BIOSECURITY AMENDMENT (ADVANCED COMPLIANCE MEASURES) BILL 2023 Explanatory Memorandum

Commonwealth of Australia Explanatory Memoranda

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BIOSECURITY AMENDMENT (ADVANCED COMPLIANCE MEASURES) BILL 2023

2022-2023 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA HOUSE OF REPRESENTATIVES BIOSECURITY AMENDMENT (ADVANCED COMPLIANCE MEASURES) BILL 2023 EXPLANATORY MEMORANDUM (Circulated by authority of the Minister for Agriculture, Fisheries and Forestry, Senator the Hon. Murray Watt)

BIOSECURITY AMENDMENT (ADVANCED COMPLIANCE MEASURES) BILL 2023 GENERAL OUTLINE The Biosecurity Amendment (Advanced Compliance Measures) Bill 2023 (the Bill) would amend the Biosecurity Act 2015 (the Act) to ensure that the biosecurity regulatory regime, in particular compliance measures under the regime, are well adapted to the evolving biosecurity environment. Protecting Australia from increasing biosecurity risks and responding to emerging threats requires constant vigilance and oversight to prepare for the new and increasing challenges the biosecurity system faces. These include increased biosecurity threats and threats to human health, fuelled by increased numbers of travellers, diversifying trade and cargo, and changes in climate. These increasing biosecurity threats create a need for greater prevention and deterrence measures. Access to accurate and complete information relating to travellers, goods and conveyances is key to assessing and managing biosecurity and human biosecurity risk. Those that knowingly provide false or misleading information or documents are putting Australia's human, plant and animal health at significant risk. The Bill would ensure that the associated civil penalties would reflect the potential harm of their actions. The 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. The Bill would amend the Act to: • enable the Director of Biosecurity (Director) to require each person within a class of persons who intends to enter, or enters, Australian territory on an incoming aircraft or vessel to: o provide information for the purpose of assessing the level of biosecurity risk associated with the person and any goods that the person has with them; o produce a passport or other travel document to the Director for either or both of the following purposes: ▪ assessing the level of biosecurity risk associated with the person and any goods that the person has with them; ▪ the future profiling, or future assessment, of biosecurity risks; • enable the Director to scan any passport or travel document so produced, and collect and retain personal information obtained as part of that production or scanning for either or both of the purposes outlined above; • create a new civil penalty provision for persons who are required to produce a passport or travel document, but do not comply with such requirement. The new civil penalty provision would also be subject to the infringement notice scheme under the Act; • introduce a new procedural fairness requirement for the Director or the Director of Human Biosecurity (a relevant Director) to give notice of a proposed variation to the biosecurity industry participant covered by an approved arrangement and invite the 2

biosecurity industry participant to give a written submission within 14 days in relation to the proposed variation; • streamline existing notice requirements in relation to a proposed suspension or revocation of an approved arrangement by consolidating these requirements into a single provision along with the new requirements for notice of a proposed variation, allowing flexibility when appropriate for the relevant Director to issue a single notice in relation to one or more of these proposed outcomes; • introduce an alternative sanction of a reprimand, which may be given if the relevant Director does not consider it appropriate to vary, suspend or revoke an approved arrangement after receiving the biosecurity industry participant's written submission; • increase civil penalties that apply where an individual, or operator of an aircraft or vessel, fails to comply with certain requirements, directions or measures in Chapter 2 of the Act, which deals with managing biosecurity risks relating to human health; • increase civil penalties for contraventions of sections 438, 439, 532 and 533 of the Act, which apply where a person gives false or misleading information or documents knowing that the information or document is false or misleading in a material particular; • make a minor technical amendment to paragraph 439(1)(c) of the Act to clarify its intent; and • create a number of strict liability offences which are proposed to be subject to the infringement notice framework under the Act as it triggers the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act). The amendments enabling the Director to require each person within a class of persons to provide information for the purpose of assessing the level of biosecurity risk associated with the person and any goods that the person has with them would ensure that the Director could require the provision of information by classes of persons, as well as by an individual. This would be an effective addition to the current biosecurity management options for incoming travellers and would enable more streamlined assessment and management of biosecurity risk. The amendments enabling the Director to require persons to provide a passport of travel document for certain specified purposes, including future profiling and future assessment of biosecurity risks, would ensure that biosecurity risks associated with incoming travellers are managed in a more effective, efficient and focussed manner. A strategy of targeted intervention through such profiling is intended to manage biosecurity risks arising from incoming travellers more effectively and focus resources on those persons who seek to flout Australia's critical biosecurity laws. The amendments relating to approved arrangements would ensure that existing procedural fairness requirements are maintained for a proposed suspension or revocation of an approved arrangement, while also facilitating a new procedural fairness requirement for variations. The new streamlined notice requirements would enable the relevant Director to respond proportionately and in a timely manner to address conduct that constituted a ground for 3

proposed variation, suspension or revocation of an approved arrangement, after considering any written submissions received from the biosecurity industry participant. The introduction of an alternative sanction of a reprimand would increase the range of sanctions available to the relevant Director to respond to alleged conduct. The reprimand would not have any immediate consequences for the biosecurity industry participant but would put the biosecurity industry participant on notice in relation to their future conduct. The amendments to civil penalty provisions relating to managing human biosecurity risks would increase a number of civil penalties to address the evolving human biosecurity risk environment. The amendments would ensure that the penalties are high enough to act as a deterrent in a public health environment where non-compliance with current penalties may be seen as a cost of doing business or otherwise worth the risk. The increases reflect the serious consequences to human health of contravening provisions relating to entering or leaving Australian territory, preventative biosecurity measures determined by the Health Minister, bringing into, and managing human remains in Australian territory and human health response zone requirements. Amendments to civil penalty provisions in sections 438, 439, 532 and 533 of the Act relating to false and misleading information or documents would increase the civil penalty amount in order to achieve the necessary deterrent effect for non-compliance with the Act. The increase to the penalty amounts would be appropriate to reflect the seriousness of the contraventions and to seek to deter non-compliance with the provisions. The proposed new strict liability offences and subjecting them to the infringement notice scheme would significantly increase deterrence and the effectiveness of the regulatory regime. This is necessary to ensure that regulated entities are significantly less likely to contravene requirements, thus preventing the incursion and establishment of pests and diseases with potentially significant negative impact on Australia's economy, agricultural sector, animal, plant and human health and the environment. These proposed measures would also enable immediate regulatory responses for lower-level contraventions in a high volume operational environment, which would provide an alternative to other, less effective regulatory action, such as prosecutions or civil litigation. Consultation has been undertaken with Commonwealth agencies including the Department of Health and Aged Care, the Department of the Prime Minister and Cabinet, and the Attorney- General's Department. FINANCIAL IMPACT STATEMENT The Bill would have no financial impact on the Australian Government Budget. 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 A). 4

BIOSECURITY AMENDMENT (ADVANCED COMPLIANCE MEASURES) BILL 2023 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 (Advanced Compliance Measures) Act 2023 (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 the whole Act would commence on the day after the proposed Act receives the Royal Assent. 4. The note to subsection 2(1) would explain to the reader that the table relates only to the provisions of the proposed Act as originally enacted. It will not be amended to deal with any later amendments of the proposed Act. 5. 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 6. 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. 5

SCHEDULE 1-- ASSESSING BIOSECURITY RISK FOR PERSONS ON INCOMING AIRCRAFT OR VESSEL Background 7. Currently, subsection 196(1) of the Biosecurity Act 2015 (the Act) provides that section 196 applies to a person who is included in a prescribed class of person and who intends to enter, or enters, Australian territory on an incoming aircraft or vessel. Section 53 of the Biosecurity Regulation 2016 (the Regulation) prescribes the following classes of persons: a) persons who were, are, or will be, passengers on an incoming aircraft or vessel; b) persons who were, are, or will be, members of the crew of an incoming aircraft or vessel; c) the person who was, is, or will be, the person in charge of an incoming aircraft or vessel. 8. In effect, these prescribed classes cover travellers, crew and persons in charge of an aircraft or vessel who arrive, or intend to arrive, in Australian territory. 9. Currently, subsection 196(2) of the Act provides that the Director of Biosecurity (the Director) may require a person to whom section 196 applies to provide information (including by answering questions) for the purpose of assessing the level of biosecurity risk associated with the person and any goods that the person has with them. The effect of this is the Director can only require the provision of information from an individual traveller, member of a crew or the person in charge of an aircraft or vessel. Put another way, the requirement to produce information and the provision of such information may only occur in a one-to-one interaction between a biosecurity officer and an individual. 10. Whilst subsection 196(2) refers to the Director, in practice the power under this subsection is subdelegated to and exercised by biosecurity officers. The legislative framework that supports this delegation of power is set out in section 542 of the Act. Subsection 542(1) of the Act provides that the Director may delegate any or all of the Director's functions of powers (with limited exceptions set out in paragraph 542(1)(b)) to an SES officer in the Agriculture Department. Subsection 542(2) provides that an SES officer to whom a function or power has been delegated under subsection 542(1) may, in turn, subdelegate that function or power to certain persons, including a biosecurity officer, provided such function or power is not listed in subsection 543(3) of the Act. As the power in subsection 196(2) is not listed in subsection 543(3), a biosecurity officer may (and in practice does) exercise the power in subsection 196(2) of the Act. 11. Schedule 1 to the Bill would amend Part 2 of Chapter 4 of the Act to enable the Director to require each person within a class of persons who intends to enter, or enters, Australian territory on an incoming aircraft or vessel to provide information for the purpose of assessing the level of biosecurity risk associated with the person and any goods that the person has with them. 12. In January 2023, the total number of incoming travellers in Australian territory was 1,608,010. In February 2023, the total number was 1,375,520 and in March 2023, it 6

was 1,344,580. Assessing the biosecurity risk associated with persons arriving in Australian territory and the goods they have with them on an individual basis does not allow for the most effective and efficient management of associated biosecurity risks. Therefore, in order to better assess biosecurity risks arising from incoming travellers, items 2-6 of the Schedule 1 to the Bill would amend section 196 of the Act to allow the Director to require the provision of information by classes of person, as well as by an individual. For example, these proposed measures would allow the Director to include each person on a flight or a vessel (including a cruise ship) in a class and then require every person in that class to provide information so the Director can assess the level of biosecurity risk associated with them and the goods they have with them, rather than having to require the provision of information from each person individually. This would be an effective addition to the current biosecurity management options for incoming travellers, particularly where flights or vessels are arriving in Australian territory from a country or region where there is a heightened risk posed by a disease or pest that, should it enter Australia, would have a serious and adverse impact on the economy, the environment, flora and fauna and the nation's $70 billion agricultural sector. 13. Most people arriving in Australian territory comply with laws that reflect the critical importance of the nation's biosecurity framework which protects Australia's unique environment, its people, animals, plants and economy. However, there continues to remain a minority who contravene such requirements. In order to better manage biosecurity risks associated with incoming travellers, it is important for biosecurity officers to deploy resources in a more effective, efficient and focussed manner. A strategy of targeted intervention is intended to manage biosecurity risks arising from incoming travellers more effectively and focus resources on those persons who would seek to flout Australia's critical biosecurity laws. 14. To this end, Schedule 1 of the Bill would insert new provisions into Division 3 of Part 2 of Chapter 4 of the Act to enable the Director to require each person within a class of persons who intends to enter, or enters, Australian territory on an incoming aircraft or vessel to produce a passport or other travel document to the Director for either or both of the following purposes: a) assessing the level of biosecurity risk associated with the person and any goods that the person has with them; b) the future profiling, or future assessment, of biosecurity risks; and to scan any such passport or travel document, and collect and retain personal information obtained as part of that production or scanning for either or both of the purposes outlined above. 15. These measures would also create a new civil penalty provision. Where a person is required to produce a passport or travel document, that person must comply with such requirement. The maximum civil penalty for a contravention of this provision would be 120 penalty units. The new civil penalty provision would also be subject to the infringement notice scheme under the Act. 16. Items 7-10 of Schedule 1 would give effect to these proposed amendments. The purpose of requiring the production of a passport or travel document from a person is to provide more efficient, effective and targeted management of biosecurity risk in 7

relation to arrivals in Australia from overseas. A biosecurity officer would be able to scan the relevant document and, in doing so, access information from the Agriculture Department's systems about the particular individual which is relevant to their risk profile from a biosecurity perspective. This could include their history of compliance with biosecurity laws. In this way, biosecurity officers would have access to relevant information which would allow them to make an on-the-spot risk assessment in relation to each person. Dependent on the nature and scope of the relevant information, including a person's history of compliance with biosecurity laws, this would enable a biosecurity officer to then undertake more targeted intervention and investigation where appropriate. The aim of this targeted approach is to protect Australia, its people, animals, plants and economy. 17. This Schedule would commence on the day after the proposed Act receives the Royal Assent. The civil penalty provision created by this Schedule would have prospective application. Biosecurity Act 2015 Item 1 Section 190 18. This item would amend the simplified outline of Part 2 of Chapter 4 of the Act as it relates to the overview of the provisions in Division 3 of Part 2 of Chapter 4. In particular, item 1 would omit the current simplified outline dealing with Division 3 of Part 2 of Chapter 4 of the Act in section 190 of the Act and replace it with an amended version, the effect of which is to add a brief overview of the measures proposed to be inserted into the Act by item 7 of this Schedule - that is, that Division 3 will also provide for persons on board incoming aircraft or vessels to produce travel documents for the purpose of assessing the level of biosecurity risk associated with the persons and any goods the persons have with them, or of the future profiling, or future assessment, of biosecurity risks. 19. The proposed simplified outline in section 190 as it relates to Division 3 of Part 2 of Chapter 4 of the Act is intended to provide a general overview to assist readers in understanding the substantive provisions of this Division of the Act. Item 1 would ensure that the simplified outline reflects the amendments proposed to be made by item 7 of this Schedule. The simplified outline, as it relates to the other provisions of Division 3 of Part 2 of Chapter 4 of the Act, would remain the same as the current simplified outline as they provide an appropriate and accurate overview of those provisions. Item 2 Section 196 (heading) 20. This item would repeal the current heading of section 196 of the Act, which is "Persons on incoming aircraft or vessel may be required to provide information to assess biosecurity risk", and replace it with "Persons on incoming aircraft or vessel may be required to provide information or travel documents to assess biosecurity risk." 21. This proposed amendment is consequential to the amendments proposed to be made to the Act by items 7-10 of this Schedule, which would enable the Director to require persons to whom section 196 of the Act to produce a passport or travel document for 8

certain specified purposes. These proposed amendments are discussed in more detail below. 22. The proposed amendment to the heading of section 196 of the Act is intended therefore to provide a brief but accurate summary of the provisions of this section. Item 3 Subsection 196(1) 23. This item would omit "a person" and replace it with "persons". 24. The purpose and effect of this amendment is discussed below as part of a broader explanation of items 3-6 of this Schedule. Item 4 Paragraph 196(1)(a) 25. This item would omit "intends to enter, or enters" and replaces it with "intend to enter, or enter". 26. The purpose and effect of this amendment is discussed below as part of a broader explanation of items 3-6 of this Schedule. Item 5 Paragraph 196(1)(b) 27. This item would omit "is" and replace it with "are". 28. The purpose and effect of this amendment is discussed below as part of a broader explanation of items 3-6 of this Schedule. Item 6 Subsection 196(2) 29. This item would omit "require the person" and replace it with "require any person covered by subsection (1), or each person included in a class of persons covered by subsection (1),". 30. The purpose and effect of this amendment is discussed below as part of a broader explanation of items 3-6 of this Schedule. Discussion of items 3-6 of this Schedule 31. As noted above in the Background to the amendments proposed to be made by Schedule 1, the current effect of section 196 is that the Director (in practice, a biosecurity officer acting as subdelegate) can only require the provision of information from an individual traveller, member of a crew or the person in charge of an aircraft or vessel. Put another way, the requirement to produce information and the provision of such information may only occur in a one-to-one interaction between a biosecurity officer and an individual. 32. The amendments proposed by items 3-6 of this Schedule would amend subsections 196(1) and 196(2) of the Act to enable the Director to require each person within a class of persons who intends to enter, or enters, Australian territory on an 9

incoming aircraft or vessel to provide information for the purpose of assessing the level of biosecurity risk associated with the person and any goods that the person has with them. The proposed amendments would not affect the current operation of subsection 196(2) in that the Director would still be able to require the provision of information under that subsection from an individual. The amendments in items 3-6 simply allow for the Director to require information from classes of persons if thought appropriate. 33. By way of example, these proposed measures would allow the Director to include each person on a particular flight or a vessel originating from a place that has high biosecurity risk associated with it at a particular point in time, in a class, and then require every person in that class to provide information so the Director can assess the level of biosecurity risk associated with them and the goods they have with them, rather than having to require the provision of information from each person individually. 34. The flexibility to be able to require classes of persons to provide information for the purpose of assessing biosecurity risk, rather than just individuals, would be a significant and important addition to the current options used by biosecurity officers at the border to assess biosecurity risk, and where appropriate manage any risk arising. These proposed amendments would allow for the more efficient and effective management of biosecurity risk in order to protect Australia's economy, environment, flora and fauna, and the agricultural sector from diseases and pests which could have a devastating effect should they enter Australian territory. Item 7 After subsection 196(3) 35. This item would insert new subsections 196(3A) and 196(3B) into section 196 of the Act. These new subsections would have the subheading "Production and scanning of travel documents." This subheading is intended to assist the reader with a brief summary of the matters with which new subsections 196(3A) and 196(3B) deal. 36. New subsection 196(3A) would provide that the Director may do the following: a) require any person covered by subsection 196(1) of the Act (that is, persons who intends to enter, or enters Australian territory on an incoming aircraft or vessel, and is included in a class of persons), or each person included in a class of persons covered by that subsection, to produce a document covered by new subsection 196(3B) of the Act to the Director for either or both of the following purposes: i. assessing the level of biosecurity risk associated with the person and any goods that the person has with the person; ii. the future profiling, or future assessment, of biosecurity risks; b) scan any document so produced for either or both of those purposes; c) collect and retain personal information obtained as part of that production or scanning for either or both of those purposes. 37. As already noted above in the Background to the amendments proposed to be made by Schedule 1 to the Bill, the purpose of requiring the production of a passport or travel document from a person is to provide more efficient, effective and targeted management of biosecurity risk in relation to arrivals in Australia from overseas. Requiring persons to produce their passport or travel document allows for this. A 10

biosecurity officer would be able to scan the relevant document and, in doing so, access information from the Agriculture Department's systems about the particular individual which is relevant to their risk profile from a biosecurity perspective. This could include their history of compliance with biosecurity laws. In this way, biosecurity officers would have access to relevant information which would allow them to make a risk assessment in relation to each person. Dependent on the nature and scope of the relevant information, including a person's history of compliance with biosecurity laws, this would enable a biosecurity officer to then undertake more targeted intervention and investigation if appropriate. As such, the purposes for which this information is collected and retained are reasonable, necessary and proportionate for the legitimate objective of protecting Australia's unique biosecurity status, its people, animals, plants and economy, including its $70 billion agricultural sector. 38. Importantly, the power set out in new subsection 196(3A) is appropriately constrained in its scope. Whilst the Director (in practice, this is most likely to be their delegate - a biosecurity officer) may require a person to provide their travel document for scanning and whilst information from this process may be retained, the power may only be exercised for two discrete and limited purposes: a) assessing the level of biosecurity risk associated with the person and any goods that the person has with them; b) the future profiling, or future assessment, of biosecurity risks. 39. Both purposes relate to assessing biosecurity risks, both in the present and future which is a reasonable and legitimate objective. As noted, the collection of information via the scanning of a travel document provides for a more effective, efficient and targeted management of biosecurity risk with the ultimate aim of protecting Australia, its people, plant and animals, its environment and economy. A biosecurity officer may not require the provision of a travel document, the scanning of the same and the retention of information from this process for any purpose other than the limited purposes set out in new subparagraphs 196(3A)(a)(i) and (ii). It is intended that the information obtained from the process enabled by proposed subsection 196(3A) will only be held as long as is necessary to meet the purposes outlined above. 40. Additionally, Part 2 of Chapter 11 of the Act includes an appropriate framework for managing the collection, storage and disclosure of information, which would include information collected as part of a process envisaged by new subsection 196(3A). This includes offences and a civil penalty for the unauthorised use or disclosure of protected information, such as sensitive personal information obtained by the exercise of power under new subsection 196(3A) would be protected by the robust information management framework in the Act. 41. New subsection 196(3A) would also include two notes. The first proposed note would direct the reader to note that this subsection is not subject to the privilege against self incrimination (as provided for in section 635 of the Act). 42. The second proposed note would direct the reader to note that a person may commit an offence or contravene a civil penalty provision if the person provides false or misleading documents (see section 137.2 of the Criminal Code Act 1995 (Criminal Code) and section 533 of the Act). 11

43. The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high. As noted above, the purpose of requiring the production of a passport or travel document from a person and retaining information from this process is to provide more efficient, effective and targeted management of biosecurity risk. Providing an enhanced and more focussed management of biosecurity risk is critical in protecting Australia, its people, plant and animals, environment and economy from the potential devastating effects should a disease or pest enter Australian territory. This is particularly important within the context of Australia's $70 billion agriculture sector. 44. 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 provided by the provision of a travel document can be sought and provided in a timely manner. 45. While the privilege against self-incrimination would be abrogated in relation to new subsection 196(3A), the 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 Act (providing false or misleading information and documents) (see subsection 635(2) of the Act). 46. New subsection 196(3B) would provide that, for the purposes of new paragraph 196(3A)(a), the documents covered by that subsection are the following: a) the person's Australian travel document (within the meaning of the Australian Passports Act 2005); b) a passport, or other travel document, issued to the person by or on behalf of the government of a foreign country. 47. Section 6 of the Australian Passports Act 2005 (the Passports Act) provides that an Australian travel document means an Australian passport or a travel-related document. 48. Section 9 of the Passports Act provides that a "travel-related document" is a document specified in a determination by the Minister which is issued by the Minister to a person for the purpose of travel. For the purposes of this provision, the Minister is the Minister who administers the Passports Act. The Australian Passports Determination 2015 specifies various travel documents for the purposes of section 9 of the Passports Act. These include a convention travel document (which may be used by a person recognised as a refugee in Australia, but who is not a citizen), a certificate of identity (for a stateless person or person unable to obtain a travel document from the country of which they claim to be a national) and a provisional travel document (for an Australian citizen who is unable to obtain an Australia travel document). As specified in section 9 of the Passports Act, all of these travel-related documents are issued for the purposes of travel and enable the holder to travel internationally with a valid document. For the purposes of proposed subsection 196(3A) therefore, travel-related document is intended to cover only those documents issued officially by the Australian government which allow a person to travel internationally and do not include other kinds of documents 12

which may be used whilst travelling, such as insurance documentation or vaccination certificates. 49. The purpose of new subsection 196(3B) is to clarify which documents the Director may require a person to produce if the power under new subsection 196(3A) is exercised. 50. The reference in proposed paragraph 196(3B)(b) to "other travel document" is limited to official documents issued by the government of a foreign country which permit the holder to travel internationally. This reflects, and is consistent with, the intent of paragraph 196(3B)(a). For example, various countries (including the United Kingdom) may issue a refugee travel document to a person holding refugee status in that country which permits them to travel internationally. Similarly, travel documents exist for stateless persons that allow them to travel internationally. As noted above, this term is not intended to include other kinds of documents which may be used whilst travelling, such as insurance documentation or vaccination certificates. Item 8 Subsection 196(4) (heading) 51. This item would repeal the current heading for subsection 196(4) being "Civil penalty provision" and replace it with "Civil penalty provisions". 52. This amendment is consequential to the proposed creation of a new civil penalty provision in new subsection 196(5) as proposed to be inserted into the Act by item 9 of this Schedule. As this amendment would create two civil penalty provisions in section 196 (being the current provision at subsection 196(4) and the proposed provision at subsection 196(5)), the heading would be amended to reflect this fact. Item 9 At the end of section 196 53. This item would insert a new civil penalty provision in section 196 of the Act. New subsection 196(5) would provide that a person who is required to produce a travel document under new subsection 196(3A) must comply with the requirement. If a person does not comply with the requirement, they are liable to a maximum civil penalty of 120 penalty units. 54. The civil penalty is intended to reflect the seriousness of non-compliance with a requirement to produce a travel document under new subsection 196(3A). Non- compliance may result in a biosecurity officer being denied the ability to conduct an accurate and effective risk assessment of an individual based on relevant information and thus may pose a significant risk to Australia's biosecurity status. This could adversely impact the biosecurity management framework under the Act and enhance the potential risk that a disease or pest could enter Australian territory. 55. The maximum civil penalty proposed under new subsection 196(5) is 120 penalty units which is consistent with similar provisions with identical penalty unit amounts in the Act, such as subsection 196(4), but also subsection 126(2) (a civil penalty provision where a person does not comply with a requirement to provide information) and 13

subsection 127(3) (a civil penalty provision where a person does not comply with a requirement to produce documents). Item 10 Subsection 523(1) (after table item 10) 56. The table in subsection 523(1) of the 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. 57. This item would amend the table in subsection 523(1) to insert new item 10AA after item 10. This would have the effect that new subsection 196(5) would be subject to an infringement notice under Part 5 of the Regulatory Powers Act. The ability to issue an infringement notice for an alleged contravention of new subsection 196(5) would allow the notice with the stated amount to be issued immediately and to be effective in managing alleged non-compliance with a requirement to produce a travel document under new subsection 196(5). Item 11 Application and saving provisions 58. This item would provide for application and saving provisions which relate to the amendments proposed to be made to the Act by this Schedule. 59. Sub-item 1 would provide that the proposed amendments of section 196 of the Act made by this Schedule apply in relation to a person who intends to enter, or enters, Australian territory on an incoming aircraft or vessel on or after the commencement of this item. This ensures that the amendments would have prospective application. This is particularly relevant in relation to the proposed creation of a new civil penalty provision in new subsection 196(5). 60. Sub-item 2 would provide that the proposed amendments of section 196 of the Act made by this Schedule do not affect the validity of regulations in force for the purposes of paragraph 196(1)(b) of that Act immediately before the commencement of this item. This ensures that the validity of the Regulation, relevantly including the provisions of section 53 of the Regulation which prescribes classes of persons for the purposes of paragraph 196(1)(b) of the Act, is unaffected by the amendments proposed by this Schedule. 14

SCHEDULE 2--APPROVED ARRANGEMENTS Background 61. Chapter 7 of the 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 specified in, and in accordance with, the approved arrangement, except in certain specified circumstances. 62. Various parts of Chapter 7 of the Act deal with the variation, suspension and revocation of approved arrangements. The relevant Director may vary, suspend or revoke an approved arrangement, or part of an approved arrangement (as relevant) in certain circumstances, following the processes set out in the relevant part of the Act. 63. The amendments would introduce new procedural fairness requirements that the relevant Director must not require a biosecurity industry participant to vary an approved arrangement or the conditions of the arrangement without first providing a notice inviting the biosecurity industry participant to give a written submission within 14 days in relation to the proposal to require the variation. 64. The amendments would also streamline existing notice requirements in relation to a proposed suspension or revocation of an approved arrangement by consolidating these requirements into a single provision, along with the new requirements for notice of a proposed variation. This would allow flexibility, if appropriate, for the relevant Director to issue a single notice in relation to one or more of these proposed outcomes seeking further information in relation to the alleged conduct. This would enable the relevant Director to respond proportionately and in a timely manner to address conduct that constitutes the grounds for the proposed variation, suspension or revocation. 65. For example, before issuing the notice it may appear that the nature of the alleged conduct is such that revocation of the approved arrangement might be a possible outcome, but after receiving the biosecurity industry participant's written submission, it appears that a suspension or variation of the approved arrangement would be sufficient to manage the biosecurity risk. In this case, if a single notice proposing variation, suspension or revocation as possible alternative outcomes has been given to the biosecurity industry participant, the relevant Director would be able to make a decision to vary or suspend the approved arrangement without issuing a further notice and without waiting a further 14 days for a written submission in relation to the same conduct. The amendment would streamline processes and provide greater clarity and certainty for the biosecurity industry participant. 66. An alternative sanction of a reprimand would also be introduced. A biosecurity industry participant may be reprimanded if, after receiving a written submission in response to the show cause notice, it appears that (for example) a condition of the approved arrangement has been contravened but a variation, suspension or revocation of the approved arrangement is not considered appropriate. 15

Biosecurity Act 2015 Item 1 Section 404 67. Section 404 sets out a simplified outline of Chapter 7 of the Act relating to approved arrangements. 68. This item would insert the words "Division 1A deals with notice of proposed variation, suspension or revocation decisions;" after the words "Division 1 deals with matters relating to applications for approved of proposed arrangements;". 69. The effect of this amendment would be to add a description of new Division 1A, inserted by item 11 of this Schedule, to the simplified outline in relation to Part 7 of Chapter 7 of the Act. New Division 1A deals with giving notice to a biosecurity industry participant of a proposed variation, suspension or revocation decision in relation to an approved arrangement. This amendment is consequential to the insertion of new Division 1A by item 11 of this Schedule. Item 2 At the end of section 413 70. Division 2 of Part 3 of Chapter 7 of the Act deals with variations of approved arrangements that are required by the relevant Director. 71. This item would add a new heading "Notice of proposed decision" and new subsection 413(3) in Division 2 of Part 3 of Chapter 7 of the Act. New subsection 413(3) would provide that the relevant Director must not give a notice to a biosecurity industry participant under subsection 413(1) on a ground referred to in paragraphs 413(2)(a), (b), (c), (d) or (f) unless the relevant Director has given a notice to the biosecurity industry participant under subsection 435A(1). New subsection 435A(1) would be inserted by item 11 of this Schedule, and relates to giving notice of a proposed variation, suspension or revocation decision in relation to an approved arrangement. 72. Currently, subsection 413(1) provides that the relevant Director may, by written notice given to the biosecurity industry participant covered by an approved arrangement, vary the conditions of the arrangement (including by imposing new conditions) or require the biosecurity industry participant to vary the arrangement as specified in the notice. 73. Currently, subsection 413(2) provides that the relevant Director may give a notice to a biosecurity industry participant under subsection 413(1) in relation to an approved arrangement if the Director is satisfied that at least one of the following grounds applies: a) the arrangement no longer meets the requirements on the basis of which approval was given (paragraph 413(2)(a)); b) the biosecurity industry participant is no longer a fit and proper person (having regard to the matters referred to in section 530, which sets out the fit and proper person test for the purposes of the Act) (paragraph 413(2)(b)); c) a condition of the arrangement has been contravened (paragraph 413(2)(c)); 16

d) the level of biosecurity risk associated with the operation of the arrangement has changed (paragraph 413(2)(d)); e) a change needs to be made to the arrangement to correct a minor or technical error in the arrangement (paragraph 413(2)(e)); f) the arrangement needs to be varied for any other reason (paragraph 413(2)(f)). 74. The effect of new subsection 413(3) would be that the relevant Director must not give such a notice on a ground referred to in paragraphs 413(2)(a), (b), (c), (d) or (f) unless the relevant Director has given a notice to the biosecurity industry participant under new subsection 435A(1), inserted by item 11 of this Schedule. This would introduce a new procedural fairness requirement for variations required by the relevant Director, such that a variation cannot be required unless the biosecurity industry participant has been given prior notice in relation to the proposal. A variation required on the ground specified in paragraph 435A(2)(e) would be excluded from this requirement, because it would not always be necessary to give prior notice of a variation request to correct a minor or technical error in an approved arrangement. Item 3 Section 415 75. Section 415 of the Act provides the date of effect of a variation of the conditions of an approved arrangement. 76. This item would omit the word "A" and substitute "(1) Subject to subsection (2), a" in section 415 of the Act. This amendment would provide for the same matters dealt with in existing section 415 to be set out in subsection 415(1), consequential to the insertion of new subsection 415(2) by item 4 of this Schedule. 77. The amendment would also make clear that the matters dealt with in subsection 415(1) are now subject to new subsection 415(2) of the Act. The effect of this would be that a variation of the conditions of an approved arrangement by written notice given by the relevant Director cannot take effect before the end of 14 days after a notice is given under new subsection 435A(1) (inserted by item 11 of this Schedule) that included an invitation to give the relevant Director a written submission within 14 days in relation to the notice. 78. Together with new subsection 415(2) inserted by item 4 of this Schedule, the purpose of this amendment is to facilitate a new procedural fairness requirement for variations, such that a variation cannot be required by the relevant Director unless the biosecurity industry participant has been given prior notice in relation to the proposal and (unless the circumstances are serious and urgent) invited to give a written submission to the relevant Director in relation to the notice within 14 days. Item 4 At the end of section 415 79. This item would add subsection 415(2) to the Act. 80. New subsection 415(2) would provide that if a biosecurity industry participant covered by the approved arrangement was given a notice under subsection 435A(1) that included the invitation referred to in paragraph 435A(2)(d), the variation must not take effect before the end of 14 days after the notice is given. 17

81. New subsection 435A(1) inserted by item 11 of this Schedule relates to giving notice of a proposed variation, suspension or revocation decision in relation to an approved arrangement. New paragraph 435A(2)(d) would provide that a notice under new subsection 435A(1) must invite the biosecurity industry participant to give the relevant Director a written submission in relation to the notice within 14 days. 82. The purpose of new subsection 415(2) is to ensure that a variation does not take effect before the period for responding to the notice of intention to vary the condition of the arrangement has ended. As with item 11 of this Schedule, this would facilitate a new procedural fairness requirement for variations, such that the period for giving a written submission to the relevant Director must end before the variation can be required. Item 5 Subsection 418(2) 83. Section 418 provides that the relevant Director may suspend an approved arrangement, or a part of an approved arrangement, for a period on certain specified grounds. 84. This item would omit the words "in accordance with subsection (3)" and substitute "under subsection 435A(1)" in subsection 418(2) of the Act. Subsection 418(2), as amended, would provide that the relevant Director must not suspend an approved arrangement, or part of an approved arrangement, unless the Director has given a notice to the biosecurity industry participant covered by the arrangement under subsection 435A(1). 85. New subsection 435A(1) inserted by item 11 of this Schedule would provide for a notice of proposed variation, suspension or revocation to be given to a biosecurity industry participant. Subsection 435A(1) would replace current subsection 418(3) in relation to the requirements for a notice of proposed suspension. As such, the effect of this item would be to refer to a notice relating to a proposed suspension under new subsection 435A(1) instead of in accordance with subsection 418(3) of the Act. 86. The purpose of this item, together with items 8 and 11 of this Schedule, is to streamline existing notice requirements in relation to a proposed variation, suspension or revocation of an approved arrangement by consolidating these requirements into a single provision. New section 435A would give flexibility for the relevant Director to issue either a single notice in relation to one or more of these proposed outcomes, or a notice that relates only to a proposed suspension. Item 6 Subsections 418(3) and (4) 87. This item would repeal subsections 418(3) and (4) of the Act. 88. Subsection 418(3) currently sets out the requirements of a notice of proposed suspension, including that the notice must be in writing, specify the grounds for proposed suspension, request the biosecurity industry participant to show cause within 14 days why the arrangement should not be suspended, and include a statement about the biosecurity industry participant's right to seek review of a decision to suspend the arrangement. 18

89. This subsection would be replaced by new subsection 435A(2) inserted by item 11 of this Schedule, which sets out the requirements for the contents of a notice given under new subsection 435A(1). The requirements for a notice given under new subsection 435A(1) are substantively the same as those that currently apply to a notice of proposed suspension provided for in current subsection 418(3) of the Act. 90. Subsection 418(4) currently provides that a notice of proposed suspension under subsection 418(2) is not required to include the request referred to in paragraph 418(3)(c) to show cause within 14 days why the arrangement should not be suspended, if the relevant Director is satisfied that the grounds for the suspension are serious and urgent. 91. This subsection would be replaced by new subsection 435A(3), which provides that the notice does not need to include an invitation for written submissions within 14 days if the relevant Director is satisfied that the grounds are serious and urgent. The exemption from the requirement to invite written submissions within 14 days in new subsection 435A(3) would be substantively the same as that currently provided in current subsection 418(4) of the Act. 92. As such, following the introduction of the new streamlined notice requirements in subsections 435A(2) and (3) that apply to proposed variations, suspensions and revocations, subsections 418(3) and (4) which apply only to a notice of proposed suspension would be redundant and could be repealed. Item 7 Paragraph 420(2)(a) 93. Section 420 provides for the day on which a suspension of an approved arrangement, or a part of an approved arrangement, takes effect, and the period of suspension of an approved arrangement. 94. This item would repeal and substitute paragraph 420(2)(a) of the Act. The effect of new paragraph 420(2)(a) would be that if the biosecurity industry participant was given a notice under subsection 435A(1) that included the invitation referred to in paragraph 435A(2)(d), the suspension must not take effect before the end of 14 days after the notice is given. 95. The effect of this amendment would be to refer to new section 435A of the Act (notice of proposed variation, suspension or revocation) inserted by item 11 of this Schedule, instead of referring to a notice under subsection 418(2) that included the request referred to in paragraph 418(3)(c) of the Act. This would be a consequential amendment to item 6 of this Schedule, which repeals subsection 418(3) of the Act. 96. The request referred to in paragraph 418(3)(c) to give a written statement showing cause why the arrangement should not be suspended would be replaced with new paragraph 435A(2)(d) which invites the biosecurity industry participant to give a written submission in relation to the notice of proposed variation, suspension or revocation. 19

Item 8 Subsection 423(2) 97. Section 423 provides that the relevant Director may revoke an approved arrangement on certain specified grounds. 98. This item would omit the words "in accordance with subsection (3)" and substitute "under subsection 435A(1)" in subsection 423(2) of the Act. Subsection 423(2), as amended, would provide that the relevant Director must not revoke an approved arrangement unless the Director has given a notice to the biosecurity industry participant covered by the arrangement under subsection 435A(1). 99. New subsection 435A(1) inserted by item 11 of this Schedule would provide for a notice of proposed variation, suspension or revocation to be given to a biosecurity industry participant. Subsection 435A(1) would replace current subsection 423(3) in relation to the requirements for a notice of proposed revocation. As such, the effect of this item would be to refer to a notice relating to a proposed revocation under new subsection 435A(1) instead of in accordance with subsection 423(3) of the Act. 100. This purpose of this item, together with items 5 and 11 of this Schedule, is to streamline existing notice requirements in relation to a proposed variation, suspension or revocation of an approved arrangement by consolidating these requirements into a single provision. New section 435A would give flexibility for the relevant Director to issue either a single notice in relation to one or more of these proposed outcomes, or a notice that relates only to a proposed revocation. Item 9 Subsections 423(3) and (4) 101. This item would repeal subsections 423(3) and (4) of the Act. 102. Subsection 423(3) currently sets out the requirements of a notice of proposed revocation, including that the notice must be in writing, specify the grounds for proposed revocation, request the biosecurity industry participant to show cause within 14 days why the arrangement should not be revoked, and include a statement about the biosecurity industry participant's right to seek review of a decision to revoke the arrangement. 103. This subsection would be replaced by new subsection 435A(2) inserted by item 11 of this Schedule, which sets out the requirements for the contents of a notice given under new subsection 435A(1). The requirements for a notice given under new subsection 435A(1) are substantively the same as those that currently apply to a notice of proposed revocation provided for in current subsection 423(3) of the Act. 104. Subsection 423(4) currently provides that a notice of proposed revocation under subsection 423(2) is not required to include the request referred to in paragraph 423(3)(c) to show cause within 14 days why the arrangement should not be revoked, if the relevant Director is satisfied that the grounds for the revocation are serious and urgent. 105. This subsection would be replaced by new subsection 435A(3), which provides that the notice does not need to include an invitation for written submissions within 14 days if 20

the relevant Director is satisfied that the grounds are serious and urgent. The exemption from the requirement to invite written submissions within 14 days in new subsection 435A(3) would be substantively the same as that currently provided in current subsection 423(4) of the Act. 106. As such, following the introduction of the new streamlined notice requirements in subsections 435A(2) and (3) that apply to proposed variations, suspensions and revocations, subsections 423(3) and (4) which apply only to a notice of proposed revocation would be redundant and could be repealed. Item 10 Paragraph 425(2)(a) 107. Section 425 provides for the day on which a revocation of an approved arrangement takes effect. 108. This item would repeal and substitute paragraph 425(2)(a) of the Act. New paragraph 425(2)(a) would provide, in effect, that if the biosecurity industry participant was given a notice under subsection 435A(1) that included the invitation referred to in paragraph 435A(2)(d), the revocation must not take effect before the end of 14 days after the notice is given. 109. The effect of this amendment would be to refer to new section 435A of the Act (notice of proposed variation, suspension or revocation) inserted by item 11 of this Schedule, instead of referring to a notice under subsection 423(2) that included the request referred to in paragraph 423(3)(c) of the Act. This would be a consequential amendment to item 9 of this Schedule, which repeals subsection 423(3) of the Act. 110. The request referred to in paragraph 423(3)(c) to give a written statement showing cause why the arrangement should not be revoked would be replaced with new paragraph 435A(2)(d) which invites the biosecurity industry participant to give a written submission in relation to the notice of proposed variation, suspension or revocation. Item 11 After Division 1 of Part 7 of Chapter 7 111. This item would insert new Division 1A in Part 7 of Chapter 7 of the Act. New Division 1A relates to a notice of proposed variation, suspension or revocation. 112. The purpose of new Division 1A of Part 7 of Chapter 7 is to provide for a streamlined process for giving notice of a proposed variation, suspension or revocation of an approved arrangement by consolidating these requirements into a single provision. New Division 1A would consolidate the notice requirements that are currently included in Division 2 of Part 4 of Chapter 7 in relation to a notice of proposed suspension and Division 2 of Part 5 of Chapter 7 in relation to a notice of proposed revocation. The notice requirements would also apply to a proposed variation. There are currently no notice requirements in relation to an intention to vary a condition of an approved arrangement or require a variation to an approved arrangement in Part 3 of Chapter 7 of the Act, so this is a newly introduced procedural fairness requirement for variations required by the relevant Director. 21

113. New section 435A would be the only provision in new Division 1A of Part 7 of Chapter 7 of the Act. 114. New subsection 435A(1) would provide that for the purposes of subsection 413(3), 418(2) or 423(2), the relevant Director must give the biosecurity industry participant covered by an approved arrangement a notice before doing one of the following things: a) varying under paragraph 413(1)(a) the conditions of the approved arrangement (including by imposing new conditions); b) requiring under paragraph 413(1)(b) the biosecurity industry participant to vary the approved arrangement; c) suspending under subsection 418(1) the approved arrangement or a part of the approved arrangement; d) revoking under subsection 423(1) the approved arrangement. 115. The purpose of new section 435A is to provide for a single consolidated provision setting out the requirements for a notice of a proposed variation, suspension or revocation for the purposes of the following provisions: a) subsection 413(3) (inserted by item 2 of this Schedule), which provides that the relevant Director must not give a notice to a biosecurity industry participant under subsection 413(1) varying the conditions of an approved arrangement, or requiring the biosecurity industry participant to vary the arrangement on a specified ground, unless the Director has given prior notice to the biosecurity industry participant under subsection 435A(1); b) subsection 418(2) (as amended by item 5 of this Schedule), which provides that the relevant Director must not suspend an approved arrangement, or part of an approved arrangement, on a specified ground unless the Director has given prior notice to the biosecurity industry participant covered by the arrangement under subsection 435A(1); c) subsection 423(2) (as amended by item 8of this Schedule), which provides that the relevant Director must not revoke an approved arrangement on a specified ground unless the Director has given prior notice to the biosecurity industry participant covered by the arrangement under subsection 435A(1). 116. Subsection 435A(1) would make clear that the requirements for the content of the notice set out in section 435A apply in relation to a proposed variation, suspension or revocation of an approved arrangement. 117. The notice requirements in new section 435A would ensure that procedural fairness is afforded to the biosecurity industry participant, allowing the biosecurity industry participant the opportunity to understand the grounds on which the relevant Director is considering taking action and, in most circumstances, to respond with a written submission as to why the arrangement should not be varied, suspended or revoked. This allows the relevant Director to decide on the most appropriate response to the alleged conduct after fully investigating the alleged conduct. 118. Currently under the Act, if the relevant Director issues a notice proposing to revoke an approved arrangement, the relevant Director cannot then decide after considering written submissions to suspend the approved arrangement without issuing a further 22

notice in relation to the proposed suspension and waiting a further 14 days for written submission in relation to the same conduct. This limits the Department's ability to respond proportionately and in a timely manner to alleged conduct after it has received a response from the biosecurity industry participant. 119. The proposed amendments would allow flexibility for a single notice to be issued in relation to one or more of the proposed outcomes seeking further information about the alleged conduct, such that the appropriate outcome can be determined after receiving the biosecurity industry participant's written submissions, and without requiring a further notice to be sent in relation to the same conduct. It would also be possible for the relevant Director to issue a notice that proposes only one possible outcome, for example, a notice of proposed variation that does not also state that the relevant Director is considering suspending or revoking the approved arrangement. 120. As with the current requirements to provide notice for a proposed suspension or revocation in Parts 4 and 5 of the Act, the decision to give notice under new section 435A inserted by this item would not itself be subject to merits review. This is because a decision to give notice of a proposed variation, suspension or revocation would be a preliminary decision that facilitates the making of a substantive decision whether to vary, suspend or revoke the approved arrangement. Such a decision to vary, suspend or revoke is a reviewable decision under section 574 of the Act (see table items 26, 27, 29 and 31 in subsection 574(1) of the Act). Contents of notice 121. Subsection 435A(2) would provide for the required contents of a notice under subsection 435A(1) of the Act. These requirements are that the notice must: a) be in writing (paragraph 435A(2)(a)); b) state the thing or things covered by subsection 435A(1) that the relevant Director is considering doing (paragraph 435A(2)(b)); c) state the reasons for the relevant Director giving the notice (paragraph 435A(2)(c)); d) invite the biosecurity industry participant to give the relevant Director, within 14 days after the notice is given to the biosecurity industry participant, a written submission in relation to the notice (paragraph 435A(2)(d)) - this requirement is subject to new subsection 435A(3), which provides, as set out below, that this invitation is not required where the grounds are serious and urgent; and e) include a statement setting out the biosecurity industry participant's right to seek review of a decision of the relevant Director to do a thing covered by subsection 435A(1) (paragraph 435A(2)(e)). 122. The requirements for a notice given under new subsection 435A(1) would be substantively the same as those that currently apply to a notice of proposed suspension provided for in current subsection 418(3) and a notice of proposed revocation provided for in current subsection 423(3) of the Act. 123. Subsection 435A(3) would provide that a notice under subsection 435A(1) is not required to include the invitation referred to in paragraph 435A(2)(d) in relation to a 23

thing covered by subsection 435A(1) if the relevant Director is satisfied that the grounds for doing that thing are serious and urgent. 124. The exemption in proposed new subsection 435A(3) on serious and urgent grounds would be substantively the same as that currently provided for in current subsection 418(4) in relation to a notice of proposed suspension and current subsection 423(4) in relation to a notice of proposed revocation. The intention is that the exemption may apply to only one of the things that the relevant Director is considering doing (for example, suspending the approved arrangement) while still inviting a written submission within 14 days for another thing that the relevant Director is considering doing in the longer term (for example, varying the approved arrangement). 125. A decision to give notice without including the invitation referred to in paragraph 435A(2)(d) where the grounds are serious and urgent would not itself be subject to merits review. This is because a decision to give notice of a proposed variation, suspension or revocation would be an interim step that must be taken before a substantive decision to vary, suspend or revoke the approved arrangement is made. Such a decision to vary, suspend or revoke is a reviewable decision under section 574 of the Act (see table items 26, 27, 29 and 31 in subsection 574(1) of the Act). Allowing merits review of the interim decision to give prior notice of a proposed variation, suspension or revocation would frustrate the decision-making process and prevent the relevant Director from acting quickly and decisively to manage serious or urgent biosecurity risks in a timely manner. This maintains the same approach as the current requirements to provide notice for a proposed suspension or revocation in Parts 4 and 5 of the Act, which also include the same exemption to the request to show cause within 14 days why the arrangement should not be suspended or revoked (see current subsection 418(4) and 423(4)). 126. Subsection 435A(4) provides that if the relevant Director gives a biosecurity industry participant a notice under subsection 435A(1), the relevant Director may do more than one thing covered by subsection 435A(1) in connection with the giving of that notice. 127. There is an example in subsection 435A(4) which explains that if the relevant Director gives a biosecurity industry participant a notice under subsection 435A(1) stating the relevant Director is considering suspending and revoking the approved arrangement, the relevant Director may decide to immediately suspend the approved arrangement (without inviting the biosecurity industry participant to give a written submission) if satisfied that the grounds for the suspension are serious and urgent. In this case, a notice of the relevant Director's decision to suspend the approved arrangement must still be given under section 419 of the Act. If the relevant Director has invited the biosecurity industry participant to give a written submission in relation to the revocation, the relevant Director may subsequently decide to revoke the arrangement. In practice, this may be necessary in a situation where there is an immediate need to address a situation by suspending the approved arrangement by giving notice under section 419 because the grounds for giving notice are serious and urgent, while also allowing the relevant Director to consider any written submissions received in response to the notice within 14 days in order to decide whether to take further action before the period of suspension ends. 24

128. Subsection 435A(5) provides that the relevant Director may give a biosecurity industry participant a notice in writing that reprimands the biosecurity industry participant for a matter specified in the notice if the relevant Director has given the biosecurity industry participant a notice under subsection 435A(1) and has not done any of the things covered by subsection 435A(1) in connection with the giving of the notice under subsection 435A(1) of the Act. 129. This amendment provides for a possible alternative sanction that may be appropriate for conduct such as contravening a condition of the approved arrangement if, after receiving a written submission in response to the relevant Director's invitation, a variation, suspension or revocation of the arrangement is not necessary or appropriate. The reprimand would put the biosecurity industry participant on notice in relation to their future conduct and could be taken into account if further action is taken against the biosecurity industry participant for breaches in the future. The reprimand would be communicated to the biosecurity industry participant in confidence by written notice. 130. A decision to reprimand a biosecurity industry participant would not itself be subject to independent review, as there are no immediate consequences to the biosecurity industry participant of such a decision. Any subsequent decision to vary, suspend or revoke an approved arrangement in relation to future conduct which takes into account a past reprimand would be a reviewable decision under section 573 of the Act such that the decision would be reviewable internally and by the Administrative Appeals Tribunal. Item 12 Application provisions 131. This item provides for the application of the amendments in Schedule 2 to the Bill. 132. Subitem 12(1) provides that the amendment of section 413 of the Act made by Schedule 2 applies in relation to a proposal to give a notice under paragraph 413(1)(a) or (b) of the Act on or after commencement of this item. 133. Subitem 12(2) provides that the amendments of section 415 of the Act made by Schedule 2 apply in relation to a notice under paragraph 413(1)(a) of the Act that is given on or after the commencement of this item. 134. These subitems make clear that the amendments to introduce a proposed notice of variation, suspension or revocation would apply in relation to a proposed decision to vary the conditions of an approved arrangement or to require the biosecurity industry participant to vary the approved arrangement made on or after commencement. 135. Subitem 12(3) provides that the amendments of sections 418 and 420 of the Act made by Schedule 2 apply in relation to a proposed suspension of an approved arrangement, or a part of an approved arrangement, on or after the commencement of this item, where no notice had been given under subsection 418(2) of the Act before that commencement in relation to that proposed suspension. 136. Subitem 12(4) provides that the amendments of section 423 and 425 of the Act made by Schedule 2 apply in relation to a proposed revocation of an approved arrangement on or after the commencement of this item, where no notice had been given under subsection 423(2) of the Act before that commencement in relation to that proposed revocation. 25

137. These subitems make clear that the amendments relating to a proposed suspension or revocation do not apply where a notice of proposed suspension or revocation had already been given before commencement. 26

SCHEDULE 3--Civil Penalty Provisions Background 138. Part 6 of Chapter 9 of the Act provides for the enforcement of civil penalty provisions in the Act under Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act). Civil penalty orders may be sought under Part 4 of the Regulatory Powers Act from a relevant court in relation to contraventions of civil penalty provisions. 139. Chapter 2 of the Act provides for the management of biosecurity risks in relation to human health. Schedule 3 to the Bill would increase the maximum civil penalty for a number of civil penalty provisions in Parts 2 and 4 of Chapter 2 of the Act. These provisions relate to requirements for entering and exiting Australian territory (subsections 46(1)-(3)), preventative biosecurity measures relating to listed human diseases (section 52), managing deceased individuals and human remains (subsections 110(6), 111(3) and 112(4)) and human health response zone requirements (section 116). Some of these civil penalty provisions apply to regulated entities, such as the operator of an aircraft or vessel that arrive in Australian territory, and these individuals and bodies corporate should reasonably be aware of their obligations under the Act. The targeted increase to the civil penalties in this Schedule will allow the Australian Government to respond proportionately to those individuals and operators who are non- compliant with important human biosecurity requirements and should be aware of their obligations under the Biosecurity Act. Particularly in the context of human biosecurity emergencies, individual and operator awareness of obligations should be heightened, where requirements are made clear on multiple Departmental websites, announced in the media, and where information is distributed to responsible bodies through industry notices. 140. A "listed human disease" is defined in section 42 of the Act as a human disease determined by the Director of Human Biosecurity in a legislative instrument that the Director considers may be communicable and cause significant harm to human health. 141. The objective of increasing the maximum civil penalty under the provisions listed above would be to provide stronger deterrence to future non-compliance with these provisions. The current civil penalty amounts for contraventions of certain key requirements relating to the assessment and management of human biosecurity risks no longer serve as a proportionate deterrent against non-compliance in the face of growing human biosecurity threats. The increased penalties reflect the seriousness of non- compliance with Australia's human biosecurity laws and the impact that contraventions may have on Australia's human health, and the consequential effects on Australia's economy and public health systems. The ongoing evolution of communicable diseases in the world poses a high risk to Australia's human biosecurity, and the increased penalties seek to address this risk. 142. Chapter 7 of the Act provides for approved arrangements. This includes provisions relating to biosecurity industry participants. Schedule 3 to the Bill would increase the maximum civil penalty for a number of civil penalty provisions in Part 7 of Chapter 7 which relate to knowingly providing false or misleading information or documents to a biosecurity industry participant. 27

143. Chapter 9 of the Act provides for compliance and enforcement under the Act. Schedule 3 to the Bill would amend a number of civil penalty provisions in Part 10 of Chapter 9 of the Act which relate to knowingly providing false or misleading information or documents in compliance or purported compliance with the Act. 144. The proposed increases to civil penalties in relation to false and misleading information and documents are intended to better reflect the seriousness of the contravening conduct. Contraventions can have a significant negative impact on the environment, animal and plant health, human health, and the economy. 145. The increase to civil penalties proposed to be made by Schedule 3 to this Bill are intended to provide for more proportionate and appropriate penalties for contraventions of the Act than the current penalties regime. The increased penalties would be commensurate with the potential harm that could be caused as a result of the contravening conduct and are intended to deter non-compliance with the requirements of the Act. It is important that civil penalties are set at a level that means the penalty is not perceived as a cost of doing business or otherwise worth the risk. 146. If the person who is liable to a civil penalty is a body corporate, the maximum penalty that a court may order the person to pay must not be more than 5 times the penalty amount specified for the civil penalty provision (see subsection 82(5) of the Regulatory Powers Act, as enlivened by section 519 of the Act). 147. This Schedule also makes a minor technical amendment to paragraph 439(1)(c) of the Act to clarify its intent. Part 1--Increased civil penalties Item 1 Subsection 46(1) (penalty) 148. This item would omit "30 penalty units", and substitute "150 penalty units" in subsection 46(1) of the Act. 149. Subsection 46(1) of the Act provides for a civil penalty provision that applies where an individual to whom a requirement determined under section 44 of the Act (entry requirements) applies does not comply with the requirement. The civil penalty provision in subsection 46(1) of the Act currently carries a maximum civil penalty of 30 penalty units. This item would increase the maximum civil penalty that a court can impose under subsection 46(1) to 150 penalty units. 150. Section 44 allows the Health Minister to determine one or more requirements for individuals or classes of individual who are entering Australian territory at a landing place or port, for the purpose of preventing a listed human disease from entering, or establishing itself or spreading in, Australian territory or a part of Australian territory. 151. Entry requirements under the Act are a key part of the human biosecurity management framework through preventing the entry into Australian territory of risks to human health. Section 44 of the Act implements a key mechanism of Member States under the World Health Organization's International Health Regulations (2005) (International 28

Health Regulations) to which Australia is a party, which is to set conditions that must be satisfied for travellers to enter Australia. It is important that the civil penalty for non- compliance with section 44 acts as a significant deterrent to ensure the Australian public is protected against public health risk and harm, and to ensure that Australia upholds its obligations under the International Health Regulations, namely, to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade. 152. The proposed increase to the civil penalty amount is intended to achieve the necessary deterrent effect for non-compliance with the Act commensurate to the public health risk of contravention. The increased penalty is appropriate to reflect the seriousness of the contravention. Item 2 Subsection 46(2) (penalty) 153. This item would omit "30 penalty units", and substitute "1000 penalty units" in subsection 46(2) of the Act. 154. Subsection 46(2) of the Act provides for a civil penalty provision that applies where an operator of an outgoing passenger aircraft or vessel to whom a requirement under paragraph 45(6)(c) of the Act (manner of treating aircraft or vessel) applies does not comply with the requirement. The civil penalty provision in subsection 46(2) of the Act currently carries a maximum civil penalty of 30 penalty units. This item would increase the maximum civil penalty that a court can impose under subsection 46(2) to 1000 penalty units. 155. Paragraph 45(2)(b) of the Act allows the Health Minister to determine one or more requirements for operators of outgoing passenger aircraft or vessels. Paragraph 45(6)(c) of the Act allows the Health Minister to determine a requirement for an operator of an outgoing passenger aircraft or vessel to treat the aircraft or vessel in a specified manner. 156. The increased civil penalty of 1,000 penalty units applying to operators would be consistent with the increased penalty under subsection 48(1) of the Act introduced by Schedule 2 to the Biosecurity Amendment (Strengthening Biosecurity) Act 2022 that applies to operators of incoming aircrafts or vessels who contravene requirements in relation to the granting of pratique. 157. The proposed increase to the civil penalty represents a proportionate increase for operators of outgoing passenger aircraft or vessels whose obligations under the Act remain unchanged. An abundance of information is available on various Australian Government websites regarding their obligations under the Biosecurity Act. It is expected operators understand the requirements they must comply with under the Biosecurity Act. Any decision made by the Health Minister under section 45(6)(c) of the Biosecurity Act that affects operators will be communicated as quickly and clearly as possible in the circumstance. Operators have the necessary resources to seek further advice on their obligations under the Act. 158. A civil penalty of 1,000 penalty units recognises the serious consequences posed by the potential outgoing spread and transmission of a listed human disease from Australian 29

territory. Every Member State under the International Health Regulations, including Australia, has a responsibility to do all things possible to prevent the international spread of disease. An increase to this civil penalty would ensure it is proportionate to the seriousness of the contravention and would strongly convey the importance of an operator's compliance with requirements which are intended to keep all other countries safe from disease and uphold Australia's international obligations. The increased civil penalty reflects the serious risk presented by a scenario where a commercial operator of an aircraft or vessel fails to treat their vessel or aircraft as required for publicity reasons. It is intended to deter those who may consider non-compliance as a cost of doing business or to limit negative publicity for the airline or vessel, ignoring the potential cost to human health. When the most significant consequence of non- compliance is potential human death, a civil penalty of 1,000 penalty units is proportionate, and will appropriately act as a significant deterrent. 159. Similar to subsection 48(1) (which has a maximum civil penalty amount of 1,000 penalty units), the civil penalty provision in subsection 46(2) applies only to the operator of an outgoing aircraft or vessel. As such, the increased penalty will apply to a regulated entity which, given their activities and business, should reasonably be expected to have a thorough understanding of their responsibilities and obligations under the Act. Item 3 Subsection 46(3) (penalty) 160. This item would omit "30 penalty units", and substitute "150 penalty units" in subsection 46(1) of the Act. 161. Subsection 46(3) of the Act provides for a civil penalty provision that applies where an individual to whom a requirement under paragraph 45(6)(d), (e), (f), (g) or (h) of the Act (exit requirements) applies does not comply with the requirement. The civil penalty provision in subsection 46(3) of the Act currently carries a maximum civil penalty of 30 penalty units. This item would increase the maximum civil penalty that a court can impose under subsection 46(3) to 150 penalty units. 162. Paragraph 45(2)(a) of the Act allows the Health Minister to determine one or more requirements for individuals or classes of individual who are leaving Australian territory at a landing place or port. Paragraphs 45(6)(d) to (h) of the Act list specific requirements that the Health Minister may specify in the determination. These include a requirement for the individual to provide a declaration or evidence as to whether they have received a specified vaccination or other prophylaxis, or of where the individual has been before leaving Australian territory; to complete a questionnaire relating to the individual's health; to provide a declaration in relation to a specified listed human disease; or to be screened (whether by requiring the individual to be screened by equipment, by providing a declaration, or in any other way). 163. Exit requirements have an important place in the human biosecurity management framework. Exit requirements are put in place to keep other countries, which travellers from Australia may visit, safe from diseases that may be present in Australia. Compliance with these requirements is key to the effectiveness of the measures in keeping other countries safe from disease and the broader impacts of disease outbreak. It is important that the civil penalty is high enough to deter non-compliance, especially 30

given that the consequences for contravening exit requirements could devastate low resource countries if it results in the onward spread of a communicable disease across the globe. The proposed increase to the maximum civil penalty would better reflect the serious harm that can be caused by non-compliance with exit requirements by individuals. Item 4 Section 52 (penalty) 164. This item would omit "120 penalty units", and substitute "150 penalty units" in section 52 of the Act. 165. Section 52 of the Act provides for a civil penalty provision that applies where a person to whom a biosecurity measure specified in accordance with subsection 51(2) applies does not comply with the biosecurity measure. The civil penalty provision in section 52 of the Act currently carries a maximum civil penalty of 120 penalty units. This item would increase the maximum civil penalty that a court can impose under section 52 to 150 penalty units. 166. Subsection 51(2) of the Act allows the Health Minister to make a determination that specifies any one or more of certain biosecurity measures to be taken by specified classes of persons, such as banning or restricting a behaviour or practice, or requiring a behaviour or practice. 167. The proposed increase to the maximum civil penalty is needed to ensure there is a sufficient incentive to comply with preventative biosecurity measures. Preventative biosecurity measures are a key feature in the human biosecurity management framework. Compliance with these measures is key to their effectiveness in appropriately managing the risk of a listed human disease entering, or emerging, establishing itself or spreading in, Australian territory or a part of Australian territory. A failure to comply with a preventative biosecurity measure in accordance with subsection 51(2) of the Act has the potential to cause harm to human health. 168. Listed human diseases entering, or emerging, establishing itself or spreading in, Australian territory or a part of Australian territory, can result in severe illness and death. The proposed increase to the civil penalty amount is intended to achieve the necessary deterrent effect for non-compliance with the Act and is appropriate to reflect the seriousness of the contravention. Item 5 Subsections 110(6), 111(3) and 112(4) (penalty) 169. This item would omit "30 penalty units", and substitute "120 penalty units" in subsections 110(6), 111(3) and 112(4) of the Act. 170. Subsection 110(6) of the Act provides for a civil penalty provision that applies where a person to whom a requirement under subsection 110(2) applies does not comply with the requirement. The civil penalty provision in subsection 110(6) of the Act currently carries a maximum civil penalty of 30 penalty units. This item would increase the maximum civil penalty that a court can impose under subsection 110(6) to 120 penalty units. 31

171. Subsection 110(2) of the Act allows the Director of Human Biosecurity to specify in writing, classes of human remains, and the requirements for bringing human remains into Australian territory or managing human remains in those classes after bringing them into Australian territory. 172. Subsection 111(3) of the Act provides for a civil penalty provision where a person to whom a direction for managing human remains is given under section 111 does not comply with the direction. The civil penalty provision in subsection 111(3) of the Act currently carries a maximum civil penalty of 30 penalty units. This item would increase the maximum civil penalty that a court can impose under subsection 111(3) to 120 penalty units. 173. Section 111 of the Act allows a biosecurity officer, human biosecurity officer or chief human biosecurity officer, to give a written direction for managing specified human remains to the person who is responsible for the human remains, if: a) the officer is satisfied that those remains are likely to be infected with a listed human disease (whether the remains were brought into Australian territory as mentioned in section 110, or were already in Australian territory); or b) a person did not comply with a requirement specified under subsection 110(2) in relation to those remains. 174. Subsection 112(4) of the Act provides for a civil penalty provision where a person to whom a requirement under subsection 112(1) applies does not comply with the requirement. The civil penalty provision in subsection 112(4) of the Act currently carries a maximum civil penalty of 30 penalty units. This item would increase the maximum penalty that a court an impose under subsection 112(4) to 120 penalty units. 175. Subsection 112(1) of the Act allows the Director of Human Biosecurity to specify, in writing, requirements for classes of persons who bring into Australian territory, or who manage, the bodies of deceased individuals who die in transit before arriving in Australian territory or on arrival in Australian territory. 176. Human remains or individuals who have died in transit or on arrival in Australian territory, could be infected with serious infectious diseases including listed human diseases and emerging infectious diseases of international concern. Diseases such as Ebola virus disease can be transmitted from deceased individuals to living persons. It is important that human remains or the remains of a person who has died in transit or on arrival, are transported, handled and managed in accordance with requirements under the Act to minimise risk of any potential infection being transmitted to living persons. Although the risk of this is low and relevant to specific circumstances such as viral haemorrhagic fevers or leakage of infections material from a poorly sealed container containing human remains, the consequences of infection are extremely high. The proposed increases to the civil penalty provisions reflect the serious harm that can result from non-compliance with requirements relating to human remains and the remains of individuals who die in transit or on arrival, and are appropriate to reflect the seriousness of the contravention. Item 6 Section 116 (penalty) 32

177. This item would omit "30 penalty units", and substitute "120 penalty units" in section 116 of the Act. 178. Section 116 of the Act provides for a civil penalty provision that applies where a person to whom a requirement in a determination made under section 113 (human health response zone) applies does not comply with the requirement. The civil penalty provision in section 116 currently carries a maximum civil penalty of 30 penalty units. This item would increase the maximum civil penalty that a court can impose under section 116 to 120 penalty units. 179. Section 113 of the Act allows the Director of Human Biosecurity to determine that a specified area within a State or Territory is a human health response zone if the Director is satisfied that it is necessary to do so for the purposes of preventing, or reducing the risk of, a listed human disease emerging, establishing itself or spreading in Australian territory or a part of Australian territory. The determination must specify: a) the listed human disease to which the determination relates; and b) either or both of the following: i. any requirements for individuals who are entering or leaving the zone; ii. a requirement that specified classes of individuals must not enter the zone; and c) the period during which the determination is in force, which must not be more than 3 months. 180. Human health response zones are a key part of the human biosecurity management framework, particularly during the early stages of a human health emergency or event. Human health response zones may be used to manage incidents such as localised disease outbreaks or a laboratory hazard. They are important for the legitimate objective of preventing, or reducing the risk of, a listed human disease emerging, establishing or spreading in Australian territory. A human health response zone determination may specify various entry or exit requirements for individuals entering or leaving the zone. Therefore, non-compliance may be seen as the cost for freedom, or otherwise worth the risk. It is critical that a significant civil penalty is available for non- compliance with the provisions relating to human health response zones to achieve the necessary deterrent effect. The consequences of non-compliance could mean a widespread outbreak of a disease, leading to a pandemic in Australia. The proposed increase to the maximum civil penalty reflects the serious harm to human health that can result from non-compliance with requirements under a human health response zone determination. Item 7 Subsections 438(1) and 439(1) (penalty) 181. This item would omit "120 penalty units", and substitute "600 penalty units" in subsections 438(1) and 439(1) of the Act. 182. Subsection 438(1) of the Act provides for a civil penalty provision where a person gives information to a biosecurity industry participant and does so knowing that the information is false or misleading or omits any matter or thing without which the information is misleading. Subsections 438(2) and (3) provide that subsection 438(1) does not apply if the information: 33

a) is not false or misleading in a material particular; or b) did not omit any matter or thing without which the information would be misleading in a material particular. 183. The civil penalty provision in subsection 438(1) currently carries a maximum civil penalty of 120 penalty units. This item would increase the maximum civil penalty that a court can impose under subsection 532(1) to 600 penalty units. 184. The term "biosecurity industry participant" is defined in section 14 of the Act and means a person who is the holder of the approval of an approved arrangement (including a person to whom an approved arrangement has been transferred in the circumstances prescribed by the Regulation). 185. Chapter 7 of the Act enables the Director of Biosecurity or the Director of Human Biosecurity 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. 186. Section 438 ensures that persons who are required to give information to a biosecurity industry participant do not provide, or omit to provide, information which is false or misleading in a material particular. The proposed increase to the civil penalty amount is intended to achieve the necessary deterrent effect for non-compliance with the Act. The increase to the penalty amount is appropriate to reflect the seriousness of the contravention and to seek to deter non-compliance with the provision. 187. Subsection 439(1) of the Act provides for a civil penalty provision where a person produces a document to a biosecurity industry participant and does so knowing that the document is false or misleading. Subsections 439(2) and (3) provide that subsection 439(1) does not apply if the document is not false or misleading in a material particular. 188. The civil penalty provision in subsection 439(1) currently carries a maximum civil penalty of 120 penalty units. This item would increase the maximum civil penalty that a court can impose under subsection 439(1) to 600 penalty units. 189. Section 439 ensures that persons who are required to produce a document to a biosecurity industry participant do not provide a document which is false or misleading in a material particular. The proposed increase to the civil penalty amount is intended to achieve the necessary deterrent effect for non-compliance with the Act. The increase to the penalty amount is appropriate to reflect the seriousness of the contravention and to seek to deter non-compliance with the provision. 190. Accurate and complete information is key in assessing and managing biosecurity risk. Providing false or misleading information or documents could jeopardise Australia's agricultural industry through a biosecurity threat potentially entering, spreading and establishing itself within Australia. 34

191. The proposed increase to the civil penalty amounts in subsections 438(1) and 439(1) will provide a pecuniary penalty range that allows for greater flexibility in seeking a penalty amount that can be adjusted to reflect seriousness of conduct relative to different regulated entities or individuals. A lower amount may be sought in response to one-off contraventions of these provisions by regulated entities or individuals who do not have any history of previous non-compliance. A higher amount may be sought to be imposed against regulated entities or individuals that have a history of non-compliance. 192. The Commonwealth may apply to a court to impose a higher penalty amount in situations where a regulated entity or other individual attempts to obtain significant commercial gain by knowingly providing false or misleading information. 193. It is appropriate for higher penalties to apply to these provisions than under the current penalty regime, as businesses are provided with information about, and are generally expected to have a sound knowledge of, their responsibilities under the Act. Further, individuals arriving in Australia are provided with a wide range of information about biosecurity requirements, so should be aware of their responsibilities under the Act as well. The operator of an incoming aircraft or vessel entering Australia must ensure that information on Australia's biosecurity requirements is provided to each person (including crew) on board the aircraft or vessel before it arrives at a landing place or port. This information may be given verbally or in writing, including by means of an audio, or audio-visual, recording and is published in multiple languages. All international travellers arriving in Australia must also complete an incoming passenger card (IPC), which contains information on biosecurity requirements that a person must comply with. The IPC is published in multiple different languages. Regulated entities, such as importers or biosecurity industry participants who are authorised to carry out biosecurity activities in accordance with an approved arrangement, have a responsibility to know and understand their obligations under the Biosecurity Act. 194. The civil penalty provisions in subsections 438(1) and 439(1) are subject to the infringement notice scheme under the Act. Therefore, it is possible for an enforcement officer to issue an infringement notice to a person for an alleged contravention of either of these subsections, allowing that person to pay an infringement notice amount capped at 12 penalty units for these subsections. Notwithstanding the increases to the penalty amounts in these subsections, it remains appropriate to continue to include these subsections in the infringement notice scheme under the Act as it allows reasonable flexibility in managing non-compliance. For example, where a person is alleged to have contravened either of these subsections, it gives options to a biosecurity officer to assess the seriousness of the alleged conduct in relation to the person on a case by case basis. For example, where a person has no history of non-compliance with biosecurity laws, it may be considered appropriate to issue an infringement notice rather than to commence court proceedings. Item 8 Subsections 532(1) and 533(1) (penalty) 195. This item would omit "60 penalty units", and substitute "600 penalty units" in subsections 532(1) and 533(1) of the Act. 196. Subsection 532(1) of the Act provides for a civil penalty provision where a person gives information in compliance or purported compliance with the Act and does so 35

knowing that the information is false or misleading or omits any matter or thing without which the information is misleading. Subsections 532(2) and (3) provide that subsection 532(1) does not apply if the information: a) is not false or misleading in a material particular; or b) did not omit any matter or thing without which the information would be misleading in a material particular. 197. The civil penalty provision in subsection 532(1) currently carries a maximum civil penalty of 60 penalty units. This item would increase the maximum civil penalty that a court can impose under subsection 532(1) to 600 penalty units. 198. Section 532 ensures that persons who are required to give information under the Act do not provide, or omit to provide, information which is false or misleading in a material particular. The proposed increase to the civil penalty amount is intended to achieve the necessary deterrent effect for non-compliance with the Act. The increase to the penalty amount is appropriate to reflect the seriousness of the contravention and to seek to deter non-compliance with the provision. 199. Subsection 533(1) of the Act provides for a civil penalty provision where a person produces a document to another person in compliance or purported compliance with the Act and does so knowing that the document is false or misleading. Subsections 533(2) and (3) provide that subsection 533(1) does not apply if the document is not false or misleading in a material particular. 200. The civil penalty provision in subsection 533(1) currently carries a maximum civil penalty of 60 penalty units. This item would increase the maximum civil penalty that a court can impose under subsection 533(1) to 600 penalty units. 201. Section 533 ensures that persons who are required to produce a document to another person, including a biosecurity officer, under the Act do not provide a document which is false or misleading in a material particular. The proposed increase to the civil penalty amount is intended to achieve the necessary deterrent effect for non-compliance with the Act. The increase to the penalty amount is appropriate to reflect the seriousness of the contravention and to seek to deter non-compliance with the provision. 202. Accurate and complete information is key in assessing and managing biosecurity risk. Providing false or misleading information or documents could jeopardise Australia's agricultural industry through a biosecurity threat potentially entering, spreading and establishing itself within Australia. 203. The proposed increase to the civil penalty amounts in subsections 532(1) and 533(1) will provide a pecuniary penalty range that allows for greater flexibility in seeking a penalty amount that can be adjusted to reflect seriousness of conduct relative to different persons, including regulated entities. A lower amount may be sought in response to one-off contraventions of these provisions by persons who do not have any history of previous non-compliance. A higher amount may be sought to be imposed against persons that have a history of non-compliance. 36

204. The Commonwealth may apply to a court to impose a higher penalty amount in situations where a person attempts to obtain significant commercial gain by knowingly providing false or misleading information. For example, an importer may knowingly provide false or misleading information to the Agriculture Department to import goods that do not meet published import conditions. Adequately deterring such a person from looking to obtain a commercial advantage by knowingly providing false or misleading information or documents warrants the proposed increase to the civil penalty amount for these provisions. 205. It is appropriate for higher penalties to apply to these provisions than under the current penalty regime, as businesses are provided with information about, and are generally expected to have a sound knowledge of, their responsibilities under the Act. Further, individuals arriving in Australia are provided with a wide range of information about biosecurity requirements, so should be aware of their responsibilities under the Act as well. The operator of an incoming aircraft or vessel entering Australia must ensure that information on Australia's biosecurity requirements is provided to each person (including crew) on board the aircraft or vessel before it arrives at a landing place or port. This information may be given verbally or in writing, including by means of an audio, or audio-visual, recording and is published in multiple languages. All international travellers arriving in Australia must also complete an IPC, which contains information on biosecurity requirements that a person must comply with. The IPC is published in multiple different languages. Regulated entities, such as importers or biosecurity industry participants who are authorised to carry out biosecurity activities in accordance with an approved arrangement, have a responsibility to know and understand their obligations under the Biosecurity Act. 206. The proposed increase to the civil penalty amount will enable the legislation to keep pace with new and emerging biosecurity threats by providing an adequate deterrent effect against conduct that may result in pests and diseases entering Australia. 207. The civil penalty provisions in subsections 532(1) and 533(1) are subject to the infringement notice scheme under the Act. Therefore, it is possible for an enforcement officer to issue an infringement notice to a person for an alleged contravention of either of these subsections, allowing that person to pay an infringement notice amount capped at 12 penalty units for these subsections. Notwithstanding the increases to the penalty amounts in these subsections, it remains appropriate to continue to include these subsections in the infringement notice scheme under the Act as it allows reasonable flexibility in managing non-compliance. For example, where a person is alleged to have contravened either of these subsections, it gives options to a biosecurity officer to assess the seriousness of the alleged conduct in relation to the person on a case by case basis. For example, where a person has no history of non-compliance with biosecurity laws, it may be considered appropriate to issue an infringement notice rather than to commence court proceedings. Item 9 Application of amendments 208. This item would provide for application provisions which relate to the amendments proposed to be made to the Act by this Part. 37

209. Subitem 9(1) would provide that the proposed amendments of sections 46, 52, 110, 112 and 116 of the Act made by this Part apply in relation to conduct engaged in on or after the commencement of item 9 of Part 2 of Schedule 3 to the Bill. This ensures that the amendments would have prospective application. 210. Subitem 9(2) would provide that the proposed amendment of section 111 of the Act made by this Part apply in relation to conduct engaged in on or after the commencement of this item that does not comply with a direction, whether the direction was given before, on or after the commencement of this item. This ensures that the amendment would have prospective application. 211. Subitem 9(3) would provide that the proposed amendments of sections 438 and 532 of the Act made by this Part would apply in relation to information given on or after the commencement of this item. This ensures that the amendments would have prospective application. 212. Subitem 9(4) would provide that the proposed amendments of 439 and 533 of the Act made by this Part would apply in relation to documents produced on or after the commencement of this item. This ensures that the amendments would have prospective application. Part 2--Other amendments Item 10 Paragraph 439(1)(c) 213. This item would omit "the information is given" from paragraph 439(1)(c) of the Act and replace it with "the document is produced". 214. As noted above, subsection 439(1) of the Act provides for a civil penalty provision where a person produces a document to a biosecurity industry participant in connection with biosecurity activities that are being, or are to be, carried out by the biosecurity industry participant in accordance with an approved arrangement, and does so knowing that the document is false or misleading. Subsections 439(2) and (3) provide that subsection 439(1) does not apply if the document is not false or misleading in a material particular. 215. Although subsection 439(1) creates a civil penalty provision arising from the provision of a false or misleading document, currently paragraph 439(1)(c) refers to the giving of information. The amendment proposed by this item is a minor technical amendment intended solely to clarify the original intention of this paragraph that it should relate to a document being provided, rather than information being given. The amendment does not substantively alter the effect of subsection 439(1) of the Act. 38

SCHEDULE 4--Strict liability offences and infringement notices Background 216. Compliance with the regulatory framework provided by the Act is crucial in ensuring that Australia is protected from the incursion, spread and establishment of harmful pests and diseases. As the number of travellers, conveyances and volume of cargo entering Australia increases, Australia's biosecurity regulatory framework must adapt in the evolving environment to ensure appropriate regulatory measures are in place to manage the increasing biosecurity risks associated with increased volume of travellers, goods and conveyances. 217. While most people who import goods into Australian territory, operate conveyances entering in Australian territory and who are biosecurity industry participants comply with laws that reflect the critical importance of Australia's biosecurity framework, there continues to remain those who contravene biosecurity requirements. Such contraventions could mean that the effectiveness of the regulatory regime under the Act in managing biosecurity risk is compromised, which in turn could lead to serious and adverse impact on Australia's economy, agricultural sector, animal, plant and human health and the environment. 218. To prevent pests and diseases from entering, spreading and establishing in Australia, the effectiveness of the regulatory regime under the Act would benefit from the availability of additional measures to respond to non-compliance. As such, this Schedule proposes additional strict liability offences for certain conduct that would contravene certain existing provisions under the Act. These new strict liability offences are also proposed to be subject to the infringement notice framework under the Act as it triggers the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act). 219. Proposed new strict liability offences would significantly increase deterrence and effectiveness of the regulatory regime. This is necessary to ensure that regulated entities are significantly less likely to contravene requirements, thus preventing the incursion and establishment of pests and diseases with potentially significant negative impact on Australia's economy, agricultural sector, animal, plant and human health and the environment. 220. Subjecting these new strict liability offences to the infringement notice scheme would enable immediate regulatory responses for lower-level contraventions (e.g. conduct without intent to obtain commercial advantage). This would provide a more appropriate alternative to other, less effective regulatory actions, such as prosecutions or civil litigation. Often, the operational environment is one where a high volume of contraventions occur, and where a penalty must be imposed in a timely matter to be effective. 221. Schedule 4 to the Bill would insert new strict liability offences, which have the same conduct elements as the existing fault-based offences set out by the below provisions, which provide for fault-based offences: 39

a) subsection 140(2) - failure to comply with a direction given under paragraph 135(2)(b) (to export goods from Australian territory) or 138(1)(a) (to carry out a biosecurity measure); b) subsection 185(2) - bringing or importing prohibited goods or suspended goods into Australian territory; c) subsection 187(1) - contravening conditions of an import permit that is in force; d) subsection 187(3) - contravening conditions of a suspended or revoked import permit where the conditions continue to apply e) subsection 243(2) - failure to comply with a direction given under Division 2, Part 4 of Chapter 4 of the Act, including a direction for an aircraft to land or not land at a specified place f) subsection 251(2) - failure to comply with a direction given under Division 3, Part 4 of Chapter 4 of the Act, including a direction for a vessel to be moored or not to be moored at one or more specified ports in Australian territory g) subsection 350(2) - failure to comply with a direction given under paragraphs 347(a), (b) or (c) to carry out a biosecurity measure in relation to certain goods and premises h) subsection 428(2) - failure of a biosecurity industry participant to carry out biosecurity activities in accordance with an approved arrangement i) subsection 429(5) - failure of a biosecurity industry participant to comply with a direction issued by a biosecurity officer relating to the operation of an approved arrangement. 222. In many cases, non-compliance with the above provisions is on the lower end of objective seriousness, but nevertheless could pose high levels of biosecurity risk. This kind of non-compliance occurs frequently in an operational context and often penalties must be imposed immediately to be effective. Under the current framework, there is no way to deal with such low-level non-compliance other than by way of prosecution or civil litigation, which is resource intensive and inappropriate for non-compliance at the lower end of objective seriousness as discussed above. 223. While contraventions of the above provisions often involve minor infringements that are of a regulatory nature, such contraventions could still compromise Australia's economy, agricultural sector, animal, plant and human health and the environment, by bringing pests and diseases to Australia. It is important that regulatory tools be in place to provide specific and general deterrence, as well as to enable proportionate and appropriate penalties. Proposed strict liability offences, together with them being subject to the infringement notice scheme, would reflect the potentially serious consequences of contraventions in the regulatory scheme, and ensure that non- compliance can be addressed swiftly and effectively. 40

Biosecurity Act 2015 Item 1 After subsection 140(2) 224. This item would insert new subsection 140(2A) after subsection 140(2) of the Act. New subsection 140(2A) would provide that a person commits an offence of strict liability if: a) the person is given a direction under paragraph 135(2)(b) or 138(1)(a); and b) the person engages in conduct; and c) the conduct contravenes the direction. 225. The heading to new subsection 140(2A) is 'Strict liability offence'. The purpose of the heading is to provide clarity to the reader. 226. This strict liability offence would not be punishable by imprisonment, and would carry a maximum penalty of 60 penalty units. This is line in with the Commonwealth Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide) (in 2023 accessible at https://www.ag.gov.au/legal- system/publications/guide-framing-commonwealth-offences-infringement-notices-and- enforcement-powers). 227. Paragraph 135(2)(b) of the Act enables a biosecurity officer to direct a person in charge of goods to arrange for the goods to be exported from Australian territory. 228. Paragraph 138(1)(a) of the Act enables a biosecurity officer to direct a person in charge of goods to carry out a biosecurity measure in relation to the goods, where a biosecurity officer requires a biosecurity measure to be taken in relation to goods under section 135 (movement), section 133 (treatment), section 136 (destruction) and regulations made for the purpose of section 137, which enables the regulations to provide for other biosecurity measures. Section 17 of the Biosecurity Regulation provides that a biosecurity officer may require goods to which section 131 of the Act applies to be isolated in or on premises specified by the biosecurity officer during a specified period, as well as notice requirements and requirements that may be imposed in relation to isolated goods. 229. Section 140 provides for a fault-based offence and a civil penalty provision that apply in circumstances where a person does not comply with a direction to take biosecurity measures. Subsection 140(1) provides that a person who is given a direction under paragraph 135(2)(b) or 138(1)(a) must comply with the direction. 230. The fault-based offence in subsection 140(2) provides that a person commits an offence if the person is given a direction under paragraph 135(2)(b) or 138(1)(a) and the person engages in conduct that contravenes the direction. The new strict liability offence under subsection 140(2A) has the same conduct elements as the fault-based offence in existing subsection 140(2). 231. Section 131 of the Act provides that if a biosecurity officer suspects, on reasonable grounds, that the level of biosecurity risk associated with goods that are subject to biosecurity control is unacceptable, a biosecurity officer may require biosecurity measures to be taken in relation to the goods, as set out under Division 5 of Part 1 of 41

Chapter 3 of the Act. This Division includes sections 135 and 138. Therefore, before issuing directions under those provisions, a biosecurity officer must first suspect, on reasonable grounds, that the level of biosecurity risk associated with the goods subject to biosecurity control is unacceptable. 232. Goods directed for export under paragraph 135(2)(b) generally comprise of goods with which exceed the Appropriate Level of Protection for Australia (as defined in section 5 of the Act as a high level of sanitary and phytosanitary protection aimed at reducing biosecurity risks to a very low level, but not to zero) for which exporting the goods would appropriately manage the biosecurity risk associated with the goods. Where persons in charge of goods refuse to, or fail to, export the goods, this would not only mean that biosecurity risk is not appropriately managed, but also create operational issues. For example, a very high volume of non-compliance means that goods must be stored in practice, which could pose significant risks. This is particularly the case for high-value goods which cannot be treated effectively and practically, which, if not exported, must await the written approval of the Director of Biosecurity before they can be destroyed. 233. There has been a concerning level of non-compliance with directions for the relevant biosecurity measures to be carried out for goods directed for movement, treatment or destruction under paragraph 138(1)(a). Importers of goods are widely put on notice about Australia's strict biosecurity requirements, however, there continue to be those who, for example, firstly fail to meet import conditions, then also fail to carry out biosecurity measures to manage the resulting biosecurity risk posed by goods they imported. Like goods directed for export that are not exported, where biosecurity measures are directed to be carried out but are not, biosecurity risks associated with relevant goods are not appropriately managed. 234. It is therefore necessary to deter non-compliance with a direction to export goods or a direction to carry out biosecurity measures, in particular high volume, low-level contraventions. Persons in charge of goods would be aware of their specific obligations, since they would be given a specific direction setting out their obligations. Imposing a strict liability offence would significantly enhance the effectiveness of the biosecurity regulatory regime in deterring this conduct. It would also ensure the integrity of the biosecurity regulatory regime and ensure that biosecurity risk is appropriately managed. 235. It is proposed that new subsection 140(2A) will be subject to the infringement notice scheme and be inserted into the table under section 523(1) by item 13 of this Schedule. Further explanations are provided in relation to item 13. Item 2 Subsection 185(1) (note) 236. Item 2 of this Schedule would omit "subsection (2)" from the note under subsection 185(1) of the Act, and substitute it with "subsections (2) and (2A)". The current note provides that the physical elements of an offence against subsection (2) are set out in subsection 185(1). It also refers the reader to section 534 of the Act, which provides that where a provision of the Act provides that a person contravening another provision of the Act (the conduct rule provision) commits an offence, the physical elements of the offence are set out in the conduct rule provision. 42

237. This is a consequential amendment on the insertion of the new proposed subsection 185(2A) by item 3 of this Schedule. Item 3 Subsection 185(2) (penalty) 238. Item 3 of this Schedule would omit "or1,000" from the current penalty amount provision under subsection 185(2), and substitute it with "or 1,000". 239. This is a minor editorial amendment to correct a typographical error, by inserting a missing space between "or" and "1,000". Item 4 After subsection 185(2) 240. This item would insert new subsection 185(2A) after subsection 185(2) of the Act. New subsection 185(2A) would provide that a person commits an offence of strict liability if the person contravenes subsection 185(1) of the Act. 241. The heading to new subsection 185(2A) is 'Strict liability offence'. The purpose of the heading is to provide clarity to the reader. 242. This strict liability offence would not be punishable by imprisonment, and would carry a maximum penalty of 60 penalty units. This is line in with the Guide. 243. Under subsection 173(1) of the Act, the Director of Biosecurity and the Director of Human Biosecurity may jointly determine that specified goods, or a specified class of goods, must not be brought or imported into Australian territory. These goods are prohibited goods. Before making such a determination, each Director must be satisfied that the level of biosecurity risk associated with the goods, or the class of goods, is unacceptable; and biosecurity measures would not be able to be taken to reduce that level of biosecurity risk to an acceptable level. 244. Under subsection 182(1) of the Act, 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, not longer than 6 months. These goods are suspended goods. Amongst other things, the Director of Biosecurity may only make a determination in relation to suspended goods only if the Director is satisfied that the level of biosecurity risk associated with the goods, or the class of goods, is unacceptable. 245. Subsection 185(1) of the Act provides that a person contravenes subsection 185(1) if the person brings or imports goods into Australian territory and the goods are prohibited goods or suspended goods. 246. Subsection 185(2) of the Act provides for the basic fault-based offence, and that a person commits an offence if the person contravenes subsection 185(1). Subsection 185(3) of the Act provides for a civil penalty, which has the same conduct elements as the fault-based offence provided by subsection 185(2). 247. New subsection 185(2A) would have the same conduct elements as subsection 185(2), with subsection 185(1) being the conduct rule provision. 43

248. A new strict liability offence for the importation of suspended or prohibited goods reflects the very significant, and unacceptable, level of biosecurity risk posed by suspended goods. Even where the physical element of a contravention is not accompanied by a fault element and the conduct would be considered at the lower end of objective seriousness, any contravention could result in the incursion and establishment of a pest or disease in Australian territory, which would have significant consequences for Australia's economy, agricultural sector, animal, plant and human health and the environment. 249. For example, in 2017, the Biosecurity (Suspended Goods - Uncooked Prawns) Determination 2017 determined uncooked prawns as suspended goods. It was necessary to cease the importation of uncooked prawns to prevent the incursion and establishment of the white spot disease, which is a highly contagious disease in prawns which results in rapid mortality. Any contravention, even low-level contraventions of importing these suspended goods, could have resulted in significant negative impact and losses on the prawn industry in Australia. 250. Imposing a strict liability offence would significantly enhance the effectiveness of the biosecurity regulatory regime in deterring this conduct. It would also ensure the integrity of the biosecurity regulatory regime and ensure that biosecurity risk is appropriately managed. 251. Where the Director of Biosecurity and/or the Director of Human Biosecurity make a determination in relation to prohibited goods and/or suspended goods, the relevant determinations are legislative instruments and would be published on the Federal Register of Legislation. The Agriculture Department also notifies importers and potential importers of the suspension of goods through industry advice notices published on the Agriculture Department's website and the biosecurity import condition system, as well as written notices to permit holders relating to the suspended goods. 252. It is proposed that new subsection 185(2A) will be subject to the infringement notice scheme and be inserted into the table under section 523(1) by item 13 of this Schedule. Further explanations are provided in relation to item 13. Item 5 After subsection 187(1) 253. This item would insert new subsection 187(1A) after subsection 187(1) of the Act. New subsection 187(1A) would provide that a person commits an offence of strict liability if: a) the person is the holder of a permit granted under section 179; and b) the person engages in conduct; and c) the conduct contravenes a condition of the permit. 254. The heading to new subsection 187(2A) is 'Strict liability offence--permits in force'. The purpose of the heading is to provide clarity to the reader. 255. This strict liability offence would not be punishable by imprisonment, and would carry a maximum penalty of 60 penalty units. This is line in with the Guide. 44

256. Under subsection 179(1) of the Act, the Director of Biosecurity may, on application by a person under section 177 for a permit to bring or import particular goods into Australian territory, grant a permit. Subsection 180(1) provides that a permit may be granted under section 179 subject to conditions. 257. Section 187 of the Act provides for fault-based offences and civil penalty offences which apply in circumstances where a person contravenes conditions of a permit granted under section 179. Subsection 187(1) provides for a fault-based offence, that a person commits an offence if the person is the holder of a permit granted under section 179, the person engages in conduct and the conduct contravenes a condition of the permit. Subsection 187(2) is the civil penalty provision which provides that a person is liable to a civil penalty if the person is the holder of a permit granted under section 179 and the person contravenes a condition of the permit. 258. The new strict liability offence provided by proposed subsection 187(2A) would have the same conduct elements as subsection 187(1). 259. Before deciding to grant a permit under section 179, the Director of Biosecurity must consider, amongst other things: a) the risk assessment that was conducted in relation to the goods; b) the level of biosecurity risk associated with the goods; c) whether it would be necessary to impose conditions on the permit to reduce the level of biosecurity risk. 260. Conditions imposed on an import permit, therefore, are crucial in managing the biosecurity risk associated with the goods and reducing the risk to an acceptable level. 261. A new strict liability offence for the breach of import permits reflects the significant, and unacceptable, level of biosecurity risk posed by goods that do not meet import permit conditions. Even where the physical element of a contravention is not accompanied by a fault element and the conduct would be considered at the lower end of objective seriousness, contraventions could result in the incursion and establishment of a pest or disease in Australian territory, which would have significant consequences for Australia's economy, agricultural sector, animal, plant and human health and the environment. 262. The punishment of offences not involving fault is likely to provide deterrence for low-level non-compliance with biosecurity obligations, and a person who holds an import permit should already be aware of their obligations under the Act, having been granted a permit subject to conditions. 263. Imposing a strict liability offence would significantly enhance the effectiveness of the biosecurity regulatory regime in deterring this conduct. It would also ensure the integrity of the biosecurity regulatory regime and ensure that biosecurity risk is appropriately managed. 264. Persons who hold an import permit would have applied for the permit, which means that they would be well aware of the conditions specified on the permit and their obligations under the permit. Where a permit is varied under subsection 180(2), or 45

conditions of a permit varied under subsection 180(2), notices are required to be provided to the holder of the permit under section 575 of the Act, as they are reviewable decisions under section 574 of the Act. 265. It is proposed that new subsection 187(1A) will be subject to the infringement notice scheme and be inserted into the table under section 523(1) by item 14 of this Schedule. Further explanations are provided in relation to item 14. Item 6 After subsection 187(3) 266. This item would insert new subsection 187(3A) after subsection 187(3) of the Act. New subsection 187(3A) would provide that a person commits an offence of strict liability if: a) the person is the holder of a permit granted under section 179; and b) the permit has been suspended or revoked under section 181; and c) a condition of the permit continues to apply because of subsection 181(3) d) the person engages in conduct; and e) the conduct contravenes a condition of the permit. 267. The heading to new subsection 187(3A) is 'Strict liability offence--permits in force'. The purpose of the heading is to provide clarity to the reader. 268. This strict liability offence would not be punishable by imprisonment, and would carry a maximum penalty of 60 penalty units. This is line in with the Guide. 269. Under subsection 179(1) of the Act, the Director of Biosecurity may, on application by a person under section 177 for a permit in relation to particular goods, grant a permit. Subsection 180(1) provides that a permit may be granted under section 179 subject to conditions. Section 181 of the Act provides that the Director of Biosecurity may vary, suspend or revoke a permit granted under section 179. Subsection 181(3) provides that where a permit has been suspended or revoked under this section and a condition of the permit applied immediately before the suspension or revocation of permit, the condition continues to apply in relation to the goods despite the suspension or revocation of the permit. 270. Section 187 of the Act provides for fault-based offences and civil penalty offences which apply in circumstances where a person contravenes conditions of a permit granted under section 179. The fault-based offence in subsection 187(3) in relation to permits in force, provides that a person commits an offence if the person is the holder of a permit granted under section 179, the person engages in conduct and the conduct contravenes a condition of the permit. 271. Subsection 187(3) provides for a fault-based offence, that a person commits an offence if: a) the person was the holder of a permit granted under section 179; and b) the permit has been suspended or revoked under section 181; and c) a condition of the permit continues to apply because of subsection 181(3); and d) the person engages in conduct which contravenes the condition. 46

272. Subsection 187(4) is the civil penalty provision in relation to suspended or revoked permits, with the same conduct elements as the fault-based offence provision at subsection 187(3). 273. The new strict liability offence provided by proposed subsection 187(3A) would have the same conduct elements as subsection 187(3). 274. Before deciding to grant a permit under section 179, the Director of Biosecurity must consider, amongst other things: a) the risk assessment that was conducted in relation to the goods; b) the level of biosecurity risk associated with the goods; c) whether it would be necessary to impose conditions on the permit to reduce the level of biosecurity. 275. Conditions imposed on an import permit, therefore, are crucial in managing the biosecurity risk associated with the goods and reducing the risk to an acceptable level. 276. As is the case for new subsection 187(1A) inserted by item 6 of this Schedule, a new strict liability offence for the breach of conditions of suspended or revoked import permits reflects the significant, and unacceptable, level of biosecurity risk posed by goods that do not meet import permit conditions. Even where the physical element of a contravention is not accompanied by a fault element and the conduct would be considered at the lower end of objective seriousness, contraventions could result in the incursion and establishment of a pest or disease in Australian territory, which would have significant consequences for Australia's economy, agricultural sector, animal, plant and human health and the environment. 277. The punishment of offences not involving fault is likely to provide deterrence for low-level non-compliance with biosecurity obligations, and a person who holds or held the suspended or revoked import permit should already be aware of their obligations under the Act, having been granted a permit subject to conditions. 278. Imposing a strict liability offence would significantly enhance the effectiveness of the biosecurity regulatory regime in deterring this conduct. It would also ensure the integrity of the biosecurity regulatory regime and ensure that biosecurity risk is appropriately managed. 279. Persons who hold an import permit would have applied for the permit, which means that they would be well aware of the conditions specified on the permit and their obligations under the permit. Where a permit is suspended under subsection 181 of the Act, notices are required to be provided to the holder of the permit under section 575 of the Act, as they are reviewable decisions under section 574 of the Act. 280. It is proposed that new subsection 187(3A) will be subject to the infringement notice scheme and be inserted into the table under section 523(1) by item 14 of this Schedule. Further explanations are provided in relation to item 14. Item 7 After subsection 243(2) 47

281. This item would insert new subsection 243(2A) after subsection 243(2) of the Act. New subsection 243(2A) would provide that a person commits an offence of strict liability if: a) the person is given a direction under a provision of Division 2 of Part 4 of Chapter 4 of the Act; and b) the person engages in conduct; and c) the conduct contravenes the direction. 282. The heading to new subsection 243(2A) is 'Strict liability offence'. The purpose of the heading is to provide clarity to the reader. 283. This strict liability offence would not be punishable by imprisonment, and would carry a maximum penalty of 60 penalty units. This is line in with the Guide. 284. Subsection 243(1) provides that a person who is given a direction under a provision of Division 2 of Part 4 of Chapter 4 must comply with the direction. 285. Subsection 243(2) provides for the fault-based offence, that a person commits an offence if the person is given a direction under Division 2 of Part 4 of Chapter 4, the person engages in conduct and the conduct contravenes the direction. The fault-based offence carries a maximum penalty of 5 years imprisonment or 1000 penalty units, or both. 286. Subsection 243(3) provides for the civil penalty provision, which has the same conduct elements as subsection 243(2). The civil penalty provision carries a maximum civil penalty of 300 penalty units. 287. The new strict liability offence provided by proposed subsection 243(2A) would have the same conduct elements as subsection 243(2). 288. Division 2 of Part 4 of Chapter 4 of the Act provides for various directions relating to the landing of aircrafts. For example, section 240 provides that a biosecurity officer may give the person in charge or the operator of an aircraft that intends to land at a landing place in Australian territory a direction requiring the aircraft to land at a specified landing place, or not to land at one or more specified landing places in Australian territory. A direction may be given only if a biosecurity officer is satisfied that the direction is necessary to manage biosecurity risks associated with the aircraft or any person or thing on board the aircraft. Similarly, a chief human biosecurity officer or human biosecurity officer may issue such a direction under section 242 of the Act, where a chief human biosecurity officer or a human biosecurity officer is satisfied, on reasonable grounds, that the direction is necessary to manage human health risks associated with the aircraft or any person or thing on board the aircraft. 289. Directions given under Division 2 of Part 4 of Chapter 4 of the Act are important measures in the management of biosecurity risk, including human biosecurity risk, associated with aircrafts and persons and things on board aircrafts. 290. A new strict liability offence for not complying with a direction to land or not land at specified landing places reflects the potentially significant level of biosecurity risk posed by aircrafts and persons and things onboard. Contraventions could result in an 48

aircraft landing at a landing place that is not equipped with the management of the particular biosecurity risks associated with the aircraft and persons and things onboard. This could in turn, lead to the incursion and establishment of a pest or disease in Australian territory, which could have significant consequences for Australia's economy, agricultural sector, animal, plant and human health and the environment. 291. The punishment of offences not involving fault is likely to provide deterrence for low-level non-compliance with biosecurity obligations, and a person in charge or the operator of an aircraft should already be aware of their obligations under the Act, having been given a direction. 292. Imposing a strict liability offence would significantly enhance the effectiveness of the biosecurity regulatory regime in deterring non-compliance with directions issued under Division 2 of Part 4 of Chapter of the Act. It would also ensure the integrity of the biosecurity regulatory regime and ensure that biosecurity risk is appropriately managed. 293. Persons in charge of, or operate aircrafts would be given a direction, and therefore would be aware of their specific obligations under the direction. These persons are also expected to be aware of their obligations under the Act. 294. It is proposed that new subsection 243(2A) will be subject to the infringement notice scheme and be inserted into the table under section 523(1) by item 15 of this Schedule. Further explanations are provided in relation to item 15. Item 8 After subsection 251(2) 295. This item would insert new subsection 251(2A) after subsection 251(2) of the Act. New subsection 251(2A) would provide that a person commits an offence of strict liability if: a) the person is given a direction under a provision of Division 3 of Part 4 of Chapter 4 of the Act; and b) the person engages in conduct; and c) the conduct contravenes the direction. 296. The heading to new subsection 251(2A) is 'Strict liability offence'. The purpose of the heading is to provide clarity to the reader. 297. This strict liability offence would not be punishable by imprisonment, and would carry a maximum penalty of 60 penalty units. This is line in with the Guide. 298. Subsection 251(1) provides that a person who is given a direction under a provision of Division 3 of Part 4 of Chapter 4 must comply with the direction. 299. Subsection 251(2) provides for the fault-based offence, that a person commits an offence if the person is given a direction under Division 3 of Part 4 of Chapter 4, the person engages in conduct and the conduct contravenes the direction. The fault-based offence carries a maximum penalty of 5 years imprisonment or 1000 penalty units, or both. 49

300. Subsection 251(3) provides for the civil penalty provision, which has the same conduct elements as subsection 251(2). The civil penalty provision carries a maximum civil penalty of 300 penalty units. 301. The new strict liability offence provided by proposed subsection 251(2A) would have the same conduct elements as subsection 251(2). 302. Division 3 of Part 4 of Chapter 4 of the Act provides for various directions relating to the mooring of vessels. For example, section 248 provides that a biosecurity officer may give the person in charge or the operator of a vessel that intends to be moored at a port in Australian territory a direction requiring the vessel to be moored at a specified port, or not to be moored at one or more specified ports in Australian territory. A direction may be given only if a biosecurity officer is satisfied that the direction is necessary to manage biosecurity risks associated with the vessel or any person or thing on board the vessel. Similarly, a chief human biosecurity officer or human biosecurity officer may issue such a direction under section 250 of the Act, where a chief human biosecurity officer or a human biosecurity officer is satisfied, on reasonable grounds, that the direction is necessary to manage human health risks associated with the vessel or any person or thing on board the vessel. 303. Directions given under Division 3 of Part 4 of Chapter 4 of the Act are important measures in the management of biosecurity risk, including human biosecurity risk, associated with vessels and persons and things on board vessels. 304. A new strict liability offence for not complying with a direction for a vessel to be moored or not be moored at specified ports reflects the potentially significant level of biosecurity risk posed by vessels and persons and things onboard. Contraventions could result in a vessel being moored at a port that is not equipped with the management of the particular biosecurity risks associated with the vessel and persons and things onboard. This could in turn, lead to the incursion and establishment of a pest or disease in Australian territory, which could have significant consequences for Australia's economy, agricultural sector, animal, plant and human health and the environment. 305. The punishment of offences not involving fault is likely to provide deterrence for low-level non-compliance with biosecurity obligations, and a person in charge or the operator of a vessel should already be aware of their obligations under the Act, having been given a direction. 306. Imposing a strict liability offence would significantly enhance the effectiveness of the biosecurity regulatory regime in deterring non-compliance with directions issued under Division 3 of Part 4 of Chapter of the Act. It would also ensure the integrity of the biosecurity regulatory regime and ensure that biosecurity risk is appropriately managed. 307. Persons in charge of, or operate vessels would be given a direction, and therefore would be aware of their specific obligations under the direction. These persons are also expected to be aware of their obligations under the Act. 308. It is proposed that new subsection 251(2A) will be subject to the infringement notice scheme and be inserted into the table under section 523(1) by item 15 of this Schedule. Further explanations are provided in relation to item 15. 50

Item 9 After subsection 350(2) 309. This item would insert new subsection 350(2A) after subsection 350(2) of the Act. New subsection 350(2A) would provide that a person commits an offence of strict liability if: a) the person is given a direction under paragraph 347(1)(a), (b) or (c); and b) the person engages in conduct; and c) the conduct contravenes the direction. 310. The heading to new subsection 350(2A) is 'Strict liability offence'. The purpose of the heading is to provide clarity to the reader. 311. This strict liability offence would not be punishable by imprisonment, and would carry a maximum penalty of 60 penalty units. This is line in with the Guide. 312. A biosecurity officer may direct a person in charge of goods, in charge of or the owner of a conveyance, or the owner of a premises, to carry out a biosecurity measure under paragraph 347(1)(a), (b) or (c). Subsection 350(1) provides that a person who is given a direction under paragraph 347(1)(a), (b) or (c) must comply with the direction. 313. Subsection 350(2) provides for the fault-based offence, that a person commits an offence if a person is given a direction under paragraph 347(1)(a), (b) or (c), and the person engages in conduct that contravenes the direction. The fault-based offence carries a maximum penalty of 5 years imprisonment or 300 penalty units, or both. 314. Subsection 350(3) provides for the civil penalty provision, which essentially has the same conduct elements as subsection 350(2). The civil penalty provision carries a maximum civil penalty of 120 penalty units. 315. The new strict liability provided by proposed subsection 350(2A) would have the same conduct elements as subsection 350(2). 316. Section 347 of the Act provides that if a biosecurity officer requires a biosecurity measure to be taken in relation to goods or premises (including conveyances) under Subdivision C (treatment powers) or Subdivision D (destruction powers) of Division 2 of Part 3 of Chapter 6 of the Act, or under a regulation made for the purposes of section 346 of the Act, a biosecurity officer may: a) if the biosecurity measure is required in relation to goods--direct a person in charge of the goods to carry out the biosecurity measure; or b) if the biosecurity measure is required in relation to a conveyance: i. direct the person in charge or the operator of the conveyance to carry out the biosecurity measure, unless it is destruction of the conveyance; or ii. if the measure is destruction of the conveyance--direct the operator or the owner of the conveyance to carry out the measure; or c) if the biosecurity measure is required in relation to premises--direct the owner of the premises to carry out the biosecurity measure. 51

317. Part 3 of Chapter 6 of the Act provides for biosecurity measures to manage the unacceptable level of biosecurity risk. The objects of Chapter 6 of the Act include to provide for biosecurity measures to be taken in relation to goods or premises (including conveyances) in Australian territory if the level of biosecurity risk posed by a disease or pest that may be present in or on the goods or premises is considered to be unacceptable (section 311 of the Act). Division 2 of Part 3 of Chapter 6 of the Act provides for powers that may be exercised. 318. Division 2 of Part 3 of Chapter 6 of the Act provides for powers that may be exercised. Section 332 under Division 2 provides that a power set out under Division 2 must not be exercised in relation to goods or premises (including conveyances) in Australian territory unless the power is specified in a biosecurity control order that relates to the goods or premises, or the power is specified in a biosecurity response zone determination that relates to the goods or premises and the goods or premises are in the biosecurity response zone. 319. Subsection 353(1) of the Act provides that the Director of Biosecurity may make a biosecurity control order in relation to relevant goods or premises and the relevant disease or pest if: a) a biosecurity officer suspects, on reasonable grounds, that: i. a disease or pest may be present in or on goods or premises in Australian territory; and ii. the disease or pest poses an unacceptable level of biosecurity risk; and b) the Director of Biosecurity is satisfied that biosecurity measures need to be taken in relation to the goods or premises for the purpose of managing the biosecurity risk posed by the disease or pest. 320. Subsection 365(1) of the Act provides that the Director of Biosecurity may determine that a specified area in Australian territory is a biosecurity response zone if: a) a biosecurity officer suspects, on reasonable grounds, that: i. a disease or pest may be present in or on goods or premises in the area; and ii. the disease or pest poses an unacceptable level of biosecurity risk; and b) the Director of Biosecurity is satisfied it is necessary to make the determination for the purpose of managing the biosecurity risk posed by the disease or pest. 321. Therefore, before a direction for a biosecurity measure can be given under section 347, the Director of Biosecurity must be satisfied that the biosecurity measures are necessary for the purpose of managing the biosecurity risk posed by a pest of disease, in relation to which a biosecurity officer suspects, on reasonable grounds, that a disease or pest that is present in Australian territory poses an unacceptable level of biosecurity risk. 322. Directions given under section 347 are important measures in the management of biosecurity risk, including human biosecurity risk, associated with goods and premises that are in Australian territory. 52

323. A new strict liability offence for not complying with a direction to carry out a biosecurity measure under section 347 reflects the unacceptable level of biosecurity risk posed by goods and premises, and the potentially significant negative consequences if the pest or disease spreads or establishes in Australia. Contraventions could result in the delay in managing biosecurity risks posed by the pest or disease. This could in turn, lead to the spread and establishment of a pest or disease in Australian territory, which could have significant consequences for Australia's economy, agricultural sector, animal, plant and human health and the environment. 324. The punishment of offences not involving fault would provide deterrence for low-level non-compliance with biosecurity obligations, and a person in charge of goods or a person in charge of a premises, should already be aware of their obligations under the Act, having been given a direction. 325. Imposing a strict liability offence would significantly enhance the effectiveness of the biosecurity regulatory regime in deterring non-compliance with directions issued under section 347. It would also ensure the integrity of the biosecurity regulatory regime and ensure that biosecurity risk is appropriately managed. 326. It is proposed that new subsection 350(2A) will be subject to the infringement notice scheme and be inserted into the table under section 523(1) by item 16 of this Schedule. Further explanations are provided in relation to item 16. Item 10 Subsection 428(1) (note 2) 327. This item would omit "subsection (2)" from note 2 under subsection 428(1) of the Act, and substitute "subsections (2) and (2A)". Note 2 under subsection 428(1) current provides that the physical elements of an offence against subsection 428(2) are set out in subsection 428(1). It also refers the reader to section 534 of the Act, which provides that where a provision of the Act provides that a person contravening another provision of the Act (the conduct rule provision) commits an offence, the physical elements of the offence are set out in the conduct rule provision. 328. This is a consequential amendment on the insertion of the new proposed subsection 428(2A) by item 11 of this Schedule. Item 11 After subsection 428(2) 329. This item would insert new subsection 428(2A) after subsection 428(2) of the Act. New subsection 428(2A) would provide that a person commits an offence of strict liability if the person contravenes subsection 428(1) of the Act. 330. The heading to new subsection 428(2A) is 'Strict liability offence'. The purpose of the heading is to provide clarity to the reader. 53

331. This strict liability offence would not be punishable by imprisonment, and would carry a maximum penalty of 60 penalty units. This is line in with the Guide. 332. Subsection 428(1) provides that a biosecurity industry participant contravenes subsection 428(1) if: a) the biosecurity industry participant is authorised to carry out certain biosecurity activities in accordance with an approved arrangement covering the biosecurity industry participant; and b) the biosecurity industry participant: i. fails to carry out the biosecurity activities in accordance with the arrangement; or ii. fails to comply with any requirements specified in the arrangement; or iii. fails to comply with any conditions to which the arrangement is subject. 333. Subsection 428(2) provides for the fault-based offence, that a person commits an offence if the person contravenes subsection 428(1). The fault-based offence carries a maximum penalty of 5 years imprisonment or 1000 penalty units, or both. 334. Subsection 428(3) provides for the civil penalty provision, which has the same conduct elements as subsection 428(2). The civil penalty provision carries a maximum civil penalty of 1000 penalty units. 335. The new strict liability offence provided by proposed subsection 428(2A) would have the same conduct elements as subsection 428(2). 336. Chapter 7 of the 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 specified biosecurity activities in accordance with the approved arrangement, except in certain specified circumstances. 337. The Director of Biosecurity may approve the arrangement, if, amongst other things, the Director considers that the level of biosecurity risk associated with the operation of the arrangement is acceptable (section 406 of the Act). To ensure that biosecurity risks associated with the arrangement are appropriately managed, it is crucial that biosecurity industry participants carry out specified biosecurity activities in accordance with requirements specified by the approved arrangement, as well as conditions that the arrangement is under. 338. The new strict liability offence under subsection 428(2A) reflects the potentially unacceptable level of biosecurity risk associated with the failure to carry out specified biosecurity activities, and specified biosecurity activities being carried out in breach of requirements and conditions of approved arrangements. The failure to carry out specified biosecurity activities in accordance with an approved arrangement could lead 54

to the incursion, spread or establishment of a pest or disease in Australian territory, which could have significant consequences for Australia's economy, agricultural sector, animal, plant and human health and the environment. 339. The punishment of offences not involving fault would provide deterrence for low-level non-compliance with biosecurity obligations, and a biosecurity industry participant should already be aware of their obligations under the Act, having applied for an arrangement to carry out specified biosecurity activities which has been approved. Where an approved arrangement is proposed to be varied, the biosecurity industry participant would receive a notice of a proposed variation under new section 435A as proposed to be inserted by item 11 of Schedule 2 to this Bill. Such a notice must invite the biosecurity industry participant to give the Director of Biosecurity or Director of Human Biosecurity a written submission in relation to the notice within 14 days. New subsection 415(2) as proposed to be inserted by item 4 of Schedule 2 would provide that if a biosecurity industry participant was given such a notice, the variation must not take effect before the end of 14 days after the notice is given. 340. Imposing a strict liability would significantly enhance the effectiveness of the biosecurity regulatory regime in deterring non-compliance. It would also ensure the integrity of the biosecurity regulatory regime and ensure that biosecurity risk is appropriately managed. 341. It is proposed that new subsection 428(2A) will be subject to the infringement notice scheme and be inserted into the table under section 523(1) by item 17 of this Schedule. Further explanations are provided in relation to item 17. Item 12 After subsection 429(5) 342. This item would insert new subsection 429(5A) after subsection 428(5) of the Act. New subsection 429(5A) would provide that a person commits an offence of strict liability if: a) the person is given a direction under subsection 429(1); and b) the person engages in conduct; and c) the conduct contravenes the direction. 343. The heading to new subsection 429(5A) is 'Strict liability offence'. The purpose of the heading is to provide clarity to the reader. 344. This strict liability offence would not be punishable by imprisonment, and would carry a maximum penalty of 60 penalty units. This is line in with the Guide. 345. Subsection 429(1) of the Act provides if a biosecurity officer is satisfied that it is necessary to do so to manage biosecurity risks associated with the operation of an approved arrangement, a biosecurity officer may give the biosecurity industry participant covered by the arrangement a direction in relation to the operation of the arrangement. 346. Under subsection 429(3), the direction must not require the biosecurity industry participant to carry out an activity that the biosecurity industry participant is not qualified, or does not have the expertise or resources, to carry out. Subsection 429(4) 55

provides that a person is given a direction under subsection 429(1) must comply with the direction. 347. Subsection 429(5) provides for the fault-based offence, which provides that a person commits an offence if the person is given a direction under subsection 429(1), the person engages in conduct and the conduct contravenes the direction. The fault-based offence carries a maximum penalty of 5 years imprisonment or 1,000 penalty units, or both. 348. Subsection 429(6) provides for the civil penalty provision, which has the same conduct elements as subsection 429(5). The civil penalty provision carries a maximum civil penalty of 1000 penalty units. 349. The new strict liability offence under subsection 429(5A) reflects the potentially unacceptable level of biosecurity risk associated with the failure comply with a biosecurity direction in relation to an approved arrangement. The failure to comply with a direction that is necessary to manage biosecurity risks associated with the operation of an approved arrangement could lead to the incursion, spread or establishment of a pest or disease in Australian territory, which could have significant consequences for Australia's economy, agricultural sector, animal, plant and human health and the environment. 350. The punishment of offences not involving fault would provide deterrence for low-level non-compliance with biosecurity obligations, in circumstances where a biosecurity industry participant should already be aware of their obligations under the Act, having been given a direction by a biosecurity officer under section 429. 351. Imposing a strict liability would significantly enhance the effectiveness of the biosecurity regulatory regime in deterring non-compliance. It would also ensure the integrity of the biosecurity regulatory regime and ensure that biosecurity risk is appropriately managed. 352. It is proposed that new subsection 429(5A) will be subject to the infringement notice scheme and be inserted into the table under section 523(1) by item 17 of this Schedule. Further explanations are provided in relation to item 17. Item 13 Subsection 523(1) (after table item 8) 353. This item would insert new table items 8AA and 8AB after item 8 of the table under subsection 523(1) of the Act, which would provide for new subsections 140(2A) and subsection 185(2A). 354. The purpose and effect of this amendment is discussed below as part of a broader explanation of items 13-17 of this Schedule. 56

Item 14 Subsection 523(1) (after table item 8A) 355. This item would insert new table items 8B and 8C after item 8A of the table under subsection 523(1) of the Act, which would provide for new subsections 187(1A) and subsection 187(3A). 356. The purpose and effect of this amendment is discussed below as part of a broader explanation of items 13-17 of this Schedule. Item 15 Subsection 523(1) (after table item 19) 357. This item would insert new table items 19AA and 19AB after item 19 of the table under subsection 523(1) of the Act, which would provide for new subsections 243(2A) and subsection 251(2A). 358. The purpose and effect of this amendment is discussed below as part of a broader explanation of items 13-17 of this Schedule. Item 16 Subsection 523(1) (after table item 28) 359. This item would insert new table item 28A after item 19 of the table under subsection 523(1) of the Act, which would provide for new subsection 350(2A). 360. The purpose and effect of this amendment is discussed below as part of a broader explanation of items 13-17 of this Schedule. Item 17 Subsection 523(1) (after table item 39) 361. This item would insert new table items 39A and 39B after item 39 of the table under subsection 523(1) of the Act, which would provide for new subsections 428(2A) and subsection 429(5A). 362. The purpose and effect of this amendment is discussed below as part of a broader explanation of items 13-17 of this Schedule. Discussion of items 13-17 363. Subsection 523(1) of the Act provides that the provisions listed in the table under subsection 523(1) 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. 364. Items 13-17 of this Schedule would insert new strict liability offences proposed by this Schedule into the table under subsection 523(1), which would mean that these strict liability offences would be subject to an infringement notice under Part 5 of the Regulatory Powers Act. 365. Each of the new strict liability offences proposed to be subject to the infringement notice scheme has the same conduct elements as a fault-based offence and a civil 57

penalty provision. Subjecting the strict liability offences to the infringement notice scheme is in line with subsection 103(5) of the Regulatory Powers Act, which provides that if an alleged contravention would, if proved, constitute both a contravention of a civil penalty provision and of an offence provision, the infringement notice must relate to the alleged contravention of the offence provision. 366. The Guide stipulates that infringement notices should only be applied to minor offences with strict or absolute liability, and where a high volume of contraventions is expected. The infringement notices are intended to apply in cases where the offending conduct is such that it is open for a court to impose a non-conviction order under section 19B of the Crimes Act 1914 at sentencing. That is, a court is likely to consider the offending to be on the lower end of objective seriousness. 367. Each of the new strict liability offences proposed to be subject to the infringement notice scheme involves conduct which would be considered as being on the lower end of objective seriousness scale. This kind of non-compliance occurs frequently in an operational context and the ability to impose penalties immediately will likely be an effective deterrent. For example, there is a high volume of contraventions relating to a biosecurity industry participant failing to carry out the biosecurity activities in accordance with an approved arrangement covering the biosecurity industry participant. Under the current framework, there is no way to deal with such low-level non- compliance other than prosecution or civil litigation, which is resource intensive. The ability to issue infringement notices may provide more of a deterrent and be a more effective alternate to pursing more serious sanctions, such as a civil penalty order. 368. Further, all of the new strict liability offences inserted by this Schedule will either involve: a) contravention of a specific direction given under the Act; or b) non-compliance of specific requirements or conditions, such as those specified on an import permit, or by an approved arrangement. They will should not require the issuing officer to exercise judgement as to the legal liability or make a conclusive assessment of rights or obligations. 369. It is therefore appropriate to enable infringement notices to be issued as an alternative means of managing non-compliance conduct in relation to these high-volume, low- penalty contraventions, that are on the lower end of the objective seriousness scale. Item 18 Application of amendments 370. This item provides for application provisions for amendments proposed to be made by this Schedule. 371. Subitem 18(1) would provide that proposed subsection 140(2A) of the Act, as inserted by this Schedule, applies in relation to conduct engaged in on or after the commencement of this Schedule that contravenes a direction, whether the direction was given before, on or after that commencement. There would be no retrospective application as proposed subsection 140(2A) would only apply to conduct engaged in after commencement of this Schedule. At the time of any alleged contravention of proposed subsection 140(2A), the person would have been put on notice of the 58

requirement under a direction given to them and the strict liability under proposed subsection 140(2A). The fact that the person may have been aware of their obligations before commencement, if the direction had been given before commencement, does not change this. This subitem therefore ensures that the amendments would have prospective application. 372. Subitem 18(2) would provide that proposed subsection 185(2A) of the Act, as inserted by this Schedule, applies in relation to goods brought or imported into Australian territory on or after the commencement of this Schedule. This ensures that the amendments would have prospective application. 373. Subitem 18(3) would provide that proposed subsection 187(1A) of the Act, as inserted by this Schedule, applies in relation to conduct engaged in on or after the commencement of this Schedule that contravenes a condition of a permit, whether the permit was granted before, on or after that commencement. There would be no retrospective application as proposed subsection 187(1A) would only apply to conduct engaged in after commencement of this Schedule. At the time of any alleged contravention of proposed subsection 187(1A), the importer would have been put on notice of conditions on an import permit and the strict liability under proposed subsection 187(1A). The fact that the importer may have been aware of conditions of an import permit before commencement, if the permit granted before commencement, does not change this. This subitem therefore ensures that the amendments would have prospective application. 374. Subitem 18(4) would provide that proposed subsection 187(3A) of the Act, as inserted by this Schedule, applies in relation to conduct engaged in on or after the commencement of this Schedule that contravenes a condition of a permit, whether the permit was suspended or revoked before, on or after that commencement. There would be no retrospective application as proposed subsection 187(3A) would only apply to conduct engaged in after commencement of this Schedule. At the time of any alleged contravention of proposed subsection 187(3A), the importer would have been put on notice of conditions on a suspended or revoked import permit and the strict liability under proposed subsection 187(3A). The fact that the importer may have been aware of conditions of an import permit before commencement, if the permit suspended or revoked before commencement, does not change this. This subitem therefore ensures that the amendments would have prospective application. 375. Subitem 18(5) would provide that proposed subsections 243(2A), 251(2A) and 350(2A) of the Act, as inserted by this Schedule, apply in relation to conduct engaged in on or after the commencement of this Schedule that contravenes a direction, whether the direction was given before, on or after that commencement. There would be no retrospective application as proposed subsections 243(2A), 251(2A) and 350(2A) would only apply to conduct engaged in after commencement of this Schedule. At the time of any alleged contravention of proposed subsections 243(2A), 251(2A) and 350(2A), the person would have been put on notice of the requirement under a direction given to them and the strict liabilities under proposed subsections 243(2A), 251(2A) and 350(2A) The fact that the person may have been aware of their obligations before commencement, if the direction had been given before commencement, does not change this. This subitem therefore ensures that the amendments would have prospective application. 59

376. Subitem 18(6) would provide that proposed subsection 428(2A) of the Act, as inserted by this Schedule, applies in relation to conduct engaged in on or after the commencement of this Schedule. This ensures that the amendments would have prospective application. 377. Subitem 18(6) would provide that proposed subsection 429(5A) of the Act, as inserted by this Schedule, applies in relation to conduct engaged in on or after the commencement of this Schedule that contravenes a direction, whether the direction was given before, on or after that commencement. There would be no retrospective application as proposed subsection 429(5A) would only apply to conduct engaged in after commencement of this Schedule. At the time of any alleged contravention of proposed subsection 429(5A), the person would have been put on notice of the requirement under a direction given to them and the strict liability under proposed subsection 429(5A). The fact that the person may have been aware of their obligations before commencement, if the direction had been given before commencement, does not change this. This subitem therefore ensures that the amendments would have prospective application. 60

ATTACHMENT A Statement of Compatibility with Human Rights Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 Biosecurity Amendment (Advanced Compliance Measures) Bill 2023 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 (Advanced Compliance Measures) Bill 2023 (the Bill) would amend the Biosecurity Act 2015 (the Act) to ensure that the biosecurity regulatory regime, in particular compliance measures under the regime, is well adapted to the evolving biosecurity environment. Protecting Australia from increasing biosecurity risks and responding to emerging threats requires constant vigilance and oversight to prepare for the new and increasing challenges the biosecurity system faces. These include increased biosecurity threats, fuelled by increased numbers of travellers, diversifying trade and cargo, and changes in climate. These increasing biosecurity threats create a need for greater prevention and deterrence measures. Access to accurate and complete information relating to travellers, goods and conveyances is key to assessing and managing biosecurity risk. Those that knowingly provide false or misleading information or documents are putting Australia's human, plant and animal health at significant risk. The Bill would ensure that the associated civil penalties would reflect the potential harm of their actions. The 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. The Bill would amend the Act to: • enable the Director of Biosecurity (Director) to require each person within a class of persons who intends to enter, or enters, Australian territory on an incoming aircraft or vessel to: o provide information for the purpose of assessing the level of biosecurity risk associated with the person and any goods that the person has with them; o produce a passport or other travel document to the Director for either or both of the following purposes: ▪ assessing the level of biosecurity risk associated with the person and any goods that the person has with them; ▪ the future profiling, or future assessment, of biosecurity risks (new paragraph 196(3A)(a)); • enable the Director to scan any passport or travel document so produced, and collect and retain personal information obtained as part of that production or scanning for either or both of the purposes outlined above (new paragraphs 196(3A)(b) and (c)); 61

• create a new civil penalty provision for persons who are required to produce a passport or travel document, but do not comply with such requirement. The new civil penalty provision would also be subject to the infringement notice scheme under the Act (new subsection 196(5)); • make amendments to Chapter 7 of the Act in relation to the requirement to give notice to a biosecurity industry participant of a proposed variation, suspension or revocation of an approved arrangement. Specifically, the amendments would introduce a new procedural fairness requirement for proposed variations and consolidate notice requirements for a proposed variation, suspension or revocation into a single provision, with the option to give a reprimand as an alternative sanction; • increase civil penalties that apply where an individual, or operator of an aircraft or vessel, fails to comply with certain requirements, directions or measures in Chapter 2 of the Act, which deals with managing biosecurity risks relating to human health; • increase civil penalties for contraventions of sections 438, 439, 532 and 533 of the Act, which apply where a person gives false or misleading information or documents knowing that the information or document is false or misleading in a material particular; • make a minor technical amendment to paragraph 439(1)(c) of the Act to clarify its intent; and • create a number of strict liability offences which are proposed to be subject to the infringement notice framework under the Act as it triggers the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act). Schedule 1 - Assessing biosecurity risk for persons on incoming aircraft or vessel Currently, subsection 196(1) of the Act, read together with section 53 of the Biosecurity Regulation 2016 (the Regulation), provides that section 196 applies to each of the following persons who intends to enter, or enters, Australian territory on an incoming aircraft or vessel: a) persons who were, are, or will be, passengers on an incoming aircraft or vessel; b) persons who were, are, or will be, members of the crew of an incoming aircraft or vessel; c) the person who was, is, or will be, the person in charge of an incoming aircraft or vessel. In effect, this covers travellers, crew and persons in charge of an aircraft or vessel who arrive or intend to arrive, in Australian territory. Currently, subsection 196(2) of the Act provides that the Director of Biosecurity (the Director) (in practice, a biosecurity officer, acting as delegate) may require a person to whom section 196 applies to provide information (including by answering questions) for the purpose of assessing the level of biosecurity risk associated with the person and any goods that the person has with them. The effect of this is the Director can only require the provision of information from an individual traveller, member of a crew or the person in charge of an 62

aircraft or vessel. Put another way, the requirement to produce information and the provision of such information may only occur in a one-to-one interaction between a biosecurity officer and an individual. Schedule 1 to the Bill would amend Part 2 of Chapter 4 of the Act to enable the Director to require each person within a class of persons who intends to enter, or enters, Australian territory on an incoming aircraft or vessel to provide information for the purpose of assessing the level of biosecurity risk associated with the person and any goods that the person has with them. Assessing the biosecurity risk associated with persons arriving in Australian territory and the goods they have with them on an individual basis does not allow for the most effective and efficient management of associated biosecurity risks. Therefore, in order to better assess biosecurity risks arising from incoming travellers, Schedule 1 to the Bill would amend section 196 of the Act to allow the Director to require the provision of information by classes of person, as well as by an individual. For example, these proposed measures would allow the Director to include each person on a flight or a vessel (including a cruise ship) in a class and then require every person in that class to provide information so the Director can assess the level of biosecurity risk associated with them and the goods they have with them, rather than having to require the provision of information from each person individually. This would be an effective addition to the current biosecurity management options for incoming travellers, particularly for example where flights or vessels are arriving in Australian territory from a country or region where there is a heightened risk posed by a disease or pest that, should it enter Australia, would have a serious and adverse impact on the economy, the environment, flora and fauna and the nation's agricultural sector. Most people arriving in Australian territory comply with laws that reflect the critical importance of the nation's biosecurity framework which protects Australia's unique environment, its people, animals, plants and economy. However, there continues to remain a minority who contravene such requirements. In order to better manage biosecurity risks associated with incoming travellers, it is important for biosecurity officers to deploy resources in a more effective, efficient and focussed manner. A strategy of targeted intervention is intended to manage biosecurity risks arising from incoming travellers more effectively and focus resources on those persons who would seek to flout Australia's critical biosecurity laws. To this end, Schedule 1 of the Bill would insert new subsection 196(3A) into Division 3 of Part 2 of Chapter 4 of the Act, to enable the Director to require each person within a class of persons who intends to enter, or enters, Australian territory on an incoming aircraft or vessel to produce a passport or other travel document to the Director for either or both of the following purposes: a) assessing the level of biosecurity risk associated with the person and any goods that the person has with them; b) the future profiling, or future assessment, of biosecurity risks; and to scan any such passport or travel document, and collect and retain personal information obtained as part of that production or scanning for the purposes outlined above. 63

These measures would also create a new civil penalty provision. Where a person is required to produce a passport or travel document, that person must comply with such requirement. The maximum civil penalty for a contravention of this provision would be 120 penalty units. The new civil penalty provision would also be subject to the infringement notice scheme under the Act. The purpose of requiring the production of a passport or travel document from a person is to provide more efficient, effective and targeted management of biosecurity risk in relation to incoming travellers. Requiring persons to produce their passport or travel document allows for this. A biosecurity officer would be able to scan the relevant document and, in doing so, access information from the Agriculture Department's systems about the particular individual which is relevant to their risk profile from a biosecurity perspective. This could include their history of compliance with biosecurity laws. In this way, biosecurity officers would have access to relevant information which would allow them to make an on-the-spot risk assessment in relation to each person. Dependent on the nature and scope of the relevant information, including a person's history of compliance with biosecurity laws, this would enable a biosecurity officer to then undertake more targeted intervention and investigation if appropriate. The aim of this targeted approach is to protect Australia, its people, animals, plants and economy. This Schedule would commence on the day after the proposed Act receives the Royal Assent. The civil penalty provision created by this Schedule would have prospective application. Schedule 2 - Approved Arrangements The amendments to Chapter 7 of the Act relating to the variation, suspension or revocation of approved arrangements would: a) introduce a new procedural fairness requirement for the Director of Biosecurity or the Director of Human Biosecurity (the relevant Director) to give notice of a proposed variation to the biosecurity industry participant covered by an approved arrangement and invite the biosecurity industry participant to give a written submission within 14 days in relation to the proposed variation; and b) streamline existing notice requirements in relation to a proposed suspension or revocation of an approved arrangement by consolidating these requirements into a single provision along with the new requirements for notice of a proposed variation, allowing flexibility when appropriate for the relevant Director to issue a single notice in relation to one or more of these proposed outcomes; and c) introduce an alternative sanction of a reprimand, which may be given if the relevant Director does not consider it appropriate to vary, suspend or revoke an approved arrangement after receiving the biosecurity industry participant's written submission. An approved arrangement provides 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. 64

The requirements for giving notice of a proposed suspension or revocation would be the same as in the current legislation but would be re-located to a new consolidated provision. The amendments would clarify that the relevant Director could propose alternative outcomes in the one notice provided that the grounds for each of those outcomes are available under the Act. The amendments would introduce a new sanction of a reprimand, which would increase the range of sanctions available to the relevant Director to respond to alleged conduct. The reprimand would not have any immediate consequences for the biosecurity industry participant but would put the biosecurity industry participant on notice in relation to their future conduct. In practice, the reprimand would be communicated to the biosecurity industry participant in confidence by written notice. Together, these amendments would permit the relevant Director to decide on the most appropriate outcome for alleged conduct after receiving the biosecurity industry participant's written submissions, rather than needing to form a view as to the most appropriate proposed outcome before inviting submissions from the biosecurity industry participant. This would allow the relevant Director to respond swiftly to alleged conduct on an informed basis. Overall, the amendments preserve existing procedural fairness requirements for proposed suspensions and revocations while introducing into the legislation a new procedural fairness requirement for proposed variations to ensure that the biosecurity industry participant is always given prior notice of the variation decision. Schedule 3 - Increased civil penalties The amendments to civil penalty provisions relating to managing human biosecurity risks in Schedule 3 would increase a number of civil penalties to address the evolving human biosecurity risk environment. The amendment would ensure that the penalties are high enough to act as a deterrent in a public health environment where non-compliance with current penalties may be seen as a cost of doing business or otherwise worth the risk. The increases reflect the serious consequences to human health, and the potential effects on Australia's economy and public health systems, of contravening provisions relating to entering or leaving Australian territory, preventative biosecurity measures determined by the Health Minister, bringing human remains into Australian territory and human health response zone requirements. The ongoing evolution of communicable diseases in the world poses a high risk to Australia's human biosecurity, and the current civil penalty regime no longer serves as a proportionate deterrent against non-compliance in the face of growing human biosecurity threats. Schedule 3 would also increase the civil penalties for knowingly providing false or misleading information or documents under the Act. The proposed increases are intended to better reflect the seriousness of the contravening conduct. Contraventions can have a significant negative impact on the environment, animal and plant health, human health, and the economy. Schedule 3 to the Bill would amend the following provisions to increase civil penalties: 65

Section 46 Section 46 of the Act provides for civil penalties for failing to comply with certain requirements for entering or leaving Australian territory. Subsection 46(1) provides for a civil penalty provision that applies where an individual to whom a requirement under section 44 (entry requirements) applies does not comply with the requirement. The civil penalty provision in subsection 46(1) currently carries a maximum civil penalty of 30 penalty units. This item would increase the maximum civil penalty that a court can impose under subsection 46(1) to 150 penalty units. Subsection 46(2) of the Act provides for a civil penalty provision that applies where an operator of an outgoing passenger aircraft or vessel to whom a requirement under paragraph 45(6)(c) of the Act (manner of treating aircraft or vessel) applies does not comply with the requirement. The civil penalty provision in subsection 46(2) of the Act currently carries a maximum civil penalty of 30 penalty units. Schedule 3 to the Bill would increase the maximum civil penalty that a court can impose under subsection 46(2) to 1,000 penalty units. Subsection 46(3) of the Act provides for a civil penalty provision that applies where an individual to whom a requirement under paragraph 45(6)(d), (e), (f), (g) or (h) of the Act (exit requirements) applies does not comply with the requirement. The civil penalty provision in subsection 46(3) of the Act currently carries a maximum civil penalty of 30 penalty units. Schedule 3 to the Bill would increase the maximum civil penalty that a court can impose under subsection 46(3) to 150 penalty units. Section 44 of the Act allows the Health Minister to determine one or more requirements for individuals who are entering Australian territory at a landing place or port in accordance with certain provisions of the Act. Section 45 of the Act provides for exit requirements for individuals who are leaving Australian territory and for operators of outgoing passenger aircraft or vessels. Paragraph 45(2)(a) of the Act allows the Health Minister to determine one or more requirements for individuals who are leaving Australian territory and paragraph 45(2)(b) allows the Health Minister to determine one or more requirements for operators of outgoing passenger aircraft or vessels. Paragraph 45(6)(c) of the Act allows the Health Minister to determine a requirement for an operator of an outgoing passenger aircraft or vessel to treat the aircraft or vessel in a specified manner. Paragraphs 45(6)(d) to (h) of the Act allow the Health Minister to determine specific requirements for individuals. These include a requirement for the individual to provide a declaration or evidence as to whether they have received a specified vaccination or other prophylaxis, or of where the individual has been before leaving Australian territory; to complete a questionnaire relating to the individual's health; to provide a declaration in relation to a specified listed human disease; or to be screened (whether by requiring the individual to be screened by equipment, by providing a declaration, or in any other way). The entry requirement provisions apply in the context of preventing, or reducing the risk of, a listed human disease entering, or emerging, establishing itself, or spreading in, Australian territory or a part of Australian territory. The exit requirement provisions apply in the context of preventing a listed human disease from spreading to another country, or if a 66

recommendation has been made to the Health Minister by the World Health Organization under Part III of the International Health Regulations (IHR). The increased penalties proposed by table items 1 to 3 of Schedule 3 to the Bill would be appropriate, as they reflect the seriousness of the contraventions and to seek to deter non- compliance with these provisions. Entry and exit requirements are made to prevent, or reduce the risk of, a listed human disease emerging, establishing itself, spreading in, or leaving Australian territory. Consequences of non-compliance with these requirements are likely to result in a serious and unacceptable risk to human health, Australian public health systems, and consequentially, the Australian economy. It is important to have significant deterrents for non-compliance to measures that are designed to protect the Australian public and the wider world from harm. The increased penalty will act as a significant deterrent, commensurate to the public health risk of contravention of the relevant provisions. The civil penalty amount of 1,000 penalty units in subsection 46(2) would relate to the contravention of requirements that operate in a regulatory context and would not apply to the general public, but would apply to operators of aircraft and vessels who should reasonably be aware of their obligations under the Act. Section 52 Section 52 of the Act provides for a civil penalty provision that applies where a person to whom a biosecurity measure specified in accordance with subsection 51(2) applies does not comply with the biosecurity measure. The civil penalty provision in section 52 of the Act currently carries a maximum civil penalty of 120 penalty units. Schedule 3 to the Bill would increase the maximum civil penalty that a court can impose under section 52 to 150 penalty units. Subsection 51(2) of the Act allows the Health Minister to make a determination that specifies any one or more of certain biosecurity measures to be taken by specified classes of persons, such as banning or restricting a behaviour or practice, and requiring a behaviour or practice. This provision applies in the context of preventing a behaviour or practice that may cause or contribute to a listed human disease entering, or emerging, establishing itself, or spreading in, Australian territory or a part of Australian territory. The increased civil penalties are appropriate to reflect the seriousness of the contravention and to seek to deter non-compliance with this provision. Preventative biosecurity measures are made to prevent, or reduce the risk of, a listed human disease emerging, establishing itself, spreading in, or leaving, Australian territory. Consequences of non-compliance with these requirements are likely to result in a serious and unacceptable risk to human health, Australia's public health systems, and consequentially, the Australian economy. It is important to have significant deterrents for non-compliance with measures that are designed to protect the Australian public from harm. The increased penalty will ensure it is a significant deterrent, commensurate to the public health risk of contravention. 67

Sections 110, 111 and 112 Section 110 of the Act provides for human remains to be brought into Australia. Subsection 110(6) provides for a civil penalty provision that applies where a person to whom a requirement under subsection 110(2) applies does not comply with the requirement. The civil penalty provision in subsection 110(6) of the Act currently carries a maximum civil penalty of 30 penalty units. Schedule 3 to the Bill would increase the maximum civil penalty that a court can impose under subsection 110(6) to 120 penalty units. Subsection 110(2) of the Act allows the Director of Human Biosecurity to specify in writing, classes of human remains, and the requirements for bringing human remains into Australian territory or managing human remains in those classes after bringing them into Australian territory. These provisions apply in the context of preventing, or reducing the risk of, a listed human disease entering, or emerging, establishing itself, or spreading in, Australian territory or a part of Australian territory. Section 111 of the Act provides for directions to be given in relation to human remains. Subsection 111(3) provides for a civil penalty provision that applies where a person to whom a direction is given under section 111 does not comply with the direction. The civil penalty provision in subsection 111(3) of the Act currently carries a maximum civil penalty of 30 penalty units. Schedule 3 to the Bill would increase the maximum civil penalty that a court can impose under subsection 111(3) to 120 penalty units. Section 111 of the Act allows a biosecurity officer, human biosecurity officer or chief human biosecurity officer, to give a written direction for managing specified human remains to the person who is responsible for managing the human remains, if: a) the officer is satisfied that those remains are likely to be infected with a listed human disease (whether the remains were brought into Australian territory as mentioned in section 110, or were already in Australian territory); or b) a person did not comply with a requirement specified under subsection 110(2) in relation to those remains. Section 112 of the Act makes provision in relation to individuals who have died in transit or on arrival. Subsection 112(4) of the Act provides for a civil penalty provision that applies where a person to whom a requirement under subsection 112(1) applies does not comply with the requirement. The civil penalty provision in subsection 112(4) of the Act currently carries a maximum civil penalty of 30 penalty units. Schedule 3 to the Bill would increase the maximum penalty that a court an impose under subsection 112(4) to 120 penalty units. Subsection 112(1) of the Act allows the Director of Human Biosecurity to specify, in writing, requirements for classes of persons who bring into Australian territory, or who manage, the bodies of deceased individuals who die in transit before arriving in Australian territory or on arrival in Australian territory. Human remains could be infected with serious infectious diseases including listed human diseases and emerging infectious diseases of international concern. Requirements and directions that are imposed under sections 110, 111 and 112 ensure that human remains are transported, handled and managed in accordance with requirements under the Act to minimise risk of any potential infection being transmitted to living persons. It is important to Australia's 68

human biosecurity that human remains being brought into and managed in Australian territory are appropriately controlled. Although the risk is low in most instances of infected human remains transmitting infection, the consequences are extremely high, and the increased penalty for non-compliance with these provisions is an appropriate recognition of the risk and consequences. The proposed increase to the civil penalty provision reflects the serious harm that can result from non-compliance with requirements relating to human remains and is intended to achieve the necessary deterrent effect for non-compliance with the Act. Section 116 Section 116 of the Act provides for a civil penalty provision where a person to whom a requirement in a determination made under section 113 (human health response zone) applies does not comply with the requirement. The civil penalty provision in section 116 currently carries a maximum civil penalty of 30 penalty units. Schedule 3 to the Bill would increase the maximum civil penalty that a court can impose under section 116 to 120 penalty units. Section 113 of the Act allows the Director of Human Biosecurity to determine that a specified area within a State or Territory is a human health response zone, if the Director is satisfied that it is necessary to do so for the purposes of preventing, or reducing the risk of, a listed human disease emerging, establishing itself or spreading in Australian territory or a part of Australian territory. The determination must specify: a) the listed human disease to which the determination relates; and b) either or both of the following: i. any requirements for individuals who are entering or leaving the zone; ii. a requirement that specified classes of individuals must not enter the zone; and c) the period during which the determination is in force, which must not be more than 3 months. Human health response zones apply in the context of preventing, or reducing the risk of, a listed human disease entering, or emerging, establishing itself, or spreading in, Australian territory or a part of Australian territory. Human health response zones are a key part of the human biosecurity management framework, particularly during the early stages of a human health emergency or event. Human health response zones may be used to manage incidents such as localised disease outbreaks or a laboratory hazard. They are important for the legitimate objective of preventing, or reducing the risk of, a listed human disease emerging, establishing or spreading in Australian territory. Human health response zones are made only when the circumstances of the requirements are appropriate and adapted to prevent, or reduce the risk of, the specified listed human disease emerging, establishing itself or spreading in Australian territory or a part of Australian territory. It is important to have significant deterrents for non-compliance to measures that are designed to protect the Australian public from harm. The proposed increase to the maximum civil penalty reflects the serious harm to human health that can result from non-compliance with requirements under a human health response zone determination and is intended to achieve the necessary deterrent effect for non-compliance with the Act. 69

Section 438 Subsection 438(1) of the Act provides for a civil penalty provision where a person gives information to a biosecurity industry participant and does so knowing that the information is false or misleading or omits any matter or thing without which the information is misleading. Subsections 438(2) and (3) provide that subsection 438(1) does not apply if the information: a) is not false or misleading in a material particular; or b) did not omit any matter or thing without which the information would be misleading in a material particular. The civil penalty provision in subsection 438(1) currently carries a maximum civil penalty of 120 penalty units. This item would increase the maximum civil penalty that a court can impose under subsection 532(1) to 600 penalty units. The term "biosecurity industry participant" is defined in section 14 of the Act and means a person who is the holder of the approval of an approved arrangement (including a person to whom an approved arrangement has been transferred in the circumstances prescribed by the Regulation). Chapter 7 of the Act enables the Director of Biosecurity or the Director of Human Biosecurity 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. Section 438 ensures that persons who are required to give information to a biosecurity industry participant do not provide, or omit to provide, information which is false or misleading in a material particular. The proposed increase to the civil penalty amount is intended to achieve the necessary deterrent effect for non-compliance with the Act. The increase to the penalty amount is appropriate to reflect the seriousness of the contravention and to seek to deter non-compliance with the provision. Section 439 Subsection 439(1) of the Act provides for a civil penalty provision where a person produces a document to a biosecurity industry participant and does so knowing that the document is false or misleading. Subsections 439(2) and (3) provide that subsection 439(1) does not apply if the document is not false or misleading in a material particular. The civil penalty provision in subsection 439(1) currently carries a maximum civil penalty of 120 penalty units. This item would increase the maximum civil penalty that a court can impose under subsection 439(1) to 600 penalty units. Section 439 ensures that persons who are required to produce a document to a biosecurity industry participant do not provide a document which is false or misleading in a material particular. The proposed increase to the civil penalty amount is intended to achieve the necessary deterrent effect for non-compliance with the Act. The increase to the penalty 70

amount is appropriate to reflect the seriousness of the contravention and to seek to deter non- compliance with the provision. Discussion of amendments to section 438 and 439 Accurate and complete information is key in assessing and managing biosecurity risk. Providing false or misleading information or documents could jeopardise Australia's agricultural industry through a biosecurity threat potentially entering, spreading and establishing itself within Australia. The proposed increase to the civil penalty amounts in subsections 438(1) and 439(1) would provide a pecuniary penalty range that allows for greater flexibility in seeking a penalty amount that can be adjusted to reflect seriousness of conduct relative to different regulated entities or individuals. A lower amount may be sought in response to one-off contraventions of these provisions by regulated entities or individuals who do not have any history of previous non-compliance. A higher amount may be sought to be imposed against regulated entities or individuals that have a history of non-compliance. The Commonwealth may apply to a court to impose a higher penalty amount in situations where a regulated entity or other individual attempts to obtain significant commercial gain by knowingly providing false or misleading information. It is appropriate for higher penalties to apply to these provisions than under the current penalty regime, as individuals and businesses are provided with information about, and are generally expected to have a sound knowledge of, their responsibilities under the Act. Further, individuals arriving in Australia are provided with a wide range of information about biosecurity requirements, so should be aware of their responsibilities under the Act as well. The operator of an incoming aircraft or vessel entering Australia must ensure that information on Australia's biosecurity requirements is provided to each person (including crew) on board the aircraft or vessel before it arrives at a landing place or port. This information may be given verbally or in writing, including by means of an audio, or audio-visual, recording and is published in multiple languages. All international travellers arriving in Australia must also complete an incoming passenger card (IPC), which contains information on biosecurity requirements that a person must comply with. The IPC is published in multiple different languages. Regulated entities, such as importers or biosecurity industry participants who are authorised to carry out biosecurity activities in accordance with an approved arrangement, have a responsibility to know and understand their obligations under the Act. Section 532 Subsection 532(1) of the Act provides for a civil penalty provision where a person gives information in compliance or purported compliance with the Act and does so knowing that the information is false or misleading or omits any matter or thing without which the information is misleading. Subsections 532(2) and (3) provides that subsection 532(1) does not apply if the information: a) is not false or misleading in a material particular; or b) did not omit any matter or thing without which the information would be misleading in a material particular. 71

The civil penalty provision in subsection 532(1) currently carries a maximum civil penalty of 60 penalty units. The Bill would increase the maximum civil penalty that a court can impose under subsection 532(1) to 600 penalty units. Section 532 ensures that persons who are required to give information under the Act do not provide, or omit to provide, information which is false or misleading in a material particular. The proposed increase to the civil penalty amount is intended to achieve the necessary deterrent effect for non-compliance with the Act. The increase to the penalty amount is appropriate to reflect the seriousness of the contravention and to seek to deter non- compliance with the provision. Section 533 Subsection 533(1) of the Act provides for a civil penalty provision where a person produces a document to another person in compliance or purported compliance with the Act and does so knowing that the document is false or misleading. Subsection 533(2) and (3) provides that subsection 533(1) does not apply if the document is not false or misleading in a material particular. The civil penalty provision in subsection 533(1) currently carries a maximum civil penalty of 60 penalty units. The Bill would increase the maximum civil penalty that a court can impose under subsection 533(1) to 600 penalty units. Section 533 ensures that persons who are required to produce documents to another person, including a biosecurity officer, under the Act do not provide documents which are false or misleading in a material particular. The proposed increase to the civil penalty amount is intended to achieve the necessary deterrent effect for non-compliance with the Act. The increase to the penalty amount is appropriate to reflect the seriousness of the contravention and to seek to deter non-compliance with the provision. Discussion of amendments to sections 532 and 533 The proposed increase to the civil penalty amounts in subsections 532(1) and 533(1) will provide a pecuniary penalty range that allows for greater flexibility in seeking a penalty amount that can be adjusted to reflect seriousness of conduct relative to different persons, including regulated entities. A lower amount may be sought in response to one-off contraventions of these provisions by persons who do not have any history of previous non- compliance. A higher amount may be sought to be imposed against persons that have a history of non-compliance. The Commonwealth may apply to a court to impose a higher penalty amount in situations where a person attempts to obtain significant commercial gain by knowingly providing false or misleading information. For example, an importer may knowingly provide false or misleading information to the Agriculture Department to import goods that do not meet published import conditions. Adequately deterring such a person from looking to obtain a commercial advantage by knowingly providing false or misleading information or documents warrants the proposed increase to the civil penalty amount for these provisions. It is appropriate for higher penalties to apply to these provisions than under the current penalty regime, as businesses are provided with information about, and are generally 72

expected to have a sound knowledge of, their responsibilities under the Act. Further, individuals arriving in Australia are provided with a wide range of information about biosecurity requirements, so should be aware of their responsibilities under the Act as well. The operator of an incoming aircraft or vessel entering Australia must ensure that information on Australia's biosecurity requirements is provided to each person (including crew) on board the aircraft or vessel before it arrives at a landing place or port. This information may be given verbally or in writing, including by means of an audio, or audio-visual, recording and is published in multiple languages. All international travellers arriving in Australia must also complete an IPC, which contains information on biosecurity requirements that a person must comply with. The IPC is published in multiple different languages. Regulated entities, such as importers or biosecurity industry participants who are authorised to carry out biosecurity activities in accordance with an approved arrangement, have a responsibility to know and understand their obligations under the Act. The proposed increase to the civil penalty amount will enable the legislation to keep pace with new and emerging biosecurity threats by providing an adequate deterrent effect against conduct that may result in pests and diseases entering Australia. Schedule 4 - Strict liability offences and infringement notices The amendments to insert new strict liability offences would create new strict liability offences under the following proposed provisions: Subsection 140(2A) Subsection 140(2A) would provide that a person commits an offence of strict liability if: the person engages in conduct that contravenes a direction given under paragraph 135(2)(b) (to export goods from Australian territory) or 138(1)(a) (to carry out a biosecurity measure that has been required). Section 131 of the Act provides that if a biosecurity officer suspects, on reasonable grounds, that the level of biosecurity risk associated with goods that are subject to biosecurity control is unacceptable, a biosecurity officer may require biosecurity measures to be taken in relation to the goods, as set out under Division 5 of Part 1 of Chapter 3 of the Act (including sections 135 and 138). Subsection 185(2A) Subsection 185(2A) would provide that a person commits a strict liability offence if the person brings or imports prohibited goods or suspended goods into Australian territory. Under subsection 173(1) of the Act, the Director of Biosecurity and the Director of Human Biosecurity may jointly determine that specified goods, or a specified class of goods, must not be brought or imported into Australian territory. These goods are prohibited goods. Before making such a determination, each Director must be satisfied that the level of biosecurity risk associated with the goods, or the class of goods, is unacceptable; and biosecurity measures would not be able to be taken to reduce that level of biosecurity risk to an acceptable level. Under subsection 182(1) of the Act, 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, not longer than 6 73

months. These goods are suspended goods. Amongst other things, the Director of Biosecurity may only make a determination in relation to suspended goods only if the Director is satisfied that the level of biosecurity risk associated with the goods, or the class of goods, is unacceptable. Subsections 187(1A) and 187(3A) Subsection 187(1A) would provide that a person commits an offence of strict liability if the person is the holder of an import permit granted under section 179, and the person engages in conduct which contravenes a condition of the permit. Subsection 187(3A) would provide that a person commits an offence of strict liability if: a) the person is the holder of an import permit granted under section 179; and b) the permit has been suspended or revoked under section 181; and c) a condition of the permit continues to apply because of subsection 181(3) d) the person engages in conduct which contravenes a condition of the permit. Under subsection 179(1) of the Act, the Director of Biosecurity may, on application by a person under section 177 for a permit to bring or import particular goods into Australian territory, grant a permit. Subsection 180(1) provides that a permit may be granted under section 179 subject to conditions. Before deciding to grant a permit under section 179, the Director of Biosecurity must consider, amongst other things: a) the risk assessment that was conducted in relation to the goods; b) the level of biosecurity risk associated with the goods; c) whether it would be necessary to impose conditions on the permit to reduce the level of biosecurity risk. Subsection 243(2A) Subsection 243(2A) would provide that a person commits an offence of strict liability if the person is given a direction under a provision of Division 2 of Part 4 of Chapter 4 of the Act, and the person engages in conduct that contravenes the direction. Division 2 of Part 4 of Chapter 4 of the Act provides for various directions relating to the landing of aircrafts, for example, section 240 provides that a biosecurity officer may give the person in charge or the operator of an aircraft that intends to land at a landing place in Australian territory a direction requiring the aircraft to land at a specified landing place, or not to land at one or more specified landing places in Australian territory. A direction may be given only if a biosecurity officer is satisfied that the direction is necessary to manage biosecurity risks associated with the aircraft or any person or thing on board the aircraft. Similarly, a chief human biosecurity officer or human biosecurity officer may issue such a direction under section 242 of the Act, where a chief human biosecurity officer or a human biosecurity officer is satisfied, on reasonable grounds, that the direction is necessary to manage human health risks associated with the aircraft or any person or thing on board the aircraft. 74

Subsection 251(2A) Subsection 251(2A) would provide that a person commits an offence of strict liability if the person is given a direction under a provision of Division 3 of Part 4 of Chapter 4 of the Act, and the person engages in conduct which contravenes the direction. Division 3 of Part 4 of Chapter 4 of the Act provides for various directions relating to the mooring of vessels, for example, section 248 provides that a biosecurity officer may give the person in charge or the operator of a vessel that intends to be moored at a port in Australian territory a direction requiring the vessel to be moored at a specified port, or not to be moored at one or more specified ports in Australian territory. A direction may be given only if a biosecurity officer is satisfied that the direction is necessary to manage biosecurity risks associated with the vessel or any person or thing on board the vessel. Similarly, a chief human biosecurity officer or human biosecurity officer may issue such a direction under section 250 of the Act, where a chief human biosecurity officer or a human biosecurity officer is satisfied, on reasonable grounds, that the direction is necessary to manage human health risks associated with the vessel or any person or thing on board the vessel. Subsection 350(2A) Subsection 350(2A) would provide that a person commits an offence of strict liability if the person is given a direction under paragraph 347(1)(a), (b) or (c), and the person engages in conduct which contravenes the direction. Section 347 of the Act provides that if a biosecurity officer requires a biosecurity measure to be taken in relation to goods or premises (including conveyances) under Subdivision C (treatment powers) or Subdivision D (destruction powers) of Division 2 of Part 3 of Chapter 6, or under a regulation made for the purposes of section 346, a biosecurity officer may: a) if the biosecurity measure is required in relation to goods--direct a person in charge of the goods to carry out the biosecurity measure; or b) if the biosecurity measure is required in relation to a conveyance: i. direct the person in charge or the operator of the conveyance to carry out the biosecurity measure, unless it is destruction of the conveyance; or ii. if the measure is destruction of the conveyance--direct the operator or the owner of the conveyance to carry out the measure; or c) if the biosecurity measure is required in relation to premises--direct the owner of the premises to carry out the biosecurity measure. Division 2 of Part 3 provides for powers that may be exercised. Section 332 under Division 2 provides that a power set out under Division 2 must not be exercised in relation to goods or premises in Australian territory unless the power is specified in a biosecurity control order that relates to the goods or premises, or the power is specified in a biosecurity response zone determination that relates to the goods or premises and the goods or premises are in the biosecurity response zone. Subsection 353(1) of the Act provides that the Director of Biosecurity may make a biosecurity control order in relation to relevant goods or premises and the relevant disease or pest if: a) a biosecurity officer suspects, on reasonable grounds, that: 75

i. a disease or pest may be present in or on goods or premises in Australian territory; and ii. the disease or pest poses an unacceptable level of biosecurity risk; and b) the Director of Biosecurity is satisfied that biosecurity measures need to be taken in relation to the goods or premises for the purpose of managing the biosecurity risk posed by the disease or pest. Subsection 365(1) of the Act provides that the Director of Biosecurity may determine that a specified area in Australian territory is a biosecurity response zone if: a) a biosecurity officer suspects, on reasonable grounds, that: i. a disease or pest may be present in or on goods or premises in the area; and ii. the disease or pest poses an unacceptable level of biosecurity risk; and b) the Director of Biosecurity is satisfied it is necessary to make the determination for the purpose of managing the biosecurity risk posed by the disease or pest. Subsection 428(2A) Subsection 428(2A) would provide that a person commits an offence of strict liability if the person is a biosecurity industry participant fails to carry out certain biosecurity activities in accordance with an approved arrangement, including failing to comply with requirements or conditions of the arrangement. Chapter 7 of the 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. The Director of Biosecurity may approve the arrangement, if, amongst other things, the Director considers that the level of biosecurity risk associated with the operation of the arrangement is acceptable (section 406 of the Act). Subsection 429(5A) Subsection 429(5A) would provide that a person commits an offence of strict liability if the person is a biosecurity industry participant who is given a direction under subsection 429(1), and the person engages in conduct which contravenes the direction. Subsection 429(1) of the Act provides if a biosecurity officer is satisfied that it is necessary to do so to manage biosecurity risks associated with the operation of an approved arrangement, a biosecurity officer may give the biosecurity industry participant covered by the arrangement a direction in relation to the operation of the arrangement. These new strict liability offences would also be subject to the infringement notice scheme under the Act, as it triggers the Regulatory Powers Act. 76

In many cases, contravention of the above provisions is on the lower end of objective seriousness, but nevertheless could pose high levels of biosecurity risk, which could have significant negative consequences for Australia's economy, agricultural sector, animal, plant and human health and the environment. It is therefore critical that the appropriate regulatory measures be in place to provide specific and general deterrence, as well as to enable proportionate and appropriate penalties. Non-compliance with the relevant provisions occurs frequently in an operational context and often penalties must be imposed immediately to be effective. Under the current framework, there is no way to deal with such low-level non-compliance other than by way of prosecution or civil litigation, which is resource intensive. Proposed strict liability offences, together with them being subject to the infringement notice scheme, would reflect the potentially serious consequences of contraventions in the regulatory scheme, and ensure that non-compliance can be addressed swiftly and effectively. This Schedule would commence on the day after the proposed Act receives the Royal Assent. The civil penalty provision created by this Schedule would have prospective application. Assessment of Compatibility with Human Rights The Bill may engage the following rights: • the right to a fair trial and criminal process rights under Article 14 of the International Covenant on Civil and Political Rights (ICCPR); • the prohibition on arbitrary interference with privacy and unlawful attacks on an individual's honour and reputation under Article 17 of the ICCPR; • the right to non-discrimination under Articles 2(1) and 26 of the ICCPR; and • the right of all individuals to enjoy the highest attainable standards of physical and mental health under Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). 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 would insert a new civil penalty provision into the Act. The civil penalty provision in new subsection 196(5) relates to failing to comply with a requirement to produce a document under new subsection 196(3A). This proposed provision is outlined in detail in the Overview. Schedule 3 to the Bill would increase a number of civil penalty provisions of the Act, namely: subsections 46(1)-(3), section 52, subsection 110(6), subsection 111(3), 77

subsection 112(4), section 116, subsection 438(1), subsection 439(1), subsection 532(1) and subsection 533(1). These civil penalties apply to a failure to meet requirements under the 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 4 would create new strict liability offences under new subsections 140(2A), 185(2A), 187(1A), 187(3A), 243(2A), 251(2A), 350(2A), 428(2A) and 429(5A), which are discussed in detail in the Overview. Contraventions of these provisions, while high in volume and tend to be on the lower end of objective seriousness, could have serious consequences for the biosecurity status of Australia and thus the agricultural industry, human, plant and animal health, the environment and the economy. The new civil penalty provision in new subsection 196(5) of Schedule 1, the new strict liability offences in Schedule 4 and increased penalties under Schedule 3 would not affect the procedure by which civil and criminal proceedings are heard in relation to contraventions of civil penalty provisions or offences under the 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 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 Act. The table in subsection 523(1) of the Act lists the provisions of the Act in relation to which an infringement notice may be given. Item 10 in Schedule 1 to the Bill would insert new item 10AA in the table in subsection 523(1) of the Act. This would allow an infringement notice to be given in relation to the new civil penalty provision in new subsection 196(5). This civil penalty provision is outlined in detail in the Overview. Schedule 4 to the Bill would insert proposed new strict liability offences to the table under subsection 523(1) of the Act to have the effect that an infringement officer may give a person an infringement notice for contraventions of these strict liability offences. The strict liability offences are outlined in detail in the Overview. 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. 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 78

(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 would insert a new civil penalty provision into the Act. The civil penalty provision in new subsection 196(5) relates to failing to comply with a requirement to produce a document under new subsection 196(3A). This proposed provision is outlined in detail in the Overview. Schedule 3 to the Bill would increase a number of civil penalty provisions of the Act, namely: subsections 46(1)-(3), section 52, subsection 110(6), subsection 111(3), subsection 112(4), section 116, subsection 438(1), subsection 439(1), subsection 532(1) and subsection 533(1). These civil penalties apply to a failure to meet requirements under the 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. As discussed in the Guidance Note 2: Offence provisions, civil penalties and human rights published by the Parliamentary Joint Committee on Human Rights (PJCHR Guidance), 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 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 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. In relation to the new civil penalty provision in new subsection 196(5), the maximum penalty amount that may be imposed by a court as a civil penalty order is 120 penalty units. In relation to the increases to civil penalty provisions proposed by Schedule 3 to the Bill, the maximum penalty amount that may be imposed by a court as a civil penalty order is as follows: a) subsections 46(1) and (3) and section 52 - 150 penalty units; b) subsection 46(2) - 1,000 penalty units; c) sections 110, 111, 112 and 116 - 120 penalty units; d) section 438 - 600 penalty units; e) section 439 - 600 penalty units; f) section 532 - 600 penalty units; and g) section 533 - 600 penalty units. 79

Paragraph 82(5)(a) of the Regulatory Powers Act is applied to the 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 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 for the new civil penalty provision in subsection 196(5) in Schedule 1 would result in a maximum penalty of 600 penalty units. The application of the corporate multiplier in Schedule 3 would result in a maximum penalty under subsections 46(1) and 46(3) and section 52 of 750 penalty units. The application of the corporate multiplier in Schedule 3 would result in a maximum penalty under subsection 46(2) of 5,000 penalty units. The application of the corporate multiplier in Schedule 3 would result in a maximum penalty under subsections 110(6), 111(3), 112(4) and section 116 of 600 penalty units. The application of the corporate multiplier in Schedule 3 would result in a maximum penalty under subsections 438(1), 439(1), 532(1) and 533(1) of 3,000 penalty units. The new civil penalty in Schedule 1 to the Bill, and the concomitant infringement notice amount, should not be seen as elevating the penalties to be criminal in nature. The civil penalty in new subsection 196(5) reflects the seriousness of failing to comply with a requirement to produce a travel document. Requiring persons to produce their passport or travel document allows for a more efficient, effective and targeted management of biosecurity risk. A biosecurity officer would be able to scan the relevant document and, in doing so, access relevant information about the particular individual. This could include their history of compliance with biosecurity laws. In this way, biosecurity officers would have access to relevant information which would allow them to make an on-the-spot risk assessment in relation to each person. This would enable a biosecurity officer to then undertake more targeted intervention and investigation. The aim of this targeted approach is to protect Australia, its people, animals, plants and economy. Furthermore, persons to which a requirement to produce a travel document apply would be made aware by officials of the requirement and the need to comply. As such, the maximum civil penalty under new subsection 196(5), and the concomitant infringement notice amount, are justified to act as a deterrent to non-compliance and to reflect seriousness of any non-compliance. Schedule 3 to the Bill seeks only to increase the penalties for existing civil penalty provisions in the Act. It does not propose to amend the operation of the existing civil penalty provisions and the conduct they apply to. Persons to whom these civil penalty provision apply would be made aware by officials of the nature of the requirement or obligation that applies to them and the consequences should they not comply with the same. In particular, the proposed increases to the maximum civil penalty provisions for sections 46, 52, 110, 111, 112 and 116, should not be seen as elevating the penalties to be criminal in nature. The proposed civil penalties in sections 46, 52, 110, 111, 112 and 116 reflect the seriousness of non-compliance with their provisions. When a requirement is imposed or a direction given in order to manage human biosecurity risks, it is critical that the requirement or direction is complied with. The requirements under these provisions are a significant part of the human biosecurity management framework. They are imposed to prevent the initial entry of human biosecurity risks and to prevent the spread and establishment of human diseases, including listed human diseases and exotic emerging infectious diseases of 80

international concern. Non-compliance can lead to significant harm to human health in Australia and other countries, which results in severe illness and death. The civil penalty provisions in the Act are expressly classified 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 Act and will 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. There is also a clear distinction in the Act between civil penalties and offences (see section 8). The civil penalties will apply to people who fail to comply with various human health related requirements. The pecuniary penalty imposed by the civil penalty provision does not carry a sanction of imprisonment for non-payment. These factors all indicate that the civil penalties imposed by the Bill are civil rather than criminal in nature. The increased maximum penalty of 1,000 penalty units in subsection 46(2) of the Act for contravention of exit requirements by the operator of an aircraft or vessel reflects the serious consequences posed by the potential spread and transmission out of Australian territory of a listed human disease, and reflects that a lower penalty may not be a proportionate deterrent to non-compliance in the commercial context to which exit requirements apply. The higher civil penalty recognises the serious consequences posed by the potential outgoing spread and transmission of a listed human disease from Australian territory. This is particularly the case where the contravention is by the operator of an aircraft or vessel who can reasonably be expected to be aware of their obligations. The proposed increase to the civil penalty is intended to be a more proportionate deterrent. The proposed increase to the civil penalty represents a proportionate increase for operators of outgoing passenger aircraft or vessels whose obligations under the Act remain unchanged. An abundance of information is available on various Australian Government websites regarding their obligations under the Act. It is expected that operators understand the requirements they must comply with under the Act. Any decision made by the Health Minister under section 45(6)(c) of the Act that affects operators will be communicated as quickly and clearly as possible in the circumstance. Operators have the necessary resources required to receive guidance from legal representatives on their obligations under the Act. Every Member State under the International Health Regulations, including Australia, has a responsibility to do all things possible to prevent the international spread of disease. An increase to this civil penalty would strongly convey the importance of operators' compliance with requirements which intend to keep all other countries safe from disease and uphold Australia's international obligations. The proposed increased civil penalty reflects the serious risk presented by a scenario where a commercial operator of an aircraft or vessel fails to treat their vessel or aircraft as required for publicity reasons. It is intended to deter those who may consider non-compliance as a cost of doing business or to limit negative publicity for the airline or vessel. The proposed increases to the maximum civil penalty provisions for sections 438, 439, 532 and 533 should not be seen as elevating the penalties to be criminal in nature. The proposed civil penalties in sections 438, 439, 532 and 533 reflect the seriousness of non-compliance with their provisions. When a person is required to provide information or produce a document to a biosecurity industry participant or otherwise under the Act, it is critical to the management of biosecurity risk that the person provides information and documents which 81

are not false or misleading in a material particular, or - in the case of information - that nothing is omitted that would render that information false or misleading in a material particular. The provision of accurate, true and complete information and documentation is fundamental to the assessment and, if appropriate, the treatment of biosecurity risk. Providing false or misleading information or documents denies biosecurity officers and biosecurity industry participants the ability to properly manage biosecurity risk, thus potentially exposing Australia, its people, plants and animals, its environment and economy to diseases and pests which may have a devastating effect should they enter Australian territory. The proposed creation of new civil pecuniary penalties and the proposed increases to existing civil pecuniary penalties set out in Schedules 1 and 3 to the Bill have been set by reference to the Commonwealth Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide) (in 2023 accessible at https://www.ag.gov.au/legal- system/publications/guide-framing-commonwealth-offences-infringement-notices-and- enforcement-powers). They seek to reflect the seriousness of the contravening conduct and the risk that the conduct may pose to human health, Australia's public health system and trading reputation, the integrity of the biosecurity management system, animal or plant life or health and the environment and Australia's economy. The new and increased penalties in Schedules 1 and 3 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) and there is no sanction of imprisonment for non-payment of penalties. 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 and 3 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, only 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 - strict liability offences Schedule 4 to the Bill would insert new strict liability offences into the Act. The proposed strict liability offences are outlined in detail in the Overview. The strict liability offences that are proposed to be inserted by Schedule 4 of the Bill may engage criminal process rights contained in Article 14 of the ICCPR, including the presumption of innocence (Article 14(2)). The maximum penalty for the strict liability offences do 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 persons to whom the new strict liability offences could apply to can be reasonably expected to be aware of their obligations under the Act for the following reasons: 82

a) subsection 140(2A) - persons in charge of goods would be given a direction, and therefore would be aware of their specific obligations under the direction; b) subsection 185(2A) - prohibited or suspended goods are, in practice, rarely determined. In addition to publication requirements for legislative instruments such that the determinations would be publicly accessible on the Federal Register of Legislation, the Agriculture Department also notifies importers and potential importers of the suspension of goods through industry advice notices published on the Agriculture Department's website and the biosecurity import condition system, as well as written notices to permit holders relating to the suspended goods; c) subsection 187(1A) - persons who hold an import permit would have applied for the permit, which means that they would be well aware of the conditions specified on the permit; d) subsection 187(3A) - persons whose import permit has been suspended or revoked would be notified, therefore well aware, of the suspension or revocation, as well as the conditions that the permit specifies; e) subsection 243(2A) - persons in charge of, or operate aircrafts would be given a direction, and therefore would be aware of their specific obligations under the direction. These persons are also expected to be aware of their obligations under the Act; f) subsection 251(2A) - persons in charge of, or operate vessels would be given a direction, and therefore would be aware of their specific obligations under the direction. These persons are also expected to be aware of their obligations under the Act; g) subsection 350(2A) - person in charge of goods or premises would be given a direction, and therefore would be aware of their specific obligations under the direction; h) subsection 428(2A) - a biosecurity industry participant would be well aware of obligations under their particular approved arrangement, including requirements and conditions of the arrangement. A biosecurity industry participant would also be expected to be aware of their obligations under the Act; i) subsection 429(5A) - a biosecurity industry participant would be given a direction, and therefore would be aware of their specific obligations under the direction. A biosecurity industry participant would also be expected to be aware of their obligations under the Act. The strict liability offences in Schedule 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 83

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. Schedule 3 to the Bill proposes to increase the maximum pecuniary penalties for the civil penalties in sections 438, 439, 532 and 533, which carry a reverse burden of proof. However, the reverse burden in these provisions would only apply 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 civil penalty. Those exceptions are set out, respectively, in subsections 438(2)-(4), 439(2) and (3), 532(2) to(4), and 533(2) and (3). Each of those subsections notes that the defendant bears an evidentiary burden to the matter in the relevant subsection. In brief, the exceptions in subsections 438(2) to (4), 439(2) and (3), 532(2) and (3), and 533(2) and (3) relate to where a person seeks to establish that the civil penalty provisions in sections 438, 439, 532 and 533 do not apply to them because any information or document provided by them is not false or misleading in a material particular. The exception in subsection 438(4) is that the civil penalty provision in subsection 438(1) does not apply if, before the information was given by a person to a biosecurity industry participant, the biosecurity industry participant did not take reasonable steps to inform the person that the person may be liable to a civil penalty. Similarly, the exception in subsection 532(4) is that the civil penalty provision in subsection 532(1) does not apply if, before the information was given by a person to another person (the official) in compliance or purported compliance with the Act, the official did not take reasonable steps to inform the person that the person may be liable to a civil penalty. Therefore, the reverse burden would only apply in relation to the exception that the person is seeking to rely on, for example, that the person is authorised to engage in the conduct (under the 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 civil penalty. Further, the conduct proscribed by the civil penalties in sections 438, 439, 532 and 533 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. 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 Act 1995 (Criminal Code)). Strict liability is used in circumstances where there is public interest in ensuring that regulatory schemes are observed and it 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 84

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. Schedule 4 to the Bill seeks to insert a number of liability offences, as outlined in detail in the Overview. These strict liability offences would all have a maximum penalty of 60 penalty units, which is consistent with the principles set out in the Guide. These proposed strict liability provisions are necessary to achieve the legitimate objective of ensuring that Australia is protected against the incursion and establishment of pests and diseases that could have significant negative consequences for Australia's economy, agricultural sector, animal, plant and human health and the environment. Relevant requirements that would be put in place would be clear, specific, and for the particular purpose of ensuring that biosecurity risks posed by goods, persons and conveyances are managed appropriately. Specifically, relevant requirements to manage biosecurity risk that relate to the conduct elements of each strict liability offence would be put in place only if the following thresholds are met: a) subsection 140(2A) - a biosecurity officer may only require biosecurity measures to be taken in relation to goods subject to biosecurity control if the biosecurity officer suspects, on reasonable grounds, that the level of biosecurity risk associated with goods that are subject to biosecurity control is unacceptable. b) subsection 185(2A) - before making such a determination that goods must not be brought or imported into Australian territory (prohibited goods), the Director of Biosecurity and the Director of Human Biosecurity must be satisfied that the level of biosecurity risk associated with the goods, or the class of goods, is unacceptable; and biosecurity measures would not be able to be taken to reduce that level of biosecurity risk to an acceptable level. c) subsection 185(2A) - before making such a determination that goods must not be brought or imported into Australian territory for a specified period (suspended goods), (amongst other things) the Director of Biosecurity must be satisfied that the level of biosecurity risk associated with the goods, or the class of goods, is unacceptable. d) subsection 187(1A) and subsection 187(3A) - before deciding to grant an import permit, the Director of Biosecurity must consider, amongst other things: i. the risk assessment that was conducted in relation to the goods; ii. the level of biosecurity risk associated with the goods; iii. whether it would be necessary to impose conditions on the permit to reduce the level of biosecurity. e) subsection 243(2A) - a direction may be given only if a biosecurity officer is satisfied that the direction is necessary to manage biosecurity risks associated with the aircraft or any person or thing on board the aircraft (for example, see section 240 of the Act). f) subsection 251(2A) - a direction may be given only if a biosecurity officer is satisfied that the direction is necessary to manage biosecurity risks associated with the vessel or any person or thing on board the aircraft (for example, see section 248 of the Act). g) subsection 350(2A) - a biosecurity measure may only be required in relation to goods or premises if the power to impose the measures have been specified in a biosecurity control order or a biosecurity response zone determination (section 332 of the Act). The Director of Biosecurity may only make a biosecurity control order if: i. suspects, on reasonable grounds, that: 85

1. a disease or pest may be present in or on goods or premises in Australian territory; and 2. the disease or pest poses an unacceptable level of biosecurity risk; and ii. the Director of Biosecurity is satisfied that biosecurity measures need to be taken in relation to the goods or premises for the purpose of managing the biosecurity risk posed by the disease or pest (subsection 353(1)); The Director of Biosecurity may only determine that a specified area in Australian territory is a biosecurity response zone if: i. a biosecurity officer suspects, on reasonable grounds, that: 1. a disease or pest may be present in or on goods or premises in the area; and 2. the disease or pest poses an unacceptable level of biosecurity risk; and ii. the Director of Biosecurity is satisfied it is necessary to make the determination for the purpose of managing the biosecurity risk posed by the disease or pest (subsection 365(1)). h) subsection 428(2A) - the Director of Biosecurity may approve the arrangement, if, amongst other things, the Director considers that the level of biosecurity risk associated with the operation of the arrangement is acceptable (section 406). Requirements and conditions are put in place in relation to an approved arrangement to ensure that biosecurity activities carried out under the arrangement effectively manage biosecurity risk. i) subsection 429(5A) - a biosecurity officer may only give a biosecurity industry participant covered by an arrangement a direction in relation to the operation of the arrangement, if the biosecurity officer is satisfied that it is necessary to do so to manage biosecurity risks associated with the operation of an approved arrangement. Contraventions against these provisions, including those on the lower end of the objective seriousness scale, therefore would have the potential to pose a significant risk to Australia's biosecurity status, which may result in serious damage to human, plant and animal health, agricultural sector, the economy and the environment. Strict liability offences for these contraventions would increase the effectiveness of the regulatory regime, and are necessary to ensure that regulated entities are significantly less likely to contravene requirements, thus preventing the incursion, spread and establishment of pests and diseases with potentially significant negative impacts on Australia. The persons affected by the strict liability offence provisions 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 the obligations, most of which would be specifically communicated to the person through a direction or would be stipulated by permits or arrangements the person would have applied for (see discussion above in relation to criminal process rights). Proposed strict liability offence provisions are necessary to achieve the legitimate objective of ensuring requirements are met to manage biosecurity risk which would otherwise be unacceptable, and pose significant risk to Australia's economy, agricultural sector, animal, plant and human health and the environment. There is a strong public interest in managing biosecurity risks appropriately and preventing serious damage to Australia's economy, 86

agricultural sector, animal, plant and human health and the environment. The proposed offences are reasonable and proportionate to this legitimate objective as they would not be punishable by imprisonment, and the defence of honest and reasonable mistake of fact remains available to the defendant. Right to presumption of innocence - infringement notices Under Division 2 of Part 7 of Chapter 9 of the 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 Act. The table in subsection 523(1) of the Act lists the provisions of the Act in relation to which an infringement notice may be given. Item 10 in Schedule 1 to the Bill would insert new item 10AA in the table in subsection 523(1) of the Act. This would allow an infringement notice to be given in relation to the new civil penalty provision in new subsection 196(5). This civil penalty provision is outlined in detail in the Overview. Schedule 4 to the Bill amends the table in subsection 523(1) of the Act to have the effect that the strict liability offences in new subsections 140(2A), 185(2A), 187(1A), 187(3A), 243(2A), 251(2A), 350(2A), 428(2A) and 429(5A). The strict liability offences are outlined in detail in the Overview. An infringement notice may be given for alleged contraventions of provisions specified in the table in subsection 523(1) of the 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 would insert a new civil penalty provision into the Act. The civil penalty provision in new subsection 196(5) would relate to failing to comply with a requirement to produce a document under new subsection 196(3A) when required to do so. These proposed provisions are outlined in detail in the Overview. The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high. As noted above, the purpose of requiring the production of a passport or travel document from a person and retaining information from this process is to provide more efficient, effective and targeted management of biosecurity risk. Providing an enhanced and more focussed management of biosecurity risk is critical in protecting Australia, its people, plant and animals, environment and economy from the potential devastating effects should a disease or pest enter Australian territory. This is particularly important within the context of Australia's $70 billion agriculture sector. 87

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 provided by the provision of a travel document can be sought in a timely manner. While the privilege against self-incrimination would be abrogated in relation to new subsection 196(3A), the 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 Act (providing false or misleading information and documents) (see subsection 635(2) of the Act). Schedule 3 to the Bill would increase the civil penalties in subsections 46(1), (2) and (3) of the Act, which relate to certain provisions that are not subject to the privilege against self- incrimination, namely sections 44 and 45 of the Act. Section 44 provides for the Health Minister to determine entry requirements for the purpose of preventing a listed human disease from entering, or establishing itself or spreading in, Australian territory or a part of Australian territory. Section 45 of the Act provides for the Health Minister to determine exit requirements for individuals who are leaving Australian territory, or for operators of outgoing passenger aircraft or vessels. Section 635 of the Act already provides that these sections are not subject to the privilege against self-incrimination, and this has been the case since the Act commenced in June 2016. Schedule 3 to the Bill seeks only to increase the penalties for the existing civil penalty provisions in the Act. It does not propose to amend the operation of the existing civil penalty provisions and the conduct they apply to. The public benefit of sections 45 and 46 of the Act not being subject to the privilege against self-incrimination is extremely high. The entry and exit requirements are designed to prevent, or reduce the risk of, a listed human disease emerging, establishing itself, spreading in, or leaving, Australian territory. Consequences of non-compliance with these requirements are likely to result in a serious and unacceptable risk to human health, Australia's public health systems, and consequentially, the Australian economy. Such diseases include viral haemorrhagic fevers (for example, Ebola), which would have a devastating impact on human life in Australia, should they enter Australia. Allowing a person to rely on the privilege in refusing to comply with entry and exit requirements could result in significant damage to human health, and consequently Australia's public health system and economy, as seen during the COVID-19 pandemic. It is critical for the management of human biosecurity risks that information required to be divulged by a determination made under section 44 or 45 of the Act occurs in a timely manner. The proposed increased penalties in subsections 46(1), (2) and (3) of the Act, which relate to existing sections 44 and 45 of the Act, are proportionate to the significant consequences of non-compliance. Maintaining the existing abrogation of the privilege against self- incrimination in these circumstances is necessary to achieve the legitimate objective of effectively assessing and managing biosecurity risks to human health, Australia's public health system and the Australian economy. 88

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 Schedule 4 to the Bill, which would insert new strict liability offences that have the same conduct elements as existing fault-based offences and civil penalty provisions. For all the new strict liability offences, fault-based offences and civil penalty provisions that have the same conduct elements already exist in the current Act. Despite the insertion of new strict liability offences by Schedule 4, the amendments are consistent with the prohibition on double jeopardy in Article 14(7). Existing civil penalty provisions create a distinct penalty regime from the criminal sanctions, including the new strict liability offences, which provide a proportionate and effective mechanism to punish actions that may contravene Australia's biosecurity laws. The existing 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 Act, a court may not make a civil penalty order against a person for a contravention of a civil penalty provision in the 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. The creation of new strict liability offences that have the same conduct elements as existing civil penalty provisions and fault-based offences would not affect the operation of the existing provisions, or the existing civil penalties being a separate and distinct penalty regime from criminal sanctions. 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. Schedule 1 of the Bill would insert new subsection 196(3A) into the Act, to enable the Director to require each person within a class of persons who intends to enter, or enters, Australian territory on an incoming aircraft or vessel to produce a passport or other travel document to the Director for either or both of the following purposes: 89

a) assessing the level of biosecurity risk associated with the person and any goods that the person has with them; b) the future profiling, or future assessment, of biosecurity risks; and to scan any such passport or travel document, and collect and retain personal information obtained as part of that production or scanning for the purposes outlined above. An individual who is required to comply with this requirement may be required to provide personal information. The requirement would only apply in limited circumstances, as discussed below. As already noted above in the Overview in relation to the amendments proposed to be made by Schedule 1 to the Bill, the purpose of requiring the production of a passport or travel document from a person is to provide more efficient, effective and targeted management of biosecurity risk in relation to arrivals in Australia from overseas. Requiring persons to produce their passport or travel document allows for this. A biosecurity officer would be able to scan the relevant document and, in doing so, access information about the particular individual which is relevant to their risk profile from a biosecurity perspective. This could include their history of compliance with biosecurity laws. In this way, biosecurity officers would have access to relevant information which would allow them to make a risk assessment in relation to each person. Dependent on the nature and scope of the relevant information, including a person's history of compliance with biosecurity laws, this would enable a biosecurity officer to then undertake more targeted intervention and investigation. As such, the purposes for which this information is collected and retained are reasonable, necessary and proportionate for the legitimate objective of protecting Australia's unique biosecurity status, its people, animals, plants and economy, including its $70 billion agricultural sector. For the purpose of these measures, proposed subsection 196(3B) would provide that a document which may be required to be produced under proposed subsection 196(3A) is the person's Australian travel document (within the meaning of the Australian Passports Act 2005 (the Passports Act) or a passport, or other travel document, issued to the person by or on behalf of the government of a foreign country. Section 6 of the Passports Act provides that an Australian travel document means an Australian passport or a travel-related document. Section 9 of the Passports Act provides that a "travel-related document" is a document specified in a determination by the Minister which is issued by the Minister to a person for the purpose of travel. For the purposes of this provision, the Minister is the Minister who administers the Passports Act. The Australian Passports Determination 2015 specifies various travel documents for the purposes of section 9 of the Passports Act. These include a convention travel document (which may be used by a person recognised as a refugee in Australia, but who is not a citizen), a certificate of identity (for a stateless person or person unable to obtain a travel document from the country of which they claim to be a national) and a provisional travel document (for an Australian citizen who is unable to obtain an Australia travel document). As specified in section 9 of the Passports Act, all of these travel-related documents are issued for the purposes of travel and enable the holder to travel internationally with a valid document. Similarly, the reference in proposed paragraph 196(3B)(b) to "other travel document" issued by a foreign government is limited to official documents issued by that government which 90

permit the holder to travel internationally. This reflects, and is consistent with, the intent of paragraph 196(3B)(a). For example, various countries (including the United Kingdom) may issue a refugee travel document to a person holding refugee status in that country which permits them to travel internationally. Similarly, there exist travel documents for stateless persons that allow them to travel internationally. Therefore, for the purposes of proposed subsection 196(3A), travel-related documents would not include other kinds of document which may be used whilst travelling, such as insurance documentation or vaccination certificates. It is intended to cover only passports or other travel documents issued by governments to enable the holder to travel internationally. This would provide a constraint on the documents which may be required under proposed subsection 196(3A), ensuring that the power exercisable under this subsection would be reasonable, necessary and proportionate. The power set out in new subsection 196(3A) would be appropriately constrained in its scope and, as such, is reasonable and proportionate. Whilst the Director (in practice, a biosecurity officer) may require a person to provide their travel document for scanning and whilst information (including personal information) from this process may be retained, the power may only be exercised for two discrete and limited purposes: a) assessing the level of biosecurity risk associated with the person and any goods that the person has with the person; b) the future profiling, or future assessment, of biosecurity risks. Both purposes relate to assessing biosecurity risks, both in the present and in the future which is a reasonable and legitimate objective. As noted, the collection of information via the scanning of a travel document provides for a more effective, efficient and targeted management of biosecurity risk with the ultimate aim of protecting Australia, its people, plant and animals, its environment and economy. A biosecurity officer may not require the provision of a travel document, the scanning of the same and the retention of information from this process for any purpose other than the limited purposes set out in new subparagraphs 196(3A)(a)(i) and (ii). Further, it is intended that the information obtained from the process enabled by proposed subsection 196(3A) will only be held as long as is necessary to meet the purposes outlined above. Additionally, Part 2 of Chapter 11 of the Act includes protections relating to the collection, storage and disclosure of protected information, which would include information collected as part of a process envisaged by new subsection 196(3A). This includes offences and a civil penalty for the unauthorised use or disclosure of protected information, such as sensitive personal information. As such, any sensitive personal information obtained by the exercise of power under new subsection 196(3A) would be protected by the robust information management framework in the Act. As such, the proposed measures in Schedule 1 to the Bill are necessary and appropriate to achieve this legitimate objective. 91

Prohibition on unlawful attacks on an individual's honour and reputation (Article 17 of the ICCPR) Article 17 of the ICCPR prohibits unlawful attacks on an individual's honour and reputation. Schedule 2 to the Bill would introduce a new alternative sanction of a reprimand in proposed new section 435A which may be given to a biosecurity industry participant covered by an approved arrangement on a ground such as contravening a condition of the approved arrangement if the Director does not consider it necessary or appropriate to vary, suspend or revoke the arrangement. A biosecurity industry participant is a person (a business or individual) who applies to the relevant Director for approval to be covered by an arrangement that provides for the person to carry out specified biosecurity activities to manage biosecurity risks associated with specified goods, premises or other things (an approved arrangement). These are voluntary arrangements which permit biosecurity industry participants to manage biosecurity risks using their own sites, facilities, equipment and people, without constant supervision by the Department. The Department monitors compliance with an approved arrangement and can apply administrative sanctions, such as variation, suspension or revocation of the arrangement where non-compliance is detected. A biosecurity industry participant is a regulated entity that is expected to take active steps to understand and comply with the requirements under the Act and the terms and conditions of the approved arrangement which covers them. In a situation where the biosecurity industry participant has contravened a condition of the arrangement or where the arrangement no longer meets the requirements on the basis of which approval was given, a reprimand may be the most appropriate sanction to alert the person that certain conduct is unacceptable. The work of biosecurity industry participants is an important aspect of the biosecurity framework in managing biosecurity threats, including 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. A reprimand would be a targeted, low-level way of alerting a biosecurity industry participant to fix a problem or change their behaviour before it amounts to conduct that could jeopardise the management of biosecurity risks under the relevant approved arrangement. The legislation provides for prior written notice to be given to the person in relation to a proposed variation, suspension or revocation inviting a written submission within 14 days. While there would be an exception to the requirement to invite written submissions in proposed new subsection 435A(4) where the grounds for taking action are serious and urgent, this exception would only apply where there is a need to quickly impose an administrative sanction (for example, suspending the arrangement) so by its nature, this exception would not apply in a situation where a reprimand may ultimately be issued as an alternative sanction. As such, a reprimand would only be issued in a situation where the biosecurity industry participant has been afforded procedural fairness and as the end result of a lawful administrative decision-making process. As such, the additional sanction of a reprimand in subsection 435A(5) is unlikely to engage the prohibition on unlawful attacks on an individual's honour and reputation. To the extent that new subsection 435A(5) could constitute an attack on an individual's honour and reputation, this would be reasonable and proportionate to achieving the legitimate objective of addressing the conduct of a regulated entity for the purpose of protecting Australia from 92

biosecurity risks that could have harmful consequences to the Australian environment and economy. 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. Schedule 1 would amend section 196 of the Act to enable the Director under subsection 196(2) to require each person within a class of persons who intends to enter, or enters, Australian territory on an incoming aircraft or vessel to provide information for the purpose of assessing the level of biosecurity risk associated with the person and any goods that the person has with them. The flexibility to be able to require classes of persons to provide information for the purpose of assessing biosecurity risk, rather than just individuals, would be a significant and important addition to the current toolkit used by biosecurity officers at the order to assess biosecurity risk, and where appropriate manage any risk arising. These proposed amendments would allow for the more efficient and effective management of biosecurity risk in order to protect Australia's economy, environment, flora and fauna, and the agricultural sector from diseases and pests which could have a devastating effect should they enter Australian territory. This is a legitimate objective. The power to require a person or each person in a class of persons to provide information under subsection 196(2) may only be exercised for the purpose of assessing the level of biosecurity risk associated with the person and any goods that the person has with them. This constrains the scope of the power in subsection 196(2) and ensures that the requirement to provide information is solely limited to biosecurity risk assessment purposes in order to protect Australia's unique biosecurity status. As such, the amendments to section 196 to allow for subsection 196(2) to apply to classes of people in reasonable and proportionate and aimed at meeting the legitimate objective of protecting Australia, its people and the health of its plants and animals, and economy from potentially devastating diseases and pests. Schedule 1 of the Bill would also insert new subsection 196(3A) into the Act, to enable the Director to require each person within a class of persons who intends to enter, or enters, 93

Australian territory on an incoming aircraft or vessel to produce a passport or other travel document to the Director for either or both of the following purposes: a) assessing the level of biosecurity risk associated with the person and any goods that the person has with them; b) the future profiling, or future assessment, of biosecurity risks; and to scan any such passport or travel document, and collect and retain personal information obtained as part of that production or scanning for the purposes outlined above. The power set out in new subsection 196(3A) would be appropriately constrained in its scope and, as such, is reasonable and proportionate. Whilst the Director (in practice, a biosecurity officer) may require a person to provide their travel document for scanning and whilst information (including personal information) from this process may be retained, the power may only be exercised for two discrete and limited purposes: a) assessing the level of biosecurity risk associated with the person and any goods that the person has with the person; b) the future profiling, or future assessment, of biosecurity risks. As noted elsewhere above, a biosecurity officer would be able to scan the relevant document and, in doing so, access information about the particular individual which is relevant to their risk profile from a biosecurity perspective. This could include their history of compliance with biosecurity laws. In this way, biosecurity officers would have access to relevant information which would allow them to make a risk assessment in relation to each person. Dependent on the nature and scope of the relevant information, including a person's history of compliance with biosecurity laws, this would enable a biosecurity officer to then undertake more targeted intervention and investigation. The aim of this targeted approach is the legitimate objective of protecting Australia, its people, animals, plants and economy, maintaining Australia's unique biosecurity status. The purpose of the measures proposed to be inserted in the Act by Schedule 1 to the Bill is to provide for more efficient, effective and targeted management of biosecurity risks in order to protect Australia. As the management of biosecurity risk is based on impartial and technical advice and data, and is solely be aimed at managing biosecurity risks in the most appropriate manner, these measures are aimed at a legitimate objective. These measures therefore would not impose impermissible limitations and are compatible with the right to non-discrimination in Article 26 (read with Article 2(1)) of the ICCPR. Right to health (Article 13 of the ICESCR) In increasing the civil penalties in the Act, the Bill would maintain the right to health in accordance with 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)). 94

The Bill would promote this right by taking further steps to deter those who may consider non-compliance with biosecurity requirements as a cost of doing business. In increasing the deterrent, the Bill aims to further minimise unacceptable risks to human health and Australia's public health systems, which will prevent and protect against the international spread of disease that would otherwise lead to poorer health outcomes for all Australians if not prevented and controlled. Conclusion This Bill is compatible with human rights because, 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 95

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