“Australia’s people, economy and environment benefit significantly from a strong biosecurity system. Australia’s unique pest and disease status helps to protect our way of life, including our environment, human health, and the wellbeing of our domestic animals and plants. This unique status means that our agricultural industries, environment and communities have remained free of many pests and diseases common elsewhere, giving Australia a comparative advantage in export markets around the world.”[1]
The Biosecurity Act 2015
The enactment of the Biosecurity Act 2015 (Cth) (Act) aimed to reduce the level of regulation for many businesses, including by allowing businesses to voluntarily enter into arrangements with the Department of Agriculture, Fisheries and Forestry (DAFF) to manage their biosecurity risks in an approved way. These types of approved arrangements are imaginatively known as “Approved Arrangements”.
When applying for an Approved Arrangement, an applicant must establish that it is a fit and proper organisation that will conduct biosecurity activities in such a way as to manage any risks to biosecurity, including by way of training and accreditation.
If an organisation does not carry out biosecurity activities in accordance with the Approved Arrangement, or it fails to comply with any condition or requirement of that Arrangement, then it will be in breach of s428 of the Act.
Offences under that section may be fault-based or strict liability. An organisation that commits an offence of failing to carry out biosecurity activities in accordance with an Approved Arrangement may be liable to a civil penalty. Penalties for contravening this section range from 60 to 1,000 penalty units ($18,780 – $313,000), or in the case of fault-based offending, up to 5 years’ imprisonment for an individual.
Section 521 of the Act sets out the circumstances in which executive officers (including directors) of companies that are parties to Approved Arrangements may be liable for the contravention by a body corporate under a civil penalty provision, including s428. Under this section, an executive officer of a body corporate contravenes the clause if:
- the body corporate contravenes a civil penalty provision;
- the executive officer knew, was reckless or negligent as to whether the contravention would occur;
- the officer was in a position to influence the conduct of the body corporate; and
- the officer did not take all reasonable steps to prevent the contravention.
The section also sets out the standards of recklessness and negligence that the officer would need to have displayed to be found liable. If found liable, a maximum civil penalty of 120 penalty units or $37,560 applies.
When determining whether an executive officer of a body corporate failed to take all reasonable steps to prevent a contravention, the court may have regard to all relevant matters, including:
- any action taken by the officer directed towards arranging professional assessments of compliance;
- implementation of recommendations arising from any assessments; and
- ensuring staff have relevant knowledge and understanding of any requirements to comply with civil penalty provisions.
Additionally, the court may consider any action taken by the officer once the officer became aware of the contravention.
Section 528 recognises the extra responsibility that executive officers have in ensuring the appropriate conduct of a company and their duty to take actions to prevent contraventions of the Act.
Application
There is very limited case law or legal commentary as to the consequences of non-compliance with the Act and the likely penalties which would be imposed.
Since the introduction of the Act (until March 2021), 40 cases referred for prosecution by the department have been finalised. Of those cases, 12 have been withdrawn, with the remaining 28 reaching a guilty outcome.
The reasons for withdrawal of a case included:
- insufficient evidence;
- advice from the Commonwealth Director of Public Prosecutions that there was no reasonable prospect of securing a conviction; and
- two cases against individuals being withdrawn as the company pleaded guilty.
A recent decision of the County Court of Victoria dealt with an importer of seafood who was charged with failing to carry out biosecurity activities in accordance with an approved arrangement and hindering compliance with the Act. The importer had received a batch of prawns that were infected with a virus that posed a significant biosecurity risk.
Further, the prosecution submitted that the Court should have regard to the importer’s conduct in doctoring a false consignment for the purpose of concealing the breach, and refusing to allow DAFF officials access to a freezer.
Whilst the importer had no prior criminal history, the offending involved a breach of trust and was considered significantly serious and deliberate to warrant a conviction and fine (of $80,000). Notably, no charges were made against any of the individuals involved.
Last year, a nation-wide wide waste management business was alleged to have incorrectly dumped imported pork products at a non-approved disposal facility. Whilst that business was not formally prosecuted, it will be the first to be subject to a new two-year monitoring program. The DAFF accepted an Enforceable Undertaking from the company, which will be required to meet several undertakings over the next 24 months. These undertakings include requirements to re-train staff, and engage an independent auditor to ensure they are meeting their obligations in relation to their approved arrangement.
Resolving issues
“Attitude” and “ability” in respect of bringing the operations into compliance appear to be key considerations in the DAFF enforcement process.
Co-operation with the DAFF and taking proactive steps to manage and eliminate contraventions of the Act appears to reduce the risk of any criminal prosecution.
On-going monitoring and (potentially) enforceable undertakings may be required to satisfy the DAFF that there will be no future instances of non-compliance and that the current Approved Arrangements should continue.
If you have any questions in relation to this article or compliance with biosecurity laws generally, please don’t hesitate to contact a member of our Food & Beverage team.
If you have any questions in relation to this article, please contact our Litigation & Dispute Resolution team. If you have questions about compliance with biosecurity laws generally, please reach out to a member of our Food & Beverage team.
[1] Biosecurity Bill 2014 – Explanatory Memorandum.
