New Biosecurity Penalties

The Biosecurity Amendment (Strengthening Penalties) Act 2021 came into effect in June 2021. The Act increased the penalties for 28 civil and criminal offences under the Biosecurity Act 2015 in a bid to protect the country against the threat of imported pests and diseases. The changes followed a 2017 review by the Inspector-General of Biosecurity of the effectiveness of biosecurity controls for imported prawns.

Under the Biosecurity Act, a penalty for a biosecurity breach can be civil, criminal or both, with a higher penalty for a company than for an individual. The higher penalty is to ensure the penalty is not perceived as simply a cost of doing business.

Penalty increases

The penalty has risen from 120 penalty units ($26,540) to 300 penalty units ($66,600) for some offences. These include when a person does not comply with a direction from a biosecurity officer to:

• secure goods;
• provide samples of goods;
• answer questions or provide information in writing about goods;
• produce documents about goods;
• move goods as soon as practicable to a specified place;
• not move, deal or interfere with goods;

They also include when a person:

• interferes with, removes or defaces a biosecurity control notice that is affixed to goods;
• moves, deals with or interferes with goods that have been secured.

The penalty has risen from 300 penalty units ($66,600) to 1000 penalty units ($222,000) for some offences. This includes when goods are deemed to be an unacceptable biosecurity risk, and a person refuses to comply with a direction from a biosecurity officer to:

• to arrange for the goods to be exported from Australia;
• take certain measures in relation to goods, such as moving, destroying or treating them.

Prohibited or suspended goods

The Act provides for offences for bringing or importing prohibited or suspended goods into Australia. Prohibited goods are those which must not be brought into Australia at any time, and suspended goods are those which are specified in an order that lasts up to 6 months. The penalty for these has increased from 120 penalty units ($26,540) for a civil offence, and 300 penalty units ($66,600) for a criminal offence, to 1000 penalty units ($220,000) for each.

If the offence was committed to gain a commercial advantage, the penalty increases to up to 5000 penalty units ($1,100,000). If the offence involves harm to the environment, the penalty increases to up to 2000 penalty units ($440,000). A company can be fined up to 5 times this amount.

The rationale for the hefty penalties is that prohibited or suspended goods “pose such a significant and unacceptable level of biosecurity risk that it is not possible for biosecurity measures to be taken to reduce that level of risk to an acceptable level, including for the period of any suspension”. Further, “the social and economic costs of mitigating actual and potential damage may be significant”.

Biosecurity industry participants

The penalty changes focus on “biosecurity industry participants”, who are those people approved to carry out biosecurity activities under an arrangement. The changes to the penalties were made to ensure participants know and understand the law and carry out their activities as agreed. If the participant fails to carry out their activities, or fails to comply with any requirement or condition in their arrangement, they may be contravening the Act.

The penalty for this has increased from 120 penalty units ($26,540) for a civil offence, and 300 penalty units ($66,600) for a criminal offence, to 1000 penalty units ($220,000) for each.

The rationale is that “biosecurity industry participants hold a position of trust in Australia’s biosecurity system” , and a contravention “may result in significant risks to the integrity of Australia’s biosecurity system and its safeguards”.

Where the Act applies

The Act applies to all of Australia, as well as Norfolk Island, Christmas Island and the Cocos (Keeling Islands). Goods being brought to Australia are subject to biosecurity controls as soon as they enter Australian airspace or the sea 12 nautical miles from the coast.

For advice or representation in any legal matter, please contact Armstrong Legal.