BIOSECURITY AMENDMENT (STRENGTHENING BIOSECURITY) BILL 2022 Explanatory Memorandum

Commonwealth of Australia Explanatory Memoranda

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BIOSECURITY AMENDMENT (STRENGTHENING BIOSECURITY) BILL 2022

2022 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA HOUSE OF REPRESENTATIVES BIOSECURITY AMENDMENT (STRENGTHENING BIOSECURITY) BILL 2022 REVISED EXPLANATORY MEMORANDUM (Circulated by authority of the Minister for Agriculture, Fisheries and Forestry, Senator the Hon. Murray Watt)

BIOSECURITY AMENDMENT (STRENGTHENING BIOSECURITY) BILL 2022 GENERAL OUTLINE The Biosecurity Amendment (Strengthening Biosecurity) Bill 2022 (Bill) would amend the Biosecurity Act 2015 (the Biosecurity Act) 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. It would strengthen the management of biosecurity risks posed by goods and by maritime and aviation traveller arrivals. This includes risks arising from Foot and Mouth Disease (FMD) which could be introduced to Australia through contaminated clothing, footwear and other goods of incoming travellers. It will also improve the efficiency and effectiveness of the administration of the Biosecurity Act, and increase a range of civil and criminal penalties to deter non- compliance and provide penalties proportionate to the potential harm caused by non- compliance. The Biosecurity Act provides the regulatory framework for managing the risk of pests and diseases entering Australian territory and gives effect to Australia's relevant international rights and obligations. Australia's biosecurity system is a central pillar of our defence against current and emerging biosecurity threats, including those posed by exotic pests and diseases such as FMD, Lumpy Skin Disease and infectious diseases posing a significant risk to human health such as COVID-19. This Bill would enhance the biosecurity framework to ensure Australia's biosecurity system effectively and efficiently protects Australia's human, plant and animal health, environment, and economy against these potentially devasting threats. The Bill would amend the Biosecurity Act to: • Provide for measures to be implemented that manage the biosecurity risk arising from travellers, including to respond to and manage the risk of FMD being introduced into Australia from the footwear and clothing of travellers; • Strengthen pratique and pre-arrival requirements by: o expanding pre-arrival reporting requirements for aircraft and vessels; and o strengthening penalties for non-compliance with negative pratique requirements; • Enable more effective sharing of information with government agencies and other bodies, while ensuring appropriate safeguards for protected information; • Increase civil and criminal penalties for contraventions of Chapters 3 and 4 of the Biosecurity Act, which deal with managing the biosecurity risks relating to goods and conveyances; • Streamline the process for making certain determinations specifying prohibited, conditionally non-prohibited and suspended goods or granting permits based on risk assessments; 2

• Increase efficiency and ensure transparency of expenditure on biosecurity-related programs and activities by permitting the Agriculture Minister and Health Minister to authorise the expenditure directly through the Biosecurity Act; • Improve the operation of provisions relating to approved arrangements and compensation; and • Provide for a new civil penalty provision to target the concealment of conditionally non-prohibited goods that are brought or imported into Australian territory. The new civil penalty provision would also be subject to the infringement notice scheme under the Biosecurity Act. As evidenced by the amplified threat of FMD and the spread of COVID-19, both the number of biosecurity threats and the speed with which they travel continues to increase. The increased volume and complexity of trade, the effects of climate change, and increasing pest and disease spread all contribute to an increasingly complicated biosecurity risk environment. To meet these challenges, the biosecurity system must be able to adapt and respond to the evolving risk environment in which it operates. Early identification and assessment of biosecurity risk is a key component in the responsive and effective management of biosecurity risk. This Bill would support this by facilitating entry requirements of individuals entering Australia and preventative measures necessary for the purposes of preventing, or reducing the risk of, a disease or pest that is considered to pose an unacceptable level of biosecurity risk entering, or establishing itself or spreading in, Australian territory. International vessels at Australia's borders have emerged as a key risk pathway for the entry of infectious diseases into Australian territory, including COVID-19 cases on cruise passenger ships and commercial vessels. The Inspector-General of Biosecurity's report Confidence testing for at-border delivery of critical human biosecurity functions - Ruby Princess cruise ship incident (Inspector-General's Report) examined the management of this risk. This Bill would strengthen the legislative framework for international arrivals via these key maritime and aviation pathways and would contribute to the ability to effectively respond to and manage Australia's biosecurity preparedness and response at the border. New requirements for pratique and pre-arrival reporting aim to specifically support the safe recovery of tourism and related industries. A stronger penalty regime is necessary to address the evolving biosecurity risk environment and to ensure that Australia has in place an effective deterrent against non-compliance, particularly in a regulatory environment where non-compliance with current penalties may be seen as 'a cost of doing business'. Increases to penalty amounts in this Bill would ensure that the civil and criminal penalty units more appropriately reflect the impact the contraventions may have on Australia's biosecurity status, market access and economy than is currently the case. To support the management of biosecurity risks and the effective administration of the Biosecurity Act, it is also necessary to improve the operation of the information management provisions. These amendments would provide for specific authorisations for the use and disclosure of relevant information, while ensuring that protected information is afforded appropriate safeguards. 3

The Bill would increase transparency around the process for conducting risk assessments for the purposes of making a determination to prohibit or restrict the bringing or importation of particular goods into Australian territory where the goods present an unacceptable level of biosecurity risk, or for granting an import permit. These determinations and permits play a central role in enabling the Australian Government to manage biosecurity risks. This Bill would provide greater clarity to stakeholders around the process to make a determination or grant an import permit. The amendments would identify the matters the decision-makers must be satisfied of, while maintaining the requirement to apply the Appropriate Level of Protection (ALOP) for Australia to manage biosecurity risk. The Bill would also ensure that the process required to authorise expenditure for biosecurity- related programs and activities will appropriately fall within the Biosecurity Act, such as surveillance programs for pests and diseases including Avian influenza, and the National Citrus Canker Eradication Program. Biosecurity programs and activities are vital in protecting Australia's favourable biosecurity status, and a more efficient process would support timely implementation and a responsive biosecurity framework to effectively protect the health of Australia's people, animals, plants, environment, and economy. Another important aspect of the biosecurity framework involves the work of biosecurity industry participants, who are authorised to carry out certain biosecurity activities under approved arrangements to manage biosecurity risks associated with specified goods, premises or other things. The Bill would also streamline and improve the operation of a number of provisions relating to approved arrangements and compensation under the Biosecurity Act. In addition, the Bill will provide for a new civil penalty provision to target the concealment of the conditionally non-prohibited goods. The concealment of goods prevents biosecurity officers from being able to assess the biosecurity risk associated with the goods, and where necessary, take measures to manage any such biosecurity risks. The majority of the amendments will commence on the day after the Bill receives the Royal Assent. The amendments to strengthen pratique and pre-arrival reporting requirements, and to streamline information sharing provisions, will commence on a single day to be fixed by Proclamation, or on the day after the end of the period of 6 months beginning on the day the Bill receives the Royal Assent, if not proclaimed earlier. Consultation has been undertaken with Commonwealth agencies including the Department of Health and Aged Care, the Department of the Prime Minister and Cabinet, the Attorney- General's Department, the Department of Finance, the Department of Foreign Affairs and Trade, the Department of Home Affairs, the Department of Infrastructure, Transport, Regional Development, Communications and the Arts, the Australian Public Service Commission and the Australian Maritime Safety Authority. Consultation has also been undertaken with State and Territory health departments, through the cross-jurisdictional Chief Human Biosecurity Officer Forum chaired by the Commonwealth's Chief Medical Officer. FINANCIAL IMPACT STATEMENT The Bill would have no financial impact on the Australian Government Budget. 4

REGULATION IMPACT STATEMENT The Regulation Impact Statement is attached to this explanatory memorandum (Attachment A). STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS The 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. The full statement of compatibility with human rights for the Bill is included in this explanatory memorandum (Attachment B). 5

BIOSECURITY AMENDMENT (STRENGTHENING BIOSECURITY) BILL 2022 NOTES ON CLAUSES Section 1 Short title 1. Section 1 would provide for the short title of the proposed Act to be the Biosecurity Amendment (Strengthening Biosecurity) Act 2022 (the proposed Act). Section 2 Commencement 2. Subsection 2(1) would provide that each provision of the proposed Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. 3. Table item 1 would provide that sections 1 to 3, and anything in the proposed Act not elsewhere covered by the table, would commence on the day the proposed Act receives the Royal Assent. 4. Table item 2 would provide that Schedule 1 to the proposed Act would commence on the day after the proposed Act receives the Royal Assent. 5. Table items 3 and 4 would provide that Schedules 2 and 3 to the proposed Act would commence on a single day to be fixed by Proclamation, or on the day after the end of the period of 6 months beginning on the day the proposed Act receives the Royal Assent, if not proclaimed earlier. 6. Table item 5 would provide that Schedules 4 to 8 to the proposed Act would commence on the day after the proposed Act receives the Royal Assent. 7. Subsection 2(2) would provide that any information in column 3 of the table is not part of the proposed Act. It would clarify that information may be inserted in column 3 of the table, or information in it may be edited, in any published version of the proposed Act. Section 3 Schedules 8. Section 3 would provide that legislation specified in a Schedule to the proposed Act is amended or repealed as set out in the applicable items of the Schedule, and any other item in a Schedule has effect according to its terms. 6

SCHEDULE 1--INCREASING PROTECTION FROM DISEASES AND PESTS Background 9. Schedule 1 to the Bill would amend the Biosecurity Act 2015 (the Biosecurity Act) to insert new measures to provide for increased protection from diseases or pests that pose an unacceptable biosecurity risk entering, emerging, establishing themselves or spreading in Australian territory. 10. Australia's biosecurity system is a central pillar of the nation's defence against current and emerging biosecurity threats, including those posed by exotic pests and diseases such as Foot and Mouth Disease (FMD), African Swine Fever, Lumpy Skin Disease and Xylella fastidiosa. It is vital that legislation keeps pace with such threats and provides appropriate and adequate powers to manage the significant and potentially devastating effects that these pests and diseases could have on Australia. For example, if FMD were to enter and establish itself in Australia, it is estimated that the direct impact on the Australian agricultural sector alone would be around $80 billion. Similarly, other diseases or pests entering Australia would also have significant impacts on agriculture and other industries, such as the estimated $7.9 billion cost of Xylella fastidiosa to our grape and wine industries. 11. To this end, the measures in this Schedule would significantly enhance the biosecurity framework by creating new, vital powers aimed at preventing, or reducing the risk that, these diseases enter Australia, and to combat the devastating effect that these diseases would pose to plant and animal health, the environment, and the economy. These measures are a crucial new tool to maintain Australia's unique biosecurity status and to protect the nation's animals, plants, environment and related industries. 12. In particular, the first measure provides that the Agriculture Minister may determine requirements for individuals or classes of individuals who are entering Australian territory for the purposes of preventing, or reducing the risk of, a disease or pest that is considered to pose an unacceptable level of biosecurity risk entering, or establishing itself or spreading in, Australian territory or a part of Australian territory. Such requirements may include: • Requirements on persons to provide information as to whether they have been in specified high biosecurity risk environments or undertaken specified high biosecurity risk activities overseas. This information will allow for the effective and efficient triaging of persons entering Australia, and inform decisions as to whether additional biosecurity assessment, screening and/or treatment measures may be appropriate for persons presenting as higher biosecurity risk; • Requirements on persons to provide information as to a person's intended destination and work in Australia so that effective and appropriate biosecurity assessment and screening can be undertaken at the border; • Requirements to require persons to go to a particular location in an airport or port so that they and their goods or baggage may be assessed for biosecurity risk. This requirement would ensure that persons, perhaps arriving from high risk locations, would have their goods and baggage assessed for biosecurity risk in one location and appropriately managed so as to contain any potential risk 7

that may be detected as part of this process. Appropriate management may include treatment under existing powers in the Biosecurity Act; and • Requirements that persons may be screened by equipment or by other methods. 13. The second measure provides that the Agriculture Minister may determine certain biosecurity measures for the purposes of preventing a specified behaviour or practice that causes, or contributes to, the entry into, or the emergence, establishment or spread in, Australian territory or a part of Australian territory of a specified disease (other than a listed human disease), or pest, that is considered to pose an unacceptable level of biosecurity risk. Biosecurity measures may include: • Banning or restricting a behaviour or practice; • Requiring a behaviour or practice; • Requiring a specified person to provide a specified report or keep specified records; and • Conducting specified tests on specified goods or specified conveyances. 14. Both measures create new civil penalty provisions for persons who fail to comply with, respectively, an entry requirement or a preventative biosecurity measures. This reflects the seriousness of non-compliance with the new measures. Non-compliance may pose a significant risk to Australia's biosecurity status; particularly with diseases or pests that pose significant and potentially devastating threats to animal and plant health, the environment and the economy of Australia, such as FMD or African Swine Fever. 15. This Schedule would commence on the day after the proposed Act receives the Royal Assent. The civil penalty provisions created by this Schedule would have prospective application. Part 1--Entry requirements Biosecurity Act 2015 Item 1 Section 3 (paragraph dealing with Chapter 4) 16. Section 3 of the Biosecurity Act sets out a simplified outline of the Biosecurity Act. This item would amend the simplified outline by inserting the words "Requirements may also be determined for persons entering Australian territory on an incoming conveyance, in connection with diseases and pests that are considered to pose an unacceptable level of biosecurity risk" after the words "Powers may be exercised to assess the level of biosecurity risk associated with them, and biosecurity measures may be required to reduce that risk if it is considered to be unacceptable". 17. This item ensures that the simplified outline of the Biosecurity Act accurately reflects the new provisions which item 3 of this Schedule would insert into Chapter 4 of the Biosecurity Act. 8

Item 2 Subsection 25(1) 18. This item amends subsection 25(1) to omit the words "(other than Part 1 of Chapter 8 (biosecurity emergencies)) applies in relation to a pest", and substitute them with "applies in relation to a pest (subject to subsection (2))". Item 3 Subsection 25(2) 19. This item repeals subsection 25(2) and replaces it with a revised version of the subsection which provides that the following provisions of the Biosecurity Act apply only in relation to a pest that is referred to in paragraph 25(1)(a): • Division 3A of Part 2 of Chapter 4 (entry requirements: persons entering Australian territory on board conveyances); • Part 1 of Chapter 8 (biosecurity emergencies). 20. The effect of the amendments to section 25 is that Part 1 of Chapter 8 of the Biosecurity Act and new Division 3A of Part 2 of Chapter 4 of the Biosecurity Act, as inserted by item 5 below, will not apply to invasive pests. 21. Invasive pests are defined in section 9 of the Biosecurity Act as being an alien species (with the meaning of the Biodiversity Convention) that is not capable of infesting humans, plants or animals, or acting as a vector for a disease; or causing disease in any other way. 22. The previous section 25(1) already provided that Part 1 of Chapter 8 of the Biosecurity Act did not apply to invasive pests, so the revised subsection 25(2) reflects the existing arrangements for that Part. The reason for excluding invasive pests from the application of new Division 3A of Part 2 of Chapter 4 of the Biosecurity Act is because this new Division is aimed at preventing, or reducing the risk of, diseases and pests which pose an unacceptable biosecurity risk entering, establishing themselves or spreading in Australia. It is intended that the new Division will therefore only apply to pests to the extent they are capable of infesting humans, plants or animals, or acting as a vector for a disease; or causing disease in any other way (for example, Xylella fastidiosa). Item 4 Section 190 (after the paragraph dealing with Division 3) 23. Section 190 of the Biosecurity Act sets out a simplified outline of Part 2 of Chapter 4 which relates to managing biosecurity risks related to conveyances entering Australian territory. 24. This item would amend the simplified outline set out in section 190 by inserting the words "Division 3A allows the Agriculture Minister to determine requirements for persons entering Australian territory on an incoming aircraft or vessel, in connection with diseases and pests that are considered to pose an unacceptable level of biosecurity risk" after the paragraph dealing with Division 3 of Part 2 of Chapter 4. 25. This item ensures that the simplified outline of Part 2 of Chapter 4 of the Biosecurity Act accurately reflects the new provisions which item 5 of this Schedule would insert into Chapter 4. 9

Item 5 After Division 3 of Part 2 of Chapter 4 26. This item would insert new Division 3A of Part 2 of Chapter 4 (titled: Entry requirements: persons entering Australian territory on board conveyances) after Division 3 of Part 2 of Chapter 4 of the Biosecurity Act. New Division 3A of Part 2 of Chapter 4 would deal with entry requirements relating to diseases or pests for persons entering Australian territory on an incoming aircraft or vessel. Section 196A - Persons on incoming aircraft or vessel may be subject to requirement relating to diseases or pests 27. New section 196A would create a power for the Agriculture Minister to determine certain entry requirements relating to diseases or pests for persons on incoming aircraft or vessels. 28. New subsection 196A(1) would provide that section 196A applies for the purposes of preventing, or reducing the risk of, a disease or pest that is considered to pose an unacceptable level of biosecurity risk entering, or establishing itself or spreading in, Australian territory or a part of Australian territory. 29. The note following new subsection 196A(1) would refer the reader to the subsection 25(2), as inserted by item 2 of this Schedule 1 above, to ensure that the reader is aware that new Division 3A does not apply to invasive pests. 30. New subsection 196A(2) would allow the Agriculture Minister to determine one or more requirements for individuals who are entering Australian territory at a landing place or port in accordance with Division 2 or 3 of Part 4 of Chapter 4 of the Biosecurity Act. 31. The note following new subsection 196A(2) would explain that an individual who fails to comply with a requirement may contravene a civil penalty and would direct the reader to new subsection 196C of the Biosecurity Act (as inserted by this item). 32. New subsection 196A(1) sets out the purposes to which section 196A applies. Those purposes are to prevent, or reduce the risk of, a disease or pest that is considered to pose an unacceptable level of biosecurity risk entering, or establishing itself or spreading in, Australian territory or a part of Australian territory. Taken together with the determination-making power of the Agriculture Minister in new subsection 196A(2), the effect of these two new provisions is that the Agriculture Minister may only make a determination specifying entry requirements for the purposes set out in new subsection 196A(1). As such, this provides that reasonable parameters encompass the exercise of this power. 33. It is also noted that the structure of new subsections 196A(1) and (2) reflects that of subsections 44(1) and (2) of the Biosecurity Act, which deal with determining entry requirements for preventing a listed human disease from entering Australia. As such, new subsections 196A(1) and (2) are consistent with similar existing provisions in the Biosecurity Act which were relied upon as part of the response to the COVID-19 pandemic. 10

34. New subsection 196A(3) would require the determination made under new subsection 196A(2) to specify the disease or pest referred to in new subsection 196A(1). This ensures transparency as to the identity of the disease or pest, including for persons who may be obliged to comply with requirements made under the determination. It also ensures that any assessment of whether the determination is appropriate and adapted for the purposes of new section 196A (for which, see below the discussion on new subsection 196A(5)) is carried out within the context of a specific and named pest or disease. It is noted that a determination may specify more than one disease or pest. 35. New subsection 196A(4) would provide that a determination made under new subsection 196A(2) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 (the Legislation Act) does not apply to the instrument. 36. Any decisions by the Agriculture Minister to make a determination under new subsection 196A(2) would be informed and underpinned by subject matter, and scientific and technical expertise in order to protect Australia's biosecurity status from diseases or pests that pose an unacceptable level of biosecurity risk. Section 643 of the Biosecurity Act provides that the Agriculture Minister may, by writing, delegate any or all of their powers or functions under the Biosecurity Act (except for those under sections 543 and 642) to the Director of Biosecurity or an SES employee, or acting SES employee, in the Agriculture Department. 37. In particular, it is noted that new subsection 196A(5) (as described in more detail below) provides that, before specifying a requirement in a determination, the Agriculture Minister must be satisfied that: • The disease or pest poses an unacceptable level of biosecurity risk; and • The requirement is appropriate and adapted to prevent, or reduce the risk of, the disease or pest entering, or establishing itself or spreading in, Australian territory or a part of Australian territory. 38. The effect of this is that the Agriculture Minister's satisfaction will be informed and underpinned by scientific and technical expertise as to whether the disease or pest does pose an unacceptable biosecurity risk and whether each requirement in the determination is appropriate and adapted to the purpose for which the determination is made - that is, preventing, or reducing the risk of, the disease or pest entering, or establishing itself or spreading in, Australian territory or a part of Australian territory. This ensures that decisions to make a determination and include a requirement in that determination are based on impartial, scientific and technical expertise and advice. 39. This exemption from disallowance is similar in nature to a number of other determinations that can already be made under the Biosecurity Act, such as those made under section 44 relating to entry requirements for the purpose of preventing a listed human disease from entering, or establishing itself or spreading in, Australian territory or part of Australian territory, and those made under section 51 of the Biosecurity Act relating to biosecurity measures for the purpose of preventing a behaviour or practice that may cause or contribute to, a listed human disease entering, emerging, establishing itself or spreading in Australia. A determination made under new subsection 196A(2) is 11

a decision that is scientific and technical in nature, critical to the effective management of biosecurity risks and may be an emergency action to ensure fast and urgent action necessary to manage a threat or harm from a biosecurity risk. It will implement technical and scientifically based decision-making, risk management processes and the broader management of biosecurity risks, noting that those risks arise quickly and could have devastating impacts on Australia, like FMD or Xylella fastidiosa. A determination made under new subsection 196A(2) would be critical to preventing or reducing the risk of dangerous diseases or pests entering, or establishing themselves or spreading in, Australian territory. 40. Australian businesses, individuals and global 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 threat or actual outbreak of such disease or pest entering Australia, emergency action would be required to ensure fast and urgent action is taken to manage a threat or harm from the spread of the disease or pest within Australian territory. A determination made under new subsection 196A(2) will play a crucial role in that response and will be fundamental in the effective management of disease and may need to be made on a time critical basis to protect our industry and economy. The provision will support greater certainty for impacted industries, the individuals that implement these decisions and the broader community in order to protect Australia's plant and animal health, the nation's $70 billion dollar agriculture industry and the 1.6 million jobs that rely on it. 41. It is also noted that other reasonable parameters encompass the Agriculture Minister's power in new section 196A. As noted above, the Agriculture Minister may only make a determination for the specified purposes in new subsection 196A(1). Further, and as described in more detail below, before making a determination, the Agriculture Minister must consult with the Director of Biosecurity, the Director of Human Biosecurity and the head (however described) of the State and Territory body that is responsible for the administration of matters relating to biosecurity in each State and Territory. Each biosecurity measure or entry requirement in a determination made under new subsection 196A(2) must be appropriate and adapted to its purpose. There would also be appropriate safeguards to prevent a determination under new subsection 196A(2) from continuing in force indefinitely. For example, under new subsection 196B(1), the Agriculture Minister must vary or revoke a determination in force under new section 196A 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. This effectively acts as a constraint on the Agriculture Minister's exercise of power as it compels variation or revocation in the circumstances set out above. For completeness, other mechanisms remain available to Parliament to ensure oversight over instruments which are exempt from disallowance, such as Senate Estimates, Senate Committee processes, Question Time and Questions on Notice. 42. New subsection 196A(5) would provide that a requirement must not be specified in a determination unless the Agriculture Minister is satisfied that the disease or pest poses an unacceptable level of biosecurity risk, and the requirement is appropriate and adapted to prevent, or reduce the risk of, the disease or pest entering, or establishing itself or spreading in, Australian territory or a part of Australian territory. 12

43. The effect of this is that no requirement can be included in a determination unless the disease or pest does in fact pose an unacceptable biosecurity risk and the requirement is appropriate and adapted of the purposes specified in new subsection 196A(1). This means that each requirement must serve a legitimate purpose and must be necessary to meet that purpose. Requirements that seek to prevent or reduce the risk of a disease or pest entering, or establishing itself or spreading in, Australian territory or a part of Australian territory would serve a legitimate purpose and would be tailored so as to prevent or reduce such risk. This is particularly so in circumstances where a disease or pest could have a potentially devastating impact on Australia's animal and plant health, the environment and the economy. 44. New subsection 196A(6) would provide that the determination must specify where the requirements apply. For example, the determination may specify all or only certain airports or ports that receive international travellers, depending on the relevant risk. 45. New subsections 196A(7) and (8) would set out examples the of kinds of requirements that may be specified in a determination. New subsection 196A(7) would provide that without limiting new subsection 196A(2), the determination may specify: • Requirements for all individuals, or classes of individuals; and • Requirements in relation to particular diseases or pests or classes of diseases or pests; and • General requirements in relation to all specified diseases or pests; and • Requirements relating to the manner in which an individual must comply with a requirement. 46. New subsection 196A(7) ensures that requirements may specify requirements not only for individuals and particular diseases or pests, but also classes of individuals and classes of diseases or pests. It also clarifies that requirements may be specified for more than one disease or pest. 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. 47. New subsection 196A(8) would provide that without limiting subsection 196A(2), the determination may specify one or more of the following requirements: • A requirement for an individual to provide a declaration or evidence as to whether the individual has been exposed to goods, conveyances, premises or other things specified in the determination; • A requirement for an individual to provide a declaration or evidence as to where the individual has been before entering Australian territory; • A requirement for an individual to provide a declaration or evidence as to whether the individual has undertaken specified activities during a specified period before entering Australian territory, and, if so, specified details about those activities; • A requirement for an individual to provide a declaration as to the individual's intended destination or destinations in Australian territory during a specified period after entering Australian territory; 13

• A requirement for an individual to provide a declaration as to the individual's intended work (whether paid or unpaid) or occupation during a specified period after entering Australian territory; • A requirement for an individual to be screened (whether by requiring the individual to be screened by equipment, by providing a declaration, or in any other way); • A requirement for an individual to move to a place, at the landing place or port, directed by a biosecurity officer that is at the landing place or port, for the purpose of a biosecurity officer (whether the direction is in relation to the individual or a class that includes the individual) for the purpose of a biosecurity officer assessing the level of biosecurity risk associated with either or both of the following: o the individual; o any goods the individual is bringing with them into Australian territory at the landing place or port. 48. The first note following new subsection 196A(8) would explain that a person may commit an offence or contravene a civil penalty provision if the person provides false or misleading information or documents and would direct the reader to sections 137.1 and 137.2 of the Criminal Code and sections 532 and 533 of the Biosecurity Act. 49. The second note following new subsection 196A(8) would explain that new section 196A is not subject to the privilege against self-incrimination and would direct the reader to section 635 of the Biosecurity Act. 50. The requirements set out in paragraphs 196A(8)(a)-(e) allow for the gathering of information about an individual's location and activities whilst overseas, and their intended destinations, and work or occupation in Australia. Requirements to collect these types of information will be critical in triaging persons at the airport or port at which they arrive in Australia according to their respective biosecurity risk as it relates to the disease(s) or pest(s) specified in the determination. This will allow biosecurity officers at the airport or port to intervene with persons whose provided information places them in particular biosecurity risk categories and may lead to further assessment of their goods or baggage, or appropriate treatment of their goods or baggage to manage the risk appropriately. 51. Further, information provided as to a person's intended destination and/or work or occupation in Australia will be critical to monitor any emerging risks, particularly in vulnerable or high risk areas such as farms, national parks, abattoirs or veterinary clinics, that may not have been detected at the airport or port and allow for appropriate intervention to manage such risks. 52. The requirement set out in paragraph 196A(8)(f) allows for the screening of persons which will provide a vital power to ensure that all goods being brought into Australia, even those which are person may have on their person or in their baggage may be identified and assessed for biosecurity risk as appropriate under existing powers in the Biosecurity Act. 53. The requirement set out in paragraph 196A(8)(g) allows for the persons and classes of persons to be moved to a place at the airport or port where they arrive in Australia as 14

directed by a biosecurity officer for the purpose of a biosecurity officer assessing the level of biosecurity risk associated with either or both of the following: • The individual; • Any goods the individual is bringing with them into Australian territory at the landing place or port. 54. This ensures that persons, where appropriate (such as perhaps arriving from the same high risk location), would have their goods and baggage assessed for biosecurity risk in one location so as to manage and contain any potential risk that may be detected as part of this process. Such a process would strengthen the ability to manage potentially high biosecurity risks in a controlled and discrete area, which may be crucial to prevent the further spread of certain diseases or pests that pose considerable threats to Australia's biosecurity systems. It is intended that persons will only remain at the location until the assessment of biosecurity risk has been completed and any appropriate treatment measures have been identified and, depending on the type of treatment, completed. Whilst this may cause mild inconvenience for some persons arriving in Australia, it is justified given the significant and devastating impact on Australia and its unique biosecurity status that would occur should a disease or pest posing unacceptable biosecurity risk, like FMD, enter Australia. 55. Lastly, it is necessary for the specific requirements to be set out in the determination rather than the Biosecurity Act because the nature of each individual disease or pest that may pose an unacceptable biosecurity risk will vary from case to case, meaning that the requirements specified to manage the relevant biosecurity risk will also vary from case to case. In order to protect Australia's unique biosecurity status and to protect it from diseases or pests that may pose unacceptable biosecurity risks, it is therefore necessary to specify the exact requirements in the determination. That said, it is noted that new subsection 196A(8) provides a long list of the types of requirements that may be included. As noted above, a requirement in a determination must be appropriate and adapted to its purpose. It is also noted that this structure is consistent with the existing section 44 of the Biosecurity Act. 56. New subsection 196A(9) would provide that before making the determination, the Agriculture Minister must consult with the Director of Biosecurity, the Director of Human Biosecurity, and the head (however described) of the State or Territory body that is responsible for the administration of matters relating to biosecurity in each State and Territory. 57. New subsection 196A(10) would provide that a failure by the Agriculture Minister to comply with new subsection 196A(9) does not affect the validity of the determination. The inclusion of new subsection 196A(10) would align with similar provisions in the Biosecurity Act, such as a biosecurity response zone determination (see sections 365 and 368), a temporary biosecurity monitoring zone determination (see sections 384 and 387) or a biosecurity activity zone determination (see sections 395 and 396), all of which are crucial in providing a rapid response to a pest or disease. 58. Before making a determination under new subsection 196A(2), in all but exceptional circumstances, the Agriculture Minister will consult with the Director of Biosecurity, the Director of Human Biosecurity, and the head of each State or Territory body that is 15

responsible for the administration of biosecurity matters. The importance and value of consultation is acknowledged and accepted. However the validity of a determination made under new subsection 196A(2) would not be affected if the Agriculture Minister fails to comply with these consultation requirements. Biosecurity threats are often urgent and emerging, with a limited window of time to respond effectively. 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, its economy, environment and way of life. Further, as the process involves consultation with State and Territory bodies, the no-invalidity clause in new subsection 196A(10) provides a mechanism to reduce jurisdictional uncertainties and facilitate activities where matters cross State and Territory boundaries. For the avoidance of doubt, new subsection 196A(10) only applies in relation to a failure by the Agriculture Minister to comply with the consultation processes in new subsection 196A(9). It does not affect a person's right to seek judicial review in relation to the exercise of power in making the determination. As such, avenues to challenge executive decision-making remain. Section 196B - Varying and revoking requirements 59. New section 196B would provide for the mandatory variation and revocation of a determination made under new section 196A in certain circumstances. 60. New subsection 196B(1) would provide that the Agriculture minister must vary or revoke a determination in force under new section 196A in relation to a disease or pest if the Agriculture Minister is satisfied that: • The disease or pest no longer poses an unacceptable biosecurity risk; or • A requirement determined in relation to the disease or pest is no longer appropriate and adapted to prevent, or reduce the risk of, the disease or pest entering, or establishing itself or spreading in, Australian territory or part of Australian territory. 61. The purpose of this provision is to require the Agriculture Minister to vary or revoke a determination in certain circumstances. This provides a reasonable constraint of the exercise of power and ensures that any determination made under new section 196A is for the purposes set out in new subsection 196A(1) and satisfies the terms of new subsection 196A(5). 62. The effect of new subsection 196B(1) is as follows: • If new paragraph 196B(1)(a) is satisfied in relation to a particular disease or pest specified in the determination, but not others specified in the determination, then the determination would have to be varied to remove reference to that disease or pest; • If new paragraph 196B(1)(b) is satisfied in relation to a particular disease or pest specified in the determination but not others specified in the determination, then the determination would have to be varied to remove the requirement, to specify one or more alternative requirements that satisfy new 16

subsection196A(5) or to remove reference to the disease or pest if no alternative requirements that satisfy new subsection196A(5) are able to be specified; • In the case where none of the diseases or pests specified in the determination pose an unacceptable biosecurity risk, or there are no alternative requirements that could be determined in relation to any disease or pest specified in the determination because of the operation of new subsection196A(5), then the determination would need to be revoked. 63. It is further noted that new subsection 196A(5) will apply in relation to any variation or revocation of a determination due to subsections 33(3) and (3AA) of the Acts Interpretation Act 1901 (the Acts Interpretation Act). 64. New subsection 196B(2) would provide that an instrument that varies or revokes a determination made under new section 196A is a legislative instrument, but section 42 (disallowance) of the Legislation Act does not apply to the instrument. The justification for such an instrument being non-disallowable is discussed above. 65. New subsection 196B(3) would provide that new section 196B does not limit the application of subsection 33(3) of the Acts Interpretation Act in relation to a determination in force under new section 196A. Under subsection 33(3) of the Acts Interpretation Act, the power to make an instrument shall be construed as including the power to vary or revoke any such instrument. The effect of this provision is that the Agriculture Minister may vary or revoke a determination made under new section 196A, and does not need to rely solely on the powers of variation and revocation under new section 196B. Section 196C - Civil penalty for failing to comply with requirement 66. New section 196C would provide that an individual to whom a requirement determined under new section 196A applies must comply with the requirement. If an individual does not comply with the requirement, they are liable to a maximum civil penalty of 120 penalty units. 67. The note following new section 196C would explain that new section 196C is not subject to the privilege against self-incrimination and would direct the reader to section 635 of the Biosecurity Act. 68. The civil penalty is intended to reflect the seriousness of non-compliance with requirements determined under new section 196A. Non-compliance may pose a significant risk to Australia's biosecurity status, particularly so with diseases or pests that pose significant and potentially devastating threats to the animal and plant health, the environment and the economy of Australia, such as FMD, African Swine Fever and Xlyella fastidiosa. 69. New section 196C would not be subject to the privilege against self-incrimination (see section 635 of the Biosecurity Act as proposed to be amended by item 9 of Schedule 1 to the Bill). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as imposing the requirements determined under new section 196A would prevent or reduce the risk of a disease or pest that is considered to 17

pose an unacceptable level of biosecurity risk, from entering, or establishing itself or spreading in, Australian territory or part of Australian territory. 70. Allowing a person to use the privilege in refusing to comply with requirements, could result in significant and irreparable damage to Australia's environment, economy, plant and animal health. It is critical for the management of biosecurity risks that information required to be shared by a determination that would be made under new section 196A, can be sought in a timely manner. 71. While the privilege against self-incrimination would be abrogated in relation to new section 196C, the Biosecurity Act provides individuals with the protection that self- incriminatory disclosure cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person, except proceedings under section 137.1 or 137.2 of the Criminal Code or section 532 or 533 of the Biosecurity Act (providing false or misleading information and documents) (see subsection 635(2) of the Biosecurity Act). Item 6 Division 4 of Part 2 of Chapter 4 (at the end of the heading) 72. This item adds the words "associated with conveyances" at the end of the title of Division 4, "Division 4 - Assessment of level of biosecurity risk." This minor amendment clarifies what Division 4 deals with, as specified in section 197, that is - 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. Item 7 Division 5 of Part 2 of Chapter 4 (at the end of the heading) 73. This item adds the words "associated with conveyances" at the end of the title of Division 5, "Division 5 - Biosecurity measures to manage unacceptable level of biosecurity risk." This minor amendment clarifies what Division 5 deals with. Item 8 Subsection 523(1) (after table item 10) 74. The table in subsection 523(1) of the Biosecurity Act sets out the provisions that are subject to infringement notices under Part 5 of the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act). Part 5 of the Regulatory Powers Act creates a framework for the use of infringement notices where an infringement officer reasonably believes that a provision has been contravened. 75. This item would amend the table in subsection 523(1) to insert new item 10A after item 10. This would have the effect that new section 196C would be subject to an infringement notice under Part 5 of the Regulatory Powers Act. The ability to issue an infringement notice for contravention of new subsection 196C would allow the notice with the stated amount to be issued immediately and to be effective in managing alleged non-compliance with requirements set out in a determination made under new section 196A. 18

Item 9 Paragraph 635(1)(c) 76. Section 635 of the Biosecurity Act sets out the provisions that are not subject to the privilege against self-incrimination. 77. This item would amend paragraph 635(1)(c) by inserting "196C," after "196, ". This amendment would have the effect that new section 196C would not be subject to the privilege against self-incrimination. A person would not be excused from the requirement under new section 196C to answer a question, provide information or produce documents pursuant to a determination under new section 196A, on the ground that the answer, the information or the production of the document might tend to incriminate the person or make the person liable to a penalty. 78. It is important that biosecurity officials can effectively obtain answers, information or documents from persons as required under a determination made under new subsection 196A(1) as required by new section 196C (as proposed to be inserted by item 5 of Schedule 1 to the Bill) to properly manage biosecurity risks relating to diseases or pests that pose an unacceptable level of biosecurity risk. Given the potential seriousness of the biosecurity risk, biosecurity officials require timely access to information and documents to ensure that appropriate measures are in place to manage this risk. Upholding the privilege against self-incrimination in relation to individuals who have information regarding a potential biosecurity risk (such as a risk relating to FMD) could have significant consequences to plant and animal health, the environment and the economy, including potentially devastating effects on the agriculture and other industries. 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 would allow officers to effectively manage biosecurity risks posed by pests and diseases to plant and animal health, the environment, and the economy of Australia. 79. It is noted that subsection 635(2) of the Biosecurity Act provides that the answers, information or documents obtained under section 196C are not admissible in evidence against the individual in any criminal or civil proceedings, except proceedings under section 137.1 or 137.2 of the Criminal Code or section 532 or 533 of the Biosecurity Act (providing false or misleading information and documents), in relation to answering the question, providing information or producing the document. Part 2--Preventative biosecurity measures Biosecurity Act 2015 Item 10 After paragraph 311(d) 80. New paragraph 311(e) would provide that an object of Chapter 6 of the Biosecurity Act is to provide for biosecurity measures to be taken for the purposes of preventing behaviours or practices that may cause, or contribute to, the entry into, or the emergence, establishment or spread in, Australian territory or a part of Australian territory of diseases (other than listed human diseases), or pests, that are considered to pose an unacceptable level of biosecurity risk. 19

81. This item ensures that the objects of Chapter 6 of the Biosecurity Act accurately reflect the new provisions which item 11 of this Schedule would insert into Chapter 6 of the Biosecurity Act. Item 11 After Part 6 of Chapter 6 82. This item would insert new Part 6A of Chapter 6 after Part 6 of Chapter 6 of the Biosecurity Act. New Part 6A of Chapter 6 would deal with preventative biosecurity measures relating to diseases (other than listed human diseases) or pests that may pose an unacceptable level of biosecurity risk. Division 1 - Introduction Section 393A - Simplified outline of this Part 83. New section 393A would provide a simplified outline to new Part 6A of Chapter 6 of the Biosecurity Act (preventative biosecurity measures). The outline is not intended to be comprehensive and has been included to assist readers to understand the substantive provisions of the Part 6A of Chapter 6. It is intended that readers will rely on the substantive provisions of the Part. Division 2 - Preventative biosecurity measures Section 393B - Determining preventative biosecurity measures 84. New section 393B would create a power for the Agriculture Minister to determine certain biosecurity preventative measures relating to diseases (other than listed human diseases) or pests that pose an unacceptable level of biosecurity risk. 85. New subsection 393B(1) would provide that new section 393B applies for the purposes of preventing a behaviour or practice that: • May cause a disease (other than a listed human disease), or pest, that is considered to pose an unacceptable level of biosecurity risk to enter, or emerge, establish itself or spread in, Australian territory or a part of Australian territory; or • May contribute to a disease or pest in relation to which paragraph (a) applies entering, or emerging, establishing itself or spreading in, Australian territory or a part of Australian territory. 86. The note following new subsection 393B(1) would direct the reader to section 51 of the Biosecurity Act for preventative biosecurity measures relating to listed human diseases. 87. New subsection 393B(2) would provide that the Agriculture Minister may make a determination that specifies any one or more of the following biosecurity measures to be taken by specified classes of persons: • Banning or restricting a behaviour or practice; • Requiring a behaviour or practice; 20

• Requiring a specified person to provide a specified report or keep specified records; • Conducting specified tests on specified goods or specified conveyances. 88. The note following new subsection 393B(2) would explain that a person who fails to comply with a biosecurity measure may contravene a civil penalty provision and would direct the reader to new subsection 393C of the Biosecurity Act (as inserted by this item of Schedule 2 to the Bill). 89. It is necessary for the specific biosecurity measures to be set out in the determination rather than the Biosecurity Act because the nature of each individual disease or pest that may pose an unacceptable biosecurity risk will vary from case to case, meaning that the biosecurity measures specified to manage the relevant biosecurity risk will also vary from case to case. In order to protect Australia's unique biosecurity status and to protect it from diseases or pests that may pose unacceptable biosecurity risks, it is therefore necessary to specify the exact biosecurity measures in the determination. That said, it is noted that new subsection 393B(2) provides a list of the types of biosecurity measures that may be included. As discussed in detail below, a biosecurity measure in a determination must be appropriate and adapted to its purpose. It is also noted that this structure is consistent with the existing section 51 of the Biosecurity Act. 90. New subsection 393B(1) sets out the purposes to which new section 393B applies. Those purposes are to prevent a behaviour or practice that: • May cause a disease (other than a listed human disease), or pest, that is considered to pose an unacceptable level of biosecurity risk to enter, or emerge, establish itself or spread in, Australian territory or a part of Australian territory; or • May contribute to a disease or pest in relation to which paragraph (a) applies entering, or emerging, establishing itself or spreading in, Australian territory or a part of Australian territory. 91. Taken together with the determination-making power of the Agriculture Minister in new subsection 393B(2), the effect of these two new provisions is that the Agriculture Minister may only make a determination specifying biosecurity measures for the purposes set out in new subsection 393B(1). As such, reasonable parameters encompass the exercise of this power. 92. It is also noted that the structure of new subsections 393B(1) and (2) reflects that of subsections 51(1) and (2) of the Biosecurity Act, which deal with determining biosecurity measures to prevent behaviours or practices that may cause or contribute to a listed human disease entering, emerging, or establishing itself or spreading in Australia. As such, new subsections 393B(1) and (2) are consistent with similar existing provisions in the Biosecurity Act which were relied on in part of the response to manage the COVID-19 pandemic. 93. New subsection 393B(3) would provide that the determination made under new subsection 393B(2) must specify the behaviour or practice, and the disease or pest, referred to in new subsection 393B(1). This ensures transparency as to the identity of the disease or pest and the behaviour or practice, including for persons who may be 21

obliged to comply with biosecurity measures made under the determination. It also ensures that any assessment of whether the determination is appropriate and adapted for the purposes of new section 393B (for which, see below the discussion on new subsection 393B(5)) is carried out within the context of a specific and named pest or disease. It is noted that a determination may specify more than one disease or pest. 94. New subsection 393B(4) would provide that a determination made under new subsection 393B(2) is a legislative instrument, but section 42 (disallowance) of the Legislation Act does not apply to the instrument. 95. Decisions that would be made by the Agriculture Minister to make a determination under new subsection 393B(2) would be informed and underpinned by subject matter, and scientific and technical expertise in order to protect Australia's biosecurity status from diseases or pests that pose an unacceptable level of biosecurity risk. 96. In particular, it is noted that new subsection 393B(5) (as described in more detail below) provides that, before specifying a biosecurity measures in a determination, the Agriculture Minister must be satisfied that: • The disease or pest does indeed pose an unacceptable biosecurity risk; and • The biosecurity measure is appropriate and adapted to prevent, or reduce the risk of, the disease or pest entering, emerging, or establishing itself or spreading in, Australian territory or a part of Australian territory. 97. The effect of this is that the Agriculture Minister's satisfaction will be informed and underpinned by scientific and technical expertise as to whether the disease or pest does pose an unacceptable biosecurity risk and whether each biosecurity measure in the determination is appropriate and adapted to the purpose for which the determination is made - that is, preventing, or reducing the risk of, the disease or pest entering, emerging, or establishing itself or spreading in, Australian territory or a part of Australian territory. This ensures that decisions to make a determination and include a biosecurity measure in that determination are based on impartial, scientific and technical expertise and advice. 98. This exemption from disallowance is similar in nature to a number of other determinations that can already be made under the Biosecurity Act, such as those made under section 44 relating to entry requirements for the purpose of preventing a listed human disease from entering, or establishing itself or spreading in, Australian territory or part of Australian territory, and those made under section 51 of the Biosecurity Act relating to biosecurity measures for the purpose of preventing a behaviour or practice that may cause or contribute to, a listed human disease entering, emerging, establishing itself or spreading in Australia. A determination made under new subsection 393B(2) is a decision that is scientific and technical in nature, critical to the effective management of biosecurity risks and may be an emergency action to ensure fast and urgent action necessary to manage a threat or harm from a biosecurity risk. It will implement technical and scientifically based decision-making, risk management processes and the broader management of biosecurity risks, noting that those risks arise quickly and could have devastating impacts on Australia, like FMD or Xylella fastidiosa. A determination made under new subsection 393B(2) would be critical to preventing or reducing the risk 22

of dangerous diseases or pests entering, or establishing themselves or spreading in, Australian territory. 99. Australian businesses, individuals and global 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 threat or actual outbreak of such disease or pest entering Australia, emergency action would be required to ensure fast and urgent action is taken to manage a threat or harm from the spread of the disease or pest within Australian territory. A determination made under new subsection 393B(2) will play a crucial role in that response and will be fundamental in the effective management of disease and may need to be made on a time critical basis to protect our industry and economy. The provision will support greater certainty for impacted industries, the individuals that implement these decisions and the broader community in order to protect Australia's plant and animal health, the nation's $70 billion dollar agriculture industry and the 1.6 million jobs that rely on it. 100. It is also noted that other reasonable parameters encompass the Agriculture Minister's power in new section 393B. As noted above, the Agriculture Minister may only make a determination for the specified purposes in new subsection 393B(1). Further, and as described in more detail below, before making a determination, the Agriculture Minister must consult with the Director of Biosecurity, the Director of Human Biosecurity and the head (however described) of the State and Territory body that is responsible for the administration of matters relating to biosecurity in each State and Territory. Each biosecurity measure in a determination made under new subsection 393B(2) must be appropriate and adapted to its purpose. In addition, a determination made under new subsection 393B(2) is time limited and can only be imposed for 1 year. For completeness, other mechanisms remain available to Parliament to ensure oversight over instruments which are exempt from disallowance, such as Senate Estimates, Senate Committee processes, Question Time and Questions on Notice. 101. New subsection 393B(5) would provide that a biosecurity measure must not be specified in a determination made under new subsection 393B(2) unless the Agriculture Minister is satisfied that: • The disease or pest poses an unacceptable level of biosecurity risk; and • The biosecurity measure is appropriate and adapted to prevent, or reduce the risk of, the disease or pest entering, or emerging, establishing itself or spreading in, Australian territory or a part of Australian territory. 102. The effect of this is that no biosecurity measure can be included in a determination unless the disease or pest does in fact pose an unacceptable biosecurity risk and the biosecurity measure is appropriate and adapted to the purposes specified in new subsection 393B(1). This means that each biosecurity measure must serve a legitimate purpose and must be necessary to meet that purpose. Biosecurity measures that seek to prevent or reduce the risk of a disease or pest entering, emerging, or establishing itself or spreading in, Australian territory or a part of Australian territory would serve a legitimate purpose and would be tailored so as to prevent or reduce such risk. This is particularly so in circumstances where a disease or pest could have a potentially devastating impact on Australia's animal and plant health, the environment and the economy. 23

103. New subsection 393B(6) would require a determination made under new subsection 393B(2) to specify the period during which it is in force, which must not be more than 1 year. The purpose of this provision is to ensure that any determination made under new section 393B will limited in time. This provides a further reasonable constraint on the exercise of this power. 104. New subsection 393B(7) would require the Agriculture Minister, before making a determination under new subsection 393B(2), to consult with: • The Director of Biosecurity; and • The Director of Human Biosecurity; and • The head (however described) of the State or Territory body that is responsible for the administration of matters relating to biosecurity in each State and Territory. 105. New subsection 393B(8) would provide that a failure by the Agriculture Minister to comply with the consultation requirements in new subsection 393B(7) does not affect the validity of the determination. The inclusion of new subsection 393B(8) would align with similar provisions in the Biosecurity Act, such as a biosecurity response zone determination (see sections 365 and 368), a temporary biosecurity monitoring zone determination (see sections 384 and 387) or a biosecurity activity zone determination (see sections 395 and 396), all of which are crucial in providing a rapid response to a pest or disease. 106. Before making a determination under new subsection 393B(2), in all but exceptional circumstances, the Agriculture Minister will consult with the Director of Biosecurity, the Director of Human Biosecurity, and the head of each State or Territory body that is responsible for the administration of biosecurity matters. The importance and value of consultation is acknowledged and accepted. However the validity of a determination made under new subsection 393B(2) would not be affected if the Agriculture Minister fails to comply with these consultation requirements. Biosecurity threats are often urgent and emerging, with a limited window of time to respond effectively. 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, its economy, environment and way of life. Further, as the process involves consultation with State and Territory bodies, the no-invalidity clause in new subsection 393B(8) provides a mechanism to reduce jurisdictional uncertainties and facilitate activities where matters cross State and Territory boundaries. For the avoidance of doubt, new subsection 393B(8) only applies in relation to a failure by the Agriculture Minister to comply with the consultation processes in new subsection 393B(7). It does not affect a person's right to seek judicial review in relation to the exercise of power in making the determination. As such, avenues to challenge executive decision-making remain. Section 393C - Civil penalty for failing to comply with a preventative biosecurity measure 107. New section 393C would provide that a person to whom a biosecurity measure specified in accordance with new subsection 393B(2) applies must comply with the 24

biosecurity measure. A person who does not comply with the biosecurity measure may be liable to a maximum civil penalty of 120 penalty units. 108. The civil penalty is intended to reflect the seriousness of non-compliance with biosecurity measures determined under new subsection 393B. Non-compliance may pose a significant risk to Australia's biosecurity status, particularly so with diseases or pests that pose significant and potentially devastating threats to the animal and plant health, the environment and the economy of Australia, such as FMD, African Swine Fever and Xlyella fastidiosa. Item 12 Subsection 523(1) (after table item 37) 109. The table in subsection 523(1) of the Biosecurity Act sets out the provisions that are subject to infringement notices under Part 5 of the Regulatory Powers Act. Part 5 of the Regulatory Powers Act creates a framework for the use of infringement notices where an infringement officer reasonably believes that a provision has been contravened. 110. This item would amend the table in subsection 523(1) to insert new item 37A after item 37. This would have the effect that new section 393C would be subject to an infringement notice under Part 5 of the Regulatory Powers Act. The ability to issue an infringement notice for contravention of new subsection 393C would allow the notice with the stated amount to be issued immediately and to be effective in managing alleged non-compliance with biosecurity measures set out in a determination made under new section 393A. 25

SCHEDULE 2--PRATIQUE AND PRE-ARRIVAL REPORTING Background 111. Schedule 2 to the Bill would amend provisions relating to pratique and pre-arrival reporting requirements in the Biosecurity Act. 112. The emergence and global spread of COVID-19 has tested Australia's biosecurity systems and public health responses in an unprecedented way. International maritime vessels continue to represent a significant risk pathway for infectious disease entry to Australian territory, including incidents of COVID-19 infections on cruise passenger ships and commercial vessels. 113. This Schedule to the Bill would strengthen the legislative framework under the Biosecurity Act for responding to biosecurity risks arising from incoming aircraft and vessels in Australian territory. In helping manage the ongoing risks in relation to maritime and aviation pathways, the amendments would contribute to Australia's improved biosecurity risk preparedness and response at the border. New requirements for pratique and pre-arrival reporting specifically aim to ensure the safe recovery of tourism and related industries. The measures in this Bill would also provide a flexible framework for responding to new and emerging biosecurity risks through enhanced reporting by aircraft and vessels. 114. The Commonwealth departments with joint portfolio responsibility for the Biosecurity Act, the Department of Health and Aged Care and the Department of Agriculture, Fisheries and Forestry, have identified the measures in this Schedule concerning pratique and pre-arrival reporting requirements as key legislative reforms. 115. This Schedule would commence by Proclamation, or on the day after the period of 6 months beginning on the day the proposed Act receives the Royal Assent, if not proclaimed earlier. The amendments made to the pratique and pre-arrival reporting requirements by this Schedule would not have effect until that day. Part 1--Pratique Biosecurity Act 2015 Item 1 Subsection 48(1) 116. Subsection 48(1) of the Biosecurity Act currently provides that an operator of an incoming aircraft or vessel that arrives at a landing place or port in Australian territory is liable to a civil penalty if the operator contravenes the requirement not to unload or load any thing or disembark or embark any persons, unless pratique has been granted under subsection 48(2) or subsection 49(4) of the Biosecurity Act. 117. This item would amend subsection 48(1) by inserting the words ", or the person in charge of an incoming aircraft or vessel" after "An operator of an incoming aircraft or vessel". Amended subsection 48(1) would extend the scope of the civil penalty provision, such that a person in charge of an incoming aircraft or vessel would, in addition to the operator of the aircraft or vessel, also be liable to a civil penalty if the 26

pratique requirements are not complied with. This amendment is intended to address the disjuncture between the practical and legal responsibility for compliance with pratique requirements under the Biosecurity Act. This was recognised by the Inspector-General, who recommended that the Biosecurity Act should be amended to "[ ... ] make the 'person in charge' (and operator) of a conveyance [ ... ] also responsible for any non-compliance with negative pratique". This amendment would strengthen the regulatory framework by providing that both the operator and the person in charge of the incoming aircraft or vessel should be liable to a civil penalty for non-compliance with subsection 48(1). Item 2 Subsection 48(1) (penalty) 118. Subsection 48(1) of the Biosecurity Act currently provides that an operator of an incoming aircraft or vessel that arrives at a landing place or port in Australian territory is liable to a civil penalty if the operator contravenes the requirement not to unload or load any thing or disembark or embark any persons, unless pratique has been granted under subsection 48(2) or subsection 49(4) of the Biosecurity Act. The maximum civil penalty for contravention of subsection 48(1) is currently 120 penalty units. 119. This item would repeal and substitute the civil penalty in subsection 48(1) to provide that the maximum civil penalty that a court may order against an individual for contravention of subsection 48(1) would be: • 1,000 penalty units for the operator of the aircraft or vessel; or • 300 penalty units for a person in charge of the aircraft or vessel. If the court orders a civil penalty against a body corporate for a contravention of subsection 48(1), the maximum civil penalty must not be more than 5 times the maximum amount for an individual (see subsection 82(5) of the Regulatory Powers Act, as enabled by section 519 of the Biosecurity Act). 120. The higher civil penalty proposed by this item recognises the serious consequences posed by the potential entry, spread and transmission of a listed human disease in Australian territory. It is appropriate in a commercial context in which a delay in obtaining a grant of pratique is likely to result in significant financial cost and loss of market advantage to an aircraft or vessel, such as a large cruise vessel, that is not permitted to disembark passengers or unload goods. The proposed increase to the civil penalty is intended to be more proportionate to deter those who may consider non- compliance as a cost of doing business. Item 3 Application provision 121. This item would provide that the amendments of section 48 of the Biosecurity Act made by this Part would apply in relation to an incoming aircraft or vessel that arrives at a landing place or port in Australian territory on or after the commencement of this item. This would make clear that the amendments in items 1 and 2 are proposed to have prospective effect. 27

Part 2--Pre-arrival reporting Biosecurity Act 2015 Item 4 Before subsection 193(1) 122. Subsection 193(1) requires the operator of an aircraft or vessel to give a report in certain circumstances, including if the aircraft or vessel enters, or is intended to enter, Australian territory. 123. This item would insert a subheading titled "Initial report" before subsection 193(1). This would assist readers to distinguish between a report given under subsection 193(1) and other reports given under new subsection 193(1A), as inserted by item 5 of this Schedule. Item 5 After subsection 193(1) 124. Subsection 193(1) requires the operator of an aircraft or vessel to give a report in certain circumstances, including if the aircraft or vessel enters, or is intended to enter, Australian territory. 125. This item would insert new subsection 193(1A), which would provide that the operator must give one or more other reports, as required by the regulations, in relation to the aircraft or vessel, if the aircraft or vessel is included in a class of aircraft or vessels that is prescribed by the regulations, or in the circumstances prescribed by the regulations. The intention is that the other reports prescribed under new subsection 193(1A) would be given in relation to an aircraft or vessel for which a report is required to be given under subsection 193(1). 126. This amendment is intended to allow biosecurity risks to be assessed and managed in an accurate and timely manner by requiring other reports to be provided by the operators of prescribed classes of aircraft or vessels or in the prescribed circumstances. This is necessary as biosecurity officers can use the other reports to determine what risk management activities might be required in relation to the aircraft or vessel. For example, if there are a large number of passengers and crew members on board a cruise vessel, it is possible for there to be significant increases in the number of individuals with a listed human disease or significant changes in the reported signs or symptoms of a listed human disease, after the time at which an initial report was given and before the vessel moors at a port. In such circumstances, the ability for the regulations to prescribe specific classes of aircraft or vessels, or to prescribe additional circumstances in relation to which other reports must be given by the operator provides a further mechanism for the management of biosecurity risks. Item 6 Before subsection 193(2) 127. This item would insert a subheading titled "Requirements for reports" before subsection 193(2). This would provide a useful signpost for readers and assist them to identify that subsection 193(2), as amended by item 7 of this Schedule, contains the requirements for reports given under section 193. 28

Item 7 Subsection 193(2) 128. Subsection 193(2) currently provides requirements for the information to be included in a report given under subsection 193(1). Subsection 193(2) also sets out the manner and form in which the report is to be given, the person to whom it is to be given, and the time at which or period during which it is to be given. 129. This item would omit the words "The report" and substitute "A report under this section" in subsection 193(2). This would have the effect that the requirements in subsection 193(2) would apply to all reports given under section 193, including other reports given under new subsection 193(1A), as inserted by item 5 of this Schedule. Item 8 Paragraph 193(4)(a) 130. Subsection 193(4) currently provides that a person contravenes the provision if they are required to give a report under subsection 193(1) and they do not give the report in accordance with subsection 193(2). 131. This item would insert the words "or (1A)" after the words "subsection (1)" in paragraph 193(4)(a). This would have the effect that, where a person is required to give a report under new subsection 193(1A) and they do not give the report in accordance with subsection 193(2), then they would also contravene subsection 193(4). Item 9 Subsection 193(5) (penalty) 132. When read with the amendments proposed by items 5 and 8 of this Schedule, the operator of an aircraft or vessel contravenes subsection 193(4) if they are required to give an initial report or other reports under subsection 193(1) or (1A), and they do not give the report in accordance with subsection 193(2). Subsection 193(5) provides that the operator commits a fault-based offence if they contravene subsection 193(4). 133. This item would amend subsection 193(5) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 120 penalty units to 1,000 penalty units. Where a body corporate is convicted of the offence, a court may, if the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to 5 times this amount (see subsection 4B(3) of the Crimes Act 1901 (Crimes Act)). 134. Initial reports and other reports given under subsections 193(1) and (1A) allow the Commonwealth to gather important information about a conveyance to assist with the accurate and timely assessment and management of biosecurity risk. This may include information about where a conveyance has travelled, information about the people and goods on board, or information about the conveyance itself. Regulated entities, such as an operator of an aircraft or vessel, should take active steps to understand and comply with the requirements under the Biosecurity Act, including in relation to reporting obligations. 135. Failure to provide reports in accordance with the requirements in subsection 193(2) can undermine the ability of biosecurity officers to determine what risk management activities might be necessary when an aircraft or vessel arrives in Australian territory. 29

Depending on the risks posed by the diseases and pests on an aircraft or vessel, this may result in harmful consequences to the Australian environment, economy, agricultural industry, export markets, and the health of individuals in Australian territory. 136. The proposed maximum pecuniary penalty departs from the standard fine to imprisonment ratio in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide). However, this is necessary as the current penalty does not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. The potential consequences of failing to provide reports in accordance with the requirements in subsection 193(2), are such that it is appropriate to set a higher maximum penalty to punish non-compliance. The increased pecuniary penalty also aligns with similar offences in the Biosecurity Act relating to the contravention of importation requirements under sections 185 to 187. 137. In sentencing an offender and determining the level of penalty to impose, a court has regard to a number of factors, including the facts and circumstances of the case; the nature and significance of the offending conduct; and any previous history of non- compliance. The increased criminal penalty is intended to reinforce the retributive effect of the current penalty regime while allowing a court greater capacity to respond meaningfully and proportionately to the worst contraventions of Australia's biosecurity laws, including where they are committed by bodies corporate. Item 10 Subsection 193(6) (penalty) 138. When read with the amendments proposed by items 5 and 8 of this Schedule, the operator of an aircraft or vessel contravenes subsection 193(4) if they are required to give an initial report or other reports under subsection 193(1) or (1A), and they do not give the report in accordance with subsection 193(2). Subsection 193(6) provides that the operator is liable to a civil penalty if they contravene subsection 193(4). 139. This item would amend subsection 193(6) to increase the maximum penalty that a court may order a person who is an individual to pay where that person contravenes subsection 193(4) from 120 penalty units to 1,000 penalty units. If the person is a body corporate, the maximum penalty must not be more than 5 times this amount (see subsection 82(5) of the Regulatory Powers Act, as enabled by section 519 of the Biosecurity Act). 140. Initial reports and other reports given under subsections 193(1) and (1A) allow the Commonwealth to gather important information about a conveyance to assist with the accurate and timely assessment and management of biosecurity risk. This may include information about where a conveyance has travelled, information about the people and goods on board, or information about the conveyance itself. Regulated entities, such as an operator of an aircraft or vessel, should take active steps to understand and comply with the requirements under the Biosecurity Act, including in relation to reporting obligations. 141. Failure to provide reports in accordance with the requirements in subsection 193(2) can undermine the ability of biosecurity officers to determine what risk management 30

activities might be necessary when an aircraft or vessel arrives in Australian territory. Depending on the risks posed by the diseases and pests on an aircraft or vessel, this may result in harmful consequences to the Australian environment, economy, agricultural industry, export markets and to the health of individuals in Australian territory. 142. The maximum civil penalty proposed by this item is intended to be proportionate to the likely harm that may result and to adequately deter a worst-case scenario that jeopardises Australia's biosecurity status than the current civil penalty regime. The increased civil penalty also aligns with similar civil penalty provisions in the Biosecurity Act relating to the contravention of importation requirements under sections 185 to 187. Item 11 Section 194 (heading) 143. This item would repeal the heading of section 194 and substitute "Pre-arrival reporting--requirement to give more information". This would be consequential to the insertion of new subsection 194(1A), as proposed by item 13 of this Schedule. Item 12 Paragraph 194(1)(a) 144. Subsection 194(1) of the Biosecurity Act currently requires the operator of an aircraft or vessel to provide additional or corrected information to a biosecurity officer as soon as practicable, if a report was given under section 193 of the Biosecurity Act and the person in charge or the operator becomes aware that the information included in the report was incomplete or incorrect. 145. This item would omit "section 193" and substitute "subsection 193(1) or (1A)" in paragraph 194(1)(a). This amendment would be consequential to the insertion of new subsection 193(1A), as proposed by item 5 of this Schedule and new subsection 194(1A), as proposed by item 13 of this Schedule. Item 13 After subsection 194(1) 146. Subsection 194(1) of the Biosecurity Act currently requires the operator of an aircraft or vessel to provide additional or corrected information to a biosecurity officer as soon as practicable, if a report was given under section 193 of the Biosecurity Act and the person in charge or the operator becomes aware that the information included in the report was incomplete or incorrect. 147. This item would insert new subsection 194(1A), which would provide that the regulations may prescribe the circumstances in which the operator must give a biosecurity officer further information in relation to a report that has been given under subsection 193(1) or (1A). The regulations may also prescribe the kind of further information and when that information must be given to a biosecurity officer. 148. Note 1 following new subsection 194(1A) draws to the reader's attention that a person may commit an offence or contravene a civil penalty provision, if the person provides false or misleading information or documents, referring to sections 137.1 and 137.2 of the Criminal Code and sections 532 and 533 of the Biosecurity Act. Note 2 following 31

new subsection 194(1A) explains that the obligation in this subsection applies regardless of whether the operator is in Australian territory when they are required to give the further information, referring to subsection 194(5) (as amended by item 19 of this Schedule). 149. A significant gap in the reporting requirements under the Biosecurity Act is that section 194 in its current form does not create a clear obligation to update information that becomes superseded after the pre-arrival report is submitted. 150. This amendment is intended to allow biosecurity risks to be assessed and managed in an accurate and timely manner by requiring further information to be provided by the operator in the prescribed circumstances. This is necessary as biosecurity officers can use the further information to determine what risk management activities might be required in relation to the aircraft or vessel. For example, the regulations may prescribe that further information is required from the operator where information provided in the report about the numbers of individuals with a listed human disease, or signs or symptoms of a listed human disease, have been superseded by subsequent events. In such circumstances, the ability for the regulations to prescribe that further information must be given by the operator, provides a further mechanism for the management of biosecurity risks. Item 14 After subsection 194(2) 151. New subsection 194(1A), as inserted by item 13 of this Schedule, would provide that the regulations may prescribe the circumstances in which the operator must give a biosecurity officer further information in relation to a report that has been given under subsection 193(1) or (1A). 152. This item would insert a new subsection 194(2A) after subsection 194(2). A person contravenes new subsection 194(2A) if they are required to give information under regulations made for the purposes of new subsection 194(1A) and the person does not give the information to a biosecurity officer as required. A note following new subsection 194(2A) would explain that this subsection sets out the physical elements of an offence against subsection 194(3), referring to section 534. 153. Failure to provide further information in relation to a report in the prescribed circumstances can undermine the ability of biosecurity officers to determine what risk management activities might be necessary when an aircraft or vessel arrives in Australian territory. Depending on the risks posed by the diseases and pests on an aircraft or vessel, this may result in harmful consequences to the Australian environment, economy, agricultural industry, export markets and to the health of individuals in Australian territory. Item 15 Subsection 194(3) 154. Subsection 194(3) currently provides that a person commits a fault-based offence if they contravene subsection 194(2). 155. This item would omit the words "subsection (2)" and substitute "subsection (2) or (2A)" in paragraph 194(3). This would have the effect that, where a person is required 32

to give information under regulations made for the purposes of new subsection 194(1A) and the person does not give the information to a biosecurity officer as required, then they would also contravene subsection 194(3). Item 16 Subsection 194(3) (penalty) 156. When read with the amendment proposed by item 15 of this Schedule, the operator of an aircraft or vessel commits a fault-based offence if they contravene subsection 194(2) or (2A). 157. This item would amend subsection 194(3) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 120 penalty units to 1,000 penalty units. Where a body corporate is convicted of the offence, a court may, if the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to 5 times this amount (see subsection 4B(3) of the Crimes Act). 158. Providing further information in relation to reports given under section 193 allows the Commonwealth to gather important and up-to-date information about a conveyance to assist with the accurate and timely assessment and the proportionate management of biosecurity risks. Regulated entities, such as an operator of an aircraft or vessel, should take active steps to understand and comply with the requirements under the Biosecurity Act, including in relation to requests for further information. 159. Failure to provide further information in accordance with the requirements can undermine the ability of biosecurity officers to determine what risk management activities might be necessary when an aircraft or vessel arrives in Australian territory. Depending on the risks posed by the diseases and pests on an aircraft or vessel, this may result in harmful consequences to the Australian environment, economy, agricultural industry, export markets, and the health of individuals in Australian territory. 160. The proposed maximum pecuniary penalty departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalty does not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. The potential consequences of failing to provide further information in accordance with the requirements, are such that it is appropriate to set a higher maximum penalty to punish non-compliance. The increased pecuniary penalty also aligns with similar offences in the Biosecurity Act relating to the contravention of importation requirements under sections 185 to 187. 161. In sentencing an offender and determining the level of penalty to impose, a court has regard to a number of factors, including the facts and circumstances of the case; the nature and significance of the offending conduct; and any previous history of non- compliance. The increased criminal penalty is intended to reinforce the retributive effect of the current penalty regime while allowing a court greater capacity to respond meaningfully and proportionately to the worst contraventions of Australia's biosecurity laws. 33

Item 17 Subsection 194(4) 162. Subsection 194(4) currently provides that a person is liable to a civil penalty if they contravene subsection 194(2). 163. This item would omit the words "subsection (2)" and substitute "subsection (2) or (2A)" in paragraph 194(4). This would have the effect that, where a person is required to give information under regulations made for the purposes of new subsection 194(1A) and the person does not give the information to a biosecurity officer as required, then they would also contravene subsection 194(4). Item 18 Subsection 194(4) (penalty) 164. When read with the amendment proposed by item 17 of this Schedule, the operator of an aircraft or vessel is liable to a civil penalty if they contravene subsection 194(2) or (2A). 165. This item would amend subsection 194(4) to increase the maximum penalty that a court may order a person who is an individual to pay where that person contravenes subsection 194(2) or (2A) from 120 penalty units to 1,000 penalty units. If the person is a body corporate, the maximum penalty must not be more than 5 times this amount (see subsection 82(5) of the Regulatory Powers Act, as enabled by section 519 of the Biosecurity Act). 166. Providing further information in relation to reports given under section 193 allows the Commonwealth to gather important information about a conveyance to assist with the accurate and timely assessment and management of biosecurity risk. This may include information about where a conveyance has travelled, information about the people and goods on board, or information about the conveyance itself. Regulated entities, such as an operator of an aircraft or vessel, should take active steps to understand and comply with the requirements under the Biosecurity Act, including in relation to requests for further information. 167. Failure to provide further information in accordance with the requirements can undermine the ability of biosecurity officers to determine what risk management activities might be necessary when an aircraft or vessel arrives in Australian territory. Depending on the risks posed by the diseases and pests on an aircraft or vessel, this may result in harmful consequences to the Australian environment, economy, agricultural industry, export markets and to the health of individuals in Australian territory. 168. The maximum civil penalty proposed by this item is intended to be more proportionate to the likely harm that may result and to more adequately deter a worst-case scenario that jeopardises Australia's biosecurity status than the current civil penalty regime. The increased civil penalty also aligns with similar civil penalty provisions in the Biosecurity Act relating to the contravention of importation requirements under sections 185 to 187. 34

Item 19 Subsection 194(5) 169. Subsection 194(5) currently provides that subsections 194(2), (3) and (4) apply regardless of whether the person is in Australian territory when the person is required to give the information. 170. This item would insert the words "(2A)," after "Subsections (2)," in paragraph 194(5). This would have the effect that new subsection 194(2A) would also apply regardless of whether the person is in Australian territory when the person is required to give the information. This aligns the application of new subsection 194(2A) with subsections 194(2), (3) and (4), ensuring consistency of application across section 194 as it relates to contraventions, offences and civil penalties. Item 20 Subsection 195(1) 171. Subsection 195(1) currently allows a biosecurity officer to exercise certain powers for the purpose of assessing the level of biosecurity risk associated with an aircraft or vessel that is the subject of a report under paragraph 193(1)(a), in certain circumstances. 172. This item would insert the words ", or a report under subsection 193(1A) where paragraph 193(1)(a) applies," after "193(1)(a)" in paragraph 195(1). This would have the effect that a biosecurity officer may also exercise certain powers for the purpose of assessing the level of biosecurity risk associated with an aircraft or vessel that is the subject of a report under new subsection 193(1A), where paragraph 193(1)(a) applies and where the vessel has not become subject to biosecurity control. Item 21 Application provisions 173. This item would make clear that the amendments in this Part are intended to apply prospectively, in relation to specified circumstances that occur on or after the commencement of this item 174. Subitem 21(1) would provide that new subsection 193(1A), as inserted by this Part, would apply in relation to an aircraft or vessel in relation to which a report is required to be given under subsection 193(1) of the Biosecurity Act on or after the commencement of this item. 175. Subitem 21(2) would provide that the amendments of subsections 193(5) and (6) of the Biosecurity Act made by this Part would apply in relation to a person required to give a report under subsection 193(1) or (1A) on or after the commencement of this item. 176. Subitem 21(3) would provide that the amendments of section 194 of the Biosecurity Act made by this Part would apply in relation to a report given under subsection 193(1) or (1A) on or after the commencement of this item. 177. Subitem 21(4) would provide that the amendment of section 195 of the Biosecurity Act made by this Part would apply in relation to a report given under subsection 193(1A) on or after the commencement of this item. 35

SCHEDULE 3--INFORMATION MANAGEMENT Background 178. Schedule 3 to the Bill would amend the Biosecurity Act to enable more effective management of information obtained or generated under the Biosecurity Act. These amendments would provide for specific authorisations for the use and disclosure of relevant information, while ensuring that protected information is afforded appropriate safeguards. These provisions would support the management of biosecurity risks and the effective administration of the Biosecurity Act. 179. The proposed amendments would introduce the concept of entrusted persons, who would include the Agriculture Minister, the Health Minister as well as certain officers and employees of the Agriculture Department or Health Department. These persons would have specific authorisations in Schedule 3 to deal with relevant information in the following manner: • Disclosure to manage risks posed by diseases and pests to a State or Territory; • Disclosure to foreign governments to manage risks posed by diseases or pests to a foreign country, or to give effect to Australia's international obligations; • Use or disclosure for the purposes of certain Acts administered by the Agriculture Minister or the Health Minister; • Disclosure to a Commonwealth entity for the purposes of assisting the entity to perform its functions or duties or exercise its powers; • Disclosure to a court or tribunal; • Disclosure for the purposes of law enforcement; • Use or disclosure for research, policy development or data analysis to assist the Agriculture Department or Health Department to administer the Biosecurity Act; • Use or disclosure of statistics; • Use or disclosure of publicly available information; • Disclosure to the person to whom the information relates; • Use or disclosure with consent given by the person to whom the information relates; • Disclosure to the person who provided the information. 180. In addition, certain persons (including entrusted persons) would be authorised to use or disclose relevant information in the course of, or for the purposes of, performing functions or duties, or exercising powers under the Biosecurity Act, or assisting another person to perform such functions or duties, or exercise such powers. There would also be a separate authorisation for certain persons (including entrusted persons) to use or disclose relevant information for the purposes of managing risks to human health. 181. The Director of Biosecurity and the Director of Human Biosecurity would have additional authorisations in relation to the disclosure of relevant information to a State or Territory body, or where use or disclosure of such information is necessary to manage certain severe and immediate threats on a nationally significant scale. There 36

would be a separate regulation-making power for the use or disclosure of specific kinds of relevant information to specific classes of persons, for specific purposes. 182. Each of the specific authorisations proposed by this Schedule would be an authorisation for the purposes of the Privacy Act 1988 (the Privacy Act) and other laws. It is intended that the authorisations proposed by this Schedule would not limit each other. In addition, the framework under the Data Availability and Transparency Act 2022 would remain available for the use or disclosure of information. 183. The proposed amendments would also ensure that certain information obtained or generated under the Biosecurity Act, the unauthorised use or disclosure of which might cause harm, would be protected. This includes health information about an individual, There would be an offence provision that would apply where protected information is used or disclosed in a manner that is not required or authorised by a Commonwealth law or prescribed State or Territory law. This would promote greater public confidence that such information will be sufficiently protected by the Commonwealth. 184. This Schedule would commence by Proclamation, or on the day after the period of 6 months beginning on the day the proposed Act receives the Royal Assent, if not proclaimed earlier. The amendments made by this Schedule would not have effect until that day. Biosecurity Act 2015 Item 1 Section 3 (paragraph beginning "Chapter 11") 185. Section 3 of the Biosecurity Act sets out a simplified outline of the Biosecurity Act. This item would amend the simplified outline by omitting the words "the confidentiality of information obtained" and substituting the words "managing information obtained or generated". This item is consequential to the amendments proposed by items 15 to 27 of this Schedule, which would amend the framework for information management under Part 2 of Chapter 11 of the Biosecurity Act. 186. The simplified outline, and the amendments made by this item, are not intended to be comprehensive and have been included to assist readers to understand the substantive provisions of the Biosecurity Act and the amendments made by this Schedule, rather than to replace those provisions. It is intended that readers would rely on the substantive provisions in the Biosecurity Act and this Schedule. Item 2 Section 9 187. This item would amend section 9 of the Biosecurity Act by inserting "(1)" before the words "In this Act". 188. This item would create new subsection 9(1) in the Biosecurity Act and is intended to align with the amendments proposed in item 10 of this Schedule, which would insert new subsection 9(2) of the Biosecurity Act. 37

Item 3 Section 9 (definition of commercial-in-confidence) 189. This item would repeal the definition of commercial-in-confidence in section 9 of the Biosecurity Act. This item would be consequential to the amendments proposed by items 7, 11 and 27 of this Schedule, which would amend the framework for the management of protected information under Part 2 of Chapter 11 of the Biosecurity Act, and remove references to commercial-in-confidence. Item 4 Section 9 (definition of Commonwealth body) 190. This item would amend section 9 of the Biosecurity Act to amend the definition of Commonwealth body by inserting the words "or agency" after the words "an authority". 191. This item ensures that the definition of Commonwealth body in the Biosecurity Act would align with other amendments that this Schedule would propose to make to the Biosecurity Act. Item 5 Section 9 192. This item would amend section 9 of the Biosecurity Act to insert new definitions for Commonwealth entity, de-identified and entrusted person. 193. A Commonwealth entity would be defined as having the same meaning as in the Public Governance, Performance and Accountability Act 2013 (PGPA Act). At the time of introduction of this Bill, Commonwealth entity was defined in the PGPA Act as a Department of State, a Parliamentary Department, a listed entity, a body corporate established by a Commonwealth law or certain body corporates prescribed to be a Commonwealth entity. This new definition would be relevant to the authorisation proposed by new section 587 below (see item 27 of this Schedule). 194. The term de-identified, in relation to personal information, would have the same meaning as in the Privacy Act. At the time of introduction of the Bill, this was defined as information that is no longer about an identifiable individual or an individual who is reasonably identifiable. This new definition would be relevant to the authorisation proposed by new section 590 below (see item 27 of this Schedule). 195. An entrusted person would be defined as any of the following persons: • The Agriculture Minister or the Health Minister; • The Agriculture Secretary or the Health Secretary; • The Director of Biosecurity or the Director of Human Biosecurity; • An APS employee in the Agriculture Department or Health Department; • Any other person employed or engaged by the Commonwealth to provide services to the Commonwealth in connection with the Agriculture Department or Health Department; or • Any other person who is employed or engaged by the Commonwealth or a body corporate that is established by a law of the Commonwealth and in a class of persons prescribed by the regulations for the purposes of subparagraph (f)(ii) of this definition. 38

196. The concept of an entrusted person is relevant to the new framework for information management proposed by items 15 to 27 of this Schedule, as a number of the proposed authorisations to use or disclose relevant information will only be available to entrusted persons. It is considered appropriate for officers and employees of the Agriculture Department and Health Department, as well as certain persons engaged by these departments, to have access to various authorisations to use or disclose information under the Biosecurity Act, as they have a central role in managing biosecurity risks and administering the Biosecurity Act. There may also be situations where it is necessary for the regulations to prescribe other persons who are employed or engaged by the Commonwealth or a body corporate this is established by a law of the Commonwealth as an entrusted person, given the nature of their functions or duties. For example, if a Commonwealth taskforce is established outside of the Agriculture Department or Health Department to draw upon expertise across Commonwealth agencies in managing an emergency situation that is posed by the spread of a disease or pest in Australian territory, then it may be necessary for members of that taskforce to have access to the specific authorisations that are available to entrusted persons. 197. Under section 643 of the Biosecurity Act, the Agriculture Minister would be able to delegate their functions or powers as an entrusted person to the Director of Biosecurity or an SES employee, or acting SES employee, in the Agriculture Department. However, such delegations are unlikely to be made in practice, because such persons are already included in the definition of an entrusted person. To the extent that the Agriculture Minister would be able to delegate certain emergency powers under section 453 of the Biosecurity Act, this would only apply to the functions or powers under sections 445, 446, 450 and 451, and only in very limited emergency situations. 198. Under subsection 542(1) of the Biosecurity Act, the Director of Biosecurity would be able to delegate their functions or powers as an entrusted person to an SES employee, or an acting SES employee, in the Agriculture Department. Such functions or powers may also be subdelegable by the SES employee, or an acting SES employee, to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see subsection 542(2) of the Biosecurity Act). However, new table item 26AB of subsection 542(3) limits certain powers or functions of the Director of Biosecurity as an entrusted person from being subdelegable (see item 14 of this Schedule). Further details relating to the subdelegation of specific authorisations are discussed below. 199. The intention is that the Health Minister, Health Secretary and the Director of Human Biosecurity would not be able to delegate their functions or powers as entrusted persons. To the extent that the Director of Human Biosecurity would be able to delegate their functions or powers under section 544A of the Biosecurity Act, this would only apply to functions or powers under Part 3 of Chapter 2 of the Biosecurity Act (human biosecurity control orders). There are no existing provisions under the Biosecurity Act which provide for a delegation of the functions or powers of the Health Minister or the Health Secretary. 39

Item 6 Section 9 (definition of permissible purpose) 200. This item would repeal the definition of permissible purpose in section 9 of the Biosecurity Act. This item would be consequential to the amendments proposed by items 18 and 27 of this Schedule, which would amend the framework for authorisations under Part 2 of Chapter 11 of the Biosecurity Act and remove references to permissible purpose. Item 7 Section 9 (definition of protected information) 201. This item would amend section 9 of the Biosecurity Act to repeal the existing definition of protected information and substitute a new definition of that term. 202. Protected information would be defined to mean information of any of the following kinds obtained or generated by a person: • Sensitive information (within the meaning of the Privacy Act); • Information (including commercially sensitive information) the disclosure of which could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence; • Information the disclosure of which could reasonably be expected to prejudice the prevention, detection, investigation, prosecution or punishment of one or more offences; • Information the disclosure of which could reasonably be expected to prejudice the protection of public safety, human health or the environment; • Information the disclosure of which could reasonably be expected to prejudice Australia's security, defence or international relations; • Information of a kind prescribed by the regulations for the purposes of paragraph (f) of this definition. 203. The term protected information is used in the civil penalty and offence provisions in new section 580 (see item 18 of this Schedule). New section 580 applies where certain persons have obtained or generated information in the course of, or for the purposes of, performing functions or duties, or exercising powers, under the Biosecurity Act, or assisting another person to perform such functions or duties or exercise such powers. Such information would reflect the definition of relevant information (as inserted by item 8 of this Schedule). However, such information must also be protected information, and the use or disclosure of that information must be unauthorised in order for the civil penalty and offence provisions in new section 580 to be enlivened. 204. This definition of protected information is intended to cover the kinds of information of which an unauthorised use or disclosure would be likely to cause harm. This includes health information about an individual, which is covered by the concept of sensitive information (within the meaning of the Privacy Act). 205. It is necessary to allow the regulations to be able to prescribe additional kinds of protected information, in order to be able to quickly adapt to changing circumstances, technology and, potentially Australia's international obligations, in the future. However, any additional kinds of protected information to be prescribed by the regulations would need to meet the requirements set out in new subsection 9(2), as 40

proposed by item 10 of this Schedule. This would have the effect that the Agriculture Minister or the Health Minister must firstly be satisfied that the disclosure of a kind of information would or could reasonably prejudice the effective working of the Agriculture Department or the Health Department, or otherwise harm the public interest, before such regulations could be made to prescribe that kind of information as protected information. Item 8 Section 9 206. This item would amend section 9 of the Biosecurity Act to insert a new definition of relevant information. Relevant information would mean information obtained or generated by a person in the course of, or for the purposes of: • Performing functions or duties, or exercising powers, under this Act; • Assisting another person to perform functions or duties, or exercise powers, under this Act. 207. Given that this Act is defined in section 9 to include both the Biosecurity Act and the Regulatory Powers Act as it applies to the Biosecurity Act, it is intended that relevant information would cover information obtained or generated in this broader context. In the interests of brevity, any references to the "Biosecurity Act" that is used elsewhere in this document is intended to refer to the use of the term in this broader context. 208. The concept of relevant information relates to the list of specific authorisations that would be included in the amendments proposed by item 27 of this Schedule (see new sections 582 to 590H). The intention of defining relevant information broadly is to provide clarity on the purposes for which that information, once obtained or generated under the Biosecurity Act, may be used or disclosed under the Biosecurity Act. Only relevant information that is also protected information would be subject to the civil penalty and offence provisions in new section 580 (see item 18 of this Schedule). 209. In particular, relevant information would cover any information obtained or generated by a person (including Commonwealth officers), in the course of, or for the purposes of, performing functions or duties or exercising powers under the Biosecurity Act, or assisting another person to perform such functions or duties or exercise such powers. This means that when State or Territory officials (such as human biosecurity officers) or other third parties (such as biosecurity industry participants) are performing functions or duties or exercising powers under the Biosecurity Act, any information that those persons obtain or generate in the course of, or for the purposes of, performing those functions or duties, or exercising those powers, will be relevant information. This is also intended to extend to information obtained or generated by persons employed or engaged by such State or Territory officials or third parties, to the extent that those persons have obtained or generated the information in the course of, or for the purposes of, assisting another person in their performance of functions or duties or exercise of powers under the Biosecurity Act. 210. It is intended that the reference in the definition of relevant information to assisting another person to perform functions or duties, or exercise powers, under the Biosecurity Act, would have its ordinary meaning. It is not intended to be linked to the separate definition of person assisting which is defined in section 536 of the Biosecurity Act. 41

Item 9 Section 9 (definition of State or Territory body) 211. This item would amend the definition of State or Territory body in section 9 of the Biosecurity Act by inserting the words "or agency" after the words "an authority". 212. This term is relevant to the authorisations proposed by new sections 584, 589 and 590F below (see item 27 of this Schedule). Item 10 At the end of section 9 213. This item would amend section 9 of the Biosecurity Act to insert new subsection 9(2). 214. New subsection 9(2) would provide that before the Governor-General makes regulations for the purposes of paragraph (f) of the definition of protected information in subsection 9(1) to prescribe a kind of information, the Agriculture Minister or the Health Minister must be satisfied that disclosure of that kind of information would or could reasonably be expected to prejudice the effective working of the Agriculture Department or the Health Department, or otherwise harm the public interest. 215. This amendment would make clear that additional kinds of information may only be prescribed as protected information, where these additional requirements are met. It is necessary to allow the regulations to be able to prescribe additional kinds of protected information, in order to be able to quickly adapt to changing circumstances, technology and potentially Australia's international obligations in the future. Where the Agriculture Minister or Health Minister is satisfied that disclosure of that kind of information would or could reasonably be expected to prejudice the effective working of the Agriculture Department or the Health Department or otherwise harm the public interest, then this would provide an appropriate basis for such regulations being made. Item 11 Section 15 216. This item would repeal section 15, which currently provides for the definition of commercial-in-confidence. This would be consequential to the amendments proposed by item 7 and 27 of this Schedule, which would amend the framework for the management of protected information under Part 2 of Chapter 11 of the Biosecurity Act and remove references to commercial-in-confidence. Item 12 Paragraph 255(1)(i) 217. Section 255 of the Biosecurity Act allows the regulations to prescribe a scheme to give effect to Australia's rights and obligations in relation to ship sanitation for the purposes of the International Health Regulations. Paragraph 255(1)(i) allows the regulations to deal with disclosing information obtained under such a scheme to various persons and entities. The regulation-making power in paragraph 255(1)(i) is expressed as not limiting existing section 580 of the Biosecurity Act (which currently provides for limited authorisations to use or disclose information). 218. This item would amend paragraph 255(1)(i) to substitute the existing reference to section 580 with a reference to new Division 3 of Part 2 of Chapter 11. This would 42

have the effect of clarifying that the regulation-making power in paragraph 255(1)(i) does not limit the authorisations in Division 3 of Part 2 of Chapter 11 (new sections 582 to 590H), as proposed by item 27 of this Schedule. This amendment would not change the operation of section 255 of the Biosecurity Act. Item 13 Subsection 523(1) (after table item 45) 219. Subsection 523(1) of the Biosecurity Act sets out the provisions of the Biosecurity Act that are subject to an infringement notice under Part 5 of the Regulatory Powers Act. Part 5 of the Regulatory Powers Act creates a framework for the use of infringement notices where an infringement officer reasonably believes that a provision has been contravened under an Act. 220. This item would amend the table in subsection 523(1) to insert new item 45A. This would have the effect that the strict liability offence in new subsection 580(6) would be subject to an infringement notice under Part 5 of the Regulatory Powers Act. It is considered appropriate that new subsection 580(6) be subject to an infringement notice, as it does not contain a fault element and an infringement officer could easily assess whether there has been an alleged contravention. 221. It is also appropriate to apply the existing modifications of Part 5 of the Regulatory Powers Act, as set out in section 524 of the Biosecurity Act, to the infringement notice given in relation to new subsection 580(6). This is because section 524 contains modifications to ensure that the information that must be included in an infringement notice is appropriate in the context of the biosecurity enforcement scheme. For example, the modifications require the infringement notice to state how a person has power under the Biosecurity Act to issue an infringement notice, to provide the recipient of the notice with a proper understanding of the authority. In addition, the amount payable under an infringement notice given in relation to new subsection 580(6) would be 12 penalty units, or if the regulations prescribe a lower number of penalty units for the purposes of paragraph 524(4)(c) of the Biosecurity Act, that number of penalty units. This modification to the Regulatory Powers Act allows the regulations to prescribe a lower penalty unit for an infringement notice, provides a degree of flexibility in how an amount in an infringement notice can be calculated and takes into consideration the wide range of offences and circumstances. Item 14 Subsection 542(3) (after table item 26AA) 222. Section 542 of the Biosecurity Act provides for the delegation of powers and functions under the Biosecurity Act by the Director of Biosecurity to an SES employee or acting SES employee in the Agriculture Department. Section 542 also provides for the subdelegation of functions and powers from an SES employee or acting SES employee in the Agriculture Department to a biosecurity officer, biosecurity enforcement officer, or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department. 223. The table in subsection 542(3) of the Biosecurity Act sets out the powers and functions under the Biosecurity Act that must not be subdelegated. This item would amend the table in subsection 542(3) by inserting new item 26AB after item 26AA. This would have the effect that the powers and functions under new sections 582 to 590 and 590G 43

(as inserted by item 27 of this Schedule) would not be able to be subdelegated. Further details relating to the subdelegation of each specific authorisation is discussed below. Item 15 Part 2 of Chapter 11 (heading) 224. This item would repeal the existing heading of Part 2 of Chapter 11 of the Biosecurity Act and substitute a new heading. The new heading for Part 2 of Chapter 11 of the Biosecurity Act would be "Part 2--Information management". Item 16 Section 579 225. This item would repeal and substitute section 579, which sets out a simplified outline of Part 2 of Chapter 11 of the Biosecurity Act. 226. New section 579 would provide a simplified outline of Part 2 of Chapter 11 of the Biosecurity Act (information management). The simplified outline is not intended to be comprehensive and has been included to assist readers to understand the substantive provisions of Part 2 of Chapter 11, rather than to replace those provisions. It is intended that readers would rely on the substantive provisions in Part 2 of Chapter 11 of the Biosecurity Act. 227. The first note following new section 579 would explain that each provision in new Division 3 of Part 2 of Chapter 11 provides an authorisation for the purposes of the Privacy Act and other laws. The policy intention is that if more than one authorisation in Division 3 of Part 2 of Chapter 11 is available for the use or disclosure of relevant information, then a person will be able to rely upon any of those available authorisations. It is intended that the authorisations proposed by this Schedule would not limit each other. 228. The second note following new section 579 would explain that nothing in Part 2 of Chapter 11 prevents the Commonwealth from making agreements or other arrangements to impose conditions on the use or disclosure of relevant information by a person or body who obtains the information as result of a disclosure authorised under new Division 3 of Part 2 of Chapter 11. Item 17 Division 2 of Part 2 of Chapter 11 (heading) 229. This item would repeal the existing heading of Division 2 of Part 2 of Chapter 11 of the Biosecurity Act and substitute a new heading. The new heading for Division 2 of Part 2 of Chapter 11 would be "Division 2--Offences and civil penalties". Item 18 Section 580 230. This item would repeal existing section 580 and substitute new Subdivision A of Division 2 of Part 2 of Chapter 11 of the Biosecurity Act. The heading for new Subdivision A would be "Subdivision A--Unauthorised use or disclosure of protected information". 231. Existing section 580 of the Biosecurity Act provides for the use or disclosure of certain information. This provision would be replaced by new authorisations set out in new 44

Division 3 of Part 2 of Chapter 11, which provide for a new framework for information management proposed by this Schedule (see item 27 of this Schedule). New section 580 - Use or disclosure of protected information 232. New section 580 would deal with the use or disclosure of protected information, and would provide a fault-based offence, strict liability offence and a civil penalty provision for the unauthorised use or disclosure of protected information. 233. A person who is, or has been, an entrusted person or a person covered under new subsection 580(2) would contravene new subsection 580(1) in certain circumstances. This would be where: • The person has obtained or generated information in the course of, or for the purposes of, performing functions or duties, or exercising powers, under the Biosecurity Act, or assisting another person to perform such functions or duties, or exercise such powers. Such information would reflect the definition of relevant information (as inserted by item 8 of this Schedule); and • The information is also protected information (as amended by item 7 of this Schedule); and • The person uses or discloses the information. 234. It is considered appropriate that the use or disclosure of protected information be strictly regulated, given that the unauthorised use or disclosure of such information (including, for example, health information about an individual) could reasonably be expected to cause harm. 235. It is also intended that the reference in new subsection 580(1) to assisting another person to perform functions or duties, or exercise powers, under the Biosecurity Act would take its ordinary meaning. It is not intended to be linked to the separate definition of person assisting which is defined in section 536 of the Biosecurity Act. 236. The note following new subsection 580(1) would explain that the physical elements of offences against new subsections 580(5) and (6) are set out in new subsection 580(1). The note would also direct the reader to section 534 of the Biosecurity Act, relating to the physical elements of offences. 237. New subsection 580(2) would cover the following persons: • A person employed or engaged by the Commonwealth or a body corporate that is established by a law of the Commonwealth; • A biosecurity official; • A chief human biosecurity officer; • A human biosecurity officer; • A biosecurity industry participant or an officer or employee of a biosecurity industry participant; • A survey authority or an officer or employee of a survey authority; • A person who has carried out, or is carrying out, an audit under section 436 of the Biosecurity Act. 45

238. New subsection 580(3) would provide an exception to new subsection 580(1) where the use of disclosure is required or authorised by the Biosecurity Act, another law of the Commonwealth or a law of a State or Territory prescribed by the regulations. This would ensure that authorised uses and disclosures are not subject to the civil penalty and offence provisions. 239. The note following new subsection 580(3) would explain that the defendant bears an evidential burden of proof in relation to the matters in new subsection 580(3), that is, whether the use or disclosure of information was required or authorised by a Commonwealth law or a prescribed State or Territory law. The note would also refer the reader to subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act. The reversal of the burden of proof is justified in this instance as the matter to be proved (that is, that the use or disclosure of protected information was required or authorised by a Commonwealth law or a prescribed State or Territory law) is a matter that would be peculiarly in the knowledge of the defendant. Further, there would be a number of authorised uses and disclosures set out in new Division 3 of Part 2 of Chapter 11 of the Biosecurity Act (as inserted by item 27 of this Schedule), across the laws of the Commonwealth, and where relevant, across the laws of a State or Territory. In the event of criminal or civil proceedings, it would be significantly more difficult and costly for the prosecution to disprove all possible circumstances than it would be for a defendant to establish the existence of one potential circumstance. Consequently, in order to effectively protect information under new section 580, it is reasonable, necessary and proportionate to reverse the evidential burden of proof in this limited situation. 240. New subsection 580(4) would provide an exception to new subsection 580(1) where the person uses or discloses the protected information in good faith in the purported performance of functions or duties, or the purported exercise of powers, under the Biosecurity Act, or in assisting another person in the purported performance of such functions or duties or the purported exercise of such powers. 241. The exception in new subsection 580(4) is intended to cover a situation where a person uses or discloses information in the belief that they were authorised to do so under a provision of the Biosecurity Act. The term 'in good faith' is intended to mean without malice, or without an intention to engage in fraudulent behaviour or improper conduct. 242. The note following new subsection 580(4) would explain that the defendant bears an evidential burden of proof in relation to whether the use or disclosure of information was covered by the exception in new subsection 580(4). The note would also refer the reader to subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act. The reversal of the burden of proof is justified in this instance as the matter to be proved (that is, that the use or disclosure of protected information was made in good faith in the purported performance of functions or duties, or the purported exercise of powers, under the Biosecurity Act, or in assisting another person in the purported performance of such functions or duties or the purported exercise of such powers) is a matter that would be peculiarly in the knowledge of the defendant. In the event of criminal or civil proceedings, it would be significantly more difficult and costly for the prosecution to prove that the defendant did not use or disclose the information in good faith in such purported circumstances than it would be for a 46

defendant to establish, on the balance of probabilities, that they did so. Consequently, in order to effectively protect information under new section 580, it is reasonable, necessary and proportionate to reverse the evidential burden of proof in this limited situation. 243. New subsection 580(5) would have the effect that a person who contravenes new subsection 580(1), in circumstances where the exceptions in new subsections 580(3) and (4) do not apply, would be committing a fault-based offence. The maximum penalty for the fault-based offence would be 2 years imprisonment or 120 penalty units, or both. 244. The proposed maximum penalty is consistent with the standard fine to imprisonment ratio in the Guide. This maximum penalty has been set at a level that recognises the significant harm that can occur as a result of unauthorised uses or disclosure of protected information. For the regulatory regime under the Biosecurity Act to be effective, there must be confidence from industry and the general public, that protected information obtained and generated under the Biosecurity Act, will be handled appropriately. The maximum penalty of 2 years imprisonment or 120 penalty units, or both, would also be consistent with other penalties under the Biosecurity Act, including in subsection 636(2) for hindering or preventing the performance of functions or duties, or exercise of powers, under the Biosecurity Act. 245. In sentencing an offender and determining the level of penalty to impose, a court has regard to a number of factors, including the facts and circumstances of the case; the nature and significance of the offending conduct; and any previous history of non- compliance. The criminal penalty in new subsection 580(5) is intended to reinforce the retributive effect of the current penalty regime while allowing a court greater capacity to respond meaningfully and proportionately to particularly egregious offending which falls on the higher end of objective seriousness. A court would still have the discretion to impose a lesser penalty for offending which falls on the lower end of objective seriousness. 246. New subsection 580(6) would have the effect that a person who contravenes new subsection 580(1), in circumstances where the exceptions in new subsections 580(3) and (4) do not apply, would be committing an offence of strict liability. The maximum penalty for the strict liability offence would be 60 penalty units. 247. Strict liability is proposed for this offence having regard to the principles outlined in the Guide. Consistent with the Guide, strict liability is appropriate in these circumstances as: • The offence in new subsection 580(6) is not punishable by imprisonment; • The offence in new subsection 580(6) is subject to a maximum penalty of 60 penalty units for an individual; • The actions which trigger the offence in new subsection 580(6) are simple, readily understood and easily defended. The offence is triggered if certain persons who obtained or generated protected information in the course of, or for the purposes of, performing functions or duties, or exercising powers, under the 47

Biosecurity Act (or assisting another person to perform such functions or duties, or exercise such powers), uses or discloses protected information, and the use or disclosure is not required or authorised by a Commonwealth law or a prescribed State or Territory law (and where the good faith exception in new subsection 580(4) does not apply); • Offences relating to the unauthorised use or disclosure of protected information need to be dealt with efficiently to ensure industry and community confidence in the regulatory regime, and to reduce the risk of the potentially damaging consequences of unauthorised use or disclosure of protected information; • The offence in new subsection 580(6) would be subject to an infringement notice (see new table item 45A in subsection 523(1), as proposed by item 13 of this Schedule); • The absence of strict liability may adversely affect the capacity to prosecute offenders. Whether or not a defendant intentionally, recklessly or negligently used or disclosed protected information without a relevant authorisation is generally a matter that is peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt may require significant and difficult to obtain indirect and circumstantial evidence; • The use of protected information plays an important role in ensuring that the Biosecurity Act remains an effective and efficient mechanism to both manage biosecurity risks to Australia while facilitating trade and to implement Australia's obligations under the relevant international treaties. If protected information is used or disclosed without authorisation it may deter other persons from providing such information to the Commonwealth in the future; • The persons affected by the offence would be entrusted persons, other persons who are employed or engaged by the Commonwealth or a body corporate that is established by a law of the Commonwealth, or other persons who perform certain functions or duties, or exercise certain powers, under the Biosecurity Act. By virtue of their roles and responsibilities, these persons would have been placed on notice to guard against the possibility of contravention, which is likely to significantly enhance the effectiveness of the enforcement regime in deterring the conduct in question. 248. The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code). For the above reasons, it is appropriate for strict liability to be imposed for the offence under new subsection 580(6). 249. New subsection 580(7) would have the effect of establishing a corresponding civil penalty provision. A person would be liable to a civil penalty if they contravene new subsection 580(1), in circumstances where the exceptions in new subsections 580(3) and (4) do not apply. The maximum civil penalty would be 120 penalty units. 48

250. The proposed maximum civil penalty is intended to deter unauthorised uses or disclosures of protected information, and to be proportionate to the likely harm that may result. In particular, the unauthorised use or disclosure of protected information can undermine confidence in the integrity of the biosecurity management regime, posing threats to Australia's trading reputation, animal or plant life or human health and the environment. The maximum civil penalty of 120 penalty units would also be consistent with other penalties under the Biosecurity Act, including in subsection 636(3) for hindering or preventing the performance of functions or duties, or exercise of powers, under the Biosecurity Act. 251. The proposed combination of a fault-based offence, strict liability offence and civil penalty provision would provide an adequate deterrent for persons who use or disclose protected information without authorisation, which has the potential to cause harm. It is also appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce any contravention of new subsection 580(1) appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected that criminal proceedings would be brought for conduct that contravenes new subsection 580(1) that is at the more serious end of the spectrum or that involves a higher degree of malfeasance. 252. It is not intended that persons would be punished twice for contravention of new subsection 580(1). This is because under subsection 520(1) of the Biosecurity Act, a court may not make a civil penalty order against a person for a contravention of a civil penalty provision in the Biosecurity Act if that person has been convicted of an offence under an Australian law that is constituted by conduct that is the same, or substantially the same, as the conduct constituting the contravention. Item 19 Before section 581 253. This item would insert the heading "Subdivision B--Other matters" before section 581. Item 20 Section 581 (heading) 254. This item would amend the heading of section 581 by omitting the words "Use in accordance with section 580 does not contravene laws" and substituting the words "Protection from liability". This would be consequential to the amendments proposed by items 21 to 26 of this Schedule. Item 21 Subsection 581(1) (heading) 255. This item would amend the heading of subsection 581(1) by inserting the words "or disclosure" after the word "use". This would be consequential to the amendments to subsection 581(1), proposed by item 22 of this Schedule. Item 22 Subsection 581(1) 256. Existing subsection 581(1) of the Biosecurity Act provides that subject to subsection 581(2), a person does not commit an offence, and is not liable to any penalty, under any other enactment of the Commonwealth, or any enactment of a State 49

or Territory, as a result of the person making a record of, or disclosing or using, information in accordance with existing section 580. 257. This item would amend subsection 581(1) by omitting the words "making a record of, or disclosing or using, information in accordance with section 580" and substituting the words "using or disclosing relevant information in accordance with section 582 or 590G". This would have the effect that subject to subsection 581(2) of the Biosecurity Act, a person does not commit an offence, and is not liable to any penalty, under any enactment of the Commonwealth, or any enactment of a State or Territory, as a result of the person using or disclosing relevant information in accordance with new section 582 or 590G. 258. New section 582 would replace existing section 580 of the Biosecurity Act (insofar as both provisions authorise the use or disclosure of information for purposes relating to the performance of a person's functions or duties, or exercise of a person's powers, under the Biosecurity Act), so the updated reference would be consequential to the amendments proposed by item 27 of this Schedule. 259. New section 590G would be an additional authorisation for the use or disclosure of information to manage severe and immediate threats to human health, animal or plant health or the environment, where such threats have the potential to cause harm on a nationally significant scale. The reference to new section 590G in amended subsection 581(1) would ensure that, in the limited circumstances in which the Director of Biosecurity or the Director of Human Biosecurity is able to use this authorisation to respond to such threats, they are able to do so without committing an offence or being liable to a penalty under another Commonwealth, State or Territory law. 260. The words "making a record" have been removed from subsection 581(1), as the intention is that a person who makes a record of relevant information is also using the information. Item 23 Subsection 581(3) (heading) 261. This item would amend the heading of subsection 581(3) by inserting the words "or disclosure" after the word "use". This would be consequential to the amendments to subsection 581(3), proposed by item 24 of this Schedule. Item 24 Subsection 581(3) 262. Existing subsection 581(3) of the Biosecurity Act provides that a person is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of the person making a record of, or disclosing or using, information in accordance with existing section 580. 263. This item would amend subsection 581(3) by omitting the words "making a record of, or disclosing or using, information in accordance with section 580" and substituting the words "using or disclosing relevant information in accordance with Division 3". This would have the effect that a person would not be liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of the person using or disclosing relevant information in accordance with the authorisations in new 50

Division 3 of Part 2 of Chapter 11. This would be consequential to the amendments proposed by item 27 of this Schedule. 264. The words "making a record" have been removed from subsection 581(3), as the intention is that a person who makes a record of relevant information is also using the information. Item 25 Subsection 581(4) (heading) 265. This item would amend the heading of subsection 581(4) by inserting the words "or disclosure" after the word "use". This would be consequential to the amendments to subsection 581(4), proposed by item 26 of this Schedule. Item 26 Subsection 581(4) 266. Existing subsection 581(4) of the Biosecurity Act provides that a person does not contravene medical standards, or any other relevant professional standards, as a result of the person making a record of, or disclosing or using, information in accordance with existing section 580. 267. This item would amend subsection 581(4) by omitting the words "making a record of, or disclosing or using, information in accordance with section 580" and substituting the words "using or disclosing relevant information in accordance with Division 3". This would have the effect that a person would not contravene medical standards, or any other relevant professional standards, as a result of the person using or disclosing relevant information in accordance with the authorisations in new Division 3 of Part 2 of Chapter 11. This would be consequential to the amendments proposed by item 27 of this Schedule. 268. The words "making a record" have been removed from subsection 581(4), as the intention is that a person who makes a record of relevant information is also using the information. Item 27 Sections 582 to 590 269. Existing sections 582 to 590 of the Biosecurity Act provide for a number of provisions in relation to the use or disclosure of certain information. This item repeals existing sections 582 to 590 of the Biosecurity Act, as these provisions are no longer required under the new framework for information management proposed by this Schedule. In particular, existing sections 582 to 584 set out specific authorisations, which are proposed to be replaced by new authorisations in new sections 582 to 590H (discussed below). Existing sections 585 to 589 provide for an offence provision and related exceptions, which are proposed to be replaced by new section 580 (see item 18 of this Schedule). 270. Existing section 590 requires the preparation of an annual report on the use of protected information (as defined in the existing Biosecurity Act) by the Commonwealth. As the new definition of protected information (as proposed by item 7 of this Schedule) would only be used in the civil penalty and offence provisions in new section 580, the reporting of such protected information would no longer be useful in this context. This 51

is because, under new section 580, there are only two possible outcomes relating to the use of protected information. That is, either: • The person did not contravene new subsection 580(1), as the use of the protected information was required or authorised by a Commonwealth law or a prescribed State or Territory law (new subsection 580(3)), or the good faith exception in new subsection 580(4) applied; or • The person contravened new subsection 580(1), as both new subsections 580(3) and (4) did not apply, and therefore, the person was liable to the civil penalty and offence provisions. 271. This item also substitutes new Division 3 of Part 2 of Chapter 11 which deals with authorised uses and disclosures of relevant information. New Division 3 of Part 2 of Chapter 11 of the Biosecurity Act would set out a number of statutory authorisations for the use and disclosure of relevant information. The authorisations are reasonable, necessary and proportionate because they are generally directed at the performance of functions or duties, or the exercise of powers under Commonwealth laws (including the Biosecurity Act), the management of risks to human health or risks posed by diseases or pests to a State or Territory, the administration or enforcement of Australian laws, compliance with Australia's international obligations or are matters of public interest with a high threshold that must be met in order to rely on them (such as being necessary to manage a severe and immediate threat that has the potential to cause harm on a nationally significant scale). 272. Each provision in new Division 3 of Part 2 of Chapter 11 is intended to constitute an authorisation for the purposes of the Privacy Act, such as Australian Privacy Principle 6.2 (see Schedule 1 to the Privacy Act) and other relevant laws including common law and equitable protections for confidentiality (including the limitations set out by the High Court's decision in Johns v Australian Securities Commission (1993) 178 CLR 408). This is because the relevant provisions in new Division 3 of Part 2 of Chapter 11 will authorise the use or disclosure of the information by or under an Australian law. The authorisations in new Division 3 of Part 2 of Chapter 11 do not impose an obligation on a person to use or disclose relevant information. Rather, the intention is that the authorisations would be facilitative in nature, by allowing information to be used or disclosed, where appropriate in the circumstances of each case. 273. The policy intention is that if more than one authorisation in new Division 3 of Part 2 of Chapter 11 is available for the use or disclosure of relevant information, then a person will be able to rely upon any of those available authorisations. It is intended that the authorisations proposed by this Schedule would not limit each other. Subdivision A - Authorised uses and disclosures by entrusted person or other persons Section 582 - Use or disclosure for the purposes of this Act 274. New subsection 582(1) would authorise the use or disclosure of relevant information by an entrusted person or person covered by subsection 582(2), in the course of, or for the purposes of, performing functions or duties, or exercising powers under the Biosecurity Act, or assisting another person to perform such functions or duties or exercise such powers. 52

275. New subsection 582(2) would cover the following persons: • A person employed or engaged by the Commonwealth or a body corporate that is established by a law of the Commonwealth; • A biosecurity official (which is defined in section 9 of the Biosecurity Act to mean a biosecurity officer, a biosecurity enforcement officer, and the Director of Biosecurity); • A chief human biosecurity officer (which is defined in section 9, in relation to a State or Territory, to mean a person who is authorised under section 562 of the Biosecurity Act to be a chief human biosecurity officer for the State or Territory); • A human biosecurity officer (which is defined in section 9 to mean a person who is authorised under section 563 of the Biosecurity Act to be a human biosecurity officer); • A biosecurity industry participant (which, under sections 9 and 14, means the holder of the approval of an approved arrangement) or an officer or employee of a biosecurity industry participant; • A survey authority (which is defined in section 9 to mean a person authorised by the Director of Biosecurity under section 290A of the Biosecurity Act) or an officer or employee of a survey authority; • A person who has carried out, or is carrying out, an audit under section 436 of the Biosecurity Act; • An issuing officer (which is defined in section 9 to mean a magistrate, a judge of a State or Territory court, or a judge of the Federal Court or the Federal Circuit Court and Family Court of Australia (Division 2)). 276. An entrusted person would be defined in section 9 (as inserted by item 5 of this Schedule), and would include the Agriculture Minister, the Health Minister as well as certain officers and employees of the Agriculture Department or Health Department. 277. It is appropriate that the authorisation in new section 582 allows the use or disclosure of information in the course of, or for the purposes of, performing functions or duties or exercising powers under the Biosecurity Act, or assisting another person to perform such functions or duties or exercise such powers. This is because the proper, effective and efficient performance of functions or duties, or the exercise of powers, under the Biosecurity Act will often involve the use or disclosure of relevant information. As such, this authorisation is necessary to ensure that entrusted persons, and persons identified in new subsection 582(2), who are required to use or disclose relevant information in the course of performing their functions or duties, or exercising their powers, under the Biosecurity Act (or in assisting another person with such functions, duties or powers), can do so without contravening the proposed civil penalty and offence provisions in new section 580 (see item 18 of this Schedule) or being subject to other statutory or common law restrictions that would prevent them from performing their roles or carrying out their responsibilities effectively. 278. It is intended that the reference in new subsection 582(1) to assisting another person to perform functions or duties, or exercise powers, under the Biosecurity Act would take its ordinary meaning. It is not intended to be linked to the separate definition of person assisting which is defined in section 536 of the Biosecurity Act. 53

279. As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 582 is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. However, such an authorisation will not be subdelegable by the SES employee, or an acting SES employee, to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see item 14 of this Schedule). This is because such persons will already be able to rely upon the authorisation in new section 582 in their own capacity, and therefore the subdelegation of the authorisation is not considered to be necessary. Section 583 - Use or disclosure for purposes of managing human health risks 280. New subsection 583(1) would authorise the use or disclosure of relevant information by an entrusted person or person covered by subsection 583(2) for the purposes of managing one or more of the following: • A risk covered by subsection 583(3); • 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; • Human biosecurity emergencies. 281. New subsection 583(2) would cover the following persons: • A person employed or engaged by the Commonwealth or a body corporate that is established by a law of the Commonwealth; • A biosecurity official (which is defined in section 9 of the Biosecurity Act to mean a biosecurity officer, a biosecurity enforcement officer, and the Director of Biosecurity); • A chief human biosecurity officer (which is defined in section 9, in relation to a State or Territory, to mean a person who is authorised under section 562 of the Biosecurity Act to be a chief human biosecurity officer for the State or Territory); • A human biosecurity officer (which is defined in section 9 to mean a person who is authorised under section 563 of the Biosecurity Act to be a human biosecurity officer); • A biosecurity industry participant (which, under sections 9 and 14, means the holder of the approval of an approved arrangement) or an officer or employee of a biosecurity industry participant. 282. New subsection 583(3) would cover the following risks: • The likelihood of a disease or pest: o entering Australian territory or a part of Australian territory; or o emerging, establishing itself or spreading in Australian territory or a part of Australian territory; and • The potential for the disease to cause serious harm to human health. 54

283. The purpose of this provision is to enable relevant information to be disclosed for managing human health risks, the risks associated with listed human diseases and human biosecurity emergencies. Under section 42 of the Biosecurity Act, the Director of Human Biosecurity may determine that a human disease is a listed human disease if the Director of Human Biosecurity considers that it may be communicable and cause significant harm to human health. Under section 9, a human biosecurity emergency means a human biosecurity emergency that is declared to exist under subsection 475(1) of the Biosecurity Act. 284. For example, if there is the likelihood of a new human viral disease entering Australian territory or a part of Australian territory, and the potential for the disease to cause serious harm to human health, then new section 583 would allow an entrusted person to use or disclose relevant information for the purposes of managing that risk. In addition, if a particular disease has been determined to be a listed human disease under section 42 of the Biosecurity Act, then new section 583 would also allow an entrusted person to disclose relevant information for the purposes of managing the risk of contagion of that disease. 285. As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 583 is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. However, such an authorisation will not be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see item 14 of this Schedule). This is because such persons will already be able to rely upon the authorisation in new section 583 in their own capacity, and therefore the subdelegation of the authorisation is not considered to be necessary. Section 584 - Disclosure for the purposes of a State or Territory managing risks 286. New subsection 584(1) would authorise the disclosure of relevant information by an entrusted person to a State or Territory body if the disclosure is for the purpose of assisting the State or Territory body to perform its functions or duties, or to exercise its powers, in relation to managing certain risks for the State or Territory as set out in new subsection 584(2). 287. New subsection 584(2) would cover the following risks for a State or Territory: • The likelihood of a disease or pest: o entering the State or Territory or a part of the State or Territory; or o emerging, establishing itself or spreading in the State or Territory or a part of the State or Territory; and • The potential for any of the following: o the disease or pest to cause serious harm to human, animal or plant health in that State or Territory; o the disease or pest to cause serious harm to the environment in that State or Territory; o serious economic consequences in that State or Territory associated with the entry, emergence, establishment or spread of the disease or pest. 55

288. The purpose of this provision is to enable relevant information to be disclosed to a State or Territory body where it is necessary to do so in order to assist in the management of certain risks by the State or Territory. A State or Territory body would be defined in section 9 of the Biosecurity Act as a Department of State, or an agency or authority of a State or Territory (see amendments proposed by item 9 of this Schedule). 289. For example, if there is the likelihood of African Swine Fever entering a State or Territory, and the potential for the disease to cause serious harm to the health of animals in that State or Territory, then new section 584 would allow an entrusted person to disclose relevant information to a State or Territory body, if the particular information would assist in the performance of functions or duties or the exercise of powers by that State or Territory body to manage the risk. Another example is if there is the likelihood of a novel strain of pandemic influenza entering a State or Territory which has the potential to cause serious harm to human health in that State or Territory, an entrusted person could disclose relevant information to a State or Territory body for the purposes of assisting that body to perform its functions or duties, or exercise its powers, in relation to managing that risk. 290. As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 584 is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. However, such an authorisation will not be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see item 14 of this Schedule). This is because employees of the Agriculture Department will already be able to rely upon the authorisation in new section 584 in their own capacity as entrusted persons, and because it is not considered appropriate for biosecurity officers and biosecurity enforcement officers (who are not entrusted persons) to rely upon this authorisation (see item 5 of this Schedule). Section 585 - Disclosure for the purposes of foreign governments etc. managing risks. 291. New subsection 585(1) would authorise the disclosure of relevant information by an entrusted person to a foreign government, an authority or agency of a foreign government, or an international body of an intergovernmental character for the purposes of the government, authority, agency or body managing a risk covered by new subsection 585(2) or giving effect to Australia's international obligations. 292. New subsection 585(2) would cover the following risks: • The likelihood of a disease or pest: o entering a foreign country or a part of a foreign country; or o emerging, establishing itself or spreading in a foreign country or a part of a foreign country; and • The potential for any of the following: o the disease or pest to cause harm to human, animal or plant health in that foreign country; o the disease or pest to cause harm to the environment in that foreign country; 56

o economic consequences in that foreign country associated with the entry, emergence, establishment or spread of the disease or pest. 293. The authorisation in new section 585 is intended to allow for the disclosure of relevant information to foreign countries for the purposes of managing certain risks posed by diseases or pests to the foreign country. In addition, Australia's international obligations may also require the reporting of certain information to foreign countries or international bodies of an intergovernmental character (such as a Conference of the Parties, working group for a Convention or the World Health Organization) in relation to certain risks posed by diseases or pests. 294. For example, if there is the likelihood of African Swine Fever entering a foreign country, and the potential for the disease to cause serious harm to the health of animals in that foreign country, then new section 585 would allow an entrusted person to disclose relevant information to a foreign government, authority or agency, or an international body of an intergovernmental character, if the particular information would assist that government, authority or agency, or international body to manage the risk. 295. As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 585 is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. However, such an authorisation will not be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see item 14 of this Schedule). This is because employees of the Agriculture Department will already be able to rely upon the authorisation in new section 585 in their own capacity as entrusted persons, and because it is not considered appropriate for biosecurity officers and biosecurity enforcement officers (who are not entrusted persons) to rely upon this authorisation (see item 5 of this Schedule). Section 586 - Use or disclosure for the purposes of certain Acts 296. New section 586 would authorise the use or disclosure of relevant information by an entrusted person for the purposes of the administration of the Biosecurity Act or another Act that is administered by the Agriculture Minister or the Health Minister. For example, an entrusted person would be able to use or disclose relevant information for the purposes of administering: • The Export Control Act 2020, being another Act that is currently administered by the Agriculture Minister; • The National Health Security Act 2007, being another Act that is currently administered by the Health Minister. 297. New section 586 would help ensure effective and efficient administration of other relevant legislation in the Agriculture Minister's or the Health Minister's portfolios. The authorisation in new section 586 would be restricted to entrusted persons, as it is not considered appropriate for persons who are not employed or engaged by the Commonwealth or a body corporate established by a law of the Commonwealth to be able to use or disclose relevant information for such purposes. 57

298. As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 586 is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. However, such an authorisation will not be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see item 14 of this Schedule). This is because employees of the Agriculture Department will already be able to rely upon the authorisation in new section 586 in their own capacity as entrusted persons, and because it is not considered appropriate for biosecurity officers and biosecurity enforcement officers (who are not entrusted persons) to rely upon this authorisation (see item 5 of this Schedule). Section 587 - Disclosure to a Commonwealth entity 299. New section 587 would authorise the disclosure of relevant information by an entrusted person to a Commonwealth entity if the disclosure is for the purposes of assisting the entity to perform its functions or duties or exercise its powers. 300. A Commonwealth entity would be defined in section 9 of the Biosecurity Act as having the same meaning as in the PGPA Act (see amendments proposed by item 5 of this Schedule). At the time of introduction of this Bill, Commonwealth entity was defined in the PGPA Act as a Department of State, a Parliamentary Department, a listed entity, a body corporate established by a Commonwealth law or certain body corporates prescribed to be a Commonwealth entity. 301. For example, as the Department of Home Affairs is a Commonwealth entity, new section 587 would allow an entrusted person to disclose relevant information to the Department of Home Affairs if the disclosure of the particular information would assist in the performance of functions or duties or the exercise of powers under that portfolio, such as under the Customs Act 1901. 302. As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 587 is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. However, such an authorisation will not be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see item 14 of this Schedule). This is because employees of the Agriculture Department will already be able to rely upon the authorisation in new section 587 in their own capacity as entrusted persons, and because it is not considered appropriate for biosecurity officers and biosecurity enforcement officers (who are not entrusted persons) to rely upon this authorisation (see item 5 of this Schedule). Section 588 - Disclosure to a court, tribunal etc. 303. New subsection 588(1) would authorise the disclosure of relevant information by an entrusted person to a court exercising federal jurisdiction. 58

304. New subsection 588(2) would authorise the disclosure of relevant information by an entrusted person to a court or a tribunal, authority or person that has the power to require the answering of questions or the production of documents, in certain circumstances. Such circumstances would be where the disclosure is for the purposes of the enforcement of a law of the Commonwealth or to assist the court, tribunal, authority or person to make or review an administrative decision that is required or authorised to be made under a law of the Commonwealth. 305. This provision is not intended to impose a standalone obligation on an entrusted person to disclose relevant information to a court, or to a tribunal, authority or another person. Rather, the intention of new section 588 is to ensure that if an entrusted person is required to provide relevant information to a court, or to a tribunal, authority or person with the power to require such information, then the entrusted person would not be contravening a civil penalty or committing an offence under new section 580 (see item 18 of this Schedule) in doing so. 306. As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 588 is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. However, such an authorisation will not be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see item 14 of this Schedule). This is because employees of the Agriculture Department will already be able to rely upon the authorisation in new section 588 in their own capacity as entrusted persons, and because it is not considered appropriate for biosecurity officers and biosecurity enforcement officers (who are not entrusted persons) to rely upon this authorisation (see item 5 of this Schedule). Section 589 - Disclosure for the purposes of law enforcement 307. New subsection 589(1) would authorise the disclosure of relevant information by an entrusted person to a body mentioned in new subsection 589(2) in certain circumstances. A body mentioned in new subsection 589(2) would be a Commonwealth entity, a State or Territory body, the Australian Federal Police or the police force or police service of a State or Territory. 308. The circumstances in which new subsection 589(1) would authorise the disclosure of relevant information would be where: • The entrusted person reasonably believes the disclosure is necessary for the enforcement of the criminal law or a law imposing a pecuniary penalty (such as a civil penalty provision), or for the protection of the public revenue; and • The functions of the relevant body include that enforcement or protection; and • For a State or Territory body, or the police force or police service of a State or Territory - the relevant body has undertaken not to use or further disclose the information except in accordance with a relevant agreement that is in force between the Commonwealth and the State or Territory, and that the agreement applies in relation to the information; and 59

• For a State or Territory body, or the police force or police service of a State or Territory - the entrusted person is satisfied that the information will only be used or further disclosed in accordance with the agreement. 309. It is appropriate that relevant information be able to be disclosed to such law enforcement bodies in these circumstances. This is because the authorisation in new section 589 involves a matter of public interest, being the enforcement of Australian laws. A State or Territory body would be defined in section 9 of the Biosecurity Act as a Department of State, or an agency or authority of a State or Territory (see amendments proposed by item 9 of this Schedule). 310. As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 589 is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. However, such an authorisation will not be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see item 14 of this Schedule). This is because employees of the Agriculture Department will already be able to rely upon the authorisation in new section 589 in their own capacity as entrusted persons, and because it is not considered appropriate for biosecurity officers and biosecurity enforcement officers (who are not entrusted persons) to rely upon this authorisation (see item 5 of this Schedule). Section 590 - Use or disclosure for research, policy development or data analysis 311. New subsection 590(1) would authorise an entrusted person to use relevant information, disclose relevant information to an entrusted person, or disclose relevant information to another person or body for certain purposes. Such purposes would be for the person or body to undertake research, policy development or data analysis to assist the Agriculture Department or Health Department with the administration of the Biosecurity Act. 312. For example, this authorisation would allow an entrusted person (such as the Agriculture Secretary) to engage a person or body to undertake research, policy development or data analysis to assist the Agriculture Department in administering the Biosecurity Act. It would also allow another entrusted person (such as a person engaged or employed by the Agriculture Department) to contribute to such research, policy development or data analysis. 313. However, new subsection 590(2) would provide that an entrusted person would not be authorised to disclose relevant information under new paragraph 590(1)(c) to another person (who is not employed or engaged by the Commonwealth or a body corporate that is established by a law of the Commonwealth) or body (that is not a Commonwealth entity) unless: • The other person or body has undertaken not to use or further disclose the information except in accordance with an agreement that is in force between the Commonwealth and that person or body, and that agreement applies to the information; and 60

• The entrusted person is satisfied that the information will be used or further disclosed only in accordance with the agreement. 314. New subsection 590(3) would further provide that an entrusted person is not authorised to disclose relevant information under new paragraph 590(1)(c) unless the entrusted person is satisfied that: • In the case of research, policy development or data analysis that could not proceed if personal information were de-identified before the relevant information is disclosed--only the minimum amount of personal information necessary to proceed is disclosed; or • Otherwise--all reasonable steps have been taken to de-identify any personal information before the relevant information is disclosed. 315. The restrictions in new subsections 590(2) and (3) would assist in ensuring that appropriate protections are in place for relevant information that is disclosed to another person or body under new paragraph 590(1)(c), so as to reduce the risk that it is misused. 316. As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 590 is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. However, such an authorisation will not be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see item 14 of this Schedule). This is because employees of the Agriculture Department will already be able to rely upon the authorisation in new section 590 in their own capacity as entrusted persons, and because it is not considered appropriate for biosecurity officers and biosecurity enforcement officers (who are not entrusted persons) to rely upon this authorisation (see item 5 of this Schedule). Section 590A - Use or disclosure of statistics 317. New section 590A would authorise the use or disclosure of relevant information by an entrusted person if the information is statistics that are not likely to enable the identification of a person. 318. This authorisation recognises that the disclosure of statistics that contain no identifying information are unlikely to cause harm to any person. 319. As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 590A is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. Such an authorisation will also be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see subsection 542(2) of the Biosecurity Act). 61

Section 590B - Use or disclosure of publicly available information 320. New section 590B would authorise the use or disclosure of relevant information by an entrusted person if the information has already been lawfully made available to the public. 321. This authorisation recognises that there is no justifiable reason to prevent the disclosure of information that is lawfully publicly available and therefore already accessible. 322. As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 590B is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. Such an authorisation will also be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see subsection 542(2) of the Biosecurity Act). Section 590C - Disclosure to person to whom information relates 323. New section 590C would authorise the disclosure of relevant information by an entrusted person to the person to whom the information relates. 324. This authorisation recognises that the interests of the person to whom relevant information relates will not be adversely affected by disclosure of the information to themselves. 325. As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 590C is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. Such an authorisation will also be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see subsection 542(2) of the Biosecurity Act). Section 590D - Use or disclosure with consent 326. New section 590D would authorise the use or disclosure of relevant information by an entrusted person if the person to whom the information relates has consented to the use or disclosure, and where the use or disclosure is in accordance with the consent provided. 327. This authorisation recognises that there is no justifiable reason to prevent the use or disclosure of information where the person concerned consents to the use or disclosure. It is intended that consent would include express consent or implied consent, consistent with the Privacy Act. 328. As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 590D is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. Such an authorisation will also be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, 62

biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see subsection 542(2) of the Biosecurity Act). Section 590E - Disclosure to person who provided information 329. New section 590E would authorise the disclosure of relevant information by an entrusted person to the person who provided the information. 330. This authorisation recognises that there is no justifiable reason to prevent the disclosure of information to the person who provided it in the first place, as that person will have already seen the information. 331. As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 590E is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. Such an authorisation will also be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see subsection 542(2) of the Biosecurity Act). Subdivision B--Authorised uses and disclosures by Director of Biosecurity or Director of Human Biosecurity Section 590F - Disclosure to State or Territory body 332. New section 590F would authorise the disclosure of relevant information by the Director of Biosecurity or the Director of Human Biosecurity to a State or Territory body if: • That Director reasonably believes the disclosure is necessary for the purposes of the administration of a State or Territory law; and • The relevant State or Territory body has given an undertaking not to use or further disclose that information except in accordance with a relevant agreement that is in force between the Commonwealth and the State or Territory, and the agreement applies in relation to the information; and • That Director is satisfied that the information will only be used or further disclosed in accordance with the agreement. 333. The purpose of the authorisation in new section 590F is to enable relevant information to be disclosed to a State or Territory body where it is necessary to do so for the purposes of administering State or Territory laws. A State or Territory body would be defined in section 9 of the Biosecurity Act as a Department of State, or an agency or authority of a State or Territory (see amendments proposed by item 9 of this Schedule). As this authorisation would relate to the broader purposes of administering State or Territory laws, which may not necessarily be limited to biosecurity purposes, it is necessary for an agreement to be in place between the Commonwealth and the relevant State or Territory body to ensure the terms of the information sharing arrangement are clear, including the purposes for which the information may be used or further disclosed. 63

334. As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 590F is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. Such an authorisation will also be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see subsection 542(2) of the Biosecurity Act). Section 590G - Use or disclosure to manage severe and immediate threats 335. New section 590G would authorise the use or disclosure of relevant information by the Director of Biosecurity or the Director of Human Biosecurity, if that Director reasonably believes that using or disclosing the information is necessary to manage a severe and immediate threat to human health, animal or plant health, or the environment, and where the threat has the potential to cause harm on a nationally significant scale. The intention is that such threats are not limited to those that arise from diseases or pests. 336. The purpose of the authorisation in new section 590G is allow relevant information to be used or disclosed by the Director of Biosecurity or the Director of Human Biosecurity where it is necessary to manage a severe and immediate threat that has the potential to cause harm on a nationally significant scale. It is appropriate for this authorisation to be in place as such severe and immediate threats require a rapid response, the management of which would likely require the use or disclosure of relevant information. 337. As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 590G is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. As a severe and immediate threat that has the potential to cause harm on a nationally significant scale would require effective management in a timely manner, it is appropriate for the authorisation to be delegable to senior officials of the Agriculture Department, who may have responsibility for and direct oversight of the threat. However, this function or power would not be subdelegable by the SES employee, or an acting SES employee (see item 14 of this Schedule). This is because the authorisation involves a matter of public interest with a high bar to satisfy (i.e. the threat must be severe and immediate, on a nationally significant scale and there must be a reasonable belief that the disclosure is necessary to manage the risk) and is likely to only be applicable in exceptional circumstances. Subdivision C--Authorised uses and disclosures under regulations Section 590H - Use or disclosure authorised by regulations 338. New subsection 590H(1) would authorise the use of relevant information by a person if: • That person is included in a class of persons prescribed by regulations made for the purposes of new paragraph 590H(1)(a); and 64

• The use is for a purpose prescribed by regulations made for the purposes of new paragraph 590H(1)(b); and • The information is of a kind prescribed by regulations made for the purposes of new paragraph 590H(1)(c); and • The use complies with any conditions, prescribed by regulations made for the purposes of new paragraph 590H(1)(d). 339. New subsection 590H(2) would authorise the disclosure of relevant information by a person if: • That person is included in a class of persons prescribed by regulations made for the purposes of new paragraph 590H(2)(a); and • The disclosure is for a purpose prescribed by regulations made for the purposes of new paragraph 590H(2)(b); and • The information is of a kind prescribed by regulations made for the purposes of new paragraph 590H(2)(c); and • The disclosure complies with any conditions, prescribed by regulations made for the purposes of new paragraph 590H(2)(d). 340. New subsection 590H(3) would provide that the regulations made for the purposes of new section 590H must specify the legislative power or powers of the Parliament in respect of which the regulations are made. This will ensure that any new authorisations for the use or disclosure of relevant information will draw upon the necessary constitutional heads of power. 341. New subsection 590H(4) would provide that new Subdivisions A and B of Division 3 of Part 2 of Chapter 11 of the Biosecurity Act do not limit regulations for the purposes of new section 590H. The intention is that the regulations under new section 590H may, for example, prescribe the use or disclosure of relevant information for a purpose that is the same as another authorisation in Subdivisions A and B, but in relation to a different class of persons. Another situation would be where the regulations under new section 590H may prescribe additional authorisations for a class of persons that are otherwise identified in Subdivisions A and B. 342. The authorisation in new section 590H is necessary to allow the regulations to prescribe the use or disclosure of relevant information in other circumstances which may arise in the future, and which may require expedient authorisation to effectively manage biosecurity risks or other risks. For example, a situation may arise in the future where a new partnership is formed between the Commonwealth, industry bodies and local community groups to assess the impacts of climate change, and relevant information about certain diseases or pests is required to assess those impacts, but no other authorisation for the use or disclosure of that information under the Biosecurity Act is available or considered to be appropriate. In such a case, it may be considered necessary to prescribe regulations under new section 590H to allow for the use or disclosure of relevant information by the partnership in certain circumstances. 343. The regulations under new section 590H would be able to be tailored to particular circumstances, by prescribing the kinds of information that may be used or disclosed, the classes of persons who may use or disclose the information, and the purposes for which the information could be used or disclosed. In addition, the regulations would be 65

able to impose appropriate limitations on the use or disclosure of the information, by requiring certain conditions to be complied with. For example, this may include requiring the person who is using or disclosing the information to ensure the confidentiality of the information or to abide by certain agreements between the Commonwealth and the person in relation to the information. 344. New section 590H would also replace existing subsection 580(3) of the Biosecurity Act, which allows the Director of Biosecurity or the Director of Human Biosecurity to provide additional authorisations for the use or disclosure of certain information on an ad-hoc basis. Under the new information management framework proposed by this Schedule, it is considered more appropriate for the Governor-General to make regulations to prescribe any additional authorisations under new section 590H, instead of the Director of Biosecurity or the Director of Human Biosecurity providing ad-hoc authorisations. This would allow greater transparency and parliamentary oversight of any regulations made under new section 590H, noting that they would also be subject to the usual disallowance process outlined in the Legislation Act 2003. Item 28 Application and saving provisions 345. Item 28 of this Schedule would provide the application provisions for the amendments in Schedule 3 to the Bill. 346. Subitem 28(1) would provide that the amendments of the Biosecurity Act made by this Schedule would apply in relation to the use or disclosure of relevant information on or after the commencement of this item, whether the relevant information is obtained or generated before, on or after that commencement. This makes clear that the amendments in this Schedule, which relate to the use or disclosure of relevant information, have prospective application. 347. Subitem 28(2) would provide that, despite the amendments to the Biosecurity Act made by this Schedule, existing sections 580 to 589 of the Biosecurity Act, as in force immediately before the commencement of this item, would continue to apply on and after that commencement in relation to the making of a record, disclosure or use of protected information before that commencement. This makes clear that existing sections 580 to 589 (including the existing offence provision in section 585) would continue to apply in relation to protected information that was recorded, disclosed or used before the commencement of this item. Further details about the repeal of existing sections 580 to 589 are discussed above. 348. Subitem 28(3) would provide that, despite the repeal of existing section 590 of the Biosecurity Act by this Schedule, that section, as in force immediately before the commencement of this item, would continue to apply on and after that commencement in relation to a year ending before that commencement. This makes clear that existing section 590 of the Biosecurity Act (which requires the preparation of an annual report) would continue to apply in relation to use of protected information (as defined in the existing Biosecurity Act) to a year that ends prior to the commencement of this item. Further details about the repeal of existing section 590 are discussed above. 66

SCHEDULE 4--STRENGTHENING PENALTIES Background 349. Schedule 4 to the Bill would increase the pecuniary penalties that apply to specified criminal offences and civil penalty provisions in the Biosecurity Act, and would also align maximum penalties across key provisions of the Biosecurity Act. 350. The proposed amendments relate to key provisions of the Biosecurity Act that, if not complied with, may significantly undermine the integrity of the biosecurity regulatory framework. Contravention of these provisions has the potential to result in significant adverse effects for Australia's biosecurity status, and consequential impacts on agricultural, tourism and other industries, plant and animal health, the economy and the environment. Many of the specified provisions apply to regulated entities, such as the person in charge or operator of an aircraft or vessel that arrives in Australian territory, and these individuals and bodies corporate should reasonably be aware of their obligations under the Biosecurity Act. 351. The proposed increases to the maximum penalty amounts listed in the tables in items 1 and 3 are intended to provide for more proportionate and appropriate penalties for contraventions of the Biosecurity Act than the current penalties regime. 352. The increases to the maximum penalty amounts for criminal offences are also intended to reflect the severity of the potential consequences of the offence and would allow for more proportionate and appropriate punishment for contraventions of the Biosecurity Act. The significant biosecurity risk that may be realised as a result of the offending conduct is such that it is appropriate to set a higher maximum penalty to punish non-compliance. Contraventions of these requirements under the Biosecurity Act poses the threat that diseases or pests may enter, establish or spread in Australian territory and cause serious damage to human, animal or plant health, Australia's agricultural industries, the economy and the environment. 353. In sentencing an offender and determining the level of penalty to impose for any of the criminal offences listed in items 1 and 3, a court may have regard to a number of factors, including the facts and circumstances of the case; the nature and significance of the offending conduct; and any previous history of non-compliance. Each increased maximum criminal penalty outlined in items 1 and 3 has been considered individually and each increase is intended to reinforce the retributive effect of the current penalty regime under the Biosecurity Act, while allowing a court greater capacity to respond meaningfully and proportionately to the worst contraventions of Australia's biosecurity laws. A court would still 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. 354. Where a body corporate is convicted of a criminal offence for a provision that is referred to in item 1, a court may, if the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to 5 times the increased penalty amount (see subsection 4B(3) of the Crimes Act 1914). 67

355. The increases to the maximum civil penalty amounts are intended to deter non-compliance with the requirements of the Biosecurity Act, and to ensure that the maximum penalties available reflect the gains that individuals and businesses might obtain, or seek to obtain, from engaging in conduct that jeopardises Australia's biosecurity status. It is important that civil penalties are set at a level that means the penalty is not merely perceived as a cost of doing business. This is particularly the case for bodies corporate. In addition, the increased civil penalties more accurately reflect the seriousness of the contravention and the magnitude of likely harm arising from the wrongdoing. 356. If the person who is liable to a civil penalty that is referred to in item 1 is a body corporate, the maximum penalty must not be more than 5 times the increased penalty amount (see subsection 82(5) of the Regulatory Powers Act, as enlivened by section 519 of the Biosecurity Act). 357. This Schedule would commence on the day after the proposed Act receives the Royal Assent. The amendments made to the specified criminal offences and civil penalty provisions by this Schedule would apply prospectively. Part 1--Managing biosecurity risks: goods Biosecurity Act 2015 Item 1 Amendments of listed provisions--offences and civil penalty provisions 358. This item would increase the maximum pecuniary penalty for a number of criminal offences and civil penalty provisions, involving the contravention of requirements relating to the assessment and management of biosecurity risks of goods that are brought or imported into Australian territory. The table in this item sets out the provisions that would be amended. Table items 1 and 2 - Subsections 120(6) and (7) (penalty) 359. Subsection 120(1) of the Biosecurity Act provides that a notice must be given for goods that are, or are intended to be, brought into Australian territory and unloaded at a landing place or port in Australian territory, other than certain goods originating in Australian territory. The notice must be given by a person as prescribed by regulations made under subsection 120(2) and the notice must comply with certain requirements set out in subsection 120(3). 360. A person contravenes subsection 120(5) if goods are unloaded as referred to in subsection 120(1), the person is a person prescribed by regulations made under subsection 120(2), a notice is not given by the person in accordance with subsection 120(3), and no other person gives a notice in relation to the goods in accordance with subsection 120(3). 361. Subsection 120(6) provides that a person commits a fault-based offence if that person contravenes subsection 120(5). Table item 1 would amend subsection 120(6) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 120 penalty units to 300 penalty units. 68

362. Subsection 120(7) provides that a person that contravenes subsection 120(5) is liable to a civil penalty. Table item 2 would amend subsection 120(7) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 120(5) from 120 penalty units to 300 penalty units. 363. The notice required under section 120 allows the Commonwealth to gather important information about goods, such as the country of origin and a description of the goods, that assists with the accurate and timely assessment and management of biosecurity risks. This information can be used by biosecurity officers to determine what risk management activities are necessary to deal with goods subject to biosecurity control when a conveyance (which includes an aircraft or vessel) arrives in Australian territory. 364. Persons to whom section 120 applies (as prescribed by regulations) should be aware of what they are conveying and are in a position to seek the required information from third parties if they do not have it themselves. Failure to provide a notice as required under section 120 may mean the goods by-pass standard inspection and risk mitigation activities (including post-entry quarantine requirements) as required by law. This puts Australia's agricultural industry at risk of biosecurity threats as the department cannot assess and manage any associated biosecurity risks appropriately. 365. The proposed increase to the maximum pecuniary penalty for the fault-based offence in subsection 120(6) departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]-[354] above. 366. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 120(7) also aligns with similar civil penalty provisions in subsections 126(2) and 127(3) of the Biosecurity Act, which relate to requirements to provide information and produce documents to biosecurity officers. Table items 3 and 4 - Subsections 121(3) and (4) (penalty) 367. Subsection 121(1) of the Biosecurity Act provides that a person who gave a notice under section 120 must as soon as practicable give a biosecurity officer additional or corrected information if that person becomes aware that information in that notice was incomplete or incorrect. A person contravenes subsection 121(2) if they are required to give information to a biosecurity officer under subsection 121(1) and does not do so. 368. Subsection 121(3) provides that a person commits a fault-based offence if that person contravenes subsection 121(2). Table item 3 would amend subsection 121(3) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 120 penalty units to 300 penalty units. 369. Subsection 121(4) provides that a person that contravenes subsection 121(2) is liable to a civil penalty. Table item 4 would amend subsection 121(4) to increase the maximum 69

civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 121(2) from 120 penalty units to 300 penalty units 370. The requirement for a person to give additional or corrected information under section 121 while goods are subject to biosecurity control is as important from a biosecurity perspective as the need to provide the notice under section 120 in the first place. It ensures the department has access to the best possible information when assessing and managing biosecurity risk. 371. Persons to whom section 121 applies should be aware of what they are conveying and are in a position to seek the required information from third parties if they do not already have it. Failure to provide additional or corrected information as required under section 121 puts Australia's agricultural industry at risk of biosecurity threats as the department cannot assess and manage any associated biosecurity risks appropriately if the information provided to it is incomplete or incorrect. 372. The proposed increase to the maximum pecuniary penalty for the fault-based offence in subsection 121(3) departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]-[354] above. 373. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 121(4) also aligns with similar civil penalty provisions in subsections 126(2) and 127(3) of the Biosecurity Act, which relate to requirements to provide information and produce documents to biosecurity officers. Table items 5 and 6 - Subsections 122(6) and (7) (penalty) 374. Subsection 122(1) of the Biosecurity Act permits a biosecurity officer to exercise their powers under subsections 122(2), (3) and (4) to require a person to provide extra information for the purposes of assessing the level of biosecurity risk associated with the goods that are the subject of a notice given under section 120 but have not become subject to biosecurity control. The extra information allows biosecurity officers to make a preliminary assessment of the level of biosecurity risks associated with the goods, ensuring that appropriate resources can be allocated to assess the risks once the goods are unloaded in Australia. A person contravenes subsection 122(5) if they do not comply with the requirement under subsection 122(2) to answer questions or provide information to a biosecurity officer, or the requirement under subsection 122(3) to produce documents specified by a biosecurity officer. 375. Subsection 122(6) provides that a person commits a fault-based offence if that person contravenes subsection 122(5). Table item 5 would amend subsection 122(6) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 120 penalty units to 300 penalty units. 70

376. Subsection 122(7) provides that a person that contravenes subsection 122(5) is liable to a civil penalty. Table item 6 would amend subsection 122(7) to increase the maximum civil penalty that a court may order a person who is an individual to pay for contravening subsection 122(5) from 120 penalty units to 300 penalty units. 377. The information or documents to be provided under section 122 are necessary to assist biosecurity officers with the accurate and timely assessment and management of biosecurity risks. Biosecurity officers use this information to determine what risk management activities are necessary to deal with goods subject to biosecurity control when a conveyance (which includes an aircraft or vessel) arrives in Australian territory. 378. Persons to whom section 122 applies should be aware of what they are conveying and are in a position to seek the required information from third parties if they do not already have it. Failure to provide accurate and timely information under section 122 puts Australia's agricultural industry at risk of biosecurity threats as the department cannot assess and manage any associated biosecurity risks appropriately. 379. The proposed increase to the maximum pecuniary penalty for the fault-based offence in subsection 122(6) departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]-[354] above. 380. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 122(7) also aligns with similar civil penalty provisions in subsections 126(2) and 127(3) of the Biosecurity Act, which relate to requirements to provide information and produce documents to biosecurity officers. Table items 7 and 8 - Subsections 143(5) and (6) (penalty) 381. Subject to any direction given by a biosecurity officer under subsection 143(3), or in accordance with the requirements in sections 145, 146, 147, 148 and 151, a person in charge of an aircraft or vessel can allow the unloading of goods at a landing place or port at which the aircraft or vessel has arrived. This approach allows goods which do not pose a biosecurity risk to move smoothly through the border, reducing delays on individuals and businesses. 382. Subsection 143(3) of the Biosecurity Act permits a biosecurity officer to give a person in charge of an aircraft or vessel, a direction relating to the unloading of goods from an 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 is suspected of posing a high level of biosecurity risk, a biosecurity officer may direct the person in charge not to unload that particular shipping container. Subsection 143(4) requires a person given a direction under subsection 143(3) to comply with that direction. 383. Subsection 143(5) provides that a person given a direction under subsection 143(3) commits a fault-based offence if that person engages in conduct that contravenes the 71

direction. Table item 7 would amend subsection 143(5) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault- based offence from 300 penalty units to 1,000 penalty units. 384. Subsection 143(6) provides that a person that contravenes subsection 143(4) is liable to a civil penalty. Table item 8 would amend subsection 143(6) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 143(4) from 120 penalty units to 300 penalty units. 385. Failure to comply with a direction given by a biosecurity officer under subsection 143(3) may result in an inability to manage the unacceptable level of biosecurity risk posed by the goods in an efficient, timely and suitable manner, potentially exacerbating the risk. If a direction is 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. 386. The proposed increase to the maximum pecuniary penalty for the fault-based offence in subsection 143(5) departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. The proposed increase will align with the current maximum pecuniary penalty in subsection 140(2) of the Biosecurity Act, which relates to complying with a direction given by a biosecurity officer in relation to the export, movement, treatment or destruction of goods. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]- [354] above. 387. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 143(6) also aligns with similar civil penalty provisions in subsections 124(2) and 125(4) of the Biosecurity Act, which relate to complying with directions to secure goods and deliver samples. Table items 9 and 10 - Subsections 144(6) and (7) (penalty) 388. Subsection 144(3) of the Biosecurity Act permits a biosecurity officer to give a person a direction relating to the unloading of goods from an aircraft or vessel at a landing place or port at which the aircraft or vessel has arrived. If a person in charge of the aircraft or vessel is given a direction by a biosecurity officer under subsection 143(3), subsection 144(4) permits the person in charge of the aircraft or vessel, for the purposes of giving effect to that direction, to give another person a direction relating to the unloading of the goods from the aircraft or vessel. Subsection 144(5) provides that a person given a direction under subsection 144(3) or (4) must comply with that direction. 389. Subsection 144(6) provides that a person commits a fault-based offence if the person is given a direction under subsection 144(3) or (4) and engages in conduct that contravenes the direction. Table item 9 would amend subsection 144(6) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 72

390. Subsection 144(7) provides that a person that contravenes subsection 144(5) is liable to a civil penalty. Table item 10 would amend subsection 144(7) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 144(5) from 120 penalty units to 300 penalty units. 391. Failure to comply with a direction given under subsection 144(3) or (4) may result in an inability to manage the unacceptable level of biosecurity risk posed by the goods in an efficient, timely and suitable manner, potentially exacerbating the risk. 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. 392. The proposed increase to the maximum pecuniary penalty for the fault-based offence in subsection 144(6) departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. The proposed increase will align with the current maximum pecuniary penalty in subsection 140(2) of the Biosecurity Act, which relates to complying with a direction given by a biosecurity officer in relation to the export, movement, treatment or destruction of goods. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]- [354] above. 393. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 144(7) also aligns with similar civil penalty provisions in subsections 124(2) and 125(4) of the Biosecurity Act, which relate to complying with directions to secure goods and deliver samples. Table items 11 and 12 - Subsections 145(2) and (3) (penalty) 394. Subsection 145(1) of the Biosecurity Act provides that the person in charge of the aircraft or vessel must not allow the goods to be unloaded from the aircraft or vessel at a landing place or port that is not a first point of entry for those goods, unless permission has been given under subsection 146(2) for the goods to be unloaded at that landing place or port. 395. Subsection 145(2) provides that a person in charge of an aircraft or vessel commits a fault-based offence if the person allows goods that are subject to biosecurity control to be unloaded from the aircraft or vessel at a landing place or port in Australian territory that is not a first point of entry for those goods, and permission has not been given under subsection 146(2) for the goods to be unloaded at that landing place or port. Table item 11 would amend subsection 145(2) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 396. Subsection 145(3) provides that a person that contravenes subsection 145(1) is liable to a civil penalty. Table item 12 would amend subsection 145(3) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that 73

person is liable to a civil penalty under subsection 145(1) from 120 penalty units to 300 penalty units. 397. First points of entry may be determined to receive specific goods, depending on the biosecurity risks associated with the goods and the facilities at the first point of entry to manage the biosecurity risks. Section 145 ensures that, in the event a first point of entry is determined to receive specific goods, the first point of entry is not circumvented by unloading goods at an alternative point of entry. It also ensures that biosecurity risks associated with unloading goods at places that are not first points of entry are appropriately managed. 398. Non-compliance with section 145 would jeopardise Australia's agricultural industry through a biosecurity threat potentially entering, spreading and establishing itself within Australia. If goods are unloaded from an aircraft or vessel at a landing place or port that is not a first point of entry for those goods, without relevant permission having been given under subsection 146(2), significant biosecurity risks may ensue and result in serious damage to plant and animal health, Australia's local industries, the economy and the environment. 399. The proposed increase to the maximum pecuniary penalty for the fault-based offence in subsection 145(2) departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]-[354] above. 400. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 145(3) also aligns with similar civil penalty provisions relating to a failure to comply with directions under sections 124 to 130 of the Biosecurity Act. Table items 13 to 16 - Subsections 146(4) to (7) (penalty) 401. Subsection 146(1) provides that a person in charge or the operator of the aircraft or vessel may, in writing, request the Director of Biosecurity to give permission for the goods to be unloaded at a landing place or port that is not a first point of entry for those goods. The Director of Biosecurity may give such permission, by notice in writing, under subsection 146(2). Under subsection 146(3), this permission may be given subject to any conditions specified in the notice. Section 146 provides flexibility for industry by ensuring that alternative arrangements can be made to unload particular goods at a landing place or port that is not a first point of entry for the goods. 402. Subsection 146(4) provides that the person in charge or the operator of an aircraft or vessel commits a fault-based offence if the person has been given permission under subsection 146(2), the permission is subject to conditions, and the person engages in conduct that contravenes those conditions. Table item 13 would amend subsection 146(4) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 74

403. Subsection 146(5) provides that a person in charge of an aircraft or vessel commits a fault-based offence if the operator of the aircraft or vessel has been given a permission under subsection 146(2), the permission is subject to conditions, and the conditions are not complied with. Table item 14 would amend subsection 146(5) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 404. Subsection 146(6) provides that the operator of an aircraft or vessel commits a fault- based offence if the person in charge of the aircraft or vessel is given a permission under subsection 146(2), the permission is subject to conditions, and the conditions are not complied with. Table item 15 would amend subsection 146(6) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 405. Subsection 146(7) provides that the person in charge and the operator of an aircraft or vessel are each liable to a civil penalty if the person in charge or the operator of the aircraft or vessel has been given a permission under subsection 146(2), the permission is subject to conditions, and the conditions are not complied with. Table item 16 would amend subsection 146(7) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 146(7) from 120 penalty units to 300 penalty units. 406. The flexibility for industry provided by section 146 must be balanced by the need to ensure that biosecurity risks are appropriately assessed and managed. A person in charge or the operator of an aircraft or vessel should take active steps to understand and comply with requirements in the Biosecurity Act. Where the person has specifically requested permission to unload goods at a landing place or port that is not ordinarily a designated first point of entry for particular goods, and received written notice of the Director of Biosecurity's decision, they should take reasonable steps to understand the permission, including the conditions attached to the permission. In accordance with subsection 146(2), any permission must be given by written notice. 407. When a person engages in conduct that contravenes the conditions of a permission, they risk the potential entry and spread of pests and disease in Australia territory. The person should expect there to be significant legal consequences because of the serious biosecurity risks likely to be posed by their conduct. 408. The proposed increases to the maximum pecuniary penalties for the fault-based offences in subsections 146(4) to (6) depart from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalty does not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. The proposed increases will align with the current maximum pecuniary penalties for subsections 186(2) and 187(1) of the Biosecurity Act, which relate to contravening conditions that apply to conditionally non-prohibited goods and the conditions of a permit. Further details about the proposed increases to the maximum penalties are outlined in paragraphs [352]-[354] above. 409. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 146(7) also aligns with similar 75

civil penalty provisions in the Biosecurity Act relating to a failure to comply with directions under sections 124 to 130. Table items 17 to 21 - Subsections 147(2), (4) to (7) (penalty) 410. Section 147 applies where an aircraft or vessel has arrived at a first point of entry 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. 411. Subsection 147(2) provides that the person in charge of an aircraft or vessel must ensure that goods that are to be unloaded from the aircraft or vessel are brought to the biosecurity entry point for those goods as soon as practicable, unless a biosecurity officer has given a direction under subsection 147(3) or permission has been given under subsection 148(2) for the goods to be brought to an alternative biosecurity entry point. 412. A person is liable to a civil penalty under subsection 147(2) if they contravene the requirements of the subsection. Table item 17 would amend subsection 147(2) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 146(2) from 120 penalty units to 300 penalty units. 413. Subsection 147(3) permits a biosecurity officer to give the person in charge or the operator of the aircraft or vessel a direction requiring goods that are to be unloaded from the aircraft or vessel to be brought to a biosecurity entry point that is not a biosecurity entry point for those goods. 414. Subsection 147(4) provides that the person in charge or the operator of the aircraft or vessel commits a fault-based offence if the person has been given a direction under subsection 147(3), and the person engages in conduct which contravenes the direction. Table item 18 would amend subsection 147(4) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 415. Subsection 147(5) provides that the person in charge of an aircraft or vessel commits a fault-based offence if the operator of the aircraft or vessel has been given a direction under subsection 147(3) and the direction is not complied with. Table item 19 would amend subsection 147(5) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 416. Subsection 147(6) provides that the operator of an aircraft or vessel commits a fault- based offence if the person in charge of the aircraft or vessel has been given a direction under subsection 147(3) and the direction is not complied with. Table item 20 would amend subsection 147(6) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 417. Subsection 147(7) provides that the person in charge and the operator of an aircraft or vessel are each liable to a civil penalty if the person in charge or the operator of the 76

aircraft or vessel has been given a direction under subsection 147(3) and the direction is not complied with. Table item 21 would amend subsection 147(7) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 147(7) from 120 penalty units to 300 penalty units. 418. Biosecurity entry points are designated areas within a landing place or port that an aircraft, vessel or goods must enter as soon as practicable upon arriving at a first point of entry. They allow biosecurity risks associated with the aircraft, vessel or goods to be managed at a specific location within the landing place or port. A person in charge of an aircraft or vessel should take active steps to understand and comply with the requirements under the Biosecurity Act, including those relating to designated biosecurity entry points for first points of entry. 419. Failure to bring goods to a biosecurity entry point as required under subsection 147(2), or in accordance with a direction given under subsection 147(3), may prevent biosecurity officers from properly assessing and managing any biosecurity risk associated with the goods, potentially resulting in serious damage to plant and animal health, Australia's local industries, economy and the environment. 420. The proposed increases to the maximum pecuniary penalties for the fault-based offence in subsections 147(4) to (6) depart from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]-[354] above. 421. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increases to the maximum civil penalties in subsections 147(2) and (7) also align with similar civil penalty provisions relating to a failure to comply with directions under sections 124 to 130 of the Biosecurity Act. Table items 22 to 25 - Subsections 148(4) to (7) (penalty) 422. Subsection 148(1) of the Biosecurity Act permits the person in charge or the operator of the aircraft or vessel to request in writing that the Director of Biosecurity give permission to bring the goods to a biosecurity entry point (known as "the alternative biosecurity entry point") that is not a biosecurity entry point for those goods. The Director of Biosecurity may give permission by notice in writing under subsection 148(2). Subsection 148(3) provides that this permission may be subject to any conditions specified in the notice. 423. These provisions provide flexibility to industry by ensuring that alternative arrangements can be made to unload goods at alternative biosecurity entry points, subject to abiding by any conditions specified in the permission. 424. Subsection 148(4) provides that the person in charge or the operator of an aircraft or vessel commits a fault-based offence if the person has been given a permission under subsection 148(2) which is subject to conditions, and the person engages in conduct that contravenes the conditions. Table item 22 would amend subsection 148(4) to 77

increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 425. Subsection 148(5) provides that the person in charge of an aircraft or vessel commits a fault-based offence if the operator of the aircraft or vessel has been given a permission under subsection 148(2) which is subject to conditions, and the conditions are not complied with. Table item 23 would amend subsection 148(5) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault- based offence from 300 penalty units to 1,000 penalty units. 426. Subsection 148(6) provides that the operator of an aircraft or vessel commits a fault- based offence if the person in charge of the aircraft or vessel has been given a permission under subsection 148(2) which is subject to conditions, and the conditions are not complied with. Table item 24 would amend subsection 148(6) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 427. Subsection 148(7) provides that the person in charge and the operator of an aircraft or vessel are each liable to a civil penalty if the person in charge or the operator of the aircraft or vessel has been given a permission under subsection 148(2) which is subject to conditions, and the conditions are not complied with. Table item 25 would amend subsection 148(7) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 148(7) from 120 penalty units to 300 penalty units. 428. The provisions in section 148 ensure that biosecurity risk assessment processes for determining biosecurity entry points at first points of entry are not circumvented and that biosecurity risks associated with unloading the goods at places that are not a biosecurity entry point (including an alternative biosecurity entry point) for those goods are appropriately managed. 429. A person in charge or the operator of an aircraft or vessel should take active steps to understand and comply with requirements in the Biosecurity Act. Where the person has specifically requested permission to bring goods to an alternative biosecurity entry point, and received written notice of the Director of Biosecurity's decision, they should take reasonable steps to understand the permission, including the conditions attached to the permission. In accordance with subsection 148(2), any permission must be given by written notice. 430. When a person engages in conduct that contravenes the conditions of a permission, they risk the potential entry and spread of pests and disease in Australia territory. The person should expect there to be significant legal consequences because of the serious biosecurity risks likely to be posed by their conduct. 431. The proposed increases to the maximum pecuniary penalties for the fault-based offence in subsections 148(4) to (6) depart from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. The proposed increases will align with the current maximum pecuniary penalties for subsections 186(2) and 187(1) of the 78

Biosecurity Act, which relate to contravening conditions that apply to conditionally non-prohibited goods and the conditions of a permit. Further details about the proposed increase to the maximum penalties are outlined in paragraphs [352]-[354] above. 432. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 148(7) also aligns with similar civil penalty provisions in the Biosecurity Act relating to a failure to comply with directions under sections 124 to 130. Table item 26 - Subsection 149(1) (penalty) 433. Subsection 149(1) of the Biosecurity Act provides that a person is liable to a civil penalty if they receive, or have in their possession, goods that have been unloaded from an aircraft or vessel in Australian territory, where a direction given under subsection 143(3), 144(3), 144(4) or 147(3) has been contravened; the goods were unloaded in contravention of subsection 145(1); a condition of a permission imposed under subsection 146(3) or 148(3) has been contravened; or subsection 147(2) has been contravened. This provision is designed to deter people from receiving or possessing goods that are unlawfully unloaded in Australian territory as the result of a failure to comply with the requirements in Division 6 of Part 1 of Chapter 3 of the Biosecurity Act. It ensures that anyone contemplating the receipt or possession of imported goods takes reasonable steps to ascertain the provenance of goods and how they came to be in Australia. 434. Table item 26 would amend subsection 149(1) to increase the maximum penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 149(1) from 120 penalty units to 300 penalty units. 435. Receiving or being in possession of goods that have by-passed biosecurity control could have a detrimental effect on the Australian environment, economy and export markets as the biosecurity risk associated with the goods may not have been assessed and managed by biosecurity officers. The current civil penalty does not adequately reflect the seriousness of the contravening behaviour. The potential consequences of non-compliance are such that it is appropriate to increase the maximum civil penalty. 436. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty better reflects the seriousness of receiving or being in possession of goods, where the requirements under the Biosecurity Act in relation to the unloading of goods, directions given relating to the goods, and conditions relating to the goods have been contravened. The higher civil penalty is intended to achieve the necessary deterrent effect to promote compliance with the Biosecurity Act while also indicating the magnitude of likely harm arising from the relevant wrongdoing. The proposed increase also aligns with similar civil penalty provisions in the Biosecurity Act relating to a failure to comply with directions under sections 124 to 130. 79

Table items 27 and 28 - Subsections 155(2) and (3) (penalty) 437. Section 154 of the Biosecurity Act permits the Director of Biosecurity to determine, by legislative instrument, that an act, omission or event is a reportable biosecurity incident in relation to goods that are subject to biosecurity control. 438. Subsection 155(1) of the Biosecurity Act provides that if goods that are subject to biosecurity control are, or were, on board an aircraft or vessel and the person in charge of the aircraft or vessel becomes aware of a reportable biosecurity incident in relation to the 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. 439. Subsection 155(2) provides that the person in charge of an aircraft or vessel commits a fault-based offence if the aircraft or vessel is, or was, carrying goods that are subject to biosecurity control, the person becomes aware of a reportable biosecurity incident in relation to the goods, and the person fails to report the incident as required by subsection 155(1). Table item 27 would amend subsection 155(2) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 120 penalty units to 1,000 penalty units. 440. Subsection 155(3) provides that a person is liable to a civil penalty if they contravene subsection 155(1). Table item 28 would amend subsection 155(3) to increase the maximum penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 155(1) from 120 penalty units to 300 penalty units. 441. It is important that reportable 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 and to limit the risk associated with any pest or disease entering, establishing or spreading into Australian territory. The person in charge of an aircraft or vessel carrying the goods that are subject to biosecurity control should be aware of and clearly understand the requirements under the Biosecurity Act and take reasonable steps to comply. 442. Failure to report such biosecurity incidents as soon as practicable after becoming aware of them is likely to result in a delay in responding to the biosecurity risk associated with the incident, which could exacerbate the nature and magnitude of the risk, and any required response activity. 443. The proposed increase to the maximum pecuniary penalty for the fault-based offence in subsection 155(2) departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalty does not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. The proposed increase will more adequately reflect the seriousness of failing to report a reportable biosecurity incident as soon as practicable after becoming aware of the incident, and is intended to allow for more appropriate punishment of serious offending. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]-[354] above. 80

444. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 155(3) also aligns with similar civil penalty provisions in the Biosecurity Act relating to a failure to comply with directions under sections 124 to 130. Table items 29 and 30 - Subsections 156(2) and (3) (penalty) 445. Subsection 156(1) of the Biosecurity Act provides that a person in charge of goods that are subject to biosecurity control must report a reportable biosecurity incident to a biosecurity officer or the Director of Biosecurity as soon as practicable after becoming aware of the incident. 446. Subsection 156(2) provides that a person in charge of goods that are subject to biosecurity control commits a fault-based offence if a person becomes aware of a reportable biosecurity incident in relation to the goods and the person fails to report the incident as required by subsection 156(1). Table item 29 would amend subsection 156(2) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 120 penalty units to 1,000 penalty units. 447. Subsection 156(3) provides that a person is liable to a civil penalty if they contravene subsection 156(1). Table item 30 would amend subsection 156(3) to increase the maximum penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 156(1) from 120 penalty units to 300 penalty units. 448. It is important that reportable 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 and to limit the risk associated with any pest or disease entering, establishing or spreading into Australian territory. The person in charge of the goods that are subject to biosecurity control should be aware of and clearly understand the requirements under the Biosecurity Act and take reasonable steps to comply. 449. Failure to report such biosecurity incidents as soon as practicable after becoming aware of them is likely to result in a delay in responding to the biosecurity risk associated with the incident, which could exacerbate the nature and magnitude of the risk, and any required response activity. 450. The proposed increase to the maximum pecuniary penalty for the fault-based offence in subsection 156(2) departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalty does not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. The proposed increase will more adequately reflect the seriousness of failing to report a reportable biosecurity incident as soon as practicable after becoming aware of the incident, and is intended to allow for more appropriate punishment of serious offending. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]-[354] above. 451. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 156(3) also aligns with similar 81

civil penalty provisions in the Biosecurity Act relating to a failure to comply with directions under sections 124 to 130. Item 2 Application provisions 452. This item would provide that the amendments to the maximum pecuniary penalties made by item 1 of this Schedule apply in relation to specified circumstances that occur on or after the commencement of this item. This would make clear that these amendments are intended to apply prospectively. 453. Subitem 2(1) would provide that the amendments to section 120 of the Biosecurity Act, proposed by table items 1 and 2 in item 1 of this Schedule, apply in relation to goods that are unloaded on or after the commencement of this item. This would make clear that the amendments in table items 1 and 2 in item 1 are proposed to have prospective effect. 454. Subitem 2(2) would provide that the amendments to section 121 of the Biosecurity Act, proposed by table items 3 and 4 in item 1 of this Schedule, apply in relation to a notice given under section 120 of the Biosecurity Act on or after the commencement of this item. This would make clear that the amendments in table items 3 and 4 in item 1 are proposed to have prospective effect. 455. Subitem 2(3) would provide that the amendments to section 122 of the Biosecurity Act, proposed by table items 5 and 6 in item 1 of this Schedule, apply in relation to a requirement made under subsection 122(2) or (3) of the Biosecurity Act on or after the commencement of this item. This would make clear that the amendments in table items 5 and 6 in item 1 are proposed to have prospective effect. 456. Subitem 2(4) would provide that the amendments to section 143 of the Biosecurity Act, proposed by table items 7 and 8 in item 1 of this Schedule, apply in relation to a direction given under subsection 143(3) of the Biosecurity Act on or after the commencement of this item. This would make clear that the amendments in table items 7 and 8 in item 1 are proposed to have prospective effect. 457. Subitem 2(5) would provide that the amendments to section 144 of the Biosecurity Act, proposed by table items 9 and 10 in item 1 of this Schedule, apply in relation to a direction given under subsection 144(3) or (4) of the Biosecurity Act on or after the commencement of this item. This would make clear that the amendments in table items 9 and 10 in item 1 are proposed to have prospective effect. 458. Subitem 2(6) would provide that the amendments to section 145 of the Biosecurity Act, proposed by table items 11 and 12 in item 1 of this Schedule, apply in relation to goods that are unloaded on or after the commencement of this item. This would make clear that the amendments in table items 11 and 12 in item 1 are proposed to have prospective effect. 459. Subitem 2(7) would provide that the amendments to section 146 of the Biosecurity Act, proposed by table items 13 to 16 in item 1 of this Schedule, apply in relation to a permission given under subsection 146(2) of the Biosecurity Act on or after the 82

commencement of this item. This would make clear that the amendments in table items 13 to 16 in item 1 are proposed to have prospective effect. 460. Subitem 2(8) would provide that the amendments to section 147 of the Biosecurity Act, proposed by table items 17 to 21 in item 1 of this Schedule, apply in relation to an aircraft or vessel that arrives at a first point of entry for the aircraft or vessel on or after the commencement of this item. This would make clear that the amendments in table items 17 to 21 in item 1 are proposed to have prospective effect. 461. Subitem 2(9) would provide that the amendments to section 148 of the Biosecurity Act, proposed by table items 22 to 25 in item 1 of this Schedule, apply in relation to a permission given under subsection 148(2) of the Biosecurity Act on or after the commencement of this item. This would make clear that the amendments in table items 22 to 25 in item 1 are proposed to have prospective effect. 462. Subitem 2(10) would provide that the amendment to section 149 of the Biosecurity Act, proposed by table item 26 in item 1 of this Schedule, applies in relation to goods that are unloaded on or after the commencement of this item. This would make clear that the amendment in table item 26 in item 1 is proposed to have prospective effect. 463. Subitem 2(11) would provide that the amendments to section 155 of the Biosecurity Act, proposed by table items 27 and 28 in item 1 of this Schedule, apply in relation to goods that become subject to biosecurity control on or after the commencement of this item. This would make clear that the amendments in table items 27 and 28 in item 1 are proposed to have prospective effect. 464. Subitem 2(12) would provide that the amendments to section 156 of the Biosecurity Act, proposed by table items 29 and 30 in item 1 of this Schedule, apply in relation to goods that become subject to biosecurity control on or after the commencement of this item. This would make clear that the amendments in table items 29 and 30 in item 1 are proposed to have prospective effect. Part 2--Managing biosecurity risks: conveyances Biosecurity Act 2015 Item 3 Amendments of listed provisions--offences and civil penalty provisions 465. This item would increase the maximum pecuniary penalty for a number of criminal offences and civil penalty provisions, involving the contravention of requirements relating to the assessment and management of biosecurity risks of conveyances that enter, or intend to enter, Australian territory. The table in this item sets out the provisions that would be amended. Table item 1 - Subsection 198(2) (penalty) 466. Subsection 198(1) of the Biosecurity Act provides that a biosecurity officer may direct the person in charge or the operator of a conveyance to secure the conveyance in a manner, and for a period (not exceeding 48 hours) specified by the biosecurity officer. 83

Under subsection 198(2), a person who is given a direction under subsection 198(1) is liable to a civil penalty if they do not comply with the direction. 467. Table item 1 would amend subsection 198(2) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 198(2) from 120 penalty units to 300 penalty units. 468. A direction given under subsection 198(1) allows a biosecurity officer to exercise other assessment powers under Division 3 of Part 2 of Chapter 4 of the Biosecurity Act to assess the level of biosecurity risk in relation to a conveyance and limits the possibility that any biosecurity risk associated with the conveyance will spread. Non-compliance with a direction given under subsection 198(1) impedes the ability of biosecurity officers to assess the level of biosecurity risk in relation to a conveyance. 469. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 198(2) also aligns with a similar civil penalty provision under section 124 of the Biosecurity Act relating to a failure to comply with directions to secure goods. Table item 2 - Subsection 200(2) (penalty) 470. Subsection 200(1) of the Biosecurity Act provides that a biosecurity officer may require a person who the biosecurity officer suspects, on reasonable grounds, has information in relation to the conveyance to answer questions, or provide information in writing, in relation to the conveyance. Under subsection 200(2), a person who is required to answer questions, or provide information in writing, under subsection 200(1) is liable to a civil penalty if they do not comply with the requirement. 471. Table item 2 would amend subsection 200(2) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 200(2) from 120 penalty units to 300 penalty units. 472. Section 200 ensures that biosecurity officers have access to all the necessary information to make an accurate and timely assessment of biosecurity risk associated with the conveyance. Non-compliance with a requirement to answer questions or provide information under subsection 200(1) impedes the ability of biosecurity officers to assess the level of biosecurity risk in relation to a conveyance. 473. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 200(2) also aligns with similar civil penalty provisions under sections 126 and 127 of the Biosecurity Act relating to a failure to comply with requirements. Table item 3 - Subsection 201(3) (penalty) 474. Subsection 201(1) of the Biosecurity Act provides that a biosecurity officer may require a person who the biosecurity officer suspects, on reasonable grounds, has the custody or control of documents in relation to the conveyance to produce to the officer such of those documents as are specified by the officer. Under subsection 201(3), a person who 84

is required to produce documents under subsection 201(1) is liable to a civil penalty if they do not comply with the requirement. 475. Table item 3 would amend subsection 201(3) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 201(3) from 120 penalty units to 300 penalty units. 476. Section 201 ensures that biosecurity officers have access to all the necessary information to make an accurate and timely assessment of biosecurity risk associated with the conveyance. Non-compliance with a requirement to produce documents under subsection 201(1) impedes the ability of biosecurity officers to assess the level of biosecurity risk in relation to a conveyance. 477. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 201(3) also aligns with similar civil penalty provisions under sections 126 and 127 of the Biosecurity Act relating to a failure to comply with requirements. Table item 4 - Subsection 202(2) (penalty) 478. Paragraph 202(1)(a) of the Biosecurity Act allows a biosecurity officer to give the following directions to the person in charge or the operator of the conveyance: • a direction not to move, deal with or interfere with the conveyance; • a direction to move the conveyance, as soon as practicable, to a place specified by the biosecurity officer (except a place outside Australian territory); • any other direction relating to the movement of the conveyance. A biosecurity officer may also cause the conveyance to be moved to another place (except a place outside Australian territory) under paragraph 202(1)(b). Under subsection 202(2), a person who is given a direction under paragraph 202(1)(a) is liable to a civil penalty if they do not comply with the direction. 479. Table item 4 would amend subsection 202(2) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 202(2) from 120 penalty units to 300 penalty units. 480. Section 202 allows a biosecurity officer to issue movement directions in relation to a conveyance to ensure that appropriate activities can be carried out to assess biosecurity risks and that a conveyance can be assessed at place where there is no risk of any biosecurity risk spreading. Non-compliance with a direction given under paragraph 202(1)(a) impedes the ability of biosecurity officers to assess the level of biosecurity risk in relation to a conveyance. 481. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 202(2) also aligns with a similar civil penalty provision under section 128 of the Biosecurity Act relating to a failure to comply with directions. Table item 5 - Subsection 203(2) (penalty) 85

482. Subsection 203(1) of the Biosecurity Act allows a biosecurity officer to affix a biosecurity control notice to, or as near as reasonably practicable to, the conveyance (paragraph 203(1)(a)) or give a biosecurity control notice to the person in charge of the conveyance (paragraph 203(1)(b)). Under subsection 203(2), a person is liable to a civil penalty if that person interferes with, removes or defaces a notice affixed under paragraph 203(1)(a) and none of the circumstances set out in paragraph 203(2)(c) or subsection 203(3) applies. Paragraph 203(2)(c) and subsection 203(3) provide for limited exceptions to the civil penalty provision where the person is authorised or permitted to engage in the conduct, or it is necessary to engage in that conduct to comply with another direction given under the Biosecurity Act. 483. Table item 5 would amend subsection 203(2) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 203(2) from 120 penalty units to 300 penalty units. 484. The purpose of affixing a biosecurity control notice to a conveyance (or giving a biosecurity control notice to the person in charge of the conveyance) under section 203 is to inform a person that the movement of the conveyance to which the notice is affixed is restricted. This ensures that a biosecurity officer can carry out an assessment of the biosecurity risk associated with the conveyance. Interfering with, removing or defacing a biosecurity control notice affixed under paragraph 203(1)(a), without a valid reason, impedes the ability of biosecurity officers to assess the level of biosecurity risk in relation to a conveyance. 485. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 203(2) also aligns with a similar civil penalty provision under section 129 of the Biosecurity Act relating to interfering with biosecurity control notices. Table item 6 - Subsection 204(2) (penalty) 486. Under subsection 204(2) of the Biosecurity Act, a person is liable to a civil penalty if the person moves, deals with or interferes with a conveyance: • that has been secured in accordance with a direction given under subsection 198(1); or • in relation to which a direction relating to movement has been given under paragraph 202(1)(a); or • that has been moved under paragraph 202(1)(b); or • in relation to which a biosecurity control notice has been affixed under paragraph 203(1)(a) and none of the circumstances set out in paragraph 204(2)(b) or subsection 204(3) applies. Paragraph 204(2)(b) and subsection 204(3) provide for limited exceptions to the civil penalty provision where the person is authorised or permitted to engage in the conduct, or it is necessary to engage in that conduct to comply with another direction given under the Biosecurity Act. 86

487. Table item 6 would amend subsection 204(2) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 204(2) from 120 penalty units to 300 penalty units. 488. Section 204 ensures that biosecurity officers are able to carry out an assessment of the biosecurity risk associated with a conveyance. Moving, dealing with or interfering with a conveyance that has been secured, is the subject of a direction, has been moved or is subject to a biosecurity control notice, without a valid reason, impedes the ability of biosecurity officers to assess the level of biosecurity risk in relation to a conveyance. 489. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 204(2) also aligns with a similar civil penalty provision under section 130 of the Biosecurity Act relating to interfering with goods that are subject to biosecurity control notices. Table item 7 - Subsection 214(3) (penalty) 490. Subsection 214(1) of the Biosecurity Act allows a biosecurity officer to affix a notice to, or as near as reasonably practicable to, a conveyance in relation to which biosecurity measures have been required under Division 5 of Part 2 of Chapter 4 of the Biosecurity Act, or a regulation made for the purposes of section 212. Under subsection 214(3), a person is liable to a civil penalty if that person interferes with, removes or defaces a notice affixed under subsection 214(1) and none of the circumstances set out in paragraph 214(3)(c) or subsection 214(4) applies. Paragraph 214(3)(c) and subsection 214(4) provide for limited exceptions to the civil penalty provision, where the person is authorised or permitted to engage in the conduct, or it is necessary to engage in that conduct to comply with another direction given under the Biosecurity Act. 491. Table item 7 would amend subsection 214(3) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 214(3) from 120 penalty units to 300 penalty units. 492. Section 214 ensures that biosecurity officers are able to affix a notice to inform other persons that biosecurity measures are required in relation to a conveyance. Interfering with, removing or defacing a notice affixed under subsection 214(1), without a valid reason, may prevent other people from knowing that the conveyance is subject to biosecurity measures, and impedes the ability of biosecurity officers to ensure that biosecurity measures are carried out in an efficient and timely and suitable way to manage an unacceptable level of biosecurity risk associated with a conveyance. The proposed increases to the maximum civil penalty in subsections 215(7) and (8) reflect the seriousness of a person interfering with a biosecurity control notice without a valid reason and are intended to be proportionate to the likely harm that may result from a worse-case scenario and to adequately deter those considering jeopardising Australia's biosecurity status. 493. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 214(3) also aligns with a similar civil penalty provision under section 139 of the Biosecurity Act relating to interfering with biosecurity control notices. 87

Table items 8 to 14 - Subsections 215(2) to (8) (penalty) 494. Section 215 of the Biosecurity Act provides for a number of fault-based offences and civil penalty provisions in circumstances where the person in charge, the operator or the owner of an aircraft or vessel contravenes or does not comply with, a direction given under paragraph 206(2)(a), 207(2)(a) or 213(1)(a), (b) or (c) of the Biosecurity Act. These provisions allow a biosecurity officer to give directions: • Relating to movement of an aircraft or vessel that is subject to biosecurity control (paragraph 206(2)(a)); • Relating to movement of an exposed conveyance that is subject to biosecurity control (paragraph 207(2)(a)); • Requiring certain biosecurity measures to be carried out (paragraphs 213(1)(a), (b) and (c)). 495. Under subsection 215(2), a person in charge, operator or owner of an aircraft or vessel commits a fault-based offence in circumstances where they engage in conduct that contravenes a direction given under paragraph 206(2)(a), 207(2)(a) or 213(1)(a), (b) or (c). Table item 8 would amend subsection 215(2) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 496. Under subsection 215(3), a person in charge of an aircraft or vessel commits a fault- based offence in circumstances where the operator of the aircraft or vessel has been given a direction under paragraph 206(2)(a), 207(2)(a) or 213(1)(b) (other than a direction given under paragraph 213(1)(b) to arrange for destruction of the aircraft or vessel to be carried out) and the direction is not complied with. Table item 9 would amend subsection 215(3) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 497. Under subsection 215(4), the operator of an aircraft or vessel commits a fault-based offence in circumstances where the person in charge of the aircraft or vessel has been given a direction under paragraph 206(2)(a), 207(2)(a) or 213(1)(a) and the direction is not complied with. Table item 10 would amend subsection 215(4) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 498. Under subsection 215(5), the operator of an aircraft or vessel commits a fault-based offence in circumstances where the owner of the aircraft or vessel has been given a direction under paragraph 213(1)(c) and the direction is not complied with. Table item 11 would amend subsection 215(5) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 499. Under subsection 215(6), the owner of an aircraft or vessel commits a fault-based offence in circumstances where the operator of the aircraft or vessel has been given a direction under paragraph 213(1)(b) to arrange for the destruction of the aircraft or vessel to be carried out and the direction is not complied with. Table item 12 would amend subsection 215(6) to increase the maximum pecuniary penalty that can be 88

imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 500. Under subsection 215(7), the person in charge and the operator of the aircraft or vessel are each liable to a civil penalty if the person in charge or the operator has been given a direction under paragraph 206(2)(a), 207(2)(a) or 213(1)(a) or (b) (other than a direction under paragraph 213(1)(b) to arrange for destruction of the aircraft or vessel to be carried out) and the direction is not complied with. Table item 13 would amend subsection 215(7) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 215(7) from 120 penalty units to 300 penalty units. 501. Under subsection 215(8), the operator and the owner of an aircraft or vessel are each liable to a civil penalty if the operator or the owner has been given a direction under paragraph 213(1)(b) or (c) to arrange for destruction of the aircraft or vessel to be carried out and the direction is not complied with. Table item 14 would amend subsection 215(8) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 215(8) from 120 penalty units to 300 penalty units. 502. Section 215 ensures that both the person in charge and the operator of an aircraft or vessel, who are responsible for the movement and conduct of an aircraft or vessel, may be given a direction in relation to the aircraft or vessel by a biosecurity officer and be held liable if that direction is not complied with. 503. The proposed increases to the maximum pecuniary penalties for the fault-based offences in subsections 215(2) to (6) depart from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. The increased penalties for the fault-based offences reinforce the punitive and retributive objective of the current penalty regime while allowing a court a greater capacity to respond meaningfully and proportionally to the worst breaches of the law. Further details about the proposed increases to the maximum penalties are outlined in paragraphs [352]-[354] above. 504. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increases to the maximum civil penalties in subsections 215(7) and (8) also align with a similar civil penalty provision in section 140 of the Biosecurity Act relating to contravening directions to take biosecurity measures. Table items 15 and 16 - Subsections 216(3) and (4) (penalty) 505. Section 216 of the Biosecurity Act provides for a fault-based offence (subsection 216(3)) and civil penalty provision (subsection 216(4)) in circumstances where a person moves, deals with or interferes with a conveyance in relation to which a notice has been affixed under subsection 214(1) and none of the circumstances set out in paragraph 216(1)(c) or subsection 216(2) applies. Paragraph 216(1)(c) and subsection 216(2) provide for limited exceptions to the fault-based offence and civil penalty provision, where the person is authorised or permitted to engage in the conduct, or it is necessary 89

to engage in that conduct to comply with another direction given under the Biosecurity Act. 506. Table item 15 would amend subsection 216(3) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 507. Table item 16 would amend subsection 216(4) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 216(4) from 120 penalty units to 300 penalty units. 508. The purpose of affixing a biosecurity control notice to a conveyance is to alert people to the fact the conveyance is subject to biosecurity control. Section 216 ensures that biosecurity officers can conduct biosecurity measures to manage identified biosecurity risks associated with a conveyance without interference. Moving, dealing with, or interfering with a conveyance to which a notice has been affixed without proper authority impedes the ability of biosecurity officers to conduct appropriate biosecurity measures in relation to the conveyance. 509. The proposed increase to the maximum pecuniary penalty for the fault-based offence in subsection 216(3) departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalty does not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]-[354] above. 510. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 216(4) also aligns with a similar civil penalty provision in section 141 of the Biosecurity Act relating to interfering with goods in relation to which biosecurity measures have been required. Table items 17 and 18 - Subsections 217(4) and (5) (penalty) 511. Subsection 217(1) of the Biosecurity Act provides that the person in charge of a conveyance that is subject to biosecurity control may leave the conveyance unless a biosecurity officer has directed the person not to leave the conveyance. Under subsection 217(2), a biosecurity officer may direct a person in charge of the conveyance not to leave the conveyance for a specified period, not longer than 24 hours. Subsection 217(3) provides that a person given a direction under subsection 217(2) must comply with the direction. 512. Subsection 217(4) provides for a fault-based offence in circumstances where a person is given a direction under subsection 217(2) and the person engages in conduct that contravenes the direction. Table item 17 would amend subsection 217(4) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 513. Subsection 217(5) provides for a civil penalty provision in circumstances where a person contravenes subsection 217(3). Table item 18 would amend subsection 217(5) to increase the maximum civil penalty that a court may order a person who is an 90

individual to pay where that person is liable to a civil penalty under subsection 217(5) from 120 penalty units to 300 penalty units. 514. Section 217 ensures that the person in charge of the conveyance can be required to stay on the conveyance if the person is required to assist with the management of biosecurity risks. 515. The proposed increase to the maximum pecuniary penalty for the fault-based offence in subsection 217(4) departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Contraventions in relation to conveyances that present an unacceptable level of risk may have very significant consequences for Australia's biosecurity status. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]-[354] above. 516. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 217(5) also aligns with a similar civil penalty provision in section 140 of the Biosecurity Act relating to contravening directions. Table item 19 - Subsection 220(1) (penalty) 517. Under subsection 220(1) of the Biosecurity Act, the person in charge or the operator of an incoming aircraft or vessel that is subject to biosecurity control because of subsection 191(2) or (4), is liable to a civil penalty if the person does not ensure that each person (including a member of the crew) on board the aircraft or vessel is given information about biosecurity requirements under the laws of the Commonwealth. 518. Table item 19 would amend subsection 220(1) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 220(1) from 120 penalty units to 300 penalty units. 519. Section 220 ensures that every person on board a conveyance that is subject to biosecurity control is aware of Australia's biosecurity requirements and can comply with them when they enter Australian territory. 520. The proposed increase to the maximum civil penalty in section 220 is necessary to deter those considering jeopardising Australia's biosecurity status. Further details about the proposed increase to the maximum civil penalty are outlined in paragraphs [355]-[356] above. Table item 20 - Subsection 221(3) (penalty) 521. Subsection 221(1) of the Biosecurity Act provides that a person in charge of a vessel that is within Australian territory must ensure that the prescribed quarantine signal is displayed on the vessel in the circumstances and in the manner prescribed by the regulations. Subsection 221(3) provides for an offence of strict liability in circumstances where a person contravenes subsection 221(1). 91

522. Table item 20 would amend subsection 221(3) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the strict liability offence from 50 penalty units to 60 penalty units. 523. Section 221 ensures that a warning can be provided from vessels to indicate there may be a high level of biosecurity risk associated with the vessel, the people, or things on board. It is important that these signals are correctly displayed so that biosecurity officers are aware of the risk and can undertake measures to manage it to an acceptable level and other relevant persons can avoid unnecessarily interacting with that vessel. Quarantine signals are used worldwide to communicate the presence of human and animal disease and the person in charge of a vessel can reasonably be expected to know they are required to warn other parties of potential biosecurity risks on board. The higher penalty more adequately reflects the seriousness of failing to correctly display quarantine signals on a vessel, while also not exceeding the guidance set out in the Guide that strict liability offences should not exceed 60 penalty units. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [355]- [356] above. Table items 21 to 24 - Subsections 237(2) to (5) (penalty) 524. Section 237 of the Biosecurity Act provides for a number of fault-based offences and a civil penalty provision that apply in circumstances where an aircraft that is subject to biosecurity control lands at a landing place in Australian territory that is not a first point of entry for the aircraft and none of the circumstances set out in paragraphs 237(1)(a) or (b) apply. Paragraphs 237(1)(a) and (b) provide for limited exceptions where a permission has been given for the aircraft to land at that landing place, or a direction has been given requiring the aircraft to land at that landing place. 525. Subsection 237(2) provides for a fault-based offence that applies to the person in charge or the operator of the aircraft in circumstances where the person permits the aircraft (which is subject to biosecurity control) to land at a landing place in Australian territory that is not a first point of entry for the aircraft, and the aircraft is not permitted or directed to do so. Table item 21 would amend subsection 237(2) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 526. Subsection 237(3) provides for a fault-based offence that applies to the person in charge of the aircraft in circumstances where the operator of the aircraft permits the aircraft (which is subject to biosecurity control) to land at a landing place in Australian territory that is not a first point of entry for the aircraft, and the aircraft is not permitted or directed to do so. Table item 22 would amend subsection 237(3) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 527. Subsection 237(4) provides for a fault-based offence that applies to the operator of the aircraft in circumstances where the person in charge of the aircraft permits the aircraft (which is subject to biosecurity control) to land at a landing place in Australian territory that is not a first point of entry for the aircraft, and the aircraft is not permitted or directed to do so. Table item 23 would amend subsection 237(4) to increase the 92

maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 528. Under subsection 237(5), the person in charge and the operator of an aircraft are each liable to a civil penalty in circumstances where the aircraft (which is subject to biosecurity control) lands at a landing place in Australian territory that is not a first point of entry for the aircraft, and the aircraft is not permitted or directed to do so. The maximum civil penalty that a court may order a person who is an individual to pay would increase from 120 penalty units to 300 penalty units. 529. First points of entry for aircraft may be determined to receive specified aircraft, depending on the biosecurity risks associated with the aircraft and the facilities at the first point of entry to manage the biosecurity risks. Section 237 ensures that, in the event that a first point of entry is determined to receive specified aircraft, the first point of entry is not circumvented by landing the aircraft at an alternative location. Both the person in charge and the operator of an aircraft are responsible for the movement of the aircraft and should take active steps to understand and comply with the requirements under the Biosecurity Act, including those relating to first points of entry. Aircraft or goods arriving at a landing place that is not a first point of entry, and which does not have the capacity to manage the biosecurity risk, pose a threat that a disease or pest may enter, establish or spread in Australian territory. This could cause serious harm to Australia's human, plant and animal health, the environment and the economy. 530. The proposed increases to the maximum pecuniary penalties for the fault-based offences in subsections 237(2) to (4) depart from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increases to the maximum penalties are outlined in paragraphs [352]-[354] above. 531. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 237(5) is necessary to deter those considering jeopardising Australia's biosecurity status while also indicating the magnitude of likely harm arising from the relevant wrongdoing. Table items 25 to 28 - Subsections 238(2) to (5) (penalty) 532. Section 238 of the Biosecurity Act provides for a number of fault-based offences and a civil penalty provision that apply in circumstances where an aircraft that is subject to biosecurity control has landed at a first point of entry for that aircraft, there is a biosecurity entry point for the aircraft at the first point of entry and the aircraft is not brought to the biosecurity entry point as soon as practicable. 533. Subsection 238(2) provides for a fault-based offence that applies to the person in charge or the operator of the aircraft in circumstances where the person does not ensure that the aircraft (which has landed at a first point of entry and is subject to biosecurity control) is brought to a biosecurity entry point for the aircraft (if any) as soon as practicable. Table item 25 would amend subsection 238(2) to increase the maximum 93

pecuniary penalty that can be imposed when a court convicts an individual for the fault- based offence from 300 penalty units to 1,000 penalty units. 534. Subsection 238(3) provides for a fault-based offence that applies to the person in charge of the aircraft in circumstances where the operator of the aircraft does not ensure that the aircraft (which has landed at a first point of entry and is subject to biosecurity control) is brought to a biosecurity entry point for the aircraft (if any) as soon as practicable. Table item 26 would amend subsection 238(3) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault- based offence from 300 penalty units to 1,000 penalty units. 535. Subsection 238(4) provides for a fault-based offence that applies to the operator of the aircraft in circumstances where the person in charge of the aircraft does not ensure that the aircraft (which has landed at a first point of entry and is subject to biosecurity control) is brought to a biosecurity entry point for the aircraft (if any) as soon as practicable. Table item 27 would amend subsection 238(4) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault- based offence from 300 penalty units to 1,000 penalty units. 536. Under subsection 238(5), the person in charge and the operator of an aircraft are each liable to a civil penalty in circumstances where the aircraft (which has landed at a first point of entry and is subject to biosecurity control) is not brought to a biosecurity entry point for the aircraft (if any) as soon as practicable. Table item 28 would amend subsection 238(5) to increase the maximum civil penalty that a court may order a person who is an individual to pay from 120 penalty units to 300 penalty units. 537. Biosecurity entry points for aircraft are designated areas within a landing place that an aircraft must enter as soon as practicable upon arriving at a first point of entry. Section 238 ensures that aircraft and goods that arrive in Australian territory from overseas, are brought, as soon as practicable, to a specific location within the landing place that has the facilities available to assess any biosecurity risk and mange it to an acceptable level. Both the person in charge and the operator of an aircraft should take active steps to understand and comply with the requirements under the Biosecurity Act, including those relating to designated biosecurity entry points for first points of entry. 538. Failure to bring an aircraft to a biosecurity entry point as required under section 238 may prevent biosecurity officers from properly assessing and managing any biosecurity risk associated with the aircraft, potentially resulting in serious damage to plant and animal health, Australia's local industries, economy and the environment. 539. The proposed increases to the maximum pecuniary penalties for the fault-based offences in subsections 238(2) to (4) depart from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increases to the maximum penalties are outlined in paragraphs [352]-[354] above. 94

540. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 238(5) is necessary to deter those considering jeopardising Australia's biosecurity status. Table items 29 to 32 - Subsections 239(4) to (7) (penalty) 541. Section 239 of the Biosecurity Act provides for a number of fault-based offences and a civil penalty provision in relation to permission for an aircraft to land at a landing place that is not a first point of entry for the aircraft. 542. Under subsection 239(1), the person in charge or the operator of an aircraft that intends to land at a landing place in Australian territory, may, in writing, request permission from the Director of Biosecurity or the Director of Human Biosecurity for the aircraft to land at a specified landing place in Australian territory that is not a first point of entry for the aircraft. The Director of Biosecurity or the Director of Human Biosecurity may, by written notice, give permission for the aircraft to land at a landing place specified in the request (subsection 239(2)) and the permission may be subject to any conditions specified in the notice (subsection 239(3)). 543. Subsection 239(4) provides for a fault-based offence that applies to the person in charge or the operator of the aircraft in circumstances where the person is given a permission under subsection 239(2) which is subject to conditions and the person engages in conduct that contravenes the conditions. Table item 29 would amend subsection 239(4) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 544. Subsection 239(5) provides for a fault-based offence that applies to the person in charge of the aircraft in circumstances where the operator of the aircraft has been given a permission under subsection 239(2) which is subject to conditions and the conditions are not complied with. Table item 30 would amend subsection 239(5) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 545. Subsection 239(6) provides for a fault-based offence that applies to the operator of the aircraft in circumstances where the person in charge of the aircraft has been given a permission under subsection 239(2) which is subject to conditions and the conditions are not complied with. Table item 31 would amend subsection 239(6) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 546. Subsection 239(7) provides that the person in charge and the operator of an aircraft are each liable to a civil penalty in circumstances where the person in charge or the operator of the aircraft has been given a permission under subsection 239(2) which is subject to conditions and the conditions are not complied with. Table item 32 would amend subsection 239(7) to increase the maximum civil penalty that a court may order a person who is an individual to pay from 120 penalty units to 300 penalty units. 547. Section 239 allows flexibility for aircraft to land at a landing place that is not the first point of entry, provided that any conditions specified in the permission are complied with. The flexibility for industry provided by section 239 must be balanced by the need 95

to ensure that biosecurity risks are appropriately assessed and managed. A person in charge or the operator of an aircraft should take active steps to understand and comply with requirements in the Biosecurity Act. Where the person has specifically requested permission to land at a landing place that is not ordinarily a first point of entry for the particular aircraft, and received written notice of the relevant Director's decision, they should take reasonable steps to understand the permission, including the conditions attached to the permission. In accordance with subsection 239(2), any permission must be given by written notice. 548. The ability to specify conditions in the notice allows the Director of Biosecurity or the Director of Human Biosecurity to maintain control over how a specific biosecurity risk is dealt with and ensure it is managed to an acceptable level. Accordingly, when a person engages in conduct that contravenes the conditions of a permission, they risk the potential entry and spread of pests and diseases in Australian territory. The person should expect there to be significant legal consequences because of the serious biosecurity risks likely to be posed by their conduct. 549. The proposed increases to the maximum pecuniary penalties for the fault-based offences in subsections 239(4) to (6) depart from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct and signify the magnitude of the likely harm in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increases to the maximum penalties are outlined in paragraphs [352]-[354] above. 550. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 239(7) also aligns with similar civil penalty provisions in subsections 186(2) and 187(1) of the Biosecurity Act, which relate to contravening conditions that apply to conditionally non-prohibited goods and the conditions of a permit. Table items 33 and 34 - Subsections 243(2) and (3) (penalty) 551. Section 243 of the Biosecurity Act provides for a fault-based offence and a civil penalty provision which apply in circumstances where a person contravenes or does not comply with a direction that the person has been given under a provision of Division 2 of Part 4 of Chapter 4 of the Biosecurity Act. Under Division 2 of Part 4 of Chapter 4, the following directions may be given to a person in charge or the operator of an aircraft: • To require the aircraft to land, or not to land, at a specified landing place in Australian territory (section 240); • To require the aircraft not to land at any landing place in Australian territory (section 241); and • To require the aircraft to land, or not to land, at a specified landing place in Australian territory, where the direction is necessary to manage human health risks (section 242). 552. Subsection 243(2) provides for a fault-based offence in circumstances where a person engages in conduct that contravenes a direction given under Division 2 of Part 4 of Chapter 4 of the Biosecurity Act. Table item 33 would amend subsection 243(2) to 96

increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 553. Subsection 243(3) provides that a person is liable to a civil penalty if the person does not comply with a direction given under Division 2 of Part 4 of Chapter 4 of the Biosecurity Act. Table item 34 would amend subsection 243(3) to increase the maximum civil penalty that a court may order a person who is an individual to pay from 120 penalty units to 300 penalty units. 554. Regulated entities, such as the person in charge or operator of an aircraft, are well placed to know that a direction has been given and how to comply with the direction. Section 243 ensures that persons who do not comply with, or who contravene, such directions can be held responsible. These directions ensure that the biosecurity risk of aircraft can be appropriately assessed and managed at an appropriate first point of entry. If a person does not comply with these directions, this may result in an inability to manage the unacceptable level of biosecurity risk posed by the aircraft in an efficient and timely manner, potentially exacerbating the risk. 555. The proposed increase to the maximum pecuniary penalty for the fault-based offence in subsection 243(2) departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalty does not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]-[354] above. 556. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 243(3) also aligns with similar civil penalty provisions under sections 124 and 128 of the Biosecurity Act relating to a failure to comply with directions. Table items 35 to 38 - Subsections 245(2) to (5) (penalty) 557. Section 245 of the Biosecurity Act provides for a number of fault-based offences and a civil penalty provision that apply in circumstances where a vessel that is subject to biosecurity control is moored at a port in Australian territory that is not a first point of entry for the vessel and none of the circumstances set out in paragraph 245(1)(a) or (b) apply. Paragraphs 245(1)(a) and (b) provide for limited exceptions to the fault-based offence and civil penalty provision where a permission has been given for the vessel to be moored at that port, or a direction has been given requiring the vessel to be moored at that port. 558. Subsection 245(2) provides for a fault-based offence that applies to the person in charge or the operator of the vessel in circumstances where the person permits the vessel (which is subject to biosecurity control) to be moored at a port in Australian territory that is not a first point of entry for the vessel, and the vessel is not permitted or directed to do so. Table item 35 would amend subsection 245(2) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual of the fault- based offence from 300 penalty units to 1,000 penalty units. 97

559. Subsection 245(3) provides for a fault-based offence that applies to the person in charge of the vessel in circumstances where the operator of the vessel permits the vessel (which is subject to biosecurity control) to be moored at a port in Australian territory that is not a first point of entry for the vessel, and the vessel is not permitted or directed to do so. Table item 36 would amend subsection 245(3) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual of the fault- based offence from 300 penalty units to 1,000 penalty units. 560. Subsection 245(4) provides for a fault-based offence that applies to the operator of the vessel in circumstances where the person in charge of the vessel permits the vessel (which is subject to biosecurity control) to be moored at a port in Australian territory that is not a first point of entry for the vessel, and the vessel is not permitted or directed to do so. Table item 37 would amend subsection 245(4) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual of the fault- based offence from 300 penalty units to 1,000 penalty units. 561. Subsection 245(5) provides that the person in charge and the operator of a vessel are each liable to a civil penalty in circumstances where the vessel (which is subject to biosecurity control) is moored at a port in Australian territory that is not a first point of entry for the vessel, and the vessel is not permitted or directed to do so. Table item 38 would amend subsection 245(5) to increase the maximum civil penalty that a court may order a person who is an individual to pay from 120 penalty units to 300 penalty units. 562. First points of entry for vessels may be determined to receive specified vessels, depending on the biosecurity risks associated with the vessel and the facilities at the first point of entry to manage the biosecurity risks. Section 245 ensures that, in the event that a first point of entry is determined to receive specified vessels, the first point of entry is not circumvented by mooring the vessel at an alternative location. Non-compliance with section 245 may result in an inability to manage biosecurity risks associated with the vessel. Vessels arriving at a port that is not a first point of entry, and which does not have the capacity to manage the biosecurity risk, pose a threat that a disease or pest may enter, establish or spread and cause harm to Australia's human, plant and animal health, the environment and the economy. Both the person in charge and the operator of a vessel are responsible for the movement of the vessel and should take active steps to understand and comply with the requirements under the Biosecurity Act, including those relating to first points of entry. 563. The proposed increases to the maximum pecuniary penalties for the fault-based offences in subsections 245(2) to (4) depart from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increases to the maximum penalties are outlined in paragraphs [352]-[354] above. 564. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 245(5) is necessary to deter those considering jeopardising Australia's biosecurity status. 98

Table items 39 to 42 - Subsections 246(2) to (5) (penalty) 565. Section 246 of the Biosecurity Act provides for a number of fault-based offences and a civil penalty provision that apply in circumstances where a vessel that is subject to biosecurity control has been moored at a first point of entry for that vessel, there is a biosecurity entry point for the vessel at the first point of entry and the vessel is not brought to the biosecurity entry point as soon as practicable. 566. Subsection 246(2) provides for a fault-based offence that applies to the person in charge or the operator of the vessel in circumstances where the person does not ensure that the vessel (which has been moored at a first point of entry and is subject to biosecurity control) is brought to a biosecurity entry point for the vessel (if any) as soon as practicable. Table item 39 would amend subsection 246(2) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual of the fault- based offence from 300 penalty units to 1,000 penalty units. 567. Subsection 246(3) provides for a fault-based offence that applies to the person in charge of the vessel in circumstances where the operator of the vessel does not ensure that the vessel (which has been moored at a first point of entry and is subject to biosecurity control) is brought to a biosecurity entry point for the vessel (if any) as soon as practicable. Table item 40 would amend subsection 246(3) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual of the fault- based offence from 300 penalty units to 1,000 penalty units. 568. Subsection 246(4) provides for a fault-based offence that applies to the operator of the vessel in circumstances where the person in charge of the vessel does not ensure that the vessel (which has been moored at a first point of entry and is subject to biosecurity control) is brought to a biosecurity entry point for the vessel (if any) as soon as practicable. Table item 41 would amend subsection 246(4) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual of the fault- based offence from 300 penalty units to 1,000 penalty units. 569. Subsection 246(5) provides that the person in charge and the operator of a vessel are each liable to a civil penalty in circumstances where the vessel (which has been moored at a first point of entry and is subject to biosecurity control) is not brought to a biosecurity entry point for the vessel (if any) as soon as practicable. Table item 42 would amend subsection 246(5) to increase the maximum civil penalty that a court may order a person who is an individual to pay from 120 penalty units to 300 penalty units. 570. Biosecurity entry points for vessels are designated areas within a port that a vessel must enter as soon as practicable upon arriving at a first point of entry. Section 246 ensures that vessel and goods that arrive in Australian territory from overseas, are brought, as soon as practicable, to a specific location within the port that has the facilities available to assess any biosecurity risk and mange it to an acceptable level. Both the person in charge and the operator of a vessel should take active steps to understand and comply with the requirements under the Biosecurity Act, including those relating to designated biosecurity entry points for first points of entry. 571. Failure to bring a vessel to a biosecurity entry point as required under section 246 may prevent biosecurity officers from properly assessing and managing any biosecurity risk 99

associated with the vessel, potentially resulting in serious damage to plant and animal health, Australia's local industries, economy and the environment. 572. The proposed increases to the maximum pecuniary penalties for the fault-based offences in subsections 246(2) to (4) depart from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increases to the maximum penalties are outlined in paragraphs [352]-[354] above. 573. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 246(5) is necessary to reflect the potential consequences of failing to bring the vessel to a biosecurity entry point and deter those considering jeopardising Australia's biosecurity status. Table items 43 to 46 - Subsections 247(4) to (7) (penalty) 574. Section 247 of the Biosecurity Act provides for a number of fault-based offences and a civil penalty provision in relation to permission for a vessel to be moored at a port that is not a first point of entry for the vessel. 575. Under subsection 247(1), the person in charge or the operator of a vessel that intends to be moored at a port in Australian territory, may, in writing, request permission from the Director of Biosecurity or the Director of Human Biosecurity for the vessel to be moored at a specified port in Australian territory that is not a first point of entry for the vessel. The Director of Biosecurity or the Director of Human Biosecurity may, by written notice, give permission for the vessel to be moored at a port specified in the request (subsection 247(2)) and the permission may be subject to any conditions specified in the notice (subsection 247(3)). 576. Subsection 247(4) provides for a fault-based offence that applies to the person in charge or the operator of the vessel in circumstances where the person is given a permission under subsection 247(2) which is subject to conditions and the person engages in conduct that contravenes the conditions. Table item 43 would amend subsection 247(4) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 577. Subsection 247(5) provides for a fault-based offence that applies to the person in charge of the vessel in circumstances where the operator of the vessel has been given a permission under subsection 247(2) which is subject to conditions and the conditions are not complied with. Table item 44 would amend subsection 247(5) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 578. Subsection 247(6) provides for a fault-based offence that applies to the operator of the vessel in circumstances where the person in charge of the vessel has been given a permission under subsection 247(2) which is subject to conditions and the conditions are not complied with. Table item 45 would amend subsection 247(6) to increase the 100

maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 579. Subsection 247(7) provides that the person in charge and the operator of a vessel are each liable to a civil penalty in circumstances where the person in charge or the operator of the vessel has been given a permission under subsection 247(2) which is subject to conditions and the conditions are not complied with. Table item 46 would amend subsection 247(7) to increase the maximum civil penalty that a court may order a person who is an individual to pay from 120 penalty units to 300 penalty units. 580. Section 247 allows flexibility for vessels to be moored at a port that is not the first point of entry, provided that any conditions specified in the permission are complied with. The flexibility for industry provided by section 247 must be balanced by the need to ensure that biosecurity risks are appropriately assessed and managed. A person in charge or the operator of a vessel should take active steps to understand and comply with requirements in the Biosecurity Act. Where the person has specifically requested permission to be moored at a port that is not ordinarily a first point of entry for the particular vessel, and received written notice of the relevant Director's decision, they should take reasonable steps to understand the permission, including the conditions attached to the permission. In accordance with subsection 239(2), any permission must be given by written notice. 581. The ability to specify conditions in the notice allows the Director of Biosecurity or the Director of Human Biosecurity to maintain control over how a specific biosecurity risk is dealt with and ensure it is managed to an acceptable level. Accordingly, when a person engages in conduct that contravenes the conditions of a permission, they risk the potential entry and spread of pests and diseases in Australian territory. The person should expect there to be significant legal consequences because of the serious biosecurity risks likely to be posed by their conduct. 582. The proposed increases to the maximum pecuniary penalties for the fault-based offences in subsections 247(4) to (6) depart from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increases to the maximum penalties are outlined in paragraphs [352]-[354] above. 583. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 247(7) also aligns with similar civil penalty provisions in subsections 186(2) and 187(1) of the Biosecurity Act, which relate to contravening conditions that apply to conditionally non-prohibited goods and the conditions of a permit. Table items 47 and 48 - Subsections 251(2) and (3) (penalty) 584. Section 251 of the Biosecurity Act provides for a fault-based offence and a civil penalty provision which apply in circumstances where a person contravenes or does not comply with a direction that the person has been given under a provision of Division 3 of Part 4 101

of Chapter 4 of the Biosecurity Act. Under Division 3 of Part 4 of Chapter 4, the following directions may be given to a person in charge or the operator of a vessel: • To require the vessel to be moored, or not to be moored, at a specified port in Australian territory (section 248); • To require the vessel not to be moored at any port in Australian territory (section 249); and • To require the vessel to be moored, or not to be moored, at a specified port in Australian territory, where the direction is necessary to manage human health risks (section 250). 585. Subsection 251(2) provides for a fault-based offence in circumstances where a person engages in conduct that contravenes a direction given under Division 3 of Part 4 of Chapter 4 of the Biosecurity Act. Table item 47 would amend subsection 251(2) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 586. Subsection 251(3) provides that a person is liable to a civil penalty if the person does not comply with a direction given under Division 3 of Part 4 of Chapter 4 of the Biosecurity Act. Table item 48 would amend subsection 251(3) to increase the maximum civil penalty that a court may order a person who is an individual to pay from 120 penalty units to 300 penalty units. 587. Regulated entities, such as the person in charge or operator of a vessel, are well placed to know that a direction has been given and how to comply with the direction. Section 251 ensures that persons who do not comply with, or who contravene, such directions can be held responsible. These directions ensure that the biosecurity risk of vessels can be appropriately assessed and managed at an appropriate first point of entry. 588. The proposed increase to the maximum pecuniary penalty for the fault-based offence in subsection 251(2) departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalty does not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]-[354] above. 589. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 251(3) also aligns with similar civil penalty provisions under sections 124 and 128 of the Biosecurity Act relating to a failure to comply with directions. Table items 49 and 50 - Subsections 252A(3) and (4) (penalty) 590. Section 252A provides a fault-based offence and a civil penalty provision in relation to a direction given to an operator of a first point of entry. Under subsection 252A(1), the Director of Human Biosecurity or a chief human biosecurity officer for a State or Territory may give an operator of a first point of entry a direction to carry out specified activities within the area of a first point of entry to control a vector if the Director or chief human biosecurity officer has reasonable grounds to believe that carrying out 102

those activities in that area is necessary to ensure that the vector has not spread into, or is not likely to become established in, the area. 591. Subsection 252A(3) provides for a fault-based offence in circumstances where a person fails to comply with a direction given under subsection 252A(1). Table item 49 would amend subsection 252A(3) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units. 592. Subsection 252A(4) provides that a person is liable to a civil penalty if the person does not comply with a direction given under subsection 252A(1). Table item 50 would amend subsection 252A(4) to increase the maximum civil penalty that a court may order a person who is an individual to pay from 120 penalty units to 300 penalty units. 593. Section 252A allows for the management of vectors that have the potential to spread listed human diseases or other human diseases. This ensures that the vector can be destroyed and the potential risk to human health by the vector appropriately managed. Failure to comply with a direction under section 252A poses a serious risk that the vector will spread into, or become established in, the area of a first point of entry, thereby risking Australia's biosecurity status. 594. The proposed increase to the maximum pecuniary penalty for the fault-based offence in subsection 252A(3) departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalty does not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]-[354] above. 595. In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 252A(4) also aligns with similar civil penalty provisions under sections 124 and 128 of the Biosecurity Act relating to a failure to comply with directions. Item 4 Application provisions--conveyances entering Australian territory etc. 596. This item would provide that the amendments to the maximum pecuniary penalties made by table items 1 to 20 in item 3 of this Schedule, apply in relation to specified circumstances that occur on or after the commencement of this item. This would make clear that these amendments are intended to apply prospectively. 597. Subitem 4(1) would provide that the amendment of subsection 198(2) of the Biosecurity Act, proposed by table item 1 in item 3 of this Schedule, applies in relation to a direction that is given on or after the commencement of this item. This would make clear that the amendment in table item 1 in item 3 is proposed to have prospective effect. 598. Subitem 4(2) would provide that the amendments of subsections 200(2) and 201(3) of the Biosecurity Act, proposed by table items 2 and 3 in item 3 of this Schedule, apply in relation to a requirement made on or after the commencement of this item. This would 103

make clear that the amendments in table items 2 and 3 in item 3 are proposed to have prospective effect. 599. Subitem 4(3) would provide that the amendment of subsection 202(2) of the Biosecurity Act, proposed by table item 4 in item 3 of this Schedule, applies in relation to a direction that is given on or after the commencement of this item. This would make clear that the amendment in table item 4 in item 3 is proposed to have prospective effect. 600. Subitem 4(4) would provide that the amendment of subsection 203(2) of the Biosecurity Act, proposed by table item 5 in item 3 of this Schedule, applies in relation to a biosecurity control notice that is affixed on or after the commencement of this item. This would make clear that the amendment in table item 5 in item 3 is proposed to have prospective effect. 601. Subitem 4(5) would provide that the amendment of subsection 204(2) of the Biosecurity Act, proposed by table item 6 in item 3 of this Schedule, applies in relation to a conveyance: • that has been secured in accordance with a direction given under subsection 198(1) of the Biosecurity Act on or after the commencement of this item; or • in relation to which a direction relating to movement has been given under paragraph 202(1)(a) of the Biosecurity Act on or after the commencement of this item; or • that has been moved under paragraph 202(1)(b) of the Biosecurity Act on or after the commencement of this item; or • in relation to which a biosecurity control notice has been affixed under paragraph 203(1)(a) of the Biosecurity Act on or after the commencement of this item. This would make clear that the amendment in table item 6 in item 3 is proposed to have prospective effect. 602. Subitem 4(6) would provide that the amendment of subsection 214(3) of the Biosecurity Act, proposed by table item 7 in item 3 of this Schedule, applies in relation to a notice that is affixed on or after the commencement of this item. This would make clear that the amendment in table item 7 in item 3 is proposed to have prospective effect. 603. Subitem 4(7) would provide that the amendments of section 215 of the Biosecurity Act, proposed by table items 8 to 14 in item 3 of this Schedule, apply in relation to a direction that is given on or after the commencement of this item. This would make clear that the amendments in table items 8 to 14 in item 3 are proposed to have prospective effect. 604. Subitem 4(8) would provide that the amendments of subsections 216(3) and (4) of the Biosecurity Act, proposed by table items 15 and 16 in item 3 of this Schedule, apply in relation to a notice that is affixed on or after the commencement of this item. This 104

would make clear that the amendments in table items 15 and 16 in item 3 are proposed to have prospective effect. 605. Subitem 4(9) would provide that the amendments of subsections 217(4) and (5) of the Biosecurity Act, proposed by table items 17 and 18 in item 3 of this Schedule, apply in relation to a direction that is given on or after the commencement of this item. This would make clear that the amendments in table items 17 and 18 in item 3 are proposed to have prospective effect. 606. Subitem 4(10) would provide that the amendment of subsection 220(1) of the Biosecurity Act, proposed by table item 19 in item 3 of this Schedule, applies in relation to an incoming aircraft or vessel that becomes subject to biosecurity control on or after the commencement of this item. This would make clear that the amendment in table item 19 in item 3 is proposed to have prospective effect. 607. Subitem 4(11) would provide that the amendment of subsection 221(3) of the Biosecurity Act, proposed by table item 20 in item 3 of this Schedule, applies in relation to a vessel that enters Australian territory on or after the commencement of this item. This would make clear that the amendment in table item 20 in item 3 is proposed to have prospective effect. Item 5 Application provisions--entry points for incoming aircraft and vessels 608. This item would provide that the amendments to the maximum pecuniary penalties made by table items 21 to 50 in item 3 of this Schedule, apply in relation to specified circumstances that occur on or after the commencement of this item. This would make clear that these amendments are intended to apply prospectively. 609. Subitem 5(1) would provide that the amendments of sections 237 and 238 of the Biosecurity Act, proposed by table items 21 to 28 in item 3 of this Schedule, apply in relation to an aircraft that becomes subject to biosecurity control on or after the commencement of this item. This would make clear that the amendments in table items 21 to 28 in item 3 are proposed to have prospective effect. 610. Subitem 5(2) would provide that the amendments of section 239 of the Biosecurity Act, proposed by table items 29 to 32 in item 3 of this Schedule, apply in relation to a permission that is given on or after the commencement of this item. This would make clear that the amendments in table items 29 to 32 in item 3 are proposed to have prospective effect. 611. Subitem 5(3) would provide that the amendments of subsections 243(2) and (3) of the Biosecurity Act, proposed by table items 33 and 34 in item 3 of this Schedule, apply in relation to a direction that is given on or after the commencement of this item. This would make clear that the amendments in table items 33 and 34 in item 3 are proposed to have prospective effect. 612. Subitem 5(4) would provide that the amendments of sections 245 and 246 of the Biosecurity Act, proposed by table items 34 to 42 in item 3 of this Schedule, apply in relation to a vessel that becomes subject to biosecurity control on or after the 105

commencement of this item. This would make clear that the amendments table in items 34 to 42 in item 3 are proposed to have prospective effect. 613. Subitem 5(5) would provide that the amendments of section 247 of the Biosecurity Act, proposed by table items 43 to 46 in item 3 of this Schedule, apply in relation to a permission that is given on or after the commencement of this item. This would make clear that the amendments in table items 43 to 46 in item 3 are proposed to have prospective effect. 614. Subitem 5(6) would provide that the amendments of subsections 251(2) and (3) and 252A(3) and (4) of the Biosecurity Act, proposed by table items 47 to 50 in item 3 of this Schedule, apply in relation to a direction that is given on or after the commencement of this item. This would make clear that the amendments in table items 47 to 50 in item 3 are proposed to have prospective effect. 106

SCHEDULE 5--RISK ASSESSMENT Background 615. Schedule 5 to the Bill would amend a number of provisions in the Biosecurity Act in relation to the conduct of risk assessments. A risk assessment is conducted for particular goods or class of goods to ensure the biosecurity risk associated with the goods or class of goods is appropriately managed for the purposes of making a determination under subsection 173(1), 174(1) and 182(1), or for deciding to grant a permit under subsection 179(1). The Appropriate Level of Protection (ALOP) for Australia, which aims to reduce biosecurity risks to a very low level, but not to zero, is applied when conducting a risk assessment. 616. The amendments proposed by this Schedule seek to increase transparency about the process by which risk assessments are conducted for the purposes of these determinations or decisions to grant permits made under subsection 179(1). The amendments would identify the matters that the decision-makers must be satisfied of before making such a determination or decision, as well as setting out the considerations that the decision-makers must or may consider before making such a determination or decision. This would provide greater certainty and clarity to stakeholders about the process by which risk assessments are conducted, thereby enhancing good public administration. 617. Schedule 5 to the Bill would not alter the requirement that ALOP be applied in conducting a risk assessment, consistent with Australia's international obligations under the World Trade Organization Agreement on the Application of Sanitary and Phytosanitary Measures 1994. Similarly, the amendments proposed would not change the role of the Director of Biosecurity and Director of Human Biosecurity as decision- makers for these determinations and permits. 618. This Schedule would commence on the day after the proposed Act receives the Royal Assent. The amendments made by this Schedule would not have effect until that day. Biosecurity Act 2015 Item 1 Section 5 (note 2) 619. Section 5 of the Biosecurity Act defines the Appropriate Level of Protection (ALOP) for Australia as a high level of sanitary and phytosanitary protection aimed at reducing biosecurity risks to a very low level, but not to zero. 620. Note 2 following section 5 currently notifies the reader that the ALOP must be applied in conducting, among other things, a risk assessment for the purposes of deciding whether particular goods, or a particular class of goods, can be brought or imported into Australian territory (referring the reader to subsections 173(4), 174(3), 179(3) and 182(4) of the Biosecurity Act). 621. This item would amend note 2 in section 5 to omit the reference to subsection 179(3) and substitute this with a reference to subsection 179(1A). This amendment would be consequential to the amendments proposed by items 6 and 8 of this Schedule. 107

Item 2 Section 9 622. Section 9 of the Biosecurity Act provides definitions for the Biosecurity Act. This item would insert a new definition of biosecurity worker. This new definition would provide that biosecurity worker has the meaning given by new section 14A. This would be consequential to the insertion of new section 14A proposed by item 3 of this Schedule. Item 3 After section 14 623. This item would insert new section 14A after section 14 of the Biosecurity Act. Section 14A would provide for the definition of biosecurity worker. 624. New subsection 14A(1) would provide that a biosecurity worker is: • An APS employee in the Agriculture Department or Health Department (new paragraph 14A(1)(a)); or • A person who is an employee of an Agency (within the meaning of the Public Service Act 1999) and whose services are made available to the Agriculture Department or Health Department (new paragraph 14A(1)(b)); or • A person who is engaged as a consultant or contractor to perform services for the Agriculture Department or Health Department and is specified in a determination under subsection 14A(2) (new paragraph 14A(1)(c)); or • A person who is engaged or employed by a person to whom new paragraph 14A(1)(c) applies, is performing services for the Agriculture Department or Health Department in connection with that engagement or employment and is specified in a determination under subsection 14A(3) (new paragraph 14A(1)(d)). 625. New subsection 14A(2) would provide that the Director of Biosecurity or the Director of Human Biosecurity may, by written determination, specify a person for the purposes of new subparagraph 14A(1)(c)(ii). New subsection 14A(3) would provide that the Director of Biosecurity or the Director of Human Biosecurity may also, by written determination, specify a person for the purposes of subparagraph 14A(1)(d)(iii). New subsection 14A(4) would provide that a determination under new subsections 14A(2) or (3) is not a legislative instrument. 626. The intention is that a biosecurity worker who conducts a risk assessment under new paragraphs 173(4)(a), 174(3)(a), 179(1A)(a) and 182(4)(a) would do so with specialised knowledge and skills that would enable them to make an accurate scientific assessment of the relevant biosecurity risks posed by particular goods or a class of goods. The sheer volume of the different goods or different classes of goods that may be the subject of a risk assessment means that, inevitably, there will be differences in the particular training, qualifications and expertise that is necessary to conduct each risk assessment. However, through appropriate knowledge-sharing and capacity building within the Agriculture Department and Health Department, biosecurity workers would be adequately supported in the conduct of the risk assessments. 108

Item 4 Subsection 173(4) 627. Section 173 of the Biosecurity Act provides for prohibited goods. Subsection 173(1) of the Biosecurity Act allows the Director of Biosecurity and the Director of Human Biosecurity to jointly determine that specified goods, or a specified class of goods, must not be brought or imported into Australian territory. Under subsection 173(2), goods specified in a determination in force under subsection 173(1) or goods included in a class of goods specified in a determination in force under subsection 173(1) are prohibited goods. 628. Subsection 173(4) currently provides that the Director of Biosecurity and the Director of Human Biosecurity must apply the ALOP for Australia in conducting a risk assessment for the purpose of deciding whether to make a determination under subsection 173(1) specifying particular goods or a particular class of goods. 629. This item would repeal and substitute subsection 173(4). Amended subsection 173(4) would provide that before a determination under subsection 173(1) is made: • A risk assessment must be conducted by a biosecurity worker in relation to the making of that determination; and • The Director of Biosecurity must be satisfied that the ALOP for Australia was applied in the conduct of the risk assessment, must consider the risk assessment and may also consider any other matters that the Director of Biosecurity considers relevant; and • The Director of Human Biosecurity must be satisfied that the ALOP for Australia was applied in the conduct of the risk assessment, must consider the risk assessment and may also consider any other matters that the Director of Human Biosecurity considers relevant. 630. The intention of new subsection 173(4) is to clarify the process by which risk assessments are conducted for the purposes of the Director of Biosecurity and Director of Human Biosecurity making a determination under subsection 173(1). This increases transparency about the process by clearly identifying the matters that the decision- makers must be satisfied of, as well as the considerations that the decision-makers must or may consider before making such a determination. This amendment would not create or change classes of goods listed in a determination made under subsection 173(1). Item 5 Subsection 174(3) 631. Section 174 of the Biosecurity Act provides for conditionally non-prohibited goods. Subsection 174(1) allows the Director of Biosecurity and the Director of Human Biosecurity to jointly determine that specified classes of goods must not be brought or imported into Australian territory unless specified conditions (including conditions for administrative purposes) are complied with. Under subsection 174(2), goods included in a class of goods specified in a determination in force under subsection 174(1) are conditionally non-prohibited goods. 632. Subsection 174(3) currently provides that the Director of Biosecurity and the Director of Human Biosecurity must apply the ALOP for Australia in conducting a risk 109

assessment for the purpose of deciding whether to make a determination under subsection 174(1) specifying a particular class of goods. 633. This item would repeal and substitute subsection 174(3). Amended subsection 174(3) would provide that before a determination under subsection 174(1) is made: • A risk assessment must be conducted by a biosecurity worker in relation to the making of that determination; and • The Director of Biosecurity must be satisfied that the ALOP for Australia was applied in the conduct of the risk assessment, must consider the risk assessment and may also consider any other matters that the Director of Biosecurity considers relevant; and • The Director of Human Biosecurity must be satisfied that the ALOP for Australia was applied in the conduct of the risk assessment, must consider the risk assessment and may also consider any other matters that the Director of Human Biosecurity considers relevant. 634. The intention of new subsection 174(3) is to clarify the process by which risk assessments are conducted for the purposes of the Director of Biosecurity and Director of Human Biosecurity making a determination under subsection 174(1). This increases transparency about the process, by clearly identifying the matters that the decision- makers must be satisfied of, as well as the considerations that the decision-makers must or may consider before making such a determination. This amendment would not create or change classes of goods listed in a determination made under subsection 174(1) or the conditions that are imposed on conditionally non-prohibited goods. Item 6 After subsection 179(1) 635. Section 177 of the Biosecurity Act allows a person to apply to the Director of Biosecurity for a permit authorising the person, or a person acting on behalf of the person, to bring or import particular goods into Australian territory. Subsection 179(1) allows the Director of Biosecurity to grant a permit where a person has made an application under section 177. 636. This item would amend the Biosecurity Act by inserting new subsection 179(1A) after subsection 179(1). New subsection 179(1A) would require that, before a permit in relation to the goods is granted, a risk assessment is conducted in relation to the goods by a biosecurity worker, and the Director of Biosecurity is satisfied that the ALOP for Australia was applied in the conduct of the risk assessment. 637. The intention of new subsection 179(1A) is to clarify the process by which risk assessments are conducted for the purposes of the Director of Biosecurity granting a permit in relation to goods under subsection 179(1). This increases transparency about the process, by clearly identifying the matters that the Director of Biosecurity must be satisfied of before granting such a permit. 638. A decision of the Director of Biosecurity under subsection 179(1) to refuse to grant a permit is a reviewable decision under subsection 574(1) of the Biosecurity Act. The amendment proposed in this item does not change this position. A person who applies 110

for a permit under section 177 may seek to review a decision to refuse to grant that permit. Item 7 Before paragraph 179(2)(a) 639. As noted above, section 177 of the Biosecurity Act allows a person to apply to the Director of Biosecurity for a permit authorising the person, or a person acting on behalf of the person, to bring or import particular goods into Australian territory. Subsection 179(1) allows the Director of Biosecurity to grant a permit where a person has made an application under section 177. Subsection 179(2) of the Biosecurity Act provides the matters that the Director of Biosecurity must consider in deciding whether to grant a permit under subsection 179(1). 640. This item would amend the Biosecurity Act by inserting new paragraph 179(2)(aa) before paragraph 179(2)(a). New paragraph 179(2)(aa) would provide that the risk assessment that was conducted in relation to the goods, is a matter that the Director of Biosecurity must consider in deciding whether to grant the permit. 641. The intention of new subsection 179(1A) is to clarify the process by which risk assessments are conducted for the purposes of the Director of Biosecurity granting a permit in relation to goods under subsection 179(1). This increases transparency about the process, by clearly identifying the matters that the Director of Biosecurity must consider in deciding whether to grant such a permit. 642. A decision of the Director of Biosecurity under subsection 179(1) to refuse to grant a permit is a reviewable decision under subsection 574(1) of the Biosecurity Act. The amendment proposed in this item does not change this position. A person who applies for a permit under section 177 may seek to review a decision to refuse to grant that permit. Item 8 Subsection 179(3) 643. Subsection 179(3) of the Biosecurity Act currently provides that the Director of Biosecurity must apply the ALOP for Australia in conducting a risk assessment for the purposes of deciding whether to grant the permit in relation to the goods. 644. This item would amend the Biosecurity Act by repealing subsection 179(3). This amendment would be consequential on the insertion of subsection 179(1A) proposed by item 6 of this Schedule. Item 9 Subsection 182(4) 645. Subsection 182(1) of the Biosecurity Act provides that the Director of Biosecurity may determine that specified goods or a specified class of goods (including conditionally non-prohibited goods), must not be brought or imported into Australian territory for a specified period which is not longer than 6 months. Under subsection 182(2), goods specified in a determination in force under subsection 182(1) or goods included in a class of goods specified in a determination in force under subsection 182(1) are suspended goods. 111

646. Subsection 182(4) currently provides that the Director of Biosecurity must apply the ALOP for Australia in conducting a risk assessment for the purpose of deciding whether to make a determination under subsection 182(1) specifying particular goods or a particular class of goods. 647. This item would amend the Biosecurity Act by repealing and substituting subsection 182(4). Amended subsection 182(4) would provide that before a determination under subsection 182(1) is made: • A risk assessment must be conducted by a biosecurity worker in relation to the making of that determination; and • The Director of Biosecurity must be satisfied that the ALOP for Australia was applied in the conduct of the risk assessment, must consider the risk assessment, and may also consider any other matters that the Director of Biosecurity considers relevant. 648. The intention of new subsection 182(4) is to clarify the process by which risk assessments are conducted for the purposes of the Director of Biosecurity making a determination under subsection 182(1). This increases transparency about the process, by clearly identifying the matters that the Director of Biosecurity must be satisfied of, as well as the considerations that the Director of Biosecurity must or may consider before making such a determination. This amendment would not create or change classes of goods listed in a determination made under subsection 182(1). Items 10 and 11 Subsection 541(4) (note) 649. Section 541 of the Biosecurity Act provides for the functions and powers of the Director of Biosecurity. Subsection 541(4) provides that in performing functions or exercising powers under the Biosecurity Act, the Director of Biosecurity: • Must have regard to the objects of the Biosecurity Act; and • Must comply with certain directions given by the Agriculture Minister. 650. The note following subsection 541(4) currently notifies the reader that the Director of Biosecurity must apply the ALOP for Australia in conducting, among other things, a risk assessment for the purpose of deciding whether particular goods, or a particular class of goods, can be brought or imported into Australian territory and, if so, whether this should be subject to conditions (referring the reader to subsections 173(4), 174(3), 179(3) and 182(4)). 651. Item 10 would amend the note following subsection 541(4) by omitting the words "The Director of Biosecurity must apply the ALOP for Australia" and substituting this with "The ALOP for Australia must be applied". Item 11 would amend the note following subsection 541(4) by omitting the word "179(3)" and substituting this with "179(1A)". 652. The amendments proposed by items 10 and 11 would align the Biosecurity Act with the other amendments proposed by item 1 of this Schedule and would be consequential to the amendments proposed by items 4 to 9 of this Schedule. 112

Item 12 Application provisions 653. This item would provide for the application provisions for the amendments proposed by this Schedule, and would make clear that the amendments will have prospective effect. 654. Subitem 12(1) would provide that the amendment of section 173 of the Biosecurity Act made by this Schedule applies in relation to a determination made under subsection 173(1) on or after the commencement of this item. 655. Subitem 12(2) would provide that the amendment of section 174 made by this Schedule applies in relation to a determination made under subsection 174(1) on or after the commencement of this item. 656. Subitem 12(3) would provide that the amendments of section 179 of the Biosecurity Act made by this Schedule applies in relation to an application for a permit made on or after the commencement of this item. 657. Subitem 12(4) would provide that the amendment of section 182 of the Biosecurity Act made by this Schedule applies in relation to a determination made under subsection 182(1) on or after the commencement of this item. 113

SCHEDULE 6--ARRANGEMENTS AND GRANTS FOR DEALING WITH RISKS POSED BY DISEASES OR PESTS Background 658. The Australian Government currently delivers numerous programs to manage biosecurity risks which may cause harm to animal, plant and human health, the environment and the economy. The programs are designed to identify, prevent, prepare for, and manage the risk of pests and diseases entering Australian territory. 659. Legislative authority for expenditure for such programs is generally provided by section 32B of the Financial Framework (Supplementary Powers) Act 1997 (FFSP Act) by inserting new items for each program into the relevant Schedule to the Financial Framework (Supplementary Powers) Regulations 1997 (FFSP Regulations). The FFSP Act and the FFSP Regulations provide general expenditure authority for programs across the Commonwealth that are not otherwise specifically authorised in portfolio legislation. Examples of such programs include: • Funding to improve Australia's capacity to respond to pest and disease incursions; • Increased economic opportunities for Indigenous persons, entities and communities through activities that target biosecurity risks in northern Australia; and • Investment in projects that support planning and preparedness for management of environmental biosecurity risks. 660. Schedule 6 to the Bill would provide legislative authority for arrangements and grants for dealing with risks posed by diseases or pests, such as the National Citrus Canker Eradication Program which ran in response to the detection of citrus canker in a Darwin retail nursery. Having tailored legislative authority provisions in the Biosecurity Act would assist the Australian Government to respond quickly to fast-changing circumstances where there is a pest or disease threatening the health of the Australian population, the environment or the agricultural sector. Including the authority for expenditure on biosecurity activities and programs in the Biosecurity Act would support a more agile biosecurity system, and ensure transparency and accountability for Commonwealth expenditure on biosecurity activities and programs. Expenditure on biosecurity activities and programs would be reported by the relevant Agriculture or Health portfolio. 661. This approach would be consistent with the approach taken in other Commonwealth legislation to provide legislative authority for arrangements and grants, including the Aged Care Act 1997, Child Care Act 1972, Emergency Response Fund Act 2019, Fair Entitlements Guarantee Act 2012, Future Drought Fund Act 2019 and National Disability Insurance Scheme Act 2013. 662. This Schedule would commence on the day after the proposed Act receives the Royal Assent. The amendments made by this Schedule would not have effect until that day. Any arrangements made prior to this day would still require legislative authority from other sources, such as by amendments to a Schedule to the FFSP Regulations. 114

Biosecurity Act 2015 Item 1 Section 3 663. Section 3 of the Biosecurity Act sets out a simplified outline. This item would amend the description of Chapter 11 in the simplified outline to include a reference to arrangements and grants for dealing with risks posed by diseases or pests. This item is consequential to the changes proposed by item 6 of this Schedule which inserts a power of the Agriculture Minister or Health Minister to make, vary or administer such arrangements. 664. The simplified outline, and the amendments made by this item, are not intended to be comprehensive and has been included to assist readers to understand the substantive provisions of the Biosecurity Act and the amendments made by this Schedule, rather than to replace those provisions. It is intended that readers would rely on the substantive provisions in the Biosecurity Act and this Schedule. Items 2 and 3 Section 4 (note) 665. Section 4 sets out the objects of the Biosecurity Act, which includes to provide for managing biosecurity risks. The note following section 4 explains that the expression 'biosecurity risk' has different meanings in the Biosecurity Act. 666. Item 2 would insert the words ", Part 3A of Chapter 11 (arrangements and grants for dealing with risks posed by diseases or pests)" after "response)" in the note. Item 3 would omit "and 310" and substitute ", 310 and 614B" in the note. The amended note following section 4 would provide that the expression 'biosecurity risk' has different meanings depending on whether it is for the purposes of Chapter 6, Part 3A of Chapter 11, or another part of the Biosecurity Act, referring to sections 9, 310 or 614B. This amendment would be consequential to the insertion of new Part 3A of Chapter 11, as proposed by item 6 of this Schedule. Item 4 Section 9 (definition of biosecurity risk) 667. Section 9 provides definitions for the Biosecurity Act. This item would insert the words "or 614B" after "section 310" in the definition of biosecurity risk. This would provide that the definition of biosecurity risk has the meaning set out in in section 9, except where otherwise provided by section 310 or 614B. This amendment would be consequential to the insertion of new section 614B, as proposed by item 6 of this Schedule. Item 5 Section 9 (at the end of the note to the definition of biosecurity risk) 668. Section 9 provides definitions for the Biosecurity Act. This item would insert the words "and section 614B applies this modified meaning in relation to Part 3A of Chapter 11 (arrangements and grants for dealing with risks posed by diseases or pests)" at the end of the note to the definition of biosecurity risk. This would explain to readers that new section 614B applies the modified meaning of biosecurity risk in section 310 in relation to new Part 3A of Chapter 11. This would be consequential to the amendments proposed by items 4 and 6 of this Schedule. 115

Item 6 After Part 3 of Chapter 11 669. This item would insert a new Part 3A into Chapter 11 of the Biosecurity Act. The new Part 3A would set out provisions relating to arrangements and grants by the Commonwealth for dealing with risks posed by diseases or pests. Section 614A - Simplified outline of this Part 670. New section 614A would provide a simplified outline of the new Part 3A of Chapter 11 of the Biosecurity Act. The outline notes that Part 3A of Chapter 11 would allow the Agriculture Minister or the Health Minister, on behalf of the Commonwealth, to make, vary or administer an arrangement for the making of payments by the Commonwealth, or make, vary or administer a grant of financial assistance, for dealing with risks posed by diseases or pests. 671. The outline is not intended to be comprehensive and has been included to assist readers to understand the substantive provisions of new Part 3A, rather than to replace those provisions. It is intended that readers would rely on the substantive provisions in new Part 3A. Section 614B - Arrangements and grants for dealing with risks posed by diseases or pests 672. New section 614B would provide for arrangements and grants by the Commonwealth for dealing with risks posed by diseases or pests. 673. New subsection 614B(1) would provide that the Agriculture Minister or the Health Minister may, on behalf of the Commonwealth, make, vary or administer an arrangement for the making of payments by the Commonwealth, or make, vary or administer a grant of financial assistance, in relation to one or more specified activities. 674. These activities would be specified to be the following: • Activities or research relating to identifying, preventing, preparing for or managing biosecurity risks (new paragraph 614B(1)(a)); • Activities in or outside of Australian territory relating to dealing with the risk covered by new subsection 614B(2), including, but not limited to, improving the capacity of foreign countries to respond to or manage that risk (new paragraph 614B(1)(b)); • Activities relating to communicating information in or outside Australian territory about the identification of, prevention of, preparation for or management of biosecurity risks or the risk covered by new subsection 614B(2) (new paragraph 614B(1)(c)); • Activities relating to supporting or enhancing State or Territory or industry led biosecurity incident response programs, or biosecurity incident recovery programs, dealing with biosecurity risks (new paragraph 614B(1)(d)); • Activities relating to identifying or managing established pests or established diseases to stop the spread of such pests or diseases (new paragraph 614B(1)(e)); 116

• Activities relating to furthering the objects of the Biosecurity Act (new paragraph 614B(1)(f)); • A matter that is incidental or ancillary to an activity covered by the above paragraphs (new paragraph 614B(1)(g)). 675. The reference to the spread of established pests or established diseases in new paragraph 614B(1)(e) is intended to include the introduction of such pests or diseases to a part of Australian territory where it is not already established, from another part of Australian territory where these pests or diseases are established. For the purposes of new subsection 614B(1), biosecurity risk is defined in new subsection 614B(6). Australian territory is defined in section 12 of the Biosecurity Act. 676. The activities listed in new subsection 614B(1) would provide clear parameters on the types of arrangements and grants of financial assistance that either Minister may make, vary or administer. 677. It is appropriate to enable both the Agriculture Minister and the Health Minister to make, vary or administer arrangements and grants of financial assistance under subsection 614B(1), given that the Biosecurity Act is administered by both the Agriculture Department and the Health Department. It is intended that the Health Minister would be able to make, vary or administer arrangements and grants of financial assistance relating to diseases or pests that cause harm to human health, while the Agriculture Minister would be able to make, vary or administer arrangements and grants of financial assistance for other diseases or pests. However, this is a starting position only, and does not serve as qualification to, or delineation of, the types of arrangements and grants of financial assistance that either Minister can make, vary or administer (within the parameters set out by new subsection 614B(1)). As there are some diseases or pests which may cause harm to both human health and animal health, it is appropriate for arrangements and grants of financial assistance relating to such diseases to be made, varied or administered by either Minister. 678. Funding for these arrangements and grants of financial assistance would come from annual appropriations made through the Federal Budget process. Government decisions in relation to these activities would therefore still be subject to those requirements, including the Budget Process Operational Rules, and would be published in the Portfolio Budget Statements including Additional and Supplementary Statements. The Parliament would continue to have the ability to scrutinise expenditure on, and the operation of, arrangements and grants of financial assistance made under new section 614B, through regular parliamentary processes such as Senate Estimates. 679. In accordance with usual Commonwealth processes, expenditure for activities being provided under the proposed arrangements and grants of financial assistance would require the policy approval of the Cabinet or the Prime Minister as appropriate, prior to either Minister exercising their power under new subsection 614B(1). This would ensure compliance with the Budget Process Operational Rules. 680. Funding decisions and payments for arrangements and grants of financial assistance made under new section 614B would be subject to the requirements of the Commonwealth resource management framework including, where relevant, the Public Governance, Performance and Accountability Act 2013 (PGPA Act), the 117

Commonwealth Grants Rules and Guidelines 2017 and the Commonwealth Procurement Rules. These documents outline, among other things, requirements relating to the publication of applicant guidelines, development of eligibility and assessment criteria, and publication of details relating to the successful applicant and the arrangement and grant subsequently made. 681. Funding decisions made in connection with arrangements and grants of financial assistance made under new section 614B may be subject to independent merits review, where appropriate. In addition, the review and audit process undertaken by the Australian National Audit Office provides a mechanism to review Australian Government spending decisions and report any concerns to the Parliament. These requirements and mechanisms would help to ensure the proper use of Commonwealth resources and appropriate transparency around decisions relating to making, varying or administering arrangements and grants under new subsection 614B(1). 682. Further, the right to review under paragraph 75(v) of the Constitution and review under section 39B of the Judiciary Act 1903 may still be available. Persons affected by spending decisions made in relation to arrangements and grants made under this new subsection 614B(1) may also have recourse to the Commonwealth Ombudsman where appropriate. 683. New subsection 614B(2) would set out certain types of risks that are to be covered by the activities in subsection 614B(1), including those outlined in new paragraph 614B(1)(b) and subparagraph 614B(1)(c)(ii). 684. New subsection 614B(2) would provide that the risk covered by this subsection is the likelihood of a disease or pest entering a foreign country or a part of a foreign country; or the likelihood of a disease or pest emerging, establishing itself or spreading in a foreign country or a part of a foreign country; and the potential for any of the following: • The disease or pest to cause harm to human, animal or plant health in that foreign country; • The disease or pest to cause harm to the environment in that foreign country; • Economic consequences in that foreign country associated with the entry, emergence, establishment or spread of the aforementioned disease or pest. 685. One of the key benefits of arrangements and grants to support activities dealing with risks posed by disease or pests in foreign countries is to strengthen the capability of those foreign countries to manage those risks to prevent them from entering Australia. For example, a pest may be prevalent in a foreign country that is a trading partner, and it is necessary to make, vary or administer arrangements or grants of financial assistance to assist that country to deal with the spread of that pest, to reduce the risk that it may enter in Australian territory through trade or other means. 686. The key difference between new subsection 614B(2) and the definition of biosecurity risk in new subsection 614B(6) is the likelihood of a disease or pest entering, emerging, establishing or spreading in a particular location. This location may be in or outside of Australian territory. In some cases, it would be appropriate and more effective to address the risk of disease or pest outside of Australian territory. 118

687. The combined effect of new subsections 614B(3), (4) and (5) would be to clarify that an arrangement or grant of financial assistance under new subsection 614B(1) may provide for the Commonwealth to reimburse, or partly reimburse, costs or expenses, but that this would not limit the operation of subsection 614B(1). 688. New subsection 614B(6) would set out the definitions of key terms used in new section 614B. In this section, the following definitions would apply: • Arrangement would include a contract, agreement, deed or understanding; • Biosecurity risk would have the same meaning as in Chapter 6 of the Biosecurity Act (see section 310); and • Make, in relation to an arrangement, would include entering into an arrangement. These definitions would clarify the operation of these terms in this section for the benefit of readers. Section 614C - Terms and conditions for grants 689. New subsection 614C(1) would require the terms and conditions on which a grant of financial assistance under new section 614B is made to a State or Territory to be set out in a written agreement between the Commonwealth and the State or Territory. 690. New subsection 614C(2) would allow the Agriculture Minister or the Health Minister to enter into an agreement under new subsection 614C(1), on behalf of the Commonwealth. New subsection 614C(3) would explain that any variation of the grant of financial assistance must be in accordance with the terms or conditions of the grant. 691. New subsection 614C(3) would clarify that new section 614C does not, by implication, prevent a grant of financial assistance under new section 614B to a person other than a State or Territory from being made subject to terms and conditions. Section 614D - Additional operation of this Part 692. New subsection 614D(1) would provide that, in addition to Part 3 of Chapter 1 of the Biosecurity Act, this new Part 3A of Chapter 11 also has effect as provided by new section 614D. Part 3 of Chapter 1 sets out the constitutional and international law provisions that are relevant to the Biosecurity Act. In particular, section 24 sets out the various constitutional heads of power upon which the Biosecurity Act may seek to draw if its operation is expressly confined to acts or omissions under those constitutional powers. 693. New subsection 614D(2) would provide that new Part 3A of Chapter 11 also applies in relation to an arrangement or grant of financial assistance referred to in section 614B that is with respect to the granting of financial assistance to a State or Territory (referencing section 96 of the Constitution), or with respect to a Territory (referencing section 122 of the Constitution). This would mean that new section 614B may seek to draw upon those various constitutional heads of power, as set out in new subsections 614D(1) and (2). 119

Section 614E - Relationship of this Part with other Acts 694. New section 614E would clarify that this new Part 3A of Chapter 11 of the Biosecurity Act does not, by implication, limit the operation of the Financial Framework (Supplementary Powers) Act 1997. Section 614F - Executive power of the Commonwealth 695. New section 614F would clarify that this new Part 3A of Chapter 11 of the Biosecurity Act does not, by implication, limit the executive power of the Commonwealth. Section 614G - Inclusion of information in annual reports 696. New section 614G would set out additional reporting requirements for when an arrangement or grant of financial assistance is made under new section 614B to ensure that such arrangements and grants are transparent and accountable. 697. The operation of section 46 of the PGPA Act and new subsection 614G(1) of the Biosecurity Act would require the Agriculture Secretary to include in the Agriculture Department's annual report: • The total of the amounts paid in that period under arrangements or grants of financial assistance made by the Agriculture Minister under new section 614B; • The total number of such arrangements or grants made by the Agriculture Minister under new section 614B in that period. 698. The operation of section 46 of the PGPA Act and new subsection 614G(2) of the Biosecurity Act would require the Health Secretary to include in the Health Department's annual report: • The total of the amounts paid in that period under arrangements or grants of financial assistance made by the Health Minister under new section 614B; • The total number of such arrangements or grants made by the Health Minister under new section 614B in that period. 699. Annual reports for Commonwealth entities are required to be presented in the Parliament by the responsible Minister under section 46 of the PGPA Act and are subject to parliamentary scrutiny by the Joint Committee of Public Accounts and Audit. The inclusion of information in the Annual Report relating to arrangements and grants of financial assistance made under section 614B would provide an additional mechanism for parliamentary scrutiny and ensure transparency on the arrangements and grants being made. 700. This requirement to include information in the annual report is not intended to displace or limit any existing reporting requirements. Rather, this requirement would be in addition to the Commonwealth's regular practices and requirements for publishing expenditure-related information, for example, through the Federal Budget process. 120

Section 614H - Delegation 701. New subsection 614H(1) would provide that the Health Minister may, by writing, delegate any of all of the Health Minister's powers under new section 614B to the Health Secretary, or to an SES employee, or acting SES employee, in the Health Department or in a Department of State of the Commonwealth other than the Health Department. This means that the ability to make, vary or administer arrangements or grants of financial assistance for dealing with risks posed by diseases or pests can be delegated by the Health Minister. 702. New subsection 614H(2) would provide that the Health Minister may, by writing, delegate the Health Minister's powers under new section 614C to the Health Secretary, or to an SES employee, or acting SES employee, in the Health Department. This means that the ability to make, vary or administer grants of financial assistance to a State or Territory for dealing with risks posed by diseases or pests can be delegated by the Health Minister. 703. A note following new subsections 614H(1) and (2) would refer readers to section 643 of the Biosecurity Act for the delegation of powers by the Agriculture Minister. Subsection 643(1) provides that the Agriculture Minister may, by writing, delegate any of the Agriculture Minister's powers under the Biosecurity Act to the Director of Biosecurity, or an SES employee, or acting SES employee, in the Agriculture Department. This would include any delegation of powers under new section 614B or 614C. In addition, new subsection 643(1A), as proposed by item 7 of this Schedule, would provide that the Agriculture Minister may, by writing, delegate the Agriculture Minister's powers under new section 614B to an SES employee, or acting SES employee, in a Department other than the Agriculture Department. It is intended that the delegation of the Health Minister's powers, insofar as they relate to those powers provided for in new section 614B or 614C, would align with the Agriculture Minister's ability to delegate powers under new section 614B or 614C. 704. As noted above, the Australian Government currently delivers numerous programs designed to identify, prevent, prepare for and manage the risk of pests and diseases entering Australian territory which may cause harm to animal, plant and human health, the environment and the economy. This Schedule would insert tailored legislative authority provisions in the Biosecurity Act to allow the Australian Government to respond rapidly to the emergence, establishment or spreading of a pest or disease threatening the health of the Australian population, the environment or the agricultural sector. Given that programs may need to be administered and delivered quickly in order to mitigate such threats in a timely manner, it is important that the Health Minister's powers under new sections 614B and 614C are delegable to the Health Secretary or an SES employee (or acting SES employee) in the Health Department so that arrangements and grants of financial assistance may be made, varied and administered on potentially short notice to respond to fast-changing circumstances. This would include powers relating to the management, administration and payment of any approved expenditure. It is the intention that the delegates would be senior officials of the Health Department, who have overall responsibility and direct oversight of the relevant arrangement or grant, therefore making them best placed to exercise the power under new section 614B or 614C. In addition, for the powers under new section 614B, it is intended that such delegates may also include senior officials of other Departments 121

that are involved in the management and delivery of the relevant arrangement. For example, this would include programs delivered via the Business Grants Hub (operated by the Department of Industry, Science and Resources) or the Community Grants Hub (operated by the Department of Social Services), in accordance with existing Commonwealth policy. Where programs may be required quickly to mitigate relevant threats and risks, an inability to delegate the powers under new section 614B or 614C would require the Health Minister personally to make, vary and administer all arrangements and grants, including those of a more bureaucratic nature relating to the management, administration and payment of expenditure, thus potentially exacerbating and increasing those threats and risks. 705. Further, and as provided by paragraph 34AB(1)(d) of the Acts Interpretation Act, a delegation of the power under section 614B or 614C by the Health Minister does not prevent the exercise of that power by the Health Minister. Any delegates of the Health Minister would be able to further consult with and seek approval from the Health Minister in relation to a specific arrangement or grant, if necessary, in the particular circumstances of each case. Similar considerations apply to the ability for the Agriculture Minister to delegate powers under new section 614B or 614C to the Director of Biosecurity or an SES employee (or acting SES employee) in the Agriculture Department or in a Department other than the Agriculture Department (as applicable). 706. New subsection 614H(3) would provide that, when exercising any powers under a delegation of the power under section 614B by the Health Minister, the delegate must comply with any directions of the Health Minister. This is similar to the requirement in subsection 643(6), which provides that, when exercising any powers under a delegation, a delegate of the Agriculture Minister must also comply with any directions of the Agriculture Minister. Item 7 After subsection 643(1) 707. Subsection 643(1) provides that the Agriculture Minister may, by writing, delegate any of the Agriculture Minister's powers under the Biosecurity Act to the Director of Biosecurity, or an SES employee, or acting SES employee, in the Agriculture Department. 708. This item would insert new subsection 643(1A) after subsection 643(1) of the Biosecurity Act. New subsection 643(1A) would provide that the Agriculture Minister may, by writing, delegate the Agriculture Minister's powers under new section 614B to an SES employee, or acting SES employee, in a Department of State of the Commonwealth other than the Agriculture Department. This would align the Agriculture Minister's ability to delegate powers under new section 614B or 614C with the delegation of the Health Minister's powers under new section 614H, as proposed by item 6 of this Schedule. 122

SCHEDULE 7--APPROVED ARRANGEMENTS AND COMPENSATION Background 709. Schedule 7 to the Bill would amend provisions relating to approved arrangements and compensation in the Biosecurity Act to streamline and improve their operation. The amendments would enhance the effectiveness and efficiency of the management of approved arrangements, while also improving processes for arrangement administration, auditing and the consideration of compensation claims. 710. Chapter 7 of the Biosecurity Act enables the Director of Biosecurity or the Director of Human Biosecurity (the relevant Director) to approve proposed arrangements that provide for the holder of the arrangement, known as the biosecurity industry participant, to carry out certain biosecurity activities to manage biosecurity risks associated with specified goods, premises or other things. A biosecurity industry participant covered by an approved arrangement is authorised and required to carry out biosecurity activities in accordance with the approved arrangement, except in certain specified circumstances. 711. Various Parts of Chapter 7 deal with processes relating to the approval of a proposed arrangement, as well as the variation, suspension and revocation of an approved arrangement in specified circumstances. It also relevantly sets out the powers and obligations of biosecurity industry participants, the directions that may be given to former biosecurity industry participants, and the auditing of approved or proposed arrangements. 712. Division 3 of Part 5 of Chapter 11 of the Biosecurity Act deals with damaged goods or destroyed goods, conveyances or other premises. This includes the payment of compensation for such damage or destruction. 713. This Schedule would provide for the following measures: • Allowing a biosecurity industry participant to make a written declaration to release goods from biosecurity control, where the biosecurity industry participant is also the person in charge of the goods; • Providing the relevant Director with the option of allowing an approved arrangement to remain in force indefinitely, unless it is revoked; • Extending the power of the relevant Director to give a direction to a former biosecurity industry participant, to circumstances where the approved arrangement has expired; • Providing additional powers for an auditor who is carrying out an audit of an approved or proposed arrangement under section 436 of the Biosecurity Act; and • Improving the operation of the compensation scheme for damaged goods or destroyed goods, conveyances or other premises. 714. The policy intention is that these measures will provide clarity, streamline the administration of approved arrangements, reduce compliance costs and support more efficient movement of goods into Australian territory. 123

715. This Schedule would commence on the day after the proposed Act receives the Royal Assent. The amendments made by this Schedule would not have effect until that day. Part 1--Release of goods from biosecurity control Background 716. Part 1 of Chapter 3 of the Biosecurity Act provides for the management of biosecurity risks in relation to goods that are brought or imported into Australian territory. Under section 119, goods become subject to biosecurity control when the aircraft or vessel carrying the goods enters Australian territory. 717. The goods remain subject to biosecurity control until they are released from biosecurity control under Division 10 of Part 1 of Chapter 3 of the Biosecurity Act. Currently, under section 162, one of the circumstances in which goods are released from biosecurity control is where a biosecurity industry participant gives, to a person in charge of the goods, a written notice releasing the goods from biosecurity control. A person in charge of goods is defined in subsection 22(1) of the Biosecurity Act. 718. In practice, there are some situations where a biosecurity industry participant is also the person in charge of the goods. The amendments proposed by Part 1 of this Schedule to the Bill seek to clarify the circumstances in which a biosecurity industry participant can release goods from biosecurity control, where they are also the person in charge of the goods. This would provide clarity for individuals and businesses who are dealing with such goods and support the smooth movement of goods into Australian territory. Biosecurity Act 2015 Item 1 Subsection 19(3) (paragraph (a) of the note) 719. Section 19 of the Biosecurity Act defines the meaning of goods. Subsection 19(2) provides that a carried conveyance - which is a conveyance that is, or is to be, brought or imported into Australian territory from outside Australian territory on board another conveyance - is considered to be goods from the time it is first intended to be so brought or imported, until immediately after it is released from biosecurity control. This is intended to exclude such carried conveyances from provisions of the Biosecurity Act that deal with biosecurity risks associated with conveyances that convey people or goods into Australian territory. 720. Subsection 19(3) provides that for the purposes of Parts 1 and 3 of Chapter 3 of the Biosecurity Act, and any other provisions related to those Parts, the carried conveyance continues to be goods after it is released from biosecurity control. Currently, paragraph (a) to the note following subsection 19(3) explains that this ensures that a notice releasing the carried conveyance from biosecurity control can be revoked under section 164 of the Biosecurity Act. 721. This item would amend paragraph (a) to the note following subsection 19(3) of the Biosecurity Act, by inserting the words "or declaration" after "notice". The amended note would explain that subsection 19(3) ensures that a declaration that has been made by a biosecurity industry participant to release a carried conveyance from biosecurity 124

control can be revoked under section 164. This would be consequential to the amendments to paragraph 162(1)(b) proposed by item 2 of this Schedule. Item 2 Paragraph 162(1)(b) 722. Section 162 of the Biosecurity Act sets out when goods that are subject to biosecurity control are released from biosecurity control. Paragraph 162(1)(b) currently provides that goods are released from biosecurity control if a biosecurity industry participant gives or, before the goods became subject to biosecurity control, gave a person in charge of the goods a written notice releasing the goods from biosecurity control. 723. This item would repeal current paragraph 162(1)(b) and substitute a new paragraph 162(1)(b). New paragraph 162(1)(b) would provide two circumstances in which goods are released from biosecurity control by a biosecurity industry participant, where they are authorised to do so in accordance with their approved arrangement. 724. The first circumstance, as set out in new subparagraph 162(1)(b)(i), would provide that unless subparagraph 162(1)(b)(ii) applies, goods are released from biosecurity control if a biosecurity industry participant gives, or before the goods became subject to biosecurity control, gave to a person in charge of the goods a written notice releasing the goods from biosecurity control. This circumstance would be the same as current paragraph 162(1)(b) in the Biosecurity Act. 725. The second circumstance, as set out in new subparagraph 162(1)(b)(ii), would apply where the biosecurity industry participant is, or will be, in charge of the goods. The goods would be released from biosecurity control if the biosecurity industry participant makes a written declaration, or made a written declaration before the goods became subject to biosecurity control, releasing the goods from biosecurity control. 726. New subparagraph 162(1)(b)(ii) would provide for instances where biosecurity industry participants may be able to release goods to itself under an approved arrangement as they are also the person in charge of the goods. The proposed amendment would clarify that where the person in charge of the goods and the biosecurity industry participant is the same person, the biosecurity industry participant may make a written declaration to release the goods from biosecurity control if the biosecurity industry participant is authorised to do so in accordance with their approved arrangement. 727. The intention of requiring a written declaration to be made under new subparagraph 162(1)(b)(ii) is to provide certainty for individuals and businesses that deal with goods that are obtained from a biosecurity industry participant who is also the person in charge of the goods. Such a declaration would indicate that the biosecurity industry participant decided to release the goods from biosecurity control to itself in accordance with the requirements of an approved arrangement covering the biosecurity industry participant. Item 3 Subsection 162(2) 728. Subsection 162(2) of the Biosecurity Act currently provides that, if goods are released from biosecurity control under, relevantly, paragraph 162(1)(b) because of a written 125

notice given before the goods became subject to biosecurity control, then the goods are released immediately after they became subject to biosecurity control. 729. This item would amend current subsection 162(2) to omit the words "or written notice given" and to substitute the words "written notice given or written declaration made". This would have the effect that, if a written notice is given under new subparagraph 162(1)(b)(i) or a written declaration is made by a biosecurity industry participant under new subparagraph 162(1)(b)(ii) before the goods became subject to biosecurity control, then the goods would be released immediately after they become subject to biosecurity control. 730. This amendment is necessary because goods may be released prior to becoming subject to biosecurity control based on an assessment of information provided under other provisions of the Biosecurity Act. In circumstances where a biosecurity industry participant decides to release goods to a person in charge of goods or to itself before the goods become subject to biosecurity control, then this amendment would ensure that both a notice under new subparagraph 162(1)(b)(i) and a declaration under new subparagraph 162(1)(b)(ii) are treated in the same way. This would allow these goods to move smoothly through the border ensuring that individuals and businesses are not subject to delays or additional costs. Item 4 Paragraph 162(3)(b) 731. Paragraph 162(3)(b) of the Biosecurity Act currently provides that a written notice releasing goods from biosecurity control that is given by a biosecurity industry participant to a person in charge of the goods under existing paragraph 162(1)(b) is not a legislative instrument. 732. This item would amend current paragraph 162(3)(b) to omit the words "paragraph (1)(b)" and substitute "subparagraph (1)(b)(i) or a declaration referred to in subparagraph (1)(b)(ii)". This would have the effect that both a written notice given under new subparagraph 162(1)(b)(i) and a written declaration made by a biosecurity industry participant under new subparagraph 162(1)(b)(ii) would not be a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003 (the Legislation Act). 733. The intention of this amendment is to clarify that both a notice under new subparagraph 162(1)(b)(i) and a declaration under new subparagraph 162(1)(b)(ii) are administrative in nature, and that an exemption from the Legislation Act is not sought or required. Item 5 Section 164 (heading) 734. Section 164 of the Biosecurity Act currently provides for circumstances in which a notice releasing goods from biosecurity control may be revoked. 735. This item would amend the heading of section 164 of the Biosecurity Act to insert the words "or declaration" after the word "notice". This would be consequential to the insertion of new subsection 164(2A) proposed by item 7 of this Schedule. 126

Item 6 Subsection 164(2) 736. Subsection 164(2) of the Biosecurity Act currently provides that if a biosecurity industry participant gave a written notice for the purposes of paragraph 162(1)(b) to release goods from biosecurity control, then the biosecurity industry participant may revoke the notice by informing the person in charge of the goods in writing of the revocation. 737. This item would amend current subsection 164(2) to omit the words "paragraph 162(1)(b)" and to substitute "subparagraph 162(1)(b)(i)". This would be consequential to the amendments to paragraph 162(1)(b) proposed by item 2 of this Schedule. Item 7 After subsection 164(2) 738. This item would insert new subsection 164(2A) after subsection 164(2). A new subheading titled "Revoking declaration made by biosecurity industry participant" would be inserted before new subsection 164(2A) to provide a useful signpost for readers. New subsection 164(2A) would provide that if a biosecurity industry participant made a written declaration under subparagraph 162(1)(b)(ii) releasing goods from biosecurity control, they may, in writing, revoke the declaration. 739. The ability to revoke a declaration releasing goods from biosecurity control under subparagraph 162(1)(b)(ii) is necessary to manage biosecurity risks in circumstances where the goods have been released by mistake or based on incorrect information provided to a biosecurity industry participant. The intention of requiring a written revocation of the declaration to be made under new subsection 164(2A) is to provide certainty for individuals and businesses that deal with goods that are obtained from a biosecurity industry participant who is also the person in charge of the goods. Such a written revocation would indicate that the biosecurity industry participant decided to revoke an earlier decision to release the goods from biosecurity control to itself, where the relevant grounds for revocation exist. Item 8 Subsection 164(3) 740. Subsection 164(3) of the Biosecurity Act currently sets out the grounds upon which a biosecurity officer or biosecurity industry participant may revoke a notice releasing goods from biosecurity control. 741. This item would omit the words "subsections (1) and (2), the biosecurity officer or biosecurity industry participant may revoke the notice" from subsection 164(3), and substitute the words "subsections (1), (2) and (2A), the biosecurity officer or biosecurity industry participant may revoke the notice, or the biosecurity industry participant may revoke the declaration,". This would have the effect that a biosecurity industry participant would be able to revoke a declaration under subparagraph 162(1)(b)(ii), where they suspect on reasonable grounds that the level of biosecurity risk associated with the goods is unacceptable or where the revocation occurs before any of the conditions in paragraphs 162(1)(c), (d) or (e) exist in relation to the goods. 127

742. This amendment is necessary to set out the grounds upon which biosecurity industry participant would be able to revoke an earlier decision to release the goods from biosecurity control to itself. The grounds for revoking a declaration under new subparagraph 162(1)(b)(ii) would be the same as the grounds for revoking a notice given under subparagraph 162(1)(b)(i). This ensures consistency in the management of biosecurity risks relating to the release of goods from biosecurity control. Item 9 Subsection 164(4) 743. Subsection 164(4) of the Biosecurity Act currently provides that the effect of a revoked notice is that the revoked notice is taken never to have been given, for the purposes of the Biosecurity Act (other than section 164). 744. This item would amend subsection 164(4) to insert the words "or the revoked declaration is taken never to have been made" after the words "given". This would have the effect that, for the purposes of other provisions of the Biosecurity Act: • a notice given under subparagraph 162(1)(b)(i), which has been revoked, is taken to have never been given; and • a declaration made under subparagraph 162(1)(b)(ii), which has been revoked, is taken to have never been made. 745. The intention of this item is to provide certainty for individuals and businesses that deal with goods that are the subject of a revoked notice or declaration. If a revoked notice or declaration is taken to have never been given or made, then the goods would remain subject to biosecurity control and the relevant provisions of the Biosecurity Act would continue to apply to such goods. Item 10 Subsection 164(5) 746. This item would repeal and substitute subsection 164(5) of the Biosecurity Act. A new subheading titled "Revocation not a legislative instrument" would be inserted before new subsection 164(5) to provide a useful signpost for readers. 747. New paragraph 164(5)(a) would provide that a revocation of a notice that is given in writing under subsection 164(1) or 164(2) by a biosecurity officer or biosecurity industry participant respectively, would not be a legislative instrument. New paragraph 164(5)(b) would similarly provide that a revocation of a declaration made by a biosecurity industry participant under new subsection 162(2A) would not be a legislative instrument. The intention of this amendment is to clarify that a revocation is administrative in nature, and that an exemption from the Legislation Act is not sought or required. Item 11 Application provision 748. This item would provide that the amendments of section 162 and 164 of the Biosecurity Act made by Part 1 of this Schedule would apply in relation to a notice that is given, or declaration that is made, on or after the commencement of this item releasing goods from biosecurity control, whether the goods become subject to biosecurity control, or 128

whether the arrangement concerned was approved, before, on or after that commencement. 749. This item would make clear that the amendments made by Part 1 of this Schedule have prospective effect, in relation to a notice given or a declaration made on or after commencement. Part 2--Duration of approved arrangements Background 750. Under Part 2 of Chapter 7 of the Biosecurity Act, approved arrangements are currently in force for a certain period that is specified in the notice of approval of the arrangement. Due to ongoing monitoring of approved arrangements under the Biosecurity Act, there are some circumstances where it may be appropriate to allow for certain approved arrangements to continue indefinitely unless revoked by the relevant Director. 751. The amendments proposed by Part 2 of this Schedule to the Bill would provide the relevant Director with the option of allowing an approved arrangement to remain in force indefinitely, unless otherwise revoked. This would reduce compliance costs for biosecurity industry participants who are covered by the approved arrangement, with no impact on the effective management of biosecurity risks under the arrangement. Biosecurity Act 2015 Item 12 Paragraph 408(2)(b) 752. Subsection 408(1) of the Biosecurity Act provides that the relevant Director must notify, in writing, the applicant for approval of a proposed arrangement whether the arrangement is approved or not. Subsection 408(2) provides that if the arrangement is approved, the notice must specify any conditions to which the approved arrangement is subject (paragraph 408(2)(a)) and the period for which the approved arrangement is to be in force (paragraph 408(2)(b)). 753. This item would repeal and substitute paragraph 408(2)(b) to provide that, if an arrangement is approved, the notice must specify the duration of the arrangement. New paragraph 408(2)(b) would also direct the reader to new section 409. This would be consequential to the insertion of new section 409, as proposed by item 13 of this Schedule. Item 13 Section 409 754. Section 409 of the Biosecurity Act currently provides for the period of effect of an approved arrangement. This item would repeal and substitute section 409, with a new heading titled "Duration of approved arrangement". 755. New paragraph 409(a) would provide that an approved arrangement comes into force on the day the notice is given under subsection 408(1), or otherwise on a later day, if that later day is specified in the notice. New paragraph 409(b) would provide that, 129

unless an approved arrangement is revoked earlier, the arrangement would remain in force indefinitely, or otherwise for a certain period, if that period is specified in the notice given under subsection 408(1) as the period for which the arrangement is to be in force. 756. This amendment would provide the relevant Director with the option of deciding not to specify, in the notice under subsection 408(1), a period for which the approved arrangement remains in force. This would have the effect that the approved arrangement would remain in force indefinitely unless it is revoked. This option would allow for additional flexibility and ensure that the duration of the approved arrangement can be tailored to reflect what is appropriate in the circumstances of each case. Item 14 Application provision 757. This item would provide that the amendments made by Part 2 of this Schedule would apply in relation to an approved arrangement, where the notice of approval under subsection 408(1) of the Biosecurity Act in relation to the arrangement is given on or after the commencement of this item. This would make clear that the amendments in items 12 and 13 of this Schedule are intended to have prospective effect. Part 3--Directions to biosecurity industry participants after expiry of approved arrangements Background 758. Part 5 of Chapter 7 of the Biosecurity Act currently provides for the revocation of an approved arrangement in certain circumstances. After an approved arrangement has been revoked, there are some situations where it is necessary for the relevant Director to provide directions to former biosecurity industry participants to ensure that any outstanding biosecurity risks are appropriately managed. 759. The amendments proposed by Part 3 of this Schedule to the Bill would provide the relevant Director with a corresponding power to provide directions to former biosecurity industry participants, where an approved arrangement expires. This would ensure that any biosecurity risks that pose harm to Australia's human, plant and animal health, environment, and economy can be managed efficiently. Biosecurity Act 2015 Item 15 Section 404 760. Section 404 of the Biosecurity Act sets out a simplified outline of Chapter 7 which relates to approved arrangements. This item would amend the description of Part 5 of Chapter 7 in the simplified outline by omitting the words "Part 5 deals with revoking" and substituting the words "Part 5 deals with the revocation or expiry of". This item would be consequential to the amendments proposed by items 16 to 22 of this Schedule, which would expand Part 5 of Chapter 7 to cover the revocation and expiry of approved arrangements. 130

761. The simplified outline, and the amendments made by this item, are not intended to be comprehensive and has been included to assist readers to understand the substantive provisions of the Biosecurity Act and the amendments made by this Schedule, rather than to replace those provisions. It is intended that readers would rely on the substantive provisions in the Biosecurity Act and this Schedule. Item 16 Part 5 of Chapter 7 (heading) 762. This item would repeal the heading of Part 5 of Chapter 7 in the Biosecurity Act and substitute "Part 5--Revocation or expiry of approved arrangement". This would be consequential to the amendments proposed by items 17 to 22 of this Schedule. Item 17 Division 3 of Part 5 of Chapter 7 (heading) 763. This item would repeal the heading of Division 3 of Part 5 of Chapter 7 in the Biosecurity Act and substitute "Division 3--Management of biosecurity risks after revocation or expiry of approved arrangement". This would be consequential to the amendments proposed by items 18 to 22 of this Schedule. Item 18 Section 426 (heading) 764. This item would repeal the heading of section 426 in the Biosecurity Act and substitute "Management of biosecurity risks after revocation or expiry of approved arrangement". This would be consequential to the amendments proposed by items 19 to 20 of this Schedule. Item 19 At the end of subsection 426(1) 765. Subsection 426(1) of the Biosecurity Act currently provides that section 426 applies if an approved arrangement covering a biosecurity industry participant (the former biosecurity industry participant) has been revoked under Division 1 or Division 2 of Part 5 of Chapter 7. 766. This item would amend subsection 426(1) by adding the words "or has expired" at the end of subsection 426(1). This would have the effect of broadening the scope of section 426 of the Biosecurity Act to also apply to a former biosecurity industry participant, where their approved arrangement has expired. This would be consequential to the amendment to subsection 426(1), proposed by item 20 of this Schedule. Item 20 At the end of subsection 426(2) 767. Subsection 426(2) of the Biosecurity Act currently provides that the relevant Director may, in writing, direct the biosecurity industry participant to take specified action, within a specified period, to manage any biosecurity risks associated with goods, premises or other things that the biosecurity industry participant would have been authorised to deal with if the approved arrangement had not been revoked. 768. This item would amend subsection 426(2) by adding the words "or has expired" at the end of subsection 426(2). This would have the effect that the relevant Director may give a direction to a former business industry participant in respect of an expired 131

approved arrangement in the same manner as the relevant Director may currently give directions to former biosecurity industry participants in respect of approved arrangements that have been revoked. 769. For example, if an approved arrangement expires while goods that are subject to biosecurity control are still under the possession or control of the former biosecurity industry participant, then new subsection 426(2) would allow the relevant Director to direct the former biosecurity industry participant to deal with the goods in a particular way for biosecurity risk management purposes. Item 21 Subsection 427(2) 770. Subsection 427(2) of the Biosecurity Act provides that if an approved arrangement has been revoked under Part 5 of Chapter 7, the person who was the biosecurity industry participant covered by the arrangement is not authorised, for the purposes of the Biosecurity Act, to carry out biosecurity activities in accordance with the arrangement at any time after the revocation takes effect. 771. This item would amend subsection 427(2) to insert the words "or has expired" after "Part 5". When read with the amendments proposed by item 22 of this Schedule, this would have the effect that a biosecurity industry participant covered by an approved arrangement would not be authorised to carry out biosecurity activities in accordance with the arrangement at any time after the arrangement expires. Item 22 At the end of subsection 427(2) 772. This item would amend subsection 427(2) by adding the words "or after the expiry of the arrangement" at the end of subsection 427(2). When read with the amendments proposed by item 21 of this Schedule, this would have the effect that a biosecurity industry participant covered by an approved arrangement would not be authorised to carry out biosecurity activities in accordance with the arrangement at any time after the arrangement expires. Item 23 Application provision 773. This item would provide that the amendments made by Part 3 of this Schedule would apply in relation to the expiry of an approved arrangement on or after the commencement of this item, whether the arrangement was approved before, on or after that commencement. This would make clear that the amendments in items 15 to 22 of this Schedule are intended to have prospective effect. Part 4--Audit powers for auditing of approved arrangements Background 774. Division 2 of Part 7 of Chapter 7 of the Biosecurity Act provides for audit powers in relation to an approved arrangement or an application for the approval of a proposed or varied arrangement. Under section 436, the relevant Director may require any audit to be carried out in certain circumstances. An auditor is a person who carries out an audit 132

under section 436. Auditors are either biosecurity officers or other appropriately qualified and experienced persons who are duly authorised by the relevant Director. 775. Auditors require robust powers to ensure their audits are carried out accurately and supported by relevant evidence. The amendments proposed by Part 4 of this Schedule to the Bill would expand the current powers of auditors to provide additional powers to inspect, examine or make copies or sketches of certain documents, records or things. Biosecurity Act 2015 Item 24 After subsection 437(4) 776. Section 437 of the Biosecurity Act sets out the powers of an auditor. This includes, relevantly, the power under subsection 437(1) for the auditor to require any person to produce any documents, records or things that the auditor is satisfied are relevant to the audit. 777. This item would insert new subsection 437(4A) after subsection 437(4) of the Biosecurity Act. New subsection 437(4A) would provide that the auditor may do the following: • Inspect or examine a document, record or thing produced under subsection 437(1); • Make copies of the document or record; • Make a sketch, still or moving image or recording of the document, record or thing. 778. The effect of new subsection 437(4A) would be to provide the auditor with additional powers in relation to inspecting, examining or making copies of certain documents, records or things. It is also intended the auditor would be able to make a sketch, still or moving image or recording of the document, record or thing. This would reflect the technical capability of modern technological devices in taking still or moving images or recordings. 779. An auditor may also wish to make sketches of a document, record or thing in circumstances where a photographic or audio-visual recording device is unable to capture relevant detail due to technical limitations of the device or where the device malfunctions. In addition, there may be other situations where the auditor is unable to use the photographic or audio-visual recording device, due to restrictions that placed on its use in certain locations. This may include, for example, where the auditor is conducting an audit of a high-level biosecurity containment facility, where items are required to be decontaminated before removal. There may also be situations where a sketch is required to visually represent a process (e.g. path taken by goods through a premises) where that process is not happening at the time of audit but is being indicated by a person during an interview with that person. Item 25 Application provision 780. This item would provide that the amendment made by Part 4 of this Schedule applies in relation to a document, record or thing produced under subsection 437(1) of the 133

Biosecurity Act on or after the commencement of this item. This would make clear that the amendment in item 24 of this Schedule is intended to have prospective effect. Part 5--Compensation for damaged goods or destroyed goods, conveyances or other premises Background 781. Division 3 of Part 5 of Chapter 11 of the Biosecurity Act deals with damaged goods or destroyed goods, conveyances or other premises. Under sections 632 and 633, the Director of Biosecurity has the discretion to approve the payment of compensation for damaged goods or destroyed goods, conveyances or other premises, in certain circumstances. 782. The amendments proposed by Part 5 of this Schedule to the Bill seek to assist individuals and businesses to better understand the circumstances in which compensation may be payable under sections 632 and 633. For example, it is not intended that sections 632 and 633 would provide compensation for damage or destruction that is caused by a biosecurity industry participant who acts in a manner that is not specifically required by a direction under the Biosecurity Act or by a condition of the approved arrangement. In such cases, it would be more appropriate for the biosecurity industry participant to bear responsibility for their own actions. 783. Part 5 of this Schedule would also make minor amendments to the requirements for making a claim for compensation, to improve the process for the assessment of claims by the Director of Biosecurity. Biosecurity Act 2015 Item 26 Subsection 632(1) 784. Section 632 of the Biosecurity Act allows the Director of Biosecurity to approve compensation for damaged goods. This item would repeal and substitute subsection 632(1) to clarify the requirements to be met before the Director of Biosecurity may approve the payment of a reasonable amount of compensation in respect of such goods. 785. The requirements that are listed in new paragraphs 632(1)(a) to (d) are cumulative in effect. If one of the requirements are not met, then the Director of Biosecurity may decide not to approve the payment of compensation, without having regard to whether any of the other requirements are met. 786. New paragraph 632(1)(a) requires a claim for compensation to be made to the Director of Biosecurity, in accordance with new subsections 634(1A) and (1B) (as inserted by item 28 of this Schedule). The claim for compensation must allege that the goods have been damaged by a person in the course of performing functions or duties, or exercising powers, under the Biosecurity Act or by a biosecurity industry participant. The requirement in new paragraph 632(1)(a) ensures that the claimant provides the Director of Biosecurity with a certain level of information about the claim for compensation and the alleged damage. 134

787. New paragraph 632(1)(b) requires the Director of Biosecurity to be satisfied that the circumstances of the alleged damage are circumstances in relation to which it may be appropriate to give such an approval. It is intended that this requirement will allow the Director of Biosecurity to have the discretion to consider a broad range of matters relating to the circumstances of the alleged damage. Depending on the circumstances of the particular case, this may involve consideration of the content of the allegations made, the availability and veracity of any evidence to support any allegations, as well as whether it is appropriate for the Commonwealth or another person to bear responsibility for the alleged damage. If the Director of Biosecurity is not satisfied that the circumstances of the alleged damage are such that it may be appropriate to give approval, then this requirement will not be met. 788. New paragraph 632(1)(c) requires the Director of Biosecurity to be satisfied that the goods have been damaged by a person in the course of performing functions or duties, or exercising powers, under the Biosecurity Act or by a biosecurity industry participant. This requirement is intended to ensure that Director of Biosecurity will need to be satisfied that the damage has actually occurred and as to how it occurred. If the Director of Biosecurity is not satisfied that the damage was caused by a person in the course of performing functions or duties, or exercising powers, under the Biosecurity Act or by a biosecurity industry participant, then this requirement will not be met. 789. New paragraph 632(1)(d) provides for an additional requirement, where the Director of Biosecurity is satisfied that the goods have been damaged by a biosecurity industry participant. In such a case, the Director of Biosecurity must also be satisfied that the damage occurred solely: • As a result of the biosecurity industry participant complying with a direction given to them under the Biosecurity Act by a biosecurity officer, the Director of Biosecurity, the Director of Human Biosecurity, the Agriculture Minister or the Health Minister; or • As a result of the biosecurity industry participant complying with a condition to which the approved arrangement is subject. The requirement in new paragraph 632(1)(d) is intended to provide clarity about the circumstances in which it is appropriate for compensation to be paid in respect of damage caused by a biosecurity industry participant. It is expected that a biosecurity industry participant should be generally responsible for any damage to goods caused by its own activities, as they are typically entities that manage biosecurity risk in return for a commercial advantage. The only exception to this would be where the Director of Biosecurity is satisfied that the damage occurred solely as a result of compliance by the biosecurity industry participant with directions given under the Biosecurity Act or a condition of the approved arrangement. 790. There would be two notes following new subsection 632(1). Note 1 would clarify that the amount of any compensation is the amount prescribed by, or determined in accordance with, the regulations. Note 2 would clarify that, even if the Director of Biosecurity does not approve the payment of a reasonable amount of compensation under amended section 632, the owner of the goods may be entitled to compensation under section 27 of the Biosecurity Act, which relates to compensation for acquisition of property. 135

791. In deciding whether to give the approval under new subsection 632(1), the Director of Biosecurity may have regard to the list of matters in new subsection 632(1A). This comprises of: • the nature and extent of the damage; • the circumstances in which the damage occurred; • the condition of the goods before the damage occurred; • whether the goods were subject to biosecurity control at the time the damage occurred; • whether a biosecurity industry participant was in possession or control of the goods at the time the damage occurred; • whether the actions or omissions of any person, including the claimant, caused, or contributed to, the damage; • any evidence provided by the claimant in relation to any of the above matters; • any other matter that the Director of Biosecurity considers relevant. 792. The amendments made by this item are intended to provide transparency to individuals and businesses about the circumstances in which compensation may be payable under amended section 632, and the matters that the Director of Biosecurity may have regard to when making their decision. This will assist claimants to better understand, gather and submit the necessary information to support their claim for compensation. The provision of more detailed information by a claimant regarding their claim will, in turn, enable more expeditious assessment of the claim by the Director of Biosecurity. Item 27 Subsection 633(1) 793. Section 633 of the Biosecurity Act allows the Director of Biosecurity to approve compensation for destroyed goods, conveyances or premises comprising buildings or other structures. This item would repeal and substitute subsection 633(1) to clarify the requirements to be met before the Director of Biosecurity may approve the payment of a reasonable amount of compensation in respect of such goods, conveyances or other premises. 794. The requirements that are listed in new paragraphs 633(1)(a) to (d) are cumulative in effect. If one of the requirements are not met, then the Director of Biosecurity may decide not to approve the payment of compensation, without having regard to whether any of the other requirements are met. 795. New paragraph 633(1)(a) requires a claim for compensation to be made to the Director of Biosecurity, in accordance with new subsections 634(1A) and (1B) (as inserted by item 28 of this Schedule). The claim for compensation must allege that the goods, conveyances or other premises have been destroyed by a person in the course of performing functions or duties, or exercising powers, under the Biosecurity Act or by a biosecurity industry participant. The requirement in new paragraph 633(1)(a) ensures that the claimant provides the Director of Biosecurity with a certain level of information about the claim for compensation and the alleged destruction. 796. New paragraph 633(1)(b) requires the Director of Biosecurity to be satisfied that the circumstances of the alleged destruction are circumstances in relation to which it may 136

be appropriate to give such an approval. It is intended that this requirement will allow the Director of Biosecurity to have the discretion to consider a broad range of matters relating to the circumstances of the alleged destruction. Depending on the circumstances of the particular case, this may involve consideration of the content of the allegations made, the availability and veracity of any evidence to support any allegations, as well as whether it is appropriate for the Commonwealth or another person to bear responsibility for the alleged destruction. If the Director of Biosecurity is not satisfied that the circumstances of the alleged destruction are such that it may be appropriate to give approval, then this requirement will not be met. 797. New paragraph 633(1)(c) requires the Director of Biosecurity to be satisfied that the goods, conveyances or other premises have been destroyed by a person in the course of performing functions or duties, or exercising powers, under the Biosecurity Act or by a biosecurity industry participant. This requirement is intended to ensure that Director of Biosecurity will need to be satisfied that the destruction has actually occurred and as to how it occurred. If the Director of Biosecurity is not satisfied that the destruction occurred under the Biosecurity Act or was caused by a biosecurity industry participant, then this requirement will not be met. 798. New paragraph 633(1)(d) provides for an additional requirement, where the Director of Biosecurity is satisfied that the goods, conveyances or other premises have been destroyed by a biosecurity industry participant. In such a case, the Director of Biosecurity must also be satisfied that the destruction occurred solely: • As a result of the biosecurity industry participant complying with a direction given to them under the Biosecurity Act by a biosecurity officer, the Director of Biosecurity, the Director of Human Biosecurity, the Agriculture Minister or the Health Minister; or • As a result of the biosecurity industry participant complying with a condition to which the approved arrangement is subject. The requirement in new paragraph 633(1)(d) is intended to provide clarity on the circumstances in which it is appropriate for compensation to be paid in respect of destruction caused by a biosecurity industry participant. It is expected that a biosecurity industry participant should be generally responsible for any destruction of goods, conveyances or other premises caused by its own activities, as they are typically entities that manage biosecurity risk in return for a commercial advantage. The only exception to this would be where the Director of Biosecurity is satisfied that the destruction occurred solely as a result of compliance by the biosecurity industry participant with directions given under the Biosecurity Act or a condition of the approved arrangement. 799. There would be two notes following new subsection 633(1). Note 1 would clarify that the amount of any compensation is the amount prescribed by, or determined in accordance with, the regulations. Note 2 would clarify that, even if the Director of Biosecurity does not approve the payment of a reasonable amount of compensation under amended section 633, the owner of the goods, conveyances or other premises may be entitled to compensation under section 27 of the Biosecurity Act, which relates to compensation for acquisition of property. 137

800. In deciding whether to give the approval under new subsection 633(1), the Director of Biosecurity may have regard to the list of matters in new subsection 633(1A). This comprises of: • the nature of the destruction; • the circumstances in which the destruction occurred; • the condition of the goods, conveyances or other premises before the destruction occurred; • in the case of the destruction of goods or conveyances--whether the goods or conveyances were subject to biosecurity control at the time the destruction occurred; • in the case of the destruction of goods or conveyances--whether a biosecurity industry participant was in possession or control of the goods or conveyances at the time the destruction occurred; • whether the actions or omissions of any person, including the claimant, caused, or contributed to, the destruction; • any evidence provided by the claimant in relation to any of the above matters; • any other matter the Director of Biosecurity considers relevant. 801. The amendments made by this item are intended to provide transparency to individuals and businesses about the circumstances in which compensation may be payable under amended section 633, and the matters that the Director of Biosecurity may have regard to when making their decision. This will assist claimants to better understand, gather and submit the necessary information to support their claim for compensation. The provision of more detailed information by a claimant regarding their claim will, in turn, enable more expeditious assessment of the claim by the Director of Biosecurity. Item 28 After subsection 634(1) 802. Subsection 634(1) provides that section 634 applies in relation to goods, conveyances or other premises (compensable items) in respect of which the Director of Biosecurity may approve a payment of compensation under section 632 or 633 of the Biosecurity Act. 803. This item would insert new subsections 634(1A), (1B) and (1C) after subsection 643(1) of the Biosecurity Act. A new subheading titled "Claims for compensation" would be inserted before new subsection 634(1A) to provide a useful signpost for readers. 804. New subsection 634(1A) would set out the period in which a claim for compensation must be made. That is, a claim for compensation must be made by or on behalf of the owner of the compensable item before the end of the period of 12 months beginning on the day on which the damage or destruction occurred. However, if, when the damage or destruction occurred, the owner did not know that the damage or destruction had occurred, then the claim for compensation must be made before the end of the period of 12 months beginning on either: • The day on which the owner became aware of the damage or destruction; or • An earlier day, being the day on which the owner would have become aware of the damage or destruction if the owner had exercised due diligence. 138

805. The policy intention is that, generally, a period of 12 months beginning on the day on which the damage or destruction occurred provides a sufficient period of time for a claim for compensation to be made by or on behalf of the owner. However, new subsection 634(1A) also recognises that there may be cases where, at the time that the goods, conveyances or other premises are damaged or destroyed, the owner may not be aware of the damage or destruction having occurred. In such cases, it is considered appropriate for the claim for compensation to be made during an extended period, which is based on when the owner either became aware of the damage or destruction, or would have been aware, had they exercised due diligence. 806. New subsection 634(1B) would provide for other requirements in relation to the form and content of the claim for compensation. In particular, the claim would need to: • Be in an approved form, if such a form is approved by an instrument made under new subsection 634(1C); • Be accompanied by the documents (if any) prescribed by the regulations; • Specify the compensable item; • Specify the day on which the owner became aware of the damage or destruction; and • Specify the circumstances of the alleged damage or destruction. 807. This provision would ensure that the claimant provides the Director of Biosecurity with a certain level of information about the claim for compensation and the damage or destruction. The provision of more detailed information by a claimant regarding their claim will, in turn, enable more expeditious assessment of the claim by the Director of Biosecurity. 808. New subsection 634(1C) would allow the Director of Biosecurity to approve, by notifiable instrument, a form for the purposes of the claim for compensation. 809. This would reflect contemporary drafting practices and allow the form for a claim for compensation to be approved by notifiable instrument. Notifiable instruments must be registered on the Federal Register of Legislation, and this is consistent with the policy intention that approved forms should appear in a central location for claimants to access. Item 29 Subsections 634(3) and (4) 810. This item would repeal subsections 634(3) and (4) of the Biosecurity Act, which currently provides for requirements relating to a claim for compensation. These provisions are no longer required, as the requirements for such a claim would be set out in new subsections 634(1A) to (1C). This would be consequential to the insertion of new subsections 634(1A) to (1C) proposed by item 28 of this Schedule. Item 30 Application provisions 811. This item would make clear that the amendments in Part 5 of this Schedule are intended to apply prospectively, in relation to specified circumstances that occur on or after the commencement of this item. 139

812. Subitem 30(1) would provide that the amendments made by Part 5 of this Schedule apply in relation to a claim made under section 634 of the Biosecurity Act on or after the commencement of this item, whether the damage or destruction occurred before, on or after that commencement. 813. Subitem 30(2) would provide that, for the purposes of subitem 30(1), new paragraphs 632(1)(d) and 633(1)(d), as substituted by Part 5 of this Schedule, would apply in relation to a biosecurity industry participant, whether the direction concerned was given, or the arrangement concerned was approved, before, on or after the commencement of this item. 140

SCHEDULE 8--CONCEALMENT OF GOODS Background 814. Schedule 8 to the Bill would provide for a new civil penalty provision to target the concealment of conditionally non-prohibited goods that are brought or imported into Australian territory. The new civil penalty provision would also be subject to the infringement notice scheme under the Biosecurity Act. 815. Conditionally non-prohibited goods are goods specified in a determination in force under subsection 174(1) of the Biosecurity Act. Such determinations provide that specified classes of goods must not be brought or imported into Australian territory unless specified conditions are complied with. 816. Conditionally non-prohibited goods pose an unacceptable level of biosecurity risk if specified conditions are not complied with. There are existing criminal offences and an existing civil penalty provision under section 186 of the Biosecurity Act, which apply where conditionally non-prohibited goods are brought or imported into Australian territory and specified conditions applying to such goods are not complied with. 817. The new civil penalty provision outlined in this government amendment would apply a higher maximum civil penalty of 1,200 penalty units in circumstances where the contravention also includes concealment of the conditionally non-prohibited goods for the purposes of preventing a biosecurity official from finding the goods or determining the true nature of the goods. The concealment of goods prevents biosecurity officers from being able to assess the biosecurity risk associated with the goods, and where necessary, take measures to manage any such biosecurity risks. This includes risks arising from Foot and Mouth Disease which could be introduced to Australia by goods that are brought or imported into Australia by incoming travellers. 818. Where an infringement officer (as defined under the Biosecurity Act) believes on reasonable grounds that a person (individual or a body corporate) has contravened the new civil penalty provision, then the officer may give the person an infringement notice for the alleged contravention. The amount to be stated in the infringement notice would be 16 penalty units for an individual or 80 penalty units for a body corporate. 819. This Schedule would commence on the day after the proposed Act receives the Royal Assent. The amendments made by this Schedule would not have effect until that day. Biosecurity Act 2015 Item 1 Section 9 820. Section 9 provides definitions for the Biosecurity Act. This item would insert a new definition of conceal in section 9 of the Biosecurity Act. This new definition would provide that, to conceal goods, would have a meaning that is affected by new subsection 186A(2). This would be consequential to the insertion of new subsection 186A(2), proposed by item 2 of this Schedule. 141

Item 2 After section 186 821. This item would insert new section 186A in the Biosecurity Act, which would provide for a new civil penalty provision. 822. New subsection 186A(1) would provide that a person is liable to a civil penalty if: • the person brings or imports goods into Australian territory (new paragraph 186A(1)(a)); and • the goods are conditionally non-prohibited goods (new paragraph 186A(1)(b)); and • a condition in relation to the goods specified in a determination in force under subsection 174(1) has not been complied with (new paragraph 186A(1)(c)); and • the goods are concealed for the purpose of preventing the goods from being found, or preventing the true nature of the goods from being determined, by a biosecurity official (new paragraph 186A(1)(d)). 823. Conditionally non-prohibited goods are goods specified in a determination in force under subsection 174(1) of the Biosecurity Act. Such determinations provide that specified classes of goods must not be brought or imported into Australian territory unless specified conditions are complied with. Conditionally non-prohibited goods pose an unacceptable level of biosecurity risk if specified conditions are not complied with. 824. For the purposes of new paragraph 186A(1)(d), a biosecurity official is defined in existing section 9 of the Biosecurity Act as a biosecurity officer, a biosecurity enforcement officer or the Director of Biosecurity. Where conditionally non-prohibited goods have been concealed for the purposes of preventing a biosecurity official from finding the goods or determining the true nature of the goods, this represents serious behaviour that may make it more difficult for unacceptable biosecurity risk to be managed and is therefore indicative of a higher level of culpability than importing such goods into Australian territory without attempting to conceal the goods, or non- compliance with the specified conditions applying to such goods. 825. New subsection 186A(2) would provide a non-exhaustive definition of the conduct that would be covered if a person were to conceal goods. Such conduct would include any of the following: • concealing or disguising the goods on a person, within any clothing worn by the person, within any other object located on the person or within any other object not located on the person (including by sewing, gluing, fastening, binding, wrapping, covering, enveloping or packaging the goods) (new paragraph 186A(2)(a)); • incorrectly marking or labelling the goods or any packaging or container in which the goods are located (new paragraph 186A(2)(b)); • altering the goods (including by changing or suppressing the appearance, texture, smell or sound of the goods) (new paragraph 186A(2)(c)) It is necessary to provide for a broad non-exhaustive definition for the phrase conceal goods, because there are innumerable ways, in which a person, who wishes to conceal conditionally non-prohibited goods, might seek to achieve their objective. In the past, 142

the department has located conditionally non-prohibited goods that have been concealed on a person, in the person's clothing or in the person's luggage. There have also been occasions where conditionally non-prohibited goods have been concealed within a container with incorrect markings or labels, or where the goods have been altered during its concealment. For example, if a person sought to conceal a conditionally non-prohibited good that is a live animal, then they may seek to change the appearance, or suppress the smell or sound of the animal. 826. The policy intention is that new subsection 186A(2) would ensure that any of the examples identified in the previous paragraph would be covered by the phrase conceal goods. 827. A person would only be liable to the civil penalty in new subsection 186A(1) where the elements of new paragraph 186A(1)(d) are met. That is, the goods must be concealed for the purpose of preventing the conditionally non-prohibited goods from being found, or preventing the true nature of the goods from being determined, by a biosecurity official. The policy intention is that the new civil penalty provision should be targeted to those situations where goods are concealed in order to evade detection or goods are disguised to hinder the presence or nature of the goods from being ascertained. Where a person has placed the goods inside a container or in their luggage, merely for storage or transportation purposes, then it is intended that new paragraph 186A(1)(d) would not be met. Instead, in those situations, if the goods are conditionally non-prohibited goods, the person has brought or imported those goods into Australian territory, and the specified conditions applying to the goods are not complied with, then the person may still be liable to the existing civil penalty provision in section 186 of the Biosecurity Act (discussed below). 828. For the avoidance of doubt, it is not intended that new paragraph 186A(1)(d) would require proof of the person's intention to conceal goods for the relevant purpose. Rather, new paragraph 186A(1)(d) would require the evidence to establish that the goods were concealed for the relevant purpose. 829. The maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under new subsection 186A(1) is 1,200 penalty units. If the person is a body corporate, the maximum penalty must not be more than 5 times the amount specified in each relevant proposed subsection (see subsection 82(5) of the Regulatory Powers Act, as enabled by section 519 of the Biosecurity Act). 830. There are existing criminal offences and an existing civil penalty provision under section 186 of the Biosecurity Act, which apply where conditionally non-prohibited goods are brought or imported into Australian territory and specified conditions applying to such goods are not complied with. For example, where a person is liable to a civil penalty under existing subsection 186(3) of the Biosecurity Act, the maximum civil penalty is 1,000 penalty units. However, where the conditionally non-prohibited goods have also been concealed for the purposes of preventing a biosecurity official from finding the goods or determining the true nature of the goods, then it is appropriate that a higher civil penalty should apply to new subsection 186A(1). The maximum civil penalty of 1,200 penalty units in new subsection 186A(1) is needed to deter those who are considering evading detection by concealing conditionally non- 143

prohibited goods, as such goods could jeopardise Australia's biosecurity status. Under the Biosecurity Act, the biosecurity risks associated with conditionally non-prohibited goods, where specified conditions that apply to the goods have not been complied with, are managed through the implementation of regulatory controls put in place to intercept such goods. These controls are necessary to reduce the biosecurity risk associated with the goods to an acceptable level. It is important that persons who are bringing or importing conditionally non-prohibited goods, through the traveller, mail or cargo pathways, ensure that the specified conditions have been met, and that the goods are declared and presented for assessment and inspection. This provision will aim to deter persons from concealing conditionally non-prohibited goods, where specified conditions have not been met, and the goods have been concealed for the purposes of preventing a biosecurity official from finding the goods or determining the true nature of the goods. This will enable biosecurity officers to manage the biosecurity risk to an acceptable level. 831. New subsection 186A(3) would provide that new subsection 186A(1) would not apply if the person: • did not do the act, or omit to do the act, that constituted the failure to comply with the condition referred to in new paragraph 186A(1)(c); • did not aid, abet, counsel or procure that act or omission; and • was not in any way knowingly concerned in, or party to, that act or omission (whether directly or indirectly and whether by any act or omission of the person). 832. The note following new subsection 186A(3) would clarify that the defendant bears an evidential burden in relation to the matters in new subsection 186A(3), and refers readers to section 96 of the Regulatory Powers Act. This is consistent with the principles set out in the Guide, because the matters outlined in new subsection 186A(3), including the issue of whether the person did not do, aid, abet, counsel, procure the act or omission, or was not in any way knowingly concerned in an act or omission, is within the scope of knowledge of the defendant. It is likely to be significantly more difficult and costly for the prosecution to disprove this point, than for the defendant to establish this. Further, the evidential burden that is placed on the defendant is not central to the question of culpability for the relevant civil penalty in new subsection 186A(1), but rather only applies to a defendant seeking to rely on the exception to that penalty. This approach is consistent with the approach taken for exceptions to other existing civil penalty provisions, set out in subsection 186(7) of the Biosecurity Act. Item 3 Subsection 523(1) (after table item 8) 833. Subsection 523(1) of the Biosecurity Act sets out the provisions of the Biosecurity Act that are subject to an infringement notice under Part 5 of the Regulatory Powers Act. Part 5 of the Regulatory Powers Act creates a framework for the use of infringement notices where an infringement officer believes on reasonable grounds that a provision has been contravened under an Act. 834. Section 101 of the Regulatory Powers Act provides that a person is an infringement officer for the purposes of exercising powers under Part 5 of the Regulatory Powers Act in relation to a contravention of a provision if an Act provides that the person is an 144

infringement officer in relation to that provision for the purposes of Part 5. Subsection 523(2) of the Biosecurity Act provides that the Director of Biosecurity is an infringement officer for the purposes of Part 5 of the Regulatory Powers Act and, by operation of subsections 542(1) and (2) of the Biosecurity Act, the powers and functions of an infringement officer may be subdelegated to biosecurity officials. 835. This item would amend the table in subsection 523(1) to insert new item 8A. This would have the effect that the civil penalty provision in new subsection 186A(1) would be subject to an infringement notice under Part 5 of the Regulatory Powers Act. It is considered appropriate that new subsection 186A(1) be subject to an infringement notice, as a high volume of contraventions is possible, and an infringement officer could easily assess whether there has been an alleged contravention. The ability to issue an infringement notice for contravention of new subsection 186A(1) would allow the notice with the stated amount to be issued immediately and to be effective in deterring non-compliance with the specified conditions applying to conditionally non-prohibited goods. Further details of the amount to be stated in the infringement notice are discussed below. Item 4 After subsection 524(4) 836. Section 524 of the Biosecurity Act provides for certain modifications of Part 5 of the Regulatory Powers Act, which are relevant to the context of the biosecurity infringement notice scheme. Subsection 524(4) of the Biosecurity Act provides that the amount to be stated in an infringement notice for the purposes of paragraph 104(1)(f) of the Regulatory Powers Act for the alleged contravention of the provision by the person must be the least 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; and • if the regulations prescribe a different number of penalty units for the alleged contravention of the provision by the person--that number of penalty units 837. This item would insert a new subsection 524(4A), which would provide that despite subsection 524(4) of the Biosecurity Act, the amount to be stated in an infringement notice for the purposes of paragraph 104(1)(f) of the Regulatory Powers Act for the alleged contravention of new subsection 186A(1) (as inserted by this Schedule) by a person must be 16 penalty units (for an individual) or 80 penalty units (for a body corporate). This approach ensures that a set amount is specified in an infringement notice, to ensure that infringement notices are issued consistently. 838. The principles in the Guide provide that the amount payable under an infringement notice scheme should generally not exceed 12 penalty units for a natural person or 60 penalty units for a body corporate. However, the Guide also recognises that if the amount payable 'is too low it will be an inadequate deterrent and ... may be paid as a cost of doing business'. It is important that the amount to be stated in an infringement notice for an alleged contravention of new subsection 186A(1) is set at a level that provides an adequate deterrent and that any penalty is not seen as a 'cost of doing business'. If a person conceals conditionally non-prohibited goods of biosecurity 145

concern when bringing or importing the goods into Australian territory, this may allow high risk biosecurity risk material to enter Australian territory undetected and without intervention by a biosecurity officer to assess the level of biosecurity risk and subsequently manage it to an acceptable level. This action of concealment displays a serious circumvention of the Biosecurity Act. It is very important to deter this behaviour to protect Australia's biosecurity status, as such behaviour could affect Australia's environment, economy, or plant, animal or human health with devastating effects. Item 5 Subsection 633(2) 839. Subsection 633(2) of the Biosecurity Act provides that the Director of Biosecurity must not approve the payment of compensation under section 633 in respect of goods that were brought or imported into Australian territory in contravention of subsection 185(1) or 186(1). 840. This item would omit the words "or 186(1)", and substitute ", 186(1) or 186A(1)". This would have the effect that where goods are brought or imported into Australian territory in contravention of new subsection 186A(1), then the Director of Biosecurity must not approve the payment of compensation in respect of such goods. This amendment would be consequential to the insertion of new subsection 186A(1), proposed by item 2 of this Schedule. Item 6 At the end of subsection 633(2) 841. This item would add a new note 3 at the end of subsection 633(2) of the Biosecurity Act. New note 3 would assist readers by providing a simplified explanation of when new subsection 186A(1) is contravened. This note is not intended to be comprehensive, and it is intended that readers would refer to the substantive provisions of new section 186A to understand their effect. Item 7 Application provision 842. This item would provide that the amendments made by this Schedule would apply in relation to goods brought or imported into Australian territory on or after the commencement of this Schedule. 146

CHOOSE CLASSIFICATION ATTACHMENT A Pratique and human health pre- arrival reporting: amendments to the Biosecurity Act 2015 Regulation Impact Statement Department of Agriculture, Fisheries and Forestry Biosecurity Operations Division, OBPR ID 22-0257 CHOOSE CLASSIFICATION

© Commonwealth of Australia 2022 Ownership of intellectual property rights Unless otherwise noted, copyright (and any other intellectual property rights) in this publication is owned by the Commonwealth of Australia (referred to as the Commonwealth). Creative Commons licence All material in this publication is licensed under a Creative Commons Attribution 4.0 International Licence except content supplied by third parties, logos and the Commonwealth Coat of Arms. Inquiries about the licence and any use of this document should be emailed to copyright@awe.gov.au. Cataloguing data This publication (and any material sourced from it) should be attributed as: DAFF 2022, Regulation Impact Statement- Pratique and Human Health Pre-Arrival Reporting, Department of Agriculture, Fisheries and Forestry, Canberra, August. CC BY 4.0. This publication is available at agriculture.gov.au/publications. Department of Agriculture, Fisheries and Forestry GPO Box 858 Canberra ACT 2601 Telephone 1800 900 090 Web agriculture.gov.au Disclaimer The Australian Government acting through the Department of Agriculture, Fisheries and Forestry has exercised due care and skill in preparing and compiling the information and data in this publication. Notwithstanding, the Department of Agriculture, Fisheries and Forestry, its employees and advisers disclaim all liability, including liability for negligence and for any loss, damage, injury, expense or cost incurred by any person as a result of accessing, using or relying on any of the information or data in this publication to the maximum extent permitted by law. Acknowledgement of Country We acknowledge the Traditional Custodians of Australia and their continuing connection to land and sea, waters, environment and community. We pay our respects to the Traditional Custodians of the lands we live and work on, their culture, and their Elders past and present. Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 1

Contents Executive Summary .................................................................................................................................................................... 1 The problem ........................................................................................................................................................................... 1 Need for action ....................................................................................................................................................................... 1 Options ................................................................................................................................................................................... 2 Current setting ........................................................................................................................................................................... 4 Overview ................................................................................................................................................................................ 4 International Health Regulations ........................................................................................................................................... 4 Biosecurity Act 2015 ............................................................................................................................................................... 4 1. What is the problem you are trying to solve? ........................................................................................................................ 6 Overview ................................................................................................................................................................................ 6 Key issues ............................................................................................................................................................................... 7 Affected businesses, community organisations or individuals .............................................................................................. 9 2. Why is Government action needed? ...................................................................................................................................... 9 Objectives ............................................................................................................................................................................... 9 Human Health Risks.............................................................................................................................................................. 10 Supporting Economic Recovery ............................................................................................................................................ 10 3. What policy options are you considering? ........................................................................................................................... 10 3.1 Option 1 - Status Quo .................................................................................................................................................... 10 3.2 Option 2 - Emergency powers and legislative instruments ........................................................................................... 11 3.3 Option 3 - Amendments to the Biosecurity Act ............................................................................................................. 12 4. What is the likely net benefit of each option? ..................................................................................................................... 13 4.1 Option 1 - Status Quo .................................................................................................................................................... 13 4.2 Option 2 - Emergency powers and legislative instruments ........................................................................................... 16 4.3 Option 3 - Amendments to the Biosecurity Act ............................................................................................................. 18 5. Who did you consult and how did you incorporate their feedback? ................................................................................... 21 6. Preferred Option .................................................................................................................................................................. 22 Option 3: Amendments to the Biosecurity Act .................................................................................................................... 22 7. How will you implement and evaluate your chosen option? ............................................................................................... 23 Reference ................................................................................................................................................................................. 24 Appendix A ........................................................ Relevant recommendations from the NSW Special Commission of Inquiry .................................................................................................................................................................................................. 25 Appendix B ................................................ Relevant recommendations from the Inspector-General of Biosecurity's review .................................................................................................................................................................................................. 26 Appendix C ...................................................................................... Regulatory Burden Estimate - Data and Assumptions .................................................................................................................................................................................................. 27 Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 2

Appendix D................................................ Benefits to the Broader Australian Economy and the Australian Cruise Industry .................................................................................................................................................................................................. 30 Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 3

Executive Summary This Regulatory Impact Assessment addresses areas for priority reform of the Commonwealth biosecurity legislation identified in the context of the COVID-19 pandemic concerning biosecurity risk reporting by vessels and aircraft. The emergence and global spread of the COVID-19 pandemic since early 2020 has tested Australia's human biosecurity systems in an unprecedented way and its widespread impacts are ongoing. In response, significant scrutiny has focussed on the laws underpinning biosecurity and, in particular, the ability of the Commonwealth to effectively respond under the Biosecurity Act 2015 (the Act). The berthing of the Ruby Princess cruise ship in Sydney on 19 March 2020 represented a significant human biosecurity issue. The problem Independent reviews of the Ruby Princess incident identified key areas to improve the framework for managing human biosecurity risks onboard vessels and aircraft entering Australia. The New South Wales Special Commission of Inquiry into the Ruby Princess Cruise Ship Incident Report and the Inspector-General of Biosecurity Review Confidence testing for at-border delivery of critical human biosecurity functions - Ruby Princess cruise ship incident both recommended changes to the Act's provisions managing human health risks for incoming passengers to Australia (see Appendices A and B). The independent recommendations and reviews and the lessons learnt through the pandemic response to COVID-19 have highlighted specific issues with the Act relating to: • The operation of pratique provisions • Pre-arrival reporting obligations and the importance of human health assessments prior to entry to a port. Need for action The proposed regulatory actions being assessed would change the biosecurity risk management framework for pre-arrival reporting for international vessels and aircraft entering Australian territory. In its current form, pre-arrival reporting requirements cannot be differentiated to most appropriately manage risks, for example the human health risks posed by cruise vessels identified in the course of the COVID-19 pandemic. Statutory amendment would better position the Commonwealth to more effectively fulfil the objectives of the Act. Government intervention to address this issue would support the capability to flexibly adapt the assessment and management of biosecurity risks, ensuring the most reliable and up-to-date information is available by introducing the requirement for a cruise vessel to provide a second pre-arrival report about human health before berthing in Australia, and clarifying that operators of vessels and aircraft must update information provided in a pre-arrival report where it has become out of date. In the immediate term, this would strengthen responses to the ongoing COVID-19 pandemic. Longer term, it would offer the flexibility to adapt controls to manage novel and emerging infectious human disease risks or other pests and diseases. The need for action was identified through several avenues, including independent reviews into the arrival of the Ruby Princess cruise ship at the Port of Sydney and the subsequent transmission of COVID-19 in the community. In the emerging pandemic in early 2020, government responses included the declaration of a human biosecurity emergency under the emergency powers of the Act and related exercise of these powers. Regular jurisdictional meetings were introduced and new human health processes for commercial vessels were implemented, international cruise vessels were banned from entering and operating in Australia, and traveller entry and exit restrictions applied. In March 2022, the Biosecurity (Negative Pratique) Instrument 2016 (Negative Pratique Instrument) was amended to apply new measures to mitigate the risk of COVID-19 in cruise vessels that assisted that industry to restart, although at well below pre-pandemic numbers. Significant operational and procedural enhancements developed over the course of the pandemic were also implemented to further safeguard biosecurity controls at the border and protect travellers, and the Australian community. Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 1

Because not all of these measures offer a long-term solution to the identified issues, the need for legislative amendments remains. Without the proposed amendments, the issues identified in this pandemic could reoccur, with the result that Australia's industries and people remain at risk, particularly upon the recommencement of the international cruise industry, or in other circumstances where additional pre-arrival reporting could support better management of risk. The objectives of the reforms being assessed are to: • better support human health risk assessments and operational responses to the risk of the entry, emergence and spread of listed human diseases on vessels and aircraft entering Australian territory, such as COVID-19, complementing other legislative amendments to deter non-compliance with statutory requirements by introducing more effective sanctions. • support the national COVID-19 economic recovery, including the recovery of the cruise ship industry as it resumes in Australia, and shoring up the human health biosecurity framework into the future. • ensure pre-arrival reporting is appropriately flexible to differentiate the management of particular biosecurity risks (including to human health) by permitting more than one report to be required in certain circumstances, for example in response to a listed human disease on a cruise vessel or a novel pest on a cargo vessel where this would enhance biosecurity risk management. Options This RIS outlines three policy options for Australian Government action: 1. Status quo - The Act includes an existing scheme for managing human biosecurity risks. The scheme allows biosecurity officers to refuse to grant pratique where listed human diseases have been reported. Extra human health reporting and risk assessment criteria cannot be enforced, and there is too heavy a reliance on state and territory public health powers to respond to risks identified at the first point of entry. The Australian community will continue to be at a heightened risk of exposure to COVID-19 and other listed human diseases through commercial and cruise vessel, and aircraft, operations. The Negative Pratique Instrument ensures a cruise vessel 'remains subject to negative pratique upon berthing (where pratique must be granted by a biosecurity officer before goods or persons are allowed on or off a vessel)'. A biosecurity officer must make an assessment to ensure any reported illness on board is true and correct prior to the granting of pratique. 2. Emergency powers and legislative instruments - Option 2 uses existing legislative authority to manage relevant human biosecurity risk, including legislative instruments and the Biosecurity Regulation 2016 and the Biosecurity Human Health Regulation 2016. In the current state, following the end of the declared human biosecurity emergency in relation to COVID-19, the delegated powers to make legislative instruments are being used to appropriately increase human biosecurity controls. Reliance on delegated powers may generate uncertainty for regulated industries and for the interaction of Commonwealth agencies with state and territory counterparts. a. Reliance on such delegated legislation without a standardised power to manage the risks of pests and disease associated with conveyances would result in a less consistent, and therefore more administratively burdensome, system for regulated entities, the Commonwealth and other jurisdictions engaging in this system. 3. Amendments to the Biosecurity Act - Option 3 would seek to amend the Act so it is flexible and capable of differentiated reporting requirements to control for different biosecurity risks, including to address the identified risk of listed human diseases entering Australia through international vessel arrivals. Option 3 would target the issues identified in the context of the COVID-19 pandemic with consequential amendments to relevant regulations. The specific amendment proposals include: multiple pre-arrival reporting requirements for aircraft and vessels; requirements to update pre-arrival reporting; and new and increased penalties for non-compliance with pratique and reporting requirements. Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 2

Amending the Biosecurity Act - the preferred option The targeted reform proposed in Option 3 would contribute to the national COVID-19 economic recovery, including supporting the international cruise ship industry as it resumes operation in Australia. The proposed legislative amendments aim to address the risk of listed human diseases entering Australian territory through international arrivals and would apply in the context of the ongoing COVID-19 pandemic. Looking ahead, a more flexible and targeted statutory framework for pre- arrival reporting would promote certainty and bolster the biosecurity framework's agility and underpinning operational capability to respond to new and emerging human biosecurity and biosecurity risks in maritime and air pathways. A key benefit expected to materialise from the preferred option is the support it lends toward the recovery of the cruise industry, to pre-pandemic levels. This includes refilling the 18,135 jobs that existed at the end of the 2018-19 financial year and building back up to the $5.2 billion in annual economic output that was generated directly and indirectly by the industry. Any regulation that will support the recovery of the industry will be of significant value to the Australian economy and community as a whole. The global cruise industry is reporting significant improvements in 2021 following the reopening of the industry in north America and Europe and anticipates returns to pre-pandemic numbers by 2022-23 (Cruise Lines International Association 2022). For Australia, the recovery to pre-pandemic levels is anticipated to take longer because international cruises to Australia recommenced on 17 April 2022 following a two-year ban. The proposed changes address the desired policy objectives, with the benefits significantly outweighing quantifiable increases in the regulatory burden for businesses. The quantifiable regulatory burden is estimated at $ 0.075 million per year or $0.75million in total over ten years (expressed in present value terms), over maintaining the current regulatory framework (Option 1). The likely impacts of the preferred option would arise primarily from additional reporting requirements where applicable, either because of the type of conveyance or because certain circumstances are met to trigger a requirement for a subsequent or updated pre-arrival report. The increased regulatory burden would be offset at least partly by savings due to the more nuanced human health risk management regime with a requirement for a report closer to the time of berthing that would serve to update information available about human health risks. By permitting more accurate and up to date information to be provided by an operator about human health, the proposed additional reporting requirements would complement the operation of the Negative Pratique Instrument which all cruise vessels arrive in negative pratique and a biosecurity officer must then manually assess the vessel to decide if it is appropriate to grant pratique. However, it was not possible to estimate the quantum of these savings. These proposed changes can only be implemented by the government amending the existing legislative scheme to require more than one pre-arrival report. Without the proposed legislative amendments, the Commonwealth's biosecurity framework would continue to be limited in its capacity to effectively secure the objectives of the Act. The Australian community and public health systems may be at a heightened risk of listed human diseases, such as COVID-19 or other novel communicable diseases, entering, establishing or and spreading within Australian territory. While the present focus is on cruise vessels, this risk has materialised multiple times with commercial vessels during the COVID-19 pandemic and the proposed framework would offer suitable flexibility to adapt to the risk posed in those types of vessels depending on the characteristics of the human biosecurity risk, or biosecurity risk, associated with the vessel and the goods it is carrying. Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 3

Current setting Overview All aircraft and maritime vessels arriving in Australian territory from overseas are subject to Australian biosecurity requirements to manage the risk of listed human diseases entering Australian territory. Cruise ships present a heightened risk for transmission of communicable diseases. They bring diverse populations into close proximity for many days, with significant numbers of passengers and crew interacting in a confined environment, with heightened potential for spread of communicable diseases. In addition, they move rapidly from one port to another, interacting with local community members. The Commonwealth manages these at-border public health risks, which also contributes to the implementation of Australia's international rights and obligations under the International Health Regulations (2005). States and territories have their own statutory frameworks for public health, including the emergency responses required to address issues such as the COVID-19 pandemic. Each of these jurisdictions also has a principal medical advisor. National responses to health emergencies, such as COVID-19, are coordinated through National Cabinet, and advised by Australian expert bodies such as the Australian Health Protection Principal Committee (AHPPC), which is in turn informed by the Chief Human Biosecurity Officer (CHBO) Forum. International Health Regulations The International Health Regulations (2005) (IHR) are the key binding international legal instrument for detecting, preventing and responding to acute public health risks with potential to cross borders and threaten people worldwide. The IHR seek to prevent the international spread of infectious diseases while avoiding unnecessary interference with international traffic and trade. The IHR is binding on 196 countries across the globe, including all Member States of the World Health Organization (WHO). As a Member State of the WHO, Australia is obliged to comply with the IHR. The IHR establishes a minimum standard for public health prevention, preparedness and response. These standards include activities and functions such as ship sanitation and points of entry (including pratique). Australia has incorporated key IHR standards into domestic law, including at the national level through the Act and the National Health Security Act 2007. Biosecurity Act 2015 Commencing on 16 June 2016, the Act is co-administered by the Ministers responsible for the Agriculture and Health portfolios. It provides a range of powers for managing biosecurity risks to human health, including entry and exit screening, management of ill travellers, vector monitoring and control, and flexible emergency and preventative powers. It also gives effect to Australia's IHR obligations in relation to ship sanitation, points of entry, Public Health Emergencies of International Concern, and yellow fever vaccination. Chapter 2 of the Biosecurity Act deals with managing risks to human health, setting out a framework for the determination of listed human diseases by the Director of Human Biosecurity. These are diseases that the Director considers may be communicable and may cause a significant harm to human health. The Biosecurity (Listed Human Diseases) Determination 2016 lists eight human diseases including human coronavirus with pandemic potential. Powers available to prevent risks to human health such as those posed by listed human diseases entering, emerging, establishing or spreading in Australian territory include the power to impose entry requirements, pratique requirements and the imposition of human biosecurity control orders (HBCO) on individuals. Pratique The Act provides for the granting of pratique. If pratique is not granted, goods are not permitted to be loaded or unloaded from, or persons to embark or disembark from, vessels or aircraft. An aircraft means 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. A Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 4

vessel means any kind of vessel used in navigation by water, for example a ship or yacht. The Act refers to two types of pratique, positive pratique and negative pratique. Positive Pratique Ordinarily, most aircraft and vessels are granted pratique on their arrival in Australian territory by force of section 48 of the Act. This means that a decision is not required by a biosecurity officer before people can embark or disembark, and goods can be unloaded or loaded from an aircraft or vessel. Once granted, there is no provision for pratique to be revoked. The Navigation Act 2012 does permit certain exceptions to pratique obligations, consistent with international maritime and seafarer safety obligations, for example for a crew member to access emergency health care or to stock essential supplies. Negative Pratique If a vessel falls into a category prescribed by the Negative Pratique Instrument made under subsection 49(1) of the Act by the Director of Human Biosecurity, then it will be subject to negative pratique and will not be able to disembark passengers or unload goods until pratique is granted by a biosecurity officer. The Negative Pratique Instrument prescribes certain requirements that must be complied with for the granting of pratique for the following classes of aircraft or vessel: Class 1 - aircraft for which disinsection measures have not been carried out. Class 2 - aircraft or vessels where there is an individual with signs or symptoms or possible exposure to a Listed Human Disease, or a death onboard (as advised through a pre-arrival report or otherwise). Class 3 - cruise vessels, non-commercial vessels (for example, private yachts) and vessels that have not complied with the requirements to provide a pre-arrival report (other than non-commercial vessels). Compliance with pratique The Act includes a civil penalty for breaches of the pratique obligations under section 48. The responsibility to comply with pratique requirements and associated penalty for non-compliance apply to the operator of the aircraft or vessel. Section 21 defines operator of a conveyance to mean the body corporate or an unincorporated body responsible for the operation of the conveyance, which is the owner. If there is no body corporate and no unincorporated body responsible for operation of the conveyance, the operator is the person in charge of the aircraft or vessel. In the commercial context of cruise ships, a body corporate or unincorporated body, frequently in another international jurisdiction, is the operator and responsible for compliance with pratique requirements while the ship itself has a commercial crew and master responsible for the management of the ship. This means that an operator is liable for non-compliance and potential civil sanction for contravening pratique requirements in the Act, while no direct sanction is available for the person in control of the vessel or aircraft. Pre-arrival reporting Chapter 4 of the Act deals with managing biosecurity risks in relation to aircraft and vessels that enter Australian territory from outside Australian territory, including provisions for pre-arrival reporting. Pre-arrival reporting required by the Act is a critical source of information for the assessment and management of biosecurity and human biosecurity risks on aircraft and vessels. The granting of pratique is contingent on this assessment and civil sanctions apply for non-compliance with the reporting requirements. The reporting requirements are prescribed by the Biosecurity Regulation 2016. Under section 193, the operator of an aircraft or vessel must give a report: • if it is intended that the aircraft or vessel enter, or if the aircraft or vessel enters into, Australian territory, either on a flight or voyage that commenced outside Australian territory, or after being exposed to another conveyance while outside Australian territory; or • it is intended that the aircraft or vessel be, or is, exposed to a conveyance that is subject to biosecurity control, or goods that are subject to biosecurity control and are of a kind prescribed by the regulations. Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 5

For vessels other than non-commercial vessels, the Biosecurity Regulation 2016 requires the pre-arrival report to be submitted within 96 to 12 hours of estimated time of arrival at a First Point of Entry (as defined by section 18 of the Act). Different reporting times apply to other conveyances such as non-commercial vessels (for example, private yachts) and aircraft. Section 194 requires operators of aircraft and vessels to rectify incorrect or incomplete reports by providing additional or corrected information to a biosecurity officer. However, if the human health status onboard a vessel changes after the pre- arrival report is submitted, the wording of the section does not provide a clear obligation to update information in a report. A person is liable to a fault-based (criminal) offence or a civil penalty if they fail to provide the information required under section 194. 1. What is the problem you are trying to solve? Overview This Regulation Impact Statement (RIS) assesses the effectiveness of Commonwealth biosecurity legislation to address priority issues identified in the context of the COVID-19 pandemic. The emergence and global spread of the COVID-19 'once in a century' pandemic since early 2020 has tested Australia's human biosecurity systems in an unprecedented way. Significant public and parliamentary scrutiny focussed on the laws underpinning biosecurity, and in particular the ability of the Commonwealth to respond effectively under the Act. The berthing of the Ruby Princess cruise ship in Sydney on 19 March 2020 represented a significant human biosecurity issue. Reviews of the Ruby Princess incident identified key areas for targeted reform to the Act to provide a better management framework for the risks. These reviews include the NSW Special Commission of Inquiry into the Ruby Princess Cruise Ship Incident Report and the Inspector-General of Biosecurity's Review Confidence testing for at-border delivery of critical human biosecurity functions - Ruby Princess cruise ship incident. The recommendations from these reviews and the lessons learnt through the pandemic response to COVID-19 have highlighted specific issues with the legislation relating to: • The operation of pratique provisions within the Act; and • Pre-arrival reporting obligations and the importance of accurate and timely human health assessments prior to arrival at a port. At the time of writing, the pandemic continues but Australia is no longer under a human biosecurity emergency at the Commonwealth level and international travel, including the entry of international cruise vessels, is resuming with volumes projected to increase to pre-pandemic levels. Changes to the regulatory framework such as revised reporting and operational procedures, and the amendment of the Negative Pratique Instrument to include cruise ships as a class of vessel that arrives in negative pratique, all support improved human health risk identification and management. Changes to the pre-arrival reporting statutory framework are still required to ensure certainty and consistency and are the most effective way to ensure appropriate information about human health is available for timely assessment and management of human health risk. Maritime vessels are a key risk pathway for infectious disease International maritime vessels present a significant risk pathway for infectious disease entry to Australian territory. Cruise vessels have a unique risk profile with particularly high risk for the transmission of communicable diseases, including COVID- 19. There have also been multiple incidents of COVID-19 infections involving crew on commercial vessels such as bulk carriers and livestock ships. Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 6

Data sourced from the department show that 1,621 positive cases of COVID-19 were detected in travellers arriving on commercial and cruise vessels from 1 February 2020 to 3 August 2022. The cases compounded the ongoing economic disruptions in Australia. To manage the cases, government interventions including public health and social measures were required, resulting in disruptions that included state-wide lockdowns, national border closures and the banning of cruise vessels. These actions have negatively impacted industries by reducing their economic activity and inhibiting their ability to trade locally and internationally. To understand the government response to these cases, it is important to recognise that the actions undertaken occurred within an ongoing government response in an evolving situation. In January 2020, prior to the events of the Ruby Princess, the Director of Human Biosecurity had determined 'human coronavirus with pandemic potential', including COVID-19, as a listed human disease, which enabled the implementation of additional COVID-19 screening requirements at First Points of Entry. In March 2020, on advice from the Health Minister, the Governor-General declared the existence of a human biosecurity emergency under section 475 of the Biosecurity Act with measures under those powers including banning the entry of foreign-flagged cruise vessels into Australian waters, and operation of cruise vessels within Australian waters, with limited exceptions. The human biosecurity emergency declaration ceased on 17 April 2022, since then there have been seven voyages of international cruise vessels to Australia. Key issues Pratique Once a vessel has arrived at the port precinct at the first point of entry, and has been granted pratique, cargo can be unloaded, and passengers may disembark. Where pratique is not granted, no cargo can be loaded or unloaded, and no passengers can embark or disembark. When a human health concern (death or illness onboard) is notified through the pre-arrival report, the ship is subject to negative pratique. There is no provision for pratique to be revoked. To an extent this results in an 'all or nothing' outcome for the vessel. From a regulatory perspective, negative pratique may be considered a fairly binary tool. However, the quality of information and its timely provision by operators of vessels about human health risks on board are key to supporting the effective and efficient use of pratique controls to identify human health risks and implement measures to appropriately manage the risks. Non-compliance with pratique requirements Before pratique is granted, the operator of an aircraft or vessel must not allow anything to be loaded or unloaded or any person to embark or disembark the aircraft or vessel. A civil penalty may apply for a breach of this requirement of up to 120 penalty units (with a corporate multiplier that a court may apply to order a corporation found liable to pay up to five times that amount). But as noted above, these penalties only apply to the operator of the aircraft or vessel and in the case of commercial vessels the operator would generally be a corporation, which may be located overseas. The current framework of the Act does not impose a penalty on the person in charge of an aircraft or vessel for any breaches of pratique requirements, such as passengers disembarking before pratique is granted. The Inspector-General of Biosecurity reported that it appears that any passenger or crew member, who knowingly disembarks a vessel that is in negative pratique, may not be in breach of the Act. Further, the Inspector-General of Biosecurity noted that the person in charge of an aircraft or vessel would also not be responsible for any non-compliance with negative pratique requirements. Pre-arrival reporting Effective decision-making about the granting of pratique depends on officers' access to reliable and up-to-date information on the health of passengers and crew aboard vessels. Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 7

Section 193 requires the operator of an aircraft or vessel entering Australia to provide a pre-arrival report. The pre-arrival report facilitates a preliminary biosecurity assessment of the vessel or aircraft and any people onboard, including passengers and crew. The pre-arrival report is important to the determination of the vessel's pratique status. If a relevant illness is identified in the report, the vessel falls within a negative pratique class and is not permitted to disembark passengers or load or unload cargo, unless pratique is subsequently granted by a biosecurity officer once satisfied the relevant requirements have been met. Cruise ships, and all other commercial vessels, must provide a pre-arrival report between 12 and 96 hours before the estimated time of arrival at an Australian port, in accordance with the requirements in the Biosecurity Regulation 2016. This gives sufficient time for the information to be assessed and any risk management actions identified and implemented. As the pre-arrival report may be provided up to 96 hours before the ship berths, there can be significant changes to the health status of passengers in the period before berthing. On a cruise ship, the large numbers of passengers and crew mean it is possible for significant increases in either the number of persons with a listed human disease risk or significant changes in the types of reported symptoms from the time the report is submitted, or both. Having this information sooner rather than later, provides valuable time to prepare for further assessment, management and treatment and time to liaise with and engage the local jurisdiction as appropriate, for example to ready health responses on shore. Under section 194, the vessel operator is required to give additional or corrected information once they become aware that the information included in the pre-arrival report was incomplete or incorrect. Both the NSW Special Commissioner and the Inspector-General of Biosecurity observed that section 194 is limited in its application. On its face, it requires updated information only where the information in the pre-arrival report could be considered 'incomplete or incorrect' at the time it was submitted. The reviews considered it open to contention that illness onboard a vessel that becomes evident after submitting the pre-arrival report may not trigger the reporting requirement under s 194. As noted in the NSW Commission report at paragraph 4.42: Section 194 of the Biosecurity Act requires vessel operators to update the report if they become aware that the information in the report is incomplete or incorrect. Section 194 is expressed in a way which creates an obligation to correct a report which is found to be incomplete or incorrect. The section does not convey a clear obligation to update case numbers if and when those case numbers increase: i.e., the number of cases reported at a specified time does not make that report "incomplete or incorrect" when the number of cases later increases. Consequently, it is doubtful whether updating is required by s 194. As it stands, there is no clear statutory requirement to update the information where additional or new illness or deaths are reported after the pre-arrival report is provided. Both reviews considered this to be a significant gap in the current human biosecurity reporting requirements and recommended that it be mandatory to provide updated human health information after submission of a pre-arrival report. Enforcement of Pre-arrival Reporting There may be commercial pressures on the master of a vessel to not report illnesses in certain circumstances. While the Inspector-General of Biosecurity considered that most vessel masters comply with Australia's requirements by correctly declaring illness onboard vessels, there were some inconsistencies in reporting: On reporting signs or symptoms of a Listed Human Disease, the vessel is subject to negative pratique and therefore is not permitted to disembark travellers (commercial cruise ship) or to load or unload cargo (commercial cargo vessel). During his fieldwork, the Inspector-General noted biosecurity officers' concerns that a vessel may avoid reporting illness onboard in the vessel's Pre-arrival Report. Information the Inspector-General later received from Agriculture confirmed several instances where vessel masters either did not report any illnesses or reported illness just before berthing the vessel. If an operator does not give a pre-arrival report as required by the Act, criminal and civil penalties may apply under section 193. Sections 532 and 533 also provide civil penalties if a person provides false or misleading information or documents. Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 8

These are additional to the offence provisions set out in the Criminal Code for false and misleading information or documents. Affected businesses, community organisations or individuals The COVID-19 pandemic brought the cruise industry to a standstill in Australia with significant economic costs to cruise ship companies and to the Australian economy. At the conclusion of the declared human biosecurity emergency in April 2022 and, with it, the end of the cruise ship ban, it remains critical to address the problems outlined above to further support the resumption of cruise services and to be prepared to respond to and manage future biosecurity risk. Cruise Industry Cruise Lines International Association, Australasia (CLIA) is composed of more than 60 of the world's major cruise lines and serves as a non-governmental consultative organisation to the International Maritime Organization (IMO), an agency of the United Nations. According to CLIA, Australia's cruise suspension had cost the Australian economy an estimated $10 billion in losses and impacted 18,000 jobs. (CLIA News, End of cruise suspension signals revival for thousands of Australians, 14 April 2022). Tourism Industry A staged resumption of the cruise sector will boost local economies, including those industries directly and indirectly involved with the cruise industry, such as travel agents, tour operators, retailers, hotels, restaurants, food and produce providers, entertainers, transport providers, port services and other suppliers. Ports Reducing potential exposure of port staff to COVID-19 is a key issue for the Maritime Union of Australia, who represent waterside workers, seafarers, port workers, professional divers and office workers associated with ports. There is potential for reduced berthing capacity for other vessels seeking to arrive in port, and for extended periods of time, when a cruise vessel is identified as having a potential relevant infectious disease risk on board. All Other Industries Addressing the identified problems will help protect Australia's industries from being exposed to COVID-19 biosecurity risks, which will assist Australia's economic recovery and support increased confidence in Australia's business sector. 2. Why is Government action needed? Objectives The regulatory actions being assessed in this RIS address the risk of listed human diseases entering Australian territory through international vessel arrivals and would apply in the context of the current COVID-19 pandemic, while also providing flexibility to manage infectious disease risks that Australia may face in the future in maritime or air arrival pathways. Specifically, the objectives of the reforms being assessed are to: • better support human health risk assessments and operational responses to the threat of COVID-19 and other listed human diseases on conveyances (vessels and aircraft) entering Australian territory. • support the national COVID-19 economic recovery, including the resumption of the cruise ship industry in Australia to pre-pandemic and future travel volume projections, and shoring up the biosecurity framework into the future to respond to human biosecurity and biosecurity risks. Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 9

Human Health Risks The Act strengthened and modernised Australia's biosecurity system, replacing the now repealed Quarantine Act 1908. It provides a framework to manage biosecurity threats to plant, animal and human health in Australia and its external territories. The objects of the Act relevant to human health include: • managing the risk of contagion of a listed human disease or certain other serious infectious human diseases; • managing the risk of listed human diseases or any other infectious human diseases entering Australian territory or a part of Australian territory, or emerging, establishing or spreading in Australian territory or a part of Australian territory; and • managing human biosecurity emergencies. The Act provides a range of powers to manage unacceptable biosecurity risks on vessels and aircraft arriving at and entering into Australian territory for the protection of health of all Australians. These powers include entry and exit screening of international travellers, management of ill travellers, and flexible emergency and preventative powers. Supporting Economic Recovery Australia receives a significant economic gain from the cruise industry. In the 2018-19 financial year, the industry generated a net economic output into the Australian economy of about $5.2 billion from indirect revenue and direct spending. This economic uplift, in turn, created 18,135 jobs (both direct and indirect) for Australians. There are significant benefits to the cruise industry resuming business in a manner aligned with the reduction in public health risk. There would also be benefits to Australia's economy and the health and safety of its inhabitants and travellers to Australia through a strengthened human biosecurity risk framework. 3. What policy options are you considering? 3.1 Option 1 - Status Quo The Act includes an existing scheme for managing human biosecurity risks. The scheme allows Biosecurity Officers to refuse to grant pratique under Chapter 2 (relating to the human health biosecurity risk management) where risks of listed human diseases are not suitably managed. Option 1 is to continue to administer the scheme without legislative changes, including no changes to delegated legislation. The key features of the scheme (set out in detail in the Current Settings section above) include: • The granting of pratique allows things to be unloaded from or loaded on to, and persons to disembark from or embark, aircraft or vessels. Once granted, pratique cannot be revoked. Pratique may be granted by force of the Act (positive pratique) unless the vessel or aircraft is in a class specified by the Director of Human Biosecurity under the powers in subsection 49(1) related to negative pratique. Where negative pratique applies, the vessel or aircraft must be assessed as complying with specified requirements before a biosecurity officer will grant pratique. • Current settings for negative pratique are set out in the Negative Pratique Instrument administered by the Department of Health and Aged Care. This includes, since 3 March 2022, the requirement that all cruise vessels arrive in negative pratique. Cruise vessels in the Negative Pratique Instrument are defined as: A passenger vessel that is usually used to provide a service of sea transportation, being a service that: is provided in return for a fee payable by persons using the service; and is available to the general public. • Requirements for pre-arrival reports to be given in relation to aircraft or vessels that enter or intend to enter Australian territory from outside Australian territory. The reports include information for the purpose of assessing Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 10

the level of biosecurity risk associated with the aircraft or vessel, including to human health through listed human diseases. This is a key source of information for assessing whether or not pratique should be granted. • A range of compliance and enforcement powers and penalties for non-compliance with pratique and pre-arrival reporting requirements. • The Governor-General may make a human biosecurity emergency declaration if the Health Minister is satisfied of various legal criteria in Chapter 8 of the Act. The status quo includes reforms to processes and procedures that have been progressively implemented based on learnings from the COVID-19 pandemic and in response to relevant recommendations that did not require statutory amendment. For example, the Inspector-General of Biosecurity's report made 42 recommendations of which the department accepted 38 and noted 4. Many of these recommendations accord with changes and reforms the Government has undertaken during 2020 and 2021 (Agency response to Inspector-General of Biosecurity). Reform actions taken to date include: • Institution of regular meetings at ports around Australia with port stakeholders, including state and territory health departments, to improve awareness of roles and responsibilities and share information relating to the health status of vessels. • Institution of pre-arrival meetings at ports around Australia with port stakeholders, including state and territory health departments, to improve awareness of roles and responsibilities for each individual, international cruise vessel arrival • Engagement of experts to redevelop the department's maritime human health instructional materials • A regulatory design assessment of pratique • Adjustments to human health reporting questions within the Maritime Arrivals Reporting System. • Establishing formal protocols for communicating with human biosecurity officers and port stakeholders about human health risks and pratique. • Establishment of the National Maritime Centre (NMC) to support all stakeholders involved in Australia's national maritime environment in achieving high-quality outcomes in the consistent application of legislation, regulatory powers, and processes to manage biosecurity risk 3.2 Option 2 - Emergency powers and legislative instruments Option 2 would seek to use existing legislative authority to manage relevant human biosecurity risk, including legislative instruments and the Biosecurity Regulation 2016 and the Biosecurity Human Health Regulation 2016. Emergency powers A short-term solution in the face of a future pandemic or serious biosecurity risk could include the appropriate use of emergency powers while such a human biosecurity or biosecurity emergency were still declared. The Act provides powers in Part 2 of Chapter 8 for dealing with emergencies involving threats or harm to human health on a nationally significant scale. These are called human biosecurity emergencies. The Governor-General may make a human biosecurity emergency declaration for a specified period of time if the Health Minister is satisfied of various criteria under the Act. A human biosecurity emergency can only be declared, and the emergency powers used, if there is a sufficient public health justification along with the satisfaction of strict legal criteria in the Act. Equivalent provisions for biosecurity emergencies are dealt with in Part 1 of Chapter 8. If the Governor-General declares a human biosecurity emergency, the Health Minister may exercise special powers under this Part to deal with that emergency, subject to limits and protections. This includes the Health Minister determining requirements and giving directions during the emergency period to manage human biosecurity risks where it is considered necessary under the relevant provisions of the Act. Under Option 2, emergency determinations could be made, to the extent necessary and appropriate to manage the risk of contagion of listed human diseases and the risk that such a disease might enter, emerge, establish or spread in Australian territory. However, this option is limited to the context of a declared human biosecurity emergency and sufficient public Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 11

health justification existing to support the declaration and use of emergency powers. Biosecurity emergencies, and associated powers, are to meet an exceptional circumstance and are not a solution to the identified issues for biosecurity risk management and regulation outside of such exceptional circumstances. The use of existing legislative authority to make legislative instruments Another aspect of Option 2 is the possibility of changing the regulatory controls using existing delegated legislation to respond to changing risks. This could include varying the subsection 193(1) prescribed requirements for pre-arrival reporting set out in the Biosecurity Regulation 2016, for example, seeking amendment to the Regulations to require different information to be included in a report or changing the time a report could be made, or exercising delegated authority where appropriate to vary the provisions of legislative instruments related to human health or (in a different context) other biosecurity risk. The changes made to the Negative Pratique Instrument that recently required all cruise vessels to arrive in negative pratique (which now forms the status quo described above at Option1) are an example of how such a power may be used. Option 2 would not provide the framework for the Government's COVID-19 recovery plan that would support long-term management of human health risks that may arise from the cruise vessel industry, in a manner that provides certainty and consistency for industry. Nor would it fully address identified issues relating to preparedness for future emergence of novel illnesses and pandemics. 3.3 Option 3 - Amendments to the Biosecurity Act Option 3 would seek to amend the Act and associated legislative instruments to address the identified risk of listed human diseases entering Australia through international vessel arrivals. Independent reviews recommend change to the Biosecurity Act The proposals in Option 3 are informed by recommendations arising from several reviews: • The New South Wales Special Commission of Inquiry into the Ruby Princess published 14 August 2020 - specifically recommendations at para 2.22 - 2.23 (See Appendix A). • The Inspector General of Biosecurity's report Confidence testing for at-border delivery of human biosecurity functions- Ruby Princess cruise ship incident published on 29 April 2021 - specifically recommendations 19 - 22 and 24 (see Appendix B). • The then-Department of Agriculture, Water and the Environment commissioned an independent regulatory design assessment into pratique which was finalised in November 2020. These reviews raise concerns that issues identified through the arrival of the Ruby Princess could apply to other cruise ships, in other ports, or for entirely different biosecurity risk pathways. Of particular concern are circumstances where the probability of occurrence may be low, but the consequences of biosecurity failure are potentially significant. Option 3 includes a package of changes to the Act developed following analysis of the issues and recommendations raised by these reviews. The specific amendment proposals are set out below. Multiple pre-arrival reporting requirements • Amend section 193 to insert a regulation making power to require subsequent pre-arrival reports to be submitted by a conveyance in circumstances prescribed by the regulations. The regulations would then prescribe different circumstances for giving other reports by different classes of aircraft or vessel. This will provide flexibility to respond to risks based on the class of conveyance and the circumstances relating to human health or other biosecurity risk. Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 12

• The current policy intent is for the regulations to require cruise vessels to submit a subsequent pre-arrival report closer to the time of berthing that would update human health information provided in the initial pre-arrival report. As a class included in the Negative Pratique Instrument, cruise vessels will continue to arrive in negative pratique. This will allow for a more accurate and timely identification and assessment of biosecurity risks to be conducted and more time to implement management strategies. Requirements to update pre-arrival reporting • Amend section 194 so that, in addition to the requirement to update the pre-arrival report if the report was incorrect or incomplete at the time it was submitted, further information would also be required to be given in circumstances prescribed by the regulations. • Making provision for this in the regulations will offer appropriate flexibility to configure pre-arrival reporting to respond to the evolving and dynamic context of human biosecurity or other biosecurity risks in the future. Expand negative pratique obligations • Extend the application of requirements to comply with negative pratique obligations to the person in charge of a vessel or aircraft. This would more appropriately reflect responsibility for the vessel or aircraft and more effectively target obligations for compliance. To deter non-compliance with the requirements, increase the existing civil penalty that applies to a vessel operator and insert a new civil penalty provision for the person in charge of the vessel or aircraft. 4. What is the likely net benefit of each option? This section of the RIS discusses the benefits and costs for each of the three policy options being considered. These costs include the estimated regulatory cost burdens, with the estimate based on anticipated actions taken by businesses, individuals, and community organisations to comply with each of the proposed policies. The regulatory cost burden estimates have been developed using the guidance and tools of the Office of Best Practice Regulation. This section further discusses relevant qualitative benefits and impacts, such as how well each option manages risks to human health and the anticipated benefit to the broader Australian economy, where relevant. The cost of not complying with regulations, also known as enforcement costs, are not factored into regulatory cost burden estimates. The costs included in this RIS are in Australian dollars unless indicated otherwise and represent present value. 4.1 Option 1 - Status Quo 4.1.1 Benefits Option 1 would continue to provide a regulatory framework for Australia's management of biosecurity risk, in accordance with the objects of the Act. This includes pre-arrival and at-border powers for managing what is referred to in practice as 'human biosecurity', that is protecting human health from the risks posed by the entry, emergence, establishment or spread of infectious human diseases in Australia. The Act provides a modern framework to address the increasingly challenging and complex biosecurity risks due to increasing number of passengers and cargo entering Australia. The benefits of the current framework are stated broadly in the former Department of Agriculture's Regulatory Performance Framework 2018-19: The legislation is designed to be flexible and responsive to changes in technology and future challenges. It promotes a shared responsibility between government and industry, provides a modern regulatory framework, reduces duplication and regulatory impacts, and allows for current and future trading environments. Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 13

As outlined in the Current Settings section, the status quo's pratique mechanism and pre-arrival reporting provide some level of protection for managing human health risks. The positive pratique mechanism continues to provide an efficient means for managing arrivals of aircraft and vessels where no relevant health issues for infectious and listed human diseases are identified. Recent changes which require all cruise vessels entering Australia to arrive in negative pratique, alongside adopted industry standards, is providing greater protections for human health. The status quo includes changes and reforms to operational policies, practices and processes that the Australian Government has implemented from 2020-2022. Absent any amendment to the Act, these changes have enhanced processes for managing biosecurity risks at the border. For example, these changes will provide increased understanding of the roles and responsibilities of Commonwealth and state and territory agencies, improved training material for Biosecurity Officers and enhanced health reporting through the Maritime Arrivals Reporting System. Option 1 is already implemented with all cruise vessels arriving in negative pratique and the adoption of enhanced processes and industry standards. These measures have made it possible for the resumption of an industry that was brought to a standstill. Further non-legislative changes are scheduled which are anticipated to reduce the regulatory burden on businesses, community organisations and individuals with more streamlined processes and better human health outcomes and the associated mitigation of productivity and human life risks. 4.1.2 Impacts Under Option 1, the shortcomings in the existing regulatory framework identified in the problems section would remain, including the lack of up-to-date health reporting appropriate to better assess and manage human biosecurity risks or suitable compliance mechanisms to deter non-compliance with pratique. These impacts are discussed further below. During the COVID-19 pandemic, a number of commercial vessels in Australian waters have had crew infected with COVID-19 onboard. These have included cargo vessels, livestock carriers and tankers. In many cases state and territory public health emergency powers were used to restrict crew movement. According to the Inspector-General of Biosecurity: Currently, state emergency powers, rather than pratique or Human Biosecurity Control Orders, are being utilised to prevent crew or passengers from disembarking arriving overseas vessels. In assessing the effectiveness of the management of arriving vessels using pratique, we must consider an environment without reliance on state and territory emergency powers. [Inspector-General of Biosecurity, p. 86] The reliance on state or territory emergency powers remains a gap in managing human biosecurity risk in the usual circumstances when emergency powers are not in operation, but risk management requirements remain critical. Emergency powers and public health regulation also vary across jurisdictions, potentially creating inconsistency for conveyance operators and crew which may lead to confusion as to the requirements they must comply with, and associated increases in regulatory burden. Negative Pratique Under the current legislation, a vessel which has negative pratique status is not able to disembark individuals unless given permission to do so. This results in all passengers and crew not being allowed to disembark until the biosecurity risks are appropriately managed, regardless of whether the issue was due to an isolated or containable incident. The costs associated with negative pratique under the current legislation include costs for both individuals aboard the vessel and businesses onshore. These include the following: • Individuals: personal cost to passengers (and in some instances crew) required to remain on the vessel for longer than anticipated, e.g., loss of wages, reorganising travel, travel cancellation costs and missed connections. • Business: onshore businesses who rely on tourism dollars are negatively affected when negative pratique occurs, through loss of income, for as long as the vessel has negative pratique status. • The cost of delays to cargo being unloaded from the vessel. Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 14

• Costs to ship owners and other business due to delays resulting from the period in which a vessel remains in negative pratique, along with delays to other ships waiting to dock in part. The above costs are not reliably quantifiable as the actual dollar cost would be reliant on a variety of factors, such as how frequently vessels are subject to negative pratique, the number of passengers/crew affected and the length of delay onboard. The range of businesses affected by passengers not being allowed to disembark could include hospitality, retail, accommodation, tourist attractions. The magnitude of the regulatory burden imposed by negative pratique is driven by the fact that the entire vessel is subject to negative pratique, i.e., no passengers are allowed to be disembarked, even in cases where the disembarkation of the majority of the travellers would pose no significant risk of transmission of a listed human disease. Pre-Arrival Reporting (PAR) Under the current legislation, the time at which a PAR must be submitted for a cruise vessel is 96-12 hours prior to the estimated time of arrival at the first point of entry. Given the large numbers of passengers and crew on board a cruise vessel, it is possible for there to be significant increases in the number of persons with a listed human disease risk or significant changes in the types of reported signs or symptoms, from the time at which a PAR must currently be submitted (up to 96 hours before arrival) to when the cruise vessel arrives in Australian territory. Under the status quo, all cruise vessels arrive in negative pratique and must lodge a PAR using the department's MARS reporting system between 96 to 12 hours from the estimated time of arrival at the first point of entry. Once the National Maritime Centre receives this report, it will send the vessel an email requesting further information about human health using the powers to require additional information further to a PAR under section 195 which can be exercised when the vessel is outside of biosecurity control, that is more than 12 nautical miles from the coastal sea of Australia, of Christmas Island, of Cocos (Keeling) Islands and of any other external Territory to which that provision extends (defined by section 12 of the Act). Other powers may be considered on a case-by-case basis to compel information when a vessel is in biosecurity control. The further information requested under the current state includes: • Are there any sick or deceased travellers or crew on board the vessel, additional to those reported in the Pre-arrival report? • Access to any medical health logs, data and information pertaining to the number of people ill on board the vessel on arrival at your first port of entry • Access to any supporting information relating to the number of sick passengers on board, on arrival at your first port of entry This means that when the cruise vessel berths at its first port, and in negative pratique, more valuable information is available for assessment to inform the decision whether or not to grant pratique, and a biosecurity officer can then board the vessel to assess any discrepancies between what was reported and the ship's medical log. Without a requirement for a second PAR, and with requests for additional information under section 195 only capable of being exercised while a vessel is outside of biosecurity control, the risk of insufficient information to suitably inform human health reporting and risk identification and assessment will persist. Sanctions under section 193 cannot be used for a failure to report, reducing statutory deterrence objectives, and biosecurity officers may not have the most up-to-date information when deciding to grant pratique. PAR under the status quo is insufficient to appropriately manage exposure to listed human diseases. The Australian community will therefore continue to be at a heightened risk of exposure to COVID-19 and other listed human diseases in the air and maritime pathways. Additional reporting Section 194 requires updates to the pre-arrival report if the report was incorrect or incomplete at the time it was submitted. In circumstance where case numbers increase after the report was submitted, there is no clear legal obligation to update the information if the numbers were correct at the time they were submitted. This means biosecurity officers may not have the Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 15

most up to date information available to manage biosecurity risks posed by the aircraft or vessel prior to its arrival. This risk is currently mitigated on arrival using the process outlined above to require additional information for inspection once in port. This does not support the more beneficial approach which would identify, assess, prepare for, and manage these risks prior to arrival. In summary, the option of maintaining the status quo is not attractive due to the risk of listed human diseases, such as COVID-19, entering Australian territory through international vessel arrivals. Without the implementation of the proposed legislative amendments to the Act as contemplated under Option 3, the Commonwealth's human biosecurity legislative powers remain limited, as identified and discussed above. Compliance with pratique Under the status quo, only the operator is responsible for and subject to penalties for non-compliance with pratique requirements in the Act. The current framing has the consequence that a person in charge of a vessel or aircraft is not liable to a civil penalty for contravening pratique requirements. The legislation under the status quo lacks an effective incentive for the person in charge of the vessel or aircraft to comply with pratique requirements, as that person is not accountable for any breaches such as passengers disembarking before pratique is granted. 4.2 Option 2 - Emergency powers and legislative instruments 4.2.1 Benefits Option 2 aims to use existing legislative authority to manage the relevant human biosecurity risk, including legislative instruments and the Biosecurity Regulation 2016 and the Biosecurity Human Health Regulation 2016. This option may allow for relevant human biosecurity risks to be better managed than under the status quo. This would occur with the targeted use of emergency powers, in the event that a human biosecurity emergency were declared on another occasion. Outside of the exceptional circumstances of a human biosecurity emergency, various regulatory controls that apply to conveyances, including pre-arrival reporting and related pratique status, could be amended within the scope of the Act's existing delegations of authority. Under Option 2, it could be expected that those benefits are partially realised depending on the powers enacted under this option. Limits on emergency powers, such as only applying to declared listed human diseases and ceasing at the end of the human biosecurity emergency, restrict the benefits of this option to periods of declared emergencies. This option could potentially be quicker to implement than amending the current legislation as it allows the Health Minister flexibility to exercise powers relevant to the specific circumstances, subject to the safeguards set out in the Act. The emergency provisions provide broad powers to manage human health emergencies. A number of the problems identified by this RIS could be addressed to some extent under Option 2. When a human health emergency has been declared, human biosecurity emergency determinations could be created to address the need for further pre-arrival reporting or requiring the provisions of further information, where appropriate. These determinations could be targeted to particular types of vessels or at all conveyances, depending on the identified risks. The use of legislative instruments during the COVID-19 pandemic assisted the Commonwealth in managing the outbreak of COVID-19 and, some legislative instruments also supported the reopening of the Australian cruise industry and resumption of international air travel. Factors such as the extent to which the jobs that existed previously will be filled again, and the speed with which the industry will return to pre-pandemic levels, are difficult to estimate. The procedural amendments discussed in Option 1, along with the use of legislative instruments proposed in Option 2 have significantly contributed to a reopening of the cruise industry but do not provide a sustainable long-term option for managing biosecurity risk. Refer to Appendix D for more information regarding the size of the Australian cruise industry, prior to the current pandemic. Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 16

4.2.2 Impacts Despite the benefits identified above, this option does not fully address identified issues relating to preparedness for future emergence of novel illnesses and pandemics, including outside the exceptional circumstances of a declared human biosecurity emergency. Option 2 will lead to a more complex legislative framework than Option 3. It may generate uncertainty for regulated industries and for the interaction of Commonwealth agencies with state and territory counterparts, leading to delay and other costs. Determinations made by the Health Minister may be made quickly and the flexibility to adapt the determinations to each circumstance also means there is uncertainty for business who require time to implement new processes. Under Option 2, the opportunity to provide a more flexible and appropriate pre-arrival reporting regime for the Commonwealth would not be realised, and the reliance on existing delegated powers- either under the exceptional circumstances of a declared human biosecurity emergency or using delegated powers- would not offer the same certainty offered by Option 3 to manage human biosecurity risk more consistently across Australia. Parliamentary consideration of the exercise of executive power in this area of national significance and concern may also be a matter for consideration, in particular the use of executive power during a declared human biosecurity emergency. Any actions proposed under this option will only be available in the case of a declared emergency which could limit the capacity to detect and respond to emerging threats within the critical timeframe. This stands in contrast with Option 3 which, subject to the approval of the Executive Council, would provide regulatory flexibility to respond with appropriate pre- arrival reporting to meet a given biosecurity or human health risk by prescribing the relevant pre-arrival reporting requirements in the regulations. The declaration of a human biosecurity emergency is at the Health Minister's discretion and can vary from one emergency declaration to another. In addition, a human biosecurity emergency can only be implemented for a maximum of 3 months at a time, before it needs to be considered again and, if appropriate, extended. The regulatory burden imposed by these events can vary greatly as it is based on the impact and duration of such a declaration. This leaves a significant level of uncertainty with affected businesses, individuals, and community organisations and does not present an enduring solution to the issues identified above. As outlined above, Option 2 is superior in some ways to the status quo in that it partially addresses some of the problems identified in this RIS, for example by allowing for the creation of human biosecurity emergency determinations to address the need for additional pre-arrival reporting in times of declared emergency, or the use of more standard powers to, for example prescribe entry requirements under section 44 or preventative biosecurity measures under section 51. However, the significant limitations of a power that is either only available in times of declared emergency, or that is prescribed by a determination, does not address the relative uncertainty and increased regulatory burden associated with Option 2. This option does not address some of the problems identified above, including application of pratique obligations to reflect responsibility and risk more appropriately and to deter non-compliance. Regulatory burden estimate Table 1 below presents a matrix mapping the elements of Option 2 against the segments expected to incur an additional regulatory burden as a result of this option. Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 17

Proposed Determination Businesses Individuals Community Organisation Tailor direction to the type of vessels, such as cruise vessels Multiple pre-arrival reporting requirements X Requirements to update pre-arrival reporting X Table 1 - Anticipated Regulatory Burden for Option 2, mapped against Segments A regulatory burden estimate was quantified where the underlying cost drivers could be determined with a relative level of certainty. To this extent, an estimate was calculated for the proposed amendments relating to "Multiple pre-arrival reporting requirements" and "Requirements to update pre-arrival reporting". This was quantified and is presented in Table 2 below. This assumes that the legislative requirements for pre-arrival reporting could be supplemented through a determination to require further reporting. These costs would only be incurred during a declared emergency, as the determination would have no effect once the emergency ended. Table 5 below presents the quantifiable impacts, derived using the Regulatory Burden Measurement Framework. Change in average annual regulatory costs ($ million) Proposed amendment Individuals Business Community Total change in organisations cost Multiple pre-arrival reporting (sea ($ 0.069 ) ($ 0.069 ) pathway) Updated information reporting (sea ($ 0.006) ($ 0.006) pathway only) Total, by sector - ($ 0.075) - ($ 0.075) Table 2 - Option 2 Regulatory Burden Estimate (Declared Emergency Only) The data and assumptions underpinning the regulatory burden estimate outlined in Table 2 above, are presented in Appendix C below. 4.3 Option 3 - Amendments to the Biosecurity Act Overview As noted at section 3.3 above, Option 3 proposes the following amendments to the Biosecurity Act: Proposed Amendments 1 Multiple pre-arrival reporting requirements 2 Requirements to update pre-arrival reporting 3 Expand negative pratique obligations Table 3 - Proposed legislative amendments Section 4.3.1 below highlights the key benefits that would be derived from the enactment of these legislative amendments. The amendments aim to address the risk of listed human diseases entering Australian territory through international vessel arrivals and would apply in the context of the current COVID-19 pandemic, while also providing flexibility to manage infectious disease risks that Australia may face in the future. Section 4.3.2 focusses on the costs, quantifiable or otherwise, associated with adopting the proposed changes. Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 18

4.3.1 Benefits Protection of public health Improved human health information to support Human Biosecurity Officer (HBO) assessments The proposals in Option 3 would provide a more robust pre-arrival reporting framework to support the assessment and management of human health prior to a cruise vessel berthing at its first point of entry. Additional Pre-Arrival Reporting, including updated pre-arrival information Option 3 includes multiple pre-arrival reporting to be provided by aircraft and vessels, which can be tailored to different types of conveyances, such as cruise ships, and at different times. This would ensure more timely and accurate human health information is available, to better assure Biosecurity Officers' access to relevant information on which the decision to grant pratique is based. In addition to multiple pre-arrival reporting, Option 3 will also require further information to be provided, for example where additional passengers are identified as having signs or symptoms of a disease, after the pre-arrival report is submitted. This obligation represents an important mechanism to enable biosecurity officers to receive and assess up-to-date information after the pre-arrival report has been submitted. Option 3 would address the limits in the current legislative framework to require further information to be provided after a subsection 193(1) pre-arrival report which, under the existing power in section 195, can only be exercised while a conveyance is not under biosecurity control, which is more than 12 nautical miles from Australian coastal waters. Making provision for this in the regulations will offer flexibility to configure pre-arrival reporting settings to appropriately respond to biosecurity risks in the future. Improvements in application of Pratique (including Negative Pratique) Option 3 aims to deter non-compliance with pratique by improving enforcement and compliance mechanisms. The requirement to comply with negative pratique obligations will be extended to also include the person in charge of a vessel or aircraft (instead of only the operator). This would more appropriately reflect responsibility for the vessel or aircraft and more effectively target obligations for compliance. To further deter non-compliance with requirements, the existing civil penalty that applies to an operator would be increased, and a new civil penalty provision would be inserted for the person in charge of the vessel or aircraft. Benefits to the Broader Australian Economy and the Australian Cruise Industry A key benefit expected to materialise as a result of the proposed amendments is the support it lends toward the ongoing recovery of the cruise industry, to pre-pandemic levels, as human health reporting requirements are strengthened and streamlined, and communication between vessels and the Commonwealth is enhanced. With improved human health measures to mitigate the risks identified in the course of the COVID-19 pandemic, this could assist with building public confidence in cruise travel and contribute to the recovery of the cruise industry. This includes refilling the more than 18,000 jobs that existed at the end of the 2018-19 financial year and building back up to the $5.2 billion in annual economic output that was generated directly and indirectly by the industry. Benefits to the Broader Australian Economy: $5.2 billion in economic output (direct & indirect) 18,135 total jobs created (direct & indirect) This is described in more detail in Appendix D - Benefits to the Broader Australian Economy and the Australian Cruise Industry. Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 19

4.3.2 Impacts The elements of Option 3 are targeted at the problems outlined in Chapter 1 and specifically informed by the recommendations from the independent reviews (see Appendix A and Appendix B). A consideration with regards to pre-arrival reporting is the potential for delays to business deliverables, if up-to-date information is not provided in relation to an aircraft or vessel under additional section 193 pre-arrival reporting or clarified section 194 additional information requirements. The amendments to require further information to be provided to Biosecurity Officers will allow them sufficient time to assess pre-arrival reports and make decisions, thereby reducing the risk of delays. Additional resources will also be required for the department and other bodies to manage new information, and to activate a new management regime in response. These costs are highly variable and difficult to quantify with any reasonable level of certainty. No additional costs are foreseen for government agencies to implement changes to the penalties for breaches of pratique. Regulatory burden estimate Table 4 below presents a matrix mapping the proposed legislative amendments against the segments expected to incur an additional regulatory burden due to these amendments. Proposed amendment Businesses Individuals Community Organisation Multiple pre-arrival reporting requirements X Requirements to update pre-arrival reporting X Expand negative pratique obligations Table 4 - Anticipated Regulatory Burden mapped against Segments As noted in Table 4 above, a regulatory burden estimate was calculated for the proposed amendments relating to "Multiple pre-arrival reporting requirements" and "Requirements to update pre-arrival reporting". The underlying cost drivers could be determined with varying levels of certainty. A sensitivity analysis was performed, the result of which is outlined in Appendix C below. Table 5 below presents the quantifiable impacts, derived using the Regulatory Burden Measurement Framework. Change in average annual regulatory costs ($ million) Proposed amendment Individuals Business Community Total change in organisations cost Multiple pre-arrival reporting (sea ($ 0.069) ($ 0.069) pathway) Updated information reporting (sea ($ 0.006) ($ 0.006) pathway only) Total, by sector ($ 0) ($ 0.075) - ($ 0.0756) Table 5 - Option 3 Regulatory Burden Estimate The data and assumptions underpinning the regulatory burden estimate outlined in Table 5 above, are presented in Appendix C below. The increased regulatory burden is offset, at least partly, by anticipated savings due to the more nuanced human health risk management regime in option 3. Vessel operators incur additional costs due to delays arising from negative pratique, including the ship operating costs and the costs of holding inventory. One estimate puts the cost of waiting time for cargo Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 20

vessels to berth at a foreign port at USD2,150 to USD5,300 per day, depending on the size of the vessel (Nguyen, 2019). The quantum of savings cannot be estimated with any certainty, due to the number of variables including the frequency and length of delays and the size, type and number of vessels affected. It is also worth noting that the potential cost to affected commercial operators and any related delays to individuals would be greatly offset by the wider economic benefit of better management of the risk of a listed human disease entering the community, for example by ensuring symptomatic passengers are not disembarked. 5. Who did you consult and how did you incorporate their feedback? The human biosecurity risk management issues addressed in this RIS have been subject to consideration and public consultation in the inquiries referred to above. The New South Wales Special Commission made a call for public submissions and received 152 written submissions, including submissions from passengers on the Ruby Princess. The Commission also held public hearings into its inquiry between 22 April 2020 and 17 July 2020. The Inspector-General of Biosecurity consulted within and outside the then Department of Agriculture, Water and the Environment. The Inspector-General's report including the department's response to the recommendations in the report was published on 29 April 2021. Subsequent to those reviews, there has been targeted consultation with industry and with state and territory public health officials, noting that some of the policy problems being addressed had a public airing in the independent reviews. The reforms relate to public health question and their development has been guided by experts at Commonwealth and state and territory level. Such constraints, along with the need to engage with all states and territories on the framework through the CHBO Forum, do not support a long public consultation lead time or the preparation of a draft exposure Bill for public consultation. The cruise industry has been consulted on the proposed new pre-arrival reporting process in meetings held in March 2021. The Department of Infrastructure, Transport, Regional Development and Communications has chaired whole-of-government meetings with the cruise industry throughout the pandemic. These meetings include the department, the Department of Health and Aged Care, and the Australian Border Force, as well as representatives from cruise companies and cruise industry peak bodies. Suggestions for potential reforms, including the recommendations made by the NSW Commission, were discussed with the cruise industry at a meeting held by teleconference on 17 March 2021. The COVID-19 pandemic has been devastating for the cruise industry and the industry has demonstrated its eagerness to work with government to manage health risks for passengers and crew and develop a framework to support the resumption of cruise travel. The department also consulted Ports Australia in June 2021 at a meeting attended by senior operations personnel from most major public and private ports. Details about the full package of proposed changes was presented at that meeting. Further consultation will be conducted with broader industry groups as part of the development of regulations and implementation of the proposals to develop awareness of the measures. The department is developing a detailed implementation plan in consultation with the Department of Health and Aged Care that will also address the further consultation to be conducted with such industries. The Commonwealth, including the department and the Department of Health and Aged Care, consulted with and received feedback from states and territories through meetings of the CHBO Forum. This reflects that HBOs and CHBOs are officers of the states and territories (health agencies) undertaking Commonwealth functions under the Act. The legislation to implement Option 3 is high-level in relation to changes to pre-arrival reporting with the detail to be provided in the regulations. Development of the regulations will be subject to further consultation. Further implementation and operational work would be undertaken in close liaison with all relevant stakeholders along with communications in line with the implementation plan being developed as discussed in section 7. Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 21

6. Preferred Option Option 3: Amendments to the Biosecurity Act Option 3 is the preferred way of addressing the problems identified in this RIS. It is also consistent with the recommendations of the reviews into the Ruby Princess cruise ship incident (Appendices A and B). Option 3 does not create a new regulatory scheme but seeks to amend the existing statutory scheme to ensure the scheme is fit-for-purpose based on the learnings from the COVID-19 pandemic. The improvements will ensure that the objectives of the Act may be met into the foreseeable future without resulting in an unnecessary regulatory burden. Option 3 best addresses the risk of listed human diseases entering into Australian territory through international vessel arrivals and would apply in the context of the current COVID-19 pandemic, while also providing flexibility to manage infectious disease risks that Australia may face in the future. A key benefit expected to materialise as a result of the proposed amendments is the support it lends toward the ongoing recovery of the cruise industry, to pre-pandemic levels. This includes refilling the 18,135 jobs that existed at the end of the 2018-19 financial year and building back up to the $5.2 billion in annual economic output that was generated directly and indirectly by the industry. Option 3 provides for enhanced pre-arrival reporting requirements to ensure more timely and accurate human health information is available, to better enable officers to identify, assess and manage human biosecurity risk, with increased potential to use negative pratique status (for commercial vessels who may otherwise be granted pratique by force of law) to require human biosecurity risk to be appropriately managed prior to granting pratique. Option 3 further aims to deter non-compliance with pratique by extending the requirement to comply with negative pratique obligations to the person in charge of a vessel or aircraft (instead of only the operator). This would more appropriately reflect responsibility for the vessel or aircraft and more effectively target obligations for compliance. To further deter non- compliance with requirements, the existing civil penalty that applies to an operator would be increased, and a new civil penalty would apply to the person in charge of the vessel or aircraft. Option 3 addresses the desired policy objectives, with the benefits outweighing quantifiable increases in the regulatory burden for businesses. This regulatory burden due to multiple pre-arrival reporting and additional reporting requirements is estimated at $0.075 million per year or $0.756 million in total over ten years from 2023-24 when cruise volumes are anticipated to reach 2019 levels over maintaining the current regulatory framework (Option 1). Relevant industries, including conveyance operators, associated industries and insurers, the ports and airports, and government agencies, both Commonwealth and state and territory, will need to amend processes and agreements, direct resources to implement the amendments, provide training and education, and enforce the new regulatory requirements. This targeted reform will continue to support the national COVID-19 economic recovery, including towards the ongoing resumption of the cruise ship industry in Australia to pre-pandemic levels, and better position the government to respond to and manage biosecurity risks that may arise in the future. Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 22

7. How will you implement and evaluate your chosen option? Changes to the legislation will be implemented through a Bill amending the Act. It is proposed that the amendments would enter into force on a date to be fixed by proclamation, or on the day after the period of 6 months beginning on the day the proposed Act receives Royal Assent, if not proclaimed earlier. This will provide an opportunity for further consultation with stakeholders on implementation of the proposals and development of legislative instruments, including amendments to regulations, to support that implementation. The department is currently developing a detailed implementation plan in consultation with the Department of Health and Aged Care. The implementation plan will identify key stakeholders and the engagement that will occur with those stakeholders. The implementation plan will also address development and delivery of training for relevant officers, updating of instructional material for officers, and ongoing meetings with industry participants. The effectiveness of the preferred option, once implemented, will be monitored and reviewed over time by departmental officials and officials from the Department of Health and Aged Care. Careful consideration will be given to feedback from stakeholders impacted by the new requirements. It will be open to any interested parties to provide feedback to government on these implemented reforms if they are found not to be working as intended. The department will consider necessary changes to internal processes or the regulatory requirements if necessary. The regulatory changes will be reviewed to assess the level of compliance with the new requirements and whether the objective of their implementation is being achieved. Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 23

Reference ABS 2018, Employee Earnings and Work Hours, Australia 2018, Australian Bureau of Statistics, Canberra CLIA-Qualtrics Survey 2021, Survey Dec2020 - 4,000 International vacationers each, eight countries, U.S, Canada, Australia, UK, Germany, France, Italy and Spain, CLIA-Qualtrics, Washington DC CLIA-AEC EIA 2018/19, Independent Economic Impact Assessment by AEC Group Pty Ltd, CLIA 2019 CLIA-AEC EIA 2019/20, Independent Economic Impact Assessment by AEC Group Pty Ltd, CLIA 2020 CLIA Industry Outlook 2021, State of the Cruise Industry Report 2021, CLIA 22 December 2020 CLIA State of the Cruise Industry Outlook 2022 (https://cruising.org/-/media/clia-media/research/2022/clia-state-of-the- cruise-industry-2022_updated.ashx), CLIA 2022 Cruise Lines International Association Australia, Pre-Budget Submission to Treasury 2022-23, CLIA January 2022 CLIA News, End of cruise suspension signals revival for thousands of Australians, CLIA 14 April 2022Walker SC, Bret, Special Commission of Inquiry into the Ruby Princess, 14 August 2020 Department of Agriculture, Regulator Performance Framework 2018-19 self-assessment for Agriculture, Biosecurity Overview. Department of Agriculture, Water and the Environment, Agency response, Appendix A to the Inspector-General of Biosecurity's report, Confidence testing for at-border delivery of critical human biosecurity functions - Ruby Princess cruise ship incident, 23 April 2021 Inspector-General of Biosecurity, Confidence testing for at-border delivery of critical human biosecurity functions - Ruby Princess cruise ship incident, Review Report No 2020-21/02, Commonwealth of Australia, 29 April 2021 Nguyen, Minh-Duc and Kim, Sung-June, An estimation of the average waiting cost of vessels calling container terminals in Northern Vietnam, Journal of the Korean Society of Marine Environment & Safety, Vol. 25, No. 1, pp. 027-033, February 28, 2019. The Parliament of the Commonwealth of Australia, Biosecurity Bill 2014 Explanatory Memorandum Walker SC, Bret, Special Commission of Inquiry into the Ruby Princess, 14 August 2020 Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 24

Appendix A Relevant recommendations from the NSW Special Commission of Inquiry The New South Wales Report of the Special Commission of Inquiry into the Ruby Princess included two recommendations regarding the Biosecurity Act 2015. 2.22 That any future review of the Biosecurity Act consider the utility and possible expansion of human biosecurity control orders so as to be applicable to persons or groups. 2.23 That the Biosecurity Act make explicit a requirement to update superseded human health information. Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 25

Appendix B Relevant recommendations from the Inspector-General of Biosecurity's review The Inspector-General of Biosecurity's report Confidence testing for at-border delivery of critical human biosecurity functions - Ruby Princess cruise ship incident, Review Report 2020-21/02 included five recommendations to amend the Biosecurity Act 2015. Recommendation 19 The provisions within the Biosecurity Act 2015 relating to pratique should be reviewed to provide greater flexibility in managing pratique based on human biosecurity risk - in particular, to allow for aircraft and vessels to load and unload cargo and stores where this represents an acceptably low level of risk. The loading of provisions for crew onboard commercial cargo vessels and cruise ships in negative pratique should be incorporated in relevant instructional material. Recommendation 20 The provisions within the Biosecurity Act 2015 should be reviewed with a view to providing biosecurity officers with broader powers that will assist them in managing large numbers of passengers and crew with potential Listed Human Diseases onboard foreign commercial vessels. Recommendation 21 The Biosecurity Act 2015 should be amended to provide biosecurity officers with greater powers to enforce negative pratique, to provide for penalties to be applied to individuals who breach negative pratique, and to make the 'person in charge' (and operator) of a conveyance, defined in section 22 of the Act, also responsible for any noncompliance with negative pratique. This includes provision for issuing Infringement Notices for pratique breaches. Recommendation 22 The Biosecurity Act 2015 should be amended to provide biosecurity officers with clear powers to revoke pratique, including where either incorrect or inaccurate information is supplied by the vessel operator or there are changes to the vessel's human biosecurity risk status over time. Recommendation 24 The Biosecurity Act 2015 should be amended to require vessel operators to report updated biosecurity information, including human biosecurity information, if there are any changes to the information required under section 193 between the time that the Pre-arrival Report was submitted and the time of the vessel's departure from Australia. Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 26

Appendix C Regulatory Burden Estimate - Data and Assumptions This appendix outlines the data and assumptions driving the regulatory burden estimates of Options 2 and 3, as follows: • Multiple pre-arrival reporting (sea pathway) (Options 2 and 3) • Updated information reporting (Options 2 and 3) Multiple pre-arrival reporting and Updated Information Reporting are solutions proposed under Option 3, through amendments to the Biosecurity Act. It is anticipated that emergency health declarations can be created under Option 2 which would achieve outcomes broadly similar to the proposed amendments under Option 3. As a result, the regulatory burden for these two outcomes is calculated below and apply to Option 2 as well as Option 3. The powers available to make determination under Option 2 are not available for the management of individuals (Biosecurity Bill 2014 Explanatory Memorandum pages 294-295). Multiple pre-arrival reporting (sea pathway) The calculations below are based on pre-pandemic cruise visits. Since the lifting of the ban on cruise vessels on 17 April 2022 there have been seven voyages of international cruise vessels. Cruise volumes are anticipated to return to 2019 levels in 2023-24 based on the time taken for global numbers to rise when bans were lifted in 2021. • Number of businesses affected in 2019: 29 • In order to facilitate a reliable build-up of costs, information was obtained regarding the size of the Australian Cruise market through consultation with various Government organisations (Department of Health and Aged Care, Department of Infrastructure, Transport, Regional Development and Communications) and Ports Australia and within industry (Cruise Lines International Association). It was established that 29 cruise operators visited Australian shores during the 2019 calendar year period (refer below), with a total of 332 cruise ship voyages identified during that time. Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 27

Cruise companies that voyaged to Australia - 2019 P & O Cruises Princess Cruises Ponant Carnival Cruises Royal Caribbean Holland America Expedition Cruising APT Cruise and Maritime Voyages company Viking Cruises Regent Seven Seas Trio Noble Caledonia Cruises Oceania Cruises Cunard Global Cruise Lines Celebrity Cruises Other (14 operators) Grand Total (29 operators) Table 6 - Cruise Ship companies voyaging to Australian Shores in 2019 Calendar Year • • Number of times activities are performed per annum: o 332 cruise ship voyages occurred in 2019, across 29 cruise operators, with an average of 11.4 arrivals per business. As the additional pre-arrival reporting is required for each arrival, 72 was used as the value for "number of times activity is performed" per staff member (for simplicity it was assumed that one staff member performs each task, for each operator). • Hours of effort for a person to perform the task each time: o Perform updated cruise vessel pre-arrival reporting = 1.0 hours • Cruise staff used to perform the task: medical officer with wage rate of $69 per hour at 75 per cent overheads and on-costs. • Department of Agriculture, Fisheries and Forestry time to assess each pre-arrival report is estimated up to 45 minutes at a cost of $30 per 15 minutes which is charged to the vessel master. • Calculations: o Cost per voyage: ($69*1.75) + ($30*3) = $210.75 o Annual activity cost based on 2019 volumes: ($69 * 1.75 * 1.0 * 29 * 11.4) + (3*$30*29*11.4) = $69673.95 As reflected in Table 5 above, the component of the regulatory burden estimate which relates to multiple pre-arrival reporting amounts to $0.069m per annum. This estimate assumes that the further report will be limited to questions on human health matters, and that the MARS input form will either be pre-populated with the information previously reported or will ask for updated information only. In either case, the labour effort required would be minimal. Through consultation with industry and various government departments as outlined above, one activity was identified (update and submit pre- arrival reporting). It is assumed that this activity will require 1.0 hours of effort. Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 28

Updated information reporting Option 3 includes a requirement to update pre-arrival reporting when there is a change in health circumstances aboard a vessel or aircraft. This could be seen as an extension of the current requirement to correct or complete information. This requirement will impose a regulatory burden on the operators of aircraft or vessels, although quantifying that burden is challenging as it is based on exceptional circumstances arising. For cruise ships, any changes aboard will typically be captured by the proposed new requirement for a further PAR, although the requirement for updating information will continue beyond the PAR. The requirement to provide updated reporting will also apply to commercial vessels other than cruise ships, which typically carry much smaller numbers of crew and passengers. The Inspector-General of Biosecurity's report identified 11 commercial vessels (plus two cruise ships) with confirmed cases of COVID-19 in the period February-October 2020. More recent figures, monitoring incidence over a longer period of time but not able to be broken down by vessel report 1,621 reported cases of COVID-19 in the sea pathway from 1 February 2020 to 3 August 2022 (Source: National Notifiable Diseases Surveillance System, Department of Health, Aug 2022). Unlike the commercial vessel environment where there are medical officers on cruise vessels, or first aid officers for a small number of crew on a commercial vessel, the aircraft environment involves passengers in close physical proximity for a comparatively short period of time. Unless very unwell during the flight, it is unlikely that a passenger will notify the crew. These factors may reduce the likelihood of ill passengers self-identifying as sick for on-arrival assessment. While there will be some additional regulatory burden for aircraft, any new requirements for updated information are likely to be less burdensome for aircraft than for vessels as the information is less likely to be available to the aircraft crew. A regulatory burden estimate was derived for "Requirements to update pre-arrival reporting", as follows: • Number of times activities are performed per annum: As noted above, 13 vessels (11 commercial and two cruise ships) with confirmed COVID cases were reported in a nine-month period and would therefore have been expected to provide additional reporting. For this estimate a total of 50 reporting instances were assumed, across vessels as well as aircraft. Confidence in this estimate is low, but the overall effect is unlikely to be significant. • Calculations: o Pre-arrival reporting cost per report: $69*1.75*1.0 = $120.75 o Annual activity cost = $69 * 1.75 * 1.0 * 50 = $6037.50. Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 29

Appendix D Benefits to the Broader Australian Economy and the Australian Cruise Industry A key benefit expected to materialise as a result of the proposed amendments is the support it lends toward the recovery of the cruise industry, to pre-pandemic levels. This includes refilling the more than 18,000 jobs that existed at the end of the 2018-19 financial year and building back up to the $5.2 billion in annual economic output that was generated directly and indirectly by the industry. Benefits to the Broader Australian Economy: $5.2 billion in economic output (direct & indirect) 18,135 total jobs created (direct & indirect) The cruise industry has exhibited strong growth over the past decade. In 2018, 200,000 international visitors entered Australia on cruise ships from 145 countries. The 2018-19 financial year saw an increase of 11.2% in the industry's total value to the national economy, contributing $5.2 billion for the year, with an equivalent of 18,135 full time jobs supported by the cruise industry (AEC Economic Impact Assessment, 2019). This represented a 6.6% increase on the previous year. The suspension of cruise operations internationally in March 2020 because of the COVID-19 pandemic, has had a devastating impact on the cruise industry. Between March and September 2020 alone, it is estimated that the suspension of cruise operations had resulted in a loss of more than 518,000 jobs worldwide, US$23 billion in lost wages and US$77 billion in global economic activity (CLIA Industry Outlook 2021). A significant reduction in jobs as well as economic output was witnessed in Australia from March 2020 onwards, seeing a decline from the 18,135 full time jobs at the end of FY18-19 to 15,126 jobs at the end of FY19-20 (AEC Economic Impact Assessment, 2020). This represents a drop of 16.6% in the three months from April to June 2020 alone. The contribution to the economy also reduced from $5.2 billion in the 2018-19 financial year to output of $4.8 billion in the following year (refer Table 9 below). This decline in output of $0.5 billion only reflects the effect the pandemic had on the industry from mid-March 2020 until the end of June 2020. Total 'Passenger Economic Gain State/Territory Visit Days' for Region (A$'m) Western Australia 152,000 276 Northern Territory 135,000 172 South Australia 115,000 118 Queensland 778,000 1,000 New South Wales 1,400,000 2,800 Victoria 314,000 317 Tasmania 213,000 106 TOTAL 3,107,000 4,789 Source: https://www.cruiseagency.com.au/news/australian-cruise-industry-statistics Table 7 - 2019-20 Cruise passenger visits Although exact figures are not yet available for the 2020-21 and 2021-22 financial years, the cruise industry was not operational at any time until the ban was lifted on 17 April 2022. This resulted in a loss of up to $5.2 billion per year (the annual economic output by the industry seen in FY19), as well as the majority of the 18,135 jobs in existence at the end of that period. Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 30

It is important to be aware of the economic benefits that a thriving cruise industry will provide to the Australian economy. A more robust and flexible framework within which to manage the development of human biosecurity risks, provides greater certainty for the operation of the cruise industry, leading to growth in jobs and in the broader Australian economy. Department of Agriculture, fisheries and forestry | Pratique and human health pre-arrival reporting: amendments to the Biosecurity Act 2015 31

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ATTACHMENT B Statement of Compatibility with Human Rights Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 Biosecurity Amendment (Strengthening Biosecurity) Bill 2022 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 Biosecurity Amendment (Strengthening Biosecurity) Bill 2022 (the Bill) will amend the Biosecurity Act 2015 (the Biosecurity Act) to enhance the 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. It will strengthen the operation of the biosecurity framework through improving efficiency and effectiveness of the administration of the Biosecurity Act, increase a range of civil and criminal penalties to deter non-compliance and strengthen the identification and management of biosecurity risks posed by maritime and aviation arrivals. The Biosecurity Act provides the regulatory framework for the management of risks of pests and diseases entering Australian territory and gives effect to Australia's relevant international rights and obligations. The Bill amends the Biosecurity Act to: • Provide increased protection from diseases or pests which pose an unacceptable biosecurity risk entering, emerging or establishing themselves or spreading in, Australian territory or part of Australian territory; • Strengthen pratique and pre-arrival reporting requirements by: o expanding pre-arrival reporting requirements for aircraft and vessels; and o strengthening penalties for non-compliance with negative pratique requirements; • Enable more effective sharing of information with government agencies and other bodies, while ensuring appropriate safeguards for protected information; • Increase civil and criminal penalties for contraventions of Chapters 3 and 4 of the Biosecurity Act, which deal with managing biosecurity risks in relation to goods and conveyances; • Streamline the process for making certain determinations specifying prohibited, conditionally non-prohibited and suspended goods or granting permits based on risk assessments; 1

• Increase efficiency and ensure transparency of expenditure on biosecurity-related programs and activities by permitting the Agriculture Minister and Health Minister to authorise the expenditure directly through the Biosecurity Act; • Improve the operation of provisions relating to approved arrangements and compensation; and • Provide for a new civil penalty provision to target the concealment of conditionally non-prohibited goods that are brought or imported into Australian territory. The new civil penalty provision would also be subject to the infringement notice scheme under the Biosecurity Act. Schedule 1 - Increasing protection from diseases and pests Schedule 1 to the Bill contains measures to provide for increased protection from diseases or pests that pose an unacceptable biosecurity risk entering, emerging, establishing themselves or spreading in Australian territory or a part of Australian territory. Australia's biosecurity system is a central pillar of the nation's defence against current and emerging biosecurity threats, including those posed by exotic pests and diseases such as Foot and Mouth Disease (FMD), African Swine Fever, Lumpy Skin Disease and Xylella fastidiosa. It is vital that legislation keeps pace with such threats and provides appropriate and adequate powers to manage the significant and potentially devastating effects that these pests and diseases could have on Australia. For example, if FMD were to enter and establish itself in Australia, it is estimated that the direct impact on the Australian agricultural sector alone would be around $80 billion. Similarly, other diseases or pests entering Australia would also have significant impacts on agriculture and other industries, such as the estimated $7.9 billion cost of Xylella fastidiosa to our grape and wine industries. To this end, the measures in Schedule 1 would significantly enhance the biosecurity framework by creating new, vital powers aimed at preventing, or reducing the risk that, these diseases enter Australia, and to combat the devastating effect that these diseases would pose to plant and animal health, the environment, and the economy should they enter Australia. These measures are a crucial new tool to maintain Australia's unique biosecurity status and to protect the nation's animals, plants, environment and related industries. Part 1 - Entry requirements Part 1 of Schedule 1 to the Bill contains provisions relating to entry requirements for certain persons on incoming aircraft or vessels relating to diseases or pests that may pose an unacceptable biosecurity risk and includes new Division 3A of Part 2 of Chapter 4 of the Biosecurity Act. New subsection 196A(1) would provide that section 196A applies for the purposes of preventing, or reducing the risk of, a disease or pest that is considered to pose an unacceptable level of biosecurity risk entering, or establishing itself or spreading in, Australian territory or a part of Australian territory. New subsection 196A(2) would allow the Agriculture Minister to determine one or more requirements for individuals who are entering Australian territory at a landing place or port. New subsection 196A(3) would provide that a determination must specify the disease or pest to which the determination relates. New 2

subsections 196A(7) and (8) also sets out the kinds of requirements that may be specified in a determination. The kinds of requirements set out are a non-exhaustive list. New subsection 196A(5) would provide that a requirement must not be specified in a determination unless the Agriculture Minister is satisfied that: • The disease or pest poses an unacceptable level of biosecurity risk; and • The requirement is appropriate and adapted to prevent, or reduce the risk of, the disease or pest entering, or establishing itself or spreading in, Australian territory or a part of Australian territory. New subsection 196A(9) would provide that, before making a determination, the Agriculture Minister would also be required to consult with the Director of Biosecurity, the Director of Human Biosecurity, and the head (however described) of the State or Territory body that is responsible for the administration of matters relating to biosecurity in each State and Territory. However the validity of a determination made under new subsection 196A(2) would not be affected if the Agriculture Minister fails to comply with these consultation requirements. New subsection 196A(4) would provide that a determination made under new subsection 196A(2) is a legislative instrument however section 42 (disallowance) of the Legislation Act 2003 (the Legislation Act) would not apply to the determination. New section 196B would provide that the Agriculture Minister is obliged to vary or revoke a determination if satisfied that: • The disease or pest no longer poses an unacceptable biosecurity risk; or • A requirement determined in relation to the disease or pest is no longer appropriate and adapted to prevent, or reduce the risk of, the disease or pest entering, or establishing itself or spreading in, Australian territory or a part of Australian territory. There is a civil penalty provision for failing to comply with a requirement specified in a determination (see new section 196C). An individual to whom a requirement determined under new section 196A applies who does not comply with the requirement, is liable to a maximum civil penalty of 120 penalty units. The civil penalty provision in new subsection 196C would also be subject to an infringement notice under Part 5 of the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act). The ability to issue an infringement notice for contravention of new subsection 196C would allow the notice with the stated amount to be issued immediately and to be effective in managing alleged non- compliance with requirements set out in a determination made under new section 196A. The civil penalty provision in new section 196C would not subject to the privilege against self-incrimination. Part 2 - Preventative biosecurity measures Part 2 of Schedule 1 to the Bill contains provisions relating to preventative biosecurity measures including new Part 6A of Chapter 6 of the Biosecurity Act. 3

New Part 6A deals with preventative biosecurity measures for the purposes of preventing a specified behaviour or practice that causes, or contributes to, the entry into, or the emergence, establishment or spread in, Australian territory or a part of Australian territory of a specified disease (other than a listed human disease) or pest that may pose an unacceptable level of biosecurity risk. New subsection 393B(2) allows the Agriculture Minister to make a determination that specifies any one or more of the following biosecurity measures to be taken by specified classes of persons: • Banning or restricting a behaviour or practice; • Requiring a behaviour or practice; • Requiring a specified person to provide a specified report or keep specified records; • Conducting specified tests on specified goods or specified conveyances. A determination must specify the behaviour or practice, and the disease or pest to which the determination relates. New subsection 393B(7) would provide that, before making a determination, the Agriculture Minister would also be required to consult with the Director of Biosecurity, the Director of Human Biosecurity, and the head (however described) of the State or Territory body that is responsible for the administration of matters relating to biosecurity in each State and Territory. However the validity of a determination made under new subsection 393B(2) would not be affected if the Agriculture Minister fails to comply with these consultation requirements. New subsection 393B(4) would provide that a determination made under new subsection 393B(2) is a legislative instrument however section 42 (disallowance) of the Legislation Act would not apply to the determination. The power to make a determination under subsection 393B(2) is subject to the limitation that the determination cannot be in force for longer than 1 year and that the Agriculture Minister must be satisfied that: • The disease or pest poses an unacceptable level of biosecurity risk; and • The biosecurity measure is appropriate and adapted to prevent, or reduce the risk of, the disease or pest entering, or establishing itself or spreading in, Australian territory or a part of Australian territory. There is a civil penalty provision for failing to comply with a biosecurity measure specified in a determination (see new section 393C). A person to whom a biosecurity measure specified in accordance with new subsection 393B(2) applies who does not comply with the biosecurity measure, is liable to a maximum civil penalty of 120 penalty units. The civil penalty provision in new section 393C would also be subject to an infringement notice under Part 5 of the Regulatory Powers Act. Schedule 2 - Pratique and pre-arrival reporting The emergence and global spread of COVID-19 has tested Australia's biosecurity systems in an unprecedented way. International vessels present a significant risk pathway for infectious disease entry to Australian territory, including incidents of COVID-19 infections on cruise passenger ships and commercial vessels. There have been a number of reviews into the 4

management of this risk, including the Inspector-General of Biosecurity's review 'Confidence testing for at-border delivery of critical human biosecurity functions - Ruby Princess cruise ship incident' (Inspector-General's Report). Schedule 2 to the Bill amends provisions relating to pratique and pre-arrival reporting requirements in the Biosecurity Act. These amendments strengthen the legislative framework for responding to biosecurity risks arising from incoming aircraft and vessels in Australian territory. Part 1 - Pratique Part 1 of Schedule 2 to the Bill includes measures to strengthen penalties for contravention of pratique and clarifying who is liable. Currently, the operator of an incoming aircraft or vessel is liable to a civil penalty under subsection 48(1) if they contravene the requirement not to unload or load any thing or disembark or embark any persons unless pratique has been granted. Subsection 48(1) will be amended to extend liability to the civil penalty to include the person in charge of an incoming aircraft or vessel. This amendment is consistent with Recommendation 21 of the Inspector-General's Report by addressing the disjuncture between the practical and legal responsibility for compliance with pratique requirements. The civil penalty for contravention of pratique requirements will be increased to a maximum of 1,000 penalty units for the operator and 300 penalty units for a person in charge of the aircraft or vessel. This increase reflects the serious consequences posed by the potential entry, spread and transmission in Australia of a listed human disease, and the commercial context to which pratique applies where a lower penalty may not be an effective deterrent to non-compliance. Part 2 - Pre-arrival reporting Part 2 of Schedule 2 to the Bill will also amend the pre-arrival reporting requirements in sections 193 and 194 to expand the circumstances in which an operator of an aircraft or vessel must provide pre-arrival reporting and further information to a biosecurity officer. Currently, the requirement is only for an operator to provide one initial pre-arrival report, and to provide additional or corrected information where the initial report was incomplete or incorrect. These amendments require other reports and further information to be provided by an operator in circumstances to be set out in the regulations. This is consistent with the recommendation made in the Inspector-General's Report which noted that the current provisions do not create a clear obligation to update information that becomes superseded after the initial report is submitted. These amendments allow biosecurity risks to be identified, assessed and managed in an accurate and timely manner. This is necessary as biosecurity officers can use the other reports and further information to identify risks and determine what risk management activities might be necessary in relation to the aircraft or vessel in response to changing circumstances. For example, if there is a large number of passengers and crew members on board a cruise vessel, it is possible for there to be significant changes in the reported signs or symptoms after the initial report was made and before the vessel moors at a port. Other reports and further information would allow the Commonwealth to gather important information about a conveyance to assist with the accurate and timely identification, assessment and management of biosecurity risk. This may include information about where a conveyance has travelled, information about the people and goods on board, or information 5

about the conveyance itself. Regulated entities, such as an operator of an aircraft or vessel, should take active steps to understand and comply with the requirements under the Biosecurity Act, including in relation to reporting obligations. Schedule 2 also increases the maximum civil penalties and pecuniary penalties for fault-based offences under sections 193 and 194 for failing to comply with the pre-arrival reporting requirements to better reflect the serious consequences posed by the biosecurity risks. The amendments also expand the civil penalties and fault-based offences to cover contraventions of the new requirements to provide other reports and further information. Failure to provide reports in accordance with the requirements in sections 193 and 194 can undermine the ability of biosecurity officers to determine what risk management activities might be necessary when an aircraft or vessel arrives in Australian territory. Depending on the risks posed by the diseases and pests on an aircraft or vessel, this can result in harmful consequences to the Australian environment, economy and export markets. Schedule 3 - Information management Schedule 3 to the Bill seeks to amend the Biosecurity Act to enable more effective management of information obtained or generated under the Biosecurity Act. Schedule 3 to the Bill contains authorisations for the use or disclosure of relevant information and contains civil penalty and offence provisions relating to the unauthorised use or disclosure of protected information. Relevant information would cover any information obtained or generated by a person in the course of, or for the purposes of, performing functions or duties or exercising powers under this Act, or assisting another person to perform such functions or duties or exercise such powers (see item 8 of Schedule 3). Authorised uses and disclosures of relevant information Schedule 3 to the Bill would insert a new Division 3 of Part 2 of Chapter 11 in the Biosecurity Act, which outlines the authorised uses and disclosures of relevant information (see item 27 of Schedule 3). Each provision in new Division 3 would provide an authorisation for the purposes of the Privacy Act 1988 (the Privacy Act) and other laws. It is intended that the authorisations proposed by Schedule 3 would not limit each other. The proposed amendments would introduce the concept of entrusted persons, who would include the Agriculture Minister, the Health Minister as well as certain officers and employees of the Agriculture Department or Health Department (see item 5 of Schedule 3). These persons would have specific authorisations in Schedule 3 to deal with relevant information in the following manner: • Disclosure to manage risks posed by diseases and pests to a State or Territory (new section 584); • Disclosure to foreign governments to manage risks posed by diseases or pests to a foreign country, or to give effect to Australia's international obligations (new section 585); • Use or disclosure for the purposes of certain Acts administered by the Agriculture Minister or the Health Minister (new section 586); 6

• Disclosure to a Commonwealth entity for the purposes of assisting the entity to perform its functions or duties or exercise its powers (new section 587); • Disclosure to a court or tribunal (new section 588); • Disclosure for the purposes of law enforcement (new section 589); • Use or disclosure for research, policy development or data analysis to assist the Agriculture Department or Health Department to administer the Biosecurity Act (new section 590); • Use or disclosure of statistics (new section 590A); • Use or disclosure of publicly available information (new section 590B); • Disclosure to the person to whom the information relates (new section 590C); • Use or disclosure with consent given by the person to whom the information relates (new section 590D); • Disclosure to the person who provided the information (new section 590E). In addition, certain persons (including entrusted persons) would be authorised to use or disclose relevant information in the course of, or for the purposes of, performing functions or duties, or exercising powers under the Biosecurity Act or assisting another person to perform such functions or duties, or exercise such powers (new section 582). Such persons would include: • An entrusted person; • A person employed or engaged by the Commonwealth or a body corporate that is established by a law of the Commonwealth; • A biosecurity official (which is defined in section 9 of the Biosecurity Act as a biosecurity officer, a biosecurity enforcement officer, and the Director of Biosecurity); • A chief human biosecurity officer (which is defined in section 9, in relation to a State or Territory, to mean a person who is authorised under section 562 to be a chief human biosecurity officer for the State or Territory); • A human biosecurity officer (which is defined in section 9 to mean a person who is authorised under section 563 to be a human biosecurity officer); • A biosecurity industry participant (which, under sections 9 and 14, means the holder of the approval of an approved arrangement) or an officer or employee of a biosecurity industry participant; • A survey authority (which is defined in section 9 to mean a person authorised by the Director of Biosecurity under section 290A) or an officer or employee of a survey authority; • A person who has carried out, or is carrying out, an audit under section 436; • An issuing officer (which is defined in section 9 to mean a magistrate, a judge of a State or Territory court, or a judge of the Federal Court or the Federal Circuit Court and Family Court of Australia (Division 2)). This is because the proper, effective and efficient performance of functions or duties, or the exercise of powers, under the Biosecurity Act will often involve the use or disclosure of relevant information. There would also be a separate authorisation for certain persons to use or disclose relevant information for the purposes of managing risks to human health (new section 583). Such persons would include entrusted persons, persons employed or engaged by the 7

Commonwealth or a body corporate established by Commonwealth law, biosecurity officials, chief human biosecurity officers, human biosecurity officers and biosecurity industry participants (including their officers or employee). The Director of Biosecurity and the Director of Human Biosecurity would have additional authorisations in relation to the disclosure of relevant information to a State or Territory body (new section 590F), or where use or disclosure of such information is necessary to manage a severe and immediate threat that has the potential to cause harm on a nationally significant scale (new section 590G). There would be a separate regulation-making power for the use or disclosure of specific kinds of relevant information to specific classes of persons, for specific purposes (new section 590H). This would allow for the use or disclosure in other circumstances not covered by new Division 3 of Part 2 of Chapter 11 in the Biosecurity Act, which may arise in the future, and which may require expedient authorisation to effectively manage biosecurity risks or other risks. Offences and civil penalty provision Schedule 3 to the Bill would also ensure the confidentiality of protected information obtained or generated under the Biosecurity Act. Protected information would cover kinds of information of which an unauthorised use or disclosure would be likely to cause harm (see items 7 and 10 of Schedule 3), and would be defined as: • Sensitive information (within the meaning of the Privacy Act); • Information (including commercially sensitive information) the disclosure of which could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence; • Information the disclosure of which could reasonably be expected to prejudice the prevention, detection, investigation, prosecution or punishment of one or more offences; • Information the disclosure of which could reasonably be expected to prejudice the protection of public safety, human health or the environment; • Information the disclosure of which could reasonably be expected to prejudice Australia's security, defence or international relations; • Other information of a kind prescribed by the regulations, where such information would or could reasonably be expected to prejudice the effective working of the Agriculture Department or the Health Department, or otherwise harm the public interest. New section 580 of the Biosecurity Act would provide a fault-based offence, strict liability offence and civil penalty provision for the unauthorised use or disclosure of protected information (see item 18 of Schedule 3). Certain persons would contravene new subsection 580(1) by using or disclosing protected information, where such information was obtained or generated in the course of, or for the purposes of, performing functions or duties or exercising powers under the Biosecurity Act, or assisting another person to perform such functions or duties or exercise such powers. The persons that would be subject to new subsection 580(1) would be entrusted persons as well as persons employed or engaged by the Commonwealth or a body corporate established by 8

Commonwealth law, biosecurity officials, chief human biosecurity officers, human biosecurity officers, biosecurity industry participants (including their officers or employee), survey authorities (including their officers or employees) or a person who has carried out, or is carrying out, an audit under section 436. There would be two exceptions to new subsection 580(1), which would apply where: • The use or disclosure of the protected information is required or authorised by the Biosecurity Act, another Commonwealth law or a prescribed State or Territory law (new subsection 580(3)); or • The person uses or discloses the protected information in good faith in the purported performance of functions or duties, or the purported exercise of powers, under the Biosecurity Act, or in assisting another person to purportedly perform such functions or duties or purportedly exercise such powers (new subsection 580(4)). New subsection 580(5) would have the effect that a person who contravenes new subsection 580(1), in circumstances where the exceptions in new subsections 580(3) and (4) do not apply, would commit a fault-based offence with a maximum penalty of 2 years imprisonment or 120 penalty units, or both. New subsection 580(6) would have the effect that a person who contravenes new subsection 580(1), in circumstances where the exceptions in new subsections 580(3) and (4) do not apply, would commit a strict liability offence with a maximum penalty of 60 penalty units. New subsection 580(7) would establish a corresponding civil penalty provision. A person would be liable to a civil penalty if they contravene new subsection 580(1), in circumstances where the exceptions in new subsections 580(3) and (4) do not apply. The maximum civil penalty is 120 penalty units. The combination of fault-based offence, strict liability offence and civil penalty provision provides an adequate deterrent for persons who use or disclose protected information without authorisation, which has the potential to cause harm. It is also appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce any contravention of new subsection 580(1) appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected that criminal proceedings would be brought for conduct that contravenes new subsection 580(1) that is at the more serious end of the spectrum or that involves a higher degree of malfeasance. Infringement notice scheme Under Division 2 of Part 7 of Chapter 9 of the Biosecurity Act, an infringement officer may give a person an infringement notice under Part 5 of the Regulatory Powers Act for contravention of certain provisions of the Biosecurity Act. The table in subsection 523(1) of the Biosecurity Act lists the relevant provisions of that Act in relation to which an infringement notice may be given. Item 13 of Schedule 3 to the Bill inserts new item 45A into the table in subsection 523(1). This has the effect that the strict liability offence in new subsection 580(6) is subject to an infringement notice under Part 5 of the Regulatory Powers Act. 9

Schedule 4 - Strengthening penalties Schedule 4 to the Bill seeks to amend the Biosecurity Act to increase the civil and criminal penalty amounts for contraventions of certain key requirements relating to the assessment and management of biosecurity risks of goods that are brought or imported into Australian territory or conveyances that enter, or intend to enter, Australian territory. The objective of increasing civil penalty provisions is to deter future non-compliance with the Biosecurity Act, and to ensure that increases to criminal penalties allow for appropriate and proportionate punishment for individuals and bodies corporate jeopardising Australia's biosecurity status with their offending conduct. The increased penalties reflect the seriousness of non-compliance with Australia's biosecurity laws and the impact contraventions may have on Australia's biosecurity status, market access and economy. Large numbers of pests and diseases currently pose a high risk to Australia's biosecurity in an increasingly complex import environment, threatening the livelihoods of farmers with the potentially devastating impact they would have on agriculture, industry and trade. The current penalty regime no longer serves as an effective deterrent against non-compliance in the face of growing biosecurity threats such as Foot and Mouth Disease and African Swine Fever. It is expected these biosecurity threats will be accentuated through growth in international trade and travel as the Australian economy continues to recover from COVID-19. In most instances, the civil penalty amounts would not apply to the general public but rather to regulated entities who should reasonably be aware of and understand their obligations under the Biosecurity Act, for example, operators or persons in charge of an aircraft or vessel that arrives in Australian territory. The increases in the civil penalties reflect the seriousness of the consequences that may result from a failure to comply with the requirements under the Biosecurity Act. Non-compliance exposes Australia to pests and diseases which can have a devastating impact on the Australian environment, animal health, plant health, economy, and export markets. For a number of the provisions in this Bill, the civil penalty provisions are provided as disciplinary-like alternatives to the more punitive deterrent of criminal offences. Civil penalties also enable an effective disciplinary-like approach to dealing with non-compliance by corporations. There is no sanction of imprisonment for non-payment of penalties and the maximum amount of each civil penalty is the same as, or lower than, the corresponding criminal offence. The maximum civil penalty quantum is set to effectively disincentivise the financial benefit that persons are likely to stand to gain from non-compliance. The integrity of the regulatory framework would be undermined if the civil penalties for a contravention are being calculated into profit margins and seen as a 'cost of doing business'. As outlined in items 2, 4 and 5 in Schedule 4 of the Bill, the proposed increases to the civil penalties and criminal penalties would apply prospectively in relation to specified circumstances that occur on or after the commencement of this item. 10

Part 1 - Managing biosecurity risks: goods Part 1 of Schedule 4 to the Bill would amend the following provisions, in relation to managing biosecurity risks of goods: Sections 120 and 122 Sections 120 to 122 of the Biosecurity Act provide for fault-based offences and civil penalty provisions where a person contravenes certain requirements in relation to goods that are, or are intended to be, brought into Australian territory and unloaded at a landing place or port in Australian territory. This includes requirements to give notice of the goods, provide additional or corrected information about the goods, answer questions about the goods, and to produce documents in relation to the goods. They apply in the context of managing the biosecurity risks in relation to a notice of goods to be unloaded in Australian territory (Division 3 of Part 1 of Chapter 3 of the Biosecurity Act). The fault-based offences (subsections 120(6), 121(3) and 122(6)) currently carry a maximum penalty of 2 years imprisonment or 120 penalty units or both. They apply where: • Goods are unloaded under subsection 120(1) and a notice in relation to the unloaded goods has not been given by a person who may give a notice or any other person in accordance with subsection 120(3); or • A person that gave a notice in relation to unloaded goods under section 120 has failed to provide additional or corrected information to a biosecurity officer as required under subsection 121(1); or • A person has failed to answer questions, give information or produce documents to a biosecurity officer as required by subsections 122(2) and 122(3). The Bill would increase the maximum pecuniary penalty for each of these fault-based offences from 120 penalty units to 300 penalty units. The civil penalty provisions (subsections 120(7), 121(4) and 122(7)) currently carry a maximum civil penalty amount of 120 penalty units. Subsections 120(7), 121(4) and 122(7) mirror subsections 120(6), 121(3) and 122(6) but apply a civil penalty provision. The Bill would increase the maximum civil penalty amount in each of these three civil penalty provisions to 300 penalty units. The notices in relation to goods brought into Australian territory and the requirements in relation to these notices, allow the Commonwealth to gather important information about goods such as the country of origin and a description of the goods, that assists with the accurate and timely assessment and management of biosecurity risks. This information can be used by biosecurity officers to determine what risk management activities are necessary to deal with goods subject to biosecurity control when a conveyance arrives in Australian territory. The proposed increases to the maximum pecuniary penalty for the criminal offence is intended to reflect the seriousness of the offending behaviour and allow for appropriate punishment where a person fails to comply with the requirements to: • Give notice of the goods; • Provide additional or corrected information about the goods; • Answer questions about the goods; or 11

• Produce documents in relation to the goods. The proposed increases to the civil penalties are intended to achieve the necessary deterrent effect for non-compliance with the Biosecurity Act and to be proportionate to the gains that individuals and businesses might obtain, or seek to obtain, from engaging in conduct that jeopardises Australia's biosecurity status. Failure to provide the required information puts Australia's agricultural industry at risk of biosecurity threats as the department cannot assess and manage any associated biosecurity risks appropriately. The increase in penalty amounts proposed by table items 1 to 6 in item 1 of Schedule 4 to the Bill are appropriate and proportionate to deter non-compliance. The offences in subsections 120(6), 121(3) and 122(6) are fault-based offences and accordingly do not apply when a person inadvertently contravenes the provisions. Sections 143 and 144 Section 143 currently provides for a fault-based offence and a civil penalty provision where a person in charge of an aircraft or vessel contravenes a direction given by a biosecurity officer under subsection 143(3) relating to the unloading of goods from the aircraft or vessel at a landing place or port: • The fault-based offence currently has a maximum penalty of 5 years imprisonment or 300 penalty units or both (subsection 143(5)). The Bill would increase the pecuniary penalty to 1,000 penalty units; and • The civil penalty provision currently has a maximum civil penalty amount of 120 penalty units (subsection 143(6)). The Bill would increase this to 300 penalty units. Section 144 currently provides for a fault-based offence and civil penalty provision that applies where a person contravenes a direction relating to the unloading of the goods from the aircraft or vessel at a landing place or port given by a biosecurity officer under subsection 144(3), or by the person in charge of the aircraft or vessel under subsection 144(4). • The fault-based offence currently has a maximum penalty of 5 years imprisonment or 300 penalty units or both (subsection 144(6)). The Bill would increase the pecuniary penalty to 1,000 penalty units; and • The civil penalty provision currently has a maximum civil penalty amount of 120 penalty units (subsection 144(7)). The Bill would increase this to 300 penalty units. Failure to comply with a direction under subsection 143(3), 144(3) or 144(4) may result in an inability for the Commonwealth to manage the unacceptable level of biosecurity risk posed by the goods in an efficient, timely and suitable manner potentially exacerbating the risk. The proposed increases to the maximum pecuniary penalty for the criminal offences are intended to reflect the seriousness of offending behaviour where a person contravenes a direction relating to the unloading of goods from an aircraft or vessel at a landing place or port, and to allow for appropriate punishment for offending behaviour. The proposed increases to the civil penalty provisions are intended to achieve the necessary deterrent effect for non-compliance with the Biosecurity Act and to reflect the level of harm that may be caused by the person's behaviour. If directions are not complied with, significant biosecurity risks may arise and result in serious damage to plant and animal health, Australia's local industries, the economy 12

and the environment. The increase in penalty amounts proposed by table items 7 to 10 in item 1 of Schedule 4 to the Bill are appropriate and proportionate to reflect the seriousness of contravening a direction given by a biosecurity officer or a direction given by a person in charge of an aircraft or vessel that gives effect to a direction given by a biosecurity officer. The offences in subsections 143(5) and 144(6) are fault-based offences and accordingly do not apply when a person inadvertently contravenes the provisions. Sections 145 and 146 Sections 145 and 146 provide for fault-based offences and civil penalty provisions where a person contravenes certain requirements or engages in certain conduct relating to the unloading of goods at a landing place or port other than a first point of entry. They apply in the context of managing the biosecurity risks of unloading goods at landing places or ports (Division 6 of Part 1 of Chapter 3 of the Biosecurity Act). The fault-based offences (subsections 145(2) and 146(4) to (6)) currently carry a maximum penalty of 5 years imprisonment or 300 penalty units or both. They apply where: • A person in charge of an aircraft or vessel allows goods that are subject to biosecurity control to be unloaded from the aircraft or vessel at a landing place or port in Australian territory (other than a first point of entry for those goods), and permission has not been given under subsection 146(2) for the goods to be unloaded at that landing place or port; • A person in charge or an operator of an aircraft or vessel contravenes the conditions of a permission given under subsection 146(2), and either the person in charge or the operator are liable for the offence. The Bill would increase the maximum pecuniary penalty for each of these fault-based offences from 300 penalty units to 1,000 penalty units. The civil penalty provisions (subsections 145(3) and 146(7)) currently carry a maximum civil penalty amount of 120 penalty units. Subsection 145(3) mirrors subsection 145(2), by providing that a person in charge of an aircraft or vessel who contravenes subsection 145(1) is liable to a civil penalty. Subsection 146(7) applies where the person in charge or the operator of an aircraft or vessel has not complied with conditions of a permission given under subsection 146(2). For subsection 146(7), the person in charge and the operator would each be liable to a civil penalty. The Bill would increase the maximum civil penalty amount in these civil penalty provisions to 300 penalty units. First points of entry may be determined to receive specific goods, depending on the biosecurity risks associated with the goods and the facilities at the first point of entry to manage the biosecurity risks. Section 145 ensures that in the event a first point of entry is determined to receive specific goods, the first point of entry is not circumvented and that biosecurity risks associated with unloading goods at places that are not first points of entry are appropriately managed. The conditions which may be put in place by the Director of Biosecurity allow for the appropriate management of biosecurity risks associated with the goods. Non-compliance with the requirements of sections 145 and 146 would jeopardise Australia's agricultural industry through the potential of a biosecurity threat entering, spreading and establishing within Australia. 13

The proposed increases in the maximum pecuniary penalty for the criminal offences are intended to reflect the severity of the potential consequences of the offending behaviour. If goods are allowed to circumvent the biosecurity assessment process, or conditions of a permission 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. The higher criminal penalty is also intended to allow for appropriate punishment of offending. The proposed increases in civil penalty provisions are intended to be proportionate to the likely harm that may result from a worse-case scenario and to adequately deter those considering jeopardising Australia's biosecurity status. It is appropriate to increase the penalties under these provisions as the person in charge or the operator of an aircraft or vessel are on notice of the conditions they must comply with and have a responsibility to know and understand their obligations under the Biosecurity Act. They are also in a position to take steps to organise their affairs in a way that allows them to comply with the law. The increases to the penalty amounts proposed by table items 11 to 16 in item 1 of Schedule 4 to the Bill are appropriate and proportionate to reflect the likely harm that may be caused by the unloading of goods at a landing place or port that is not a first point of entry for those goods or contravening conditions of a permission to unload goods at a landing place or port that is not a first point of entry for those goods. The offences in subsections 145(2) and 146(4) to (6) are fault-based offences and accordingly do not apply when a person inadvertently contravenes the provisions. Sections 147 Section 147 provides for fault-based offences and civil penalty provisions where a person contravenes certain requirements or engages in certain conduct that relates to bringing goods to a biosecurity entry point at a first point of entry for those goods. They apply in the context of managing biosecurity risks of unloading goods at landing places or ports (Division 6 of Part 1 of Chapter 3 of the Biosecurity Act). The fault-based offences (subsections 147(4) to (6)) currently carry a maximum penalty of 5 years imprisonment or 300 penalty units or both. They apply where a person in charge or the operator of an aircraft or vessel contravenes a direction given by a biosecurity officer under subsection 147(3) to bring the goods to an alternative biosecurity entry point, and either the person in charge or the operator are liable for the offence. The Bill would increase the maximum pecuniary penalty for each of these fault-based offences from 300 penalty units to 1,000 penalty units. The civil penalty provisions (subsections 147(2) and (7)) currently carry a maximum civil penalty amount of 120 penalty units. Subsection 147(2) applies where a person in charge of an aircraft or vessel has failed to ensure that unloaded goods have been brought to the biosecurity entry point for those goods, and no direction under subsection 147(3) or permission under 148(2) has been given to bring the goods to an alternative biosecurity entry point. Subsection 147(7) applies where the person in charge or the operator of an aircraft or vessel has not complied with a direction given under subsection 147(3). Under subsection 147(7), the person in charge and the operator would each be liable to a civil penalty. The Bill would increase the maximum civil penalty amount in both of these civil penalty provisions to 300 penalty units. 14

Biosecurity entry points allow biosecurity risks associated with the aircraft, vessel or goods to be managed within the landing place or port. The proposed increases to the maximum pecuniary penalty for the criminal offences are intended to reflect the seriousness of offending behaviour where a person fails to comply with a direction to bring goods to an alternative biosecurity entry point, and to allow for appropriate punishment of offending. The proposed increases to the civil penalties are intended to achieve the necessary deterrent effect for non-compliance with the Biosecurity Act, which jeopardises Australia's biosecurity status. Failure to bring goods to a biosecurity entry point as required by subsection 147(2) or as directed under subsection 147(3) can result in harmful consequences to the Australian environment, economy and export markets. A person in charge or an operator of an aircraft or vessel should take active steps to understand and comply with the requirements under the Biosecurity Act, including, knowing where the designated biosecurity entry points are for any particular first point of entry. The increases to the penalty amounts proposed by table items 17 to 21 in item 1 of Schedule 4 to the Bill are appropriate and proportionate to deter non-compliance and proportionate to the serious harm that may be caused by failing to bring goods to a biosecurity entry point for those goods or to an alternative biosecurity entry point as directed. The offences in subsections 147(4) to (6) are fault-based offences and accordingly do not apply when a person inadvertently contravenes the provisions. Section 148 Section 148 provides for fault-based offences and a civil penalty provision for contravening conditions of a permission given under subsection 148(2) to bring goods to an alternative biosecurity entry point. The fault-based offences (subsections 148(4) to (6)) currently carry a maximum penalty of 5 years imprisonment or 300 penalty units or both. They apply where a person in charge or the operator of an aircraft or vessel contravenes the conditions of a permission given under subsection 148(2) to bring the goods to an alternative biosecurity entry point, and either the person in charge or the operators are liable for the offence. The Bill would increase the maximum pecuniary penalty for each of these fault-based offences from 300 penalty units to 1,000 penalty units. The civil penalty provision (subsection 148(7)) currently carries a maximum civil penalty amount of 120 penalty units. Subsection 148(7) applies where the person in charge or the operator of an aircraft or vessel has not complied with the conditions of a permission given under subsection 148(2). For subsection 148(2), the person in charge and the operator would each be liable to a civil penalty. The Bill would increase the maximum civil penalty amount to 300 penalty units. It is appropriate for higher penalties to apply to these provisions, as individuals and businesses are on notice as to what the specified conditions are. Section 148 ensures that alternative arrangements can be made to unload goods at biosecurity entry points not determined to receive those goods. Permissions given under subsection 148(2) and conditions of the permission ensure that the biosecurity risks associated with unloading goods at places that are not a biosecurity entry point for those goods, are appropriately managed. Failure to comply with the conditions of a permission given under subsection 148(2) can have harmful consequences on plant and animal health, Australia's local industries, the economy and the environment. The proposed increases to the maximum pecuniary penalty for the criminal 15

offences are intended to reflect the seriousness of offending behaviour where a person fails to comply with the conditions of a permission to bring goods to an alternative biosecurity entry point, and to allow for appropriate punishment of offending. The proposed increases to the civil penalties are intended to achieve the necessary deterrent effect for non-compliance with the Biosecurity Act, which jeopardises Australia's biosecurity status. The increases to the penalty amounts proposed by table items 22 to 25 in item 1 of Schedule 4 to the Bill are appropriate and proportionate to deter non-compliance and proportionate to the serious harm that may be caused by failing to comply with the conditions of a permission to bring goods to an alternative biosecurity entry point. The offences in subsections 148(4) to (6) are fault- based offences and accordingly do not apply when a person inadvertently contravenes the provisions. Section 149 Section 149 provides for a civil penalty provision that currently carries a maximum civil penalty amount of 120 penalty units. The civil penalty provision applies where a person receives or possesses goods that have been unloaded from an aircraft or vessel in Australian territory and either: • The goods have been unloaded in contravention of a direction given under subsection 143(3), 144(3) or (4) or 147(3); • The goods have been unloaded in contravention of subsection 145(1); • A condition of a permission imposed under subsection 146(3) or 148(3) has been contravened; or • Subsection 147(2) was contravened. The Bill would increase the maximum civil penalty amount to 300 penalty units. Receiving or being in possession of goods that have by-passed biosecurity control could have a significant effect on the Australian environment, economy and export markets. The increase to the civil penalty amount proposed by table item 26 in item 1 of Schedule 4 to the Bill is appropriate and proportionate to deter non-compliance and proportionate to the nature of the contravening behaviour and serious harm that may be caused by receiving or being in possession of goods in contravention of section 149. Sections 155 and 156 Sections 155 and 156 provide for fault-based offences and civil penalty provisions for failing to report a reportable biosecurity incident to a biosecurity officer or the Director of Biosecurity. The fault-based offences (subsections 155(2) and 156(2)) currently carry a maximum penalty of 2 years imprisonment or 120 penalty units or both. They apply where: • A person in charge of an aircraft or vessel that is, or was carrying goods that are subject to a biosecurity control, fails to report a reportable biosecurity incident in relation to goods to a biosecurity officer or the Director of Biosecurity as soon as practicable after becoming aware of the incident; or 16

• A person in charge of goods that are subject to biosecurity control, fails to report a reportable biosecurity incident in relation to the goods to a biosecurity officer or the Director of Biosecurity as soon as practicable after becoming aware of the incident. The Bill would increase the maximum pecuniary penalty for these fault-based offences from 120 penalty units to 300 penalty units. The civil penalty provisions (subsections 155(3) and 156(3)) currently carry a maximum civil penalty amount of 120 penalty units. Subsection 155(3) mirrors subsection 155(2), by providing that a person in charge of an aircraft or vessel who contravenes subsection 155(1) is liable to a civil penalty. Subsection 156(3) mirrors subsection 156(2), by providing that a person in charge of goods who contravenes subsection 156(1) is liable to a civil penalty. The Bill would increase the maximum civil penalty amount in both of these civil penalty provisions to 300 penalty units. 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 and to limit the risk associated with any pest or disease entering, establishing or spreading into Australian territory. Failure to report biosecurity incidents as soon as practicable after becoming aware of them is likely to result in a delay in responding to the biosecurity risk associated with the incident, which could exacerbate the nature and magnitude of the risk and any required response activity. The person in charge of an aircraft or vessel carrying the goods or the person in charge of the goods, should be aware of and clearly understand the requirements under the Biosecurity Act and take reasonable steps to comply. The proposed increases to the maximum pecuniary penalty for the criminal offences are intended to reflect the seriousness of offending behaviour where a person fails to report a reportable biosecurity incident as soon as practicable after becoming aware of it, and to allow for appropriate punishment of offending. The proposed increases to the civil penalties are intended to achieve the necessary deterrent effect for non-compliance with the Biosecurity Act, which jeopardises Australia's biosecurity status and reflect the level of harm that may be caused by the person's behaviour. The increases proposed by table items 27 to 30 in item 1 of Schedule 4 to the Bill are appropriate and proportionate to deter non-compliance and proportionate to the nature and contravening behaviour and serious harm that may result from failing to report a reportable biosecurity incident as soon as practicable. The offences in subsections 155(2) and 156(2) are fault-based offences and accordingly do not apply when a person inadvertently contravenes the provisions. Part 2 - Managing biosecurity risks: conveyances Part 2 of Schedule 4 to the Bill would amend the following provisions, in relation to managing biosecurity risks of conveyances: Sections 198 and 200 to 202 Sections 198 and 200 to 202 of the Biosecurity Act provide for civil penalty provisions where a person contravenes certain requirements or directions given under the Biosecurity Act in relation to a conveyance that is subject to biosecurity control. This includes a direction given by a biosecurity officer to require the person in charge or operator of the conveyance to secure a conveyance (section 198), or directions relating to the movement of the conveyance (section 202). This also includes requirements to answer questions about the conveyance and 17

to produce documents in relation to the conveyance (sections 200 and 201). These provisions apply in the context of an assessment of the level of biosecurity risk associated with the conveyance (Division 4 of Part 2 of Chapter 4 of the Biosecurity Act). The civil penalty provisions (subsections 198(2), 200(2), 201(3) and 202(2)) currently carry a maximum civil penalty amount of 120 penalty units. The Bill would increase the maximum civil penalty that a court can impose under each of these provisions to 300 penalty units. The proposed increases to the civil penalty amounts reflect the seriousness of contravening behaviour where a person is given a direction or required to answer questions or provide documents in relation to a conveyance which is subject to biosecurity control. Sections 198 and 200 to 202 ensure that biosecurity officers can give directions to secure or move a conveyance in order to conduct activities to assess the biosecurity risk associated with the conveyance. These provisions also ensure that biosecurity officers have access to all the necessary information to make an accurate and timely assessment of the biosecurity risk associated with the conveyance. The proposed increases to the civil penalty provisions are intended to achieve the necessary deterrent effect for non-compliance with the Biosecurity Act. The increased penalty amounts proposed by table items 1 to 4 in item 3 of Schedule 4 to the Bill are appropriate to reflect the seriousness of the contravention and to seek to deter non-compliance with those provisions. Sections 203 and 204 Section 203 of the Biosecurity Act provides for a civil penalty provision where a person interferes with, removes or defaces, a biosecurity control notice affixed to, or as near as reasonably practicable to, a conveyance. Section 204 of the Biosecurity Act provides for a civil penalty provision where a person moves, deals with or interferes with a conveyance in relation to which a direction has been given under subsection 198(1) or paragraph 202(1)(a), that has been moved under paragraph 202(1)(b) or in relation to which a biosecurity control notice has been affixed under paragraph 203(1)(a), and the person is not authorised, directed or permitted to do so. These provisions apply in the context of an assessment of the level of biosecurity risk associated with the conveyance (Division 4 of Part 2 of Chapter 4 of the Biosecurity Act). The civil penalty provisions (subsections 203(2) and 204(2)) currently carry a maximum civil penalty amount of 120 penalty units. The Bill would increase the maximum civil penalty that a court can impose under each of these provisions to 300 penalty units. The proposed increases in the civil penalty amounts reflect the seriousness of contravening behaviour where a person interferes with, removes or defaces a biosecurity control notice affixed to a conveyance or moves, deals with or interferes with a conveyance in relation to which a direction has been given, has been moved, or has been affixed with a biosecurity control notice. Sections 203 and 204 ensure that biosecurity officers can conduct an assessment of the biosecurity risk associated with the conveyance while limiting the possibility that any biosecurity risk will spread. These provisions also ensure that biosecurity officers are not hindered in conducting assessment activities. The increased penalties proposed by table items 5 and 6 in item 3 of Schedule 4 to the Bill are appropriate to reflect the seriousness of the contravention and to seek to deter non-compliance with those provisions. 18

Sections 214 to 216 Sections 214 to 216 of the Biosecurity Act provide for fault-based offences and civil penalty provisions in relation to conveyances where biosecurity measures have been required to be taken to manage an unacceptable level of biosecurity risk (Division 5 of Part 2 of Chapter 4). Section 214 provides for a civil penalty provision where a person interferes with, removes or defaces, a notice that has been affixed to, or as near as reasonably practicable to, a conveyance in relation to which biosecurity measures have been required under the Biosecurity Act, and the person is not authorised, directed or permitted to do so. Section 215 provides for fault-based offences and a civil penalty provision where a person contravenes or fails to comply with a direction given by a biosecurity officer in relation to movement of an aircraft or vessel or to require biosecurity measures to be carried out under the Biosecurity Act. They apply when the person in charge, the operator or the owner of an aircraft or vessel contravenes or fails to comply with the direction, and they are either liable or jointly liable for the offence or civil penalty. Section 216 provides for a fault-based offence and a civil penalty provision where a person moves, deals with or interferes with a conveyance in relation to which a notice has been affixed to, or as near as reasonably practicable to, a conveyance under subsection 214(1) and the person is not authorised, directed or permitted to do so. The fault-based offences (subsections 215(2) to (6) and 216(3)) currently attract a maximum penalty of 5 years imprisonment or 300 penalty units or both. The Bill would increase the maximum pecuniary penalty from 300 penalty units to 1,000 penalty units. The civil penalty provisions (subsections 214(3), 215(7) to (8) and 216(4)) currently carry a maximum civil penalty of 120 penalty units. The Bill would increase the maximum civil penalty that a court can impose under each of these provisions to 300 penalty units. These provisions ensure that biosecurity measures can be taken to manage an unacceptable level of biosecurity risk in relation to conveyances and ensures that biosecurity officers are not hindered in taking biosecurity measures to manage the unacceptable level of biosecurity risk. The proposed increases to the maximum pecuniary penalties for the criminal offences are intended to reflect the seriousness of offending behaviour where a person interferes with a biosecurity control notice affixed to a conveyance in relation to which biosecurity measures have been required under the Biosecurity Act, fails to comply with a direction, or interferes with the conveyance. The proposed increases to the civil penalty provisions are intended to achieve the necessary deterrent effect for non-compliance with the Biosecurity Act. The increases to the penalty amounts proposed by table items 7 to 16 in item 3 of Schedule 4 to the Bill are appropriate to reflect the seriousness of the contravention and to seek to deter non-compliance with those provisions. Section 217 Section 217 of the Biosecurity Act provides a fault-based offence and a civil penalty provision where a person in charge of a conveyance has been given a direction by a biosecurity officer not to leave the conveyance for a specified period not longer than 24 hours 19

and the person in charge of the conveyance contravenes or does not comply with the direction. The fault-based offence in subsection 217(4) currently attracts a maximum penalty of 5 years imprisonment or 300 penalty units or both. The Bill would increase the maximum pecuniary penalty from 300 penalty units to 1,000 penalty units. The civil penalty provision in subsection 217(5) currently carries a maximum civil penalty of 120 penalty units. The Bill would increase the maximum civil penalty that a court can impose under subsection 217(5) to 300 penalty units. These provisions ensure that the person in charge of a conveyance can be required to remain on the conveyance if the person in charge is required to assist with the management of biosecurity risks. The proposed increase to the maximum pecuniary penalty for the criminal offence is intended to reflect the seriousness of offending behaviour where a person contravenes or does not comply with a direction not to leave the conveyance. The proposed increase to the civil penalty amount is intended to achieve the necessary deterrent effect for non-compliance with the Biosecurity Act. The increases to the penalty amounts proposed by table items 17 and 18 in item 3 of Schedule 4 to the Bill are appropriate to reflect the seriousness of the contravention and to seek to deter non-compliance with those provisions. Section 220 Section 220 of the Biosecurity Act provides for a civil penalty provision where the person in charge of an incoming aircraft or vessel that is subject to biosecurity control fails to ensure that each person on board the aircraft or vessel is given information about biosecurity requirements under the laws of the Commonwealth. The civil penalty provision in subsection 220(1) currently carries a maximum civil penalty of 120 penalty units. The Bill would increase the maximum civil penalty that a court can impose under subsection 220(1) to 300 penalty units. Section 220 ensures that every person on board a conveyance that is subject to biosecurity control is aware of Australia's biosecurity requirements and can comply with them when they enter Australian territory. The proposed increase to the civil penalty amount is intended to achieve the necessary deterrent effect for non-compliance with the Biosecurity Act. The increase to the penalty amount proposed by table item 19 in item 3 of Schedule 4 to the Bill is appropriate to reflect the seriousness of the contravention and to seek to deter non- compliance with the provision. Section 221 Section 221 of the Biosecurity Act provides for an offence of strict liability that applies to the person in charge of a vessel where the vessel does not ensure that the vessel displays the prescribed quarantine signal in the circumstances and manner prescribed by the regulations. The strict liability offence in subsection 221(3) currently attracts a maximum penalty of 50 penalty units. The Bill would increase the maximum penalty from 50 penalty units to 60 penalty units. 20

Section 221 ensures that a warning can be provided from vessels to indicate there may be a high level of biosecurity risk associated with the vessel and allows biosecurity officers to be aware of and take measures to manage, the risk. The proposed increase to the maximum penalty for the strict liability offence is intended to reflect the seriousness of offending behaviour where the person in charge of the vessel fails to display the prescribed quarantine signal in the circumstances and manner prescribed. The increase to the penalty amount proposed by table item 20 in item 3 of Schedule 4 to the Bill is appropriate to reflect the seriousness of the contravention and to seek to deter non-compliance with the provision. Sections 237 to 239 Sections 237 to 239 of the Biosecurity Act provide for fault-based offences and civil penalty provisions in relation to first point of entry and biosecurity entry point requirements for aircraft that intend to land at a landing place in Australian territory. They apply in the context of managing the biosecurity risks at entry points for aircraft that intend to land in Australian territory (Division 2 of Part 4 of Chapter 4). Section 237 provides for fault-based offences and a civil penalty provision that apply to the person in charge and the operator of an aircraft that is subject to biosecurity control in circumstances where the person in charge or operator of the aircraft permits the aircraft to land at a landing place that is not a first point of entry for the aircraft and they are not permitted or directed to do so. Section 238 provides for fault-based offences and a civil penalty provision that apply to the person in charge and the operator of an aircraft that is subject to biosecurity control in circumstances where there is a biosecurity entry point for the aircraft at the first point of entry and the person in charge or the operator does not bring the aircraft to the biosecurity entry point as soon as practicable. Section 239 provides for fault-based offences and a civil penalty provision that apply to the person in charge and the operator of an aircraft that is subject to biosecurity control in circumstances where either of the person in charge or the operator contravenes or fails to comply with the conditions of a permission given under subsection 239(2) to land at a landing place that is not a first point of entry for the aircraft. The fault-based offences (subsections 237(2) to (4), 238(2) to (4) and 239(4) to (6)) currently attract a maximum penalty of 5 years imprisonment or 300 penalty units or both. The Bill would increase the maximum pecuniary penalty from 300 penalty units to 1,000 penalty units. The civil penalty provisions (subsections 237(5), 238(5) and 239(7)) currently carry a maximum civil penalty amount of 120 penalty units. The Bill would increase the maximum civil penalty that a court can impose under each of these provisions to 300 penalty units. These provisions ensure that aircraft that intend to land in Australian territory, arrive at a location that has facilities available to assess any biosecurity risks and that appropriate risk management strategies are put in place where necessary. The proposed increases to the maximum pecuniary penalty for the criminal offences are intended to reflect the seriousness of offending behaviour where a person does not comply with first point of entry and biosecurity entry point requirements. The proposed increases to the civil penalty amounts are 21

intended to achieve the necessary deterrent effect for non-compliance with the Biosecurity Act. The increases to the penalty amounts proposed by table items 21 to 32 in item 3 of Schedule 4 to the Bill are appropriate to reflect the seriousness of the contravention and to seek to deter non-compliance with those provisions. Section 243 Section 243 of the Biosecurity Act provides for a fault-based offence and a civil penalty provision where a person contravenes or does not comply with a direction given under Division 2 of Part 4 of Chapter 4 of the Biosecurity Act. They apply in the context of managing the biosecurity risks at entry points for aircraft that intend to land in Australian territory. The fault-based offence in subsection 243(2) currently attracts a maximum penalty of 5 years imprisonment or 300 penalty units or both. The Bill would increase the maximum pecuniary penalty from 300 penalty units to 1,000 penalty units. The civil penalty provision in subsection 243(3) currently carries a maximum civil penalty amount of 120 penalty units. The Bill would increase the maximum civil penalty that a court can impose under subsection 243(3) to 300 penalty units. Directions given under Division 2 of Part 4 of Chapter 4 of the Biosecurity Act ensure that biosecurity officers are able to assess and manage biosecurity risks to an acceptable level of risk and ensures that appropriate risk management strategies can be put in place where necessary. The proposed increase to the maximum pecuniary penalty for the criminal offence is intended to reflect the seriousness of offending behaviour where a person does not comply with a direction. The proposed increase to the civil penalty amount is intended to achieve the necessary deterrent effect for non-compliance with the Biosecurity Act. The increases to the penalty amounts proposed by table items 33 to 34 in item 3 of Schedule 4 to the Bill are appropriate to reflect the seriousness of the contravention and to seek to deter non-compliance with those provisions. Sections 245 to 247 Sections 245 to 247 of the Biosecurity Act provide for fault-based offences and civil penalty provisions relating to first point of entry and biosecurity entry point requirements for vessels that intend to be moored in Australian territory. They apply in the context of managing the biosecurity risks at entry points for vessels that intend to be moored in Australian territory (Division 3 of Part 4 of Chapter 4 of the Biosecurity Act). These provisions mirror sections 237 to 239 (which relate to first point of entry and biosecurity entry point requirements for aircraft) discussed above. Section 245 provides for fault-based offences and a civil penalty provision that apply to the person in charge and the operator of a vessel that is subject to biosecurity control in circumstances where the person in charge or operator of the vessel permits the vessel to be moored at a port that is not a first point of entry for the vessel and they are not permitted or directed to do so. Section 246 provides for fault-based offences and a civil penalty provision that apply to the person in charge and the operator of a vessel that is subject to biosecurity control in 22

circumstances where there is a biosecurity entry point for the vessel at the first point of entry and the person in charge or the operator does not bring the vessel to the biosecurity entry point as soon as practicable. Section 247 provides for fault-based offences and a civil penalty provision that apply to the person in charge and the operator of a vessel that is subject to biosecurity control in circumstances where either of the person in charge or the operator contravenes or fails to comply with the conditions of a permission given under subsection 247(2) for the vessel to be moored at a port that is not a first point of entry for the vessel. The fault-based offences (subsections 245(2) to (4), 246(2) to (4) and 247(4) to (6)) currently attract a maximum penalty of 5 years imprisonment or 300 penalty units or both. The Bill would increase the maximum pecuniary penalty from 300 penalty units to 1,000 penalty units. The civil penalty provisions (subsections 245(5), 246(5) and 245(7)) currently carry a maximum civil penalty amount of 120 penalty units. The Bill would increase the maximum civil penalty that a court can impose under each of these provisions to 300 penalty units. These provisions ensure that vessels that intend to be moored in Australian territory, arrive at a location that has facilities available to assess any biosecurity risks and that appropriate risk management strategies are put in place where necessary. The proposed increases to the maximum pecuniary penalty for the criminal offences are intended to reflect the seriousness of offending behaviour where a person does not comply with first point of entry and biosecurity entry point requirements. The proposed increases to the civil penalty amounts are intended to achieve the necessary deterrent effect for non-compliance with the Biosecurity Act. The increases to the penalty amounts proposed by table items 35 to 46 in item 3 of Schedule 4 to the Bill are appropriate to reflect the seriousness of the contravention and to seek to deter non-compliance with those provisions. Section 251 Section 251 of the Biosecurity Act provides for a fault-based offence and a civil penalty provision where a person contravenes or does not comply with a direction given under Division 3 of Part 4 of Chapter 4 of the Biosecurity Act. They apply in the context of managing the biosecurity risks at entry points for vessels that intend to be moored in Australian territory. The fault-based offence in subsection 251(2) currently attracts a maximum penalty of 5 years imprisonment or 300 penalty units or both. The Bill would increase the maximum pecuniary penalty from 300 penalty units to 1,000 penalty units. The civil penalty provision in subsection 251(3) currently carries a maximum civil penalty amount of 120 penalty units. The Bill would increase the maximum civil penalty that a court can impose under subsection 251(3) to 300 penalty units. Directions given under Division 3 of Part 4 of Chapter 4 of the Biosecurity Act ensure that biosecurity officers are able to assess and manage biosecurity risks to an acceptable level of risk and ensures that appropriate risk management strategies can be put in place where necessary. The proposed increase to the maximum pecuniary penalty for the criminal offence 23

is intended to reflect the seriousness of offending behaviour where a person does not comply with a direction. The proposed increase to the civil penalty amount is intended to achieve the necessary deterrent effect for non-compliance with the Biosecurity Act. The increases to the penalty amounts proposed by table items 47 and 48 in item 3 of Schedule 4 to the Bill are appropriate to reflect the seriousness of the contravention and to seek to deter non-compliance with those provisions. Section 252A Section 252A of the Biosecurity Act provides for a fault-based offence and a civil penalty provision that apply to an operator of a first point of entry in circumstances where the operator fails to comply with a direction given by the Director of Human Biosecurity or a chief human biosecurity officer for a State or Territory under section 252A to carry out specified activities within the area of a first point of entry to control a vector. The fault-based offence in subsection 252A(3) currently attracts a maximum penalty of 5 years imprisonment or 300 penalty units or both. The Bill would increase the maximum pecuniary penalty from 300 penalty units to 1,000 penalty units. The civil penalty provision in subsection 252A(4) currently carries a maximum civil penalty amount of 120 penalty units. The Bill would increase the maximum civil penalty that a court can impose under subsection 252A(4) to 300 penalty units. Directions given under section 252A allow for the management of vectors that have the potential to spread human diseases and ensures that the vector can be destroyed and that the potential risk to human health by the vector can be appropriately managed. The proposed increase to the maximum pecuniary penalty for the criminal offence is intended to reflect the seriousness of offending behaviour where a person does not comply with a direction. The proposed increase to the civil penalty amount is intended to achieve the necessary deterrent effect for non-compliance with the Biosecurity Act. The increases to the penalty amounts proposed by table items 49 and 50 in item 3 of Schedule 4 to the Bill are appropriate to reflect the seriousness of the contravention and to seek to deter non-compliance with those provisions. Schedule 5 - Risk assessment Schedule 5 to the Bill amends a number of provisions in the Biosecurity Act in relation to the conduct of risk assessments. A risk assessment is conducted to ensure the biosecurity risk associated with certain goods or certain classes of goods is appropriately managed for the purposes of making a determination under subsection 173(1), 174(1) and 182(1), or for deciding to grant a permit under subsection 179(1). The Appropriate Level of Protection (ALOP) for Australia, which aims to reduce biosecurity risks to a very low level, but not to zero, is applied when conducting a risk assessment. The objective of amending these provisions is to increase transparency about the process by which risk assessments are conducted for the purposes of these determinations or decisions to grant permits made under subsection 179(1). Schedule 5 does not alter the requirement that ALOP be applied in conducting a risk assessment, consistent with Australia's international obligations under the World Trade Organization Agreement on the Application of Sanitary and Phytosanitary Measures 1994. Similarly, the amendments proposed would not change 24

the role of the Director of Biosecurity and Director of Human Biosecurity as decision-makers for these determinations and permits. Schedule 3 requires a risk assessment to be conducted by a biosecurity worker before a determination is made under subsections 173(1), 174(1) or 182(1), or a permit is granted under subsection 179(1). A biosecurity worker would be an APS employee in the Agriculture Department or Health Department, or certain persons engaged to perform services for the Agriculture Department or Health Department. Biosecurity workers will have specialised knowledge and skills that would enable them to make an accurate scientific assessment of the relevant biosecurity risks posed by particular goods or a class of goods. Before the Director of Biosecurity and the Director of Human Biosecurity may make a joint determination under subsection 173(1) or 174(1), both of them must consider the risk assessment and be satisfied that the ALOP for Australia was applied in the conduct of the risk assessment. Before the Director of Biosecurity grants a permit under subsection 179(1) or makes a determination under subsection 182(1), the Director of Biosecurity must consider the risk assessment and be satisfied that the ALOP for Australia was applied in the conduct of the risk assessment. Schedule 6 - Arrangements and grants for dealing with risks posed by diseases or pests The Australian Government currently delivers numerous programs to manage biosecurity risks which may cause harm to animal, plant and human health, the environment and the economy. The programs are designed to identify, prevent, prepare for, and manage the risk of pests and diseases entering Australian territory. Legislative authority for expenditure for such programs is generally provided by section 32B of the Financial Framework (Supplementary Powers) Act 1997 (FFSP Act) by inserting new items for each program into the relevant Schedule to the Financial Framework (Supplementary Powers) Regulations 1997 (FFSP Regulations). The FFSP Act and the FFSP Regulations provide general expenditure authority for programs across the Commonwealth that are not otherwise specifically authorised in portfolio legislation Schedule 6 to the Bill provides legislative authority for arrangements and grants of financial assistance for dealing with risks posed by diseases or pests. Having tailored legislative authority provisions in the Biosecurity Act would assist the Australian Government to respond quickly to fast-changing circumstances where there is a pest or disease threatening the health of the Australian population, the environment or the agricultural sector. Schedule 7 - Approved arrangements and compensation Under the Biosecurity Act, the Director of Biosecurity or the Director of Human Biosecurity (the relevant Director) may approve proposed arrangements that provide for the holder of the arrangement, known as the biosecurity industry participant, to carry out certain biosecurity activities to manage biosecurity risks associated with specified goods, premises or other things. A biosecurity industry participant covered by an approved arrangement is authorised and required to carry out biosecurity activities in accordance with the approved arrangement, except in certain specified circumstances. Schedule 7 will streamline and improve the operation of a number of provisions relating to approved arrangements, including by clarifying the circumstances where a biosecurity industry participant may make a written declaration to release goods from biosecurity control. 25

The relevant Director will also be provided with the option of allowing an approved arrangement to remain in force indefinitely, and the ability to give a direction to a former biosecurity industry participant where an approved arrangement has expired. Under subsection 437(4A), additional powers will be provided for an auditor who is carrying out an audit of an approved or proposed arrangement to allow an auditor to inspect, examine or make copies of certain documents, records or things that are produced under subsection 437(1). There will also be amendments to provisions relating to the payment of compensation for damaged goods or destroyed goods, conveyances or other premises under the Biosecurity Act. These amendments will assist individuals and businesses to better understand the circumstances in which compensation may be payable. Schedule 8 - Concealment of goods Schedule 8 would amend the Biosecurity Act to insert a civil penalty provision under new subsection 186A(1) to target the concealment of conditionally non-prohibited goods that are brought or imported into Australian territory, where specified conditions that apply to the goods are not complied with. This would be in circumstances where conditionally non- prohibited goods are concealed for the purposes of preventing a biosecurity official from finding the goods or determining the true nature of the goods. Conditionally non-prohibited goods are goods specified in a determination in force under subsection 174(1) of the Biosecurity Act. Such determinations provide that specified classes of goods must not be brought or imported into Australian territory unless specified conditions are complied with. Conditionally non-prohibited goods pose an unacceptable level of biosecurity risk if specified conditions are not complied with. The concealment of goods prevents biosecurity officers from being able to assess the biosecurity risk associated with the goods, and where necessary, take measures to manage any such biosecurity risks. This includes risks arising from Foot and Mouth Disease which could be introduced to Australia by goods that are brought or imported into Australia by incoming travellers. There would be an exception to new subsection 186A(1) where the person did not do, aid, abet, counsel, procure the act or omission, or was not in any way knowingly concerned in an act or omission (new subsection 186A(3)). The maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under new subsection 186A(1) would be 1,200 penalty units. If the person is a body corporate, the maximum penalty must not be more than 5 times the amount specified in each relevant proposed subsection (see subsection 82(5) of the Regulatory Powers Act, as enabled by section 519 of the Biosecurity Act), which would be 6,000 penalty units. Under Division 2 of Part 7 of Chapter 9 of the Biosecurity Act, an infringement officer may give a person an infringement notice under Part 5 of the Regulatory Powers Act for an alleged contravention of certain provisions of the Biosecurity Act. Subsection 523(2) of the Biosecurity Act provides that the Director of Biosecurity is an infringement officer for the purposes of Part 5 of the Regulatory Powers Act and, by operation of subsections 542(1) and (2) of the Biosecurity Act, the powers and functions of an infringement officer may be subdelegated to biosecurity officials. 26

The table in subsection 523(1) of the Biosecurity Act lists the provisions in relation to which an infringement notice may be given. New subsection 186A(1) would be subject to the infringement notice scheme under the Biosecurity Act. The amount to be stated in the infringement notice would be 16 penalty units for an individual or 80 penalty units for a body corporate. Assessment of Compatibility with Human Rights The Bill may engage the following rights: • The right to health under Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); • The prohibition on arbitrary detention under Article 9 of the International Covenant on Civil and Political Rights (ICCPR); • The freedom of movement under Article 12 of the ICCPR; • The right to a fair trial and criminal process rights under Article 14 of the ICCPR; • The prohibition on arbitrary interference with privacy under Article 17 of the ICCPR; • The right to freedom of opinion and expression in Article 19 of the ICCPR; and • The right to non-discrimination under Articles 2(1) and 26 of the ICCPR. Right to health (Article 12 of ICESCR) Article 12 of ICESCR promotes 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, occupational and other diseases (Article 12(2)). The Bill takes positive steps to bolster the biosecurity legislative framework to promote this right and to promote the protection of public health, particularly against risks posed by people entering Australia on international aircraft or vessels. It does this by ensuring the Commonwealth has suitable mechanisms to identify and control the spread of serious communicable diseases. Prompt infection control measures may be implemented to mitigate contagion related to incoming conveyances. Pre-arrival reporting Amendments in Schedule 2 to improve pre-arrival reporting requirements through the provision of other reports and further information will ensure that assessments of biosecurity risks, including with respect to human health, may be better tailored to the risk profile of an aircraft or vessel. The above measures are necessary to protect human health and prevent spread of disease which promotes the right to health under Article 12 of the ICESCR. Prohibition on arbitrary detention (Article 9 of the ICCPR) and the freedom of movement (Article 12 of the ICCPR) Article 9 of the ICCPR protects the right of all individuals to liberty and freedom from arbitrary detention. The right to personal liberty requires that persons not be subject to arrest 27

and detention except as provided for by law and provided that neither the arrest nor the detention is arbitrary. The right applies to all forms of detention where people are deprived of their liberty. Article 12 of the ICCPR provides that everyone lawfully within the territory of a state shall, within that territory, have the right to liberty of movement. Entry requirements Part 1 of Schedule 1 to the Bill includes the power to make a determination under new subsection 196A(2) and is outlined in detail in the Overview. New subsection 196A(8) in Schedule 1 to the Bill sets out a non-exhaustive list of requirements which may be specified in a determination made under new subsection 196A(2). This includes new paragraph 196A(8)(g) which provides that a determination may specify a requirement for an individual to move to a place at the landing place or port directed by a biosecurity officer (whether the direction is in relation to the individual or a class that includes the individual) for the purpose of a biosecurity officer assessing the level of biosecurity risk associated with either or both of the following: • The individual; • Any goods the individual is bringing with them into Australian territory at the landing place or port. Such a requirement may be applied to each individual within a class, for example, all passengers and crew on a particular aircraft. A determination made under new subsection 196A(2) that specifies the above requirement, may engage the right to freedom from arbitrary detention and the right of freedom of movement. An individual who is required to move to a place at a landing place or port directed by a biosecurity officer must comply with that requirement. Non-compliance will result in the contravention of a civil penalty provision under new section 196C. The requirement set out in new paragraph 196A(2)(g) may have the effect of preventing a person from leaving the landing place or port or have their movement within that landing place or port confined, until the level of biosecurity risk associated with the individual or any goods the individual has with them, can be assessed. This is not a criminal detention however it may be considered administrative detention. This requirement is aimed at ensuring that individuals and groups of individuals are moved to one location in order to carry our biosecurity risk assessments on those individuals and their goods. This would be for the purposes for which the determination had been made - that is, for the purposes of preventing, or reducing the risk of, the disease or pest to which the determination relates, entering, or establishing itself or spreading in, Australian territory or a part of Australian territory. It is important that Australia's biosecurity status is protected from diseases or pests, such as FMD, that could cause significant harm to Australia's environment, economy, and animal and plant health. By requiring individuals and groups of individuals to remain in one location for a period of time while they and their goods are assessed for biosecurity risks means that, should a biosecurity risk be detected, the risk will be contained in a particular location and appropriate treatment options can be deployed to combat that risk. It is intended that the period should be no longer than is appropriate to manage the risk. 28

To ensure that the imposition of the requirement is reasonable and proportionate to achieve a legitimate objective, the Agriculture Minister must not specify the requirement in a determination made under new subsection 196A(2) unless the Agriculture Minister is satisfied that the disease or pest does in fact pose an unacceptable level of biosecurity risk and the requirement is appropriate and adapted to prevent, or reduce the risk of, the disease or pest entering, or establishing itself or spreading in, Australian territory or a part of Australian territory. This means that each requirement must serve a legitimate purpose and must be necessary to meet that purpose. Requirements that seek to prevent or reduce the risk of a disease or pest (which poses an unacceptable biosecurity risk) entering, or establishing itself or spreading in, Australian territory or a part of Australian territory would serve a legitimate purpose and would be tailored so as to prevent or reduce such risk. This is particularly so in circumstances where a disease or pest could have a potentially devastating impact on Australia's animal and plant health, the environment and the economy. The ability to impose the requirement on an individual to move to a place at a landing place or port directed by a biosecurity officer and remain there for a period of time while they and their goods are being assessed, is consistent with the prohibition on arbitrary detention under Article 9 of the ICCPR and right to freedom of movement under Article 12 of the ICCPR because the ability to restrict movement is legislated and is subject to a number of limitations. The measure is necessary and appropriate to achieve the legitimate objective of preventing or reducing the risk of a disease or pest that is considered to pose an unacceptable level of biosecurity risk entering, or establishing itself or spreading in, Australian territory or a part of Australian territory. Right to a fair trial (Article 14 of the ICCPR) The right to a fair trial and equality before the courts contained in Article 14 of the ICCPR applies to criminal and civil proceedings. The increase in the civil and criminal penalties may engage Article 14 of the ICCPR. Article 14 provides that, in the determination of any criminal charge against the person, or of their rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law. Right to fair trial - Offences and civil penalty provisions Schedule 1 to the Bill inserts new civil penalty provisions into the Biosecurity Act. The civil penalty provisions in new sections 196C and 393C respectively relate to failing to comply with requirements in a determination and failing to comply with biosecurity measures in a determination. These are outlined in detail in the Overview. Schedule 2 to the Bill would increase the maximum civil penalties in subsections 48(1), 193(6) and 194(4), increase the maximum pecuniary penalties for fault-based offences in subsections 193(5) and 194(3), and expand the scope of the existing penalties in sections 48, 193 and 194. Schedule 4 to the Bill would increase the maximum penalty amount for a number of civil penalty provisions, fault-based offences and the strict liability offence in subsection 221(3). These are outlined in detail in the Overview. 29

Schedule 3 to the Bill would insert a new fault-based offence, strict liability offence and civil penalty provision for the unauthorised use or disclosure of protected information in new section 580. These are outlined in detail in the Overview. Schedule 8 creates a new civil penalty provision under new subsection 186A(1) to target the concealment of conditionally non-prohibited goods that are brought or imported into Australian territory, where specified conditions that apply to the goods are not complied with. The increased penalties under Schedules 1 to 3 and the new civil penalty provision in Schedule 8 do not affect the procedure by which civil and criminal proceedings are heard in relation to contraventions of civil penalty provisions or offences under the Biosecurity Act. These amendments proposed by the Bill therefore do not limit the right to a fair hearing contained in Article 14 of the ICCPR. Right to fair trial - Infringement notice scheme Under Division 2 of Part 7 of Chapter 9 of the Biosecurity Act and Part 5 of the Regulatory Powers Act, an infringement officer may give a person an infringement notice for contraventions of certain strict liability offences or civil penalty provisions of the Biosecurity Act. The table in subsection 523(1) of the Biosecurity Act lists the provisions of the Biosecurity Act in relation to which an infringement notice may be given. Items 8 and 12 in Schedule 1 to the Bill would respectively insert new item 10A and item 37A in the table in subsection 523(1) of the Biosecurity Act. This would allow an infringement notice to be given in relation to the civil penalty provisions in new sections 196C and 393C respectively. These civil penalty provisions are outlined in detail in the Overview. Schedule 3 to the Bill amends the table in subsection 523(1) of the Biosecurity Act to have the effect that the strict liability offence in new subsection 580(6) is subject to an infringement notice. The strict liability offence is outlined in detail in the Overview. Schedule 8 to the Bill also amends the table in subsection 523(1) of the Biosecurity Act to have the effect that the new civil penalty provision in new subsection 186A(1) is subject to an infringement notice. In addition, the right of a person to a fair and public hearing by a competent, independent and impartial tribunal is preserved by the Regulatory Powers Act, as its provisions Additionally, the Regulatory Powers Act outlines that this right must be stated in an infringement notice issued to a person, ensuring that a person issued with an infringement notice is aware of their right to have the matter heard by a court. The right of a person to a fair and public hearing by a competent, independent and impartial tribunal is preserved by the Regulatory Powers Act, as its provisions allow a person to choose not to pay the amount specified in an infringement notice in relation to an alleged contravention, meaning proceedings may be commenced against the person to have the matter heard by a court. Additionally, the Regulatory Powers Act outlines that this right must be stated in an infringement notice issued to a person, ensuring that a person issued with an infringement notice is aware of their right to have the matter heard by a court. 30

Criminal process rights (Article 14 of the ICCPR) Article 14 of the ICCPR contains criminal process rights, including the minimum guarantees in criminal proceedings (Articles 14(3) and (5) to (7)). They include the right to the presumption of innocence (Article 14(2)), the right to be free from self-incrimination (Article 14(3)), and the right not to be tried or punished again for an offence for which a person has already been finally acquitted or convicted (prohibition on double jeopardy) (Article 14(7)). Criminal process rights - civil penalty provisions Schedule 1 to the Bill provides for civil penalty provisions in new sections 196C and 393C which respectively relate to failing to comply with requirements in a determination and failing to comply with biosecurity measures in a determination. Each of the civil penalty provisions have a maximum civil penalty of 120 penalty units. These are outlined in detail in the Overview. As noted above, an infringement notice may be given in relation to the civil penalty provisions in new sections 196C and 393C respectively. By operation of existing subsection 524(4) of the Biosecurity Act, this would result in an infringement notice amount of 12 penalty units. The Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide) notes infringement notice amounts for an individual should not, in general, exceed, 12 penalty units. Schedule 2 to the Bill amends the civil penalty provision in section 48(1) for contravention of pratique by increasing the maximum civil penalty from 120 penalty units to 1,000 penalty units for the operator of an aircraft or vessel and by creating a new civil penalty of 300 penalty units for the person in charge of an aircraft or vessel. This amendment reflects the serious consequences posed by the potential entry, spread and transmission in Australia of a listed human disease and the commercial context to which pratique applies where a lower penalty may not be an effective deterrent to non-compliance. Schedule 2 also increases the civil penalty in subsections 193(6) and 194(4) from 120 penalty units to 1,000 penalty units in relation to pre-arrival reporting and expands the civil penalty in sections 193 and 194 to include where an operator contravenes the requirement to provide other reports or further information in relation to pre-arrival reporting. Failure to provide reports in accordance with the requirements in sections 193 and 194 can undermine the ability of biosecurity officers to determine what risk management activities might be necessary when an aircraft or vessel arrives in Australian territory. Depending on the risks posed by the diseases and pests on an aircraft or vessel, this can result in harmful consequences to the Australian environment, economy, agricultural industry and export markets. Schedule 3 to the Bill would insert a new civil penalty provision into the Biosecurity Act. The civil penalty provision in new subsections 580(7) relates to the unauthorised use or disclosure of protected information and carries a maximum civil penalty of 120 penalty units. This is outlined in detail in the Overview. Schedule 4 to the Bill would increase a number of civil penalty provisions of the Biosecurity Act, namely: 31

• Subsection 120(7); • Subsection 203(2); • Subsection 121(4); • Subsection 204(2); • Subsection 122(7); • Subsection 214(3); • Subsection 143(6); • Subsection 215(7); • Subsection 144(7); • Subsection 215(8); • Subsection 145(3); • Subsection 216(4); • Subsection 146(7); • Subsection 217(5); • Subsection 147(2); • Subsection 220(1); • Subsection 147(7); • Subsection 237(5); • Subsection 148(7); • Subsection 238(5); • Subsection 149(1); • Subsection 239(7); • Subsection 155(3); • Subsection 243(3); • Subsection 156(3); • Subsection 245(5); • Subsection 198(2); • Subsection 246(5); • Subsection 200(2); • Subsection 247(7); • Subsection 201(3); • Subsection 251(3); and • Subsection 202(2); • Subsection 252A(4). These civil penalties apply to a failure to meet requirements under the Biosecurity Act and are discussed in detail in the Overview. They are contraventions which have serious consequences for the biosecurity status of Australia and thus the agricultural industry, human, plant and animal health, the environment and the economy. Schedule 8 creates a new civil penalty provision under new subsection 186A(1) to target the concealment of conditionally non-prohibited goods that are brought or imported into Australian territory, where specified conditions that apply to the goods are not complied with. As discussed in the Guidance Note 2: Offence provisions, civil penalties and human rights published by the Parliamentary Joint Committee on Human Rights (PJCHR), civil penalty provisions may engage criminal process rights under Article 14 of the ICCPR, regardless of the distinction between criminal and civil penalties in domestic law. When a provision imposes a civil penalty, an assessment is required as to whether it amounts to a criminal penalty for the purposes of Article 14 of the ICCPR. Determining whether penalties could be considered to be criminal under international human rights law requires consideration of the classification of the penalty provisions under Australian domestic law, the nature and purpose of the penalties, and the severity of the penalties. The civil penalty provisions in the Biosecurity Act expressly classify the penalties as civil penalties. Those provisions create solely pecuniary penalties in the form of a debt payable to the Commonwealth. The civil penalties aim to deter non-compliance with the Biosecurity Act and would not impose criminal liability and a finding by a court that they have been contravened does not lead to the creation of a criminal record. The maximum penalty amounts that may be imposed by a court as a civil penalty order is 120 penalty units for the civil penalties set out in Schedules 1 and 3. The maximum penalty amounts that may be imposed by a court as a civil penalty order is 1,000 penalty units (for an operator of an aircraft or vessel who contravenes the requirements in subsections 48(1), 32

193(6) and 194(4)) in Schedule 2. The increased maximum penalty amounts that may be imposed by a court as a civil penalty order is 300 penalty units for the civil penalties set out in Schedule 4. The maximum penalty amount that may be imposed by a court for a civil penalty order is 1,200 penalty units who contravenes the requirements in subsection 186A(1) in Schedule 8. Paragraph 82(5)(a) of the Regulatory Powers Act is applied to the Biosecurity Act by section 519 and provides that the maximum penalties a court may apply to individuals will be those specified in the civil penalty provisions as amended by the Bill. The application of paragraph 82(5)(b) to civil penalties under the Biosecurity Act means that the corporate multiplier will apply to bodies corporate so that a court may set the penalties payable by such entities at no more than five times the penalty specified in the civil penalty provision. The application of the corporate multiplier in Schedule 2 would result in a maximum penalty under subsections 48(1), 193(6) and 194(4) of 5,000 penalty units. For the civil penalties in Schedule 4, the application of the corporate multiplier would result in an increased maximum penalty of 1,500 penalty units. For the new civil penalty provision in subsection 186A(1) in Schedule 8, the application of the corporate multiplier would result in an increased maximum penalty of 6,000 penalty units. The civil penalties in Schedule 1 to the Bill, and the concomitant infringement notice amounts, should not be seen as elevating the penalties to be criminal in nature. The civil penalties in new sections 196C and 393C reflect the seriousness of failing to comply with requirements or biosecurity measures. Australia's biosecurity system is a central pillar of the nation's defence against current and emerging biosecurity threats, including those posed by exotic pests and diseases such as FMD, African Swine Fever, Lumpy Skin Disease and Xylella fastidiosa. Non-compliance could lead to significant, widespread and long lasting impacts on the Australian environment, economy, animal and plant health. For example, should FMD enter and establish itself in Australia, it would have a devastating impact on the agriculture industry estimated to be around $80 billion. The persons to which the requirements or biosecurity measures apply would be made aware by officials of the requirements or biosecurity measures and the need to comply. As such, the maximum civil penalty under new sections 196C and 393C, and the concomitant infringement notice amounts, are justified to act as a deterrent to non-compliance and to reflect seriousness of any non-compliance. The increased civil penalties in Schedule 2 should not be seen as elevating the penalties to be criminal in nature. The increased maximum penalty of 1,000 penalty units in subsection 48(1) for contravention of pratique for the operator of an aircraft or vessel reflects the serious consequences posed by the potential entry, spread and transmission in Australia of a listed human disease, and the commercial context to which pratique applies where a lower penalty may not be an effective deterrent to non-compliance. The introduction of a new civil penalty for the person in charge of an aircraft or vessel for contravention of pratique requirements addresses the disjuncture between the practical and legal responsibility for compliance with such requirements. The increased and new civil penalties in sections 193 and 194 of 1,000 penalty units relate to a failure by the operator of an aircraft or vessel to provide pre-arrival reports and further information. The level of these civil penalties reflects the seriousness of the risk posed by this conduct to Australia's biosecurity status, market access and economy, in circumstances 33

where these penalties are applied to the operator of an aircraft or vessel who can reasonably be expected to be aware of their obligations. The new civil penalty in Schedule 3 should not be seen as being criminal in nature. The civil penalty in new subsection 580(7) reflects the significant harm that can occur as a result of unauthorised uses or disclosure of protected information. For the regulatory regime under the Biosecurity Act to be effective, there must be confidence from industry and the general public, that protected information obtained and generated under the Biosecurity Act, will be handled appropriately. The civil penalty in new subsection 580(7) would only be applied to entrusted persons or other persons who are employed or engaged by the Commonwealth or who perform certain functions or duties, or exercise certain powers, under the Biosecurity Act. By virtue of their roles and responsibilities, these persons can be reasonably expected to be aware of their obligations under the Biosecurity Act relating to the use and disclosure of protected information. The maximum civil penalty of 120 penalty units would also be consistent with other penalties under the Biosecurity Act, including in subsection 636(3) for hindering or preventing the performance of functions or duties, or exercise of powers, under the Biosecurity Act. Schedule 4 to the Bill does not propose to amend the operation of the existing civil penalty provisions and the conduct they apply to. Schedule 4 seeks only to increase the penalties for existing civil penalty provisions in the Biosecurity Act. In many cases, such civil penalty provisions are provided as disciplinary alternatives to the punitive criminal offences. The penalties apply in a specific regulatory context and would not apply to the general public, but to a class of people or regulated entities who should be reasonably aware of their obligations under the Biosecurity Act. Most of the proposed penalties amendments apply to people involved in the conduct of aircraft and vessels, including persons in charge, operators and owners of aircraft or vessels (as defined in sections 21 and 22 of the Biosecurity Act). Such persons will reasonably be expected to be aware of their obligations under the Biosecurity Act, because they engage in an activity that is regulated under very clear conditions. Other provisions only apply to persons who move, deal with or interfere with a conveyance that is subject to biosecurity control, or interfere with a notice affixed to such a conveyance. Persons contravening these provisions should be reasonably aware that the conveyance is subject to biosecurity control, and that there are requirements as to how such as a conveyance is dealt with. These factors all indicate that the civil penalties imposed by the Bill are civil rather than criminal in nature. The new civil penalty in Schedule 8 should not be seen as being criminal in nature. The civil penalty in new subsection 186A(1) is needed to deter those who are considering evading detection by concealing conditionally non-prohibited goods, as such goods could jeopardise Australia's biosecurity status. This civil penalty reflects the seriousness of such conduct. Under the Biosecurity Act, the management of biosecurity risks associated with conditionally non-prohibited goods, where specified conditions that apply to the goods have not been complied with, are managed through the implementation of regulatory controls put in place to intercept such goods. These controls are necessary to reduce the biosecurity risk associated with the goods to an acceptable level. It is important that persons who are bringing or importing conditionally non-prohibited goods, through the traveller, mail or cargo pathways, ensure that the specified conditions have been met, and that the goods are declared and presented for assessment and inspection reflects the significant harm that can occur as a result of unauthorised uses or disclosure of protected information. Further, the maximum civil penalty of 1,200 penalty units in new subsection 186A(1) in Schedule 8 is also appropriate, 34

having regard to the existing civil penalty provision in subsection 186(3) of the Biosecurity Act carries a maximum civil penalty of 1,000 penalty units. This is because new subsection 186A(1) targets more serious contraventions involving the concealment of the conditionally non-prohibited goods for the purposes of preventing a biosecurity official from finding the goods or determining the true nature of the goods. The creation of new civil pecuniary penalties and the proposed increases to existing civil pecuniary penalties set out in Schedules 1 to 4, and 8, to the Bill have been set by reference to the Guide. They seek to reflect the seriousness of the contravening conduct and the risk that the conduct may pose to Australia's trading reputation, the integrity of the biosecurity management system, animal or plant life or health and the environment. Consistent with the original setting of penalty amounts, the upper range of civil penalty amounts in this Bill are proposed for contraventions involving aggravated circumstances. The new and increased penalties in Schedules 1 to 4, and 8 would apply in a regulatory context and should not be considered severe, noting that they are all pecuniary penalties (rather than more severe punishment like imprisonment), there is no sanction of imprisonment for non-payment of penalties and the maximum amount of each civil penalty is no more than the corresponding criminal offence. There is also no mandatory minimum penalty, and the court has the discretion to determine the appropriate penalty having regard to all the circumstances of the matter. Having regard to the severity of the penalty, and the context in which they are applied, the new and increased civil penalties in Schedules 1 to 4, and 8 should not be considered as elevating the civil penalties to being criminal in nature under international human rights law. However, even if they could be perceived to be criminal in nature, they would be compatible with the criminal process rights contained in Articles 14 of the ICCPR as the amendments do not affect the court process, just the penalty that can be imposed by the courts. Further details of the specific criminal process rights under Articles 14(2), (3) and (7) are discussed below. Criminal process rights - fault-based offences Schedule 2 to the Bill would increase the pecuniary penalty for the fault-based offences in subsections 193(5) and 194(3) from 120 penalty units to 1,000 penalty units. It would also expand the scope of the offences to include contravention by the operator of an aircraft or vessel of the requirements to provide other reports or further information in relation to pre- arrival reporting. Schedule 3 to the Bill would insert a new fault-based offence into the Biosecurity Act. The fault-based offence in new subsection 580(5) relates to the unauthorised use or disclosure of protected information and has a maximum penalty of 2 years imprisonment or 120 penalty units, or both. This is outlined in detail in the Overview. Schedule 4 to the Bill would increase the maximum pecuniary penalty for a number of fault- based offences against the Biosecurity Act, namely: • Subsection 120(6); • Subsection 144(6); • Subsection 121(3); • Subsection 145(2); • Subsection 122(6); • Subsection 146(4); • Subsection 143(5); • Subsection 146(5); 35

• Subsection 146(6); • Subsection 238(2); • Subsection 147(4); • Subsection 238(3); • Subsection 147(5); • Subsection 238(4); • Subsection 147(6); • Subsection 239(4); • Subsection 148(4); • Subsection 239(5); • Subsection 148(5); • Subsection 239(6); • Subsection 148(6); • Subsection 243(2); • Subsection 155(2); • Subsection 245(2); • Subsection 156(2); • Subsection 245(3); • Subsection 215(2); • Subsection 245(4); • Subsection 215(3); • Subsection 246(2); • Subsection 215(4); • Subsection 246(3); • Subsection 215(5); • Subsection 246(4); • Subsection 215(6); • Subsection 247(4); • Subsection 216(3); • Subsection 247(5); • Subsection 217(4); • Subsection 247(6); • Subsection 237(2); • Subsection 251(2); and • Subsection 237(3); • Subsection 252A(3). • Subsection 237(4); These offences apply to a range of contraventions of the Biosecurity Act and are discussed in detail in the Overview. They relate to serious contraventions that threaten the biosecurity status of Australia. These criminal penalties may engage the criminal process rights contained in Article 14 of the ICCPR in relation to the guarantees of general application to proceedings and guarantees which specifically relate to criminal proceedings. The guarantees specific to criminal proceedings under Article 14 include the right to the presumption of innocence (Article 14(2)), freedom from self-incrimination (Article 14(3)), and the prohibition on double jeopardy (Article 14(7)). In relation to Schedule 3 to the Bill, the maximum penalty for the fault-based offence in new subsection 580(5) is consistent with the standard fine to imprisonment ratio in the Guide and reflects the seriousness of unauthorised uses or disclosures of protected information, which have the potential to cause harm. The maximum penalty would also be consistent with other penalties under the Biosecurity Act, including in subsection 636(2) for hindering or preventing the performance of functions or duties, or exercise of powers, under the Biosecurity Act. The proposed increases to the maximum pecuniary penalties for fault-based offences set out in Schedules 2 and 4 to the Bill depart from the standard fine to imprisonment ratio in the Guide. This is justified because the increase in pecuniary penalties for specific fault-based offences serves the purpose of deterring offending conduct, and reflects the seriousness of the offending, which could have devastating consequences for Australia's agriculture, the environment and the economy. Schedules 2 and 4 to the Bill will only increase the maximum pecuniary penalty amount which a sentencing court may impose for certain fault-based offences, not the maximum term of imprisonment. 36

The proposed penalties set out in Schedules 2 to 4 to the Bill will provide scope for sentencing courts to address high-level offending while maintaining the discretion to impose lesser penalties for less serious offending conduct. In sentencing an offender and determining the level of penalty to impose for any of these offences, a court may have regard to a number of factors, including the facts and circumstances of the case; the nature and significance of the offending conduct; and any previous history of non-compliance. For certain fault-based offences, sentencing courts will also have the discretion of whether to apply a term of imprisonment, or a financial penalty, or both to reflect the seriousness of the offending. The fault-based offences would be compatible with the criminal process rights contained in Article 14 of the ICCPR. Further details on the specific criminal process rights under Articles 14(2), (3) and (7) are discussed below. Criminal process rights - strict liability offences Schedule 3 to the Bill would insert a new strict liability offence into the Biosecurity Act. The strict liability offence in new subsection 580(6) relates to the unauthorised use or disclosure of protected information and has a maximum penalty of 60 penalty units. This is outlined in detail in the Overview. Schedule 4 to the Bill would increase the maximum pecuniary penalty for the strict liability offence in subsection 221(3) of the Biosecurity Act. The strict liability offence relates to ensuring that quarantine signals are displayed on vessels and is discussed in detail in the Overview. The strict liability offences that are proposed or amended by Schedules 3 and 4 of the Bill may engage criminal process rights contained in Article 14 of the ICCPR, including the presumption of innocence (Article 14(2)). In relation to Schedule 3 to the Bill, the maximum penalty for the strict liability offence in new subsection 580(6) does not exceed 60 penalty units for an individual, which is consistent with the Guide. Sentencing courts would maintain the discretion to determine the appropriate penalty taking into account the seriousness of the offending conduct. The penalty would only apply to entrusted persons or other persons who are employed or engaged by the Commonwealth or who perform certain functions or duties, or exercise certain powers, under the Biosecurity Act. By virtue of their roles and responsibilities, these persons can be reasonably expected to be aware of their obligations under the Biosecurity Act relating to the use and disclosure of protected information. The unauthorised use or disclosure of protected information by such persons can potentially cause harm and undermine confidence in the integrity of the biosecurity management regime. In relation to Schedule 4 to the Bill, the proposed increase to the maximum pecuniary penalty for the strict liability offence does not exceed 60 penalty units for an individual, which is consistent with the Guide. Sentencing courts would maintain the discretion to determine the appropriate penalty taking into account the seriousness of the offending conduct. The penalty also applies in a specific regulatory context and would apply to a person in charge of a vessel, who can reasonably be expected to be aware of the importance in displaying quarantine signals to warn other parties of potential biosecurity risks on board. A failure to display quarantine signals has the potential to pose a significant risk to Australia's biosecurity status, which may result in serious damage to human, plant and animal health, local industries, the economy and the environment. 37

The strict liability offences in Schedules 3 and 4 of the Bill would be compatible with the criminal process rights contained in Article 14 of the ICCPR. Further details on the specific criminal process rights under Article 14(2) are discussed below. Right to the presumption of innocence (Article 14(2) of the ICCPR) Article 14(2) of the ICCPR provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. Right to presumption of innocence - reversal of burden of proof The PJCHR Guidance notes that placing the burden on the defendant should be limited to circumstances where the matter is peculiarly within the knowledge of the defendant and where it is significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. The PJCHR Guidance also notes that a reverse burden provision is more readily justified if the matter in question is not central to the question of culpability for the offence, the penalties are at the lower end of the scale, and the conduct proscribed by the offence poses a grave danger to public health or safety. Schedules 2 and 4 to the Bill propose to increase the maximum pecuniary penalties for the fault-based offences and civil penalties in sections 48, 120, 143, 149, 193, 203, 204, 214 and 216, which carry a reverse burden of proof. However, the reverse burden in these provisions only applies to a defendant seeking to rely on the exception that they are authorised to engage in the conduct which is the subject of the relevant offence or civil penalty. In this way, to the extent that the reverse burden that attaches to these offences or civil penalty provisions limits the right to the presumption of innocence under Article 14(2), this only applies in relation to the exception that they are authorised to engage in the conduct (under the Biosecurity Act or under another Australian law) which would be peculiarly in the knowledge of the defendant and is not central to the question of culpability for the relevant offence or civil penalty. Further, the conduct proscribed by the fault-based offences and civil penalties in sections 48, 120, 143, 149, 193, 203, 204, 214 and 216 would pose a very serious risk to Australia's biosecurity status. Although the Bill increases the penalties in these provisions, the proposed penalties are proportionate to achieve the necessary deterrent effect, and the maximum penalty that may be imposed will be determined by a court having regard to all the circumstances of a matter. Schedule 8 creates a new civil penalty provision under new subsection 186A(1) to target the concealment of conditionally non-prohibited goods that are brought or imported into Australian territory, where specified conditions that apply to the goods are not complied with. The civil penalty provision in new subsection 186A(1) would also carry a reverse burden of proof. However, this only applies to a defendant seeking to rely on the exception in new subsection 186A(3) that they did not do, aid, abet, counsel, procure the act or omission, or was not in any way knowingly concerned in an act or omission. This would be peculiarly in the knowledge of the defendant and is not central to the question of culpability for the civil penalty in new subsection 186A(1). In the event of a prosecution or civil proceedings, it would be significantly more difficult and costly to disprove all possible circumstances than it would be for a defendant to establish the existence of one potential circumstance. 38

Consequently, in order to target more serious contraventions involving the concealment of the conditionally non-prohibited goods, it is reasonable, necessary and proportionate to reverse the burden of proof and limit the right to the presumption of innocence. Schedule 3 to the Bill proposes to insert a fault-based offence in new subsection 580(5), a strict liability offence in new subsection 580(6) and a civil penalty provision in new subsection 580(7) for the unauthorised use or disclosure of protected information. New subsections 580(5) to (7) carry a reverse burden of proof. However, the reverse burden in these provisions only applies to a defendant seeking to rely on the exceptions in new subsections 580(3) and (4) that the use or disclosure of the information was required or authorised by a Commonwealth law or prescribed State or Territory law, or otherwise made in good faith. These matters would be peculiarly in the knowledge of the defendant, as there are a number of authorisations in the Biosecurity Act, across the laws of the Commonwealth, and where relevant, across the laws of a State or Territory. In addition, whether the information was used or disclosed in good faith would also be a matter that would be peculiarly in the knowledge of the defendant. In the event of a prosecution or civil proceedings, it would be significantly more difficult and costly to disprove all possible circumstances than it would be for a defendant to establish the existence of one potential circumstance. Consequently, in order to effectively safeguard protected information under new section 580, it is reasonable, necessary and proportionate to reverse the burden of proof and limit the right to the presumption of innocence. The conduct proscribed by the fault-based offence, strict liability offence and civil penalty provision in new subsections 580(5) to (7) could potentially cause harm and undermine confidence in the integrity of the biosecurity management regime. The proposed penalties in these new provisions are proportionate to achieve the necessary deterrent effect, and the maximum penalty that may be imposed will be determined by a court having regard to all the circumstances of a matter. Right to presumption of innocence - strict liability offences The PJCHR Guidance notes that strict liability offences engage and limit the presumption of innocence as they allow for the imposition of criminal liability without the need to prove fault. When strict liability applies to an offence, the prosecution is only required to prove that the defendant contravened the provision, but not the fault elements of the offence (intention, knowledge, recklessness or negligence) in order for the defendant to be found guilty. However, the defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code). Strict liability is used in circumstances where there is public interest in ensuring that regulatory schemes are observed and can reasonably be expected that the person was aware of their duties and obligations. Strict liability offences will not necessarily be inconsistent with the presumption of innocence provided that removal of the presumption of innocence pursues a legitimate objective and is reasonable, necessary and proportionate to achieving that objective. Whether a strict liability provision impermissibly limits the right to the presumption of innocence will depend on the circumstances of the case and the particular justification for an offence being a strict liability offence. 39

Schedule 3 to the Bill seeks to insert a new strict liability offence in new subsection 580(6) of the Biosecurity Act, as outlined in detail in the Overview. The strict liability offence in new subsection 580(6) has a maximum penalty of 60 penalty units, which is consistent with the principles set out in the Guide. Strict liability is necessary to achieve the legitimate objective of ensuring that protected information is only used or disclosed for authorised purposes. The unauthorised use or disclosure of protected information can lead to harm, including prejudicing the protection of public safety, human health or the environment, or prejudicing the security, defence or international relations of Australia. The actions which trigger the offence, are simple, readily understood and easily defended. The offence is triggered if a person, who obtained protected information in the course of, or for the purposes of, performing functions or duties or exercising powers under the Biosecurity Act (or assisting another person in the performance of such functions or duties or the exercise of such powers), uses or discloses the information in circumstances where the exceptions in new subsections 580(3) and (4) do not apply). Offences relating to the unauthorised use or disclosure of protected information need to be dealt with efficiently to ensure industry and public confidence in the regulatory regime, and to reduce the risk of the potentially damaging consequences of unauthorised use or disclosure of protected information. Whether or not the defendant intentionally, recklessly or negligently used or disclosed protected information without a relevant authorisation is generally a matter that is peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt may require significant and difficult to obtain indirect and circumstantial evidence. The use of protected information plays an important role in ensuring that the Biosecurity Act remains an effective and efficient mechanism to manage biosecurity risks to Australia, while also facilitating trade and implementing Australia's obligations under the relevant international treaties. If protected information is used or disclosed without authorisation, it may deter other persons from providing such information to the Commonwealth in the future. Further, the persons affected by the strict liability offence would be placed on notice to guard against the possibility of contravention and would be reasonably expected to be well aware of their obligations due the nature of their roles and responsibilities. Schedule 4 to the Bill proposes to increase the maximum penalty for the strict liability offence in subsection 221(3) of the Biosecurity Act. Strict liability remains necessary to achieve the legitimate objective of ensuring the requirement to display the prescribed quarantine signal is met. Quarantine signals are used worldwide to communicate the presence of human and animal disease and the person in charge of a vessel can reasonably be expected to know they are required to warn other parties of potential biosecurity risks on board. There is a strong public interest in managing biosecurity risks appropriately and preventing serious damage to human, plant and animal health, local industries, the economy and the environment. The offence is reasonable and proportionate to the legitimate objective as it is not punishable by imprisonment, and the defence of honest and reasonable mistake of fact remains available to the defendant. Consistent with the principles set out in the Guide, Schedule 2 to the Bill only increases the maximum penalty to 60 penalty units. Right to presumption of innocence - infringement notices Under Division 2 of Part 7 of Chapter 9 of the Biosecurity Act and Part 5 of the Regulatory Powers Act, an infringement officer may give a person an infringement notice in relation to an alleged contravention of certain provisions of the Biosecurity Act. The table in subsection 40

523(1) of the Biosecurity Act lists the provisions of the Biosecurity Act in relation to which an infringement notice may be given. Items 8 and 12 in Schedule 1 to the Bill would respectively insert new item 10A and item 37A in the table in subsection 523(1) of the Biosecurity Act. This would allow an infringement notice to be given in relation to the civil penalty provisions in new sections 196C and 393C respectively. These civil penalty provisions are outlined in detail in the Overview. Schedule 3 to the Bill would insert new item 45A in the table in subsection 523(1) of the Biosecurity Act to have the effect that the strict liability offence in new subsection 580(6) (as inserted by Schedule 3 to the Bill) is subject to an infringement notice under Part 5 of the Regulatory Powers Act. The strict liability offence and infringement notice scheme is outlined in detail in the Overview. Schedule 8 to the Bill also amends the table in subsection 523(1) of the Biosecurity Act to have the effect that the new civil penalty provision in new subsection 186A(1) is subject to an infringement notice. An infringement notice may be given for alleged contraventions of provisions specified in the table in subsection 523(1) of the Biosecurity Act, instead of pursuing criminal or civil proceedings. Under paragraph 104(1)(i) of the Regulatory Powers Act, an infringement notice must state that that payment of the infringement notice amount is not an admission of guilt or liability. The right to the presumption of innocence is therefore not engaged by the giving of infringement notices. Further, the Regulatory Powers Act allows a person to choose not to pay the amount specified in an infringement notice in relation to an alleged contravention, meaning proceedings may be commenced against the person to have the matter heard by a court. Right to freedom from self-incrimination (Article 14(3) of the ICCPR) Article 14(3) of the ICCPR provides the minimum guarantees to which a person is entitled in the determination of a criminal charge against them. This includes to not be compelled to testify against themselves or to confess guilt (freedom from self-incrimination). Schedule 1 to the Bill inserts a new civil penalty provision into the Biosecurity Act at new section 196C. Schedule 1 to the Bill also amends paragraph 635(1)(c) of the Biosecurity Act to have the effect that the civil penalty provision in new section 196C is not subject to the privilege against self-incrimination. This civil penalty provision is outlined in detail in the Overview. The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high. Specifying requirements determined under new section 196A would prevent or reduce the risk of a disease or pest that is considered to pose an unacceptable level of biosecurity risk, from entering, or establishing itself or spreading in, Australian territory or part of Australian territory. These diseases may include FMD and African Swine Fever which would have a devastating impact on Australia, should they enter Australia. Allowing a person to use the privilege in refusing to comply with requirements could result in significant damage to Australia's environment, economy, plant and animal health. It is critical for the management of biosecurity risks that information required to be divulged by a determination 41

that would be made under new section 196A can be sought and obtained in a timely manner. While the privilege against self-incrimination would be abrogated in relation to new subsection 196C, the Biosecurity Act provides individuals with the protection that self- incriminatory disclosure cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person, except proceedings under section 137.1 or 137.2 of the Criminal Code or section 532 or 533 of the Biosecurity Act (providing false or misleading information and documents) (see subsection 635(2) of the Biosecurity Act). Schedules 2 and 4 to the Bill propose to increase the maximum pecuniary penalties for fault-based offences and civil penalties in sections 121, 122, 193, 194, 200 and 201 of the Biosecurity Act, which are not subject to the privilege against self-incrimination under section 635. Schedule 7 to the Bill proposes to provide additional powers under subsection 437(4A) to allow an auditor to inspect, examine or make copies of certain documents, records or things. Such documents, records or things would be produced under subsection 437(1), which is also not subject to the privilege against self-incrimination under section 635. This means that a person is not excused from answering a question, providing information or producing a document on the ground that the answer, information or production of the document might tend to incriminate the person or make the person liable to a penalty. However, section 635 of the Biosecurity Act provides that the answer, information or document that may incriminate a person are inadmissible in evidence against that person in any criminal or civil proceedings. The increased penalties in sections 121, 122, 193, 194, 200 and 201 remain proportionate to the significant consequences of contravention and removing the privilege in these circumstances continues to be necessary to achieve the legitimate objective of effective assessment and management of biosecurity risks to human, plant and animal health, the environment and the economy. The additional powers under subsection 437(4A) are also necessary to allow auditors to accurately carry out their audits in relation to an approved or proposed arrangement and are supplementary to their existing powers under subsection 437(1). 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. The continued removal of the privilege under subsection 437(1) ensures that audits can be carried out as urgently as necessary to assess whether biosecurity risks can be effectively managed under the approved arrangement and reflects the magnitude of the potential impacts that such biosecurity risks pose to Australia. Therefore, the limitation of the right to the freedom from self-incrimination in Article 14(3) continues to be reasonable, necessary and proportionate to achieving the legitimate objective. Right not to be tried or punished again for an offence for which a person has already been finally acquitted or convicted (prohibition on double jeopardy) (Article 14(7) of the ICCPR) Article 14(7) of the ICCPR provides that no one shall be liable or be tried or punished again for an offence for which they have already been finally convicted or acquitted in accordance with the law and penal procedure of each country. Article 14(7) may be engaged by provisions proposed to be amended by the Bill that allow for the imposition of both a criminal penalty and a civil penalty provision in relation to the 42

same contravening conduct, including sections 120, 121, 122, 143, 144, 145, 146, 147, 148, 155, 156, 193, 194, 215, 216, 217, 237, 238, 239, 243, 245, 246, 247, 251, 252A and 580. Despite the increase in the pecuniary penalty amounts, these provisions in Schedules 2 to 4 are consistent with the prohibition on double jeopardy in Article 14(7). The civil penalty provisions create a distinct penalty regime from the criminal sanctions which provide a proportionate and effective mechanism to punish actions that may contravene Australia's biosecurity laws. The civil penalty provisions cannot be used to impose criminal liability or subject a person to imprisonment and a finding by a court that they have been contravened does not lead to the creation of a criminal record. A court also has the discretion to impose the penalty that the court considers most appropriately reflects the nature and seriousness of the offending. Further, under subsection 520(1) of the Biosecurity Act, a court may not make a civil penalty order against a person for a contravention of a civil penalty provision in the Biosecurity Act if that person has been convicted of an offence under an Australian law or the person has been found by a court to have contravened a civil penalty provision under Australian law that is constituted by conduct that is the same, or substantially the same, as the conduct constituting the contravention. Prohibition on arbitrary interference with privacy (Article 17 of the ICCPR) Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual's privacy, family, home or correspondence. 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. Entry requirements Part 1 of Schedule 1 to the Bill includes the power to make a determination under new subsection 196A(2). This is outlined in detail in the Overview. New subsection 196A(8) in Schedule 1 to the Bill sets out a non-exhaustive list of requirements which may be specified in a determination made under new subsection 196A(2). This includes requirements for individuals to provide: • A declaration or evidence as to where the individual has been before entering Australian territory; • A declaration or evidence as to whether the individual has undertaken specified activities during a specified period before entering Australian territory, and, if so, specified details about those activities; • A declaration as to the individual's intended destination or destinations in Australian territory during a specified period after entering Australian territory; • A declaration as to the individual's intended work (whether paid or unpaid) or occupation during a specified period after entering Australian territory. An individual who is required to comply with any of the above requirements may incidentally be required to provide personal information. The requirements would only apply in limited circumstances. The requirements would only be imposed on individuals if the Agriculture Minister is satisfied that a disease or pest poses an unacceptable level of biosecurity risk and 43

the requirement is appropriate and adapted to prevent, or reduce the risk of, the disease or pest entering, or establishing itself or spreading in, Australian territory or a part of Australian territory. Collecting this type of information would be critical in triaging persons at the airport or port at which they arrive in Australia according to their respective biosecurity risk, as it relates to the disease(s) or pest(s) specified in the determination. This will allow biosecurity officers at the airport or port to intervene with persons whose provided information places them in particular biosecurity risk categories and may lead to further assessment of their goods or baggage, or appropriate treatment of their goods or baggage to manage the risk appropriately. Further, it should be noted that information provided pursuant to such requirements in a determination made under subsection 196A(2) would be managed in accordance with the Biosecurity Act's information management framework. This would include robust protection should the information include sensitive information such as health information. Noting that the relevant diseases or pests which may be specified in a determination could include FMD, African Swine Fever and Lumpy Skin Disease, all of which present significant, widespread and long-lasting threats should they enter Australia, the measures in Part 1 of Schedule 1 to the Bill are necessary and appropriate to achieve this legitimate objective. Pre-arrival reporting The amendments in Schedule 2 to the Bill relate to the requirements to provide reports and further information to a biosecurity officer to enable assessment of the risk associated with goods or conveyances that enter Australian territory or are intended to enter Australian territory. The amendments to sections 193, 194 and 195 in Schedule 2 do not change the existing powers but expand the circumstances under which such information may be required and, on that basis, may increase occasions in which the right to freedom from arbitrary interference with privacy may be limited. For example, amendments to section 193 would permit the regulations to prescribe that other reports are required, increasing the frequency that such information may be required to be given in relation to specified classes of aircraft or vessels. By exercising powers to ask questions or require persons to provide information or documents under section 194 and 195, a biosecurity officer may incidentally require the provision of personal information. These sections, and the amendments to them by this Bill, are necessary for the legitimate objective of assessing the level of biosecurity risk associated with goods or conveyances that enter, or are intended to enter, Australian territory. Biosecurity officers need access to this information to properly assess the level of biosecurity risk associated with the goods or conveyances and then to be able to manage any biosecurity risks appropriately. To the extent that the collection, use, storage and sharing of information may include personal information, this may engage the right to privacy. Reporting and notification obligations under sections 193 and 194 apply only in particular circumstances and the persons required to provide the information would be the operator of the aircraft or vessel, who can be reasonably expected to be aware of these obligations. Schedule 3 of the Bill will also include safeguards for the unauthorised use or disclosure of certain personal information under the Biosecurity Act (discussed further below). 44

To the extent that the amendments in Schedule 2 to the Bill may engage the prohibition on arbitrary interference with privacy under Article 17 of the ICCPR, any limitations on this right are permissible as they are limited to only those measures that are necessary, reasonable and proportionate to achieving the legitimate objective of protecting human health and protecting Australia from biosecurity risks that could have harmful consequences to the Australian environment, economy and export markets. Approved arrangements Schedule 7 to the Bill provides for an additional power under subsection 437(4A) to allow an auditor to inspect, examine or make copies of certain documents, records or things, which would be produced under subsection 437(1). This would be in circumstances where the relevant Director may require an audit of an approved or proposed arrangements to be carried out by the auditor. By requiring this material to be inspected, examined or copied by the auditor, the Bill may incidentally require the provision of personal information. The collection, use and disclosure of personal information may therefore engage the prohibition on arbitrary interference with privacy. Subsection 437(4A) is necessary for the legitimate objective of assessing whether a biosecurity industry participant is acting in accordance with, or complying with any requirements or conditions in, the approved arrangement, or whether an applicant for the proposed arrangement will manage biosecurity risks effectively. The auditor will require the ability to inspect, examine or make copies of this material to ensure that their recommendations to the relevant Director in relation to the audit will be supported by relevant evidence. A biosecurity industry participant or an applicant for the approval of a proposed arrangement will be 'opting into' the regulatory framework under Biosecurity Act. PJCHR Guidance indicates that whether a person has a reasonable expectation of privacy in the circumstances is relevant to the issue of determining whether a provision is permissible. A person who has opted into an approved arrangement, or who wishes to apply for a proposed arrangement, should expect that a certain amount of personal information will need to be provided to the relevant Director, and to any auditors that assess compliance with the requirements of the Biosecurity Act. The interference with privacy is also not arbitrary in these circumstances because the material that will be inspected, examined or copied by the auditor, would be relevant to the audit of the approved or proposed arrangement. For example, the biosecurity industry participant may need to provide documents showing the names of any employees who have completed training relevant to the biosecurity activities covered by the arrangement. A person who has opted into an approved arrangement should be aware that they will be required to provide this kind of information in order to obtain the commercial advantage of being covered by the arrangement. Schedule 3 of the Bill will also include safeguards for the unauthorised use or disclosure of certain personal information under the Biosecurity Act (discussed further below). On this basis, to the extent that subsection 437(4A) may engage the prohibition on arbitrary interference with privacy under Article 17 of the ICCPR, this limitation is necessary, proportionate, and reasonable to achieve the legitimate objectives of the Bill. 45

Information management Schedule 3 to the Bill amends the information management provisions in the Biosecurity Act and provides for new provisions relating to the use and disclosure of relevant information. The amendments in Schedule 3 to the Bill are outlined in detail in the Overview. New Division 3 of Part 2 of Chapter 11 of the Biosecurity Act (as inserted by Schedule 3 to the Bill) would set out a number of statutory authorisations for the use and disclosure of relevant information. Relevant information may include personal information, and therefore, the use and disclosure of relevant information may engage the prohibition on arbitrary interference with privacy. The authorisations in new Division 3 of Part 2 of Chapter 11 of the Biosecurity Act are clearly defined and are aimed at the legitimate objective of supporting the management of biosecurity risks and for the effective operation and enforcement of the Biosecurity Act. This includes, for example, the use or disclosure of relevant information in the course of, or for the purposes of, the performance of functions or duties, or the exercise of powers under the Biosecurity Act (new section 582), as well as for research, policy development or data analysis to assist the Agriculture Department or Health Department (new section 590). This also includes the management of risks to human health (new section 583), risks posed by diseases or pests to a State or Territory (new section 584) and risks to foreign countries or compliance with Australia's international obligations (new section 585). Other authorisations are properly aimed at assisting with the administration and enforcement of other Australian laws, through use or disclosure of relevant information to a Commonwealth entity (new section 587), to a court or tribunal (new section 588), for law enforcement purposes (new section 589) or to assist in administering State or Territory laws (new section 590F). In addition, there are other authorisations relating to matters of public interest with a high threshold that must be met in order to rely on them, such as where it is necessary to manage a severe and immediate threat that has the potential to cause harm on a nationally significant scale (new section 590G). The authorisations also include instances where there is no justifiable reason to prevent the use or disclosure of relevant information, such as where the use or disclosure relates to publicly available information (new section 590B), or has occurred with the consent of the person to whom the information relates (new section 590D). Similarly, the disclosure of relevant information to the person to whom the information relates (new section 590C), or to the person who provided the information (new section 590E) is also justified, as they will have already been aware of the information. The authorisation in new section 590H would allow the regulations to prescribe the use or disclosure of relevant information in other circumstances. This is necessary as circumstances may arise in the future, which may require expedient authorisation to effectively manage biosecurity risks or other risks, and where reliance on another authorisation is not available or appropriate. The regulations under new section 590H would be able to be tailored to particular circumstances, by prescribing the kinds of information that may be used or disclosed, the classes of persons who may use or disclose the information, and the purposes for the use or disclosure. In addition, the regulations would be able to impose appropriate limitations on the use or disclosure of the information, by requiring certain conditions to be 46

complied with. For example, this may include requiring the person who is using or disclosing the information to ensure appropriate protections are in place for any personal information. Some of the other authorisations also impose specific measures to prevent the sharing of relevant information that may contain personal information. For example, new section 590 requires reasonable steps to be taken to de-identify personal information, wherever possible, before relevant information is disclosed for the purposes of research, policy development or data analysis. New section 590A also allows the use or disclosure of statistics that are not likely to enable the identification of a person. In addition, authorisations such as new sections 589 and 590F will require an agreement to be in place between the Commonwealth and a State or Territory body before the relevant information may be disclosed to the State or Territory body. For example, this may include requiring the State or Territory body to confirm that any personal information that is disclosed will be subject to appropriate safeguards. For clarity, the second note following section 579 also explains that nothing in Part 2 of Chapter 11 of the Biosecurity Act would prevent the Commonwealth from making agreements or other arrangements to impose conditions on the use or disclosure of relevant information by a person or body who obtains the information as result of a disclosure authorised under Division 3 of Part 2 of Chapter 11. It is intended that additional conditions could be imposed on the use or disclosure of the relevant information, for example, to de- identify any personal information before it can be used in certain circumstances. Further, to the extent that any of the personal information is also protected information, then it would be afforded additional protections under new section 580 of the Biosecurity Act (as inserted by Schedule 3). Protected information would relate to kinds of information, the unauthorised use or disclosure of which, would be likely to cause harm. It would cover sensitive information (within the meaning of the Privacy Act), such as health information about an individual. Under new section 580, a fault-based offence, civil penalty provision and strict liability offence would apply to the unauthorised use or disclosure of protected information which is obtained or generated under the Biosecurity Act. This will afford appropriate protection for the use or disclosure of certain personal information. Therefore, this limitation to the right to privacy is reasonable, necessary and proportionate to achieving legitimate objectives and is consistent with the right to privacy in Article 17 of the ICCPR. Right to freedom of expression (Article 19 of the ICCPR) Article 19(2) of the ICCPR protects the right to freedom of expression. This includes the freedom to seek, receive and impart information and ideas of all kinds. Article 19(3) of the ICCPR provides that the right to freedom of expression may be subject to certain restrictions if they are provided by law and necessary for respect of the rights or reputations of others, for the protection of national security, public order, or public health or morals. Any such restrictions must be prescribed by law and be reasonable, necessary and proportionate to achieving a legitimate objective. 47

Information management Schedule 3 to the Bill would provide for provisions relating to the unauthorised use or disclosure of protected information (new subsection 580(1)), as explained in the Overview. If a person contravenes new subsection 580(1), then they are liable to a new fault-based offence, strict liability offence and civil penalty provision in subsections 580(5) to (7). These provisions may limit the right to freedom of expression to the extent that they impose offences which attract a pecuniary penalty or imprisonment, or impose civil liability on a person, in circumstances where the use or disclosure of protected information is unauthorised. Protected information is defined in section 9 of the Biosecurity Act (as amended by item 7 of Schedule 3). The limitation on the unauthorised use or disclosure of protected information under new section 580 is necessary to achieve a number of legitimate objectives. To the extent that the protected information includes sensitive information (within the meaning of the Privacy Act), this has the objective of protecting a person's rights and reputation. Protected information also includes information the disclosure of which could reasonably be expected to prejudice the prevention, detection, investigation, prosecution or punishment of offences, or prejudice the protection of public safety or human health. Limiting the unauthorised use or disclosure of such protected information is necessary to achieve the legitimate objectives of protecting public order and public health. Further, protected information may also include information the disclosure of which could reasonably be expected to prejudice the security or defence of Australia. Limitation of the right to freedom of expression in relation to the unauthorised use or disclosure of such protected information achieves the legitimate objective of protecting national security. Protected information may also include information the disclosure of which could reasonably be expected to found an action by a person for breach of a duty of confidence, to prejudice the international relations of Australia or the effective working of the Agriculture Department or the Health Department, or otherwise harm the public interest. These limitations are necessary to ensure confidence from the industry, the general public and foreign countries, that such information, which would be likely to cause harm if disclosed in an unauthorised manner, can be appropriately protected under the Biosecurity Act. In addition, the civil penalty and offence provisions in subsections 580(5) to (7) would only apply to entrusted persons or other persons who are employed or engaged by the Commonwealth or who perform certain functions or duties, or exercise certain powers, under the Biosecurity Act. By virtue of their roles and responsibilities, these persons can be reasonably expected to be aware of their obligations under the Biosecurity Act relating to the use and disclosure of protected information. Even where a person has contravened subsection 580(1), the civil penalty and offence provisions in subsections 580(5) to (7) would not apply, where the exceptions in subsections 580(3) and (4) are enlivened. These exceptions would be where the use or disclosure was required or authorised by a Commonwealth law or a prescribed State or Territory law, or where the use or disclosure was made in good faith. While the penalty for the fault-based offence in new subsection 580(5) carries the possibility of imprisonment, a court will have discretion to impose a lesser penalty for offending which 48

falls on the lower end of objective seriousness. A term of imprisonment is intended to be imposed by a court for particularly egregious offending which falls on the higher end of objective seriousness. In accordance with section 17A of the Crimes Act 1914, a court will still need to consider all other available sentences and be satisfied that no other sentence is appropriate in all the circumstances of the case. Where a court passes a sentence of imprisonment for offending against new subsection 580(5), the court would be required to state the reasons for its decision and that no other sentence is appropriate. Given that the unauthorised use or disclosure of protected information may have potentially serious consequences, including harm to a person's rights or reputation, harm to a person's life or physical safety, prejudice to criminal investigations and prosecutions, and prejudice to Australia's defence and national security, it is important to ensure that protected information is not used or disclosed without appropriate authorisation. For the reasons given above, this limitation on the right to freedom of expression in Article 19 of the ICCPR is necessary, appropriate and proportionate to achieving a legitimate objective. Right to non-discrimination (Articles 2(1) and 26 of the ICCPR) Under Article 2(1) of the ICCPR, Australia has an obligation to respect and to ensure all individuals within its territory and subject to its jurisdiction the rights recognised in the ICCPR, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 26 of the ICCPR protects the right to equality and non-discrimination, and provides that the law shall protect against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property or other status. Entry requirements Part 1 of Schedule 1 to the Bill includes the power to make a determination under new subsection 196A(2). Part 2 of Schedule 1 to the Bill includes the power to make a determination under new subsection 393B(2). These are outlined in detail in the Overview. The Agriculture Minister, in making a determination under new subsection 196A(2), may specify under new subsection 196A(7) requirements applying to classes of individuals on incoming aircraft or vessels. Similarly, the Agriculture Minister, in making a determination under new subsection 393B(2), may specify biosecurity measures required to be taken by specified classes of persons. The right to non-discrimination in Article 26 of the ICCPR, read with Article 2(1), may be engaged by the operation of new subsections 196A(7) and 393B(2). In making a determination under new subsection 196A(2) or 393B(2), all requirements or biosecurity measures specified in the relevant determination will be for the purposes set out in subsection 196A(1) or subsection 393B(1). These purposes are outlined in detail in the Overview and are legitimate purposes. Further, before specifying each requirement or biosecurity measure in a determination, the Agriculture Minister must be satisfied that the requirement or measure is appropriate and adapted to the legitimate purposes of preventing or reducing the risk of, a disease or pest, that is considered to pose an unacceptable level of biosecurity risk, entering, or emerging, establishing itself or spreading in, Australian territory or part of Australian territory. 49

As such, requirements and biosecurity measures will be determined on the basis of scientific and technical expertise and advice, and will solely be aimed at managing biosecurity risks in the most appropriate manner for a legitimate purpose. These measures therefore do not impose impermissible limitations and are compatible with the right to non-discrimination in Article 26 (read with Article 2(1)) of the ICCPR. Measures that do not engage human rights Risk assessment Schedule 5 to the Bill seeks to increase transparency about the process by which risk assessments are conducted for the purposes of determinations made under subsection 173(1), 174(1) and 182(1), as well as decisions to grant permits made under subsection 179(1). The amendments identify the matters that the decision-makers must be satisfied of before making such a determination or decision, as well as setting out the considerations that the decision- makers must or may consider before making such a determination or decision. This would provide greater certainty and clarity to stakeholders about the process by which risk assessments are conducted, thereby enhancing good public administration. The amendments enhance the transparency of requirements in relation to risk assessments but do not create or change any conditions or classes of goods. Therefore, Schedule 5 to the Bill does not engage any of the applicable rights or freedoms. Arrangements and grants for dealing with risks posed by diseases or pests Schedule 6 to the Bill provides legislative authority for arrangements and grants for dealing with risks posed by diseases or pests. The department currently delivers numerous programs designed to identify, prevent, prepare for and manage the risk of pests and diseases entering Australian territory which may cause harm to animal, plant and human health, the environment and the economy. Examples of such programs include funding to improve Australia's capacity to respond to pest and disease incursions; increased economic opportunities for Indigenous persons, entities and communities through activities that target biosecurity risks in northern Australia; and investment in projects that support planning and preparedness for management of environmental biosecurity risks. Currently, the legislative authority for expenditure for these programs is generally provided by inserting new items for each program into the relevant Schedule to the Financial Framework (Supplementary Powers) Regulations 1997. Having tailored legislative authority provisions in the Biosecurity Act would assist the Australian Government to respond quickly to fast-changing circumstances where there is a pest or disease threatening the health of the Australian population, the environment or the agricultural sector. This is consistent with the approach taken in other Commonwealth legislation to provide legislative authority for arrangements and grants, including the Aged Care Act 1997, Child Care Act 1972, Emergency Response Fund Act 2019, Fair Entitlements Guarantee Act 2012, Future Drought Fund Act 2019 and National Disability Insurance Scheme Act 2013. 50

Schedule 6 to the Bill provides an alternative mechanism for legislating expenditure for biosecurity programs which creates efficiencies and enables timely responses to emerging biosecurity threats. The amendments do not engage any of the applicable rights or freedoms. Conclusion This Bill is compatible with human rights because it promotes the right to health under Article 12 of the ICESCR and, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate. Senator the Hon. Murray Watt Minister for Agriculture, Fisheries and Forestry 51

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