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	Before the Senate

Exemption from disallowance
No-invalidity clause^[12]

2.23 Schedule 1 to the bill seeks to insert three new legislative instrument‑making powers into the Biosecurity Act 2015 (Biosecurity Act). Each new instrument‑making power will be exercisable by the Agriculture Minister and mirrors existing powers that are already exercisable by the Health Minister in relation to human biosecurity risks.^[13]

2.24 In Scrutiny Digest 6 of 2022 the committee requested the minister's advice as to:

2.25 The minister advised that the inclusion of the no-invalidity clauses in proposed sections 196A and 393B aligns with similar instrument-making powers in the Biosecurity Act, such as the power to make a Biosecurity Response Zone Determination, Temporary Biosecurity Monitoring Zone Determination or Biosecurity Activity Zone Determination.

2.26 In addition, the minister advised that it is intended that section 196A and 393B determinations will be made in a consultative manner in all but exceptional circumstances. The minister advised that biosecurity threats are often urgent and emerging, with a limited window of time to respond effectively. The minister advised that, in the event of a possible extreme and time critical situation where there is a need to act urgently to respond to a pest or disease, any arguable defects in the consultation process with all of the specified bodies should not invalidate a determination made to combat serious threats to Australia. The minister further advised that the no-invalidity clause provides a mechanism to reduce jurisdictional uncertainties and facilitate activities where matters cross State and Territory boundaries.

2.27 Finally, the minister noted that the no-invalidity clause only applies in relation to a failure by the Agriculture Minister to comply with the consultation processes in proposed subsections 196A(9) and 393B(7) and does not affect a person's right to seek judicial review in relation to the exercise of power in making an entry requirements determination or a preventative biosecurity measures determination. As such, avenues to challenge executive decision-making remain.

2.28 On the basis of the above, the minister advised that it is both necessary and appropriate to include a noinvalidity clause in proposed sections 196A and 393B.

2.29 The minister considered that exemptions from the disallowance process within the bill are appropriately justified and therefore does not propose to amend the bill to remove the exemptions. In particular, the minister advised that it is appropriate for determinations made under proposed sections 196A, 196B and 393B to be exempt from disallowance because they are decisions that are scientific and technical in nature, critical to the effective management of biosecurity risks and may enable emergency action to manage a threat or harm from a biosecurity risk.

2.30 The minister noted the existence of legislative constraints on the use of powers to make determinations under proposed sections 196A and 393B, including that a determination must be appropriate and adapted to its purpose. The minister advised that an assessment of whether a determination is appropriate and adapted will be underpinned by scientific and technical processes, data and expertise. To this end, the minister noted that determinations will be made on the basis of expert technical and scientific assessments that determine whether a particular pest or disease poses an unacceptable level of biosecurity risk. The minister considered that subjecting these determinations to the disallowance process has the potential to jeopardise the effectiveness of decision-making and risk management processes.

2.31 The minister also noted safeguards within the bill which prevent determinations from continuing indefinitely. For example, under proposed subsection 196B(1) the Agriculture Minister must vary or revoke a determination if satisfied that the relevant pest or disease no longer poses an unacceptable biosecurity risk or that a requirement is no longer appropriate and adapted for its purpose.

2.32 The minister also advised that disallowance would be inappropriate because it could generate uncertainty. To this end, the minister advised that Australian businesses, individuals and trading partners rely upon Australia's favourable biosecurity status and the Commonwealth's ability to effectively manage biosecurity risk in a timely manner. Where there is an imminent, substantial threat or actual outbreak of such pest or disease entering Australia, emergency action would be required to manage the threat or harm from the spread of the pest or disease within Australian territory. The minister advised that, in this context, disallowance of a determination specified above would create uncertainty for impacted industries, regulators and the broader community and may jeopardise Australia's plant and animal health, and the agricultural industry.

2.33 The minister considered that a 15 sitting day disallowance period would give rise to considerable uncertainty around business requirements, among other things, as disallowance would take effect immediately upon the passing of the motion. The minister also noted that if an instrument were to be disallowed, no instrument that is the same in substance could then be made within six months of the disallowance. The resulting uncertainty, delays or potential inability to impose appropriate measures for 6 months would increase costs to industry, risk damaging relationships with Australia's trading partners and undermine community trust in the government to effectively manage emerging and existing biosecurity risks.

2.34 Finally, the minister noted that other mechanisms are available to Parliament to ensure oversight over exempt instruments, such as Senate Estimates, senate committee processes, or question time.

2.36 However, the committee continues to be concerned in relation to these provisions. The committee reiterates its view that simply stating that a matter is technically complex, or has significant policy implications, is not an adequate justification for removing democratic oversight over a law of the Commonwealth.^[16] It is not clear to the committee from the minister's explanation why the minister considers that it is appropriate to exempt an instrument from disallowance merely because the considerations that go into making that instrument are scientific or technical. The explanatory memorandum to the bill notes that '... potential disallowance of a determination made under new subsection 196A(2) would have a significant impact on technical and scientifically based decision-making, risk management processes and the broader management of biosecurity risks'.^[17] However, it is not clear to the committee from this explanation why this would be the case.

2.37 The committee reiterates its view that while it is often appropriate to delegate law-making power to the executive in relation to technically complex matters, it does not follow that such instruments should subsequently be exempt from disallowance on that basis alone. The committee again reiterates that it is not clear why parliamentarians would be incapable of taking into account scientific and technical evidence, or any resulting outcomes that could flow from disallowance, when considering the appropriateness of an instrument. Moreover, even when relevant considerations are scientific or technical the potential implications of those considerations will often have more expansive implications. The committee has considered this point at length, including recently in Scrutiny Digest 1 of 2022. A relevant extract is set out below:

2.38 The broad discretionary nature of the powers set out at proposed sections 196A, 196B and 393B is presumably intentional to ensure that a range of options are available to address biosecurity risks depending on the particular circumstances of the case at hand. For instance, in relation to proposed subsection 196A(7) the explanatory memorandum notes 'This provision ensures flexibility and agility in how to manage current and emerging biosecurity threats, and provides future ready solutions to future incursions of diseases or pests which are yet to emerge.'^[19] Even when based purely on scientific and technical considerations, the flexibility built into these provisions means that a decision as to what specific requirement is appropriate and adapted to the relevant purpose of an instrument is one upon which reasonable minds may differ and, as such, is the kind of decision which should appropriately be exposed to parliamentary scrutiny.

2.39 In addition, in this case, the committee notes that there is nothing on the face of the bill, or within the Biosecurity Act, limiting decisions made under proposed sections 196A, 196B and 393B to purely scientific or technical matters. For example, determining whether a matter is appropriate and adapted to preventing a biosecurity risk could theoretically involve consultation with affected stakeholders in addition to consideration of purely scientific factors. Finally, the committee notes that all three powers are exercisable by the Agriculture Minister who is not of necessity a technical or scientific expert.

2.40 In relation to the minister's advice that allowing the usual disallowance process to apply to instruments made under proposed sections 196A, 196B and 393B would create an unacceptable level of uncertainty, the committee reiterates its previous comments. For instance, in Scrutiny Digest 1 of 2022, the committee stated:

2.41 That disallowances rarely occur is demonstrated by the fact that, of the thousands of pieces of delegated legislation tabled in the Parliament between 2010 and 2019, only 17 instruments were disallowed.

2.42 In relation to minister's advice on the limits on the Agriculture Minister's discretion included within proposed sections 196A, 196B and 393B, the committee welcomes these safeguards and considers them to be appropriate given the broad discretion the minister has to make instruments under those sections, and the potentially significant impact of such an instrument. However, the committee does not consider that the existence of these safeguards justifies excluding instruments made under proposed sections 196A, 196B and 393B from disallowance.

2.43 The committee notes the minister's advice that it is necessary and appropriate to include no-invalidity clauses at proposed sections 196A and 393B to allow instruments to be made in emergency situations, in which there is a limited window of time to respond effectively. The minister advised that determinations will be made in a consultative manner in all but exceptional circumstances. The committee welcomes this advice, but considers that it would have been more appropriate had this information had instead been included as a requirement on the face of the bill.

2.44 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.45 The committee otherwise draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of exempting instruments made under proposed section 196A, proposed section 196B and proposed section 393B from the usual parliamentary disallowance process and of including no-invalidity clauses at proposed section 196A and 393B.

2.46 The committee draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.

Broad discretionary power
Section 96 Commonwealth grants to the states^[21]

2.47 Item 6 of Schedule 6 to the bill seeks to insert proposed section 614B into the Biosecurity Act to provide that the Agriculture Minister or the Health Minister may make, vary or administer an arrangement to grant financial assistance for dealing with risks posed by diseases or pests, including to a state or territory. Proposed section 614C provides that the terms and conditions on which financial assistance is to be granted is to be set out in a written agreement between the Commonwealth and the grant recipient.

2.48 In Scrutiny Digest 6 of 2022 the committee requested the minister's advice as to:

2.49 The minister advised that not including any guidance as to the terms and conditions that may apply to a section 614C grant within the bill is consistent with the model in section 32C of the Financial Framework (Supplementary Powers) Act 1997. The minister also noted that section 614C grants would be governed by the Federal Financial Relations Act 2009 and the COAG Reform Fund 2008 and that the Council on Federal Financial Relations (CFFR), is responsible for overseeing the financial relationship between the Commonwealth and state and territory governments.

2.50 The minister advised that it is intended that any agreements with states or territories in relation to grants would contain appropriate terms and conditions, but that specifying these terms and conditions within the bill would add additional regulatory burden in light of the existing processes outlined above.

2.51 The minister further advised that the bill contains an exhaustive list of activities in relation to which the Agriculture Minister or the Health Minister may make, vary or administer arrangements or grants of financial assistance. The minister also advised that the bill contains criteria for the activities grants must relate to. These activities are directly referrable to identifying, preventing, preparing for and managing biosecurity risks, and the minister noted that this will ensure that grants will address the potential for harm to human, animal and plant health, the environment and the economy posed by biosecurity risks.

2.52 Finally, the minister advised that it would be inappropriate to require the tabling of section 614C agreements given existing reporting requirements that will apply to the agreements. For example, the minister noted that the Federation Funding Agreements (FFA) framework and Principle 8 of the FFA Principles require funding agreements between the Commonwealth and state and territory governments to be published on the CFFR website and that proposed section 614G would require the publishing of information about arrangements within the department's annual report.

2.54 While acknowledging this advice, the committee notes that the minister's response focuses on the administration of the grants process without comprehensively addressing the appropriateness of limiting parliamentary oversight of the grant framework. In this regard, the committee notes that its scrutiny concerns relate specifically to the appropriateness of delegating to the executive Parliament's constitutional power to provide grants to the states, in circumstances in which there is little information as to the terms and conditions of those grants within the primary legislation. While welcoming the limitations that apply to what a grant may relate to, the committee remains concerned that there is no information as to the terms and conditions which may be attached to such a grant on the face of the bill.

2.55 In relation to the minister's advice that tabling the written agreements with the states and territories in relation to grants of financial assistance is not necessary, the committee notes that the process of tabling documents in Parliament alerts parliamentarians to their existence and provides opportunities for debate that are otherwise not available if the documents are merely available online. The committee notes that tabling documents within a House of Parliament is not a mere publication requirement but rather an important element of parliamentary scrutiny and oversight. This is particularly significant in this context in which parliamentary scrutiny over grants agreements contributes to the maintenance of the Parliament's role under section 96 of the Constitution. From a scrutiny perspective, the committee does not consider that public reporting obligations are sufficient to address the committee's scrutiny concerns relating to not providing for agreements to be tabled in the Parliament.

2.56 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of conferring on the Agriculture Minister and the Health Minister a broad power to make arrangements and grants in circumstances where there is limited guidance on the face of the bill as to how the power is to be exercised and where there is no guidance as to the terms and conditions on which grants may be made and no requirement to table written agreements with the states and territories in the Parliament.

Availability of merits review^[24]

2.57 Part 5 of Schedule 7 to the bill seeks to amend sections 632 and 633 of 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.

2.58 In Scrutiny Digest 6 of 2022 the committee 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 2015.^[25]

2.59 The minister advised that an alternative mechanism for relief is already available within section 27 of the Biosecurity Act which enables persons who are dissatisfied with the Director of Biosecurity's decision under sections 632 and 633 to institute proceedings in a relevant court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

2.60 Section 27 of the Act specifically addresses the issue of compensation for acquisition of property. It 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 that person. Further, it provides that, in the event of a disagreement between the parties as to the amount of compensation, the person may institute proceedings in a relevant court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

2.61 As there is an existing mechanism under section 27, it would appear duplicative to provide for independent merits review of decisions made under sections 632 and 633. This is because a court, in making a decision under section 27, would be able to authoritatively determine whether, and to what extent, compensation should be paid by the Commonwealth for any acquisition of property.

2.62 For the above reasons, I do not consider it necessary 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, as it is appropriate for the existing mechanism in section 27 to apply.

2.64 While acknowledging the minister's advice in respect of section 27 of the Biosecurity Act, the committee notes that it appears that that section relates to the acquisition of property, rather than specifically to a decision by the Director of Biosecurity under sections 632 and 633. The committee notes that sections 632 and 633 relate to destroyed or damaged goods, not to goods that have been acquired by the Commonwealth.

2.65 In any case, the committee does not consider that recourse to the court under subsection 27(2) is a sufficient justification for removing independent merits review over an administrative decision that will, or might, detrimentally affect individuals. The committee notes that proceedings under subsection 27(2) would involve the exercise of the Commonwealth's judicial power and result in findings in law. By contrast, merits review involves the exercise of administrative powers and is intended to result in a correct and preferable decision, in the sense that if there is a range of decisions that are correct in law, the decision settled upon is the best that could have been made on the basis of the relevant facts.^[27]

2.66 The committee notes 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,^[28] a decision to give approval for destroying high-value conveyances,^[29] and a decision to give approval for destroying high-value premises,^[30] 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.

2.67 In light of the above, the committee requests the minister's further advice as to whether the bill can be amended to provide that decisions made under sections 632 and 633 of the Biosecurity Act 2015 be subject to independent merits review.

[12] Schedule 1, item 5, proposed sections 196A and 196B; item 11, proposed section 393B. The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iii), (iv) and (v).

[15] The minister responded to the committee's comments in a letter dated 10 November 2022. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 7 of 2022 available at: www.aph.gov.au/senate_scrutiny_digest .

[16] The committee has made this point in the context of the Biosecurity Act on several occasions, including

[21] Schedule 6, item 6, proposed sections 614B and 614C. The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(ii) and (v).

[23] The minister responded to the committee's comments in a letter dated 10 November 2022. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 7 of 2022 available at: www.aph.gov.au/senate_scrutiny_digest .

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

[26] The minister responded to the committee's comments in a letter dated 10 November 2022. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 7 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 [2022] AUSStaCSBSD 109 (23 November 2022)

Exemption from disallowance
No-invalidity clause^[12]

Broad discretionary power
Section 96 Commonwealth grants to the states^[21]

Availability of merits review^[24]

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

Biosecurity Amendment (Strengthening Biosecurity) Bill 2022 - Commentary on Ministerial Responses [2022] AUSStaCSBSD 109 (23 November 2022)

Biosecurity Amendment (Strengthening Biosecurity) Bill 2022

Exemption from disallowanceNo-invalidity clause[12]

Broad discretionary powerSection 96 Commonwealth grants to the states[21]

Availability of merits review[24]

Exemption from disallowance
No-invalidity clause^[12]

Broad discretionary power
Section 96 Commonwealth grants to the states^[21]

Availability of merits review^[24]