Biosecurity Amendment (Advanced Compliance Measures) Bill 2023 [2023] AUSStaCSBSD 116 (2 August 2023)

• Biosecurity Amendment (Advanced Compliance Measures) Bill 20231
• Privacy2

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Chapter 1

Initial scrutiny

1.1 The committee comments on the following bills and, in some instances, seeks a response or further information from the relevant minister.

Biosecurity Amendment (Advanced Compliance Measures) Bill 2023^[1]

Purpose	This bill seeks to amend the Biosecurity Act 2015 to: provide for greater access to information related to the biosecurity risk of travellers; alter provisions relating to approved arrangements; increase certain civil penalties; and create strict liability offences.
Portfolio	Agriculture, Fisheries and Forestry
Introduced	House of Representatives on 21 June 2023

Privacy^[2]

1.2 Schedule 1 seeks to introduce proposed subsection 196(3A) to the Biosecurity Act 2015 (Biosecurity Act) which alters the Director of Biosecurity (the Director)'s existing power to require a person on an incoming aircraft or vessel to provide information to assess the biosecurity risk associated with them or goods in their possession.^[3] Item 7 of schedule 1 grants the Director the power to require any person included in a class of persons intending to enter or entering Australian territory on an incoming aircraft or vessel to produce an Australian travel document (which includes a passport) or a passport or travel document issued by another country.^[4] This may only be done for two purposes under proposed paragraph 196(3A)(a), which are:

• to assess the level of biosecurity risk associated with the person and any goods that the person has with the person; and

• the future profiling, or future assessment, of biosecurity risks.

1.3 Proposed subsection 196(3A) would also grant the Director the power to scan any document produced for either of the above purposes,^[5] and to collect and retain personal information obtained as a part of that production or scanning for either or both of the above purposes.^[6]

1.4 The committee considers that where a bill provides for the collection, use or disclosure of personal information, the explanatory materials to the bill should address why it is appropriate to do so and what safeguards are in place to protect the personal information, and whether these are set out in law or policy. This includes whether the Privacy Act 1988 (Privacy Act) applies to the information that is collected, stored and disclosed.

1.5 The statement of compatibility explains:

Both purposes relate to assessing biosecurity risks, both in the present and in the future which is a reasonable and legitimate objective. As noted, the collection of information via the scanning of a travel document provides for a more effective, efficient and targeted management of biosecurity risk with the ultimate aim of protecting Australia, its people, plant and animals, its environment and economy. A biosecurity officer may not require the provision of a travel document, the scanning of the same and the retention of information from this process for any purpose other than the limited purposes set out in new subparagraphs 196(3A)(a)(i) and (ii). Further, it is intended that the information obtained from the process enabled by proposed subsection 196(3A) will only be held as long as is necessary to meet the purposes outlined above.
Additionally, Part 2 of Chapter 11 of the Act includes protections relating to the collection, storage and disclosure of protected information, which would include information collected as part of a process envisaged by new subsection 196(3A). This includes offences and a civil penalty for the unauthorised use or disclosure of protected information, such as sensitive personal information. As such, any sensitive personal information obtained by the exercise of power under new subsection 196(3A) would be protected by the robust information management framework in the Act.^[7]

1.6 In this instance, while the committee notes that the scanning and collection of information from a passport or travel document that is produced is considered necessary for the management of biosecurity risk, the committee is concerned that the explanatory materials do not clarify the nature of personal information that may be collected. The information that is collected from produced documents will also inform the level of biosecurity risk associated with a person and the future profiling or assessment of biosecurity risks under proposed paragraph 196(3A)(a). The committee's concerns are heightened in this instance given the information that is collected will be used to determine the biosecurity risk associated with an individual, including future profiling of risk, which is not explained.

1.7 Further, though the committee notes that there are protections applicable to the use and disclosure of information obtained from passports and travel documents in part 2 of chapter 11 of the Biosecurity Act, the explanatory materials to the bill do not clarify whether the Privacy Act applies to the information that is collected. In relation to the collection of information, the explanatory materials explain that the information will only be held for as long as is necessary to meet the purposes outlined.^[8] However, without clarification as to the application of the Privacy Act, it is not clear to the committee whether the information must be securely destroyed or de-identified in accordance with Australian Privacy Principle 11.2.^[9]

1.8 The committee requests the minister's detailed advice as to:

• the nature of personal information that can be collected and used from the production or scanning of a passport or travel document in accordance with proposed subsection 196(3A) and to whom that information can be disclosed;

• the meaning of the 'future profiling, or future assessment, of biosecurity risks'; and

• whether the Privacy Act 1988 applies to personal information that is collected in accordance with proposed subsection 196(3A).

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[1] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Biosecurity Amendment (Advanced Compliance Measures) Bill 2023, Scrutiny Digest 8 of 2023; [2023] AUSStaCSBSD 116.

[2] Schedule 1, item 7. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

[3] Biosecurity Act 2015, subsection 196(1).

[4] Schedule 1, item 7, proposed subsection 196(3B).

[5] Schedule 1, item 7, proposed paragraph 196(3A)(b).

[6] Schedule 1, item 7, proposed paragraph 196(3A)(c).

[7] Statement of compatibility, p. 91.

[8] Statement of compatibility, p. 91.

[9] Privacy Act 1988, Australian Privacy Principle 11.2.