Biosecurity Duty

What is biosecurity?

Biosecurity is the protection of our economy, environment and community from the negative impacts of pests, diseases, weeds and contaminants.

Biosecurity protects our $14 billion primary industries and underpins the health and wellbeing of our environment and community. It keeps our waterways, state forests, parks and infrastructure free from serious pests and weeds, and it keeps our animals free of serious disease.

From 1 July 2017, how the government, industry and the community manage biosecurity in NSW is changing. The Biosecurity Act 2015 replaces wholly or in part 14 separate pieces of biosecurity related legislation. By streamlining these into a single Act, we are reducing red tape, simplifying existing policies and procedures and facilitating greater flexibility in how we manage biosecurity risks – the focus is on risk and achieving outcomes.

Relevant documents:

Biosecurity Act 2015

Biosecurity Regulation 2017

General Biosecurity Duty

'Any person who deals with biosecurity matter or a carrier and who knows, or ought reasonably to know, the biosecurity risk posed or likely to be posed by the biosecurity matter, carrier or dealing has a biosecurity duty to ensure that, so far as is reasonably practicable, the biosecurity risk is prevented, eliminated or minimised.'

Further information:

General biosecurity duty

General biosecurity duty with diagram

Offence of failing to discharge biosecurity duty

1. A person who fails to discharge the person's biosecurity duty under this Part is guilty of an offence.

2. An offence against this section is a category 1 offence  if:

    (a) the failure is intentional or reckless, and
    (b) the failure caused, or was likely to cause, a significant biosecurity impact.

3. In any other case, the offence is a category 2 offence

4. An offence against this section is an executive liability offence.

5. A person who is guilty of a category 1 or category 2 offence against this section because the person fails to discharge the person's biosecurity duty under this Part:
   (a) continues, until the duty is discharged, to be required to discharge that duty, and
   (b) is guilty of a continuing offence (of the same category) for each day the failure continues.

Prohibited matter

What is prohibited matter?

1. The biosecurity matter described in Schedule 2 is prohibited matter.

2. Biosecurity matter described in Part 1 of Schedule 2 is prohibited matter throughout the State.

3. Biosecurity matter described in Columns 1 and 2 of Part 2 of Schedule 2 is prohibited matter in that part of the State described opposite the  biosecurity matter in Column 3.

4. The regulations may amend Schedule 2 by inserting, altering or omitting any items or descriptions in that Schedule.

5. The regulations may provide for transitional arrangements for the lawful disposal or destruction of biosecurity matter that becomes prohibited matter (including by providing for exceptions to offences under this Part).

Offence of dealing with prohibited matter

Dealings with prohibited matter

1. A person who deals with any biosecurity matter that is prohibited matter throughout the State is guilty of an offence.

2. A person who deals with biosecurity matter is guilty of an offence if:
   (a) the biosecurity matter is located in a part of the State in which it is prohibited matter, or
   (b) as a result of the dealing, the biosecurity matter enters or is likely to enter a part of the State in which it is prohibited matter.

3. An offence against subsection 1. or 2. is a category 1 offence  if the offence is committed intentionally or recklessly.

4. In any other case, the offence is a category 2 offence

5. A category 1 or category 2 offence against subsection 1. or 2. is an executive liability offence.

6. A person who is guilty of a category 1 offence or category 2 offence against subsection 1. or 2. because the person deals with biosecurity matter in contravention of that subsection:
   (a) continues, until that contravention ceases, to be liable for a contravention of subsection 1., and
   (b) is guilty of a continuing offence (of the same category) for each day that contravention continues.

Defence for unknowing possession

In proceedings for a category 2 offence under this Division, it is a defence to the prosecution of an offence constituted by a person having prohibited matter in the person's possession, care, custody or control if the person charged with the offence proves that the person did not know, and could not reasonably be expected to have known, that the person had the prohibited matter in the person's possession, care, custody or control.

Note: A due diligence defence applies to category 1 offences. See Part 18

Full text from the Biosecurity Act 2015 on Part 4 Prohibited matter and related biosecurity duties

Control orders

What is a control order?

Control order

1. The Minister may, by order in writing (a control order):
    (a) establish one or more control zones, and
    (b) establish measures, in connection with a control zone, to prevent, eliminate, minimise or manage a biosecurity risk or biosecurity impact.

2. The Minister may make a control order if the Minister reasonably believes that the order is necessary to prevent, eliminate, minimise or manage a  biosecurity risk or biosecurity impact.

3. The principal object of a control order is to prevent the introduction of, or eradicate, biosecurity matter that poses or is likely to pose a biosecurity risk.

4. A control order may also serve as a measure for the management of a biosecurity risk or biosecurity impact. In that case, an additional or alternative object of the control order is to provide for the management of a biosecurity risk or biosecurity impact.

5. Subsections 3. and 4. do not limit the matters that may be provided for by a control order.

Content of control order

A control order is to specify the following:

(a) the biosecurity matter, biosecurity risk or biosecurity impact to which the control order relates,

(b) the control zone or zones,

(c) the control measures,

(d) the persons or class of persons to whom the control measures apply,

(e) the duration of the control order.

Notice of control order

1. The Minister is to give notice of a control order by causing a copy of the order to be published on the website of the Department or in the Gazette (or both).

2. The Minister is to take reasonable steps to ensure that persons who are likely to be directly affected by the order are made aware of the order.

Notice of property specific order

1. The Minister may, if the Minister considers it appropriate in the circumstances, give notice of a control order that is property specific by causing a copy of the order to be served on the owner, occupier or person apparently in charge of the affected property (instead of by publishing the order on the website of the Department or in the Gazette).

2. A control order is property specific if it relates to specified premises, specified biosecurity matter or any other specified thing (each of which is affected property).

Duration of control order

1. A control order has effect for the period specified by the Minister in the order, not exceeding 5 years from the date the order is made.

2. The Minister may, by making an order that amends a control order, extend the period during which a control order has effect for a further period (not exceeding 5 years).

3. The period during which a control order has effect may be extended a number of times.

Biosecurity zones

What is a biosecurity zone?

General information from the Biosecurity Act 2015 on Part 7 Biosecurity zones

Biosecurity zones - weeds (Part 5 Biosecurity Regulations 2017, page 31)

Definitions

new infestation of a weed on land, means an infestation that has not been notified to the local control authority.

region has the same meaning as in the Local Land Services Act 2013

Exception if dealing permitted by Biosecurity Manual

A dealing by a person with biosecurity matter or a carrier that would otherwise contravene this Part is permitted if:

  (a) the Biosecurity Manual specifies that the dealing with the biosecurity matter or carrier can occur if specified risk minimisation measures are taken or other conditions are met, and

  (b) the person ensures that all those measures are taken and all those conditions are met with respect to dealing.

Regulatory measures

An owner or occupier of land in the bitou bush biosecurity zone on which there is the weed Chrysanthemoides monilifera subsp. rotunda (bitou bush) must:

  (a) if the weed is part of a new infestation of the weed on the land, notify the local control authority for the land as soon as practicable in accordance  with Part 6 (Biosecurity Regulation 2017, page 33), and
  (b) eradicate the weed or if that is not practicable destroy as much of the weed as is practicable and suppress the spread of any remaining weed.

Mandatory measures

Covers all Schedule 3 weeds.

1. The regulations may require persons who deal with biosecurity matter or carriers to take specified actions to prevent, eliminate or minimise a biosecurity risk posed or likely to be posed by the biosecurity matter, carrier or dealing. Those requirements are mandatory measures.

2. The mandatory measures may apply in relation to all or any specified class of persons, dealings, biosecurity matter or carriers.

3. A person who deals with biosecurity matter or a carrier and who contravenes any mandatory measures that are applicable to the biosecurity matter, carrier or dealing is taken to have failed to ensure that, so far as is reasonably practicable, the biosecurity risk posed or likely to be posed by the biosecurity matter, carrier or dealing is prevented, eliminated or minimised.

Note: Accordingly, the person could be charged with an offence under Section 23 in respect of that failure.

4. The mandatory measures may be specified to be minimum mandatory measures, in which case compliance with those measures does not, of itself, demonstrate that a person ensured that, so far as is reasonably practicable, the biosecurity risk posed or likely to be posed by the biosecurity matter, carrier or dealing was prevented, eliminated or minimised.

5. In this section, actions include:
    (a) refraining from doing a thing, and
    (b) adopting any procedures or programs.

Offence of failure to comply with mandatory measures

1. A person who deals with biosecurity matter or a carrier in contravention of any mandatory measures that apply to that biosecurity matter, carrier or dealing is guilty of an offence.

2. An offence against this section is a category 2 offence

3. An offence against this section is an executive liability offence.

4. A person who is guilty of an offence against this section because of a contravention of any mandatory measures:
   (a) continues, until the mandatory measures are complied with and despite the fact that any specified period or time for compliance has expired or passed, to be required to comply with the mandatory measures, and
   (b) is guilty of a continuing offence for each day the contravention continues.

5. A person cannot be found guilty of both an offence against Section 23 and an offence against this section in respect of the same conduct.

6. In proceedings for an offence against Section 23 in which it is alleged the person charged with the offence contravened any mandatory measures, if the court is not satisfied that the offence is proven, but is satisfied that the person committed an offence against this section, the court may find the person guilty of an offence against this section. The person is liable to punishment accordingly.