New point of law: What can be considered as a protected document?
A look at Environment Protection Authority v Sydney Water Corporation  NSWLEC 119.
The aim of the Act is to provide for a safe and seamless transition of people and goods across Australia’s borders
On 14 May 2015, while the eyes of the nation were on the Federal Treasurer and his post budget speech in the Great Hall of Parliament House, down the corridor the Biosecurity Bill 2014 (Bill) quietly achieved passage through the Senate.
It is arguably one of the most substantial and significant pieces of legislation to pass through Parliament during the term of the current Government, and most notably, with bipartisan support.
Passage of the Bill is significant for two main reasons. Firstly, the Bill itself was seven years in the making and signals large-scale reform of the century-old Quarantine Act 1908 (Quarantine Act) by strengthening and modernising the biosecurity regulatory framework in Australia. Further, biosecurity risks have far-reaching effects and could potentially impact human, plant and animal health, as well as the environment and the economy. The Bill also signals a shift to risk-based biosecurity regulation and activation of the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act).
Currently, the primary piece of biosecurity legislation in Australia is the 108-year old Quarantine Act, which has been amended more than fifty times resulting in overly complex regulatory provisions and administrative practices. When the Quarantine Act was drafted, people and goods arrived in Australia only by sea and legislators were concerned with protecting Australia from outbreaks of 'quarantinable disease', such as the bubonic plague, yellow fever, small pox, cholera and leprosy.
Biosecurity risks have changed significantly since this time. Biosecurity itself is a much broader concept than quarantine, which is mostly concerned with isolation, segregation and disinfection at the border. Biosecurity encompasses the protection of the economy, environment and human health from negative impacts associated with entry, establishment or spread of exotic pests and diseases. Biosecurity is more pro-active and associated with a continuum of pre-border, border and post-border regulation1.
The Bill is based on a number of Constitutional powers, which provide broader coverage to address the modern risks associated with changing patterns of overseas trade and Australia’s international obligations, and is not based just on the quarantine power (s51(ix) of the Constitution), as was the Quarantine Act.
The Bill will become an Act upon royal assent, which is expected in the coming weeks, and, after a period of 12, months will replace the Quarantine Act. The Bill will provide a legislative framework to manage the risk of pests and diseases entering Australian borders and causing harm to human, plant and animal health, as well as to the environment and the economy.
Australia’s biosecurity system has been the subject of a number of reviews, including the 2008 Beale Review, a comprehensive and independent review of Australia’s quarantine and biosecurity arrangements2, which recommended new biosecurity legislation to replace the Quarantine Act.
Among the more than 80 recommendations, the Beale Review suggested strengthening governance structures to meet anticipated biosecurity demands by:
Following the recommendations in the 2008 Beale Review, it took until 2012 for the then Labor Government to introduce the first Biosecurity Bill. The Bill lapsed as a result of the 2013 Federal Election when the parliament was prorogued. The second Biosecurity Bill was introduced by the current Government in 2014 and passed in May 2015 with bipartisan support, symbolic of the importance of reforms and the extensive stakeholder consultation that took place.
The Biosecurity Bill is supported by four other Bills, which are designed to help ensure the smooth transition from the Quarantine Act to the Biosecurity Act 2015, namely the:
The Bill provides significant details on how the biosecurity regime will operate, and will be supported by subordinate legislation. These regulations and instruments are being drafted ahead of the commencement of the Act, and will assist Australia to be flexible and responsive to the modern fast-changing biosecurity risks – a key component of regulating for the future. See our article here for further discussion on 'regulating for the future'.
The aim of the Bill is to 'provide for a safe and seamless transition of people and goods across Australia’s borders'3. The Bill aspires to legislate for a strong agricultural industry, provide clear legislation to manage biosecurity risks, increases efficiency while decreasing regulation, improve compliance, provide protection from public health risks and meet Australia’s international obligations.
Despite its length (637 pages), the Bill does not radically change the operational functions under the Quarantine Act. Many functions in the Bill are similar to existing functions under the Quarantine Act, but are more clearly stated with the intention that they will be easier to use and will reduce administrative complexity. The main substantive change relates to the compliance and enforcement of powers under chapter 9 (discussed in more detail below).
The Bill is 'principles-based'. For the most part, it sets out broad principles as distinct from detailed and prescriptive regulation which is often referred to as 'rules-based regulation'. The Bill will be supplemented by more specific rules in the regulations or other legislative instruments.
The Bill aims to reduce 'red tape' by streamlining the legislation and providing clearer and easier to use regulatory mechanisms and enabling improved processes. The Government estimates there will be a reduction in business compliance costs of $6.9 million annually4.
For ease of use, the structure of the Act has been divided into separate and self-contained chapters relating to discrete biosecurity risks. The principles related to a specific risk are set out in each chapter. For example, there are three operational chapters that regulate goods, conveyances and onshore biosecurity risks. These chapters have been structured similarly so that the relevant powers and obligations for each topic can be more easily located.
In addition to the three operational chapters, there are three specialised biosecurity management chapters and also general administration chapters.
Inspector-General of Biosecurity
The first Biosecurity Bill introduced by the Labor Government provided for a statutory role of an Inspector-General of Biosecurity to review the performance of functions and exercise of power of biosecurity officials under the Bill. When the current Government reintroduced the Bill in 2014, it had removed the provision for the statutory role of an Inspector-General of Biosecurity, which was consistent with its policy on reducing the number of government bodies and agencies. However, the Beale review had recommended a statutory position of Inspector-General be created to ensure the necessary independence in the analysis of biosecurity risk and to enhance community confidence in the system. Eventually, the Government conceded following the insistence of stakeholders on this point and reintroduced the statutory role in the Bill.
Compliance and enforcement – triggering the Regulatory Powers Act
The Bill contains a suite of compliance and enforcement provisions which trigger the operation of the Regulatory Powers Act. The enforcement and compliance powers in the Bill are substantially different from those in the earlier 2012 Bill, primarily because the Regulatory Powers Act had not been legislated at the time the 2012 Bill was introduced to the Parliament.
The Bill is one of the first to adopt relevant parts of the Regulatory Powers Act5, an Act which was enacted to provide a framework of standard regulatory powers and uniformity of enforcement provisions across Commonwealth Statutes, and applies to regulatory schemes which trigger its provisions through primary legislation.
A number of provisions, including definitions, in the Bill are aligned with or defined with reference to the Regulatory Powers Act. Powers under the various Parts of the Bill must be exercised in accordance with certain Parts of the Regulatory Powers Act. In particular, Chapter 9 of the Bill triggers a number of corresponding Parts of the Regulatory Powers Act, except where modifications or departures are specified in the Bill. These modifications ensure the Regulatory Powers Act will be appropriately adapted to specific biosecurity circumstances
Monitoring powers under Chapter 9, Part 2 permit biosecurity enforcement officers to enter premises under a warrant or with consent of the occupier and exercise the monitoring powers of Part 2 of the Regulatory Powers Act. Modifications to the Bill provide for additional monitoring powers beyond those under Part 2 of the Regulatory Powers Act, including the power to sample anything on the premises and for biosecurity enforcement officers to be accompanied by and use an animal to assist in carrying out the power. A biosecurity enforcement officer may also use reasonable force which is necessary in the circumstances, but not against a person.
Investigation powers under Chapter 9, Part 2 trigger the investigation powers of Part 3 of the Regulatory Powers Act. Investigation powers include obtaining investigation warrants and gathering evidence material that relates to the contravention of an offence or civil penalty provisions of the Biosecurity Act, or an offence under the Crimes Act. Modifications to the Bill permit the same additional investigation powers as have been added to the monitoring powers.
Warrant powers under Chapter 9, Part 4 include a number of biosecurity specific warrants beyond monitoring and investigation warrants such as biosecurity risk assessment warrants, biosecurity response zone warrant and adjacent premises warrants. Under Chapter 9, Part 5, the monitoring and investigation powers triggering equivalent powers under the Regulatory Powers Act which may be exercised by a biosecurity enforcement officer without a warrant or consent. However, these powers are limited to entry to certain premises such as landing places and ports which are first points of entry.
Chapter 9 also triggers enforcement options such as civil penalties, infringement notices, enforceable undertakings and injunctions and their equivalent powers under the Regulatory Powers Act for contravening certain strict liability offence provisions of the Biosecurity Act.
The Beale Review reinforced the need for a risk-based approach to biosecurity intervention, rather than a zero-risk approach, which is not feasible due to expense and likelihood of success.
A risk-based approach promotes efficiency by focussing resources on areas where the risk of non-compliance is highest, and the consequences the most severe. Following the Beale Review recommendations, the Department of Agriculture commenced taking a risk-based approach to biosecurity intervention, focussing its efforts on the greatest risks of non-compliance. The Bill supports this policy approach by providing flexible and responsive powers that allow biosecurity officials to best target risk, based on the circumstances of each case, and focus resources on the risks of non-compliance of greatest biosecurity concern6. A shift to a risk-based approach has the benefits of reducing costs and regulatory burden for Government, and also has potential benefits for businesses such as reduced cost of capital, lower quarantine fees, and removal of supply chain delays.
The Bill contains a number of measures to manage unacceptable levels of biosecurity risk. For example, the Act defines an appropriate level of protection against biosecurity risks as a 'high level of sanitary and phyosanitary protection aimed at reducing biosecurity risks to a very low level, but not to zero'. Additionally, provisions in Chapter 3 deal with managing biosecurity risks regarding goods brought into Australian territory. Powers include assessing the level of biosecurity risk through Biosecurity Import Risk Analysis (BIRA) pre-border and at-border. BIRA is an evaluation of an appropriate level of biosecurity risk associated with particular goods, or a particular class of goods, that may be imported, or proposed to be imported, into Australian territory and whether they meet an appropriate level of risk. The outcome of a BIRA may be the goods, or class of goods are prohibited from entry, suspended from entry, are permitted with conditions or permitted to enter without conditions. The BIRA are to be conducted in accordance with process which is to be prescribed in the regulations and take into account any guidelines established.
Regulating using a risk-based approach is consistent with forward-looking and flexible regulatory schemes. Maddocks has been working with a number of Commonwealth Government agencies to enhance their risk-based approaches to regulation. To learn more, see our previous articles on risk-based regulation and regulating for the future.
1Beale, R., Fairbrother, J. Inglis, A., and Trebeck, D. 2008, One Biosecurity: A working partnership
2http://www.aph.gov.au/Parliame... Australian Government, Autumn Repeal Day, March 2015, p7
4https://cuttingredtape.gov.au/... include: National Vocational Education and Training Regulator Amendment (Enforcement) Regulation 2015, Offshore Petroleum and Greenhouse Gas Storage Amendment (Regulatory Powers and other Measures) Bill 2014, Regulator of Medicinal Cannabis Bill 2014, Private Health Insurance related bills, Enhancing Online Safety for Children Act 2015, Future Fund Act 2006, and Public Governance and Resources Legislation Amendment Act (No 1) 2015
A look at Environment Protection Authority v Sydney Water Corporation  NSWLEC 119.
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On 19 October 2023 the Senate passed a slightly amended version of the Higher Education Support Amendment
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