Biosecurity Amendment (Clarifying Conditionally Non-prohibited Goods) Act 2021

Overview

The Biosecurity Amendment (Clarifying Conditionally Non-prohibited Goods) Act 2021, enacted by the Parliament of Australia, seeks to amend the Biosecurity Act 2015 by clarifying the legal status of conditionally non-prohibited goods. This Act was introduced to address issues arising from the interpretation and application of risk assessments in the context of biosecurity determinations. It aims to provide certainty and resolve ambiguities in the validity of certain biosecurity determinations made prior to the Act's commencement. The policy objective of the Act is to ensure that actions taken under potentially invalid determinations are legally recognised, thereby maintaining the integrity of biosecurity measures without retroactive legal complications. The Act received Royal Assent on 31 March 2021 and commenced on 1 April 2021. It operates by validating certain determinations that would otherwise be considered invalid due to procedural deficiencies, such as the failure to conduct a risk assessment or to correctly apply the Australia Level of Protection (ALOP). This legislative intervention ensures that any actions taken under these determinations are legally sound and protected from civil and criminal challenges, thereby supporting the enforcement of biosecurity laws.

Scope and Application

The Biosecurity Amendment (Clarifying Conditionally Non-prohibited Goods) Act 2021 amends the Biosecurity Act 2015 to address the validity of certain determinations regarding conditionally non-prohibited goods. This Act applies to any determinations made under subsection 174(1) of the Biosecurity Act 2015 prior to the commencement of this amending Act, specifically where such determinations would otherwise be considered wholly or partly invalid due to the failure to conduct a risk assessment or correctly apply the Australia Low-Level Presence (ALOP) standard. Additionally, it applies to any other failures to comply with section 174 or subsection 541(4) of the Biosecurity Act 2015. The Act's provisions extend across the Commonwealth of Australia and are designed to ensure the validity of actions taken under purportedly invalid determinations, thereby maintaining the integrity of biosecurity measures and legal proceedings related to these matters. This Act does not specify any exclusions or exemptions, and its application is clarified through the amendments detailed in Schedule 1.

Key Provisions

The Biosecurity Amendment (Clarifying Conditionally Non-prohibited Goods) Act 2021 introduces a specific provision under section 639A of the Biosecurity Act 2015. This section addresses the validity of determinations made by the Director of Biosecurity and the Director of Human Biosecurity regarding conditionally non-prohibited goods. The amendment applies to determinations made before the Act's commencement on 1 April 2021 that would otherwise be invalid due to the absence of a risk assessment or incorrect application of Australia’s ALOP (Acceptable Level of Pest Risk). Section 639A ensures such determinations are considered valid in all respects, including in any ongoing or concluded civil and criminal proceedings. Entities governed by the Biosecurity Act 2015, such as importers, exporters, and those involved in interstate trade of goods, are required to adhere to the provisions outlined in the Act. Specifically, they must ensure that any actions taken under determinations related to conditionally non-prohibited goods comply with the standards set forth by the Act, particularly in terms of risk assessments and ALOP application. Failure to conduct a proper risk assessment or to correctly apply the ALOP can potentially render a determination invalid. However, under section 639A, the validity of such determinations is clarified and upheld, irrespective of any procedural shortcomings prior to the Act’s commencement. The Act does not introduce new offences or penalties but rather clarifies the legal status of prior determinations. By validating these determinations, the Act aims to prevent any legal uncertainty or potential disputes arising from the procedural flaws of past determinations. This ensures that actions taken under these determinations are not invalidated retroactively, thus protecting the accrued rights of all parties involved. The overarching goal is to maintain biosecurity integrity while providing legal certainty to those who have acted in reliance on the now-validated determinations.