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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
BIOSECURITY AMENDMENT
(CLARIFYING CONDITIONALLY NON-PROHIBITED GOODS) BILL 2021
EXPLANATORY MEMORANDUM
(Circulated by authority of
the Minister for Agriculture, Drought and Emergency Management,
the Hon. David Littleproud MP)
BIOSECURITY AMENDMENT (CLARIFYING CONDITIONALLY NON-
PROHIBITED GOODS) BILL 2021
GENERAL OUTLINE
The Biosecurity Amendment (Clarifying Conditionally Non-prohibited Goods) Bill 2021 (the
Bill) would amend the Biosecurity Act 2015 (the Act) to clarify the validity of determinations
made under subsection 174(1) of the Act, in relation to specifying that certain classes of
goods are conditionally non-prohibited goods and specifying the conditions that apply to such
goods before they can be brought or imported into Australia.
The Act provides the regulatory framework for the management of risks of pests and diseases
to Australia which may cause harm to animal, plant and human health, the environment and
the economy. The Act also gives effect to Australia's relevant international rights and
obligations.
Conditionally non-prohibited goods are goods specified in a determination in force under
subsection 174(1) of the Act, which provides that the Director of Biosecurity and the Director
of Human Biosecurity may jointly determine that specified classes of goods must not be
brought or imported into Australian territory unless specified conditions are complied with.
Conditionally non-prohibited goods pose an unacceptable level of biosecurity risk if specified
conditions are not complied with. Determinations made under subsection 174(1) of the Act
therefore play a central role in enabling the Australian Government to manage biosecurity
risks, and to prevent goods which present an unacceptable level of biosecurity risk from
being brought or imported into Australian territory.
Consultation has been undertaken with appropriate Commonwealth agencies including the
Department of Health, the Department of the Prime Minister & 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).
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BIOSECURITY AMENDMENT (CLARIFYING CONDITIONALLY NON-
PROHIBITED GOODS) BILL 2021
NOTES ON CLAUSES
Clause 1 Short title
1. Clause 1 would provide for the short title of the proposed Act to be the Biosecurity
Amendment (Clarifying Conditionally Non-prohibited Goods) Act 2021 (Goods Act).
Clause 2 Commencement
2. Subclause 2(1) would provide for the commencement of the whole of the proposed
Goods Act on the day after it receives the Royal Assent.
3. Subclause 2(2) would provide that any information in column 3 of the table is not part
of the proposed Goods 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 Goods Act.
Clause 3 Schedules
4. Clause 3 would provide that legislation specified in a Schedule to the proposed Goods
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.
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SCHEDULE 1--AMENDMENTS
Biosecurity Act 2015
Item 1 After section 639
5. Item 1 of Schedule 1 would provide for new section 639A, relating to clarifying
conditionally non-prohibited goods, to be inserted into the Biosecurity Act 2015 (Act).
6. Conditionally non-prohibited goods are goods specified in a determination in force
under subsection 174(1) of the Act, which provides that the Director of Biosecurity
and the Director of Human Biosecurity may jointly determine that specified classes of
goods must not be brought or imported into Australian territory unless specified
conditions are complied with.
7. Subsection 174(3) of the Act requires the Director of Biosecurity and the Director of
Human Biosecurity to apply the appropriate level of protection (ALOP) for Australia
in conducting a risk assessment for the purpose of deciding whether to make
a determination under subsection 174(1) specifying a particular class of goods. The
ALOP for Australia is 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.
8. Subsection 541(4) of the Act includes a requirement for the Director of Biosecurity to
have regard to the objects of the Act and to comply with directions given by the
Agriculture Minister under section 543 and section 168, when performing functions or
exercising powers under the Act.
9. New subsection 639A(1) would provide that new section 639A applies if
a determination purportedly made under subsection 174(1) of the Act, before the
commencement of the proposed Goods Act, would apart from new section 639A, be
wholly or partly invalid in certain circumstances. Such circumstances would be where
the Director of Biosecurity and the Director of Human Biosecurity, or either of them,
did not conduct a risk assessment for the purpose of deciding whether to make the
determination, or did not apply, or correctly apply, the ALOP for Australia in
conducting a risk assessment for that purpose.
10. New subsection 639A(2) would provide that new section 639A also applies if the
determination would, apart from new section 639A, be wholly or partly invalid for
any other failure to comply with section 174 or subsection 541(4) of the Act.
11. New subsection 639A(3) would provide that the determination is taken for all
purposes to be, and always to have been, valid. The intention of new subsections
639A(1) to (3) would be to clarify the validity of determinations purportedly made
under subsection 174(1) of the Act.
12. New subsection 639A(4) would be made for the avoidance of doubt. New paragraph
639A(4)(a) would provide that anything done or purported to have been done by
a person (including, but not limited to, any action taken or purportedly taken under
section 628 of the Act) that would have been invalid except for subsection 639A(3) is
taken always to have been valid, despite any effect that may have on the accrued
rights of any person. New paragraph 639A(4)(b) would provide that new section
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639A applies in relation to civil and criminal proceedings, including proceedings that
are pending or concluded.
13. The effect of new section 639A would be to ensure that determinations purportedly
made under subsection 174(1) of the Act will be, and will be taken always to have
been, valid, notwithstanding any failure to comply with section 174 or subsection
541(4). This would also ensure that the goods specified in such determinations would
be taken to be conditionally non-prohibited goods, and that any conditions in the Act
with respect to such goods have effect in accordance with their terms.
14. This amendment is appropriate to address any technical issues that may relate to
determinations made under subsection 174(1) of the Act. The Bill does not create or
change classes of goods listed in the determinations or the conditions that are imposed
on such goods. Rather, the Bill confirms that the goods specified in determinations
made prior to the commencement of the Bill were, and continue to be, conditionally
non-prohibited goods until such time as a new determination is made. There is a
strong imperative for ensuring that conditionally non-prohibited goods that are
specified in determinations, and any conditions imposed on such goods, continue to
have effect in accordance with their terms. Determinations made under subsection
174(1) of the Act encompass a wide variety of plant, animal, food and agricultural
products, as well as goods that could carry hitchhiker pests (such as khapra beetle) or
collect water that could host pests that carry disease (for example, mosquitoes). The
conditionally non-prohibited goods that are specified in such determinations can pose
an unacceptable level of biosecurity risk if the specified conditions are not complied
with. In a complex trade and regulatory environment, it is important to remove any
potential doubt that conditionally non-prohibited goods that may present an
unacceptable level of risk of pests or diseases reaching Australia must comply with
appropriate conditions before they can be brought or imported into Australia.
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ATTACHMENT A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Biosecurity Amendment (Clarifying Conditionally Non-prohibited Goods) Bill 2021
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 (Clarifying Conditionally Non-prohibited Goods) Bill 2021 (the
Bill) seeks to amend the Biosecurity Act 2015 (the Act) to clarify the validity of
determinations made under subsection 174(1) of the Act, in relation to specifying that certain
classes of goods are conditionally non-prohibited goods. Conditionally non-prohibited goods
pose a significant level of biosecurity risk if specified conditions are not complied with.
Determinations made under subsection 174(1) of the Act therefore play a central role in
enabling the Australian Government to manage biosecurity risks, and to prevent goods which
present an unacceptable level of biosecurity risk from being brought or imported into
Australian territory.
Subsection 174(3) of the Act requires the Director of Biosecurity and the Director of Human
Biosecurity to apply the appropriate level of protection (ALOP) for Australia in conducting a
risk assessment for the purpose of deciding whether to make a determination under
subsection 174(1). The ALOP for Australia is 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. Subsection 541(4) of the Act includes a requirement for the Director of
Biosecurity to have regard to the objects of the Act and to comply with directions given by
the Agriculture Minister under section 543 and section 168, when performing functions or
exercising powers under the Act. The Bill will ensure that determinations purportedly made
under subsection 174(1) of the Act will be, and will be taken always to have been valid,
notwithstanding any failure to comply with section 174 or subsection 541(4).
Assessment of Compatibility with Human Rights
The Bill confirms that determinations purportedly made under subsection 174(1) of the Act
will be, and will be taken always to have been, valid despite any technical issues in the
making of the determination under section 174 or subsection 541(4). This will ensure that the
goods specified in such determinations are taken to be conditionally non-prohibited goods,
and that any conditions in respect to such goods are, and always have been, valid. It does not
create or change any conditions or classes of goods. The Bill confirms the existing
determinations are valid and does not engage any of the applicable rights or freedoms.
Conclusion
The Biosecurity Amendment (Clarifying Conditionally Non-prohibited Goods) Bill 2021 is
compatible with the applicable human rights and freedoms because it does not engage any
obligations under relevant human rights treaties.
The Hon. David Littleproud MP
Minister for Agriculture, Drought and Emergency Management
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