The Biosecurity Act 2015 (Biosecurity Act) provides the Department of Agriculture and Water Resources with a wide range of modern regulatory tools to manage compliance. These are designed to encourage clients to comply with biosecurity requirements.
The new tools include infringement notices, civil penalties, enforceable undertakings, injunctions, criminal sanctions and monitoring and investigation powers that allow biosecurity officials to enter premises (with consent or under a warrant) in order to monitor compliance with the Biosecurity Act, manage biosecurity risk and gather evidence.
The department is adopting a specific compliance posture in the six-month period following commencement of the Biosecurity Act to allow existing clients sufficient time to adjust to the introduction and application of the enforcement tools (for example, civil penalties and infringement notices for body corporates). In the six month transition period following commencement the department will focus on engaging and educating clients to enable voluntarily compliance.
During the transition period, indications of deteriorating compliance or deliberate non-compliance will immediately result in the full application of the compliance and enforcement powers provided within the Biosecurity Act.
The transition period does not limit the ability of biosecurity officials to perform functions and exercise powers in order to manage biosecurity risks.
The enforcement tools that existed under the Quarantine Act 1908 are available under the Biosecurity Act - for example, infringement notices for airline passengers.
The Biosecurity Act introduced a broader Infringement Notice Scheme comprising 49 infringements which can be issued across numerous environments e.g. airports, seaports, and cargo. Not all infringement notice provisions will necessarily apply across all environments.
Infringement notices are given to a person for an alleged contravention of the Act. The person receiving the infringement notice has the option of paying a specified amount within the specified timeframe as an alternative to having proceedings brought against them for the alleged contravention.
Infringement notices may only be given in relation to certain specified contraventions of the Act.
If the recipient chooses to pay the amount specified in the notice within the specified time, any guilt or liability regarding the alleged contravention is discharged. An infringement notice provides an alternative to prosecution for an offence or litigation of a civil matter. Infringement notices can be issued for a range of alleged contraventions of the Biosecurity Act, including failing to follow certain directions, failing to answer questions or secure goods when required, as well as providing false and misleading information or documents.
International travellers at airports and seaports
Infringement notices may be issued to travellers in an airport and cruise vessel environment in relation to the following alleged contraventions of the Biosecurity Act:
- Failing to answer questions in relation to goods when required under section 126
- Failing to follow directions relating to the movement of goods given under section 128
- Providing false and misleading information in compliance or purported compliance with the Biosecurity Act
- Providing false and misleading documents in compliance or purported compliance with the Biosecurity Act
Infringement notices for the above contraventions issued to passengers in a traveller environment (i.e. airport/seaport) will incur a 2 penalty unit fine of AUD $360.
Commercial entities, individuals and regulated industry
Except for the 2 penalty unit contraventions outlined above, the amount payable under an infringement notice will be:
- at least one-fifth of the maximum penalty that a court could impose; or
- 12 penalty units (AUD $2,160) for individuals or 60 penalty units (AUD $10,800) for bodies corporate.
The payment period for an infringement notice issued outside of a first point of entry in the traveller environment will be 28 days.
In the initial months following commencement of the Biosecurity Act, the department does not intend to issue infringement notices to persons or companies outside a traveller environment unless an investigation of the circumstances has been undertaken.
The Biosecurity Act includes a number of civil penalty provisions. Contravention of a civil penalty provision does not result in imprisonment or a criminal conviction. A civil penalty order can be obtained from a court and direct that a person pay a pecuniary penalty for the contravention of the civil penalty provision.
Enforceable undertakings are a new enforcement tool for the department. They are voluntary undertakings relating to compliance with specified provisions of the Biosecurity Act, which are enforceable in a court. An enforceable undertaking would typically be given by a party who poses a biosecurity risk due to their likelihood of non-compliance with the Biosecurity Act.
An enforceable undertaking can be initiated by a company or individual, or as a result of discussions between the department and the other party.
The department cannot require or compel a person to enter into an enforceable undertaking. Similarly, a person cannot compel the department to accept an enforceable undertaking.
The Biosecurity Act also provides for injunctions. An injunction is an order granted by a court that prevents a person from contravening a provision of the Biosecurity Act, or requires them to comply with a provision of the Biosecurity Act. This provides an additional regulatory tool with which the department can enforce compliance.
The Biosecurity Act establishes a number of criminal offences. The department is committed to the investigation of potential offences and, where appropriate, such matters will be referred to the Commonwealth Director of Public Prosecutions for potential prosecution.
Monitoring and investigation powers
The Biosecurity Act includes powers to monitor and investigate whether the Biosecurity Act has been, or is being, complied with. It provides for officers to exercise monitoring and investigation powers under the Regulatory Powers (Standard Provisions) Act 2014 in relation to compliance with provisions of the Biosecurity Act. It also contains additional powers appropriate to managing biosecurity risk, such as the power to be accompanied by an animal (i.e. detector dog) and the power to take samples from a premises.