Biosecurity Amendment (Strengthening Biosecurity) Bill 2022

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Purpose	This bill seeks to amend the Biosecurity Act 2015 to enhance Australia's ability to manage the risk of pests and diseases entering, emerging, establishing or spreading in Australian territory and causing harm to animal, plant and human health, the environment and the economy.
Portfolio	Agriculture, Fisheries and Forestry
Introduced	Senate on 28 September 2022
Bill status	Passed both Houses

Availability of merits review^[14]

2.34 Part 5 of Schedule 7 to the bill seeks to amend sections 632 and 633 of the Biosecurity Act 2015 (the Biosecurity Act). Under those sections the Director of Biosecurity has the discretion to approve the payment of compensation for damaged or destroyed goods, conveyances or other premises. This discretion is only available in certain circumstances. This bill would amend both provisions to provide that the Director of Biosecurity's discretion to provide compensation is exercisable in a more limited set of circumstances than previously available.

2.35 The committee initially scrutinised this bill in Scrutiny Digest 6 of 2022 and requested the minister's advice as to why it is necessary and appropriate not to provide that independent merits review will be available in relation to a decision made under either section 632 or section 633 of the Biosecurity Act.^[15] The committee considered the minister's response in Scrutiny Digest 7 of 2022 and requested the minister's further advice as to whether the bill can be amended to provide independent merits review.^[16]

2.36 The minister advised that there is an alternative mechanism for relief in relation to a decision made under section 632 or section 633 and that merits review over such a decision is therefore not necessary. To this end, the minister noted section 27 of the Biosecurity Act, which prevents the Commonwealth from acquiring property from a person otherwise than on just terms. In such cases, the Commonwealth would be liable to pay reasonable compensation to an affected person. Section 27 also provides that, in the event of a disagreement between the parties as to the amount of compensation, an affected person may institute proceedings in a relevant court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

2.37 The minister advised that, in such a case, the court's remit would not be limited only to questions of law, but would also include making a determination as to the amount of compensation payable.

2.38 The minister therefore did not propose to amend the bill to provide that independent merits review is available for a decision made under either sections 632 or 633 of the Biosecurity Act.

2.40 However, as previously noted by the committee, section 27 of the Biosecurity Act relates generally to the acquisition of property, rather than specifically to a decision by the Director of Biosecurity under sections 632 and 633. Sections 632 and 633 relate to destroyed or damaged goods, not to goods that have been acquired by the Commonwealth. While a person detrimentally affected by a decision made under section 632 or 633 may have recourse to the courts under section 27, it is not clear to the committee that this would be the case in all circumstances.

2.41 Moreover, the committee does not consider that recourse to the court in the manner provided for under subsection 27(2) is a sufficient justification for not providing independent merits review over an administrative decision that may detrimentally affect individuals given that merits review is generally a cheaper and more convenient alternative review mechanism than litigation. The committee also reiterates the point that other decisions relating to the destruction of goods are subject to independent merits review under the Biosecurity Act. For example, a decision to give approval for destroying high-value goods,^[18] a decision to give approval for destroying high-value conveyances,^[19] and a decision to give approval for destroying high-value premises,^[20] are all subject to independent merits review. It is not clear why similar review rights cannot be provided in relation to a decision under sections 632 or 633 of the Act.

2.42 The committee continues to have concerns in relation to not providing for independent merits review over a decision made under either section 632 or section 633 of the Biosecurity Act 2015. However, as this bill has already passed both Houses of the Parliament, the committee makes no further comment on this matter.

[14] Schedule 7, part 5. The committee draws senators' attention to these provisions pursuant to Senate standing order 24(1)(a)(iii).

[17] The minister responded to the committee's comments in a letter dated 30 November 2022. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 9 of 2022 available at: www.aph.gov.au/senate_scrutiny_digest .

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests

Biosecurity Amendment (Strengthening Biosecurity) Bill 2022 - Commentary on Ministerial Responses [2023] AUSStaCSBSD 21 (8 February 2023)

Availability of merits review[14]

Availability of merits review^[14]