138-2019 - The Biosecurity Act – update on the use of infringement notices across all import pathways
28 August 2019
Who does this notice affect?
This notice affects importers, import industry participants, the airline and shipping industries and other people bringing goods into Australia. Goods include cargo (commercial and non-commercial), mail and personal effects (i.e moveable property).
On 16 June 2016 the Biosecurity Act 2015 (Biosecurity Act) introduced a framework of modern regulatory tools to manage compliance. This framework includes infringement notices, enforceable undertakings, injunctions and civil penalties.
The Biosecurity Act contains 52 provisions that are subject to the infringement notice scheme in Part 5 of the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act).
A person can be given an infringement notice under Part 5 of the Regulatory Powers Act for contravening certain strict liability offence provisions and civil penalty provisions of the Biosecurity Act. Of the 52 infringement notices that can be issued by the department, four of those are strict liability offences. The strict liability offences are:
- Section 188(1) - a person commits an offence of strict liability if under this provision the person receives, or has in their possession, goods that are prohibited or suspended goods that have been brought or imported into Australian territory.
- Section 221(3) - A person in charge of a vessel that is within Australian territory must ensure that the prescribed quarantine signal is displayed on the vessel in the circumstances and in the manner prescribed by the regulations. A person not doing so commits an offence of strict liability under this provision.
- Section 301(4) - A biosecurity officer may require the owner of a vessel to produce to the officer any record required to be retained under section 294, or a copy of such a record certified by or on behalf of the owner. A person commits an offence of strict liability if the person is required to produce a record, or a copy of a record, and the person fails to comply with the requirement as soon as reasonably practicable.
- Section 556(4) - If a biosecurity officer boards a conveyance, the biosecurity officer may direct the person in charge of the conveyance to provide suitable and sufficient food and sleeping accommodation for the biosecurity officer. A person who is given a direction must comply with the direction. A person who does not do so commits an offence of strict liability under this provision.
The rest of the remaining 48 provisions are civil penalty provisions and do not attract criminal penalties.
What has changed?
As the Biosecurity Act has now been in operation for 3 years, the department is adopting a less tolerant attitude towards non-compliance. Industry participants should now understand their legal obligations under the Biosecurity Act and have processes and systems in place to ensure compliance. The department will issue infringement notices and take other enforcement action in appropriate circumstances.
Before issuing an infringement notice, for either a civil penalty or strict liability provision, the department will satisfy itself that all the elements of the provision have been met. Infringement notices that are issued outside of the airport are not issued unless an investigation has been conducted by enforcement officers.
If an infringement notice is issued and the amount specified in the notice is paid on time, any liability regarding the alleged contravention is discharged, however the department will retain a non-compliance history for the person or entity that has been issued with an infringement notice. If the amount specified in the notice is not paid, then prosecution for an offence or proceedings for a civil penalty order may be commenced. The court may then impose the maximum penalty for the contravention.
If you have any questions about the issuing or payment of infringement notices contact the Infringement Notice Unit on Infringement Unit or by phone, from Monday – Friday, 8:30am – 4:30pm AEST, on 02 6272 4965.
Further information on the Infringement Notice Scheme is available on the department’s website.