Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

by leave—I move the amendments on sheet TK327:

(1) Clause 2, page 2 (table item 5), omit "7", substitute "8".

(2) Page 60 (after line 15), at the end of the Bill, add:

Schedule 8 — Concealment of goods

Biosecurity Act 2015

1 Section 9

Insert:

conceal goods has a meaning affected by subsection 186A(2).

2 After section 186

Insert:

186A Contravening conditions applying to conditionally non-prohibited goods brought or imported into Australian territory — concealment of goods

(1) A person is liable to a civil penalty if:

(a) the person brings or imports goods into Australian territory; and

(b) the goods are conditionally non-prohibited goods; and

(c) a condition in relation to the goods specified in a determination in force under subsection 174(1) has not been complied with; and

(d) the goods are concealed for the purpose of preventing the goods from being found, or preventing the true nature of the goods from being determined, by a biosecurity official.

Civil penalty: 1,200 penalty units.

(2) Conceal goods includes any of the following:

(a) concealing or disguising the goods on a person, within any clothing worn by the person, within any other object located on the person or within any other object not located on the person (including by sewing, gluing, fastening, binding, wrapping, covering, enveloping or packaging the goods);

(b) incorrectlymarking or labelling the goods or any packaging or container in which the goods are located;

(c) altering the goods (including by changing or suppressing the appearance, texture, smell or sound of the goods).

Exception

(3) Subsection (1) does not apply if the person:

(a) did not do the act, or omit to do the act, that constituted the failure to comply with the condition referred to in paragraph (1)(c); and

(b) did not aid, abet, counsel or procure that act or omission; and

(c) was not in any way knowingly concerned in, or party to, that act or omission (whether directly or indirectly and whether by any act or omission of the person).

Note: A defendant bears an evidential burden in relation to the matters in this subsection (see section 96 of the Regulatory Powers Act).

3 Subsection 523(1) (after table item 8)

Insert:

4 After subsection 524(4)

Insert:

(4A) Despite subsection (4), the amount to be stated in an infringement notice for the purposes of paragraph 104(1)(f) of the Regulatory Powers Act for the alleged contravention of subsection 186A(1) of this Act by a person must be:

(a) 20 penalty units where the person is an individual; or

(b) 100 penalty units where the person is a body corporate.

5 Subsection 633(2)

Omit "or 186(1)", substitute ", 186(1) or 186A(1)".

6 At the end of subsection 633(2)

Add:

Note 3: Subsection 186A(1) is contravened if a person brings or imports conditionally non-prohibited goods into Australian territory, a condition applying to the goods has not been complied with and the goods are concealed for the purpose of preventing the goods from being found, or preventing the true nature of the goods from being determined, by a biosecurity official.

7 Application provision

The amendments made by this Schedule apply in relation to goods brought or imported into Australian territory on or after the commencement of this Schedule.

I also table a supplementary explanatory memorandum relating to these amendments.

Australia's biosecurity system is facing increased risks due to individuals deliberately concealing goods to evade detection at the Australian border. We've seen this recently. As the minister, I've been very surprised at the lengths to which some people will go to conceal goods that they know very well should not be brought into this country because they expose our agriculture industry to risk. If individuals attempt to conceal goods such as meat and meat products, seeds and plant material, or fresh fruits and vegetables in their luggage, in their clothing or on their person, that is a serious flouting of Australia's strict biosecurity laws. These goods, if undetected, could introduce serious pests and diseases into Australia, devastating our $70.3 billion agricultural export industries, the 1.6 million jobs across the agricultural supply chain and our way of life. Everyone should openly and honestly declare goods such as food items on arrival in Australia so that biosecurity officers can inspect the items and assess the biosecurity risk. The concealment of goods at the border prevents our biosecurity officers from being able to appropriately assess and manage the biosecurity risk associated with those goods.

Under the current penalty scheme, individuals who attempt to conceal high-risk goods, including within their luggage, are subject to the same penalties as individuals who conduct less serious behaviour. I don't think that's right. The new measures in these amendments, therefore, will provide for stiffer penalties where someone demonstrates the more serious behaviour of concealing high-risk goods to evade detection. This may include acts like sewing goods into the lining of a suitcase or placing goods within a container with incorrect markings or labels. This includes a new civil penalty provision that would apply a higher maximum civil penalty of 1,200 penalty units. An individual may also be liable to an infringement notice with an amount payable of $4,440, the highest amount we have ever seen for an infringement notice for an individual under the Biosecurity Act. This is approaching double the current amount of the infringement notices. These stronger penalties will provide an effective deterrent against this serious behaviour, which jeopardises Australia's biosecurity system, while putting the focus on individuals who commit serious noncompliance by attempting to conceal high-risk goods when entering Australia. Thankfully the vast majority of individuals, including those returning from overseas, do the right thing and declare their goods on arrival in Australia. These new measures are designed to target the very small minority who not only fail to declare their goods but who choose to conceal goods to evade detection.

Biosecurity is everyone's responsibility and everybody needs to do the right thing. If they don't, the Australian public would rightfully expect an appropriate punishment. These new measures will provide a more proportionate response that better reflects the seriousness of these contraventions of our biosecurity laws. We will not tolerate behaviour that jeopardises Australia's agricultural industries, our food supply chain, our unique environment and our way of life.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I wasn't planning to ask any questions in this committee stage, but I did listen to the minister's second reading contribution and was disappointed that he didn't acknowledge the concerns that were expressed in this chamber over the last hour around the fact that we're voting to support an important bill today, but we're also voting to reduce the power of the Senate and we're voting against our own function and duties to scrutinise legislation.

So, Minister, would you take the opportunity now to address our concerns in relation to both the concerns within Scrutiny digest No. 6 of 2022 around the inclusion of no-invalidity clauses in proposed sections 196A and 393B, and why you didn't amend the bill that made determinations under proposed sections 196A, 196B and 393B and make them disallowable, and therefore subject to parliamentary oversight.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Before addressing Senator Whish-Wilson's question, I table an addendum to the explanatory memorandum relating to this bill. This addendum responds to the concerns that were raised by the Scrutiny of Bills Committee.

Senator Whish-Wilson, it was my intention to address these issues, because I know a number of senators raised them in their contributions, but I wanted to do it in the context of tabling that addendum. This is something that was requested by the Scrutiny of Bills Committee, I believe, only yesterday, and they asked for that to be done in time for it to be considered as part of this debate. I thank the departmental officials and my own personal staff in my office for the speed with which they've addressed this issue.

You're right, Senator Whish-Wilson, there has been a lot of back and forth in the last couple of weeks—particularly between me, my department and the scrutiny committees of this parliament—about what are essentially non-disallowable powers that are being provided through this legislation to the agriculture minister of the day. As I have made clear to those committees, I haven't taken it lightly to put forward legislation which provides powers to a minister—which, for the moment, happens to be me but will be someone different at some point in the future—which are not disallowable by the Senate. Obviously, the usual practice is that powers granted to ministers, in whatever field, are disallowable by the Senate, to provide some sort of check and balance on the potential misuse of those powers by ministers.

I would point out that the existing Biosecurity Act contains a small number of powers related to biosecurity outbreaks that are granted to either the agriculture minister or the health minister of the day. So it has been the case in years gone by that this parliament has recognised that, particularly in the circumstance of a major biosecurity outbreak that threatens human, animal or plant health, there are limited circumstances in which the minister of the day needs to be given powers to act very quickly to contain an outbreak without the threat of those decisions and those powers being jeopardised by potential overrule, if you like, by the Senate.

Similarly, in the amendments that we're putting forward in this legislation we are conferring additional powers to the agriculture minister of the day, and it is in response to the recent threats we've seen, particularly around foot-and-mouth disease and lumpy skin disease. They are powers, for instance, to direct how passengers arrive in airports, what they need to do on arrival and the ability to put down foot mats or other protections at airports—the sort of measures that we undertook in response to the recent threat. But I can tell you, it was a pretty convoluted process under the existing legislation to enable those things to happen. And that was all in a situation where, fortunately, we didn't have an outbreak here. It was about the threat of a potential outbreak. If we ever were in a situation in Australia where we did have an outbreak of a serious animal or plant disease like foot-and-mouth disease, we would need to be able to act quickly and with certainty, without the threat of those powers being overturned by the Senate.

As I say, I recognise that it is not the norm for these sorts of powers to be non-disallowable, and that's why with this legislation we're confining the non-disallowable nature to a very small number of powers that would only need to be used in the most extreme circumstances. There are a number of other powers provided in this legislation that would be disallowable by the Senate, because we recognise that, in general, powers being used by ministers should be subject to oversight by the Senate. But, as I say, there are a very small number of powers being provided for in this legislation that—it is our view and it's certainly the advice of my department—may be needed in the event of a serious biosecurity emergency. My No. 1 responsibility in that situation, as the agriculture minister, is to bring an outbreak under control quickly before it spreads and before it potentially wipes out an entire industry. We need to be able to act fast and we need to be able to act with certainty.

As I say, I understand it's not what we see on most occasions—that through legislation powers are granted on a non-disallowable basis. That's why some of the other powers that are being provided by this legislation would be disallowable. The exception is a very small number where it's our view and it's the department's advice to me that they are necessary to allow a minister of the day to act very quickly to bring that sort of an outbreak under control.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I think that Senator Pocock has also got some questions. I'll be very quick. To what you said there, Minister, my feeling is you've got tripartisan support for giving you those special powers to act when you need it. Everyone wants to see strengthened biosecurity. The issue here is that you're taking away our ability to scrutinise it. You didn't actually address the issue. The issue is that once this passes today it immediately goes into law, but the Senate should have its required number of days to scrutinise this.

You've just tabled the addendum to the explanatory memorandum containing the key information. That was requested by the Scrutiny of Bills Committee 'as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation'. You've just tabled that now. I haven't had a chance to read it, nor has anyone else. I should have 15 Senate sitting days to do that, and if there were concerns I could raise them with you or with other senators, and perhaps we could have that debate.

That's all we're asking for—just the chance to be able to do our jobs. We're not saying we're not going to support your abilities and special powers under this legislation to do your job. We just need to do our jobs and scrutinise this, and you've taken that away today. I accept it's a small number of things, but the point still stands that you are reducing the power of the Senate and parliamentary oversight in this legislation today.

Catryna Bilyk (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

Minister.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I presume Senator Scarr is going to say similar things, so maybe I should respond at the end.

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

I think the minister is aware of my concerns. If I could, at the outset, firstly thank the minister for the way in which he engaged with the scrutiny process and secondly thank members of his department who made themselves available in order to give briefings to the scrutiny committee. That was greatly appreciated.

Minister, do you recognise that, for example, one of the scrutiny principles which the scrutiny committees apply is whether or not an instrument is actually made in accordance with the provisions of an act? If an instrument is issued outside the parameters of the act, that in itself is something which can be picked up through the application of the scrutiny principles by the Scrutiny of Delegated Legislation Committee. There's an important aspect in terms of the application of the scrutiny principles by this place. There's also scrutiny which applies with respect to whether or not an instrument is constitutional, which again goes to the heart of the instrument and whether or not it should remain in power. Lastly, with respect to your point about the need for the department to move quickly and for you as minister to move quickly in order to discharge your duty, we recognise that, and I compliment you on the seriousness with which you take your duties. I've no question about that or with the advice of the department. But the scrutiny process doesn't prevent the taking of urgent action, and in fact, in most cases where scrutiny issues are raised, there is an iterative process with the department and with the minister to address those scrutiny principles through that iterative process. Even if an instrument is disallowed, it doesn't go back in time to the point when the instrument was issued. It just looks forward in time, in the very unlikely event that an instrument is disallowed. I'd be interested in your considering those points.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I might respond to the issues that have been raised so far. Senator Whish-Wilson, sounds unhappy with the fact that the addendum to the explanatory memorandum has only just been tabled. I would point out that my office received the letter from the committee only about lunchtime yesterday and have moved heaven and earth to get the addendum even done at all. Sure, in an ideal world, it would have been nice to have been able to provide that to you earlier, and maybe it would have been nice to have received the committee's letter earlier, but I understand they had to work through their processes, and we've had to do the same thing. I just want to defend the people in my department and my office, who have worked very hard to provide the addendum at extremely short notice.

Before I respond to Senator Scarr's points, I will point out that this is not the first time that we have seen non-disallowable powers provided to the health minister or the agriculture minister through the Biosecurity Act. In fact, the current Biosecurity Act contains 28 provisions that enable the making of legislative instruments that are exempt from disallowance. That's because biosecurity outbreaks are extremely serious things that need to be brought under control very quickly. I recognise that there are probably many more powers in the biosecurity legislation than 28that are disallowable, but this is not an unprecedented action, and it is recognised in the Commonwealth Legislation Act that parliaments have the ability to confer non-disallowable powers on ministers for extreme situations. It's not as if there is no power to do so, but it is important that when ministers come to this chamber and seek those sorts of powers they be confined to extreme situations, which is the case here. What is also the case here is that the non-disallowable powers we're talking about, which would only be able to be used in the event of an extreme biosecurity emergency, also can only be used on the basis of scientific advice. There's not some wide power for ministers to go out and do whatever they want. They need to be able to justify and demonstrate that they've got scientific advice—from our biosecurity experts in the department, for instance—that the kinds of actions we're talking about are necessary. And they are for a very limited number of functions.

Senator Scarr, I may not be able to recall every single one of your questions, but the point you made towards the end—and we've had this discussion in the lead-up to this legislation—that if these powers were to be disallowable rather than non-disallowable they could still be exercised, and if there was a problem with them, they could then be dealt with through disallowance. The risk is not only that we are talking about a situation where there is a biosecurity emergency but that a number of the powers that are provided to the minister require action from other people, such as airport operators and ports, and in some cases would require significant investments from them to be able to do what the minister is directing them to do.

Our experience is that it can take some time to negotiate these things with airport operators, the ports and other people, and, we think the risk that those powers are going to be overturned by the Senate—particularly if you're talking about requiring people to make big investments to meet those powers—is, potentially, a deterrent to the likes of airport operators, port operators and others to do what is necessary to be done. Again, we're talking about a situation where there's a biosecurity emergency. We need all action stations. We need everyone—government, airport operators, port operators, biosecurity officers or whoever's involved—heading in the same direction very quickly to contain an episode. The risk of disallowance of these powers, we think, is a disincentive for some of the external parties that we need to cooperate with us from getting on and doing what needs to be done.

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

I thank the minister for that fulsome response. Again, I in no way question the minister's integrity or sincerity in this respect, and I think he appreciates that. But, Minister, when you enumerate those factors about commitments being made, isn't every one of those factors something which could properly be considered by the senators in this place when they're considering a disallowance and in the application of the scrutiny principles?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Yes, it is, but every day that we either don't act or face the risk of powers being overturned is a day when a biosecurity episode could get bigger and more damaging to the community, to industry and to the environment. It's all about the need for speed in a biosecurity emergency.

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

Again, I appreciate the comment you're making, but, from my perspective and, I think, my colleagues' perspective, those are matters which could all be properly considered by the senators in this place. I come back to two of the other questions I asked. I note that I made a number of comments, Minister, so I'll return to those.

One of the scrutiny principles which the Scrutiny of Delegated Legislation Committee considers is whether or not an instrument is lawfully made under the power of the act. That is a key scrutiny principle, which I think you would be familiar with, Minister. And it is a key role of the scrutiny committee to actually consider whether an instrument is lawful. And, whilst the instrument might be based upon advice of the department, there have been numerous occasions whilst I've been serving on the scrutiny committee, when instruments have been put forward and the scrutiny committee has gone back to the department and the minister and queried whether or not the instrument could be properly made under the terms of the act.

There's certainly one example in relation to the ARENA legislation where it was ultimately determined that no, it couldn't be. That goes to the heart of whether or not an instrument is properly made within the ambit of the act. Isn't that an important scrutiny principle and an important matter for this Senate to consider in determining whether or not something should be subject to disallowance?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I think the senator has in some ways answered his own point by pointing to the ARENA example which, ultimately, was found to be outside the scope of the law. I don't know if it went as far as being found to be illegal. So there are remedies. In particular, as you would know from your legal background, people do have the ability to challenge in a court what is, effectively, an unlawful action or unlawful decision by a government. So, in a hypothetical situation where a minister used powers that were not actually allowed to be provided by the primary legislation, that is a decision that can be challenged in court.

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

In responding to these points, I appreciate that the minister might not be across the particulars of the ARENA case, but the ARENA instrument was only considered because it was disallowable and, therefore, came before the scrutiny committee. So that issue wouldn't have been identified but for the fact that it was contained in a disallowable instrument and, therefore, fell within the ambit of the scrutiny principles. So I take the minister's point, but I think there is a legitimate point there to be considered.

On the second point, in relation to the minister's previous career, I know the minister feels very strongly about representing people who need assistance with respect to legal representation and making sure everyone in this country is able to seek justice. Isn't the reality that there are many people who are subject to instruments made in this place who simply don't have the power, don't have the financial resources and don't have the ability to run off to court to challenge something? In that situation, the scrutiny committees of this parliament perform an extremely important role to effectively act for those people who we are elected to represent.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I think most of that is commentary from Senator Scarr, and I respect his right to put his views forward. I can't really add much to what I've said. Let's remember that what we're talking about here is powers, for example, for a minister to be able, without any interruption or obstacle, to direct airports to put down foot mats in airports to keep our agriculture industry safe. I find it hard to imagine that anyone would want to challenge that kind of a decision in court.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

Thank you, Minister. Firstly, just to echo the words of other senators, thank you for the constructive way that you and your office and the department have engaged not just on this issue but on a range of issues. Being new to this place, I was very interested to learn that, when the Scrutiny of Bills Committee was established in 1981, it was the first of its kind in the world, and since then we've seen parliaments across Australia and the world adopt similar models. I am interested in the process and the government's thinking on this, given that the Scrutiny of Bills Committee has raised concerns and the Senate Standing Committee for the Scrutiny of Delegated Legislation has also raised concerns, and, as I understand it, those concerns are unresolved. They are very valid concerns raised by committees that are chaired by government senators and, from my experience, have a totally non-partisan way of dealing with this and undertaking the task of scrutinising bills and potential delegated legislation. What was the process for the government in deciding to proceed with this legislation, despite having valid concerns from those two committees?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

ATT (—) (): As I'm sure you're aware, there was extensive discussion between me and the committees, my office and the committees, and my department and the committees. There has been quite a lengthy discussion process. But the reason for pushing on is that recent events have demonstrated that we need much stronger biosecurity powers as a country than those that exist at the moment. I don't want to waste a day in ensuring that I, as the minister, and the department of agriculture have the powers that are necessary to deal with a foot-and-mouth disease outbreak, for example. And that's what this legislation is all about—providing those powers.

I don't think Senator Pocock heard me say earlier that the non-disallowable powers that are being provided by this bill are a very small number of powers confined to the most extreme circumstances. There are other powers in this bill that are disallowable, and that's the way it should be. I don't want to be providing any more non-disallowable powers than are necessary, and that's why we've confined the non-disallowable powers to the very small number that this bill contains.

I am obviously always happy to take questions about this issue, but can we bear in mind that there is some other very important legislation we've got to get to today as well, such as the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022, and I know a number of people want to make contributions to that debate.

Question agreed to.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.