Originally posted on Lloyd's List Australia

The Department of Agriculture & Water Resources (DAWR) is now moving onto implementation of Stage 2 of the Biosecurity Act 2015 (Act), as well as reform to the control of imported foods and the export of goods.

There has already been significant coverage of the successful implementation of the Act, which commenced on 16 June. However, this was only the first stage of the process.

The Act replaced the former Quarantine Act 1908 and was intended to be flexible and responsive to changes in technology and future possible developments. The intention of the Act was to provide a modern regulatory framework; reduce duplication and regulatory impact; allow for current and future trading environments; and allow for collaboration across government and industry.

Stage 1 of the Act

Stage 1 of the implementation was to transition previous arrangements under the Quarantine Act to coverage under the Act and included such practical issues as movement towards "approved arrangements", the need to secure permits before goods arrive and the granting of new powers to officers of the DAWR.

On 16 June 2016, existing "Quarantine Approved Premises" (QAPs) and Compliance Agreements (CAs) approved under the Quarantine Act became transitional approved arrangements. The transitional approved arrangements for existing QAPs expired on 30 June 2016 and QAPs wishing to continue under an arrangement with the DAWR after 30 June were asked to submit an application for an approved arrangement.

Between the start of the Act and expiry of the ex – QAP TAAs on 30 June, applications submitted by those wishing to transition were assessed by the DAWR and of 2608 applications received, 2580 were approved and the eligibility of the remainder are being assessed.

Stage 2 of the Act

According to the DAWR, it is now moving to Stage 2 of the implementation of the Act, which includes a number of projects such as:

Management of ballast water (associated with the new International Ballast Water Convention);

  • Onshore and emergency powers;
  • Completion of approved arrangements transition;
  • First point of entry framework;
  • An expanded infringement notice scheme (INS);
  • Implementation of all assessment and management powers; and
  • Wider adoption of the "fit and proper person" test.

Of course, some of these are already in action especially the "fit and proper persons" test.

The adoption of a broader INS is of particular interest. The existing INS for the purposes of the DAWR has operated mainly at the border in relation to travellers, allowing for a more flexible approach to the issue of penalties and punishing non–compliance by those travellers as they arrived in Australia in lieu of prosecution or allowing offences to occur without punishment.

The intention is now to extend the operation of the INS to allow their use against "cargo" offences that will provide for broader operation in relation to more industry parties in the supply chain. This will have more of a substantive impact on licensed customs brokers, freight forwarders and the operators of approved arrangements.

Of interest will be the operation of the INS including the process for the issue of INs and what mechanisms may be available to seek the review of the INs. This will be a real test as the expansion of the INS by the Australian Border Force (ABF) has created significant issues for those in the supply chain much of which has been focused on service providers.

Legislative changes are also needed to support the next stage of implementation; particularly those needed for ballast water, and also some minor amendments to legislation and other delegated legislation that are often typical after new legislation is put into operation.

Additional import control review

There are currently two major reviews of import transactions by the DAWR. In the first instance that related to the review of import conditions based on funding being sought following the agricultural competitiveness White Paper in 2015. The aim of the review is to ensure that import conditions are contemporary and transparent and the associated regulation is appropriate for the relevant goods and circumstances.

At the same time there is a broader review of imported food controls reform through a Consultation Regulation Impact Statement (CRIS), which proposed three options for reforming the imported food control system. The imperative for the changes arose from the failings that were identified at around the time of challenges to the imported food controls.

Some changes have already been effected based on the first option in the CRIS namely requirements for importer food declarations of producer information, improved government communications, and an increased number of importers with a food safety management system.

The first of those changes has been effected through a new "field" on a Full Import Declaration and the others are to be effected through more public engagement.

The other main proposed change appears to be around those importing "prescribed foods" who will be required to demonstrate "supply chain assurance". The foods that will be prescribed and the nature of the controls in supply chain assurance will depend on the foods themselves and the nature of the risks given their specific supply chain.

Export control review

The nature of control of foods for export is at an earlier stage than that related to imported foods and is dictated by the "sun setting" of many of the existing provisions. Again, there will be a CRIS followed by extensive engagement with industry including exporters and their service providers, which will (hopefully) lead to the development of considered and collaborative new regulation. As always the nature of the regulation needs to include consideration of the nature of the risks compared to the costs and convenience of change to the regulation.

Review of biosecurity fees and charges

Finally, the ongoing review of these fees and charges, which will be of interest to many within industry. The Biosecurity Cost Recovery Implementation Statement commenced on 1 December 2015 to review the alignment of fees and levies to costs. The outcome of the review will be interesting as many in industry believe that the fees imposed for "approved arrangements" far exceed actual costs and are unreasonably imposed both on SMEs and large corporates at the same level despite the size of the applicant and the transactions conducted by the parties.