Article published 10 March, 2016 by Lloyd's List

Author: David Sexton

Speaking from the Gadens offices in Bourke Street, Melbourne, Mr Hudson said the legislation which passed Parliament last year was essentially sound. But the abolition of the old 1908 Quarantine Act and the development of a new series of regulations to underpin the legislation means changes to past practices and the adoption of new practices and terminologies.

Even with all the best will in the world, Mr Hudson says, there may be some teething troubles as affected parties have to deal with the reality of a new regime of controls.

The former version of the legislation was introduced into the last Federal Parliament but it fell by the wayside as it was not passed before that Parliament was dissolved before the last election.  Following the election the new Coalition Government implemented a further review of the legislation and the biosecurity legislation was introduced into Parliament last year and received Royal Assent in June 2015 albeit with a 12 month commencement period.  The intent of the new legislation was to ensure that Australia had a biosecurity regime which was “modern, flexible and responsive” according to Deputy Prime Minister and agriculture minister Barnaby Joyce.

Mr Hudson said the intent behind the 12 month commencement period was to allow the Department of Agriculture and Water Resources (DAWR) to consult with industry both on the new Act but also in relation to the development of new regulations on vital areas which underpinned the new Act and provided the basis for the more flexible operating environment.  The framing of the new regime is consistent to the approach of legislative reform in other areas where a framework of legislation in enacted with provision for regulations to be developed to provide the operating environment on the basis that the regulations are easier to implement and amend. The approach has been adopted recently in relation the Trusted Trader and Known Consignor programmes.

“They (the Department and its officers) have been excellent with consultation, engagement and education with industry and industry bodies".

“So the Quarantine Act will disappear and it is interesting that they are reworking it altogether".

“It is different to other areas where Government continues to jam new bits into existing legislation , such as with our Customs Act which it is bursting at the seams and the approach  is similar to that in New Zealand where they are re-writing the Customs Act for the third time.”

He talked of changed terminology in some vital areas, such as ‘Quarantine Approved Premises’ becoming ‘Approved Arrangements’ and affected vessels, aircraft and other transport becoming "conveyances".

The legislation also formalises the statutory position and role of the Inspector-General of Biosecurity which was initially created in 2009 as an interim position pending enabling legislation.

“The idea is they want a new Act with new powers and more agility to deal with biosecurity risks, human or otherwise and to be better able to monitor and intervene, and, where necessary, to issue penalties to punish non-compliance and act as a deterrent.  Again, this is consistent to the approach of other border agencies such as the DIBP (formerly Customs).  An example of that approach is the adoption of an Infringement Notice Scheme which would allow the Department to issue penalties where it believed that offences had been committed, rather than having recourse to Court action.  The theory is that more active compliance intervention would encourage those affected to take compliance more seriously - and enable more active and immediate enforcement.  Similarly, the new provisions for ‘Approved Arrangements’ are expected to allow for more active enforcement.

The term ‘quarantine’ largely disappears only remaining in the context of quarantining people in hospital.

Mr Hudson said he believed the laws would work thanks to the lack of "legislation shock" afforded by the model of consultation and engagement with those affected and time given to manage the changes.

“I like the idea that they’re doing it with the intention to reduce ‘red tape’ and in a considered manner over some time which, again, is consistent to the current Government's Regulatory Performance Framework.

“There will be some issues around new terminology and practice but I think they’ve been very transparent around the way they chose to do it and getting it to industry for comment.

“Even with all the goodwill in the world, people will still stuff it up because often people don’t respond to things until they come into effect."

“Those affected don’t necessarily do their homework. That’s why a lot of the industry associations are being enlisted to help get (the message) to membership.”

Industry associations such as the CBFCA, the ECA and the Food and Beverage Importers Association are among those who have been closely consulted which is also consistent to the Regulatory Performance Framework which calls for engagement with stakeholders.  The Department has also held educational roadshows on the new Act and draft regulations as well as forwarding them electronically to those affected for comment and for education.

“It is a pretty good model as to how you’d like to introduce new legislation.”Mr Hudson said the legislation also needed to be considered in the context of the a number of other fundamental changes to the Department's operations such as the new Biosecurity Import and Conditions (BICON) system and the proposed new legislation around country of origin labelling and imported food control.

"I hope that those affected take the time to properly consider the changes and I am sure that the Department will be gentle with its enforcement methods for inadvertent failures to comply."

The Government position

Deputy Prime Minister and agriculture minister Senator Barnaby Joyce has said the regulations outlined how the Biosecurity Act 2015 would work in practice.

“The release of the regulations provides clients and stakeholders with detailed information on how we propose to manage our biosecurity system in the future,” Minister Joyce said.

“There will be changes under the Act, and the regulations include important details of how it will work in practice, including the process for applying for import permits, how goods and conveyances are assessed and managed for biosecurity risk when they enter the country, and the information that must be included in an application for a permit to bring or import conditionally non-prohibited goods.”

He said biosecurity regulation and declaration for ballast water would help Australia meet our international obligations and will enable it to take that important step towards a national framework for regulating the biosecurity risks associated with ballast water from vessels.

“The Government has engaged in meaningful consultation throughout the development of the new biosecurity legislation, and comments received will be considered during the final drafting of the regulations.”

Minister Joyce said the biosecurity system was at the heart of a profitable agriculture industry and strong farmgate returns.

“As an island nation, Australia is free from many of the damaging pests and diseases that affect other parts of the world, and we want to keep it that way,” Minister Joyce said.

“A robust biosecurity system helps keep out exotic pests and diseases and also helps to reduce the impact should they enter Australia.

"This underpins our favourable trading status—our strong market access to a range of countries is built on freedom from many exotic pests and diseases.

"Biosecurity underpins so much of what makes Australian agriculture profitable, with benefits flowing on to our whole country and economy.”

Ballast Water

One area of special interest for the maritime sector no doubt will be the draft Biosecurity Regulation 2016: Ballast Water.

The Biosecurity Act is set up with a view to regulating biosecurity risks associated with ballast water and making Australian laws consistent with the International Maritime Organization’s (IMO) International Convention for the Control and Management of Ships’ Ballast Water and Sediments 2004 (BWM Convention).  The legislation aligns with the BWM Convention.

Further changes will be required when the BWM Convention eventually takes effect. 

Management of ballast water risk is expected to involve new management methods, such as ballast water treatment technologies.

The main changes will affect those ships using ballast water treatment systems. They will require ballast water management plans and certificates. The introduction of new requirements are to be aligned as much as possible with the coming into effect of the BWM Convention, in order to provide certainty and consistency for industry.

The Biosecurity Regulation 2016: Ballast Water prescribes ballast water management and reporting requirements including exceptions to the requirement to report.

The draft regulation describes the form and content of an application for approval of a method of ballast water management plans, the scheme for approval of ballast water management plans for Australian vessels and provides further detail in relation to ballast water management certificates for foreign and Australian vessels.