Why did Tasmania need new biosecurity legislation?
Biosecurity is fundamental to the success of Tasmania’s agriculture, aquaculture and tourism industries as well as the protection of our unique island environment and our way of life. Globalisation of trade, internet commerce, and the modern ease of travel establishes new pathways for the introduction of pests and diseases to the State. We need to be able to deal with such biosecurity threats across the entire “biosecurity continuum” – that is, before they reach the State border, at the border, and after they have passed the border.
Until now, Tasmania’s biosecurity has been managed under seven separate Acts. While these Acts have served us well, they were developed incrementally over three decades, and in a piecemeal fashion. Recent experience with Queensland fruit fly, and other cases involving the movement of plants and animals across Bass Strait, have highlighted the need for Tasmania’s biosecurity laws to also cover persons and activities in mainland States. This is uncertain under current legislation. Consolidating Tasmania’s biosecurity laws into a single modern statute (the
Biosecurity Act 2019) will ensure they remain “fit-for-purpose” and do not become increasingly duplicative and outdated.
Which legislation will be replaced by the new single Biosecurity Act?
The Biosecurity Act will replace the following seven Acts:
Animal (Brands & Movement) Act 1984
Seeds Act 1985
Animal Farming (Registration) Act 1994
Animal Health Act 1995
Plant Quarantine Act 1997
Weed Management Act 1999
Vermin Control Act 2000
How will the new legislation improve the management of biosecurity in Tasmania?
The Biosecurity Act provides a simpler and more effective legal framework for the management of pests, diseases and invasive species, imports of plant and animal products, biosecurity emergencies, and monetary reimbursement for biosecurity related loss. Other key features include:
- improved ability for Biosecurity Tasmania to manage biosecurity issues "pre-border" to help keep the risk "offshore" This is a critical development which will allow us to better manage biosecurity risks of concern – such as Queensland fruit fly;
- a General Biosecurity Duty (or GBD) (note – the GBD will come into effect on 31 March 2021), which imposes a statutory duty of care on all persons to properly manage biosecurity risks when dealing with any animals, plants or related products. This important provision emphasises the importance of shared responsibilities in maintaining a robust biosecurity system;
- criminal penalties that are more appropriate for the nature and gravity of biosecurity offences, and better aligned with penalties for biosecurity offences in other States. These changes will provide a significant disincentive to those who attempt to work around our biosecurity regulations; and,
- the ability for detailed biosecurity measures to be tailor-made for managing specific issues, activities or impacts, and implemented via subordinate regulations and statutory programs. This improved flexibility will provide the platform to effectively manage biosecurity risks now and into the future.
The new Biosecurity Act is more evolutionary than revolutionary. The new biosecurity system will retain many of the elements of our existing biosecurity system, but in a modernised and consolidated form.
How did the new Biosecurity Act come about?
The Biosecurity Act 2019 is the outcome of more than four years of consultation involving a broad array of stakeholders, who have engaged with the Government in good faith to assist in its formulation.
In 2014 the newly elected Liberal Government commenced a reform process to improve the management of biosecurity in Tasmania. Biosecurity Tasmania was established and a comprehensive policy review of Tasmania’s biosecurity system was initiated. This aimed to ensure Tasmania had practical, modern biosecurity laws capable of furthering the principles and objectives in the Tasmanian Biosecurity Strategy, while minimising red and green tape for business, and the community in general.
A Draft Position Paper setting out policy positions for the proposed regulatory reform was released for public consultation in March 2016, and a draft Future Directions Paper outlining a new legislative framework for biosecurity was released in November that same year.
In line with the main recommendation of that review, the Government decided to replace seven of Tasmania’s biosecurity related Acts with a single piece of framework legislation – and the development of the Biosecurity Bill commenced towards the end of 2016. The new Biosecurity Bill was then introduced to Parliament in 2019.
Who was involved in the development of the Biosecurity Act?
Consultation on the draft Biosecurity Bill was extensive. An early draft of the Bill was released for public comment in 2017 and a number of intensive workshops on the draft Bill were undertaken throughout that same year with industry and community groups like the Tasmanian Farmers and Graziers Association, Tasmanian Seafood Industry Council, Fruit Growers Tasmania, Wine Tasmania, Tourism Tasmania, Nursery and Garden Industry TAS and the Tasmanian Conservation Trust – to name just a few.
Further consultation with stakeholders occurred throughout 2018, and further amendments were made to the draft Bill. Biosecurity Tasmania was also able to draw on the experience of the Queensland Fruit Fly Response, and the Legislative Council report on blueberry rust in Tasmania to help refine the Bill.
A final exposure draft of the Bill was released for public comment on the Department's website in January-February 2019.
When will the new Act commence operation?
As of 7 August 2019 the new legislation was passed by both Houses of Parliament. On 26 August 2019 the Bill received Royal Assent as the Biosecurity Act 2019. Royal Assent is given when the Governor of Tasmania, representing the sovereign, assents to a Bill after it has been passed by both Houses of Parliament, therefore meaning the Bill has now become an Act of parliament.
Work can now begin on its implementation. Biosecurity Tasmania is well advanced on the implementation project, with changes to be rolled out in a staged manner to minimise impact to business and the community.
Until those changes are made the Regulations made under the many separate pieces of legislation that were previously used to manage biosecurity will remain in place as the main compliance tools, until the provisions of the new Act are proclaimed.
Full implementation will take three to four years and will involve consultation and ongoing participation between government, industry and community.
The new Act requires the formation of a Biosecurity Advisory Committee (BAC). Who will be represented on the BAC and what functions will it have?
The Biosecurity Advisory Committee will (as the name suggests) have an advisory role. The BAC will not generally be involved in operational or regulatory decision-making. However, it will play a role in guiding Government strategies and policy in respect of biosecurity.
The composition of the Committee is set out in the new legislation. As a minimum, the Committee will need to have in its membership:
- a person with relevant knowledge and experience in science, industry and community liaison and education;
- a person with relevant accounting, economic or strategic planning expertise;
- a person with public administration expertise at both the State and local government level;
- a representative of wild fisheries industries;
- a representative of animal-based agricultural industries;
- a representative of plant-based agricultural industries;
- a representative of aquaculture industries;
- a representative of tourism industries;
- a representative from environmental organisations;
- a community member; and
- a State Service employee.
The new Act describes a "general biosecurity duty" (GBD). What is the GBD and how will it work?
The General Biosecurity Duty (GBD) creates an obligation on all Tasmanians and businesses to use reasonable standards of care when dealing with any biological material that may pose a biosecurity risk. Under the GBD, any person dealing with plants or animals (or their derived products) who knows, or ought reasonably to know, that a biosecurity risk is posed or is likely to be posed has a legal duty to ensure that, so far as is reasonably practicable, the risk is prevented, eliminated or minimised.
The GBD will operate as a statutory “duty of care” in respect of biosecurity. It is legally enforceable and non-compliance with the duty may be penalised by criminal sanction, as is the case in New South Wales and Queensland. A significant breach of the duty that is intentional or reckless will be an aggravated offence that carries the highest maximum penalty in the Act.
An example of an aggravated breach of the GBD would be a person causing a significant biosecurity impact by deliberately releasing an invasive pest, such as live fruit fly or European carp, into the Tasmanian environment.
The inclusion of the GBD within the new Act emphasises the importance of shared responsibilities in maintaining a robust biosecurity system.
The GBD will come into effect on 31 March 2021.
The new Biosecurity Act is described as “framework legislation” - what does this mean?
As framework biosecurity legislation, the Biosecurity Act sets out the overarching legal concepts, principles, functions, and legal machinery to support biosecurity management in Tasmania. However, it also enables more detailed measures to be tailor-made for managing specific issues, activities or impacts, and implemented via subordinate legislation (i.e. “regulations”).
For example, the Act itself does not contain any new prescribed fees or levies. The Government already had the legal capacity to recover costs and charge fees for a range of biosecurity functions it carries out under the previous legislation. That capacity is maintained under the Biosecurity Act, along with the capacity to prescribe statutory fees and levies in regulations.
Subordinate legislation must, in accord with the
Subordinate Legislation Act 1992, be assessed by the Department of Treasury and Finance to not impose any unreasonable cost or burden on any part of the community. A regulatory impact assessment involving public consultation must also be carried out unless the Secretary of Treasury determines that it is not necessary. Also, any new fee or levy set by regulations made under the Biosecurity Act would be open to review and disallowance by either House of Parliament, as is the case for all subordinate legislation.
How will the National Livestock Identification Scheme (NLIS) be applied under the new legislation?
The National Livestock Identification Scheme (or NLIS) is another example of an existing biosecurity system that will be implemented through regulations under the Act. The NLIS is a national scheme for the identification and traceability of livestock sold or moved anywhere in Australia. It is recognised as a world-leading biosecurity initiative, and was established because animal traceability is fundamental to managing both animal health, and the integrity of food produced from livestock – predominantly meat and dairy produce.
Tasmania has implemented the NLIS under the Animal Brands and Movement Act 1985. That Act is more than 30 years old, and becoming increasingly cumbersome and outdated. Unlike Tasmania, other states implemented the NLIS through regulations made under their overarching biosecurity or animal health legislation rather than through a special NLIS related act. So using regulations under Tasmania’s new biosecurity legislation to implement the NLIS is a sensible reform, one that brings Tasmania into line with other states.
One of the objectives of the new Act is to promote sharing of responsibility for Tasmania’s biosecurity between the Government, industry and the community. How will this be achieved?
The Biosecurity Act creates a general biosecurity duty (GBD), which imposes a statutory duty of care on all persons to properly manage biosecurity risks when dealing with any animals, plants or related products.
The Act also provides opportunities for business to choose to work cooperatively with others in their industry sector, or with government, to manage biosecurity risks and impacts. Tasmania already had some examples of self-management. For example, TT Line personnel undertake clearance of in-bound movements at embarkation in Melbourne, and Tasmanian cherry exporters may be accredited to inspect their own produce.
The Act will enable the State Government to recognise non-government organisations as accreditation authorities, who in turn may accredit private certifiers and auditors to audit and inspect business operations, and provide product certification. Among other opportunities, this could see Government recognising industry-based quality assurance programs for regulatory purposes, where appropriate.
One such scheme already operating across Australia is the Interstate Certification Assurance Scheme – a national system of plant health certification based on quality management principles.
The Queensland fruit fly emergency that occurred in early 2018 and the blueberry rust enquiry in the Legislative Council have raised some concerns about the performance of private certification schemes – how will the new legislation address these issues?
A major shortcoming of the present biosecurity legislation – particularly the Plant Quarantine Act – is the absence of a system to regulate the operation of industry certification schemes in Tasmania. The experience of the 2018 fruit fly incursion, where infested fruit was imported after it had been fumigated and certified as fruit fly free, indicates that these schemes can sometimes fail to deliver intended outcomes.
For example, a situation may arise where someone on the mainland, who is not appropriately accredited to perform that task, is certifying produce as being pest free, enabling the importation of high-risk material to Tasmania.
This is why a robust legal framework is needed to govern the operation of private certification schemes in Tasmania. Under the new Act, industry based biosecurity certification; auditing and accreditation activities will be subject to the regulatory oversight of Biosecurity Tasmania. A private certifier who fails to meet with Biosecurity Tasmania’s regulatory standards can have their accreditation to operate in Tasmania cancelled or suspended, and may even face criminal sanctions in certain circumstances.
In addition, a major advantage of the new legislation is it will have clear extra-territorial operation, which is uncertain under the old legislation. This means it can cover the activities of persons in mainland States who are engaged in importing and certify imports to Tasmania.
How will the new legislation provide for compensating persons who suffer economic loss as a result of an outbreak of a pest or disease?
Currently in Tasmania, reimbursement (in respect to biosecurity) is effectively limited to animals or plants destroyed in a biosecurity response when it is covered by one of several national cost-sharing deeds entered into between the states, Commonwealth and relevant industry body.
However the national deeds generally only cover biosecurity emergencies that concern pests and diseases that are exotic to Australia. The deeds generally do not cover pests and diseases that originate within Australia, such as Queensland fruit fly.
This shortcoming was evident in recent state-based responses like for blueberry rust where landholders were unable to be directly recompensed for the loss of plants destroyed on their properties.
Under the new legislation, owners will be entitled to reimbursement for the death or destruction of animals, plants, or other property in the following circumstances:
- where the animal, plant or property is covered by a biosecurity cost-sharing agreement which provides for reimbursement; or
- where it is destroyed under a Government biosecurity program which specifically provides for reimbursement; or
- where it is destroyed under an approved (industry or community) biosecurity program which specifically provides for reimbursement; or
- otherwise in circumstance that may be prescribed by the regulations.
As is the case now, there will be no statutory entitlement to reimbursement for indirect or consequential losses associated with biosecurity responses (such as compensation for loss of potential profits or future income), nor for the death or destruction of any animal, plant or other property that is connected with a breach of the Act.
How does the new Act deal with biosecurity emergencies?
Like the legislation it replaces, the Biosecurity Act provides the necessary legal framework for dealing with biosecurity emergencies. The Act defines a biosecurity emergency as an emergency arising from a biosecurity risk or biosecurity impact. Tasmania will continue to be guided by national approaches (such as national emergency response deeds and agreements). However, the Act enables these to be implemented through a simpler and more flexible regime of statutory instruments.
The Act establishes a three-tiered hierarchy for biosecurity emergency management. The choice of which statutory instrument to use is determined by the relative urgency of the response required. In the most urgent situations, where there is a high level of uncertainty, the relevant Minister of the day can make an
emergency order, which will expire after six months, unless remade. A court cannot issue an interim or interlocutory injunction to stay the operation of an emergency order, however a court is not prevented from making final orders to that effect.
Where the risks of a biosecurity impact are significant, but not as urgent as with an emergency order, or more clearly understood, the Minister can make a control order. A
control order can be in effect for a period up to five years without needing to be remade. Where long-term management of a biosecurity issue is required,
biosecurity zones can be made by regulations. These will generally be ongoing until the risk or impact being managed is addressed (or accepted). However, regulations will normally expire after ten years, unless remade.
Biosecurity zones could target established populations of animal pests (such as feral rabbits or cats) or weeds (such as gorse or blackberry). Or alternatively, a particular region or part of Tasmania’s archipelago, such as Flinders Island, or Maria Island, could be made a biosecurity zone, to enable the application of particular management measures in that area.
While emergency orders may mandate special measures (such as requiring people to undergo an external treatment to decontaminate their clothing before entering or leaving an area) the types of measures will likely be similar across all three tiers of biosecurity response.
Who will be the key statutory decision makers in the new regulatory framework?
The Biosecurity Act establishes the Minister for Primary Industries and Water, and the Secretary of the Department of Primary Industries, Parks, Water and the Environment (“the Department”) as the two key decision-makers, who can delegate their powers. Two principal authorised officer positions will also be established – the Chief Veterinary Officer and the Chief Plant Protection Officer, both of which have deputy positions attached.
Under the Act’s framework, high-level decisions that are likely to have broad strategic, social, economic or environmental ramifications are the responsibility of the Minister. These include decisions on the listing of permitted, prohibited or restricted matter, issuing emergency orders and control orders, approving biosecurity programs, and reimbursement schemes.
The Secretary is primarily responsible for high-level administrative functions such as appointment of authorised officers, business registration, approval of accreditation authorities, granting of general permits and general biosecurity directions, and Government cost recovery.
The Chief Veterinary Officer; the Chief Plant Protection Officer; their deputies; and regular authorised officers will be responsible for most day-to-day technical and operational functions under the Act. These officers (on the ground) are likely to be first responders in a biosecurity emergency. The Act requires the Secretary to be satisfied that any person appointed as an authorised officer holds appropriate knowledge, skills and experience to perform regulatory functions under the Act.
The Act also enables the minimum qualifications, skills and experience of authorised officers to be prescribed by regulation.
How is transparency and natural justice maintained in decisions about biosecurity in this new Act?
The Act is part of Tasmania’s Resource Management and Planning System (RMPS) and like other RMPS legislation, the Act provides appropriate rights of appeal to the Resource Management and Planning Appeals Tribunal (“the Tribunal”) for decisions that directly concern a persons interests.
Appeal is available for decisions about individual biosecurity directions; biosecurity registrations; accreditation as a biosecurity certifier; appointment as an auditor; approval as an accreditation authority; claims for reimbursement; cost recovery orders; and individual permits. Appeals to the Tribunal are not available in respect to high-level decisions applying generally to the public, or to broad classes of people. Examples of such decisions include emergency orders and control orders; listing declarations by the Minister; and the issuing of a group permit or general direction by the Secretary.
Appeal to the Tribunal is also not available for decisions in respect to emergency permits or directions, permits relating to prohibited matter (known as “prohibited matter permits”), or permits authorising a prohibited dealing (known as “prohibited dealing permits”). However, decisions or conduct that cannot be appealed (on the merits) to the Tribunal can still be reviewed administratively within the Department, or by the Tasmanian Government Ombudsman. The Supreme Court can also review the Government’s biosecurity decisions on a range of legal grounds (for example – a denial of natural justice, manifest unreasonableness, or failure to consider relevant evidence). That is the normal right of review under the
Judicial Review Act 2000, available to any person with a proper interest in the subject matter of a Government decision.
The Judicial Review Act also enables an aggrieved person to request written reasons for a decision made under the Act. For example, an industry representative, or other affected person, can request that the Minister provide written reasons for a decision to prohibit imports of certain products; or a decision to make an emergency order under the Biosecurity Act. The Minister must then (by law) provide written reasons for the relevant decision within 28 days. A request for reasons can be made whether or not the person making the request wishes to appeal against the decision, or go through a court process. The Act also imposes a requirement (in respect of control orders) on the Minister to specify reasons for a decision to manage (rather than attempt to eradicate) a new disease or invasive pest found in the State.
How will imports of plants and animals into Tasmania be regulated under the new Biosecurity Act?
The Biosecurity Act introduces an improved system for regulating the importation of plants, animals and other material into Tasmania from interstate, and the management of them once they are here.
The Act does away with a fairly confusing and opaque listing system that we currently have under existing legislation. It has just three self-explanatory list categories: prohibited matter, permitted matter, and restricted matter. All are listed in the same way, under the one Act, and in accordance with clearly expressed statutory criteria relating to biosecurity risk.
Prohibited matter is biosecurity matter or carriers of greatest concern. It must be assessed to pose a significant biosecurity risk to Tasmania. For example, most current List A and List B pests and diseases (under existing biosecurity legislation) would be likely be classed as prohibited matter under the new legislation, and declared by notice in the Gazette. A person cannot possess or deal with prohibited matter without a special permit – a prohibited matter permit.
Permitted matter is biosecurity matter of least concern. It is assessed to not pose a biosecurity risk to Tasmania (or an acceptable risk that is manageable with conditions). Permitted matter is declared by formal notice in the Gazette following risk assessment. It can be brought into Tasmania without a permit so long as listing conditions (if any) relating to import and dealing with the matter are followed. A failure to comply with a listing condition will disqualify the relevant biosecurity matter from being considered permitted matter. This means it will revert to being restricted matter in respect to importation into the State.
Restricted matter is a catch-all which covers any plant or plant product, animal or animal product (or a plant or animal disease) that is not listed as either prohibited matter or permitted matter. The Minister may also declare some restricted matter in the same way that prohibited or permitted matter is declared. Restricted matter cannot be imported into Tasmania without a permit.
This listing approach, commonly referred to as a “permitted list system”, embodies the precautionary principle and is used in Western Australia and New Zealand. It is particularly suited to geographically isolated jurisdictions such as Tasmania where (with its maritime borders) there is a greater ability to control imports from other states; and it provides a consistent, pro-active approach to assessment of imports rather than a reactionary system. Listing is by Ministerial declaration and notified in the Government Gazette. An “objective statutory test” means that the Minister of the day must have reasonable grounds (normally – appropriate scientific advice and assessment) on the level of biosecurity risk before making a decision to declare something as either prohibited or permitted.
What will the Government be doing to ensure that business and the community can understand and keep abreast of their legal requirements under the new biosecurity legislation?
The Act requires publication of a Tasmanian biosecurity compendium on the Department’s website to aid in transparency, and promote public awareness of Tasmania’s biosecurity requirements.
The compendium will contain up-to-date lists of all prohibited matter, permitted matter and restricted matter declared under the Act. It can also include any explanatory and supporting information concerning listing decisions, and other biosecurity requirements that the Secretary considers appropriate. A good example would be information on how to comply with the general biosecurity duty in particular situations.
Access to the biosecurity compendium will be free and it is intended to become an invaluable plain-language resource. The compendium will contain forms, guidelines and supporting information necessary to assist the business community, and the general public, to understand and comply with Tasmania’s biosecurity laws.
Does the new legislation have robust penalties for biosecurity related offences?
In relation to biosecurity offences, appropriate penalties are needed to serve as an effective deterrent against unlawful activity. Under Tasmania’s current legislation, maximum fines and limitation periods for biosecurity offences are disproportionately low in comparison with other states. Tasmania’s highest maximum biosecurity fine (on 2016 rates) was almost $70,000 less than the lowest of the other states with a single Biosecurity Act (Western Australia), and was more than $2,000,000 less than the highest (New South Wales).
Furthermore, biosecurity investigations can be complex and it often takes time to detect a statutory breach, or determine the cause of a biosecurity impact. However, the limitation period for prosecuting an offence under both the Animal Health Act and Plant Quarantine Act is six months from the date of the offence – basically the default time limit for minor summary offences in the
Justices Act 1959. In practice, six months may not be enough time to allow a proper investigation of a biosecurity incident to be completed, particularly if the matter is complex, involving other jurisdictions or the like.
The Biosecurity Act extends the limitation period for commencing a prosecution to three years from the date of the offence, with the possibility for that to be extended further by the court in appropriate circumstances.
The Act will also introduce a three tiered penalty regime that is commensurate with the nature and gravity of biosecurity offences.
The highest penalty is a 10,000 penalty-unit fine for a corporation ($1,630,000 on 2018-19 rates) or four years’ imprisonment for a natural person. This penalty will only apply to cases where a person is convicted of an intentional or reckless breach of the general biosecurity duty, resulting in a significant biosecurity impact.
The next level is a maximum fine of 3750 penalty units for a corporation, or two years’ imprisonment for a natural person. This will apply to an offence requiring proof of fault or negligence, such a breach of the general biosecurity duty that was negligent (rather than reckless or intentional). The lowest level is a 2500 penalty unit fine for a corporation or 500 penalty unit fine for a natural person. This is the standard maximum penalty applying to most offences in the Act, including offences of strict liability, such as importing restricted matter without a permit.
Does the Biosecurity Act allow industry and community groups to develop their own programs for protecting Tasmania’s biosecurity?
The Biosecurity Act provides a legal structure for the development and implementation of biosecurity programs. These can be administered by Government, or by an industry group like Oysters Tasmania, or Fruit Growers Tasmania, or a non-profit environmental organisation such as Landcare or the Tasmanian Land Conservancy.
For example, biosecurity programs could be established to eradicate weeds or feral animals from a particular regional area, or to promote the adoption of industry-wide disease control and prevention measures by a particular commodity sector.
Biosecurity programs must set out in writing the actions which the various parties will undertake, and also how the program’s costs will be met. This may be through sector or industry specific mechanisms, co-funding by Government, or other means. Programs are another key measure for promoting shared responsibility for biosecurity management between the Government, industry and the community in general.