Written by Nick Boyden LLB, Principal Lawyer
On 16.6.16 the Biosecurity Act 2015 (Cth) came into effect across Australia. It replaces the Quarantine Act 1908 (Cth) which had struggled to keep pace with modern day risks to the nation’s health, agricultural industry and the environment. Indeed, at the time the Quarantine Act was enacted, only 2 Australians had passports. These days, federal authorities deal with approximately:
Despite containing 645 sections and 119 regulations, the Act does not precisely define “biosecurity.” It has been defined elsewhere as “procedures or measures designed to protect the population against harmful biological or biochemical substances.”
The Act is divided into 11 Chapters covering the management of biosecurity risks (human health, goods and conveyances), compliance and enforcement, ballast water, ‘approved arrangements’ (replacing Quarantine Approved Premises and Compliance Agreements) and biosecurity emergencies.
Of note, the Act substantially redefines ‘international’ waters as those beyond 12NM from Australia’s shoreline (whereas it was previously 200NM) and makes it clear that all goods and conveyances arriving in Australian territory are subject to biosecurity control. ‘Goods’ and ‘conveyances’ are given extraordinarily wide definitions.
The Act is administered by the Commonwealth departmental heads of agriculture and health. Substantial powers are given to these directors to ‘determine’ a plethora of matters from time to time. Previously, often cumbersome parliamentary processes were needed for relatively minor changes. It is inevitable that numerous “Determinations” will be issued in the future, substantially affecting stakeholders’ rights and obligations. These ‘determinations’ have the force of law as delegated/subordinate legislation. It is trite to say that ignorance of the law will afford no excuse for non-compliance.
Both departments have a plethora of information about the new Act on their websites but like nearly all commonwealth government websites, navigation can be difficult. NEVER rely wholly and solely on any governmental website or publication in relation to legal matters. While they are generally a good source of departmental policy, it is not unheard of for government departments to misstate the actual law; where absolute certainty is required, CHECK THE ACTUAL LAW. Note that it is NO DEFENCE to a charge, infringement etc if you rely on a departmental publication, verbal advice etc which turns out to be in fact wrong and thus unlawful. In the case of Ostrowski v Palmer a commercial fisherman, Mr Palmer, was verbally told by fisheries officials that he could fish in a particular area. In reliance on this he fished as advised. As it turns out, the officials were wrong. Ultimately, the High Court of Australia held that Mr Palmer had no defence to a charge of fishing in the unlawful area.
One of the most significant developments that the Act ushers in is a national framework for regulating the biosecurity risks posed by ballast water. The legislation has been drafted to move Australian legislation towards consistency with the International Maritime Organization’s (IMO) International Convention for the Control and Management of Ships’ Ballast Water and Sediments 2004. Under the Act, it is an offence to discharge ballast water in Australian seas. A person does not commit an offence if an exception applies (as defined) but records must be kept of the same.
There are a plethora of criminal and civil offences under the Act. Some carry terms of imprisonment. The authorities reassure that they will be taking an ‘educative’ rather than rather than ‘punishment and punitive’ responses during the initial period. Stakeholders would be well-advised though not to rely on this.
In general, the Act is a welcome addition to the protection of Australia’s health, environment and industry, especially in relation to regulating ballast water. Yet it will be many years before it could be confidently said that it has achieved these ends.
Nick BOYDEN LLB, Principal Lawyer
Australian Maritime Lawyers, 20th June 2016.