451 Agriculture Minister may delegate certain emergency powers This clause allows the Agriculture Minister, during a biosecurity emergency, to delegate the power to determine requirements, issue directions, take actions, ask questions or require documents to the executive head of a national response agency. As the Agriculture Department is a national response agency, this may include the Agriculture Minister delegating powers to the Secretary of the Agriculture Department. The executive head can only exercise those powers and functions that have been specifically delegated to them by the Agriculture Minister. Unlike the Agriculture Minister, the executive head will not be able to issue a direction of a specific or general nature to the Director of Biosecurity or an officer or employee of the Commonwealth. This is because it would not be appropriate for the executive head of a national response agency to issue the Director of Biosecurity, a biosecurity enforcement officer or a biosecurity officer with a direction about how he or she performs his or her functions or exercises his or her powers. Clause 452 Executive head of national response agency may subdelegate certain emergency powers This clause allows the executive head of a national response agency, during a biosecurity emergency, to subdelegate a power delegated to them by the Agriculture Minister to a person performing duties or functions in his or her agency (national response agency employee). As the Agriculture Department is a national response agency, this may include the Director of Biosecurity subdelegating powers to biosecurity officers or biosecurity enforcement officers. The executive head cannot subdelegate a power to determine requirements during an emergency period, as the power to issue broad requirements on how a biosecurity emergency should be managed more appropriately sits at a higher level of authority. The executive head can only subdelegate a power to issue directions, take actions, ask questions or require documents to a national response agency employee if the executive head 315

is specifically authorised by his or her delegation from the Agriculture Minister. The national response agency employees can only exercise those powers that have specifically been subdelegated to them. This ensures that the Agriculture Minister retains control over the person or category of person that is delegated and subdelegated each type of power. When performing functions or exercising powers, the executive head must comply with any direction from the Agriculture Minister and the national response agency employee must comply with any direction from the Agriculture Minister or his or her executive head. This is to ensure that the Minister is the sole person in charge of coordinating the national biosecurity emergency response. Otherwise conflicting directions or actions might be undertaken during a biosecurity emergency, limiting the effectiveness of the response. This delegations scheme has been established to give the Agriculture Minister access to enough personnel to conduct nation-wide biosecurity activities required to manage the threat or harm posed by an emergency disease or pest as quickly and effectively as possible. When the Agriculture Minister's powers are delegated, they will have restrictions placed upon them to ensure they are exercised appropriately. For example, a national biosecurity emergency to address an animal disease outbreak will require personnel on a national scale to assess risks, undertake activities to manage risks, issue directions, man biosecurity zones and a range of other powers under the Act. The Agriculture Minister can delegate the ability to give a direction about the management of goods or conveyances during a biosecurity emergency to the executive head of a national response agency. The Agriculture Minister can limit this delegation by directing that the power can only be exercised in a biosecurity response zone for the purposes of ensuring that animals affected by the disease are not moved. The executive head can then delegate this power (in its limited form) to employees within its agency, but limit it to relevant people who have the appropriate training or skills to use the power. Particular powers may remain solely with biosecurity officers because they have the requisite training and expertise to exercise them (for example, Chapter 6 powers to assess the level of biosecurity risk associated with goods, a conveyance or a premise). Other powers can be delegated to agencies that have expertise in a particular area that is useful during a biosecurity emergency response (for example, restricting movement). The subdelegation of a power to a biosecurity officer or a biosecurity enforcement officer may state that a restriction specified in the officer's instrument of authorisation does not apply for the purposes of exercising that power. This is to ensure that during a biosecurity emergency response, biosecurity officers and biosecurity enforcement officers can be given additional functions and powers that are usually restricted, but are required during the biosecurity emergency response. A reference to a person performing duties in a national response agency includes a person performing duties under contract, a person performing temporary duties within the agency and volunteers. This is to ensure that all of the resources of the national response agency are available to assist with the biosecurity emergency response if the relevant person has the necessary skills or qualifications. 316

Clause 453 Delegation does not limit other powers This clause provides that a delegation or subdelegation does not affect any other function or power the executive head or national response agency employee is otherwise authorised to perform. This clarifies that being a national response agency does not prevent a Commonwealth body or part of a Commonwealth body from performing its usual functions or activities. Clause 454 Notice may be affixed to goods or a conveyance This clause allows a person exercising powers or functions under a delegation or a subdelegation during a biosecurity emergency, to affix a notice to goods or a conveyance that has been moved, or is the subject of a direction to secure, a direction not to move, deal or interfere with, or any other direction relating to its movement. This notice must state that a biosecurity emergency has been declared, that a direction has been issued in relation to the good or conveyance and that civil penalties apply if a person contravenes the notice. If it is not possible to affix the notice to the goods or conveyance, the person exercising the power may affix the notice as near as reasonably practicable. If a person interferes with, removes or defaces the notice during a biosecurity emergency period, the maximum civil penalty is 120 penalty units. An exception to this offence and civil penalty applies where the person is authorised to do so under the Act or another Australian law, or he or she has been given a direction or permission under the Act. To rely on this exception, the person bears the evidential burden, which means that the person must adduce evidence which points to the fact that he or she was authorised to make the record or disclosure. It will then be up to the prosecution to establish that this exception does not apply. Clause 455 Moving or interfering with goods or conveyance This clause provides that if a person, during a biosecurity emergency period, moves, deals with or interferes with goods or a conveyance that a notice has been affixed to or is affixed near the person commits an offence and is liable to a civil penalty. The penalty for a contravention is up to a maximum of five years imprisonment, or 300 penalty units, or both. The maximum civil penalty is 120 penalty units. An exception to this offence and civil penalty applies where the person is authorised to do so under the Act or another Australian law, or he or she has been given a direction or permission under the Act. To rely on this exception, the person bears the evidential burden, which means that the person must adduce evidence which points to the fact that he or she was authorised to make the record or disclosure. It will then be up to the prosecution to establish that this exception does not apply. The high penalty level reflects the level of threat or harm posed by the declaration disease or pest and the potentially high consequences if a person does not comply with a notice. These powers are required to ensure that national response agency employees are able to assist with a biosecurity emergency response by affixing notices to goods or conveyances restricting their movement so that assessment and biosecurity activities can be conducted to establish the level of biosecurity risk posed and manage any identified biosecurity risks to reduce the threat or harm. 317

Division 5--Exercise of powers during biosecurity emergencies Clause 456 Modification of this Act during biosecurity emergencies During a biosecurity emergency period, Division 5 and Division 6 allow for particular powers under the Act to be exercised in a modified way. Clause 456 clarifies that any modified powers exercised in a biosecurity emergency under these divisions, may also be exercised during a biosecurity emergency period without that modification. This is because some powers do not require the modification in order to be used effectively during a biosecurity emergency and other powers will still be required to manage biosecurity risks unrelated to the declaration disease or pest. Clause 456 also clarifies that any exemptions or modifications made to the Act under clause 650 are not limited by Division 5 or Division 6. For example, if an exemption or modification is made to the Act to allow biosecurity risks to be managed differently in the Torres Strait, these exemptions or modifications will not be limited and continue to operate as they did in a non-emergency period. These exemptions and modifications can continue to operate despite the biosecurity emergency as they will still be required to manage biosecurity risks unrelated to the declaration disease or pest. The application and limitations in clause 311 of Chapter 6 apply to the exercise of a power under Division 5 and Division 6. The application of clause 311 means that powers in these Divisions must not be exercised on goods or conveyances that are subject to biosecurity control or exposed goods in relation to which a biosecurity control order is in force. This is because the relevant powers to deal with these goods or conveyances are located in other provisions of the Act. A biosecurity official must be satisfied of the principles in clause 31 of Chapter 1 before a power is exercised under this Division or Division 6. Clause 457 Biosecurity risk assessment powers This clause allows biosecurity officers to exercise assessment powers contained in Division 3 of Part 2 of Chapter 6 in relation to the declaration disease or pest without having to suspect that a disease or pest may be present on the goods or premises and poses an unacceptable level of biosecurity risk. These risk assessment powers have been modified so that during a biosecurity emergency, a biosecurity officer can exercise risk assessment powers (such as inspecting goods or premises and taking samples) without being required to suspect that the declaration disease or pest is present and assessing the level of biosecurity risk posed. The reduction of the threshold test for this power in an emergency is required to allow biosecurity officers to quickly and effectively monitor biosecurity risks to determine whether they have spread to a new location, assess potential biosecurity risks and determine whether biosecurity measures are required to manage them. This reflects the serious and urgent nature of the threat or harm posed to Australia's local industries, economy and the environment. Clause 458 Application of offences during emergencies This clause allows a person to be liable for criminal as well as civil offences during a biosecurity emergency if he or she contravenes a requirement under a biosecurity assessment 318

power in Division 3 of Part 2 of Chapter 6 in relation to a declaration disease or pest, even if the power is not exercised in accordance with a biosecurity control order or a biosecurity response zone determination. In non-emergency circumstances an offence only applies in Chapter 6 if the power is exercised in accordance with a biosecurity control order or a biosecurity response zone determination. The application of criminal penalties reflects the more serious and urgent nature of the threat or harm posed during a biosecurity emergency period and the possible consequences of non-compliance. Clause 459 Biosecurity control orders--making orders This clause allows the Director of Biosecurity, during a biosecurity emergency period, to make a biosecurity control order under clause 351 in relation to goods and premises if satisfied that measures are necessary to prevent or control the establishment or spread of the declaration disease or pest in Australian territory or a part of Australian territory. This modifies the test in subclause 351(1) of Chapter 6 where a biosecurity officer is required to suspect that a disease or pest is present in or on the goods and the Director of Biosecurity is required to be satisfied that biosecurity measures need to be taken to manage the biosecurity risk posed by the disease or pest. The reduction of the threshold test for this power in a biosecurity emergency is required to allow the Director of Biosecurity to more quickly and effectively implement biosecurity measures if satisfied they are necessary to manage the declaration disease or pest. This reflects the serious and urgent nature of the threat or harm posed to Australia's local industries, economy and the environment. A biosecurity control order can only be made in accordance with this clause if it specifies the declaration disease or pest. This is to ensure that the power is only exercised in a biosecurity emergency for diseases or pests relevant to the biosecurity emergency. The powers specified in a biosecurity control order can be exercised on premises entered without a warrant or consent in accordance with Division 6. Clause 460 Biosecurity control orders--varying orders This clause allows the Director of Biosecurity to vary a biosecurity control order made in a biosecurity emergency period that relates to the declaration disease or pest, if satisfied the powers specified in the order need to be varied to prevent or control the establishment or spread of the declaration disease or pest; or if a power no longer contributes to preventing or controlling the establishment or spread of the declaration disease or pest, or managing the biosecurity risk posed by the declaration disease or pest. The relevant biosecurity control order can be one that is made with or without modifications. This modifies the test in subclause 356(1) of Chapter 6 to link the threshold for varying a biosecurity control order to the declaration disease or pest and managing or preventing the declaration disease or pest from establishing or spreading in Australian territory or part of Australian territory. Clause 461 Biosecurity control orders--revoking orders This clause allows the Director of Biosecurity to revoke a biosecurity control order made in a biosecurity emergency period that relates to the declaration disease or pest if satisfied that the order no longer contributes to preventing or controlling the establishment or spread of the 319

declaration disease or pest, or managing the biosecurity risk posed by the declaration disease or pest. The relevant biosecurity control order can be one that is made with or without modifications. This modifies the test in subclause 357(1) of Chapter 6 where the Director of Biosecurity must revoke a biosecurity control order under these circumstances, making it a discretionary power. This allows the Director of Biosecurity to be more flexible in the response to the emergency disease or pest and reflects the serious and urgent nature of the threat or harm posed to Australia's local industries, economy and the environment. If the biosecurity control order does not cease to be in force earlier, (for example if the three month time limit expires) it ceases to be in force at the end of the biosecurity emergency period, unless that period is extended under clause 442. This ensures that once a biosecurity emergency period has ended, powers can no longer be exercised that are specifically designed to address the threat or harm posed by the emergency circumstances. Clauses 459, 460 and 461 do not prevent biosecurity control orders from being made, varied or revoked under Chapter 6 during a biosecurity emergency period without modification. Clause 462 Modification of Part 4 of Chapter 6 in relation to biosecurity control orders Clause 462 clarifies that the provisions in Part 3 of Chapter 6 apply in relation to a biosecurity control order that is made, varied or revoked, as if a reference to managing the biosecurity risk posed by a disease or pest included a reference to preventing or controlling the establishment of the declaration disease or pest. This ensures that provisions in Part 3 of Chapter 6 relevant to the content, form, notification and the powers that can be exercised apply to these orders during a biosecurity emergency. Clause 463 Biosecurity response zones This clause allows the Director of Biosecurity, during a biosecurity emergency, to determine that a specified area in Australian territory is a biosecurity response zone, if satisfied that it is necessary to make the determination to prevent or control the establishment or spread of the declaration disease or pest in Australian territory or a part of Australian territory. This modifies the test in subclause 363(1) where a biosecurity officer must suspect on reasonable grounds that a disease or pest may be present in or on the goods or premises in the area and pose an unacceptable level of biosecurity risk; and the Director of Biosecurity is satisfied the determination is necessary to manage the biosecurity risk posed by the disease or pest. The reduction of the threshold test for this power in a biosecurity emergency is required to allow the Director of Biosecurity to more quickly and effectively declare a biosecurity response zone and implement biosecurity measures if satisfied they are necessary to manage the declaration disease or pest. This reflects the serious and urgent nature of the threat or harm posed to Australia's local industries, economy and the environment. A biosecurity response zone can only be declared in accordance with this clause if it specifies the declaration pest or disease. This is to ensure that this power is only exercised in a biosecurity emergency for diseases or pests relevant to the biosecurity emergency. This clause also clarifies that the provisions in Part 5 of Chapter 6 apply in relation to a biosecurity response zone that is declared under this clause as if a reference to managing the biosecurity risk posed by a disease or pest included a reference to preventing or controlling 320

the establishment of the declaration disease or pest in Australian territory or a part of Australian territory. This ensures that other relevant provisions in Part 5 of Chapter 6 apply to these declarations during a biosecurity emergency. For example, powers relating to the content of a biosecurity response zone determination and the powers that can be exercised. A biosecurity response zone ceases to be in effect at the end of the biosecurity emergency period, if it was made during the biosecurity emergency period, it relates to the declaration pest or disease and the biosecurity emergency period has not been extended under clause 442. This ensures that once a biosecurity emergency period has ended, powers can no longer be exercised that are specifically designed to address the threat or harm posed by the emergency circumstances. There is nothing to prevent a biosecurity response zone from being declared without modification during a biosecurity emergency period or a biosecurity response zone determination being made in relation to the declaration disease or pest after the emergency period has ceased. Clause 464 Setting traps and setting up equipment and other structures This clause allows a biosecurity officer to set up traps, equipment or other structures, during a biosecurity emergency period, in relation to the declaration pest or disease, without a biosecurity response zone having been determined, for the purpose preventing or controlling the establishment of the declaration disease or pest. This is required to allow widespread activities to monitor for the declaration disease or pest to take place during the biosecurity emergency period more quickly and establish whether the biosecurity risk has spread to a new location or the level of biosecurity risk has increased at an existing location. This will help inform a decision whether other emergency powers need to be exercised to address the threat or harm posed. Civil and criminal offences in clause 374 of Chapter 6 will apply to an unauthorised person who interferes with, removes or defaces the trap, equipment or other structure. Clause 465 Notice requirements during biosecurity emergencies During a biosecurity emergency period, the Director of Biosecurity or a biosecurity officer may give notices or approvals orally, instead of in writing, for the destruction of high-value goods, premises or conveyances; with regard to treatments that may damage goods, conveyances or premises; directions relating to aircraft and vessels, in relation to decontamination and when dealing with abandoned goods or conveyances. This is required to allow the biosecurity risk management activities to occur as quickly as possible during a biosecurity emergency and help reduce the threat or harm posed by the declaration disease or pest. If a person is given an oral notification in accordance with this clause, a written notice must be given to them within 48 hours of an oral notice or approval being given or an oral request being made. This is to ensure that in addition to the oral notification, the relevant person has a written record to inform him or her of exactly what the person is required to do and by when. It also provides physical evidence that the person was notified of the relevant matter. A person who is given notice regarding a treatment that may damage his or her goods, conveyance or premises has seven days from which the first notification was given (whether 321

this was orally or in writing) to notify the Director of Biosecurity in writing if he or she agrees to the treatment of the goods, conveyances or premises. The period has been reduced to seven days during a biosecurity emergency to allow biosecurity risk management activities to occur as quickly as possible and help reduce the threat or harm posed by the declaration disease or pest. All other relevant parts of the clauses above apply, such as the ability to manage serious and urgent biosecurity risks without providing notice. Clause 466 Other biosecurity measures during biosecurity emergencies This clause allows for regulations to be made modifying any regulations made under clause 344 in Chapter 6. This allows any notice provisions contained in the clause 344 regulations to be modified during a biosecurity emergency period, either shortening the notice period or allowing notice to be given orally instead of in writing. This is required to allow biosecurity risk management activities to occur as quickly as possible and help reduce the threat or harm posed by the declaration disease or pest. Clause 467 Merits review during biosecurity emergencies During a biosecurity emergency, a person is not entitled to seek review under the Act or the Administrative Appeals Tribunal Act 1975 of a decision to destroy high value goods under clause 133 or subclause 340(2); a decision requiring a conveyance to be destroyed under clause 209 or subclause 341(2); a decision requiring high value goods or premises to be destroyed under subclause 342(3); or a decision relevant to approving, varying, placing conditions upon, suspending or revoking an approved arrangement (see items 21-30 of the table in subclause 610(1)). This is required to allow these decisions to be implemented and the biosecurity risks addressed as quickly as possible. This reflects the serious and urgent nature of the threat or harm posed to Australia's local industries, economy and the environment. Division 6--Entry to premises without warrant or consent during biosecurity emergencies Clause 468 Biosecurity officer and biosecurity enforcement officers may enter premises without warrant or consent during biosecurity emergencies This clause allows biosecurity officers and biosecurity enforcement officers, during a biosecurity emergency period, to enter any premises for the purposes of exercising biosecurity risk assessment powers under Division 3 of Part 2 of Chapter 6 in relation to the declaration disease or pest; exercising powers in relation to premises or goods for orders made under a modified or unmodified biosecurity control order preventing or controlling the establishment or spread of the declaration disease or pest; exercising powers listed in a modified or unmodified biosecurity response zone determination; or setting up traps, equipment or other structures in accordance with clause 464. In Chapter 6, these powers can only be exercised by a biosecurity officer or biosecurity enforcement officer if the occupier of the premises has consented to the entry or the entry is made under a warrant. In a biosecurity emergency period, there is a nationally significant threat or harm being caused by the declaration disease or pest to Australia's plant health, animal health, the environment or related economic activities. For example, if there was a small foot and mouth 322

disease outbreak lasting three months, it is estimated to cost Australia around $7.1 billion.22 A larger outbreak lasting twelve months it is estimated this would cost $16 billion.23 This creates exceptional circumstances where the use of entry powers is justified without a warrant or consent. The power to enter without a warrant or consent in a biosecurity emergency is required to allow biosecurity officers to quickly enter premises where they suspect the declaration disease or pest may be present, carry out an assessment of the biosecurity risks associated with the declaration pest or disease and then, if required, urgently manage the biosecurity risks associated with them to help reduce the threat or harm posed. Biosecurity officers are only authorised to enter the premises if they suspect on reasonable grounds that the declaration disease or pest may be present in or on the premises or goods on the premises and they are accompanied by a biosecurity enforcement officer for the purposes of assisting in entering the premises and exercising powers. This ensures that access is gained only for the purposes of managing risks associated with the biosecurity emergency and that an officer with the appropriate level of training is establishing entry and using force. Administrative arrangements will be put in place to ensure that senior executive authorisation is given before the power is exercised and there are appropriate reporting requirements. The protections in clause 31 also apply to these powers to ensure its use is necessary and proportionate and does not impact on the person who owns the premises or his or her rights any more than is necessary to manage the level of biosecurity risk posed. For the purposes of this clause, the definition of `premises' includes a conveyance. If the premises are a conveyance, then a biosecurity enforcement officer may stop and detain the conveyance for the purposes outlined above. Clause 469 Modification of Chapter 6 This clause provides that clause 324 of Chapter 6 (relating to expert assistance to operate electronic equipment) applies in relation to a biosecurity enforcement officer who enters premises without a warrant or consent under clause 468, as if the entry were made under a relevant warrant under clause 324 authorising the biosecurity enforcement officer to exercise listed powers. This ensures that the other provisions in clause 324 relating to securing electronic equipment for a particular period and seeking extensions to that period can be exercised by biosecurity enforcement officers as if they had entered the premises without a warrant or consent, which is required to exercise these powers in a non-biosecurity emergency period. Similarly, this clause provides that clause 360 (power to secure goods or premises) applies in relation to a biosecurity officer who enters premises under subclause 468, as if the entry were authorised by clause 359. 22 Ken Matthews AO 2011, A review of Australia's preparedness for the threat of foot-and-mouth disease, Department of Agriculture, Fisheries and Forestry, pp. 100, accessed at: http://www.daff.gov.au/__data/assets/pdf_file/0003/2035065/footandmouth.pdf 23 Ken Matthews AO 2011, A review of Australia's preparedness for the threat of foot-and-mouth disease, Department of Agriculture, Fisheries and Forestry, pp. 100, accessed at: http://www.daff.gov.au/__data/assets/pdf_file/0003/2035065/footandmouth.pdf 323

This ensures that a biosecurity officer can secure goods or premises without the authority of a warrant, in order to manage the biosecurity risks posed by the pest or disease on or in the goods or premises. Clause 470 Entry to adjacent premises without warrant or consent during biosecurity emergencies This clause allows biosecurity officers and biosecurity enforcement officers, during a biosecurity emergency period, to enter premises for the purpose of gaining access to adjacent premises to exercise powers in accordance with clause 468. Biosecurity officers are only authorised to enter the premises if they are accompanied by a biosecurity enforcement officer. This is to ensure that an officer with the appropriate level of training is establishing entry and using force. For the purposes of this clause the definition of `premises' does not include a conveyance. Part 2--Human Biosecurity emergencies Separate emergency powers have been created to address human and animal and plant emergencies. The primary reason for this is to provide for directions and requirements to be specified to give effect to recommendations from the World Health Organization (WHO) under the International Health Regulations (2005) (IHR). Such directions and requirements would rely on the external affairs power of the Constitution in addition to the quarantine power. Clause 471 Guide to this Part This clause provides a concise overview of this Part. Clause 472 Health Minister to exercise human biosecurity emergency powers personally This provision expressly requires the Health Minister to personally exercise powers, preventing the Minister from delegating his/her powers under this Part of the Act. This does not prevent s34AAB of the Acts Interpretation Act 1901 from having effect, allowing other Ministers or members of the Executive Council from exercising the powers under this Part. Clause 473 Governor-General may declare that a human biosecurity emergency exists This provision permits the Governor-General to declare an emergency on the recommendation of the Health Minister. In making this recommendation, the Health Minister must be satisfied that: (a) A listed human disease is posing a severe and immediate threat, or is causing harm, to human health on a nationally significant scale; and (b) The proposed declaration is necessary to control, reduce or remove the threat or harm. Any human biosecurity emergency declaration must specify the Listed Human Disease to which it relates, and specify the period in which the emergency declaration is in force. In the event that a new disease has emerged, the Director of Human Biosecurity would first be required to declare the disease to be a Listed Human Disease. Once this has occurred, the Health Minister must consider the tests above and, if satisfied they have been met, make a 324

recommendation to the Governor-General. A human biosecurity emergency declaration must also specify the nature of the emergency and the conditions which gave rise to it. The period of a human biosecurity emergency declaration must be no longer than is necessary to control, reduce or remove the threat or harm, and in any case the declaration must not be more than 3 months. If a human biosecurity emergency declaration is no longer required, the Governor-General may vary or revoke the declaration using s33(3) of the Acts Interpretation Act 1901. Clause 474 Governor-General may extend a human biosecurity emergency period This provision permits the Governor-General to extend the human biosecurity emergency period for up to three months, if recommended to do so by the Health Minister. In making this recommendation, the Health Minister must reconsider the tests in clause 473 and continue to be satisfied that the declaration of the human biosecurity emergency is necessary. The Governor-General may extend the emergency period more than once. Clause 475 Health minister may determine emergency requirements during a human biosecurity emergency period This provision permits the Health Minister to set requirements to respond to a human biosecurity emergency. The Health Minister must be satisfied that the proposed requirements are necessary to: (a) control, reduce or remove the threat of harm posed by a Listed Human Disease; (b) prevent or control the spread of disease to another country; or (c) give effect to a recommendation given by the WHO under Part III of the IHR. This power allows the Health Minister to set a requirement that applies to a class of people, goods or conveyances, to manage the disease risk. This would allow, for example, the Health Minister, to determine requirements that apply to people, goods or conveyances entering or leaving a specified place; restrict or prevent the movement of people, goods or conveyances between specified places; or require a specified place to be evacuated. In addition, the Health Minister may set requirements to ensure that Australia does not facilitate the spread of a Listed Human Disease to neighbouring countries. The Director-General of the WHO may issue temporary recommendations under Part III of the IHR, if it is determined that a public health emergency of international concern is occurring. This determination is made according to Articles 12 and 49, and using the decision tool in Annex 2 of the IHR. The criteria to be considered by the Director-General when issuing temporary recommendations are outlined in Article 17, and measures which may be included in a temporary recommendation are listed in Article 18. This power allows the Health Minister to implement temporary recommendations made under Article 15 of the IHR. These recommendations comprise health measures to prevent or reduce the international spread of disease. Health measures are defined by the IHR to be measures applied to prevent the spread of disease or contamination, but do not include law enforcement or security measures. Any requirements set by the Health Minister must not require individuals to be subject to the types of measures that may be included in a Human Biosecurity Control Order (HBCO). If an 325

individual poses a human health risk these measures must still be applied using a HBCO, and the associated protection of civil rights, and rights to seek review, would continue to apply. Clause 476 Health Minister may give directions during human biosecurity emergency period This provision permits the Health Minister to give a direction to any person to respond to human biosecurity emergency. In giving the direction, the Health Minister must be satisfied that the proposed direction is necessary: (a) to control, reduce or remove the threat of harm posed by a listed human disease; (b) to prevent or control the spread of disease to another country; or (c) to give effect to a recommendation given by the WHO. This would allow the Health Minister to give a direction to a person who is in a position to give effect to the requirements in clause 473, such as direct a person in charge to close specified places or prevent public access to specified places. Directions must not be given to State and Territory employees unless an agreement is in place between the Commonwealth and the states and territories, and any directions given must be in accordance with that agreement. This power is for the large scale direction of people during an emergency, rather than for the management of individuals. As in clause 473, any directions that are given by the Health Minister must not require individuals to be subject to the types of measures that may be included in a HBCO. Clause 477 Person must comply with Ministerial Direction This provision sets the penalty for individuals failing to comply with a Ministerial direction or requirement under clauses 475 and 476. 326

Chapter 9--Powers related to ensuring compliance with this Act Part 1--Monitoring Division 1--Introduction Clause 478 Guide to this Part This clause provides an overview of Part 1 of Chapter 9, which allows a biosecurity enforcement officer to monitor whether the Act has been, or is being, complied with. Key provisions include the ability to enter premises by consent or with a warrant and monitoring powers. This clause also outlines that a biosecurity enforcement officer may be assisted by other persons in exercising powers under this Part and that Chapter 10 contains the rules for obtaining a monitoring warrant, and the obligations and powers of biosecurity enforcement officers in entering premises under a monitoring warrant or with consent. Division 2--Monitoring Clause 479 Biosecurity enforcement officer may enter premises by consent or under a warrant This clause allows biosecurity enforcement officers to enter any premises to exercise monitoring powers for the purpose of determining whether the Act has been or is being complied with or to determine whether information provided for the purposes of the Act is correct, or both. Monitoring powers are set out in clauses 480, 481 and 483 below. A biosecurity enforcement officer is not authorised to enter premises unless the occupier has consented to the entry, or where the entry is made under a monitoring warrant. In entering a premise with the consent of the occupier, the officer must show his or her identity card if requested by the occupier. Requiring the biosecurity enforcement officer to show his or her identification card is intended to assure the occupier of the correct identity and authorisation of the officer. A monitoring warrant may only be exercised in relation to premises that are an aircraft or vessel if the aircraft or vessel is at a landing place or port in Australian territory (see clause 496). If a biosecurity enforcement officer enters premises with the consent of the occupier to exercise powers in accordance with clause 480, the officer and any person assisting the officer must leave the premises if the occupier withdraws their consent (see clause 517). If consent is not given by the occupier or is withdrawn, entry to the premises will need to occur under a monitoring warrant (see clause 510). Biosecurity enforcement officers may also carry out monitoring powers on relevant premises as outlined in clause 499 below. Clause 480 Monitoring powers of biosecurity enforcement officers This clause outlines the monitoring powers that biosecurity enforcement officers may exercise if they enter premises under clause 479. The powers include: the power to search the premises and any thing on the premises the power to examine or observe any activity conducted on the premises the power to inspect, examine, take measurements of or conduct tests on any thing on the premises 327

the power to make any still or moving image or any recording of the premises or any thing on the premises the power to inspect any document on the premises the power to take extracts from, or make copies of, any such document the power to take onto the premises such equipment and materials as the biosecurity enforcement officer requires for the purpose of exercising powers in relation to the premises the power to sample any thing on the premises, or the powers set out in subclauses 481(1) and (3) and 483(2). These powers are required to enable a biosecurity enforcement officer to determine whether the Act has been or is being complied with or to determine whether information provided for the purpose of the Act is correct. If the Act is not being complied with or incorrect information is provided, this may indicate there is an increased level of biosecurity risk associated with the relevant activities. Monitoring powers will enable biosecurity officials to take quick and effective action to manage any such risks if they are discovered. This clause links to the objectives of the Bill (clause 4) by allowing monitoring to take place in order to identify and manage biosecurity risks. Clause 481 Operating electronic equipment This clause provides for biosecurity enforcement officers to operate electronic equipment on premises under clause 479 and use a disk, tape or other storage device that is on the premises and can be used with the equipment or is associated with it. If any relevant data is found on the electronic equipment, a biosecurity officer can exercise the particular powers. `Relevant data' is data that is relevant to determining whether the Act has been or is being complied with, or determining whether information provided for the purposes of the Act is correct. The ability to access relevant data is required to assist with the early detection and management of biosecurity risks that may result from non-compliance with the Act. Powers can be exercised by biosecurity enforcement officers to: operate electronic equipment on the premises to put relevant data into documentary form and remove the documents so produced from the premises, or operate electronic equipment on the premises to transfer the relevant data onto a disk, tape or other storage device (that is brought to the premises for the exercise of the power or is on the premises and the use of which for that purpose has been agreed in writing by the occupier of the premises) and remove the disk, tape or other storage device from the premises. A biosecurity enforcement officer may only operate electronic equipment as outlined above if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment. This ensures that officers take due care with equipment that is likely to be valuable to the occupier of the premises when obtaining the information required to effectively assess biosecurity risks. If a biosecurity enforcement officer causes damage to electronic equipment, clause 533 outlines the circumstances when the Commonwealth is liable to pay compensation. 328

Clause 482 Expert assistance to operate electronic equipment This clause gives a biosecurity enforcement officer the power to secure electronic equipment if he or she has entered premises under a monitoring warrant and suspects on reasonable grounds that: there is relevant data on the premises the relevant data may be accessible by operating the equipment expert assistance is required to operate the equipment, and the relevant data may be destroyed, altered or otherwise interfered with if action to secure the equipment is not taken. The equipment may be secured by locking it up, placing a guard or any other means. This allows a biosecurity enforcement officer to secure equipment that may have relevant information on it, but requires a person with a higher level of expertise than that officer to access it. The equipment may then be secured for up to 24 hours, or until it has been operated by an expert, whichever occurs earlier. This ensures that the equipment is only secured and the occupier inconvenienced for as long as is necessary to obtain the relevant information. The 24 hour period gives the biosecurity enforcement officer time to locate an expert and for that expert to access the information. The biosecurity enforcement officer must give notice to the occupier of the premises, or another person who apparently represents the occupier, of his or her intention to secure the equipment and the fact that it may be secured for up to 24 hours. This ensures that the occupier of the premises is informed about what actions are being taken with regard to their property and relevant timeframes. The biosecurity enforcement officer may apply to an issuing officer for an extension of the 24 hour period, if the officer believes on reasonable grounds that the equipment needs to be secured for longer than 24 hours. Before making an application for an extension of time, the biosecurity enforcement officer must give notice to the occupier of the premises or another person who apparently represents the occupier of his or her intention to apply for an extension. The occupier or other person is entitled to be heard in relation to that application. The 24 hour period may be extended more than once. An extension to the 24 hour period is intended to give the biosecurity enforcement officer more time to locate an expert and for that expert to access the information if it is required. Allowing the occupier a chance to be heard in relation to an application ensures procedural fairness by allowing the occupier to provide information that might be relevant to the issuing officer's final decision. Clause 483 Securing evidence of the contravention of a related provision This clause gives biosecurity enforcement officers the power to secure evidence of a related contravention when the officer enters premises under a monitoring warrant. A biosecurity enforcement officer can secure a thing for a period not exceeding 24 hours if the thing is found during the exercise of monitoring powers on the premises and the biosecurity enforcement officer believes on reasonable grounds that: a related provision has been contravened with respect to the thing the thing affords evidence of the contravention of a related provision; or 329

the thing is intended to be used for the purpose of contravening a related provision. The term `related provisions' refers to other provisions of the Act that can be contravened. For example, a biosecurity enforcement officer may be entering for the purpose of monitoring whether the conditions listed in the conditionally non-prohibited goods determination have been complied with and the officer locates goods that the officer suspects to be prohibited goods (see Chapter 3 for further discussion of prohibited goods). This clause allows the officer to secure the prohibited goods until the appropriate action can be taken (for example, another warrant can be issued). The biosecurity enforcement officer must also believe on reasonable grounds that it is necessary to secure the thing to prevent it from being concealed, lost or destroyed and it is necessary to secure the thing without a warrant because the circumstances are serious and urgent. This is intended to give officers sufficient time to get appropriate authority to deal with the material, for example, by obtaining a warrant. The biosecurity enforcement officer may also apply to an issuing officer for an extension of the 24 hour period if the officer believes on reasonable grounds that the equipment needs to be secured for longer than 24 hours. Before making an application for an extension of time the biosecurity enforcement officer must give notice to the occupier of the premises or another person who apparently represents the occupier of their intention to apply for the extension. The occupier or other person is entitled to be heard in relation to the application. The 24 hour period may be extended more than once. An extension to the 24 hour period is intended to give the biosecurity enforcement officer more time to gain the appropriate authority. Allowing the occupier a chance to be heard in relation to an application ensures procedural fairness by allowing the occupier to provide information that might be relevant to the issuing officer's final decision. The provisions of this Part relating to the issue of monitoring warrant apply to the issue of an extension, with such modifications as are necessary. Part 2--Investigation Division 1--Introduction Clause 484 Guide to this Part This clause provides an overview of the Part 2 of Chapter 9, which allows a biosecurity enforcement officer to gather material that relates to the contravention of offences and civil penalty provisions. Key powers include the ability to enter premises under consent or with a warrant and the ability to exercise investigation powers. This clause also outlines that a biosecurity enforcement officer may be assisted by other persons in exercising powers under this Part and that Chapter 10 contains the rules for obtaining an investigation warrant, and the obligations and powers of biosecurity enforcement officers in entering premises under an investigation warrant or with consent. 330

Division 2--Investigation powers Clause 485 Biosecurity enforcement officer may enter premises by consent or under a warrant This clause gives biosecurity enforcement officers the power to enter premises and exercise investigation powers, if the officer has reasonable grounds for suspecting that there may be evidential material on the premises. The investigation powers are set out in clauses 486, 487 and 489 below. An investigation warrant may only be exercised in relation to premises that are an aircraft or vessel if the aircraft or vessel is at a landing place or port in Australian territory (see clause 496). A biosecurity enforcement officer is not authorised to enter premises unless the occupier of the premises has consented to the entry, or the entry is made under an investigation warrant. In entering premises with the consent of the occupier, the officer must show his or her identity card if requested by the occupier. This is intended to assure an occupier of the correct identity and authorisation of the officer. If a biosecurity enforcement officer has entered premises with the consent of the occupier, the officer and any person assisting the officer must leave the premises if the occupier withdraws their consent (see clause 517). If consent is not given or is withdrawn, entry to the premises will need to occur under an investigation warrant (see clause 510). Biosecurity enforcement officers may also carry out offence related search and seizure powers on relevant premises as outlined in clause 500. Clause 486 Investigation powers of biosecurity enforcement officers This clause outlines investigation powers that biosecurity enforcement officers may exercise in relation to premises they enter under clause 485. The powers include: if entry to the premises is with the occupier's consent the power to search the premises and any thing on the premises for the evidential material the biosecurity enforcement officer has reasonable grounds for suspecting may be on the premises if entry to the premises is under an investigation warrant the power to search the premises and any thing on the premises for the kind of evidential material specified in the warrant, and the power to seize evidential material of that kind if the biosecurity enforcement officer finds it on the premises the power to inspect, examine, take measurements of or conduct tests on evidential material the power to make any still or moving image or any recording of the premises or evidential material the power to take onto the premises such equipment and materials as the biosecurity enforcement officer requires for the purpose of exercising powers in relation to the premises the power to sample any thing on the premises, and the powers set out in subclauses 487(1) and (2) and clause 489. These powers are intended to enable the biosecurity enforcement officer to search for any evidential material that may be on the premises, inspect, examine, undertake tests upon or record that material and the power to take samples. 331

Clause 487 Operating electronic equipment This clause gives a biosecurity enforcement officer investigation powers to operate electronic equipment on premises entered under clause 485 and use a disk, tape or other storage device that is on the premises and can be used with the equipment or is associated with it if the officer has reasonable grounds to believe they contain evidential material. The ability to access relevant data is required to assist with the early detection and management of biosecurity risks that may result from non-compliance with the Act. In relation to evidential material found in the exercise of investigation powers, biosecurity enforcement officers will also have the power to: if the entry to the premises is under an investigation warrant--seize the equipment and the disk, tape or other storage device in any case--operate electronic equipment on the premises to put relevant data in documentary form and remove the documents so produced from the premises, and operate electronic equipment on the premises to transfer the relevant data onto a disk, tape or other storage device (that is brought to the premises for the exercise of the power or is on the premises and the use of which for that purpose has been agreed in writing by the occupier of the premises) and remove the disk, tape or other storage device from the premises. A biosecurity enforcement officer may only operate electronic equipment as outlined above if he or she believes on reasonable grounds that operation of the equipment can be carried out without damage to the equipment. This ensures that officers take due care with equipment that is likely to be valuable to the occupier of the premises when obtaining the information required. If a biosecurity enforcement officer does damage to electronic equipment, clause 533 outlines the circumstances when the Commonwealth is liable to pay compensation. A biosecurity enforcement officer can only seize equipment, disc, tape or other storage device if it is not practical to put the evidential material in documentary form or to transfer it; or if possession of the equipment, disc, tape or other storage device could constitute an offence against a law of the Commonwealth. Clause 488 Expert assistance to operate electronic equipment This clause applies if a biosecurity enforcement officer enters premises under an investigation warrant to search for evidential material. The biosecurity enforcement officer may secure any electronic equipment that is on the premises if the officer suspects on reasonable grounds that: there is evidential material of the kind specified in the warrant on the premises the evidential material may be accessible by operating the equipment that expert assistance is required to operate the equipment, and that the evidential material may be destroyed, altered or interfered with if action to secure the equipment is not taken. The equipment may be secured by locking it up, placing a guard or any other means. This allows a biosecurity enforcement officer to secure equipment that may have relevant information on it, but requires a person with a higher level of expertise than that officer to access it. 332

The biosecurity enforcement officer must give notice to the occupier, or another person who apparently represents the occupier, of his or her intention to secure the equipment and the fact that the equipment may be secured for up to 24 hours. This ensures that the occupier of the premises is informed about what actions are being taken with regard to their property and relevant timeframes. The equipment may be secured for up to 24 hours, or until it has been operated by an expert, whichever occurs earlier. This ensures that the equipment is only secured and the occupier inconvenienced for as long as is necessary to obtain the relevant information. The biosecurity enforcement officer may also apply to an issuing officer for an extension of the 24 hour period if the officer believes on reasonable grounds that the equipment needs to be secured for longer than 24 hours. Before making an application for an extension of time the biosecurity enforcement officer must give notice to the occupier of the premises or another person who apparently represents the occupier of the officer's intention to apply for an extension. The occupier or other person is entitled to be heard in relation to the application. The 24 hour period may be extended more than once. An extension to the 24 hour period is intended to give the biosecurity enforcement officer more time to locate an expert and for that expert to access the information if it is required. Allowing the occupier a chance to be heard in relation to an application ensures procedural fairness by allowing the occupier to provide information that might be relevant to the issuing officer's final decision. The provisions of this Part relating to the issue of investigation warrants apply to the issue of an extension, with such modifications as are necessary. Clause 489 Seizing evidence of related provision This clause gives biosecurity enforcement officers who enter premises under an investigation warrant the power to seize a thing that is not evidential material of the kind specified in the warrant if--in the course of searching for evidential material specified in the warrant--the biosecurity enforcement officer finds the thing and the officer believes on reasonable grounds that: a related provision has been contravened with respect to the thing the thing is evidence of the contravention of a related provision, or the thing is intended to be used for the purpose of contravening a related provision. The term `related provisions' refers to other provisions of the Act that can be contravened. For example, a biosecurity enforcement officer may entering for the purpose of investigating suspected contravention of conditions listed in the conditionally non-prohibited goods determination and the officer identifies goods that he or she suspects to be prohibited goods (see Chapter 3 for further discussion of prohibited goods). This clause allows the officer to seize the prohibited goods. The biosecurity enforcement officer must believe on reasonable grounds that it is necessary to seize the thing in order to prevent it from being concealed, lost or destroyed. The ability to seize a thing that is not evidential material of the kind specified in the warrant allows officers to ensure that the thing will not be used for further contravention of a related provision of the Act and that it may be used as evidence. 333

Division 3--General provisions relating to seizure Clause 490 Copies of seized things to be provided This clause applies if an investigation warrant is being executed in relation to the premises and a biosecurity enforcement officer seizes one or more of the following from the premises: a document, film, computer file or other things that can be readily copied, or a storage device, the information in which can be readily copied. The occupier of the premises, or a person who apparently represents the occupier and is present during the execution of the warrant, may request the biosecurity enforcement officer give them a copy of the thing or the information. The biosecurity officer must comply with that request as soon as practicable after the seizure. Providing copies of things seized to the person who requested the copies allows the person to continue to conduct any work that involves the thing or information seized. For example, if information seized is relevant to the running of the business, providing a copy of that information will allow the continued running of the business with minimal interruption. The biosecurity enforcement officer is not required to comply with a request if possession of the thing or information would constitute an offence against a law of the Commonwealth. This could be when biosecurity enforcement officers are searching for evidence of non-compliance with the Act and come across electronic files that constitute an offence against a Commonwealth law, such as details of how to illegally import biological agents for purposes contravening Commonwealth law. Clause 491 Receipts for seized things This clause provides that a biosecurity enforcement officer is required to provide a receipt for any thing seized under Part 2 of this Chapter. One receipt may cover two or more things seized. A receipt allows a person who has had something seized to know exactly what has been seized and gives them a written record. It will also assist the person keep track of when the thing is returned or disposed of. This will allow the person to conduct his or her business without that thing and make alternative plans if required. Clause 492 Return of seized things This clause requires the Director of Biosecurity to take reasonable steps to return things seized under this Part when the earliest of the following happens: the reason for the thing's seizure no longer exists it is decided that the thing seized is not to be used in evidence, or the period of 60 days after the thing's seizure ends. Placing this requirement on the Director of Biosecurity ensures that seized items are held for no longer than is necessary and then returned. There are many reasons why a person may need things to be returned, such as requiring the item that was seized for the effective running of a business (for example, a computer with records from the business). The requirement of the Director of Biosecurity to take reasonable steps to return a thing is subject to any contrary order of a court and does not apply if the thing is forfeited or forfeitable to the Commonwealth or there is a dispute as to the ownership of the thing. 334

The Director of Biosecurity is not required to return a thing within a period of 60 days if: proceedings in respect of with the thing may afford evidence were instituted before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings) the thing may continue to be retained because of an order under clause 493 (issuing officer permitting the retention of a thing), or the Commonwealth or the Director of Biosecurity is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy, dispose of or otherwise deal with the thing. Under subclause (4) a thing that is required to be returned under this clause must be returned to the person from whom it was seized, or to the owner if that person is not entitled to possess it. Clause 493 Issuing officer may permit a thing to be retained This clause provides for the Director of Biosecurity to apply to an issuing officer for an order permitting a thing seized under this Division to be retained for a further period, if proceedings in which the thing may afford evidence have not commenced within 60 days of the thing being seized or have not commenced before the end of a period previously specified in an order of an issuing officer under this clause. Before making an application, the Director of Biosecurity must take reasonable steps to discover who has an interest in the retention of the thing; and, if it is practicable to do so, notify each person whom he or she believes to have such an interest of the proposed application. Informing such persons that the thing will be retained ensures that the interested persons are aware they will not receive the thing back in the timeframe outlined under clause 492. The issuing officer may order that the thing can continue to be retained for a specified period if he or she is satisfied that it is necessary for the thing to continue to be retained: for the purposes of an investigation as to whether a provision of this Act has been contravened for the purposes of an investigation as to whether a related provision has been contravened, or to enable evidence of a contravention mentioned above to be secured for the purposes of a prosecution or an action to obtain a civil penalty order. The period specified in subclause (3) must not exceed 3 years. This is sufficient time for court proceeding to start in relation to the thing. Clause 494 Disposal of things This clause allows the Director of Biosecurity to dispose of a thing seized under this Part if: the Director of Biosecurity has taken reasonable steps to return the thing to a person, and either: the Director of Biosecurity has been unable to locate the person, or the person has refused to take possession of the thing. 335

The Director of Biosecurity may then dispose of the thing in such a manner the Director of Biosecurity thinks appropriate. This ensures that seized things do not have to be retained indefinitely while a person is located or after a person has refused to take possession. Part 3--General provisions relating to monitoring and investigation Clause 495 Biosecurity enforcement officer may ask questions and seek production of documents This clause applies if a biosecurity enforcement officer enters premises under clause 479 (monitoring powers) for the purpose of determining if the Act has been, or is being complied with, to determine whether information provided for the purposes of the Act is correct or for the purposes of searching for evidential material under clause 485 (investigation powers). If entry is authorised because the occupier of the premises consented, a biosecurity enforcement officer may require the occupier to answer questions or produce documents relating to the operation of the Act, relevant to determining whether information provided for the purposes of the Act is correct or relating to evidential material. If the entry is authorised by a monitoring or investigation warrant, a biosecurity enforcement officer may require any person on the premises to answer questions or produce documents relating to the operation of the Act, relevant to determining whether information provided for the purposes of the Act is correct or relating to evidential material. If entry was authorised by a monitoring warrant or an investigation warrant, a person commits an offence if they fail to answer questions or produce documents when required to do so. The maximum penalty for not answering questions or producing documents in the above circumstance is 30 penalty units. There is no penalty for not answering a question or producing a document if entry to the premises was by consent, giving the occupier the protection of not being required to meet the same stringent conditions if a warrant has been issued. If an individual does not answer a question or produce a document after giving a biosecurity enforcement officer consent to enter, that officer may then apply for a warrant to obtain the information. This clause is not subject to the privilege against self-incrimination as the public benefit of abrogating the privilege against self-incrimination is high. Abrogation of the privilege will ensure biosecurity enforcement officers have access to information that could include evidence of non-compliance with the Act, allowing the more effective management of any associated biosecurity risks. For example a biosecurity enforcement officer may ask a particular person, who is the only person with the knowledge, about goods with a high biosecurity risk suspected to be located at a premise. That person is likely to have vital information that will assist the officers to find the high risk goods, assess the exact level of risk, ask questions to determine whether the occupier is permitted to have the goods and determine if risks in relation to the goods are being effectively managed. Harm to the individual is minimised by the protection afforded to that individual under clause 661. Clause 496 When warrant can be executed on aircraft and vessels This clause provides that a monitoring or investigation warrant may only be executed in relation to premises that are an aircraft or vessel if the aircraft or vessel is at a port or landing 336

place in Australian territory. For clarity, a vessel waiting to arrive at port is taken to be at a port. This is to ensure that warrants may not be exercised on aircraft that are in flight or vessels that are at sea and potentially compromise the safety of persons on board. Part 4--Monitoring, searching and accessing certain premises Division 1--Introduction Clause 497 Guide to this Part This clause provides an overview of Part 4 of Chapter 9, which allows a biosecurity enforcement officer to enter and exercise monitoring and investigation powers at an approved arrangement premises or first point of entry. Officer can also enter premises, by consent or under warrant, for the purposes of accessing other premises. This clause also outlines that a biosecurity enforcement officer may be assisted by other persons in exercising powers under this Part and that Chapter 10 contains the rules for obtaining an adjacent premises warrant, and the obligations and powers of biosecurity enforcement officers in entering premises under an adjacent premises warrant or with consent. Division 2--Monitoring and searching certain premises Clause 498 Meaning of relevant premises This clause defines relevant premises as premises at which biosecurity activities are carried out by a biosecurity industry participant covered by an approved arrangement and any place (such as a port or landing place) determined to be a first point of entry. Powers in Division 2 of Part 4 of this Chapter only apply in relation to relevant premises. Clause 499 Monitoring premises This clause provides that a biosecurity enforcement officer may enter relevant premises without a warrant or consent to determine whether the Act has been, or is being complied with; that information supplied for the purposes of the Act is correct or in deciding whether to exercise a power under the Act. If the relevant premises are a conveyance the officer may stop and detain the conveyance for the purposes of exercising a monitoring power. Biosecurity enforcement officers may enter premises during normal business hours. If monitoring activities are to occur outside of these times, then a warrant will have to be sought and obtained for entry (see Part 1 of this Chapter). Powers exercised on the premises, such as those in Part 1, along with the provisions listed in subclause (3), can be exercised as if the entry was made under a monitoring warrant. This subclause ensures that protections included in the monitoring warrant and the other provisions listed, including that announcement before entry be made and details of the warrant are given, are afforded to persons to which this Part will apply. Relevant premises relate to an approved arrangement where consent to entry is implied by the voluntary nature of the arrangement (and are likely to be a condition of the approved arrangement) and first point of entry premises where stakeholders affected will be informed of this power through the public release of a determination by the Director of Biosecurity or the Director of Human Biosecurity establishing a place to be a first point of entry. The power to enter premises without a warrant is limited to these places to ensure they only apply to persons who have previously been made aware of the powers. 337

Clause 500 Offence-related searches and seizures This clause gives biosecurity enforcement officers the power to enter relevant premises without consent or a warrant if the officer has reasonable grounds to suspect that there may particular evidential material on the premises. Biosecurity enforcement officers may enter these premises at any time. The ability to enter the relevant premises at any time is necessary in order to prevent the concealment or destruction of evidence that a biosecurity enforcement officer suspects to be on the premises. If the relevant premise is a conveyance the officer may stop and detain the conveyance. Entry for the purposes of this provision is limited to relevant premises and includes the same justification as outlined in clause 499 above. Powers exercised on the premises, such as those in Part 2 along with the provisions listed in subclause (4), are to be done so as if the entry was made under an investigation warrant. This subclause ensures that protections included in the investigation warrant and the other provisions listed, including that announcement before entry be made and details of the warrant are given, are afforded to persons in which this Part will apply. Division 3--Entering premises to gain access to adjacent premises Clause 501 Meaning of premises This clause provides that the definition of premises in this Division does not include a conveyance (that is, does not include aircraft, vessels, vehicles trains etc). Clause 502 Entering adjacent premises to gain access to other premises This clause provides that biosecurity enforcement officers may enter any adjacent premises if it is necessary to do so for the purpose of gaining access to other premises to perform functions or exercise powers or to accompanying a biosecurity officer or other person who needs to gain access to other premises to perform functions or exercise powers under or for the purposes of the Act. This may occur if the biosecurity enforcement officer, a biosecurity officer, or another person needs to exercise powers or perform functions in a premise that can only be accessed via the adjacent premises (for example, a biosecurity enforcement officer needs to check compliance with the Act at a particular warehouse, but the only access to that warehouse is through the driveway adjacent to it). Subclause (2) provides that the biosecurity enforcement officer is not authorised to enter premises under subclause (1), unless the occupier of the premises has consented to the entry and the biosecurity enforcement officer has shown his or her identity card if required by the occupier, or entry is made under an entry warrant. If entry is made with consent of the occupier, the biosecurity enforcement officer must immediately leave the premises if this consent is revoked. The ability to revoke consent and have an officer leave the premises ensures the occupier's right to privacy is adequately protected. If a biosecurity officer or other person needs to enter adjacent premises in order to gain access to other premises for the above purposes, the officer may only do so if he or she is accompanied by a biosecurity enforcement officer who is authorised to access the premises 338

under subclause (1). This ensures that an officer with the appropriate level of training is establishing entry and using force if required. Clause 503 Application for entry warrant This clause provides that a biosecurity enforcement officer or biosecurity officer who enters premises under an adjacent premises warrant must take reasonable steps to ensure that they cause as little inconvenience as possible to the occupier of the premises. Part 5--Miscellaneous Division 1--Introduction Clause 504 Guide to this Part This clause provides an overview of Part 6 of Chapter 9 and provisions that allow the Director of Biosecurity or the Director of Human Biosecurity to determine whether a person is a fit and proper person for the purposes of relevant decision-making under the Act. Division 2--Fit and proper person test Clause 505 Fit and proper person test This clause provides for the determination of whether a person is a fit and proper person for the purposes of the following: clause 175 - granting an import permit clause 404 - deciding whether to approve a proposed arrangement clause 411 - varying an approved arrangement clause 416 - suspending an approved arrangement clause 421 - revoking an approved arrangement, or any other provision of the Act prescribed by the regulations. If the Director of Biosecurity of Director of Human Biosecurity determines that a person is not a fit and proper person under this clause, the Director may refuse to grant a permit; refuse to approve a proposed arrangement; or vary, suspend or revoke an arrangement. In determining whether a person is a fit and proper person, the Director of Biosecurity, or the Director of Human Biosecurity, must have regard to the following matters: whether the person has been convicted of an offence against, or ordered to pay a pecuniary penalty under any of the following Acts: this Act the Quarantine Act 1908 the Customs Act 1901 any other Act of the Commonwealth, a State or a Territory that is prescribed by the regulations the Criminal Code or the Crimes Act 1914, to the extent that it relates to any Act referred to in this paragraph whether a debt is due and payable by a person to the Commonwealth under any Act referred to above whether the person has been refused an application for an approved arrangement under clause 404 of this Act or a quarantine approved premise under section 46A of the Quarantine Act 1908 339

whether an approval of the person for an approved arrangement has been revoked or suspended under Part 4 or 5 of Chapter 7 of this Act whether an approval of the person has been revoked or suspended under subsection 46A(9) of the Quarantine Act 1908, and whether an agreement of the person has been cancelled under subsection 66B(3) of the Quarantine Act 1908; or any other relevant matter. These matters will assist the relevant Director in determining whether the person is a fit and proper person for the purposes of the Act and suitable to be granted a permit or to enter into an arrangement with the Commonwealth for the management of biosecurity risks. This is important because such a person might be involved in the importation of high risk goods or be approved to undertake activities to manage their own biosecurity risks with oversight by the Commonwealth. Nothing in this clause affects the operation of Part VIIC of the Crimes Act 1914 which allows, in certain circumstances, that the person does not need to disclose spent convictions and requires persons who are aware of the spent convictions to disregard them. The fit and proper persons test allows the Director of Biosecurity, and the Director of Human Biosecurity, to ensure that persons performing particular activities under the Act are fit and proper persons to be doing so. An import permit or an approved arrangement is a privilege rather than a right and means that the person is allowed to do certain things the general public are not allowed to do. It is important that such persons are considered fit and proper to be able to conduct these activities and there is no reason to believe that the person will not operate within the scope of their approval or adhere to any conditions or requirements that are placed upon it. Division 3--Personal information for applications Clause 506 Personal information for applications This clause provides that the Director of Biosecurity can, by legislative instrument, specify kinds of personal information that are required to be provided with an application made under any of the following provisions: clause 174 - application for a permit clause 403 - approval of a proposed arrangement, or any other provision prescribed by the regulations. This is intended to work in conjunction with the fit and proper persons test by allowing the Director of Biosecurity to require information that will allow a person's identity and other details to be confirmed. This will help prevent persons from pretending to be another person in order to gain an import permit or an approved arrangement and therefore assist in the reduction of biosecurity risks by helping to ensure persons who would normally be denied an import permit or approved arrangement do not obtain one under another name. The types of personal information required to be provided by the applicant will be outlined by legislative instrument. Information required and received for the purposes of this clause is subject to the confidentiality of information clauses in Part 2 of Chapter 13. An application is taken not to have been made is the personal information specified is not provided with the application. This is to ensure that the relevant Director receives a complete 340

application that can be considered, without having to halt the approval process while requesting that all of the required information is provided. This is particularly important for an approved arrangement application, which must be considered and approved or not approved by the relevant Director within a timeframe specified in the regulations. Division 4--Civil penalty provisions for false and misleading information or documents Clause 507 Civil penalty provision for false or misleading information Clause 508 Civil penalty provision for false or misleading documents These clauses provide that a person is liable to a maximum civil penalty of 60 penalty units if person knowingly provides false and misleading information or documents in compliance or purported compliance with the Act. The person is also liable to the same civil penalty if he or she omits any matter or thing without which the information is misleading. A person is not liable for a civil penalty if the information that he or she provides is not false or misleading in a material particular. This means that a person will not be liable for providing false or misleading information which is trivial or inconsequential. An exception also applies if person omitted information but the exclusion of that information did not result in the overall information being misleading in a material particular. A person is also not liable if the person gave information to another person (the official, such as a biosecurity officer or other official) and they do not take reasonable steps to inform the person that they may be liable to a civil penalty before they provide information. A person providing documents is not liable to the civil penalty if they provide documents that are not false or misleading in a material particular. A person is also not liable if the person produces a document that is signed by the person, (or in the case of a body corporate, a competent officer of the body corporate), stating that to their knowledge the document is false or misleading in a material particular and setting out the information in the document that is to their knowledge false or misleading. To rely on the above exceptions, the person bears the evidential burden, which means that the person must adduce evidence which points to the fact that he or she was authorised to make the record or disclosure. It will then be up to the prosecution to establish that this exception does not apply. These clauses are intended to dissuade persons from providing false or misleading information to an official for the purposes of complying with the Act, thereby ensuring that officials have access to information relevant that is reliable and correct. If an official relies upon false or misleading information it has the potential to reduce the official's ability to assess or manage biosecurity risk. 341

Chapter 10--Entry to premises and warrants Part 1--Introduction Clause 509 Guide to this Chapter This clause provides an overview of Chapter 10 which relates to entry to premises and warrants. The Chapter contains general provisions relating to warrants issued under the Act and also contains general provisions relating to when biosecurity enforcement officers or biosecurity officers enter premises with or without consent. Part 2--Issue of warrants Division 1--Ordinary issue of warrants Clause 510 Application and issue of warrant This clause provides that a biosecurity enforcement officer may apply to an issuing officer for a warrant in relation to premises or a conveyance, and sets out the classes of warrants that may be applied for. The power to apply for a warrant sits with biosecurity enforcement officers as they will have the appropriate expertise and training. Biosecurity officers will not have the ability to apply for a warrant under these clauses. However biosecurity officers will be able to exercise powers under some warrants, once issued, where it is appropriate for them to do so as set out in clause 511. Before issuing a warrant, the issuing officer must be satisfied, by information on oath or affirmation, that the relevant test corresponding to the warrant under clause 511 is met. For particular classes of warrants (such as a biosecurity risk assessment warrant), the information provided must be sworn or affirmed by a biosecurity officer. This is because biosecurity officers have the appropriate level of expertise in relation to assessing biosecurity risk that is required in the issuing of these warrants. The types of warrants that may be applied for under this clause are: a biosecurity risk assessment warrant authorising entry to premises a biosecurity control order warrant authorising entry to premises a biosecurity response zone warrant authorising entry to premises a biosecurity monitoring zone warrant authorising entry to premises a monitoring warrant authoring entry to premises an investigation warrant authorising entry to premises an adjacent premises warrant authorising entry to premises a conveyance possession warrant authorising the taking of possession of a conveyance, and a premises possession warrant authorising the taking of possession of premises (other than a conveyance). Clause 511 Test to be satisfied for issue of warrant This clause sets out the threshold tests that must be met in order for a particular type of warrant to be issued under clause 510. The threshold tests vary for each type of warrant because the warrants are issued for different purposes and provide a biosecurity enforcement officer or biosecurity officer with different powers. 342

Item 1 provides the test for issuing a biosecurity risk assessment warrant. These warrants allow a biosecurity enforcement officer or biosecurity officer to enter premises to carry out biosecurity assessment powers, such as securing goods or conveyances or taking samples of goods or premises (see Division 2 of Part 2, Chapter 6). Before issuing the warrant, the issuing officer must be satisfied that: there are reasonable grounds for suspecting that a pest or disease may be present in or on goods on the premises or the premises themselves, and that the disease or pest may pose an unacceptable level of biosecurity risk, and it is reasonably necessary that the relevant officer should have access to the premises to exercise powers in accordance with the powers in Division 3 of Part 2 of Chapter 6 to: establish whether a disease or pest is present if possible, to identify the disease or pest, and assess the level of biosecurity risk posed by the disease or pest. Item 2 provides the test for issuing a biosecurity control order warrant. This warrant allows a biosecurity enforcement officer or a biosecurity officer to enter premises in which a good or the premises are subject to a biosecurity control order, to carry out biosecurity measures and exercise powers in accordance with a biosecurity control order (see Division 2 of Part 4, Chapter 6). Before issuing a warrant, the issuing officer must be satisfied that: there are reasonable grounds for suspecting that a pest or disease may be present in or on goods on the premises, or the premises themselves there are reasonable grounds for suspecting that the disease or pest poses an unacceptable level of biosecurity risk a biosecurity control order is in force under clause 351 in relation to the goods or premises and the disease or pest, and it is reasonably necessary for a biosecurity enforcement officer or a biosecurity officer to have access to the premises to exercise powers in accordance with clause 358 for the purpose of managing biosecurity risks posed by the disease or pest. Item 3 provides the test for issuing a biosecurity response zone warrant. This warrant allows a biosecurity enforcement officer or biosecurity officer to enter premises within a biosecurity response zone to carry out biosecurity measures and exercise powers in accordance with a biosecurity response zone determination (see Division 3 of Part 5, Chapter 6). Before issuing the warrant, the issuing officer must be satisfied that: the premises are within a biosecurity response zone there are reasonable grounds for suspecting that a pest or disease may be present in or on goods on the premises, or the premises themselves the disease or pest may pose an unacceptable level of biosecurity risk, the biosecurity response zone determination relates to the disease or pest, and it is reasonably necessary for a biosecurity enforcement officer or biosecurity officer to have access to the premises to exercise powers in accordance with clause 368 for the purpose of managing biosecurity risks posed by the disease or pest. 343

Item 4 provides the test for issuing a biosecurity monitoring zone warrant. This warrant allows a biosecurity enforcement officer or a biosecurity officer to enter premises within a temporary or permanent monitoring zone to carry out biosecurity measures and exercise powers in accordance with monitoring and assessment powers (see Division 2 of Part 6, Chapter 6). Before issuing the warrant, the issuing officer must be satisfied that: the premises is within a permanent or temporary biosecurity monitoring zone, and it is reasonably necessary for a biosecurity enforcement officer or a biosecurity officer to have access to the premises for the purpose of monitoring whether a disease or pest, that the biosecurity officer suspects on reasonable grounds may pose an unacceptable biosecurity risk has or is likely to enter, establish, emerge or spread within the zone. Item 5 provides the test for issuing a monitoring warrant. This warrant allows a biosecurity enforcement officer to enter premises for monitoring purposes. Before issuing the warrant, the issuing officer must be satisfied that it is necessary that the biosecurity enforcement officer should have access to the premises in question for the purposes of determining whether the Act has been, or is being complied with or information provided for the purposes of the Act is correct. Item 6 provides the test for issuing an investigation warrant, which allows a biosecurity enforcement officer to enter premises to search for evidential material. Before issuing a warrant the issuing officer must be satisfied that there are reasonable grounds for suspecting that there is, or there may be within the next 72 hours, evidential material on the premises. Item 7 provides the test for issuing an adjacent premises warrant. This warrant allows a biosecurity enforcement officer to enter adjacent premises in order to access other premises for the purposes of performing functions or exercising powers under the Bill. This warrant also allows a biosecurity enforcement officer to accompany a biosecurity officer who needs to gain access to other premises for the purposes of performing functions or exercising powers under the Bill. Before issuing the warrant, the issuing officer must be satisfied that: it is reasonably necessary to gain access to other premises to perform functions, or exercise powers, as a biosecurity enforcement officer, or it is reasonably necessary for the biosecurity enforcement officer to accompany a biosecurity officer who needs to gain access to other premises to perform functions, or exercise powers, under or for the purposes of this Act. Item 8 provides the test for issuing a conveyance possession warrant. This warrant allows a biosecurity enforcement officer to apply for a warrant to take possession of a conveyance in order to carry out treatment or destroy the conveyance in accordance with clauses 208, 209, 336 or 341. Before issuing the warrant, the issuing officer must be satisfied that: a biosecurity officer has, under clause 208, requested the person in charge or the operator of the conveyance to arrange for the conveyance to be dealt with or 344

destroyed, or removed from Australian territory, within the period specified in the request, and the request has not been complied with a biosecurity officer has, under clause 336, requested the person in charge or the operator of the conveyance to arrange for the conveyance to be dealt with or destroyed within the period specified in the request, and the request has not been complied with a notice has been given to the owner or the operator of the conveyance in accordance with clause 209 and clause 341, or a certificate in relation to the conveyance has been issued under clause 341. Item 9 provides the test for issuing a premises possession warrant. This warrant allows a biosecurity enforcement officer to take possession of premises (other than a conveyance) in order to carry out treatment or destroy the premises in accordance with clauses 339 and 342. Before issuing the warrant, the issuing officer must be satisfied that: a biosecurity officer has, under clause 339, requested the owner of a premises to arrange for the premises to be dealt with, or destroyed, in a manner and within the period specified in the request, and the request has not been complied with the Director of Biosecurity has issued a notice to the owner of the premises in accordance with clause 342, or the Director of Biosecurity has issued a certificate in relation to the premises in accordance with 342(4). Clause 512 Content of warrant This clause outlines the required content of a warrant. A warrant must: describe the premises or conveyance to which it relates state the kind of warrant that it is state the purpose for which the warrant was issued (unless the warrant is an investigation warrant) either: state whether entry is authorised (if warrant is an entry warrant), or state whether possession is authorised (if warrant is a possession warrant) at any time of the day or during specified hours of the day specify the date the on which the warrant ceases to be in force (subject to the information below which outlines when each type of warrant must cease to have effect) comply with the information listed below that authorises biosecurity officers or biosecurity enforcement officers to do certain things, depending on the warrant, for that kind of warrant, and if biosecurity officers or biosecurity enforcement officers may be assisted by an animal--authorise the officers to use a specified kind of animal while exercising powers under the warrant. These requirements ensure that the owner or occupier of premises is fully informed about why the warrant has been issued and is made aware of the scope of the authorisation for a biosecurity enforcement officer or biosecurity officer to enter premises and exercise certain powers. Investigation warrants can only be in force for a maximum timeframe of one week. An adjacent premises warrant or possession warrant must cease to be in force no later than 14 345

days after the warrant has been issued. All other warrants must cease to be in force no later than one month after the day the warrant is issued. The timeframes are consistent with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This clause also sets out what each class of warrant must authorise biosecurity officers or biosecurity enforcement officers (depending on the class of warrant) to do. Listed below are the authorisations each warrant must specify. Item 1 provides that a biosecurity risk assessment warrant must authorise, on any one or more occasions while the warrant remains in force, one or more biosecurity officers or biosecurity enforcement officers: to enter the premises, and to exercise the powers in accordance with Division 3 of Part 2 of Chapter 6. Item 2 provides that a biosecurity control order warrant must authorise, on any one or more occasions while the warrant remains in force, one or more biosecurity officers or biosecurity enforcement officers: to enter the premises, and to exercise the powers in accordance with clause 358. Item 3 provides that a biosecurity response zone warrant must authorise, on any one or more occasions while the warrant remains in force, one or more biosecurity officers or biosecurity enforcement officers: to enter the premises, and to exercise the powers in accordance with clause 368. Item 4 provides that a biosecurity monitoring zone warrant must authorise, on any one or more occasions while the warrant remains in force, one or more biosecurity officers or biosecurity enforcement officers: to enter the premises if the premises are in a permanent biosecurity monitoring zone - to exercise the powers set out in subclauses 377(1) and (2), and if the premises are in a temporary biosecurity monitoring zone - to exercise the powers in accordance with clause 387. Item 5 provides that a monitoring warrant must authorise, on any one or more occasions while the warrant remains in force, one or more biosecurity enforcement officers: to enter the premises, and to exercise the powers set out in Parts 1 and 3 of Chapter 9 in relation to premises. Item 6 provides that an investigation warrant must: state the offence or offences, or civil penalty provision or provisions, to which the warrant relates specify the kinds of evidential material that are to be searched for under the warrant authorise the seizure of evidential material specified in the warrant authorise the seizure of anything found in the course of executing the warrant that the person executing the warrant believes on reasonable grounds to be evidence of the contravention of a related provision name one or more biosecurity enforcement officers, and authorise the biosecurity enforcement officers named in the warrant: 346

to enter the premises, and to exercise the powers set out in Parts 2 and 3 of Chapter 9 in relation to the premises. Item 7 provides that an adjacent premises warrant must authorise, on any one or more occasions while the warrant remains in force, one or more biosecurity enforcement officers to enter the premises, and to remain on the premises for such a period as is reasonable necessary, for the purpose of: gaining access to adjacent premises to perform functions, or exercise powers, as a biosecurity enforcement officer; and accompanying a biosecurity officer who needs to gain access to adjacent premises to perform functions, or exercise powers, under or for the purposes of this Act. Item 8 provides that a conveyance possession warrant must authorise, while the warrant remains in force, one or more biosecurity enforcement officers to take possession of the conveyance for the purpose of allowing it to be dealt with under clauses 208, 209, 336 or 341 (as the case requires). Item 9 provides that a premises possession warrant must authorise, while the warrant remains in force, one or more biosecurity enforcement officers to take possession of the premises for the purpose of allowing it to be dealt with or destroyed under clauses 339 or 342 (as the case requires). Division 2--Issue of certain warrants by telephone, fax etc. Clause 513 Application of this Division to certain warrants This Division applies in relation to classes of warrants to be issued by telephone, fax or other electronic means in urgent and other circumstances as set out in clause 514. Specific warrants that this Division applies to include: 1. biosecurity risk assessment warrants 2. biosecurity control order warrants 3. biosecurity response zone warrants, and 4. investigation warrants. Clause 514 Issue of certain warrants by telephone, fax etc. Application for warrant This clause provides that a warrant may be issued to a biosecurity enforcement officer by electronic means, including telephone and fax, in certain circumstances and sets out the requirements for doing so. This is intended for circumstances in which a biosecurity enforcement officer or biosecurity officer may urgently require a warrant. For example, where the time taken to obtain a warrant may result in evidential material being altered or disposed of, or where the time taken to obtain a warrant will increase the risk of biosecurity risk emerging or spreading in Australian territory. A biosecurity enforcement officer can only apply for a biosecurity risk assessment warrant, a biosecurity control order warrant or a biosecurity response zone warrant in relation to premises if one of the following applies: the circumstances are urgent, or 347

if the delay caused by seeking the warrant in person would frustrate the effective execution of the warrant. A biosecurity enforcement officer can only apply for an investigation warrant in relation to premises if both of the following apply: the circumstances are urgent, and if the delay caused by seeking the warrant in person would frustrate the effective execution of the warrant. If it is practical in the circumstances the issuing officer may require communication by voice of the biosecurity enforcement officer applying for the warrant. This allows the issuing officer to confirm identity by voice where confirming identity by electronic means is not possible. Any information must be supplied to the issuing officer of the kind required by subclauses 510(2) and (3), which set out the grounds on which the warrant is sought. If necessary a biosecurity enforcement officer may apply for the warrant before the information, prepared by the biosecurity enforcement officer or a biosecurity officer is sworn or affirmed. The ability to receive warrants by electronic means allows a biosecurity enforcement officer to receive a warrant in a timely manner, to ensure that biosecurity risks can be assessed or managed efficiently and effectively, or evidence of a contravention of the Act can be seized. This limits the ability for the pest or disease to enter, spread, establish or emerge in a good or premises, or evidence of a contravention of the Act to be concealed or destroyed. Issuing officer may complete and sign warrant This clause also provides that the issuing officer may, after considering the terms of the information and after receiving any further information required, complete and sign the warrant that would have been issued under clause 510. The issuing officer must inform the biosecurity enforcement officer, by telephone, fax or other electronic means, the terms of the warrant and, the day and time the warrant was signed. Obligations on biosecurity enforcement officer Following the issuing of the warrant the biosecurity enforcement officer must complete a form of warrant in the same terms as the warrant issued, state on the form the name of the issuing officer and the day and time the warrant was signed. The biosecurity enforcement officer must also send the form of warrant to the issuing officer along with any sworn or affirmed information which sets out the grounds on which the warrant is sought. This clause ensures that the biosecurity enforcement officer applying for the warrant is informed and agrees to the conditions of the warrant, and ensures that the issuing officer receives the information supplied by the biosecurity enforcement officer to match against the warrant issued. The sending of the above information must occur by the end of the day after warrant ceases to be in force or the warrant is first executed, whichever occurs first. Issuing officer to attach documents together The issuing officer must attach the documents sent by the biosecurity enforcement officer to the warrant signed by the issuing officer. 348

Clause 515 Authority of warrant This clause provides that a form of warrant completed under subclause 514(6) (where the warrant is issued by electronic means) is authority for the same powers as are authorised by the warrant signed by the issuing officer under subclause 514(4). This clause provides that the biosecurity enforcement officers have the same powers as outlined by the signed warrant in the possession of the issuing officer as if the officers had that warrant in their possession. In any proceedings where a court needs to be satisfied that the exercise of power by a biosecurity enforcement officer or biosecurity officer was authorised by a warrant, the exercise of power is taken not to be authorised if it was issued by electronic means, unless the warrant is produced in evidence to the court. This is to reflect that warrants issued by electronic means require sufficient evidence in a court and is a particular control to ensure this form of warrant is valid and not misused. Clause 516 Fault-based offence relating to warrants by telephone, fax etc. This clause outlines actions carried out by biosecurity enforcement officers that constitute an offence relating to warrants issued under clause 514. This clause provides for a maximum penalty of two years imprisonment or 120 penalty units, or both, if the elements of a fault- based offence are established. A biosecurity enforcement officer commits an offence if the officer: states in a document that purports to be a warrant issued under clause 514 the name of the issuing officer, unless the issuing officer signed the warrant states on a form of warrant, a matter that departs from the terms of the warrant signed by the issuing officer claims to execute, or present to another person, a form of warrant, that departs from the terms of the warrant signed by an issuing officer claims to execute, or present to another person, a form of warrant that has not been completed and signed by an issuing officer, or gives an issuing officer a form of warrant that is not the form of warrant that the biosecurity enforcement officer purported to execute. These requirements provide protections to ensure that powers exercised are consistent with the provisions of this Part, and that any entry under a warrant issued by electronic means cannot be abused. Part 3--Entering premises with a warrant or consent, and taking possession with a warrant Division 1--Obligations and powers of biosecurity enforcement officers Subdivision A--Obligation of biosecurity enforcement officers Clause 517 Consent This clause relates to the requirement for voluntary consent of an occupier when entering premises. Before obtaining the consent of an occupier of premises, a biosecurity enforcement officer must inform the occupier of the reasons for entering the premises and that the occupier may refuse consent. This applies to entry to premises to exercise powers under any of the following provisions: biosecurity risk assessment (paragraph 314(2)(a)) 349

biosecurity control orders (paragraph 359(2)(a)) biosecurity response zones (under paragraph 369(2)(a)) permanent biosecurity monitoring zones (paragraph 378(2)(a)) temporary biosecurity monitoring zones (paragraph 388(2)(a)) monitoring (paragraph 479(2)(a)) investigation (paragraph 485(2)(a)), or adjacent premises (paragraph 502(2)(a)). Individual protections are afforded to the occupier by allowing that occupier to refuse consent. The ability to refuse consent ensures that entry without a warrant, which could constitute an invasion of personal privacy, is only allowed when the person consents with the request to enter their premises. This clause outlines that consent must be voluntary and that it may be expressed for a particular period. If expressed for a particular period, the consent covers that period unless withdrawn earlier. Consent may be withdrawn by the occupier at any time and a biosecurity enforcement officer, a biosecurity officer, and a person assisting, must leave the premises if the consent has been withdrawn. If a biosecurity enforcement officer or a biosecurity officer enters premises because of the consent of the occupier, the biosecurity enforcement officer, biosecurity officer and any person assisting, must leave the premises if the consent ceases to have effect. Clause 518 Announcement before execution of warrant Entry warrants Subclause (1) provides that before a biosecurity enforcement officer or biosecurity officer enters premises under an entry warrant, the officer must announce that he or she is authorised to enter the premises. The officer must also give any person present an opportunity to consent to entry. The identity card of the biosecurity enforcement officer must be shown to the appropriate person and if the warrant is a biosecurity risk assessment warrant, biosecurity control order warrant, biosecurity response zone warrant or biosecurity monitoring zone warrant the biosecurity officer's identity card must also be shown. Entry warrants--exemption for Chapter 9 warrants Under subclause (2), a biosecurity enforcement officer is not required to comply with subclause (1) if entry is to be made under: an investigation warrant a monitoring warrant, or an adjacent premises warrant to the extent that: the warrant authorises entry for the purpose of executing an investigation warrant or monitoring warrant on adjacent premises, and the biosecurity enforcement officer believes on reasonable grounds that immediate entry is required to ensure the safety of a person or to ensure that the effective execution of the warrant is not frustrated. This allows for flexibility in situations where immediate entry is required, and is appropriate because biosecurity enforcement officers have the appropriate training and will likely be exercising this power in the context of enforcement, rather than assessment of biosecurity risk. 350

If subclause (2) applies and an appropriate person is present, the biosecurity enforcement officer must show the identity card of the officer, as soon as practicable after entry, to the appropriate person. This subclause puts beyond doubt the legislative intention of informing an appropriate person (where applicable) of the identity of the biosecurity enforcement officer. Possession warrants Before exercising powers under a possession warrant a biosecurity enforcement officer must announce that the officer is authorised to take possession of the premises or conveyance and show the identity card of the officer to the appropriate person, if present. Clause 519 Biosecurity enforcement officer to be in possession of warrant In executing a warrant, a biosecurity enforcement officer must be in possession of the warrant, or if the warrant was received by electronic means, the warrant form. The requirement for the officer to be in possession of a warrant ensures that the occupier of premises is able to view the warrant and are aware of the scope of the authorisation for an officer to enter premises and exercise certain powers. Clause 520 Details of warrant etc. to be provided This clause provides that where a biosecurity enforcement officer is executing a warrant in relation to premises or a conveyance, and an appropriate person for the conveyance or premises (which includes an occupier or a person that apparently represents the occupier) is present, the officer must make a copy of the warrant available to the appropriate person. If the warrant is received by electronic means, the biosecurity enforcement officer must make a copy of the warrant form available to the appropriate person. This obligation ensures that appropriate persons that are present when a warrant is executed are granted an opportunity to examine the warrant and are made aware of the scope of the authorisation for a biosecurity enforcement officer to exercise certain powers. The biosecurity enforcement officer must also inform the appropriate person of their rights and responsibilities under Division 2 of Part 3 of this Chapter. This ensures that the appropriate person is informed that they have the ability to observe the execution of the warrant and also that they could be liable to a civil penalty if they do not provide appropriate assistance and facilities to biosecurity enforcement officers, biosecurity officers and any persons assisting where applicable. Subdivision B--Use of force Clause 521 Use of force in executing a warrant This clause provides that the use of force by a biosecurity enforcement officer or a person assisting a biosecurity enforcement officer in executing a warrant against things as is necessary and reasonable in the circumstances. The use of force may allow, for example: the opening of doors or the movement of things to assist with the execution of a warrant. Only a biosecurity enforcement officer may use force in executing an adjacent premises warrant. 351

This clause does not authorise the use of force against a person. This is to ensure protection to individuals and to clarify that physical force on an individual cannot be used in the exercise of powers authorised by a warrant. Subdivision C--Completing execution of investigation warrants Clause 522 Completing execution of an investigation warrant after temporary cessation This clause applies if a biosecurity enforcement officer, a biosecurity officer, and any persons assisting who are executing an investigation warrant in relation to premises, temporarily cease the execution of the warrant and leave the premises. Some flexibility is required to ensure that a biosecurity officer, biosecurity enforcement officer or persons assisting can leave the premises if required, for example to obtain necessary equipment or to avoid a dangerous situation. The execution of the warrant may be completed after temporary cessation if the warrant is still in force, and all officers and persons assisting have not been away from the premises: for longer than one hour for longer than 12 hours if it was a life threatening situation or such period as allowed by an issuing officer, or for a longer period if the occupier of the premises gives consent in writing. A biosecurity enforcement officer, biosecurity officer, or a person assisting, may apply to an issuing officer for an extension of the 12-hour period mentioned above if there is a life threatening situation and the officers, or a person assisting, believes on reasonable grounds that he or she will not be able to return to the premises within that period. A life threatening situation could relate to a risk to a person's safety, including the safety of a biosecurity enforcement officer, such as a fire at the premises. If it is practicable to do so, the biosecurity enforcement officer, or a person assisting, must give notice to the occupier of the premises of his or her intention to apply for an extension in order to keep the occupier informed. An issuing officer may grant an extension of the period during which the officers and person assisting may be away from the premises if an application is made under this clause and the issuing officer is satisfied that there are exceptional circumstances that justify the extension, and that the extension would not result in the period ending after the warrant ceases to be in force. The ability to complete the execution of a warrant allows for biosecurity enforcement officers to efficiently investigate any relevant materials or non-compliance, without having the need to apply for another warrant. Clause 523 Completing execution of an investigation warrant stopped by court order A biosecurity enforcement officer, biosecurity officer, or any persons assisting, may complete the execution of an investigation warrant that has been stopped by an order of a court if the order is later revoked or reversed on appeal, and the warrant is still in force when the order is revoked or reversed. The ability to complete the execution of the warrant ensures that the biosecurity enforcement officer does not have to apply for another warrant, and the warrant authorisation continues. 352

Division 2--Appropriate person's rights and responsibilities in relation to warrants Clause 524 Appropriate person's right to observe execution of warrant This clause allows an appropriate person for premises or conveyance, to observe the execution of a warrant if they are present, unless they impede that execution. This provision does not prevent the execution of the warrant in two or more areas of the premises at the same time. This clause ensures that the appropriate person may be satisfied that officers are not doing anything outside of what is permitted by the warrant and that the person is aware of anything that is happening on the premises. Please see clause 9 of Chapter 1 for a definition of `appropriate person'. Clause 525 Appropriate person to provide facilities and assistance This clause provides that an appropriate person for the conveyance or premises (which includes an occupier or a person that apparently represents the occupier) must provide reasonable facilities or assistance for the effective exercise of the powers of biosecurity enforcement officers, biosecurity officers, or persons assisting. Reasonable facilities may include access to water facilities, and assistance could include opening locked doors. A person commits an offence if the person contravenes this clause. The maximum penalty for contravention of this clause is 30 penalty units. This clause ensures that biosecurity enforcement officers or biosecurity officers can efficiently execute the warrant without undue delay by having to seek facilities elsewhere or requiring other persons to provide assistance. Part 4--Entering premises without a warrant or consent Division 1--Application of this Part Clause 526 Application of this Part This Part sets out the rules that apply if a biosecurity enforcement officer or a biosecurity officer is to enter, or enters, premises without a warrant or consent when: entering landing places or ports (subclause 254(2)) biosecurity emergencies (subclause 468(1) entering adjacent premises during biosecurity emergencies (subclause 470(1)) monitoring relevant premises (clause 499), or searching relevant premises (clause 500). Clause 498 provides that `relevant premises' means any premises at which biosecurity activities are carried out by a biosecurity industry participant that is covered by an approved arrangement, or any landing place or port that is determined to be a first point of entry. Division 2--Obligations and powers of biosecurity enforcement officers in entering premises Clause 527 Announcement before entry This clause requires a biosecurity enforcement officer or biosecurity officer to announce that the relevant officer is authorised to enter the premises, before entering premises under a provision under clause 526. If the appropriate person for the premises is present, the officer 353

must ensure that the identity card of the biosecurity enforcement officer is shown to the appropriate person and explain the reasons for entering the premises. The identity card of biosecurity officer must also be shown to the appropriate person if entry is to enter a landing place or port for the purpose of exercising powers under clause 254, or is during a biosecurity emergency (subclause 468(1) or 470(1)). This is to ensure that if an appropriate person is present when the premises are entered, they are made aware of who is entering the premises and for what purpose. By providing announcement before entry it gives the appropriate person an opportunity to facilitate entrance to the premises with the officers using force on the door to enter or to make arrangements to protect their privacy (if appropriate to do so). Clause 528 Use of force in entering premises This clause provides that in entering premises under subclauses 254(2), 468(1), 470(1) or clause 500 and while on those premises, the use of force is allowed against things as is necessary and reasonable in the circumstances. This clause does not provide for use of force against a person. This is to ensure protection to individuals and to clarify that physical force on an individual cannot be used in the exercise of powers to enter premises. Division 3--Appropriate person's rights and responsibilities on entry Clause 529 Appropriate person is entitled to observe exercise of powers This clause allows an appropriate person for premises entered under a provision referred to in clause 526, to observe the exercise of powers while on the premises, if they are present, unless the person impedes the execution. This provision does not prevent powers being exercised in two or more areas of the premises at the same time or a direction requiring the appropriate person to leave premises under clause 444. This clause ensures that the appropriate person may be aware of anything that is happening on the premises. Clause 530 Appropriate person to provide officers etc. with facilities and assistance This clause provides that there is a fault based offence of 30 penalty units if an appropriate person for premises entered does not provide reasonable facilities or assistance for the effective exercise of the powers of biosecurity enforcement officers, biosecurity officers, or persons assisting. This clause ensures that biosecurity enforcement officers and biosecurity officers can efficiently exercise their powers without undue delay by having to seek facilities elsewhere or requiring other persons to provide assistance. Reasonable facilities could include access to water facilities, and assistance could include opening locked doors. 354

Part 5--General provisions Clause 531 Persons assisting biosecurity officers or biosecurity enforcement officers This clause allows biosecurity enforcement officers and biosecurity officers to be assisted by other persons. Officers must consider the assistance to be necessary and reasonable in the exercise of the powers and functions of the officer under the provisions listed in subclause (1), which include: Division 3 of Part 2 of Chapter 6 (biosecurity risk assessment powers) clause 358 (biosecurity control order powers) clause 368 (biosecurity response zone powers) subclauses 377(1) or (2) (permanent biosecurity monitoring zone powers) clause 387 (temporary biosecurity monitoring zone powers) subclauses 397(1) or (2) (biosecurity activity zone powers) Division 5 or 6 of Chapter 8 (exercise of powers during biosecurity emergencies) Parts 1 to 4 of Chapter 9 (enforcement) (including after premises have been entered in accordance with clauses 499 or 500 (monitoring and searching certain premises)), and this Chapter. This power may be necessary in circumstances where for example, no other officers are available to assist; where there may be a large amount of material found that needs to be secured quickly due to a high level of biosecurity risk; where another person (for example a biosecurity officer) is more familiar with specific premises or how to deal with a particular biosecurity risk (including assessment and treatment of that risk); or where in the course of searching premises, the biosecurity enforcement officer needs assistance to move a heavy item that the officer cannot move on their own. Persons assisting biosecurity officer A person assisting a biosecurity officer may enter premises and may exercise powers as referred to in subclause (1). Persons assisting must enter premises and exercise powers in accordance with any direction given by the biosecurity officer. Any direction is given in writing under this clause is not a legislative instrument, as it is administrative in nature and does not have legislative character. Persons assisting biosecurity enforcement officers A person assisting a biosecurity enforcement officer may enter the premises and may exercise any powers of the biosecurity enforcement officer for the purposes of assisting and must do so in accordance with any direction given by the biosecurity enforcement officer. A person assisting may use such force against things as is necessary and reasonable (clause 521). If direction is given in writing under this clause, it is not a legislative instrument as it is administrative in nature and does not have legislative character. Any power exercised by the person assisting either a biosecurity officer or biosecurity enforcement officer is taken to have been exercised by the relevant officer. This ensures that responsibility for the actions of a person assisting lies with the biosecurity officer or biosecurity enforcement officer. It also ensures that the relevant officer will provide sufficient instruction and supervision to the person assisting, so that anything they do is within the powers that the relevant officer would be able to exercise themselves. 355

Clause 532 Powers of issuing officers This clause provides that the power conferred on the issuing officer under: Part 2 of Chapter 6 Part 1 or 2 of Chapter 9, or this Chapter is in a personal capacity and not as a court or a member of the court. The issuing officer does not have to accept the power conferred upon him or her. Where an issuing officer exercises a power, the issuing officer will have the same protection and immunity as if the officer were exercising the power as the court of which the issuing officer is a member, or as a member of the court of which the issuing officer is a member. This recognises that issuing a warrant is an executive function and not an exercise of judicial power. Clause 533 Compensation for damage to electronic equipment This clause provides for the circumstances by which persons can be paid reasonable compensation for damage done to electronic equipment. Where electronic equipment has been operated in as mentioned in Part 2 of Chapter 6, or Part 1 or 2 of Chapter 9 and as a result: the equipment is damaged data recorded on the equipment is damaged programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted, or damage or corruption occurs: because insufficient care was exercised in selecting the person who was to operate the equipment, or because insufficient care was exercised by the person operating the equipment the Commonwealth is liable to pay a reasonable amount of compensation. In addition: Part 3 of Chapter 6 includes premises that have been entered in accordance with subclause 468(1), and Part 1 and Part 2 of Chapter 9 includes premises that have been entered in accordance with clauses 499 and 500. If the Commonwealth and the owner, or user, of the equipment, data, or programs cannot agree to the compensation amount, the owner, or user, may institute proceedings in a relevant court, for the Court to determine the reasonable amount to be recovered from the Commonwealth. In determining the amount of compensation payable regard is to be had to whether the occupier provided any appropriate warning or guidance on the operation of the equipment. This clause outlines the monitoring powers that biosecurity enforcement officers may exercise if they enter premises under clause 479. The powers include: the power to search the premises and any thing on the premises the power to examine or observe any activity conducted on the premises, and the power to inspect, examine, take measurements of, or conduct tests on any thing on the premises. 356

Chapter 11--Enforcement Part 1--Civil penalty provisions Division 1--Introduction Clause 534 Guide to this Part This clause provides an overview of Part 1 of Chapter 11, which deals with the use of civil penalties to enforce civil penalty provisions. Division 2--Obtaining a civil penalty order Clause 535 Civil penalty orders Civil penalty orders provide an alternative to bringing a criminal action against a person or body corporate. This clause provides that the Agriculture or Health Minister may apply to the relevant court for an order seeking a monetary penalty where a person is alleged to have contravened a civil penalty provision. Any application must be brought within six years of the alleged contravention. If the relevant court is satisfied that the person has contravened the civil penalty provision, the court can order that person to pay a monetary penalty as the court considers appropriate. This order is called a civil penalty order. The clause provides for the maximum monetary penalty that a court can order a person (or body corporate) to pay. In the case of a body corporate, this amount is five times the penalty specified in the civil penalty provision. Otherwise, the maximum penalty is the amount specified in the civil penalty provision. The clause sets out the matters that the court must take into account in determining this amount. This allows the court to consider the nature and extent of the contraventions, and any damage or loss caused or other matters, in determining the appropriate penalty for the contravention. Clause 536 Civil enforcement of penalty This clause provides that a monetary penalty is a debt payable to the Commonwealth and can be recovered by the Commonwealth as if it is a judgement debt against that person. A judgement debt is the amount that is awarded to be paid under a court order and can be enforced against the person who owes the money. The debt is enforceable through civil debt proceedings and payable into consolidated revenue. This clause is necessary to ensure that the Commonwealth can take action to recover the amount of monetary penalty ordered by the court under a civil penalty order. Clause 537 Conduct contravening more than one civil penalty provision Clause 538 Multiple contraventions Clause 539 Proceedings may be heard together These clauses deal with multiple contraventions of civil penalty provisions. Clause 537 provides that where conduct may constitute a contravention of two or more civil penalty provisions, proceedings may be instituted against a person for any one or more of those provisions. This clause provides that a person will not be liable to more than one monetary penalty for the same conduct. 357

Clause 538 allows the relevant court to make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings are founded on the same facts; or if the contraventions are part of the same or a similar character. The maximum penalty that the court can order in this case cannot exceed the amount that could be ordered if each penalty was ordered separately for each contravention. Clause 539 allows the relevant court to direct that two or more proceedings for civil penalty orders are heard together. These clauses allow multiple contraventions to be dealt with in an appropriate way by the relevant court by hearing several matters together, without disadvantaging the person who is accused of contravening the provisions. Clause 540 Civil evidence and procedure rules for civil penalty orders This clause provides that during proceedings for a civil penalty order, the relevant court must apply the rules of evidence and procedure for civil matters. Clause 541 Contravening a civil penalty order is not an offence This clause provides that a contravention of a civil penalty provision is not an offence. This means that a person who has a civil penalty order made against them does not record a criminal conviction. However, this does not preclude the conduct that causes liability for a civil penalty from separately constituting an offence. Division 3--Civil proceedings and criminal proceedings Clause 542 Other enforcement action after criminal proceedings Clause 543 Other enforcement action during civil proceedings Clause 544 Other enforcement action after civil proceedings These clauses deal with circumstances where conduct may give rise to both civil and criminal proceedings against a person. Clause 542 provides that the relevant court may not make a civil penalty order for a contravention under this Act if the person has been convicted of an offence or is found to have contravened a civil penalty provision under the law of the Commonwealth, a State or a Territory for conduct that is the same or substantially the same. Clause 543 provides that proceedings must be stayed for the contravention of a civil penalty provision under this Act, if criminal proceedings or civil proceedings have been commenced against a person under the law of the Commonwealth, a State or a Territory for conduct that is the same or substantially the same. The proceedings must be dismissed if the person is convicted or found liable, and can be resumed if this does not occur. Clause 544 provides that criminal proceedings or civil penalty proceedings under a law of the Commonwealth, a State or a Territory may be commenced against a person for conduct, where that conduct is the same or substantially the same as conduct which would constitute a contravention of a civil penalty provision under the Act. This is the case regardless of whether a civil penalty order has been made against the person in relation to the contravention. 358

These clauses clarify when proceedings may be commenced or continued against a person when his or her conduct may constitute contraventions under multiple pieces of legislation. This is important so that a person is not punished for the same conduct under multiple laws in a way that is not permitted by these clauses. Clause 545 Evidence given in civil proceedings not admissible in criminal proceedings This clause prevents the use of evidence of information given, or evidence of production of documents, by a person in criminal proceedings under a law of the Commonwealth if: the person previously gave the evidence in proceedings for a civil penalty order (whether or not the order was actually made), or the conduct is the same or substantially the same as the conduct alleged to constitute the contravention. The clause does not apply to criminal proceedings which arise in relation to false evidence given by the person in the proceedings for the civil penalty order. This ensures that the evidence elicited during civil proceedings cannot be used to build a criminal prosecution against a person for the same or similar conduct. Division 4--Miscellaneous Clause 546 Ancillary contravention of civil penalty provisions This clause sets out circumstances where a person is taken to have contravened a civil penalty provision. The circumstances are: attempting to contravene a provision aiding, abetting, counselling or procuring the contravention of a provision inducing the contravention of a provision (for example, by threatening or promising to another person) in any way being directly or indirectly, knowingly or party to the contravention of a provision, and conspiring with others to contravene a provision. This ensures that these types of conduct can also give rise to a civil penalty order. Clause 547 Continuing contravention of civil penalty provisions This clause relates to circumstances where there is a requirement on a person to do an act or thing within a particular time period or before a particular time. If a person fails to do what is required there is a continuing obligation to do that act or thing until it has been done--this is the case even after the period has ended or the time has passed. This clause provides that where the failure to do an act or thing constitutes a contravention of a civil penalty provision, then the person commits a separate contravention for each day that the person fails to do the act or thing. This is the case even on the day of and any day after a civil penalty order is made. For example, if a person is given a direction to take a biosecurity measure by a particular date, and fails to do so, then this person may be contravening a civil penalty provision. The person would continue to contravene this civil penalty provision until the person did the required biosecurity measure, and would be liable for a contravention for each day until that measure was taken. 359

Clause 548 Mistake of fact This clause provides that an exception of mistake of fact may be available for contravention of a civil penalty provision if the items in this provision are made out. A person is not liable to have a civil penalty order made against them for a contravention if: at or before the time of the contravening conduct, the person considered whether or not the facts existed; and was under a mistaken but reasonable belief about those facts, and if those facts existed the conduct would not have been a contravention of the civil penalty provision. This clause outlines that a person has considered whether or not the facts existed if: the person had previously considered whether those facts existed in the circumstances of that previous occasion, and the person honestly and reasonably believed that the present circumstances were the same, or substantially the same, as that previous occasion. This clause provides an exception where a person, by mistake of fact, reasonably and honestly believed that he or she was not contravening a civil penalty provision because a mistake. A person wanting to rely on this provision bears the evidential burden in relation to the matters, which means that the defendant must adduce evidence which points to the mistake of fact. It will then be up to the prosecution to establish that this exception does not apply. This is appropriate in the circumstances as this type of knowledge (that is, that a person considered particular facts) is within the knowledge of the person and forms an exception to a contravention that would otherwise result in a civil penalty order being made. Clause 549 Sudden or extraordinary emergency This clause provides that a person is not liable to have a civil penalty order made against them for a contravention if the person carries out the conduct in response to a sudden or extraordinary emergency. This clause only applies if the person carrying out the conduct reasonably believes that: circumstances of a sudden and extraordinary emergency exist, and contravening the provision is the only reasonable way to deal with the emergency, and the conduct is a reasonable response to the emergency. This clause provides an exception where a person reacts in a reasonable way in response to a sudden and extraordinary emergency. In these circumstances it is not appropriate for a person to be punished for the contravention as the particular circumstances did not leave them with reasonable alternatives to contravention, and these circumstances are likely to be limited to a particular period. A person wanting to rely on this clause bears the evidential burden in relation to the matters, which means that the defendant must adduce evidence which points to a sudden or extraordinary emergency. It will then be up to the prosecution to establish that this exception does not apply. This is appropriate in the circumstances as this type of knowledge (that is, that a person considered particular facts) is within the knowledge of the person and forms a defence to a contravention that would otherwise result in a civil penalty order being made. 360

Clause 550 State of mind This clause provides that it is not necessary to prove the state of mind of a person during proceedings for a civil penalty order against a person for a contravention of a civil penalty provision (for example, the person's intention or knowledge). This clause does not affect the operation of subclause 546(1), which sets out circumstances where a person is taken to have contravened a civil penalty provision, or clauses 548 or 549 which provide exceptions that a person who has contravened a civil penalty provision can introduce evidence of, for the court to consider. Clause 551 Omissions This clause provides that the failure of a person to perform an act will only constitute an element of a civil penalty provision if it is specified, either expressly or impliedly, in the Act. Clause 552 Burden of proof for exceptions etc. to civil penalty provisions This clause provides that in proceedings against a person for a contravention of a civil penalty provision, the defendant bears an evidential burden in relation to any exception, exemption, excuse, qualification or justification provided by the Act. That is, the person must adduce evidence which points to the fact that he or she was authorised to perform the actions which would otherwise constitute a contravention of the civil penalty provision. It will then be up to the prosecution to establish that this exception does not apply. This is appropriate because a defendant will have the requisite knowledge for these exceptions. Clause 553 Civil penalties for executive officers of bodies corporate Clause 554 Reasonable steps to prevent contravention These clauses deal with circumstances where executive officers of bodies corporate may be liable for a civil penalty provision for the contravention of a body corporate. Clause 553 provides that an executive officer of a body corporate contravenes the clause if: the body corporate contravenes a civil penalty provision the executive officer knew, was reckless or negligent as to whether the contravention would occur the officer was in a position to influence the conduct of the body corporate, and the officer did not take all reasonable steps to prevent the contravention. The clause also sets out the standards of recklessness and negligence that the officer would need to have displayed to be found liable. If found liable, a maximum civil penalty of 120 penalty units applies. Clause 554 provides that when determining whether an executive officer of a body corporate failed to take all reasonable steps to prevent a contravention (an element of the clause 553 civil penalty provision), the court may have regard to all relevant matters. These include any action taken by the officer directed towards arranging professional assessments of compliance, implementation of recommendations arising from any assessments, and ensuring staff have relevant knowledge and understanding of any requirements to comply with civil penalty provisions. Additionally, the court may consider any action taken by the officer once the officer became aware of the contravention. 361

These clauses recognise the extra responsibility that executive officers have in ensuring the appropriate conduct of a body corporate, and their appropriately placed duty to take actions to prevent contraventions of the Act. Part 2--Infringement notices Division 1--Introduction Clause 555 Guide to this Part This clause provides an overview of Part 2 of Chapter 11. This part provides that a person can be given an infringement notice in relation to a contravention of an infringement notice provision. Clause 556 Infringement notice provisions This clause provides that the regulations may prescribe particular provisions of the Bill that are infringement notice provisions. Consistent with Commonwealth guidelines for infringement notice schemes, infringement notices will be used to deal with less serious and less factually complex contraventions of a provision, where initiating court proceedings would be disproportionately costly (see Chapter 6 of the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers). Division 2--Infringement notices Clause 557 When an infringement notice may be given This clause sets out the circumstances and timing of when an infringement notice can be given. A person will be able to be given an infringement notice if the Director of Biosecurity has reasonable grounds to believe that a person has contravened an infringement notice provision. This clause requires that an infringement notice must be given within 12 months of the alleged contravention. Subclause (3) requires that an infringement notice must relate only to a single contravention of a single provision, unless the conditions of subclause (4) apply. Subclause (4) allows the Director of Biosecurity to give a person a single infringement notice relating to multiple contraventions of one provision. The notice can be given if a person is required by a provision to do a thing within or before a time period and the person fails or refuses to do that thing; and the failure or refusal occurs on more than one day and each contravention is constituted by the failure or refusal on each of those days. This clause also provides that an infringement notice can be given for an offence provision and a civil penalty if a person contravenes a single provision, however the notice must specify that it relates to both. Clause 558 Matters to be included in an infringement notice This clause details all of the matters that must be included in an infringement notice when it is issued. These matters include: 362

administrative details, such as the day the notice is given, the name of the person given the notice and the name of the person who gave the notice etc particulars of the alleged contravention, for example details of the alleged contravention, the amount payable under the notice payment requirements, including how the payment should be made and timeframes for payment (28 days after the day the notice is given) consequences for non-payment, and processes for withdrawing a notice. The clause limits the amount payable under an infringement notice to being the lesser of: one-fifth of the maximum penalty that a court could impose on the person for that contravention; and 12 penalty units where the person is an individual, or 60 penalty units where the person is a body corporate. This means, for example, that where the maximum penalty for a civil penalty provision is 120 penalty units, if an infringement notice offence is attached to this provision the amount payable is 12 penalty units. This subclause is consistent with the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This clause sets out these matters so that the person who is issued with an infringement notice has all the relevant details about the alleged contravention and what steps are required whether or not the person chooses to pay the notice. Clause 559 Extension of time to pay amount This clause provides that a person who has received an infringement notice may apply to the Director of Biosecurity for an extension of the time period to pay the amount required. The provision provides for the Director of Biosecurity to extend the period in writing and to extend that period more than once. If the Director of Biosecurity refuses to extend the period, then the time period a person has to pay the amount is the later of: the day that is the last day referred to in the notice (as required by paragraph 558(h)), or the day that is seven days after the person was given notice of the decision not to extend. This clause ensures that where a person has sought an extension of time that is not granted, the person still has adequate time to organise for payment of the notice. Clause 560 Withdrawal of an infringement notice This clause provides for the requirements and circumstances when an infringement notice can be withdrawn, ensuring that where appropriate a person does not have to pay the amount of the infringement notice. There are two circumstances when the withdrawal of an infringement notice can be considered under this provision. These are when the person who has received an infringement notice may write and make representations to the Director of Biosecurity to request the withdrawal, or when the Director of Biosecurity may withdraw the notice (whether or not the person has written to seek withdrawal of the notice). 363

The clause provides that when deciding to withdraw a notice, the Director of Biosecurity must consider any representations made by the person. The Director of Biosecurity may also consider: any previous penalties imposed by a court for contravention of an infringement notice provision the circumstances of the alleged contravention previous payments for an earlier infringement notice where the contravention is constituted by the same or substantially the same conduct as the current infringement notice, and any other matters considered relevant. The clause also provides that notice of the withdrawal must be given and the details that must be included in that notice (for example, the person's details and details of the infringement notice). If the notice is withdrawn, the person may be liable to being prosecuted in a court for the alleged contravention and proceedings seeking a civil penalty order may be brought against the person. If the notice is withdrawn after the person has paid, the Commonwealth must refund the amount to the person. Clause 561 Effect of payment of amount This clause outlines the effect of payment required in the infringement notice within the required time period (either the period required under paragraph 558(1)(h) or an extended period under clause 559). Particularly, this clause provides that any liability of the person for the alleged contravention is discharged; that the person may not be prosecuted for an offence provision or have proceedings brought against them for a civil penalty order; the person has not admitted guilt or liability for the contravention and if the provision is an offence provision the person is not convicted of an offence. This ensures that upon payment, no further action in relation to the notice can be taken for this contravention. Clause 562 Effect of this Part In order to avoid any doubt, this clause provides that this Part does not have certain effects. Nothing in this Part requires that an infringement notice must be given to a person for an alleged contravention of an infringement notice provision. This is because giving an infringement notice is at the discretion of the Director of Biosecurity. This Part does not affect the liability of a person for the alleged contravention of an infringement notice provision if the person does not comply with an infringement notice given to the person, an infringement notice is not given to the person, or a notice is given for the contravention and is subsequently withdrawn. This ensures that the fact that an infringement notice is not currently in place does not mean that the person cannot be liable for the alleged contravention. This clause also provides that an infringement notice for an alleged contravention of provision can be given to a person, even if a previous infringement notice relating to that provision has been withdrawn. 364

This clause also provides that nothing in this Part limit's a court's discretion to determine the amount of penalty imposed on a person who is found to have contravened an infringement notice provision. Clause 563 Further provision by regulation This clause provides that the regulations may make further provision in relation to infringement notices given in relation to contraventions of infringement notice provisions. This is to ensure that further detail or requirements can be specified in the regulations. Part 3--Enforceable undertakings Division 1--Introduction Clause 564 Guide to this Part This clause provides an overview of Part 3 of Chapter 11. The Part provides that the Director of Biosecurity may accept an undertaking relating to compliance with a provision of this Act. Division 2--Accepting and enforcing undertakings Clause 565 Acceptance of undertakings This clause outlines the circumstances when the Director of Biosecurity may accept, under this provision: a written undertaking from a person that the person will take a specified action to comply with a provision of the Act a written undertaking from a person that the person will refrain from taking a specified action to comply with a provision of the Act, or a written undertaking from a person that the a person will take specified action aimed at ensuring that a person does not contravene a provision of the Act or is unlikely to contravene this provision in the future. Acceptance of any of these types of undertaking is at the discretion of the Director of Biosecurity. This ensures that an undertaking is only accepted in circumstances where Director is satisfied that it is appropriate. An undertaking can be varied or withdrawn at any time at the request of the person if the Director of Biosecurity provides written consent to the person. Additionally, the Director of Biosecurity can cancel the undertaking by providing a written notice to the person. This clause also allows the Director of Biosecurity to publish an undertaking in any manner considered appropriate providing transparency for the types of undertakings being accepted. Clause 566 Enforcement of undertakings If the Director of Biosecurity considers that a person has contravened an undertaking that has been given under clause 565 and which has not been withdrawn or cancelled, then the Director may apply to a relevant court for an order. Where a relevant court is satisfied that the person has contravened the undertaking, the court can make any order that the court considers appropriate. Such orders may include an order directing a person to comply with the undertaking, an order to pay the Commonwealth for any amount of financial benefit attributable to the contravention, or any other orders relating 365

to compensating persons who have suffered loss or damage as a result of the contravention. This clause ensures that in circumstances where an undertaking is not being complied with the Commonwealth can seek an appropriate remedy through the court to deal with the contravention. Part 4--Injunctions Division 1--Introduction Clause 567 Guide to this Part This clause provides an overview of Part 4 of Chapter 11. Injunctions may be used to restrain a person from contravening a provision or this Act. Alternatively, they can be used to compel compliance with a provision of this Act. Division 2--Injunctions Clause 568 Grant of injunctions This clause provides that the Director of Biosecurity or the Director of Human Biosecurity may apply to a relevant court for an injunction under this Division if a person has, is or is proposing to engage in conduct which would contravene a provision of the Act. This means that the relevant Director can apply to the court to get an order which requires someone to do, or not to do, a specific act. Subclause (2) provides that a restraining injunction can be granted if the court is satisfied on reasonable grounds that a person has not, is not or is proposing not to comply with a provision. The court can grant an injunction which restrains a person from doing a thing that would be a contravention of the provision, and if the court thinks it necessary, the court can require the person to do a thing. Subclause (3) provides that performance injunction can be granted if the court is satisfied on reasonable grounds that a person has, is or proposes to refuse or fail to do a thing that was, is or would be a contravention of the provision. This clause provides options for the relevant Director to deal with non-compliance and stop actions that may be a contravention of the Act. This clause also allows the Director of Human Biosecurity to apply to the court for an injunction to enforce a direction for an individual to comply with a biosecurity measure under clause 70. In making a decision to grant the injunction, the court may consider any reasons that the individual gives for refusing to comply with the measure, factors that may affect the health of the individual, or any other matter the court considers relevant. This provision gives the court power to grant an injunction if an individual is required to comply with a measure under clauses 69 or 72. Clause 72 specifies time frames when an individual must comply with a measure, after providing the opportunity to seek external review via the Administrative Appeals Tribunal Act 1975 (if relevant) or Administrative Decisions (Judicial Review) Act 1977. Subclause (5) gives the court power to grant an injunction if an individual is required to comply with a measure under subclauses 72(2) or (4). If the injunction relates to a compliance with a Human Biosecurity Control Order, the court may consider any reasons that the individual gives for refusing to comply with the measure, factors that may affect the health of the individual, or any other matter the court considers relevant. 366

Subclauses 72(2) and (4) specify that if the Director of Human Biosecurity issues a direction to comply with measures under clause 83 (managing contacts), clause 87 (Decontamination), clause 88 (examination), clause 89 (body samples), or 90 (Vaccination or treatment), the individual is required to comply with the direction when: the 7 day period to seek external merits review under the Administrative Decisions (Judicial Review) Act 1977 has expired and an application has not been made, or an application for review has been made under the Administrative Decisions (Judicial Review) Act 1977, the application has been finally determined, and the resulting order is that the individual is required to comply with the measure. For any other biosecurity measures, an individual is required to comply if the Director of Human Biosecurity has given a direction to comply under clause 70, and the direction has not lapsed. Clause 569 Interim injunctions This clause provides that a relevant court can grant an interim injunction which restrains or requires a person to do a thing, while deciding on an application under clause 568 to grant a final injunction. This means that the court can prevent or require a person to do a thing while it is considering the full application--therefore limiting any loss or damage before a final determination can be made. Clause 570 Discharging or varying injunctions This clause allows that where an injunction has been granted by a relevant court under this Division then that court can discharge or vary that injunction. This provides that the court that makes the order has the power to change or release the injunction if circumstances require it. Clause 571 Certain limits on granting injunctions not to apply This clause provides that the court may grant an injunction restraining a person from doing a thing or requiring a person to do a thing: whether or not the person intends to do or continue to do the thing; or intends to, or continues to, refuse or fail to do the thing whether or not the person has previously done the thing, or refused or failed to do the thing whether or not there is an imminent danger of substantial damage to any other person if the person does the thing, or refuses or fails to do the thing. This clause provides that the court has the discretion to make an injunction in circumstances that the court is satisfied is appropriate. Clause 572 Other powers of a relevant court unaffected To avoid any doubt, this clause clarifies that the powers conferred on the relevant court by this Division are in addition to (and not instead of) any other power conferred on the court, whether by this Act or otherwise. Clause 573 Judicial review This clause provides that where judicial review by a court is sought, a direction to secure goods under clauses 121 or 316, or a direction to secure a conveyance under clauses 197 or 316, the direction will remain in force pending the final decision of the courts. For example, a biosecurity officer may assess a conveyance as representing an unacceptable risk, issuing a direction to secure the conveyance and then issuing a further direction to have the 367

conveyance treated. The owner of the conveyance may seek judicial review of both the direction to secure the conveyance and the direction to treat the conveyance. In this circumstance this clause allows the direction to secure the conveyance to remain, pending the final outcome of the judicial review application. It is noted that under section 23 of the Federal Court of Australia Act 1976 and section 15 of the Federal Magistrates Act 1999, the Federal Court and Federal Magistrates Court respectively have jurisdiction to make the orders they consider appropriate within their jurisdiction. This clause is not intended to limit the Federal Court or the Federal Magistrate Court's ability to make interlocutory injunctions, or any other orders that the courts consider appropriate. Rather, the intention of this clause is to ensure a conveyance or good that has been assessed as presenting an unacceptable biosecurity risk is secured appropriately pending the final outcome of a judicial review application. The objective of a direction to secure a good or conveyance remaining in force prevents the unacceptable biosecurity risk from spreading during the time the court takes in handing down its decision. This provision takes effect despite any other law. In addition, this clause allows for the biosecurity officer having given the direction to revoke that direction at any time (for example, if the biosecurity risk is brought down to an acceptable level and there is no longer a need to secure the good or the conveyance). Part 5--Miscellaneous Division 1--Introduction Clause 574 Guide to this Part This clause provides an overview of Part 5 of Chapter 11. This part deals with clarifying the physical elements of an offence where a person contravenes another provision of the Act, and clarifying clauses where a person can be liable to civil or criminal penalties for contravening the obligations of a clause. Division 2--Miscellaneous Clause 575 Physical elements of offences There are a number of clauses in the Bill that provide that a person commits an offence if the person contravenes another provision of the Act (generally an earlier subsection in the same section). For example, subclauses 118(5) and (6) are as follows: (5) A person contravenes this subsection if: (a) goods are unloaded as referred to in subsection (1); and (b) the person is a person prescribed for the purposes of subsection (2) in relation to the goods; and (c) the person does not give a notice in relation to the goods in accordance with subsection (3); and (d) no other person gives a notice in relation to the goods in accordance with that subsection. 368

Fault-based offence (6) A person commits an offence if the person contravenes subsection (5). Penalty: Imprisonment for 2 years or 120 penalty units, or both. Note: See section 575 in relation to the physical elements of an offence. As a result of subsection 4D(1) of the Crimes Act 1914, the offence is the subsection with the word "Penalty" at its foot (in this case, subclause 118(6)). However, clause 575clarifies that the physical elements of the offence (which are relevant for the purposes of Chapter 2 of the Criminal Code) are not to be found in the offence, but in the subsection that sets out the conduct that is prohibited (that is, subclause 118(5)). Clause 576 Contravening offence and civil penalty provisions This clause clarifies that for various clauses of the Bill, such as clause 214 of Chapter 4, or clause 269 of Chapter 5, a person is liable for civil or criminal penalties if the person contravenes the obligation set out in this clause. This clause is required because of the style of drafting in various clauses, which state an obligation in a particular way, in certain circumstances. For example, clause 214 states: "A person who is given a direction in relation to a conveyance under a provision of this Division must comply with the direction", whereas clause 269 states: "(1) A person contravenes this subclause if: (a) the person is the person in charge or operator of a vessel; and (b) the vessel is in Australian seas; and (c) the vessel discharges ballast water." To remove any doubt, this clause clarifies that contravention of these obligations constitutes a criminal offence, or gives rise to a civil penalty (as the case requires). 369

Chapter 12--Governance and officials Part 1--Introduction Clause 577 Guide to this Part This clause provides an overview to Chapter 12 outlining the subject matter of each Part. Key provisions relate to the Director of Biosecurity and the Director of Human Biosecurity, deal with biosecurity officers, biosecurity enforcement officers, chief human biosecurity officers and human biosecurity officers and deal with miscellaneous matters. Part 2--Director of Biosecurity Clause 578 Director of Biosecurity This clause provides that the Director of Biosecurity is the person who is or is acting as the Agriculture Secretary. Providing for the Agriculture Secretary to perform this role will ensure that the Director of Biosecurity is of appropriate seniority and with appropriate experience to exercise the powers conferred by this Bill and any other legislation. Clause 579 Functions and powers of Director of Biosecurity This clause sets out the functions and powers of the Director of Biosecurity. This clause provides that subject to the Act, the Director of Biosecurity has the power of general administration of the Act, to provide guidance on the Act in order to ensure a smooth introduction, transition and application of the legislation. The general administration power allows the Director of Biosecurity to provide guidance for departmental staff and the general public in the administration of the Bill. For example, the Director of Biosecurity may use the general administration power to issue public administration statements to assist in interpretation of the Bill and its provisions. Such statements may include: which powers the statement refers to and the scope of the statement; an explanation of the statement including the purpose; the principles and activities guiding the application of the relevant power; and an outline of how the statement will be applied. The power of general administration is for the purposes of guidance only, and is subject to the principles of administrative law. The power cannot, for example, be exercised by the Director of Biosecurity to interfere with the intention of Parliament, or to remedy any defects in the law. The Director of Biosecurity has the powers and functions conferred by the Bill and may do anything incidental or conducive to the functions or powers. This is intended to give flexibility to the Director of Biosecurity to ensure that the functions and powers of the Director can be exercised to their full effect. This clause outlines that in performing functions or exercising powers under the Act, the Director of Biosecurity must have regard to the objects of the Act. Providing for this explicitly, ensures that it is clear that the Director of Biosecurity must consider the objects of this Act in the course of any actions or decisions that are undertaken. This recognises that the Director is Secretary of the Agriculture Department and has other functions. This clause also outlines that the Director of Biosecurity must comply with any directions of the Agricultural Minister given to the Director of Biosecurity (which includes general directions as provided by clause 581 and directions to commence a Biosecurity Import Risk Analysis (BIRA) in relation to particular goods under clause 165). This is to clarify that the Bill intends to operate in line with administrative law principles; that is, despite the ability of 370

the Director of Biosecurity to exercise powers and functions under the Act, the Director is still subject to the direction of the Agriculture Minister in charge of the Agriculture Department. In performing functions or exercising powers under the Act the Director of Biosecurity must have regard to the objects of the Act. The Australian Government, with the agreement of all the states and territories has expressed Australia's Appropriate Level of Protection (ALOP; see clause 5 which provides a definition of ALOP) as `providing a high level of sanitary and phytosanitary protection, aimed at reducing biosecurity risks to a very low level, but not to zero'. When performing a function or exercising a power in relation to the BIRA process (Part 2 of Chapter 3) and risk assessments conducted for the purpose of determining whether particular goods can be brought or imported into Australia (Part 3 of Chapter 3), the Director of Biosecurity must apply the ALOP. Clause 580 Delegation and subdelegation This clause provides that the Director of Biosecurity may delegate any functions or powers, that are conferred on the Director of Biosecurity, under the Act to employees of the Agriculture Department holding, or acting in, the position of a Senior Executive Service employee (as defined by clause 2B of the Acts Interpretation Act 1901). This is to ensure that decision-making powers under the Bill are still carried out efficiently and effectively in an operational environment where the Director of Biosecurity may not have the capacity at a particular time to undertake all functions and powers conferred by the Act. This clause provides that the only power not able to be delegated by the Director of Biosecurity is the power of general administration of the Act (see clause 579), to ensure that the power remains the responsibility of the Director of Biosecurity only and avoids misuse. SES employees that are delegated powers by the Director of Biosecurity are then able to sub- delegate those powers to the following persons for the purposes of administrative necessity: biosecurity officers, biosecurity enforcement officers and employees of the Agriculture Department who are holding, or acting in, an Executive Level 1 or 2 position or equivalent. In an operational context, many of the powers that are delegated to SES staff may need to be completed by more junior staff as a matter of administrative necessity. This necessity arises from the volume and timeliness of decision making and availability of SES officers who have broad responsibilities. For example, the Director of Biosecurity is able to take possession of goods (under clause 131 (which deals with treatment that may damage goods) or clause 653 (which deals with abandoned goods)) - in the operational context it must be possible for officers below SES level to take possession of the goods (particularly low value goods) on the Director of Biosecurity's behalf. This subclause is not intended to operate to allow every power to be sub-delegated to every individual in every class listed; functions which may be sub-delegated to each particular class of persons listed above will be determined administratively. A number of powers which cannot be sub-delegated by SES employees are provided for in this clause, to ensure that responsibility for powers with more serious implications remain at a senior level. The following powers are not able to be sub-delegated: the power to determine that a person has demonstrated that information is commercial-in-confidence (see clause 14) the power to prohibit, suspend or put conditions on the bringing or importation of goods into Australian territory (see clause 170, 171, 179 and 180) 371

the power to order or give approval to cause an aircraft or vessel out of Australian territory (see clause 205) the power to approve for a conveyance to be removed from Australian territory, destroyed or otherwise dealt with (see clause 208) the power to give a direction requiring an aircraft not to land at any landing place in Australian territory (see clause 243) the power to give a direction requiring a vessel not to be moored at any port in Australian territory (see clause 251) the power to treat goods, a premises or a conveyance in a way that is likely to cause damage (see clauses 130, 207, 333, 335 and 337) the power to destroy goods, a premises or a conveyance (see clauses 133, 208, 209, 336, 339, 340, 341, 342, 655 and 656), and the power to declare zones under Chapter 6 (see clauses 363, 382 and 393) the power to approve the kind of information and the manner in which information is required to be provided by persons intending to enter or entering Australian territory (see clause 195). In performing functions or exercising powers delegates or sub-delegates must comply with any directions of the Director of Biosecurity (or the person who delegated the function or power) to ensure that powers exercised by the delegate or the sub-delegate are exercised appropriately and consistently. Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 apply in relation to a sub- delegation in the corresponding way to which they apply in relation to a delegation. These sections of the Acts Interpretation Act 1901 deal with delegation to persons holding, occupying or performing the duties of an officer or position, the effect of delegation and, the exercise of powers and performance of functions or duties that depend upon the opinion etc of the delegate. Clause 581 Agriculture Minister may give general directions to Director of Biosecurity This clause provides that the Agriculture Minister may give, by legislative instrument, general directions to the Director of Biosecurity on the performance of the Director's functions or powers. This is to clarify that the Bill intends to operate in line with administrative law principles; that is, despite the ability of the Director of Biosecurity to exercise powers and functions under the Act, the Director is still subject to the direction of the Agriculture Minister in charge of the Agriculture Department. This clause also provides limitations on directions that the Agriculture Minister can give to the Director of Biosecurity - the Agriculture Minister must not give direction to the Director of Biosecurity on the conduct of a BIRA in relation to particular goods (note that clause 165 provides for the Agriculture Minister to direct the Director of Biosecurity to commence a BIRA); or a decision relating to a specific permit to bring or import goods into Australian territory. This is to ensure that the BIRA process and individual decisions are based on technical and scientific decision making and not subject to other interference. 372

Part 3--Director of Human Biosecurity Clause 582 Director of Human Biosecurity This provision vests the Commonwealth Chief Medical Officer with the functions and powers of Director of Human Biosecurity under this Act. Part 4--Biosecurity officers and biosecurity enforcement officers Division 1--Authorisation Subdivision A--Authorisation by Director of Biosecurity Clause 583 Authorisation by Director of Biosecurity of persons as biosecurity officers This clause provides that the Director of Biosecurity may authorise a person to be a biosecurity officer. This clause outlines who the Director of Biosecurity may authorise as a biosecurity officer and further provides that the person must satisfy training and qualification requirements for biosecurity officers as determined by the Director of Biosecurity. Persons who may be authorised to be a biosecurity officer include: an officer or employee of a Commonwealth body an officer or employee of a State or Territory body a member of the Australian Defence Force, and any other person who the Director of Biosecurity considers it necessary to authorise to be a biosecurity officer under this Bill. The authorisation may state the period during which it has effect and can be varied or revoked by the Director of Biosecurity at any time. The Director of Biosecurity is required to determine, in writing, training and qualifications requirements for biosecurity officers to ensure consistency and to ensure that biosecurity officers have adequate training and qualifications to conduct biosecurity operations effectively and respond to incidents where necessary. The training and qualification requirements for biosecurity officers may include completing a biosecurity based course accredited by the Agriculture Department. The Director of Biosecurity must not authorise an officer or employee of a State or Territory body to be a biosecurity officer unless an arrangement is in force under in relation to the officer or employee (see clause 585). A determination made in relation to training and qualification requirements is not a legislative instrument as it does not have legislative character (consistent with section 7 of the Legislative Instruments Act 2003). Clause 584 Authorisation by Director of Biosecurity of persons as biosecurity enforcement officers This clause provides that the Director of Biosecurity may authorise a person to be a biosecurity enforcement officer where the person is a biosecurity officer or someone who would be eligible to be authorised as a biosecurity officer under clause 583, and where the person satisfies the training and qualification requirements determined for biosecurity enforcement officers. Training and qualification requirements are to be determined, in writing, by the Director of Biosecurity. 373

Biosecurity enforcement officers authorised under this Chapter will be required to be authorised, or be eligible to be authorised, as biosecurity officers first. This ensures that biosecurity enforcement officers have adequate training and qualifications to conduct biosecurity operations effectively and respond to incidents where necessary. Additional qualification and training requirements for biosecurity enforcement officers will mainly be based on enforcement experience, to ensure that enforcement and compliance powers across the Bill are exercised safely and effectively. Previous experience for biosecurity enforcement officers will be taken into account and may include work with law enforcement agencies. The authorisation may state the period during which it has effect and can be varied or revoked by the Director of Biosecurity. This clause also provides that if a biosecurity officer is authorised to be a biosecurity enforcement officer under this clause, the officer's authorisation under clause 583 ceases to have effect immediately after being authorised as a biosecurity enforcement officer. A determination made in relation to training and qualification requirements is not a legislative instrument as it does not have legislative character (consistent with section 7 of the Legislative Instruments Act 2003). Clause 585 Arrangements for State and Territory officers or employees to be biosecurity officers or biosecurity enforcement officers This clause provides that the Director of Biosecurity may enter into an arrangement with a state or territory body for officers or employees to be biosecurity officers or biosecurity enforcement officers. Arrangements with state or territory governments may be entered into in order to minimise duplication of efforts in the biosecurity sphere. For example the Commonwealth may enter into an agreement with a state or territory to have the state or territories biosecurity officers also become Commonwealth biosecurity officers so they are able to perform both functions. This would have multiple benefits including preventing duplication of services or inspections to meet both Commonwealth and state and territory biosecurity requirements, and also allows biosecurity services to be provided in locations where the Commonwealth does not have facilities. An agreement made with a state or territory body is not a legislative instrument as it is an agreement on work arrangements between the Commonwealth and states and territories and does not have legislative character (consistent with section 7 of the Legislative Instruments Act 2003). Subdivision B--Authorisation by Director of Human Biosecurity Clause 586 Authorisation by Director of Human Biosecurity of persons as biosecurity enforcement officers This power permits the Director of Human Biosecurity to authorise, in writing, the appointment of biosecurity enforcement officers. The powers of these biosecurity enforcement officers are limited to ensuring compliance with measures specified in a determination under clause 50. The Director of Human Biosecurity may only authorise a person to be appointed under this clause, if that person: is an officer or employee of a State or Territory body is not a biosecurity officer, and 374

satisfies the training and qualification requirements of a biosecurity enforcement officer under clause 8(5). Prior to appointing officers or employees of a State or Territory body as a biosecurity enforcement officer, an arrangement must be in place with that State or Territory body under clause 587. The appointment of biosecurity enforcement officers is only valid for the duration of the determination under clause 50, and may be varied or revoked at any time in writing. Clause 587 Arrangements for State or Territory officers or employees to be biosecurity enforcement officers This provision permits the Director of Human Biosecurity to enter into an arrangement with a State or Territory body, to allow for the appointment of officers and employees of that body as biosecurity enforcement officers under clause 586. This is a power to appoint temporary, short term officers to enforce measures that have been specified in a determination under clause 50. Preventative measures may only be specified by the Health Minister following agreement with the relevant State or Territory. Due to the temporary and specific nature of these appointments, this power to appoint officers to enforce measures agreed by Ministers has been vested with the Director of Human Biosecurity. Division 2--Functions and powers Subdivision A--General Clause 588 Functions and powers of biosecurity officers This clause provides that a biosecurity officer will have the functions and powers conferred on the officer by this Act, subject to any restrictions in the instrument of authorisation. Whilst performing functions or exercising powers under this Act, biosecurity officers must comply with any directions from the Director of Biosecurity. Restrictions specified in a biosecurity officer's instrument of authorisation are for practical purposes as certain levels of biosecurity officers will be able to do certain things, for example a higher level officer is needed to sign off on treatment for goods worth over a certain amount rather than a more junior officer. Clause 589 Functions and powers of biosecurity enforcement officers This clause provides that a biosecurity enforcement officer has the functions and powers conferred on biosecurity enforcement officers and may perform functions and exercise the powers conferred on biosecurity officers. Whilst performing functions or exercising powers under this Act biosecurity enforcement officers must comply with any directions of the Director of Biosecurity. Restrictions that are specified in a biosecurity enforcement officer's instrument of authorisation are for practical purposes as certain biosecurity enforcement officers authorised to do specific things, for example a biosecurity enforcement officer may be required to execute a warrant for the purposes of investigating non-compliance with the Act where another biosecurity enforcement officer with different experience may not. Clause 590 Directions to assist persons performing functions etc. under this Act This clause provides that a biosecurity official, or a human biosecurity official, may direct a person to assist them in performing functions or exercising powers under this Act, where the official is satisfied, on reasonable grounds, that the person is able to provide reasonable assistance to the official. Circumstances where directions can be given include where a 375

biosecurity official or human biosecurity official is performing functions or duties or exercising powers in relation to goods that are subject to biosecurity control, a conveyance that is subject to biosecurity control or in relation to a person or thing on the conveyance. A person commits an offence and is liable to a civil penalty if the person is given a direction under this clause and contravenes that direction. The maximum penalty for contravention a direction is six months imprisonment, or a fine of 30 penalty units, or both. The maximum civil penalty for contravention is 30 penalty units. Clause 9 outlines that `biosecurity official' includes biosecurity officers, biosecurity enforcement officers and the Director of Biosecurity. The term `biosecurity official' is used here to encompass all persons who have training to perform biosecurity activities under this Bill. This clause outlines that `human biosecurity official' includes human biosecurity officers, chief human biosecurity officers and the Director of Human Biosecurity. The term `human biosecurity official' is used here to encompass all persons who have training to perform human biosecurity activities under this Bill. Clause 591 Biosecurity officers and biosecurity enforcement officers may be assisted by animals This clause provides the circumstances in which a biosecurity officer or a biosecurity enforcement officer may be assisted by an animal. This clause provides that for a biosecurity officer or a biosecurity enforcement officer to be assisted by an animal the officer must be authorised by the Director of Biosecurity to handle animals in the performance of functions or duties or the exercise of powers under the Act and that the animal must be under the effective control of the biosecurity officer or biosecurity enforcement officer. Animals may only be used to accompany biosecurity officers and biosecurity enforcement officers in certain circumstances. These circumstances include entering and exercising powers: at a landing place in Australian territory where an aircraft that is subject to biosecurity control has landed or intends to land at a port in Australian territory where a vessel that is subject to biosecurity control has been moored or intends to be moored on premises that may be entered with the consent of the occupier or under an entry warrant on premises in a biosecurity response zone, biosecurity monitoring zone or biosecurity activity zone on premises where biosecurity activities are carried out by a biosecurity industry participant in accordance with an approved arrangement covering the biosecurity industry participant on premises entered in accordance with Division 6 of Part 1 of Chapter 8 during a biosecurity emergency period, or at any other place where goods may be held under this Bill. Other circumstances where a biosecurity officer or biosecurity enforcement officer may use an animal include inspecting any goods, conveyances, or other premises for the purposes of the Bill. This clause is included in the Bill to acknowledge that animals may be used to assist in situations to detect biosecurity risks. For example dogs are used at airports and mail centres 376

to detect a range of biosecurity risks that could include plant material or meat. Additionally, this clause is required to clarify that animals may assist biosecurity officers and biosecurity enforcement officers in areas where animals are ordinarily not permitted, for example, in places of food preparation import, packaging and redistribution facilities. This clause does not apply to the exercise of a power by a biosecurity officer or a biosecurity enforcement officer under an entry warrant unless the use of the animal by the officer is authorised by the warrant. Clause 592 Carrying out tests on samples This clause provides that if a biosecurity officer has the power to carry out tests on samples the officer may carry out tests, which may include damaging or destroying the sample, or arrange for a qualified person to carry out the tests. This clause outlines that the regulations may include how samples may be stored. This clause intends to allow biosecurity officers to sample goods to determine the biosecurity risk associated with a good. This clause allows the sample to be damaged or destroyed as sometimes damage or destruction of a sample is unavoidable when testing to determine a biosecurity risk. Clause 593 Biosecurity officer may direct person in charge of conveyance to permit biosecurity officer to board This clause applies to conveyances that are subject to biosecurity control or conveyances that are carrying goods that are subject to biosecurity control. This clause outlines the circumstances in which a biosecurity officer may direct the person in charge of a conveyance to permit the biosecurity officer to board and to facilitate that boarding. There are both civil and criminal penalties for not permitting boarding. A biosecurity officer may only give a direction to permit facilitate boarding for the purposes of exercising powers under Part 1 of Chapter 3 or Part 2 of Chapter 4. A person commits an offence and is liable to a civil penalty if the person contravenes this clause. The maximum penalty for contravention is two years imprisonment, or a fine of 120 penalty units, or both. The maximum civil penalty for contravention is 120 penalty units. This clause is intended to allow a biosecurity officer to safely board a conveyance in order to conduct biosecurity powers or functions. Clause 594 Powers that may be exercised by biosecurity officer after boarding a conveyance This clause provides that if a biosecurity officer boards a conveyance under clause 593 the officer may remain on the conveyance for any period believed necessary. Additionally, if boarding a conveyance, the officer may direct the person in charge of the conveyance to provide suitable and sufficient food and sleeping accommodation. This person commits a strict liability offence for not complying with a direction to provide food and accommodation to a biosecurity officer under this clause. The maximum penalty for contravention of this clause is a fine of ten penalty units. For this clause, the prosecution will have to prove that a direction was given and the person contravened that direction. However, the accused person will still be able to rely on the defence in the Criminal Code (Part 9) of honest and reasonable mistake of fact. 377

This clause is necessary as situations that call for the boarding of a conveyance may mean that the officer is required to stay on the conveyance for a number of days. For practical reasons the person in charge of a conveyance would be required to provide food and accommodation in such circumstances in order for the biosecurity officer to effectively exercise the officer's powers. Clause 595 Biosecurity officer may give permission to engage in certain conduct in relation to certain goods and conveyances This clause provides a range of circumstances in which a biosecurity officer may give a person permission to engage in certain conduct. These circumstances include giving a person permission to: interfere with, remove or deface notices (see clauses 126,136, 202, 213, 321, 346, 361, 371, 372, 379, 380, 389, 390, 399, 400 and 454) move, deal with or interfere with goods or conveyances (see clauses 127, 138, 146, 203, 215, 322, 328, 349, 455, 636 and 642) unload goods that are subject to biosecurity control from an aircraft or vessel (see clause 149) receive or possess goods that have been unloaded from an aircraft or vessel displaying the prescribed quarantine signal (see clause 150) board a conveyance (see clauses 217, 218 and 219) allow another person to board a conveyance (see clauses 218 and 219), and interfere with, remove or deface traps, equipment or other structures (see clauses 374, 381 and 391). This clause is intended to allow biosecurity officers to allow or ask others to do certain things so that the biosecurity officer is not required to do everything personally when it is not practicable to do so. Subdivision B--Decontamination Clause 596 Decontaminating an individual This clause provides for a biosecurity officer to request an individual to be decontaminated, subject to the protections provided to the individual within this clause and in other clauses of the Bill. Before requesting decontamination, the biosecurity officer must reasonably suspect that the individual has been exposed to a disease or pest, and must reasonably be satisfied that decontamination is likely to either be effective in--or contribute to--the management of biosecurity risk. Additionally, the biosecurity officer is required to be satisfied of all of the following (see also: subclause 31(2) which provides for limitations on the exercise of powers): that exercising the power is likely to be effective in, or to contribute to, achieving the purpose for which the power is to be exercised that exercising the power is appropriate and adapted to achieve that purpose that the manner in which the power is to be exercised is no more restrictive or intrusive than is required in the circumstances if the power is to be exercised in relation to an individual--that the power is no more restrictive or intrusive than is required in the circumstances, and if the power is to be exercised during a period--that the period is only as long as is necessary. 378

These requirements placed on the biosecurity officer ensure that decontamination of an individual is only requested where there is a reasonable suspicion of a biosecurity risk, and that decontamination will assist or be successful in managing the risk, The requirements ensure invasion of personal privacy is only to the extent that is reasonable, proportionate and necessary to managing the biosecurity risk posed. Where the above requirements have been satisfied and a request for decontamination is made, this clause further requires a biosecurity officer to provide written notice to the individual as soon as practicable. The written notice must detail the following information: who is to conduct the decontamination and how the decontamination is to be conducted (for example, the individual may be required to take a shower); where and when the decontamination takes place; and that the person may consent to the decontamination, but where the individual refuses consent, the Director of Biosecurity may direct the individual to be decontaminated (see clause 597 below). The purpose of this written notice is to ensure that the individual is properly informed. See clauses 35 to 39 further for protections for children and incapable persons that also apply to this clause, as if this clause were in Chapter 2. Clause 597 Direction to individual to be decontaminated This clause provides for the circumstance where an individual given a direction by a biosecurity officer to be decontaminated, refuses consent under clause 596, and the biosecurity officer requests the Director of Biosecurity to give a direction for decontamination of the individual. Before being able to exercise the power to give a direction for decontamination, the Director of Biosecurity is required to take into account any reason the individual gives for refusing consent, and any factors that may affect the health of the individual. These requirements ensure that the Director of Biosecurity is made to consider issues relevant to the protection of the individual in balance with the biosecurity risk posed. The Director of Biosecurity may also consider any other matter the Director believes to be relevant. Additionally, this clause provides for a test which is required to be satisfied before the Director of Biosecurity can give this direction, to ensure further protection for the individual against improper use of power. Under the test, the Director of Biosecurity must both: suspect on reasonable grounds that the individual may have been exposed to a disease or pest, and be satisfied on reasonable grounds that decontamination is likely to either be effective in--or contribute to--the management of biosecurity risk. The Director of Biosecurity must adhere to the general protections contained within subclause 31(2) (limitations on the exercise of powers). In addition to the requirements placed on the Director of Biosecurity, the clause provides a further safeguard against improper use of power by clarifying that an individual directed to be decontaminated may be able to apply for judicial review of the direction. If a person refuses the direction to decontaminate, the Director of Biosecurity may be able to apply for an injunction under Part 4 of Chapter 11, to ensure that the biosecurity risk posed is managed appropriately. 379

This clause also provides that on receiving a request to direct a person to decontaminate from a biosecurity officer, the Director of Biosecurity is required within a 72 hour timeframe to provide for a notice to be given to the individual. The notice must outline either that the individual is required to be decontaminated, or not, and the reasons for the decision. The notice requirements are for purposes of transparency and to ensure that the individual is kept properly informed. A person commits an offence if the person is directed to be decontaminated under subclause (4) and fails to do so. The maximum penalty for failure to comply with a direction under subclause (4) is two years imprisonment, or a fine of 120 penalty units, or both. Clause 598 Decontaminating clothing and personal effects This clause provides that a biosecurity officer may require an individual to allow decontamination of clothing or personal effects. Before requesting decontamination, the biosecurity officer must reasonably suspect that the individual's clothing or personal effects have been exposed to a disease or pest, and must reasonably be satisfied that decontamination is likely to either be effective in--or contribute to--the management of biosecurity risk. The biosecurity officer must adhere to the protections in subclause 31(2) (limitations on the exercise of powers). For the purposes of this clause, personal effects include baggage, such as a suitcase, that the individual has in their possession while on an aircraft, vessel or other conveyance. If an individual's clothing is required to be decontaminated, this clause contains protections for the individual. The biosecurity officer must take the individual as soon as possible to a place that, in the officer's opinion, affords the individual adequate personal privacy. The biosecurity officer must also provide the individual with suitable clothing if the individual does not have alternative clothing. For example, a biosecurity officer may request an individual's shoes to be decontaminated. Under this clause a biosecurity officer would be required to provide suitable footwear for the individual if the individual does not have alternative footwear. These requirements on the biosecurity officer are for the purpose of protecting the individual from undue interference of personal privacy. A person commits an offence if the person has been given a direction under subclause (1) and refuses that direction. The maximum penalty for refusing a direction under subclause (1) is two years imprisonment, or a fine of 120 penalty units, or both. Clause 599 Other protections in relation to decontamination This clause provides protections for the individual in relation to decontamination, in addition to protections for the individual specific to clauses 596, 597 and 598 (decontamination provisions). Further, this clause provides that the Commonwealth is liable to pay for reasonable expenses incurred in relation to the individual's clothing or personal effects (for example, this may include damage caused to clothing by the decontamination process). This clause provides that force cannot be used against the person in relation to directions given by the Director of Biosecurity for an individual to be decontaminated (paragraph 597(4)(a)), or in the case of an individual who has refused consent to personal decontamination and the biosecurity officer has requested the Director of Biosecurity to issue 380

a direction for decontamination (subclause 596(5)). This is to ensure protection to the individual, even where the individual contravenes the direction, and clarifies that biosecurity officers or the Director of Biosecurity cannot use physical force on an individual to be decontaminated. This clause provides that in issuing a direction for decontamination of clothing or personal effects, biosecurity officers may use force against things as is reasonable or necessary in the circumstances (for example, picking up or moving clothing where the biosecurity officer requires the clothing to be decontaminated). The intention of this clause is to safeguard against improper use of the decontamination power by the Director of Biosecurity and biosecurity officers, and to ensure that any potential invasion of an individual's personal privacy is only to the extent that is reasonable, necessary and proportionate to the objective of managing biosecurity risk. Part 5--Chief human biosecurity officers and human biosecurity officers Division 1--Authorisation Clause 600 Authorisation of chief human biosecurity officers This power allows the Director of Human Biosecurity to authorise, in writing, the appointment of chief human biosecurity officers for a State or Territory. The Director of Human Biosecurity may only authorise a person to be appointed under this clause, if that person: is a medical practitioner is an officer or employee of a State or Territory body, and that State or Territory body is responsible for administering health services. The powers of chief human biosecurity officers are potentially personally invasive and restrictive. Chief human biosecurity officers must be medical practitioners, ensuring that these officers have appropriate competencies to make decisions regarding the management of ill individuals, and are bound by appropriate professional standards when exercising functions or powers under the Act. Any authorisation under this clause may specify the period of the appointment, and the appointment may be varied or revoked at any time in writing. Prior to appointing officers or employees of a State or Territory body as a chief human biosecurity officer, an arrangement must be in place with that State or Territory body under clause 602. The powers of a chief human biosecurity officer are not restricted in application to a particular State or Territory. Clause 601 Authorisation of human biosecurity officers This power permits the Director of Human Biosecurity to authorise, in writing, the appointment of human biosecurity officers. The Director of Human Biosecurity may only authorise a person to be appointed under this clause, if that person: is an employee of the Commonwealth health department is an officer or employee of a State or Territory body responsible for administering health services, or is a member of the Australian Defence Force. 381

The Director of Human Biosecurity is required to specify training and qualification requirements for human biosecurity officers in writing, and must be satisfied that any person to be appointed under this clause has appropriate clinical expertise. The powers of human biosecurity officers are potentially personally invasive and restrictive. Human biosecurity officers must have appropriate competencies to make decisions regarding the management of ill individuals, and are bound by appropriate professional standards when exercising functions or powers under the Act. Any authorisation under this clause may specify the period of the appointment, and the appointment may be varied or revoked at any time in writing. Prior to appointing officers or employees of a State or Territory body as a human biosecurity officer, an arrangement must be in place with that State or Territory body under clause 602. Clause 602 Arrangements for State or Territory officers or employees to be chief human biosecurity officers or human biosecurity officers This provision grants the Health Minister power to enter into an arrangement with a State or Territory body, to allow for that bodies officers and employees to be appointed as a chief human biosecurity officers, or human biosecurity officers, under clause 600 or 601. This power is vested with the Health Minister as the appointment of chief human biosecurity officers and human biosecurity officers are ongoing appointments, supported Commonwealth and State or Territory funding arrangements. Division 2--Functions and powers Clause 603 Functions and powers of chief human biosecurity officers A Chief human biosecurity officers has the functions and powers conferred by this Act, and must comply with any directions given by the Director of Human Biosecurity when performing functions and exercising powers under this Act. Clause 604 Functions and powers of human biosecurity officers Human biosecurity officers have the functions and powers conferred by this Act, and must comply with any directions given by the Director of human biosecurity when performing functions and exercising any powers of the Act. The powers of individual human biosecurity officers may also be restricted by the officer's Instrument of Appointment. Part 6--Miscellaneous Clause 605 Identity cards - biosecurity officers etc. This clause provides that the Director of Biosecurity is to issue an identity card to every biosecurity officer and biosecurity enforcement officer. Identity cards must be in the form approved by the Director of Biosecurity, contain a recent photograph of the officer, and be carried at all times when performing functions or duties under this Act. This provision aims to ensure that only authorised officers perform functions and exercise powers under this Act, and that these officers can be readily and easily identified. 382

Clause 606 Identity cards - human biosecurity officers etc. This clause provides that the Health Secretary is to issue an identity card to the Director of Human Biosecurity, chief human biosecurity officers and human biosecurity officers. Identity cards must be in the form approved by the Health Secretary, contain a recent photograph of the officer, and be carried at all times when performing functions or duties under this Act. This provision aims to ensure that only authorised officers perform functions and exercise powers under this Act, and that these officers can be readily and easily identified. Clause 607 Offence - failure to return identity card This clause provides a penalty for individuals who fail to return the identity card within 14 days, when the appointment as an officer under this Act ceases. This aims to ensure that officers cannot continue to purport to perform functions and exercise powers under this Act when appointments cease, or are revoked. This clause also provides defences for individuals not returning identity cards, which includes the identity card being lost or destroyed. This clause makes it a strict liability offence for failing to return an identity card. A fine of one penalty unit can be imposed. For this clause, the prosecution will have to prove the identity card was not returned. However, the accused person will still be able to rely on the defence in the Criminal Code (Part 9) of honest and reasonable mistake of fact. It will be an exception if the identity card was lost or destroyed. To rely on this exception, the person bears the evidential burden, which means that the person must adduce evidence which points to the fact that the card was lost or destroyed. It will then be up to the prosecution to establish that this exception does not apply. Clause 608 General provisions relating to directions This clause provides for the purposes of clarity that, unless otherwise stated; a direction under this Act may be given orally or in writing (including by electronic means); and, unless otherwise provided, a direction that is given under this Act is not a legislative instrument. This clause also provides that a later direction overrides an earlier direction to the extent of any inconsistencies, to ensure that any errors in the original direction are easily rectified. 383

Chapter 13--Miscellaneous Part 1--Review of decisions Clause 609 Guide to this Part This clause provides a guide to Part 1 of Chapter 13 and outlines that this Part allows certain decisions (known as reviewable decisions) to be reviewed internally or by the Administrative Appeals Tribunal (AAT). This Part ensures that people who are affected by a reviewable decision and believe an incorrect decision has been made are able to apply to have the decision reviewed. Consistent with the Australian Administrative Law Policy Guide, an internal review of a decision is done by another person in the same agency as the original decision maker. External merits review is conducted by AAT. Clause 610 Reviewable decisions This clause lists the decisions made under this Bill that are reviewable decisions, and the relevant person who may request a review of the decision. The relevant person for each reviewable decision is listed in this clause, and is generally the person whose interests are affected by the decision, or the person who applied for something or requested an approval for something under a provision listed in this clause. This clause also provides that the regulations may prescribe additional decisions made under this Act that are reviewable decisions, and the relevant persons who may request a review of the additional decisions. If a decision is not listed in the table or the regulations as a reviewable decision, internal review under the Bill and merits review is not available. However this does not limit the review rights of a person who is affected by a decision to seek review pursuant to the Administrative Decisions (Judicial Review) Act 1977 and common law. Clause 611 Notice of decision This clause provides that after a reviewable decision is made, the person who made the decision must give written notice to the relevant person for the reviewable decision (clause 610 provides a list of relevant persons for reviewable decisions). This notice must contain the terms of the decision, the reasons for the decision and notice of the person's right to have the decision reviewed. Failure to provide this notice does not affect the validity of the decision. This notice requirement ensures that a person is able to understand the decision and is aware of his or her rights. However, as decisions made under the Bill are made to give effect to the objects of the Bill--that is for the management of biosecurity and associated risks--it is not appropriate for such decisions to be found invalid if a notice of decision is not provided to the person whose interests are affected by the decision. Clause 612 Internal review of reviewable decisions This clause outlines the requirements for internal review of decisions made under this Act. A relevant person may apply to the Director of Biosecurity for review of a reviewable decision unless the decision was made by the Director of Biosecurity or the Director of Human Biosecurity personally (clause 610 provides a list of relevant persons for reviewable decisions). Clause 614 outlines the process for review of a decision that has been personally made by the Director of Biosecurity or the Director of Human Biosecurity. 384

An application for an internal review must be in writing to the Director of Biosecurity and be from the relevant person (the applicant). This notice must be given within 30 days after the day the original decision first came to the notice of the applicant or within a longer period allowed by the Director of Biosecurity. The application for review must state the reasons why the review has been requested. On receiving the application, the Director of Biosecurity must either review the decision personally or cause the reviewable decision to be reviewed by another person. This other person must be someone to whom the Director's power to make the decision has been delegated to, who was not involved in the original decision and who is in a more senior role than the person who made the original decision. This separates the review from the original decision and ensures the person who is doing the review has the capability and authority to remake the decision if the decision-maker thinks it is appropriate to do so. The Director of Biosecurity or the internal reviewer may affirm, vary or set aside the reviewable decision. If the Director or internal reviewer sets aside the decision they may make another decision as appropriate (known as the decision on review). The decision on review takes effect on the day specified in the decision on review, or if the day is not specified, the day the decision on review was made. After a decision is made under this clause, the person who made the decision must give the applicant a written notice containing the terms of the decision, the reasons for the decision and details of the person's right to have the decision reviewed by the AAT. Failure to provide this notice does not affect the validity of the decision. This notice requirement ensures that a person is able to understand the decision and is aware of his or her rights. This clause also provides that for the purposes of having the decision reviewed by the AAT (pursuant to clause 614), the Director of Biosecurity is taken to have affirmed the reviewable decision if the applicant does not receive notice of the decision on review (if any) within 90 days after the application for review was made. This ensures that any delays in internal review, or in providing notification of the decision on review, can be redressed by having the decision reviewed by the AAT. Clause 613 Director of Biosecurity may require further information from applicants In reviewing a reviewable decision, the Director of Biosecurity may, by written notice, require the person who made the application for review to provide further information. This clause also allows the Director to refuse to consider the application until the information is provided. This additional information will assist the Director of Biosecurity in considering the reviewable decision. Clause 614 Review by the Administrative Appeals Tribunal An application may be made to the AAT for review of a reviewable decision made by the Director of Biosecurity or the Director of Human Biosecurity personally, and decisions made by the Director of Biosecurity or internal reviewers under clause 612. An application under this clause may only be made by, or on behalf of, the relevant person for the reviewable decision (clause 610 provides a list of relevant persons for reviewable decisions). This clause enables a person who is not satisfied by the decision on review to have the decision reviewed again by the AAT. 385

Part 2--Confidentiality of information Division 1--Introduction Clause 615 Guide to this Part This clause provides an overview of the confidentiality of information provisions of the Bill. This part outlines the circumstances in which commercial-in-confidence information may be collected, recorded, used or disclosed under the Bill. It also provides an offence for persons who disclose personal or commercial-in-confidence information other than in the circumstances provided. Division 2--Confidentiality of information Clause 616 Disclosure of protected information This clause provides that protected information may be disclosed under this Bill, and sets out the circumstances in which records may be made of information, and the information may be disclosed or used. Additionally, it allows the Director of Biosecurity to authorise persons to make records of protected information, use protected information or disclose protected information for a permissible purpose (which is a purpose that promotes the objects of the Act) in specific circumstances. Protected information includes personal information, or commercial-in-confidence information that is obtained under or in accordance with this Act, derived from a record of information made under or in accordance with this Act, or derived from a disclosure or use of information under or in accordance with this Act. This clause provides that a person may make a record of, disclose or otherwise use protected information if done for a permissible purpose in performing functions or duties and exercising powers under this Act and the disclosure is made to one of the following people: an officer or employee of the Commonwealth, a State, the Australian Capital Territory or the Northern Territory an officer or employee of a Commonwealth body, or a State or Territory body a person engaged by the Commonwealth, a State, the Australian Capital Territory or the Northern Territory, to perform public health work or to manage biosecurity risks in relation to plant or animal health a person engaged by a Commonwealth body, or a State or Territory body, to perform public health work or to manage biosecurity risks in relation to plant or animal health, and a biosecurity industry participant or a survey authority. This clause allows the Director of Biosecurity or the Director of Human Biosecurity to authorise, in writing, a person to make a record of or use protected information for a permissible purpose or to disclose protected information to a specified person or to a specified class of persons for a permissible purpose - as specified in the authorisation. It also provides that a person who is authorised to make a record of, disclose, or otherwise use protected information may do so in accordance with the authorisation. Records, disclosures and uses permitted by this clause constitute an authorisation for the purposes of the Privacy Act 1988 and other laws. 386

Personal and commercial-in-confidence information is collected under the Bill to allow biosecurity risks to be assessed in relation to people, goods and conveyances. For example, personal details on a permit application may enable DAFF biosecurity to link the applicant to a past permit where conditions on goods have not been met, allowing a closer inspection of the goods on arrival to be undertaken if required. Clause 506 in Chapter 9 is also relevant in relation to this Part as it allows the Director of Biosecurity to specify, by legislative instrument, kinds of personal information that is required to be provided with certain applications made pursuant to the Bill (see clause 506 for further information). Clause 617 Use in accordance with clause 616 does not contravene laws etc. This clause provides that a person who is authorised to make a record of, use, or disclose protected information in accordance with clause 616 will be protected from committing offences or being liable to any penalty under the provisions of an Act of the Commonwealth, or of a State or Territory (or instruments made under an Act of the Commonwealth, or of a State or Territory) as a result of making records, disclosing, or using information. This protection extends to not being liable to civil proceedings for loss or damage caused by disclosing information in accordance with clause 616. However, protected information may not be recorded, used, or disclosed in contravention of the Australian Security Intelligence Organisation Act 1979 or the Intelligence Services Act 2011. This clause also provides that authorised persons making records of, using, or disclosing information will not contravene any relevant professional standards. These protections ensure that the Commonwealth has access to all relevant information required to effectively assess and manage biosecurity risks. Clause 618 Authorisation to use information for purpose of proceedings This clause provides that a person who obtains protected information for a permissible purpose (which is a purpose that promotes the objects of this Act) may disclose the information to a court, tribunal or coronial inquiry in accordance with an order of a court, tribunal or coroner. A person who obtains protected information for the purposes of court or tribunal proceedings or a coronial enquiry may make a record of, disclose, or otherwise use the information for the purpose it was disclosed. For example, a biosecurity officer would be authorised under this clause to disclose information obtained in a permit application to a court official for the purposes of court proceedings against the applicant. The court official would also be authorised under this clause to use the information for the purposes of the court proceedings. The National Security Information (Criminal and Civil Proceedings) Act 2004 may apply to proceedings under this Division. It contains offences for disclosing information of national security significance. This clause constitutes an authorisation for the purposes of the Privacy Act 1988 and other laws. 387

Clause 619 Authorisation to use information that is also received from another source, and use of information by prescribed agencies This clause authorises a person to use protected information that is received from another source and sets out the circumstances in which the protected information can be used by prescribed agencies. A person may make a make a record of, disclose, or otherwise use protected information if the information is obtained for a permissible purpose (a purpose that promotes the objects of the Act) and the first person is: an officer or employee of the Commonwealth, a State, the Australian Capital Territory or the Northern Territory an officer or employee of a Commonwealth body, or a State or Territory body a person engaged by the Commonwealth, a State, the Australian Capital Territory, or the Northern Territory, to perform public health work or to manage biosecurity risks in relation to plant or animal health a person engaged by a Commonwealth body, or a State or Territory body, to perform public health work or to manage biosecurity risks in relation to plant or animal health a biosecurity industry participant or a survey authority. This person is authorised to make a record of the information received from another source if the record, disclosure, or use of the information is authorised or not prohibited by a law of the Commonwealth, State or Territory. This provision allows information to be shared across jurisdictions. For example, where a biosecurity officer receives information (including protected information) about a pest or disease incursion from a state officer, the biosecurity officer may make a record of, use, or disclose the information. This clause outlines the use of information by intelligence agencies. It authorises a person to make a record of, disclose, or use protected information if it is disclosed to an officer or employee of an intelligence agency prescribed by the regulations. The officer or employee of the intelligence agency may make a record, use, or disclose this information in the performance of his or her functions or duties. A person who receives this information may record, use, or disclose the information for the purposes for which the information was disclosed or as prescribed in the regulations. This clause allows for information sharing with intelligence agencies, through ensuring that they are able to use information collected under this Act. This clause constitutes authorisations for the purposes of the Privacy Act 1988 and other laws. Clause 620 Authorisation to use information required by another law This clause authorises a person to make a record of, disclose, or otherwise use protected information if, the person obtains the information for a permissible purpose (a purpose that promotes the objects of this Act) and the person makes a record of, discloses, or uses the information in accordance with a law of the Commonwealth, a State or Territory. This clause allows information to be shared across the Australian Government and with State and Territory Governments to manage biosecurity risks and to allow for monitoring, compliance and enforcement activities to be conducted under other Acts and regulations. However, this clause only allows a person to make a record of, use, or disclose protected information for a permissible purpose. This ensures that information can be recorded, 388

disclosed, or used for the purposes of performing functions or duties or exercising powers under the Bill. For example, if the department receives information on an outbreak of a plant disease in a particular region of Australia, it may pass on this information to the relevant state or territory government department for the purposes of managing the biosecurity risk. These provisions are consistent with the Privacy Act 1988. Where information needs to be disclosed to a person not employed or engaged by a state, a territory or the Commonwealth, the Director of Biosecurity or the Director of Human Biosecurity may authorise the recording, disclosure, or use of the information (pursuant to clause 616). This power will be used in limited circumstances, such as providing a notice of intention to unload goods in Australian territory to a biosecurity industry participant carrying out biosecurity activities in relation to those goods. This clause constitutes an authorisation for the purposes of the Privacy Act 1988 and other laws. Clause 621 Offence relating to protected information This clause creates an offence where a person obtains protected information, and makes a record of, discloses, or otherwise uses the information without an authorisation under clauses 616, 618, 619 or 620. A maximum penalty of two years imprisonment or 120 penalty units applies for contravention of the authorisation provisions, which is considered appropriate due to the nature of information encompassed by the scope of protected information. Clause 622 Exception for use of information in good faith This clause provides an exception to the offence under clause 621 if the person obtains protected information for a permissible purpose (a purpose that promotes the objects of the Act) and the person discloses, makes a record of, or uses the information in good faith in exercising or purportedly exercising functions and powers under the Bill. For this exception the defendant bears the evidential burden, which means that the defendant must adduce evidence which points to the use of information in good faith. It will then be up to the prosecution to establish that this exception does not apply. Clause 623 Exception for person who does not know that information is commercial-in-confidence This clause provides an exception to the offence under clause 621 if the person makes a record of, discloses, or otherwise uses protected information that is commercial-in-confidence if the person does not know that the information is commercial-in-confidence. For this exception, the defendant bears the evidential burden, which means that the defendant must adduce evidence which points to the fact that he or she did not know that the information was commercial-in-confidence. It will then be up to the prosecution to establish that this exception does not apply. Clause 624 Exception for disclosing to the person to whom information relates, or if the person to whom information relates consents This clause provides an exception to the offence under clause 621 if the person obtains protected information for a permissible purpose (a purpose that promotes the objects of the 389

Act) and he or she discloses the information to another person and that other person is the person to whom the information relates. Clause 621 also provides an exception to the offence if a person obtains protected information and the person to whom the information relates consents to the use, disclosure or recording of that information. For these exceptions the defendant bears the evidential burden, which means that the defendant must adduce evidence which points to the disclosure of information to the person to which it relates, or with the consent of the person to which it relates. It will then be up to the prosecution to establish that this exception does not apply. Clause 625 Exception for disclosure to person who provided the information This clause provides an exception to the offence under clause 621 if the person obtains protected information for a permissible purpose (a purpose that promotes the objects of the Act) and he or she discloses the information to the person who provided the information. To rely on this exception, the person bears the evidential burden, which means that the person must adduce evidence which points to the fact that the person disclosed the information to the person who provided the information. It will then be up to the prosecution to establish that this exception does not apply. Clause 626 Annual report This clause requires the Director of Biosecurity and the Director of Human Biosecurity to prepare a report each financial year (annually) on the use of protected information by the Commonwealth over a 12 month period. This information will be included in the annual report prepared by the Agriculture Department (in the case of the Director of Biosecurity) and the Health Department (in the case of the Director of Human Biosecurity). This clause will provide transparency in relation to the use of protected information by the Agriculture Department and the Health Department. Part 3--Recovery of costs Division 1--Introduction Clause 627 Guide to this Part This clause provides an overview of the cost recovery provisions of the Bill. This Part allows the Commonwealth to charge fees in relation to activities carried out under this Act. It provides for the regulations to prescribe fees that may be charged, how unpaid fees may be dealt with, and for the Director of Biosecurity to sell certain goods and conveyances (including in order to recover unpaid fees). This Part also contains miscellaneous provisions, including the power to remit or refund a fee. Division 2--Fees Clause 628 Fees This clause provides that the regulations may prescribe fees that may be charged in relation to services and activities carried out by, or on behalf of, the Commonwealth in performing functions and exercising powers under this Bill. These services and activities are known as `chargeable activities'. For example, the Commonwealth will be able to recover the costs for reviewing various applications and carrying out biosecurity measures in relation to goods, conveyances, and premises. 390

This clause also provides that the regulations may prescribe the time when a specified fee is payable, require a deposit to be paid in relation to a chargeable activity, prescribe one or more person who is liable to pay a fee (and any late payment fee in relation to the fee), and require an application to be accompanied by a fee. Any fee prescribed under this clause in relation to a chargeable activity carried out on behalf of the Commonwealth may be specified as the cost incurred by the Commonwealth in arranging and paying another person to carry out the activity. For example the fee charged for a biosecurity measure, such as fumigation, to be carried out by a third party may include the cost of arranging and paying for the third party to carry out the activity. This clause is consistent with the Australian Government Cost Recovery Guidelines. It allows the Commonwealth to recover all the costs of products and services offered by the Commonwealth. This clause ensures that any fees set out in the regulations do not amount to taxation. Any fees or charges set out in the regulations will reflect the costs of providing the product or service. This clause has been inserted to be compliant with the constitutional requirements on taxation legislation. Clause 629 Notional payments by the Commonwealth This clause provides that the Commonwealth is notionally liable to pay fees prescribed in the regulations, including late payment fees. It empowers the Finance Minister to give written directions to give effect to this notional liability, including for the transfer of money between or within Commonwealth financial accounts. The intent for this clause is that, under the Finance Minister's direction, the department will have the legal authority to charge agencies and other Commonwealth bodies for biosecurity activities performed under the Act, and those bodies will have the legal authority to make payments to the department for biosecurity functions performed. Division 3--Unpaid fees Subdivision A--General Clause 630 Late payment fee This clause allows the regulations to specify a late payment fee that is due and payable if a fee which is specified in the regulations (the basic fee) is not paid at or before the time the fee is due. A late payment fee may relate to each day or part day that the basic fee remains unpaid. The late payment fee will be used as a compliance tool to ensure that fees are paid on time, and ensures the Commonwealth can recover costs for services already provided. Clause 631 Recovery of fees This clause provides the Commonwealth with the ability to recover any fee that is due and payable through action in a relevant court. The recovery of fees through a relevant court will be used as a compliance tool to ensure that fees are paid on time, and to ensure the Commonwealth can recover costs for services already provided. Clause 632 Suspending or revoking permits etc. because of unpaid fees This clause outlines the power of the Director of Biosecurity to suspend or revoke approvals or authorisations made under this Act in relation to a person who is liable to pay a fee which is due and payable. 391

The Director of Biosecurity may, by written notice to a person who has unpaid fees, suspend or revoke a permit to bring or import goods into Australian territory, or any other permit, authorisation, or other permission held by the person under this Act that is prescribed in the regulations. For example, permission for a vessel subject to biosecurity control to travel to a non-first point of entry. This clause also allows the Director of Biosecurity to suspend or revoke an approved arrangement in accordance with the procedures set out in Chapter 7, until a fee is paid. In addition, the Director of Biosecurity may direct a biosecurity officer not to carry out services or activities until a fee has been paid. This power will be used as a compliance tool to ensure that fees are paid on time. This clause also provides that the Director of Biosecurity may direct biosecurity officers not to carry out specified activities or kinds of activities (in performing functions or exercising powers under the Bill) in relation to the person, until the fee has been paid. Subdivision B--Dealing with goods to recover unpaid fees Clause 633 Fee is a charge on goods This clause outlines the circumstances in which a charge can be created over goods. A charge may be placed on goods where the owner of the goods has unpaid fees under this Act which are due and payable. The unpaid fees do not have to relate to the goods on which the charge is placed. The charge can only be placed on goods to which biosecurity measures have been required that are subject to biosecurity control, under an exposed goods order or a biosecurity control order, or within a biosecurity response zone, as the Commonwealth is able to exercise powers in relation to these goods. The charge will be used to secure payment of any fees or late payment fees from the owner of the goods. The charge itself protects the Commonwealth's right to be paid fees to recover costs for chargeable activities. Clause 634 Effect of charge on goods This clause outlines the effect of a charge on goods. It provides that a charge created under clause 633 has priority over any other interest in the goods, including a security interest within the meaning of the Personal Property Securities Act 2009. This means that in the event the goods are sold, the charge created by clause 633 will take priority, allowing the Commonwealth to recover fees to the extent of the charge before any other interest. This clause also provides that subsection 73(2) of the Personal Property Securities Act 2009 applies to the charge, which means that priority of interests in the goods are determined under this Act. This means that where there is an inconsistency in priorities created under both the Acts, this Act will prevail. The charge will remain in force until the fee or late payment fee is paid, or the goods are sold under clause 645. This clause also outlines the circumstances in which the charge will not be affected by changes in the status of the goods, such as a change in ownership or the goods ceasing to be subject to biosecurity control. 392

Clause 635 Biosecurity officer may withhold goods that are subject to charge This clause allows a biosecurity officer to withhold goods which are subject to a charge created under clause 633 because the fee has not been paid. This clause outlines the notice requirements that the biosecurity officer must take before withholding goods. A biosecurity officer must, by written notice to the owner of the goods, state that the goods have been withheld and may be sold if the fee has not been paid within the period specified in the notice (which must be at least 30 days). A failure to give written notice does not affect the withholding of the goods or the ability of a biosecurity officer to give a direction in relation to the goods. This clause provides that a biosecurity officer may refuse to release the goods from biosecurity control or take possession of the goods for the purpose of withholding the goods. Additionally, in withholding the goods, the biosecurity officer may give a direction relating to the movement of the goods to the person in charge of the goods. The direction may be to secure the goods in a specified manner, a direction to not move, deal or interfere with the goods, a direction to move the goods to a specified place or any other direction relating to the movement of the goods. The maximum civil penalty for non-compliance with a direction given under this clause is 120 penalty units. Clause 636 Moving or interfering with withheld goods This clause provides that a person must not move, deal or interfere with goods in relation to which a direction has been given under subclause 635(5), unless the person is authorised to do so under an approved arrangement, he or she has been given a direction by a biosecurity official or permission under the Act, or is authorised under an Australian law. To rely on this exception, the person bears the evidential burden, which means that he or she must adduce evidence which points to the fact that he or she was authorised to move, deal or interfere with the goods. It will then be up to the prosecution to establish that this exception does not apply. A contravention of this provision may give rise to a civil penalty of up to 120 penalty units. Clause 637 When goods stop being withheld This clause provides a biosecurity officer with the power to release withheld goods. A biosecurity must stop withholding goods if the goods cease to be subject to a charge created under clause 633, for example, when all the fees are paid. This clause also allows a biosecurity officer to stop withholding goods in circumstances if the officer thinks it is appropriate. For example, the biosecurity officer may release the goods where the person liable for a fee enters into a payment plan. Once the goods are released, all directions given under clause 635 cease to have effect. Clause 638 Sale of withheld goods This clause sets out the circumstances in which the Director of Biosecurity can sell withheld goods under clause 645. A good can only be sold where the good has been withheld under clause 633 because a fee that is due and payable by the owner has not been paid. This clause provides that withheld goods may be sold under clause 645 if a biosecurity officer has given notice to the owner of the goods under clause 635, and the fee in relation to the goods has not been paid by the date specified in the notice. If a biosecurity officer has not 393

been able to give notice to the owner, despite making reasonable efforts, and has certified in writing to this effect, the goods may be sold if the fee has not been paid within 30 days of the first attempt to give the notice. Subdivision C--Dealing with a conveyance to recover unpaid fees relating to the conveyance Clause 639 Fee is a charge on conveyance This clause outlines the circumstances in which a charge is created on a conveyance. A charge will only be created on a conveyance where a chargeable activity has been carried out in relation to the conveyance, and the regulations specify a fee or late payment fee, and the fee or late payment fee is due and payable by the owner or operator of the conveyance. An unpaid fee will only give rise to a charge on the conveyance to which the fee relates. The charge will be used to secure payment of any fees or late payment fees in relation to the conveyance. The charge itself protects the Commonwealth's right to be paid fees to recover costs for chargeable activities. Clause 640 Effect of charge on conveyance This clause outlines the effect of a charge on a conveyance. It provides that a charge created under clause 639 has priority over any other interest in the conveyance, including a security interest within the meaning of the Personal Property Securities Act 2009. This means that in the event the conveyance is sold, the charge created by clause 639 will take priority, allowing the Commonwealth to recover fees to the extent of the charge before any other interest. This clause also provides that subsection 73(2) of the Personal Property Securities Act 2009 applies to the charge, which means that priority of interests in the conveyance is determined under this Act. This means that where there is an inconsistency in priorities created under both the Acts, this Act will prevail. The charge will remain in force until the fee or late payment fee is paid, or the conveyance is sold under clause 645. The effect of this clause is to allow the Commonwealth to sell a conveyance to recover unpaid fees. This clause provides that any change in ownership of the conveyance has no impact on the charge. This ensures that where the owner sells a conveyance, the charge remains on the conveyance, and the Commonwealth can still recover fees from the new owner of the conveyance. Clause 641 Director of Biosecurity may detain conveyance that is subject to charge This clause allows the Director of Biosecurity to detain a conveyance (in Australian territory) which is subject to a charge created under clause 639 because the owner or the operator of the conveyance has unpaid fees. Only the conveyance to which the charge relates may be detained under this clause (unlike under clause 633, the related policy on goods, where any goods owned by a person with unpaid fees may be withheld). This clause outlines the notice requirements that the Director of Biosecurity must take before detaining the vessel. The Director must, by written notice to the owner and the operator of the conveyance, state that the conveyance has been detained, and if the owner is liable to pay the 394

fee, that the conveyance may be sold if the fee has not been paid within the specified period (which must be more than 30 days). A failure to give written notice does not affect the detention of the conveyance or the power to give a direction for the purposes of detaining the conveyance. This clause provides that in detaining a conveyance the Director of Biosecurity may give a direction relating to the movement of the conveyance (including a direction to cause the conveyance to stop) to the person in charge of the conveyance. The Director of Biosecurity may also give a direction requiring the conveyance to be left at a specified place in a specified manner, or requiring goods on board the conveyance to be unloaded at a specified place in a specified manner. A person commits an offence and is liable to a civil penalty for contravention of a direction given under this clause. The maximum penalty for contravention is five years imprisonment, or a fine of 300 penalty units, or both. The maximum civil penalty for contravention is 120 penalty units. Clause 642 Moving or interfering with detained conveyance This clause provides that a person must not move, deal or interfere with a conveyance in relation to which a direction has been given under clause 641, unless the person is authorised to do so under an approved arrangement, has been given a direction by a biosecurity official or permission under the Act, or is authorised under an Australian law. To rely on this exception, the person bears the evidential burden, which means that the person must adduce evidence which points to the fact that they were authorised. It will then be up to the prosecution to establish that this exception does not apply. The maximum civil penalty for contravention of this clause is 120 penalty units. Clause 643 Release of detained conveyance This clause provides the Director of Biosecurity with the power to release a conveyance detained under clause 641. The conveyance must be released from detention if the conveyance ceases to be subject to a charge under clause 639, for example, when all the fees are paid or the conveyance is sold under clause 645. This clause also allows the Director of Biosecurity to release the conveyance in circumstances the Director thinks are appropriate. For example, the Director may release the conveyance where the person liable for a fee enters into a payment plan with the department regarding how and when outstanding fees will be paid. Once a conveyance is released all directions given under clause 641 cease to have effect. Releasing a conveyance does not require the conveyance to be released from biosecurity control or prevent the conveyance from being detained again under clause 641. Clause 644 Sale of detained conveyance This clause sets out the circumstances in which the Director of Biosecurity can sell a detained conveyance under clause 645. A conveyance can only be sold where the conveyance has been detained under clause 641 because a fee that is due and payable by the owner has not been paid. If the owner is also the operator, this clause also applies to unpaid fees of the operator. This clause outlines that the owner of the conveyance must be notified prior to any sale. The 395

conveyance may be sold if the Director has given notice to the owner of the conveyance under clause 641, and the fee has not been paid within the specified period. This clause also provides for a conveyance to be sold where notice cannot be given to the owner of a conveyance in line with clause 641. If the Director has not been able to give the notice to the owner, despite making reasonable efforts, and has certified this in writing, the Director may sell the conveyance if the fee has not been paid within 30 days of first attempting to give the notice. Prior to selling a conveyance, the Director of Biosecurity may cause any goods on the conveyance to be unloaded before the conveyance is sold. This ensures that the owners of the goods are not disadvantaged due to the actions of the owner of the conveyance. Division 4--Power to sell goods and conveyances Clause 645 Sale of goods and conveyances Clause 645 gives the Directory of Biosecurity the power to sell goods and conveyances that are withheld, detained or abandoned under clauses 644, 638, and 653. Goods and conveyances may be sold under this clause to recover unpaid fees which are due and payable to the Commonwealth or because the owner or person in charge of the goods or conveyance has said he or she do not want to take possession of the goods or conveyance (abandonment). In selling the goods or conveyance, the Director of Biosecurity gives full and effective title to the goods or conveyance, free of all other interests. This extinguishes all other interest in the goods or conveyance, allowing the purchaser to have full title. This clause allows the Director of Biosecurity to make and execute the documents which are necessary for the sale of the goods or conveyance to proceed. This may include transfer of title documents and contracts of sale. Clause 646 Dealing with the proceeds of sale This clause outlines how the Director of Biosecurity may apply the proceeds of the sale of goods or conveyances under clause 645. The proceeds of sale may be applied to any unpaid fees relating to the goods or conveyance sold, and any other fee that is due and payable by the owner under the Act. Once any unpaid fees have been recovered, the Director of Biosecurity must pay the remainder of the proceeds to the owner of the goods or conveyance. This ensures that the Commonwealth only recovers fees that have not been paid. This clause provides that where the owner of the goods or conveyance which has been sold cannot be located, the remaining proceeds are forfeited to the Commonwealth. These funds will become the property of the Commonwealth. However, this may give rise to acquisition of property by the Commonwealth, for which compensation is payable by the Commonwealth (see clause 26). This clause does not limit the ability of the Commonwealth to recover costs by other means, such as through a relevant court. 396

Division 5--Miscellaneous Clause 647 Providing sustenance for animals and plants This clause outlines the circumstances in which the Commonwealth can enter into agreements with persons to provide sustenance for animals or plants. The Commonwealth will only be able to enter into an agreement: where the animal or plant is, or is going to be, subject to biosecurity control and in the possession or control of the Commonwealth, or an exposed goods order or a biosecurity control order is in force in relation to the animal or plant, and the animal or plant is in the possession or control of the Commonwealth, or the animal or plant is in a biosecurity response zone and biosecurity measures have been required in relation to the animal or plant under a power that is specified in the biosecurity response zone determination (under paragraph 364(1)(c)), and the animal or plant is in the possession or control of the Commonwealth. For example, the Director may enter into an agreement with a person to provide food to cats and dogs which are being kept in a biosecurity facility (such as a quarantine station). The Director of Biosecurity is also able to direct the owner to provide sustenance to such an animal. This ensures that the animal's health and welfare is maintained in circumstances such as where it is subject to biosecurity control, or is required to undergo biosecurity measures. A person commits an offence and is liable to a civil penalty if the person contravenes this clause. The maximum penalty for contravention of this clause is a fine of 50 penalty units. The maximum civil penalty for contravention of this clause is 50 penalty units. Clause 648 Agriculture Minister may remit or refund fees This provision allows the Agriculture Minister to remit or refund fees prescribed in the regulations if the Minister is satisfied there are exceptional circumstances that justify doing so. This will be at the Minister's discretion. This clause ensures that fees can be refunded or remitted. This may be done at the Minister's initiative or on written application by a person. This power is provided to the Agriculture Minister rather than the Director of Biosecurity for consistency with the Financial Management and Accountability Act 1997. Part 4--Exemptions from and modifications of this Act Division 1--Introduction Clause 649 Guide to this Part This clause provides an overview of the exemptions and modifications of this Act Part of the miscellaneous Chapter. This Part allows regulations to be made that modify the operation of this Bill in relation to specified conveyances, persons, or goods, and to modify the operation of this Bill in order to implement the Torres Strait Treaty. Division 2--Exemptions from and modifications of this Act Clause 650 Exemptions from and modifications of this Act This clause allows regulations to be made to exempt any one or more conveyances, persons or goods (or classes of these) from any or all provisions of the Bill or to make modifications 397

of any provision of the Bill in relation to any conveyance, person or goods. Section 2B of the Acts Interpretation Act 1901 defines the term `modification' in relation to a law to include additions, omissions and substitutions. An exemption or modification may apply only for a specified period, apply only in relation to a specified area and may be subject to one or more conditions. The regulations made under this clause will assist with compliance with Australia's international obligations. For example, it is intended to allow compliance with the International Convention for the Control and Management of Ships' Ballast Water and Sediments, 2004 through exempting warships and government owned ships from the ballast water provisions in Chapter 5. This regulation making power is also intended to provide flexibility in order to allow management of certain geographical regions of Australian territory that pose unique biosecurity risks that would otherwise not be managed through the general provisions of the Bill, such as Christmas Island, the Cocos (Keeling) Islands, and the Torres Strait region. Exemptions through the regulations will also allow for disaster relief (for example, by exempting vessels or aircraft from information gathering requirements if they are temporarily transporting goods and people to and from an area affected by a natural disaster) and ensure compliance with international agreements by, for example, exempting military aircraft, vessels and personnel from certain provisions of the Bill. A regime was developed under the Quarantine Act 1908 to maintain mainland Australia, Christmas Island, and the Cocos (Keeling) Islands as separate quarantine entities. This regime was created after a survey in June 2000 under the Department of Agriculture, Fisheries and Forestry's Northern Australia Quarantine Strategy identified that the quarantine status of Christmas Island was different from that of the Cocos (Keeling) Islands and that the quarantine status of each of the territories was different from mainland Australia. The Quarantine Act 1908 set out movement restrictions in relation to goods in two separate proclamations relating to these territories--the Quarantine (Christmas Island) Proclamation 2004 and the Quarantine (Cocos Islands) Proclamation 2004. Under this Bill, continued restriction of the movement of goods between these territories, and between these territories and the rest of Australian territory, is necessary to continue to manage the unique biosecurity status and associated biosecurity risks for these territories. Rather than creating separate legislative instruments under this Bill for each of these territories, it is intended that modifications will be made through regulations under this clause to restrict the movement of goods between Christmas Island, the Cocos (Keeling) Islands and the rest of Australian territory. These modifications will be modelled off the movement restrictions set out in the Proclamations under the current Quarantine Act 1908. The main modifications of the Bill that are intended in relation to these territories are modifications of Part 3 of Chapter 3 to allow the Director of Biosecurity to prohibit (conditionally or absolutely) or require a permit for goods entering: Christmas Island from the Cocos (Keeling) Islands the Cocos (Keeling) Islands from Christmas Island another place in Australian territory from Christmas Island or the Cocos (Keeling) Islands, and the Cocos (Keeling) Islands from another place in Australian territory. 398

These movement restrictions will allow the biosecurity risks in relation to Christmas Island and the Cocos (Keeling) Islands to be managed appropriately under the Bill. The Torres Strait region is another region in Australian territory with unique biosecurity risks that are intended to be managed under this clause. The islands in the Torres Strait provide a pathway for exotic animal and plant pests and diseases to enter mainland Australia from countries north of Australia. Under the Quarantine Act 1908, the Torres Strait region is dealt with through a complicated arrangement of provisions that are located in several of parts of the Act. A `special quarantine zone' was declared under the Quarantine Act 1908 to provide a buffer zone to reduce the risk of diseases or pests being introduced, established or spread through the Torres Strait into mainland Australia. The Quarantine Proclamation 1998 sets out restrictions on certain goods leaving the Torres Strait protected zone or the special quarantine zone in order to manage the risks associated with the region. Continued restriction of the movement of goods between the Torres Strait region and the rest of Australian territory under this Bill is necessary in order to manage the biosecurity risks associated with the region. It is intended that modifications will be made through regulations under this clause to restrict the movement of goods between the protected zone and the rest of Australian territory, and between a `special biosecurity zone' and the rest of Australian territory. A special biosecurity zone will be provided for in the regulations to this Bill, and is intended to replace the special quarantine zone. The main modifications of the Bill that are intended in relation to the Torres Strait region (the protected zone and the special biosecurity zone) are: modification of Part 3 of Chapter 3 to allow the Director of Biosecurity to prohibit (conditionally or absolutely) or require a permit for goods that enter the special biosecurity zone from the protected zone, or enter Australian territory from the protection zone or the special biosecurity zone modification of the pre-arrival reporting requirement to require a pre-arrival report to be provided when a vessel travels from the from the protected zone to the special biosecurity zone, or from the protection zone or the special biosecurity zone to another part of Australian territory, and modification of clause 117 to provide that goods leaving the Torres Strait region become subject to biosecurity control when travelling to another place in Australian territory. These movement restrictions will allow the biosecurity risks in relation the Torres Strait region to be managed appropriately under the Bill. Managing the risks associated with these regions through modifications to the Bill is appropriate as it removes the necessity for complicated additions to the primary legislation, provides clear and transparent policy in relation to these regions, and provides the flexibility to manage unique biosecurity risks which may emerge in other regions in Australian territory in the future. This approach is also preferable because the geographical areas covered by these modifications are small, and only a small subset of clients and stakeholders will be working within the modified legislation. Providing modifications in the regulations to facilitate the management of these regions also reduces repetition and complexity in the primary legislation that would occur if these regions were instead dealt with in separate chapters of the Bill. 399

Clause 651 Exemptions for Torres Strait Treaty This clause allows regulations to be made to exempt protected zone vessels (and persons and goods on board protected zone vessels) from all or any provisions of the Bill while the vessel is in the protected zone established under the Torres Strait Treaty. Goods may be exempt from all or any provisions of the Bill if the goods: are owned by, or under the control of a traditional inhabitant who is on board a protected zone vessel have been used, are being used, or are intended to be used by the traditional inhabitant in the performance of traditional activities in the protected zone area, or are the personal belongings of a traditional inhabitant or an employee of the Commonwealth, Queensland, or Papua New Guinea entering a part of Australian territory in the protected zone area in connection with the performance of their functions or duties, or the exercise of their powers. These exemptions may be subject to one or more conditions. An exemption only has effect while the vessel, persons, or goods remain in the protected zone area. This clause provides for exemptions from provisions of the Bill to be made to meet Australia's obligations under the Torres Strait Treaty. For exemptions and modifications to the Bill that relate to the management of the unique biosecurity risks present in the Torres Strait region, see the notes to clause 650. The protected zone was established under the Torres Strait Treaty in order to acknowledge and protect the traditional way of life and livelihood of traditional inhabitants, including their free movement. Traditional inhabitants are Torres Strait Islanders who are Australian citizens that live in the protected zone or the adjacent coastal area of Australia, or citizens of Papua New Guinea that live in the protected zone or the adjacent coastal area of Papua New Guinea, and who maintain traditional customary associations with areas or features in or in the vicinity of the protected zone in relation to their subsistence or livelihood or social, cultural or religious activities. The protected zone means the zone established under Article 10 of the Torres Strait Treaty, which is the area bounded by the line described in Annex 9 to the Treaty. The protected zone area includes the protected zone and the area in the vicinity of the protected zone that is prescribed by regulations. `Traditional activities' and `traditional inhabitant' have the same meaning in this Bill as in the Torres Strait Treaty. Protected zone vessels are vessels that are used to transport traditional inhabitants in the protected zone that meet the following conditions: the vessel is of a kind used in navigation by sea and is owned or operated by a traditional inhabitant the vessel enters a part of Australian territory that is in a protected zone area there is at least one traditional inhabitant on board the vessel who is entering that part of Australian territory in connection with the performance of traditional activities in the protected zone area the only persons on board the vessel are: one or more traditional inhabitants (who are entering that part of the Australian territory in connection with the performance of traditional activities in the protected zone area), or 400

one or more employees of the Commonwealth, Queensland, or Papua New Guinea, or of a body of the Commonwealth, Queensland or Papua New Guinea, who are entering that part of Australian territory in connection with the performance of his or her functions or duties, or the exercise of his or her powers. Subject to the other provisions of the Torres Strait Treaty, each Party (i.e. Australia and Papua New Guinea) is obliged to permit free movement and the performance of lawful traditional activities (activities performed by the traditional inhabitants in accordance with local tradition) in and in the vicinity of the protected zone by the traditional inhabitants of the other Party. This includes applying immigration, customs, quarantine and health procedures in such a way as not to prevent or hinder free movement or the performance of traditional activities. The Torres Strait Treaty also states that each Party reserves its right to apply immigration, customs, health and quarantine measures, temporary or otherwise, that it considers necessary to meet problems which may arise. In particular each Party may apply measures to limit or prevent free movement, or the carriage of goods, in the case of a disease or pest outbreak in or in the vicinity of the protected zone. It is intended that this clause will be used in order to meet Australia's obligations under the Torres Strait Treaty in relation to free movement of traditional inhabitants. For example, it is intended that the regulations will exempt protected zone vessels (and persons on board a protected zone vessel) from: the requirement for vessels subject to biosecurity control to moor at a first point of entry (clause 247) the requirement to provide a pre-arrival report (clause 193) the requirement to provide a notice of goods to be unloaded in Australian territory (clause 118), and the requirement for goods to be unloaded at first point of entry for those goods or with permission (clause 142) These exemptions will enable free movement of traditional inhabitants in line with the Torres Strait Treaty by allowing them to moor in the protected zone (in which there are no first points of entry) and remove goods associated with traditional activities in order to participate in those traditional activities. The Torres Strait Treaty also makes clear that the term `traditional' should be interpreted liberally and in light of the prevailing custom, except in relation to activities of a commercial nature. This means that activities of a commercial nature, such as selling or trading goods (outside of barter and market trade) in the protected zone are not covered by the Torres Strait Treaty, and therefore exemptions from provisions of this Bill are not intended to provide for selling or trading goods by traditional inhabitants, other than barter or market trade. Part 5--Miscellaneous Division 1--Introduction Clause 652 Guide to this Part This clause provides an overview of this Part of the Miscellaneous Chapter. This Part includes provisions to deal with abandoned or forfeited goods and conveyances. It also provides for compensation to be paid in relation to goods damaged under this Act, and goods, 401

conveyances or other premises destroyed under this Act. This Part allows the Agriculture Minister or the Health Minister to enter into an arrangement with a relevant Minister of a State or Territory for the purposes of the Act, and protects certain persons who are performing functions or exercising powers under the Act from civil proceedings, Division 2--Abandonment and forfeiture provisions Clause 653 Abandoned goods This clause sets out the circumstances in which goods are abandoned. This clause applies if: biosecurity measures have been required in relation to the goods under Part 1 of Chapter 3, or in Chapter 6, and the goods are in the possession or control of the Commonwealth or a biosecurity industry participant authorised under an approved arrangement, and a person in charge of the goods gives notice (either in writing or orally) to the Director of Biosecurity stating that the person does not wish to take possession of the goods. Where these conditions have been met a biosecurity officer may, in writing, request the owner of the goods to arrange for the goods to be dealt with in a specified manner, within a specified time period. This may include requesting that the person in charge pick up the goods, or that the goods be treated or destroyed. If this request has been made by the biosecurity officer--and the goods have not been dealt within in the specified manner, within the specified time period--the Director of Biosecurity may take possession of the goods and cause them to be destroyed or otherwise disposed of. These goods may also be sold under clause 645. Before the goods are sold, destroyed, or disposed of, the Director of Biosecurity will have the power to cause the goods to be treated in an appropriate manner to manage biosecurity risks associated with them. This clause provides the Commonwealth with the ability to dispose of goods in situations where the person in charge has abandoned them. This ensures goods do not remain in the Commonwealth's possession indefinitely. Under the abandonment provisions, the Commonwealth does not take ownership of the goods. The person in charge of the goods, or the owner, remains responsible for covering the costs of any treatment or biosecurity activities carried out after abandonment. The Commonwealth will be able to recover costs for these activities. Clause 654 Forfeited goods This clause sets out the circumstances in which goods may be forfeited. This clause applies if: biosecurity measures have been required in relation to the goods under Part 1 of Chapter 3, or in Chapter 6, and the goods are in the possession or control of the Commonwealth or a biosecurity industry participant authorised under an approved arrangement. This clause provides that these goods will be forfeited to the Commonwealth if the Director of Biosecurity notifies the owner of the goods in writing to collect the goods, and the goods are not collected in 90 days, or the Director of Biosecurity has not been able to locate the 402

owner of the goods, despite making reasonable efforts, and has certified in writing to that effect. If the goods are forfeited to the Commonwealth, the Director of Biosecurity may cause the goods to be sold, destroyed, or otherwise disposed of. Before the goods are sold, destroyed, or disposed of, the Director of Biosecurity will have the power to cause the goods to be treated in an appropriate manner to manage biosecurity risks associated with them. Under the forfeiture provisions, the Commonwealth will become the new owner of the goods. This ensures that the Commonwealth can deal with the goods in the most appropriate manner. Similar to the abandonment provisions, the Commonwealth may use this forfeiture power to ensure that goods are not left in the possession of the Commonwealth, by selling or otherwise disposing of the goods. Where goods are forfeited, the owner of the goods may be able to seek compensation under clause 26. Clause 655 Abandoned conveyances This clause sets out the circumstances in which conveyances may be abandoned. This clause applies if: biosecurity measures have been required in relation to the conveyance under Part 1 of Chapter 4, or in Chapter 6, and the conveyance is in the possession or control of the Commonwealth or a biosecurity industry participant authorised under an approved arrangement, and either the Director receives written notice from the owner of the conveyance stating that the owner does not wish to take possession of the conveyance, or the Director of Biosecurity has in writing requested the owner of the conveyance to take possession of the conveyance within the specified period and the owner has not taken possession of the conveyance. Where these conditions have been met, the Director of Biosecurity may, in writing, request the owner of the conveyance to arrange for the conveyances to be dealt with in a specified manner, within a specified time period. This may include requesting that he or she take possession of the conveyance, or that the conveyance be destroyed. The requirement to provide notice sits with the Director of Biosecurity as the value of most conveyances necessitates a higher level of approval. If this request has been made by the Director of Biosecurity, and the conveyance has not been dealt within in the specified manner, within the specified time period, the Director of Biosecurity may take possession of the conveyance and cause it to be destroyed or otherwise disposed of. The conveyance may also be sold under clause 645. Before the conveyance is sold, destroyed, or disposed of, the Director of Biosecurity will have the power to cause the conveyance to be treated in an appropriate manner to manage biosecurity risks associated with it. This clause also provides that the Director may cause the goods on board the conveyance to be removed from the conveyance before it is destroyed. This clause provides the Commonwealth with the ability to dispose of conveyances in situations where the person in charge or the owner has abandoned them. This ensures that these conveyances do not have to be in the Commonwealth's possession until the owner takes possession. Under the abandonment provisions, the Commonwealth does not take ownership of the conveyances. The owner remains responsible for covering the costs of any treatment or 403

biosecurity activities carried out after abandonment. The Commonwealth will be able to recover costs for these activities. If a charge has been created on the conveyance to secure the payment of an unpaid fee that is due and payable in relation to a chargeable activity carried out in relation to the conveyance, the conveyance may be dealt with under Subdivision B of Division 3 of Part 3 of this chapter. Clause 656 Forfeited conveyances This clause sets out the circumstances in which conveyances may be forfeited. This clause applies if: biosecurity measures have been required in relation to the conveyances under Part 1 of Chapter 4, or in Chapter 6, and the conveyance is in the possession or control of the Commonwealth or a biosecurity industry participant authorised under an approved arrangement. This clause provides that a conveyance will be forfeited to the Commonwealth if the Director of Biosecurity has not been able to locate the owner of the conveyance, despite making reasonable efforts, and has certified in writing to that effect. If the conveyance is forfeited to the Commonwealth, the Director of Biosecurity may cause the conveyance to be sold, destroyed, or otherwise disposed of. This clause also provides that the Director may cause the goods on board the conveyance to be removed from the conveyance before it is destroyed. Before the conveyance is sold, destroyed, or disposed of, the Director of Biosecurity will have the power to cause the conveyance to be treated in an appropriate manner to manage biosecurity risks associated with the conveyance. Under the forfeiture provisions, the Commonwealth will become the new owner of the conveyance. This ensures that the Commonwealth can deal with the conveyance in the most appropriate manner. Similar to the abandonment provisions, the Commonwealth may use this forfeiture power to ensure that the conveyance is not left in the possession of the Commonwealth. Where conveyances are forfeited, the owner of the conveyance may be able to seek compensation under clause 26. Division 3--Damaged and destroyed goods etc. Clause 657 Person complying with a direction or request must not damage or destroy goods This clause provides that a person who is given a direction or request to do something in relation to goods by the Agriculture Minister, the Director of Biosecurity, a biosecurity officer or a biosecurity enforcement officer for the purposes of this Act must not do something, or omit to do something, that causes the destruction of or damage to the goods. A person may be liable to a civil penalty of up to 120 penalty units for contravention of this clause. The person will not be liable to the civil penalty if he or she acted in good faith in doing the thing that destroyed or damaged the goods, or if the destruction or damage was a reasonable or necessary result of complying with the direction. This clause is intended to prevent any unnecessary damage to or destruction of goods. 404

This clause does not apply to a biosecurity officer, a biosecurity enforcement officer, a chief human biosecurity officer, a human biosecurity officer or a person in charge of the goods. Clause 658 Compensation for damaged goods This clause allows the Director of Biosecurity to approve the payment of compensation for goods damaged by a person in the course of performing functions or duties, or exercising powers, under this Act (see clause 660 for how compensation may be claimed). This clause is intended to allow compensation where, for example, a biosecurity officer accidently damages goods during a routine inspection where the goods do not necessarily pose a risk or require treatment. Compensation is not payable in relation to goods that are damaged as a result of treatment carried out under clauses 130, 131, 333 or 334. This is because some treatments may cause damage to goods, but treatment is required in order to manage the biosecurity risk associated with the goods. A person that brings goods into Australian territory does this with the understanding that the goods may be damaged whilst they are subject to biosecurity control if there is a biosecurity risk in relation to the goods that requires treatment. Clause 659 Compensations for destroyed goods, conveyances or premises This clause allows the Director of Biosecurity to approve the payment of compensation for goods, conveyances, or other premises destroyed under the Act if the Director considers it appropriate to do so. For example, payment of compensation may be considered where goods are accidently destroyed during a routine inspection where the goods did not necessarily pose a biosecurity risk or require treatment. Compensation will also not be payable in respect to goods that were subject to biosecurity control at all times between being brought in and destroyed, or aircraft or vessels that were subject to biosecurity control at all times between entering Australian territory and being destroyed. This is because goods, aircraft and vessels are subject to biosecurity control on entering Australian territory to deal with the biosecurity risks associated with bringing them into Australian territory from a place outside Australian territory. A person that brings goods or a conveyance into Australian territory does this with the understanding that the goods or conveyance may be destroyed whilst they are subject to biosecurity control if there is a biosecurity risk in relation to the goods or conveyance. The regulations may prescribe exceptions to this, for example they could allow the Director to approve compensation with respect to goods subject to biosecurity control that were destroyed due to the a biosecurity officer not acting in good faith. Clause 660 provides details of who may make a claim for compensation under this clause, and how the claim must be made. Clause 660 Claims for, and amount of, compensation This clause outlines who may make a claim for compensation, and how the claim must be made, for goods, conveyances or premises (compensable items) in relation to which the Director of Biosecurity may approve a payment of compensation under clause 658 or clause 659. A claim for compensation must be made by, or on behalf of, the owner of the item within 12 months of the item being damaged or destroyed, and the claim must be in the form prescribed in the regulations. The amount of compensation will be prescribed by, or determined with 405

accordance to, the regulations. This clause also provides that the amount of compensation payable under clauses 658 or 659 is to be a reasonable amount prescribed by or determined in accordance with the regulations. This clause provides that compensation for destroyed goods, conveyances, or other premises is payable to the owner. For the purposes of this clause, owner means a person who, or a partnership which, had an interest in the goods, conveyance, or premises at the time of their destruction. Owner does not include a person who had an interest in the goods, conveyance, or premises because he or she was entitled to the benefit of a mortgage or other charge in relation to the goods or premises, or a person that held a security interest within the meaning of the Personal Property Securities Act 2009. If there are two or more owners, the regulations will prescribe how compensation is to be divided among the owners. Clause 661 Privilege against self-incrimination This clause removes a person's right to rely on the privilege against self-incrimination in relation to specific information gathering provisions of the Bill, and lists the provisions in which the privilege against self-incrimination is abrogated. The Bill provides the person with immunity such that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court (known as 'use' immunity) or indirectly to gather other evidence against the person (known as `derivative use' immunity). An exception to this is in relation to proceedings under or arising out of section 137.1 or 137.2 of the Criminal Code or clauses 507 or 508 of this Bill (false and misleading information and documents). For example, if uncooked chicken meat is found without a permit during the inspection of a shipping container on an incoming vessel a biosecurity officer may ask questions about the meat (using the power provided in clause 123). If the right to the privilege against self- incrimination applied, the person would legally be allowed to withhold self-incriminating information, such as details of other shipments. However, as the privilege against self- incrimination is abrogated (cancelled) in relation to clause 123, the person in charge would be legally obliged to provide the information to the biosecurity officer. This self-incriminating information would not be admissible as evidence in court proceedings against the person, however access to the information would mean that the biosecurity officer may be able to manage the biosecurity risk posed by the other shipments. If the person still did not provide the information, he or she would be liable to the penalty set out in clause 123. The clause provides that except for the listed provisions, nothing in this Act affects the right of an individual to refuse to answer a question or provide information, on the grounds that the answer might incriminate themselves. Biosecurity officers require timely access to documents and information offshore, at the border, and post border to ensure that appropriate measures are in place to manage biosecurity risks. Upholding the privilege against self-incrimination in relation to individuals who have information regarding a potential biosecurity risk could have significant consequences such as reduced agriculture, fisheries, or forestry productivity, and increased costs associated with controlling pests and diseases. In addition, a disease outbreak has the potential to cause long term damage to the reputation of Australian industries and the reputation of Australia as a trading nation. Abrogating the privilege against self-incrimination in relation to these provisions will allow officers to effectively assess and manage biosecurity 406

risks posed by pests and diseases to plant and animal health, the environment, and the economy of Australia. Whilst in some cases it may be technically feasible to obtain information by other means that do not impinge on the right to the privilege against self-incrimination, the additional time taken to obtain the information may significantly increase the risk of a disease or pest entering, establishing or spreading to Australia, or within Australia. Assessing and managing biosecurity risk in such situations is a priority, with prosecution and resulting penalties for those involved a secondary consideration. Abrogation of the privilege against self- incrimination will ensure assessment and management of biosecurity risks can occur as urgently as necessary, and reflects the magnitude of the potential impacts biosecurity risks pose to Australia. Note that the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers states that the privilege against self-incrimination only applies to natural persons and does not extend to bodies corporate. Clause 662 Offence--hindering compliance with the Act etc. This clause provides that a person must not engage in conduct that hinders or prevents another person from performing functions or duties, or exercising powers under the Act, or from complying with the Act or a direction given under the Act. A person commits an offence and is liable to a civil penalty if the person contravenes this clause. The maximum penalty for contravention of this clause is two years imprisonment, or a fine of 120 penalty units, or both. The maximum civil penalty for contravention of this clause is 120 penalty units. This provision is intended to ensure biosecurity officials are not hindered in performing their functions or duties or exercising powers under this Act and not hindered in the management of biosecurity risks. Clause 663 Certificates given by analyst; and Clause 664 Admission of analyst's certificate in proceedings Clause 663 allows the Director of Biosecurity to appoint a person to be an analyst for the purposes of the Act who may give a written certificate stating certain matters (for example results of the analysis of a substance or thing). The purpose of this certificate is to obtain an independent verification of an analysis that can be used as evidence if any issue related to the analysis is considered by a court. The certificate may be given in relation to a number of matters, such as testing to determine what a particular pest or disease is, or what a particular good is made out of, or the analysis of a substance or thing. Evidentiary certificates can be used to settle technical matters of fact that are difficult to prove by adducing admissible evidence. This certificate is admissible in any proceedings in relating to contravention of this Act as prima facie evidence. A certificate must be in a form approved by the Director of Biosecurity. Clause 664 outlines the process and procedures for issuing an analyst certificate. An analyst certificate and a notice that will be used in proceedings must be given to the person (the defendant) who is alleged to have contravened this Act, or a legal practitioner who has appeared for the defendant in those proceedings. 407

The defendant may require the analyst who gave the certificate to be called as a witness for the prosecution or to be cross examined. However, an analyst can only be called for a witness for the prosecution if the prosecutor has been given at least four days notice of the defendant's intention to require the analyst to be called or the court, by order, allows the defendant to require the analyst to be called. This clause makes clear that, for the purposes of this Act, a document purporting to be a certificate given under clause 663 is taken to be a certificate that has been given in accordance with that clause, unless the contrary is established. Clause 665 Power or requirement to do or cause a thing to be done If a person has the power, or is required under the Bill to do something, for the purposes of the Act that person has done that thing if he or she causes or directs someone else to do that thing on behalf of the first person. Also, if a person has the power, or is required, under the Bill to cause or direct a thing to be done, for the purposes of the Bill the person is taken to have caused or directed the thing to be done if the person has done the thing themself. This ensures that it is clear who is responsible and accountable for using powers or complying with directions. Clause 666 Treatment of partnerships Clause 667 Treatment of unincorporated associations These clauses explain how the Bill applies to partnerships and unincorporated associations. These clauses make clear that the Act applies to a partnership or an unincorporated association as if they were a person, with certain changes to allow the application to be effective. For example, an obligation that would otherwise be imposed on a partnership or unincorporated association by this Act is imposed on each partner or member of the association's committee of management instead, but may be discharged by any of the partners or members. Where an offence is committed by a partnership or unincorporated association, the offence is taken to have been committed by each partner or member at the time the offence was committed. These clauses apply to contraventions of civil penalty provisions in a corresponding way to the way in which it applies to the offence. Clause 668 Arrangements with States and Territories to assist in carrying out this Act This clause allows the Agriculture Minister or Health Minister to enter into an agreement with a state or territory government for the purpose of the Act. This may include using a place in a state or territory to help the Commonwealth, states and territories assist each other to do certain things for the purposes of the Act. This allows the Commonwealth and states and territories to work together on biosecurity activities. For example, an agreement may be entered into for the provision of biosecurity services by state biosecurity officers. The Director of Biosecurity and the Director of Human Biosecurity may also enter into arrangements with state or territory bodies or officers or employees of those bodies to be officers under this Act (see clauses 585, 587 and 602). 408

Clause 669 Delegation of powers by Agriculture Minister This clause allows the Agriculture Minister to delegate any or all of their powers and functions under the Act to the Director of Biosecurity, a SES employee, or acting SES employee in the Agriculture Department. This may be required for practical reasons, for example where the Agriculture Minister is required to focus on other portfolio responsibilities the Minister may delegate certain powers to a SES employee. It also means that powers and functions may be exercised by staff in all regions of Australian territory. This clause also provides that certain provisions in the Act must not delegated by the Agriculture Minister. These are relating to the Minister: being satisfied that a biosecurity emergency should be declared under subclause 441(1) in Chapter 8 the Minister being satisfied that the biosecurity emergency should be extended under subclause 442(1) in Chapter 8 the Minister being able to declare a national response agency under clause 450 in Chapter 8 the ability to delegate certain emergency powers under clause 451 in Chapter 8 giving directions to the Director of Biosecurity under clause 581 in Chapter 12 a decision to remit or refund fees under clause 648 of this chapter, and the ability to enter into an arrangement with a state or territory under clause 668 of this chapter. This ensures that decisions that require significant authority ultimately remain with the Agriculture Minister. In exercising powers under a delegation under this clause, the delegate must comply with any directions of the person who made the delegation. Clause 670 Protection from civil proceedings This clause provides that those exercising powers under the Bill will have protection from civil proceedings. Civil proceedings involve legal disputes between individuals based on one person claiming that the other has failed in his or her legal duty. Protection from civil proceedings allows those required under the Bill to make decisions and take action to manage biosecurity risk appropriately to do so without the fear of being sued. The clause provides that no civil proceedings lie against the Commonwealth or a protected person in relation to anything done, or omitted to be done, in good faith: by a protected person in the performance or purported performance of a function or an exercise of a power under this Act, or by a person, providing or purporting to provide assistance to a protected person (as a result of a direction) in the performance of functions or exercise of powers under this Act. The protection also extends to anything done by an animal used by a protected person in the performance or purported performance of a function or an exercise of a power under this Act, and a person complying with emergency directions. The term `in good faith' means without malice or without intent to defraud. Protection from civil proceedings does not extend to criminal offences - for example theft or intentional destruction of documents or property. 409

This protection is subject to the ballast water provision about undue detention of vessel under clause 307 in Chapter 5, acquisition of property under clause 26 and compensation for damage to electronic equipment under clause 533. This means while a person cannot commence civil proceedings under these three provisions, a person may seek compensation for undue detention of a vessel, acquisition of property, or destroyed goods or premises. A protected person includes: the Agriculture and Health Ministers Director of Biosecurity Director of Human Biosecurity biosecurity officers biosecurity enforcement officers chief human biosecurity officers human biosecurity officers officers or employees of the Agriculture Department or the Health Department a person who is authorised to perform functions and exercise powers under Chapter 8, and a person appointed as an analyst under clause 663. Biosecurity industry participants will also have protection from civil proceedings if they are carrying out biosecurity activities in good faith, and in accordance with their approved arrangement, as per clause 439 of Chapter 7. Clause 671 Regulations This clause provides the ability for the Governor-General to make regulations prescribing matters required or permitted by the Bill, or necessary or convenient to be prescribed for carrying out or giving effect to this Bill. This will allow for more detailed and specific aspects of the Bill relating to the operation of provisions to be included in regulations instead of the Bill. The regulations may also outline various offences and penalties that occur if the regulations are not complied with. This ensures that there are disincentives for non- compliance with regulations. 410

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