If you are applying for approval of an arrangement with the Department of Agriculture and Water Resources under the Biosecurity Act 2015 (the Act), the Director of Biosecurity will need to determine that you are a fit and proper person to carry out biosecurity activities.
The fit and proper person test is completed as part of the a pproved arrangement application form supplied by us.
This guidance will help you understand what is meant by ‘fit and proper’ and what you need to do to meet the fit and proper test.
Matters relevant to determining whether a person is fit and proper are set out in section 530 of the Act.
Who the test applies to
Applicants for approval of the proposed arrangement can include:
- a sole trader (individual)
- a company or corporation
- a partnership
- a trustee applying on behalf of a trust
- other (such as a Commonwealth agency or university).
It is important that the person completing the application form has the authority to submit on behalf of the applicant.
We will also consider relevant associates of the applicant in assessing fitness and propriety.
Whether the applicant is a fit and proper person may be affected by the conduct and history of the applicant’s associates.
Before you complete the fit and proper person section of the application form, you must identify associates relevant to the proposed arrangement and undertake appropriate checks. Those included as relevant associates will vary depending on the applicant, and we will rely on the applicant to make reasonable enquiries of those associates.
Anyone in a position to control or influence the conduct of the arrangement or biosecurity activities under the arrangement may be considered relevant for the purposes of the application.
As a guide, these people are likely to be relevant associates:
- If the applicant is a body corporate: directors, officers or shareholders who control, direct, enforce or monitor people performing activities associated with the approved arrangement.
- If the applicant is a partnership: the partners who control, direct, enforce or monitor people performing activities associated with the approved arrangement.
- Anyone directly or indirectly responsible for controlling, directing, enforcing or monitoring people performing activities associated with the approved arrangement.
- Anyone responsible for performing the:
- release of material from biosecurity control
- treatment or processing of goods in accordance with requirements prescribed under the approved arrangement.
- Anyone responsible for making real-time assurances that are prescribed as requirements of the approved arrangement. This could include customs brokers lodging entries under an approved arrangement or persons conducting fumigations.
We recognise that different applicants may conduct a range of checks on their relevant associates. You should make reasonable enquiries in respect to the matters in the application.
We will rely on the applicant to make reasonable enquiries of all relevant associates but we may conduct verification audits of the checks you have undertaken.
See section 11 of the Biosecurity Act 2015 for more information on the meaning of ‘associate’.
Questionnaire and declaration
As part of the application for approval of a proposed arrangement, you will need to complete a questionnaire and make a declaration.
- relevant criminal history of the applicant and relevant associates – in relation to breaches of Commonwealth law, particularly convictions relating to integrity and honesty
- any debts owed to the Commonwealth by the applicant or relevant associates, under the Biosecurity Act or other specified legislation
- whether the applicant or relevant associates have had arrangements or approvals suspended or revoked under the Biosecurity Act or other specified legislation.
The questionnaire is just one part of what the decision maker will take into consideration when assessing your application for approval of an arrangement.
The person who is authorised to make the application on behalf of the applicant is required to give a declaration that they have made reasonable enquiries in respect of the answers given in the questionnaire, and that the information is true and correct to the best of their knowledge.
Giving false or misleading information is a serious offence. The person making the declaration may be liable to a civil penalty for giving false or misleading information.
Assessing an applicant as a fit and proper person
The decision to approve a proposed arrangement, including a determination of the fitness and propriety of the applicant, is made by the Director of Biosecurity, or their delegate.
A determination as to whether an applicant is a fit and proper person requires the Director to consider the:
- circumstances of the case
- context of the activities in which the person is or will be engaged.
Once the arrangement is approved, the applicant becomes the biosecurity industry participant and is responsible for the biosecurity activities of the arrangement including specified goods or premises.
Answering ‘yes’ to questions in the fit and proper test
Closer consideration will be given to applications where a yes answer has been provided to one or more of the fit and proper questions.
A yes answer will not automatically result in a determination that the applicant is not fit and proper but it is likely to require further review.
For example, in some circumstances, a yes answer may result in a request for further information about the circumstances of that answer, to better inform a decision about the fit and proper status of the applicant.
If we require further information from you, the timeframe for determination of your application will be extended.
Maintaining status as a fit and proper person
We expect applicants to have appropriate controls in place to manage the proposed arrangement and the level of biosecurity risk associated with that arrangement. This means having appropriate structures, procedures, systems, skills and staff to meet biosecurity obligations.
Our interactions with applicants will be based on their behaviours and choices.
We expect you to:
- make reasonable enquiries in respect of the information you provide
- provide true and correct information on all forms and documents
- provide the full facts and circumstances if you seek advice from us
- notify us of any changes to the arrangement including any potential change to the fitness and propriety of the biosecurity industry participant (including conduct of any relevant associates)
- provide us with any reasonable assistance and information that we request.
- help you understand your rights and obligations
- make it as easy as possible for you to meet your biosecurity obligations
- support those who want to do the right thing, including through our dedicated phone service
- actively pursue those few applicants who may opportunistically or deliberately provide false or misleading information.
Any changes we find to the applicant’s risk assessment during our routine compliance checks may trigger the need to reconsider the applicant’s fitness and propriety.
If you need further information please call us on 1800 900 090.
This guidance is provided for general information only. The department does not provide advice on the application of the Biosecurity Act to particular circumstances, and does not approve a particular strategy or course of action in a particular matter.