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Australia – Biosecurity Bill (Cth) – Take 2.

31 August, 2014

 

Legal News & Analysis – Asia Pacific – Australia – Environment 

 

WHAT YOU NEED TO KNOW

     

  • The Government has announced plans to introduce a new Biosecurity Bill 2014 (Cth) to replace theQuarantine Act 1908 (Cth). This follows the lapsing of the previous Biosecurity Bill 2012 (Cth) whenParliament was prorogued following the September 2013 Federal Election.
  • The Government has also made available a discussion paper on its import risk analysis process.

 

WHAT YOU NEED TO DO

     

  • Industry participants should monitor the progress of the Biosecurity Bill 2014 (Cth) on the Department ofAgriculture’s website. More information will be released on the website as the parliamentary process advances.
  • Interested parties should consider the Department of Agriculture’s discussion paper on its import risk analysis process and make any relevant submissions by 10 September 2014.

 

On 7 July 2014, the Minister for Agriculture, Barnaby Joyce MP, announced the Government’s plan to introduce the Biosecurity Bill 2014 (Cth) (Biosecurity Bill) to replace the century-old Quarantine Act 1908 (Cth) (Quarantine Act). This follows the lapsing of the Biosecurity Bill 2012 (Cth) (2012 Biosecurity Bill) at the end of Parliament in September 2013. As part of this process, the Department of Agriculture is conducting an Import Risk Analysis (IRA) to gather information and feedback about the current IRA process and to inform the development of the Biosecurity Bill.

 

The Biosecurity Bill

 

In response to the recommendations of the 2008 Beale Review of the Quarantine Act, the former
Government introduced the 2012 Biosecurity Bill into Parliament on 28 November 2012. The 2012
Biosecurity Bill lapsed when the Senate committee tasked with inquiring and producing a report on the implications of the 2012 Biosecurity Bill was extended past the September 2013 Federal Election and therefore unable to complete its report.

 

Given the significant changes proposed by the 2008 Beale Review of Australia’s quarantine and biosecurity arrangements, the extensive subsequent industry consultation and expense incurred in conducting the review and drafting the 2012 Biosecurity Bill, the Government announced on 7 July 2014 that a new Biosecurity Bill would be introduced. In updating and streamlining the biosecurity framework, the Government is intending for the changes to promote further agricultural growth and preparedness by more effectively managing animal/pest diseases and threats, and ensuring the safety of animal feed, fertilisers and other agricultural inputs.

 

The Government has announced that due to the broad scope and importance of Australia’s biosecurity system, the Biosecurity Bill will be administered by both the Department of Agriculture and the Department of Health.

 

Key Biosecurity Improvements

 

The Government believes that the Biosecurity Bill will make the following improvements:

     

  • a reduction of more than AUD6.9m annually in business compliance costs due to more streamlined legislation;
  • new powers to allow the Government to respond to biosecurity risks within Australia, and the ability to  help State and Territory Governments manage significant pest and disease outbreaks; and
  • allowing the compliance history of a business or individual to be considered when determining if they should be allowed to import a good, or undertake biosecurity activities.

 

The Biosecurity Bill is intended to positively impact competitive and profitable agricultural and maritime industries by increasing the capacity for sustained domestic production and international exports.

 

2012 Biosecurity Bill

 

In the 2012 Biosecurity Bill, there was a threshold question as to whether the Bill had application beyond the outer limit of the territorial sea (being 12nm from the coast). For example, goods were only subject to biosecurity control if brought into Australian territory (including the territorial sea of Australia). Ballast water was no longer included in the definition of “goods” and subject to separate regulation. In particular, the prohibition against the discharge of ballast water only applied to vessels within the Australian seas (ie 12nm). Accordingly, the 2012 Biosecurity Bill did not appear to apply to overseas installations or vessels, or to ballast water on overseas installations or vessels, that did not come within 12nm of the Australian coast.
This appeared to be somewhat unusual given that:

 

  • it would represent a significant shift from the arrangements under the Quarantine Act;
  • the International Ballast Water Convention (which Australia is a signatory to and only requires another 5% of the world’s merchant ship tonnage to come into force) requires that a ship conducting ballast water exchange must, whenever possible, conduct such exchange at least 200nm from the nearest land and in all cases, at least 50nm from the nearest land; and
  • as a signatory to the International Ballast Water Convention, Australia is required (under the Vienna Convention of the Law of Treaties) to refrain in good faith from acts that would defeat the object and purpose of the treaty.

 

There has been no indication as to whether there will be a departure from this position in the new
Biosecurity Bill.

 

Targeted Consultations And Import Risk Analysis

 

The Department of Agriculture is conducting ongoing targeted consultation with interested industry
participants. We expect that this will continue following the draft Biosecurity Bill becoming publicly
available.

 

The Department of Agriculture is also undertaking an examination of Australia’s IRA process and have released a public discussion paper to help inform the development of the Biosecurity Bill and the relevant regulations for conducting IRA under this Bill. The full discussion paper is available here and explains the process to be used to assess the level of biosecurity risk associated with the importation of goods and to explain Australia’s international obligations.

 

Next Steps

 

As there has been no indication as to the timing of the introduction of the Biosecurity Bill, industry
participants should continue to monitor its progress.

 

More information will be released on the Department of Agriculture’s website (here) as the parliamentary process advances.

 

Interested parties should also consider the Department of Agriculture’s discussion paper on the
IRA process and if interested, respond to the questions posed in the discussion paper by 10 September 2014, by either:

 

  • making a submission with the required cover sheet completed (available here) and emailing it to biosecurityconsultation@agriculture.gov.au; or
  • using the online form (available here).

 

The outcomes of the consultation process and advice about the Biosecurity Bill will be provided by the Department of Agriculture as the process progresses. Interested stakeholders can receive updates on this by registering here.

 

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For further information, please contact:

 

Paul Newman, Partner, Ashurst 

paul.newman@ashurst.com 

 

Ashurst Environment Practice Profile in Australia 

             

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