Biosecurity (Electronic Decisions–Goods) Determination 2026

Administered by Department of Agriculture, Fisheries and Forestry

Legislation au F2026L00154 In force Legislative Instrument

Legislation content

REPLACEMENT EXPLANATORY STATEMENT

 

Issued by Authority of the Director of Biosecurity

Biosecurity Act 2015

Biosecurity (Electronic Decisions–Goods) Determination 2026

 

Legislative Authority

 

The Biosecurity Act 2015 (the Act) provides the regulatory framework for managing the risk of pests and diseases entering Australian territory and gives effect to Australia’s relevant international rights and obligations.

 

Subsection 541A(1) of the Act provides that the Director of Biosecurity may arrange for the use, under the Director of Biosecurity’s control, of computer programs for any purposes for which a biosecurity officer may or must:

 

  • make a decision under a relevant provision of the Act specified in a determination made under subsection 541A(2) of the Act; or
  • exercise any power or comply with any obligation related to making such a decision; or
  • do anything else related to making such a decision, or related to exercising such a power or complying with such an obligation.

 

A relevant provision is a provision of the Act specified in subsection 541A(9) of the Act.

 

Subsection 541A(2) of the Act provides that the Director of Biosecurity may, by legislative instrument, determine:

  • each relevant provision of the Act under which a decision may be made by the operation of a computer program under an arrangement made under subsection 541A(1) of the Act; and
  • the classes of persons that may use a computer program under such an arrangement for any purposes referred to in subsection 541A(1) of the Act; and
  • the conditions of the use of the computer program.

 

The Biosecurity (Electronic Decisions–Goods) Determination 2026 (the Determination) is made under subsection 541A(2) of the Act.

 

Purpose

 

For the purposes of subsection 541A(2) of the Act, the Determination provides:

  • relevant provisions of the Act under which a decision may be made by the operation of a computer program (referred to in this document as an ‘authorised computer program’), under an arrangement made under subsection 541A(1) of the Act;
  • the classes of persons that may use an authorised computer program under the arrangement made under subsection 541A(1) of the Act; and
  • the conditions of that use.

 

Background

 

Under subsections 541A(1) and (2) of the Act, the Director of Biosecurity may arrange for the use, under the Director of Biosecurity’s control, of computer programs for any purposes for which a biosecurity officer may or must (amongst other things) make a decision under a relevant provision of the Act specified in a determination under subsection 541A(2) of the Act.

 

Subsection 541A(9) of the Act provides that, for the purposes of section 541A of the Act, each of the following is a relevant provision of the Act:

  • subsections 49(4) and (5) (negative pratique);
  • a provision of Chapter 3 of the Act (managing biosecurity risks: goods) (other than section 154, subsection 157(1) or paragraph 162(1)(a));
  • a provision of Chapter 4 of the Act (managing biosecurity risks: conveyances) (other than subsection 192(6), paragraph 218(1)(a) or section 223 or 229);
  • a provision of Chapter 5 of the Act (ballast water and sediment) (other than section 280 or 303);
  • section 557 (permission to engage in certain conduct);
  • sections 600 and 602 (withholding goods that are subject to charge);
  • a provision of an instrument made for the purposes of any of the provisions above.

 

As such, the Director of Biosecurity may only determine, for the purposes of subsection 541A(2) of the Act, a relevant provision under which a decision may be made by the operation of an authorised computer program (as well as the classes of persons that may use such a computer program and the conditions of such use). Provisions that do not fall within the scope of the definition of relevant provision may not be included in an instrument made under subsection 541A(2) of the Act. The provisions included in the Determination are all relevant provisions for the purposes of subsection 541A(9).

 

Impact and Effect

 

The Determination enables automated electronic decisions to be made under the relevant provisions specified in the Determination, and legislative powers to be exercised electronically in relation to those decisions, where the Director of Biosecurity has made arrangements for the use of computer programs for those purposes.

 

Certain classes of persons are specified in the Determination as persons who can use authorised computer programs as allowed by their access permissions for the purposes of:

  • the authorised computer program making a decision under a relevant provision specified in the Determination; or 
  • the authorised computer program exercising any power or complying with any obligation related to making a decision under a relevant provision specified in the Determination; or 
  • the authorised computer program doing anything else related to making a decision under a relevant provision specified in the Determination, or related to exercising a power or complying with an obligation related to making a decision under a relevant provision specified in the Determination.

 

Such classes of persons must use authorised computer programs for these purposes in accordance with the conditions of use specified in the Determination.

 

Consultation

 

The Department of Agriculture, Fisheries and Forestry (the department) regularly meets with persons affected by the Determination. The department has designed the relevant computer programs (or parts of computer programs) with the assistance of industry.  Industry stakeholders support the use of the relevant computer programs for the purpose of making a decision or exercising a power under a relevant provision as specified in the Determination.

 

The department has undertaken extensive public and government consultation in relation to the operation of computer programs used to control and manage cargo arriving into Australian territory. That consultation has included design, production and postproduction functionality.

 

As biosecurity risks change, the department reviews the biosecurity risk profiles, and business rules based on them, used in authorised computer programs. Where the department can, it seeks input from industry and the public which go towards developing import conditions and risk assessments. Where industry or the public are impacted by these changes, the department utilises industry committees, Import Industry Advice Notices, targeted campaigns and public consultation platforms such as “Have Your Say”, and subscription alerts to communicate those changes.

 

The department maintains ongoing and regular consultation on the design, operation and improvements to automated decision functionality of authorised computer programs. This is done through advice to the department’s Cargo Consultative Committee, publication of information on the department’s website, issuance of Import Industry Advice Notices, and direct engagement with interested or affected stakeholders. The department’s Cargo Consultative Committee includes industry stakeholders such as Board of Airline Representatives Australia, Qantas Airways Ltd, International Forwarders and Customs Brokers Association Australia, Australia Post, Ports Australia, and others.

 

The department has consulted with industry on the design and development of its computer programs to ensure the programs meet their needs. Industry is aware of the benefits of the functionality of the department’s computer programs, including efficiencies in the clearance of goods across the Australian border.

 

The Attorney-General’s Department was consulted in the making of the Determination.

 

Details/ Operation

 

The Determination is a legislative instrument for the purposes of the Legislation Act 2003.

 

The Determination commences on the day after it is registered.

 

Details of the Determination are set out in Attachment A.


Other

 

The Determination is compatible with the human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A full Statement of Compatibility with Human Rights is set out in Attachment B.

 

ATTACHMENT A

 

Details of the Biosecurity (Electronic Decisions–Goods) Determination 2026

 

Section 1 – Name

 

This section provides that the name of the instrument is the Biosecurity (Electronic Decisions–Goods) Determination 2026 (the Determination).

 

Section 2 – Commencement

 

This section provides that the Determination commences on the day after the instrument is registered on the Federal Register of Legislation.

 

The note below the table provides that the table under subsection 2(1) relates only to the provisions of the Determination as originally made. It will not be amended to deal with any later amendments of the Determination. The purpose of this note is to clarify that the commencement of any amendments is not reflected in this table.

 

Section 3 – Authority

 

This section provides that the Determination is made under subsection 541A(2) of the Biosecurity Act 2015 (the Act).

 

Section 4 – Definitions  

 

The purpose of this section is to provide the definitions for the Determination, specifically the Act and authorised computer program.

 

The definition of Act as the Biosecurity Act 2015 is included for clarification as the Determination makes a number of references to the Act. Further, section 4 also includes a note stating that the expressions Agriculture Department, biosecurity enforcement officer, biosecurity industry participant, biosecurity officer, Commonwealth body and person in charge of goods are used in the Determination and have the same meaning as set out in the Act. As such, the definition of Act also provides clarification as to the meaning of these expressions when used in the Determination.

 

The Agriculture Department is defined in section 9 of the Act as the department administered by the Agriculture Minister.

 

A biosecurity enforcement officer is defined in section 9 of the Act as a person who is authorised under section 546 or 548 of the Act to be a biosecurity enforcement officer under the Act.

 

A biosecurity officer is defined in section 9 of the Act as a person who is authorised under section 545 of the Act to be a biosecurity officer under the Act.

 

A biosecurity industry participant is defined in section 14 of the Act as a person who is the holder of the approval of an approved arrangement (including a person to whom an approved arrangement has been transferred in the circumstances prescribed by regulations made for the purposes of section 411). Section 405 of the Act provides that a person may apply to the Director of Biosecurity (or the Director of Human Biosecurity) for approval of a proposed arrangement that provides for the person to carry out specified activities (biosecurity activities) to manage biosecurity risks associated with specified goods, premises or other things.

 

Commonwealth body is defined in section 9 of the Act to include a Department of State, or an authority or agency, of the Commonwealth.

 

Person in charge of goods is defined in section 22 of the Act as:

 

  • the owner of the goods, or a person (other than a biosecurity officer or a biosecurity enforcement officer) who is in possession or control of the goods; and
  • includes a biosecurity industry participant who is in possession or control of the goods as authorised by an approved arrangement covering the biosecurity industry participant.

 

The definition for authorised computer program in section 4 of the Determination is a signpost definition which refers the reader to subsection 5(1) of the Determination.

 

Section 5 – Use of computer programs to make decisions

 

Subsection 541A(1) of the Act provides that the Director of Biosecurity may arrange for the use, under the Director’s control, of computer programs for any purposes for which a biosecurity officer may or must:

  • make a decision under a relevant provision of the Act specified in a determination made under subsection 541A(2) of the Act (paragraph 541A(1)(a)); or
  • exercise any power or comply with any obligation related to making a decision referred to in paragraph 541(1)(a) of the Act (paragraph 541A(1)(b)); or
  • do anything else related to making a decision referred to in paragraph 541A(1)(a) of the Act, or related to exercising a power or complying with an obligation referred to in paragraph 541A(1)(b) of the Act (paragraph 541A(1)(c)).

 

Subsection 541A(2) of the Act provides that the Director of Biosecurity may, by legislative instrument, determine:

  • each relevant provision of the Act under which a decision may be made by the operation of a computer program under an arrangement made under subsection 541A(1) of the Act (paragraph 541A(2)(a)); and
  • the classes of persons that may use a computer program under such an arrangement for any purposes referred to in subsection 541A(1) of the Act (paragraph 541A(2)(b)); and
  • the conditions of that use (paragraph 541A(2)(c)).

 

A relevant provision is a provision set out in subsection 541A(9) of the Act which includes subsections 122(2) and (3), section 124, paragraph 125(2)(b), and sections 126, 127 and 128.

 

Subsection 541A(9) of the Act has the effect of confining the power for the Director of Biosecurity to arrange for, and specify, what decisions are subject to automated decision-making under section 541A. As such, the Director of Biosecurity may only determine, for the purposes of subsection 541A(2) of the Act, a relevant provision under which a decision may be made by the operation of a computer program (as well as the classes of persons that may use such a computer program and the conditions of such use). Provisions that do not fall within the scope of the definition of relevant provision in subsection 541A(9) of the Act may not be included in an instrument made under subsection 541A(2) of the Act. This is an appropriate limitation on the power of the Director of Biosecurity under subsection 541A(2) of the Act. Decisions under the relevant provisions specified in subsection 541A(9) are appropriate for automated decision-making because they are based on technical and scientific identification and assessment of biosecurity risk.

 

Section 5 of the Determination specifies the relevant provisions of the Act under which a decision may be made by the operation of a computer program (an authorised computer program) under an arrangement made under subsection 541A(1) of the Act, the classes of persons who may use the authorised computer program, and the conditions of that use.

 

Subsection 5(1)

 

Subsection 5(1) of the Determination specifies, for the purposes of paragraph 541A(2)(a) of the Act, the relevant provisions of the Act under which a decision may be made by the operation of an authorised computer program under an arrangement made under subsection 541A(1) of the Act. Subsection 5(1) specifies the following relevant provisions of the Act:

  • subsection 122(2);
  • subsection 122(3);
  • section 124;
  • paragraph 125(2)(b);
  • section 126;
  • section 127;
  • section 128.

 

These provisions are in Chapter 3 of the Act and are therefore relevant provisions as specified in paragraph 541A(9)(b) of the Act.

 

The specified relevant provisions provide as follows:

  • subsection 122(2): for the purpose of assessing the level of biosecurity risk associated with goods that are the subject of a notice under section 120 (notice of goods to be unloaded in Australian territory) but have not become subject to biosecurity control, a biosecurity officer may require a person who the biosecurity officer suspects, on reasonable grounds, has information in relation to the goods to answer questions, or provide information in writing, in relation to the goods;
  • subsection 122(3): for the purpose of assessing the level of biosecurity risk associated with goods that are the subject of a notice under section 120 (notice of goods to be unloaded in Australian territory) but have not become subject to biosecurity control, a biosecurity officer may require a person who the biosecurity officer suspects, on reasonable grounds, has the custody or control of documents in relation to the goods to produce to the biosecurity officer such of those documents as are specified by the biosecurity officer;
  • section 124: for the purpose of assessing the level of biosecurity risk associated with goods that are subject to biosecurity control, a biosecurity officer may direct a person in charge of the goods to secure the goods in a manner specified by the biosecurity officer;
  • paragraph 125(2)(b): for the purpose of assessing the level of biosecurity risk associated with goods that are subject to biosecurity control, a biosecurity officer may direct a person in charge of the goods to deliver to the biosecurity officer samples of such of those goods as are specified in the direction;
  • sections 126: for the purpose of assessing the level of biosecurity risk associated with goods that are subject to biosecurity control, a biosecurity officer may require a person who the biosecurity officer suspects, on reasonable grounds, has information in relation to the goods to answer questions, or provide information in writing, in relation to the goods;
  • section 127: for the purpose of assessing the level of biosecurity risk associated with goods that are subject to biosecurity control, a biosecurity officer may require a person who the biosecurity officer suspects, on reasonable grounds, has the custody or control of documents in relation to the goods to produce to the biosecurity officer such of those documents as are specified by the biosecurity officer;
  • section 128: for the purpose of assessing the level of biosecurity risk associated with goods that are subject to biosecurity control, a biosecurity officer may give a direction to a person in charge of the goods not to move, deal with or interfere with the goods; to move the goods, as soon as practicable, to a place specified by the biosecurity officer; or any other direction relating to the movement of the goods.

 

The decisions under the provisions determined in subsection 5(1) of the Determination are decisions relating to the assessment of goods that are subject to biosecurity control or that are intended to be brought into Australian territory. Biosecurity officers in the department assess a vast number of goods entering Australian territory each month to identify biosecurity risks and prevent the incursion of high-risk pests and diseases. In practice, most of the decisions are made in the course of the clearance process for goods that are subject to biosecurity control. It is necessary and appropriate for directions/decisions made under these provisions to be made electronically to enable faster biosecurity clearance across a large number of goods. Making electronic decisions by the operation of an authorised computer program allows the department to allocate biosecurity officers in a way that better targets higher risk pests and diseases. The Determination, together with arrangements for the use of computer programs, enhances the clearance processes for goods, improves the department’s administration of the Act, and achieves resource optimisation, without compromising the robust and appropriate processes already in place to assess and manage biosecurity risk.

 

These decisions are discretionary in nature, in that each provision provides that a biosecurity officer may do certain things (or may do certain things on reasonable grounds). Nevertheless, operationally, it is suitable and appropriate for decisions under these provisions to be made through the operation of an authorised computer program because:

  • decisions under these provisions do not involve highly subjective elements and can be made electronically through a technical and scientific process based on objective data and information without evaluative judgement;
  • highly specific and explicit business rules are developed based on applicable policy and legislative requirements and are built into the authorised computer programs to enable the issuing of directions/decisions under these provisions. Any data entry errors will not meet the criteria of rules and will not be processed automatically;
  • business rules are reviewed and validated to ensure they remain accurate, current and relevant, and that the rule-based systems accurately and consistently reflect the relevant legislation.

 

Decisions made under the provisions listed in subsection 5(1) of the Determination have been carefully identified and considered suitable for being made electronically by the operation of a computer program (when authorised under arrangements made under subsection 541A(1) of the Act). These are routine decisions that are less complex in nature, where particular facts are reliably established without the need for subjective assessment and consideration to interpret or evaluate evidence. They will not involve or require the approval or consent of the Director of Biosecurity, and they will not involve any complex decision-making such as:

  • decisions requiring the application of expert knowledge in evolving situations; or
  • the exercise of discretion relating to complex facts, where fact finding or weighing of evidence may be required.

 

Some of the provisions listed in subsection 5(1) of the Determination require the formation of a state of mind in making a decision under that provision (namely, subsections 122(2) and 122(3), section 126 and section 127). However, subsection 541A(4) of the Act provides that an electronic decision may be made without any state of mind being formed in relation to a matter to which the decision relates. As such, a computer may make decisions under these provisions without forming any state of mind.

 

The provisions listed in subsection 5(1) of the Determination provide for civil penalty and/or offence provisions in the Act should a person contravene the relevant provision. For example, a person may commit an offence or contravene a civil penalty provision if the person is required to answer questions or give information to a biosecurity officer under subsection 122(2) and the person does not comply with that requirement. The provisions that provide for civil penalty and/or offence provisions are listed below:

 

  • subsections 122(2) – fault-based offence (2 years, 300 penalty units or both) and civil penalty provision (300 penalty units);
  • subsection 122(3) – fault-based offence (2 years, 300 penalty units or both) and civil penalty provision (300 penalty units);
  • section 124 - civil penalty provision (300 penalty units);
  • paragraph 125(2)(b) – civil penalty provision (300 penalty units);
  • section 126 – civil penalty provision (300 penalty units);
  • section 127 – civil penalty provision (300 penalty units);
  • section 128 – civil penalty provision (300 penalty units).

 

Any decision to pursue penalties under any of the provisions listed in subsection 5(1) of the Determination is not subject to automation by a computer program, and the imposition of any civil penalty or the conviction for an offence can only occur through judicial processes. Similarly, any decision to pursue penalties for the provision of false or misleading information or documents will only be made by a human decision maker authorised under the Act and is not subject to automation. The imposition of any civil penalty or the conviction for an offence can only occur through judicial processes. Any automated decisions that may be related to the consideration of whether penalties are pursued under any of the provisions listed in subsection 5(1) of the Determination will be reviewed by a human decision-maker and carefully checked.

 

The requirements to provide information, answer questions or produce documents pursuant to subsections 122(2) and 122(3), and sections 126 and section 127 of the Act enable biosecurity officers to have access to the necessary information and documents to make an accurate and timely assessment of biosecurity risk associated with goods based on the information provided by the person in charge of goods.

 

Decisions to require further information or documents under subsections 122(2) and 122(3), and sections 126 and 127 of the Act are critical to the management of biosecurity risk because in order for biosecurity risk associated with goods to be effectively managed, they must be assessed appropriately, which in some cases requires the provision of further information or documents relating to the goods.

 

The nature of these decisions also does not lend them to an independent merits review process. This is because the requirement for information or documents in the context of assessing biosecurity risk does not, in and of itself, affect the rights and obligations of individuals. Rather, it is a preliminary decision that facilitates and leads to the making of a substantive decision. The Administrative Review Council’s 1999 guide What decisions should be subject to merits review posits that a factor that may justify excluding merits review is whether or not the decision is of a preliminary nature. In this instance, the relevant decisions are preliminary to substantive decisions about how to manage any biosecurity risk that is identified, therefore merits review of these preliminary decisions is not required. These decisions will also continue to be subject to judicial review.

 

Decisions to issue a direction under section 124 (direction to secure goods), paragraph 125(2)(b) (direction to deliver samples of goods) and section 128 (direction for the movement of goods) of the Act are also critical to the management of biosecurity risk. This is because, for biosecurity risk associated with goods to be effectively managed, they must be assessed appropriately, which in some cases require goods to be secured or moved, or samples of the goods to be provided to a biosecurity officer.

 

Decisions under section 124, paragraph 125(2)(b) and section 128 are appropriately not subject to merits review under section 574 of the Act because these decisions are made to ensure biosecurity risks are assessed appropriately without unduly affecting the importation of goods, with a large number of decisions needing to be made quickly in practice. These provisions are not subject to merits review because they deal with urgent assessment of biosecurity risks that must be undertaken immediately to protect Australia from biosecurity risks. Allowing merits review where a tribunal re‑examines the facts and substitutes its own decision would undermine the effectiveness of the objects of the Act. These decisions will continue to be subject to judicial review.

 

Decisions to require further information or documentation, and directions relating to inspection, movement and sampling, under the relevant provisions listed in subsection 5(1) of the Determination only affect persons in charge of goods. Such persons are on notice of the requirements in relation to the import of goods under the Act, including requirements in the relevant provisions specified in subsection 5(1) of the Determination.

 

Making electronic decisions under provisions listed in subsection 5(1) of the Determination by the operation of an authorised computer program, and electronically issuing requirements or directions in relation to those decisions, allows the Agriculture Department to allocate biosecurity officers more effectively to focus on the inspection and management of biosecurity risks, and exercising powers that are more complex and discretionary in nature. The Determination, together with arrangements for the use of authorised computer programs, enhances the clearance process, improves the Agriculture Department’s administration of the Act and achieves resource optimisation.

 

Authorised computer programs and their operation

 

Authorised computer programs use rules engines to execute predefined logic to produce consistent outcomes based on departmental policies, import conditions and legislative requirements. The rules are encoded as conditional statements such as validations, decision trees, or workflow triggers that determine how data is processed and what actions the system should take. Policy owners translate legislation and policy into these precise system rules, enabling automated, repeatable decisions without manual intervention.

 

The following examples outline the use of authorised computer programs in relation to the importation of unaccompanied personal effects, cargo compliance verification and the compliance based intervention scheme.

 

Unaccompanied personal effects

 

A person relocating to Australia wishes to import their household and personal items. They engage a registered customs broker or agent (who is a person in charge of goods) to clear the goods.

 

Subsection 120(1) of the Act generally requires the person in charge of goods that are, or are intended to be brought into Australian territory, and unloaded at a landing place or port in Australian territory, to give a notice (a section 120 notice) about the goods. The notice assists with the accurate and timely assessment and management of biosecurity risks. Detailed requirements for section 120 notices are set out in sections 11 to 14 of the Biosecurity Regulation 2016 (Regulation). This includes the information to be provided, and when, how and to whom it must be given. The notice may be given electronically.

 

The customs broker or agent gives the section 120 notice providing detailed information about the transport, commodity (the goods being imported) and non-commodity (for example, the container containing the goods).  The broker classifies the imported goods as concessions under tariff 9999401541.

 

The authorised computer program reviews this information and identifies the commodity as unaccompanied personal effects under tariff 9999401541.

 

The authorised program’s business rules give effect to the policy that additional assessment of documentation for unaccompanied personal effects by a biosecurity officer is required to understand specific biosecurity risks. The business rules therefore operate to cause the authorised program to send the broker a system generated direction that requires the broker under subsection 127(1) of the Act to produce the B534 unaccompanied personal effects form and a packing list, allowing a biosecurity officer to assess potential biosecurity risks. The business rules might also operate to cause the program to issue a direction under section 128 of the Act to:

  • prevent the broker from moving the consignment until an assessment of submitted documents has occurred and a subsequent direction is issued by the department; or
  • require the broker to move the consignment to a specified place until an assessment of submitted documents has occurred and a subsequent direction is issued by the department.

 

Cargo Compliance Verification (CCV)

An importer plans to import spring rolls into Australia and engages a registered broker to clear the goods. The broker (who is a person in charge of the goods) complies with their obligation under section 120 of the Act to notify the department of goods to be brought into Australian territory by completing an import declaration providing detailed information about the transport, commodity and non-commodity.  The broker classifies the imported goods as ‘food preparations not elsewhere specified’ under tariff 2106909991.

 

The authorised computer program reviews the broker declarations and additional information within the import declaration. The program’s business rules may assess that additional documentation is required to understand the biosecurity risk posed by the goods and cause the system to require the broker to provide additional documents about the goods.  

 

The authorised program’s business rules also give effect to the policy that goods should be subject to random Cargo Compliance Verification (CCV) inspections. The CCV inspection allows the department to understand the broader biosecurity risk associated with sea cargo.

 

If the business rules identify the particular goods as being subject to CCV inspection, the business rules will cause the authorised computer program to take specific actions, which might include:

  • notifying the broker that an inspection will occur by a biosecurity officer to confirm no biosecurity risk materials are present;
  • requiring the broker under section 127 of the Act to produce certain documentation to a biosecurity officer to assess potential biosecurity risks;
  • issuing a direction under subsection 124(1) of the Act requiring the broker to secure the consignment in a manner that ensures the seals on the container doors remain intact until a biosecurity officer can conduct the inspection;
  • issuing a direction under subparagraph 128(1)(a)(i) of the Act preventing a person  from moving the consignment until an assessment of submitted documents has occurred and a subsequent direction is issued by the department.

Compliance based intervention scheme (CBIS)

CBIS is a risk-based biosecurity framework that uses statistical sampling to adjust and tailor intervention levels for eligible imported goods. It relies on human analysis of historical trade data and modelling to identify eligible commodities, import pathways and compliant importers and suppliers, and approvals prior to inclusion in the scheme. Importers and suppliers that demonstrate compliance with biosecurity requirements may be eligible for reduced intervention, while non-compliance with biosecurity requirements results in standard intervention rates. This ensures intervention is proportionate to biosecurity risk while maintaining Australia’s appropriate level of protection under the Act.

 

For example, under standard intervention, the authorised computer program will issue a direction under subparagraph 128(1)(a)(ii) of the Act requiring the goods to be moved to a nominated location so that a biosecurity officer may attend that location to inspect the goods.

Under reduced intervention, the authorised computer program may issue a direction under section 127 requiring specified documentation to be provided to a biosecurity officer for assessment. A further direction is issued under subparagraph 128(1)(a)(i) preventing the movement of the goods until the document assessment is completed by a biosecurity officer who may then determine that biosecurity risks have been appropriately managed without the need to inspect the goods.

 

This approach enables efficient clearance of lower-risk goods while maintaining appropriate regulatory control over biosecurity risks. If a biosecurity officer, through inspection or document assessment, determines that biosecurity conditions have not been met or a biosecurity risk is identified, the officer may take appropriate regulatory action to ensure that identified risks are appropriately managed.

Safeguards

Subsection 541A(3)

 

The Act includes safeguards in relation to electronic decisions. For example, subsection 541A(3) of the Act requires that the Director of Biosecurity must take reasonable steps to ensure that electronic decisions made by the operation of a computer program are consistent with the objects of the Act. These objects are set out in section 4 of the Act and are, in brief:

 

  • to provide for managing biosecurity risks, the risk of contagion of human diseases, the risk of a human disease entering, emerging, establishing itself or spreading in Australian territory, risks relating to ballast water and biosecurity and human biosecurity emergencies; and
  • to give effect to Australia’s international obligations. 

 

The Director of Biosecurity has taken reasonable steps to ensure that the decisions made by the authorised computer programs under provisions specified in subsection 5(1) of the Determination are consistent with the objects of the Act, and are based on grounds on the basis of which a biosecurity officer could have made the decision.

 

Broadly, these steps include ensuring that where arrangements are made under subsection 541A(1), they provide for measures and processes for electronic decisions that lead to the effective assessment and management of biosecurity risk. This includes arranging for the computer programs to be updated with technical and scientific criteria based on biosecurity risk.

 

These steps also include ensuring that the arrangement would provide for appropriate and accurate business rules, that accurately reflect the relevant provisions of the Act, the Regulation, and any other relevant legislative instruments such as the Biosecurity (Conditionally Non‑prohibited Goods) Determination 2021 (the Goods Determination) so that the relevant computer system makes lawful decisions that accord with the relevant legislation and take into consideration the same grounds on the basis of which a biosecurity officer could have made that decision.

 

The business rules that underpin the authorised computer programs include rule parameters and safeguards, and are designed to ensure that decisions made are consistent with the requirements and objects of the Act, the Regulation and any other relevant legislative instruments. These parameters and safeguards include formulas that weigh different factors that assist with automated decision-making, the mechanisms used to identify errors in automated decision-making, and measures to correct errors based on those safeguards. An audit trail of decisions can be made available to a biosecurity officer to assist in identifying errors in decision outcomes and subsequently rectifying such errors.

 

These business rules undergo testing as outlined below as part of preparing to deploy significant updates. Systems testing is also undertaken where issues are detected or reported, or as part of risk management and change control processes when introducing new features or rules to the computer programs. This testing ensures that the computer programs continue to be fit for purpose and appropriate over time and operate as intended, in accordance with legislative and policy requirements, including safeguards contained in them.

 

Rigorous testing in line with enterprise risk management processes, including regression testing of system features and business rules, occurs as a standard risk control to ensure automations function as expected and produce the correct outcomes.

 

The department’s instructional material sets out requirements regarding the review and validation of business rules and mandates staff compliance with this material. This requires the department to:

  • undertake user testing and routine verification and validation of business rules and system functionality to ensure business rules in the relevant computer programs are working properly and that automated decisions are accurate;
  • undertake routine review and update business rules in alignment with any policy or procedural changes to ensure they implement legislative safeguards;
  • undertake routine verification that information provided by users of relevant computer programs is true and correct, and ensure conditions of use are met;
  • ensure relevant decisions are referred to biosecurity officers for consideration and assessment of inputted information, where the exercise of judgement or the balancing of factors is required; and
  • require system owners to work with responsible policy areas to ensure business rules:
    • reflect legislative criteria for decisions, including scientific and technical assessment in relation to biosecurity risk, and
    • are regularly reviewed and amended appropriately.

 

The department’s instructional material is subject to regular scheduled reviews and must also be updated where:

  • relevant legislation, policies or procedures change,
  • the instructional material no longer reflects best practice, or
  • errors are identified.

 

The department has control processes, governance and security procedures to ensure that reasonable and practical steps are taken, and safeguards are in place to maintain the integrity of electronic decision-making. These include:

  • department security account registration and maintenance;
  • user access control requirements, monitoring and maintenance;
  • careful design of business rules;
  • clearly identified roles and responsibilities associated with the design of business rules and maintenance of the computer programs.
  • a policy governing automated decision making under section 541A of the Act;
  • regular review and validation of rules and programming to ensure they remain accurate, current and relevant and continue to accurately reflect the relevant provisions of the Act, Regulation and any other relevant legislative instruments such as the Goods Determination;
  • proper mechanisms to identify data-entry errors or other incorrect inputs to ensure data quality and integrity, including user testing and maintenance;
  • communications and training material to ensure authorised computer program users understand the relevant legislation and are able to explain a decision to the affected person;
  • record keeping and the ability to generate decision-making audit trail to enable review of decisions;
  • the ability for a human decision maker to override an automated decision;
  • the ability for a person affected by an automated decision to contact the department and seek a review of the decision of the automated decision;
  • careful selection of suitable and eligible provisions of the Act under which decisions can be made electronically, reserving decisions under other provisions which are more likely to be complex, non-routine, or controversial for human decision-makers.

 

As discussed above, the department undertakes reviews and audits of business rules, both on a regular and as-needed basis, to ensure that they are operating in accordance with legislative criteria and result in decisions made in accordance with legislation and policy. When required, business rules are updated to ensure the automated decisions remain authorised by legislation and supported by policy and procedures. The department also conducts routine verification processes to check information provided by users into the computer programs is true and correct and ensure the conditions of use are met.

 

The department has the ability to access earlier versions of the business rules at a given point in time providing transparency around the historical decisions made by the computer programs. This includes an audit trail of all decisions that the computer programs make electronically, and where an electronic decision is substituted with a decision made by a biosecurity officer.

 

As discussed in more detail below, subsection 5(3) of the Determination provides the conditions of use of an authorised computer program. A person in a class of persons who may use an authorised computer program under subsection 5(2) of the Determination, must:

  • be satisfied on reasonable grounds that information entered into the computer program by the person for the purpose of enabling decisions to be made by the operation of the computer program is true and correct; and
  • ensure that the information is accurately entered into the computer program.

 

These conditions of use will be supported by the processes, procedures and safeguards outlined above. For example, proper mechanisms will be in place to identify data-entry errors or other incorrect inputs. Any data entry errors will mean that the system will not process the decision automatically. This ensures that data entered into an authorised computer program is true and correct, and accurately entered. It is critical to ensuring that computer programs which make electronic decisions do so on the basis of true, correct and accurate information, and that any discrepancies, missing data, and/or data entry errors are identified and escalated for investigation immediately.

 

Subsection 541A(4)

 

A safeguard is also provided by subsection 541A(4) of the Act, which requires the Director of Biosecurity to take reasonable steps to ensure that an electronic decision is based on grounds on the basis of which a biosecurity officer could have made that decision. The safeguard provides that decisions, whether made by a person or through the operation of a computer program, involve the application of the same specific business rules and the detailed scientific and technical assessment process based on objective data and information where the exercise of discretion is not ordinarily expected. Thus, in most cases, the identical information inputs should not lead to different assessment outcomes.

 

Subsections 541A(7) and 541A(8)

 

An important safeguard provided by subsection 541A(7) of the Act is that a biosecurity officer may make a decision in substitution for an electronic decision if a biosecurity officer is satisfied that the electronic decision is not consistent with the objects of the Act, or another decision is more appropriate in the circumstances. Furthermore, subsection 541A(8) provides that an electronic decision made in relation to a thing is of no effect to the extent that it is inconsistent with an earlier decision (other than an electronic decision) made in relation to the thing by a biosecurity officer or the Director of Biosecurity under the Act. These subsections provide important safeguards. They ensure that:

  • a biosecurity officer may always, if appropriately satisfied, make a decision in substitution for an electronic decision, thus ensuring adequate and appropriate human oversight over decisions made by a computer program; and
  • electronic decisions cannot be inconsistent with an earlier decision made in relation to the same thing by a biosecurity officer or the Director of Biosecurity. In effect, this ensures that, where decisions of persons and electronic decisions have been made in relation to the same thing, the decision of a person takes precedence and the electronic decision is deemed to be of no effect.

 

In the event that an audit and review of an electronic decision identifies an incorrect decision has been made by an authorised computer program, where necessary, a biosecurity officer has the capacity to substitute a decision, and the Director of Biosecurity or their delegate may amend the business rules of the authorised computer program to ensure the correct decision is made to manage biosecurity risks.

 

The department has ensured there is a dedicated feedback mechanism for persons affected by decisions made by authorised computer programs subject to the Determination and the arrangement made under subsection 541A(1). This mechanism allows a person to raise queries or concerns with decisions made by the computer program or to report problems with reporting information into the computer program. In such circumstances, a biosecurity officer can review a decision made by the computer program to identify if the decision is consistent with the objects of the Act and is appropriate and substitute the decision if necessary. The types of factors that a biosecurity officer would consider before substituting a decision made by a computer program would be unique to each particular case. These factors may include:

  • the type of automated decision made by a computer program;
  • the information made available to the biosecurity officer at the time;
  • the accuracy of the information made available to the biosecurity officer at the time;
  • the timeliness of a decision that is required to be made to either assess or manage biosecurity risks;
  • whether there are any delays with a person providing information or documentation to a biosecurity officer to enable the assessment or management of biosecurity risks;
  • whether the information or documentation exists or is capable of being given by a person at the time.

Other safeguards

 

Subsection 541A(5) of the Act ensures that there is a decision-maker (the Director of Biosecurity) who will have the responsibility for any legislative requirements to provide a statement of reasons for an electronic decision. Nothing in these amendments affects a person’s right to seek judicial review of a decision made under the Act.

 

The department has a policy in place relating to automated decision-making under section 541A of the Act, which contains guidance on best practice. As a matter of policy, all departmental staff must comply with guidance provided in this policy.

The policy ensures that appropriate control arrangements, risk mitigation measures and safeguards are in place to effectively:

  • satisfy the Director of Biosecurity that the objects of the Act are being met;
  • manage legal risks;
  • satisfy the Director of Biosecurity that electronic decisions made by the operation of a computer program conform with best practice principles of lawful administrative decision-making.

 

The business rules, departmental policy and relevant instructional material have been designed with consideration to the Commonwealth’s Ombudsman’s Automated Decision-making Better Practice Guide and were considered by the Director of Biosecurity prior to the making of the arrangement. 

 

Subsection 5(2)

 

Subsection 5(2) of the Determination specifies, for the purposes of paragraph 541A(2)(b) of the Act, the classes of persons who may use an authorised computer program for a purpose under subsection 541A(1) of the Act:

  • biosecurity officers who have a unique identifier issued by a Commonwealth body that enables them to access the authorised computer program;
  • biosecurity enforcement officers who have a unique identifier issued by a Commonwealth body that enables them to access the authorised computer program;
  • APS employees of the Agriculture Department who have a unique identifier issued by a Commonwealth body that enables them to access the authorised computer program;
  • persons who are performing services for the Agriculture Department under a contract and have a unique identifier issued by a Commonwealth body that enables the person to access the authorised computer program;
  • biosecurity industry participants who have a unique identifier issued by a Commonwealth body that enables them to access the authorised computer program;
  • any other persons:
    • who are employed or engaged by the Commonwealth to provide services to a Commonwealth body in connection with the Agriculture Department; and
    • who have a unique identifier issued by a Commonwealth body that enables the person to access the authorised computer program;
  • persons in charge of goods in relation to which the authorised computer program is to be used, and who have a unique identifier issued by a Commonwealth body that enables the person to access the computer program.

 

A person specified in a class of persons set out in subsection 5(2) of the Determination may use an authorised computer program for any purposes under subsection 541A(1) of the Act as allowed by their access permission, that is, any purposes for which a biosecurity officer may or must:

  • make a decision under provisions specified in subsection 5(1) of the Determination; or
  • exercise any power or comply with any obligation related to making such a decision; or
  • do anything else related to making such a decision, exercising such a power or complying with such an obligation.

 

The classes of persons listed are, in effect:

  • employees or officers of the Agriculture Department, or consultants or contractors who are performing services for the Agriculture Department, who have a unique identifier issued by a Commonwealth body that allows them to access the authorised computer program;
  • employees of a Commonwealth body that provide services to the Commonwealth in connection with the Agriculture Department, who have a unique identifier issued by a Commonwealth body.
  • biosecurity industry participants who have a unique identifier issued by a  Commonwealth body that enables them to access the authorised computer program.
  • persons in charge of goods in relation to which the authorised computer program is to be used, and who have a unique identifier issued by a Commonwealth body that enables the person to access the computer program.

 

Employees or officers of the Agriculture Department, and consultants or contractors who are performing services for the Agriculture Department must be issued a unique identifier by a Commonwealth body (e.g. the Agriculture Department) in order to have specific role-based access to a relevant authorised computer program. In order to be issued such an identifier, a supervisor of respective work areas within the Agriculture Department must approve the issue of this identifier to the relevant person on the basis that the person is required to access the authorised computer program to perform their duties. Users are given access based on the principle of least privilege and assigned the minimum permissions and access rights needed to perform their specific tasks.

 

Elevated access is required to create rules used within the system engines which is restricted to a small number of officers with clear system rules design, creation, maintenance and testing responsibilities. 

 

The department provides instructional and training material to users of authorised computer programs to ensure that they understand conditions of use of the program and the requirement to comply with those conditions, especially the need to ensure that information is accurately entered. Department instructional material sets out requirements for automated decision-making processes in line with statutory requirements. It considers a range of factors, including public interest and security factors, and is subject to regular review.

 

Users undertake appropriate training in using the authorised computer programs, including competency training where required.

 

Automating decisions about requiring a person to provide information or documentation, securing or moving goods, or requiring a person to supply samples for inspection by a biosecurity officer under the relevant provisions specified under subsection 5(1) of the Determination provides efficiencies for industry and the department and supports timely decisions about the assessment of biosecurity risk made by biosecurity officers. All decisions are based on the information in relation to the level of risk associated with goods, gathered through the requirement of information and/or documents and the assessment of goods enabled by inspection, movement and sampling of the goods.

 

Subsection 5(3)

 

Subsection 5(3) of the Determination provides, for the purposes of paragraph 541A(2)(c) of the Act, the conditions of use of an authorised computer program. A person in a class of persons who may use an authorised computer program under subsection 5(2) of the Determination, must:

  • be satisfied on reasonable grounds that information entered into the computer program by the person for the purpose of enabling decisions to be made by the operation of the computer program is true and correct; and
  • ensure that the information is accurately entered into the computer program.

 

This provides assurance that data entered into an authorised computer program is true and correct, and accurately entered. It is critical to ensuring that computer programs which make electronic decisions do so on the basis of true, correct and accurate information and that any data entry errors and other incorrect inputs are identified investigated and addressed immediately. For example, the relevant teams within the department will strictly control the processes in relevant authorised computer programs through auditing and reporting to ensure any discrepancies or missing data will be flagged and escalated for investigation immediately.


ATTACHMENT B

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Biosecurity (Electronic Decisions–Goods) Determination 2026

 

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

 

The Biosecurity (Electronic Decisions–Goods) Determination 2026 (the Legislative Instrument) is made under subsection 541A(2) of the Biosecurity Act 2015 (the Act) and provides the relevant provisions of the Act under which a decision may be made by the operation of a computer program. The Legislative Instrument also provides for the classes of persons that may use an authorised computer program and the conditions of that use.

 

The relevant provisions of the Act specified under subsection 5(1) of the Legislative Instrument include provisions which provide for the power to require the provision of information, answers to questions or the production of documents (subsections 122(2), 122(3), sections 126 and 127 of the Act).

 

Human rights implications

 

This Legislative Instrument may engage the following rights:

 

  • the right to protection from arbitrary interference with privacy in Article 17 of the International Covenant on Civil and Political Rights (ICCPR); and
  • the right to non-discrimination under Articles 2(1) and 26 of the ICCPR.

 

Right to the protection from arbitrary interference with privacy – Article 17 of the ICCPR

 

Article 17 of the ICCPR protects the right to be free from arbitrary or unlawful interference with an individual’s privacy, family, home or correspondence. This right may be subject to permissible limitations where those limitations are provided by law and are non-arbitrary. In order for limitations not to be arbitrary, they must seek to achieve a legitimate objective and be reasonable, necessary and proportionate to this purpose.

 

Subsection 5(1) of the Legislative Instrument may engage this right. Subsection 5(1) specifies certain provisions set out in subsection 541A(9) of the Act (relevant provisions), under which a decision may be made by the operation of a computer program. This includes subsections 122(2) and (3), and sections 126 and 127 of the Act. These provisions allow a biosecurity officer to require a person to provide information, answer questions or produce documents. By exercising powers to ask questions or require information or documents, a person may be required to incidentally provide personal information. The power to ask questions or require a person to provide information or produce documents is limited to circumstances where the biosecurity officer reasonably suspects that the person has the relevant information or documents. These requirements are necessary for the legitimate objective of assessing the level of biosecurity risk associated with goods being brought or imported into Australian territory. Access to further information or documents is required in order to properly assess the level of biosecurity risk associated with the goods so that any biosecurity risks associated with the goods can be assessed and managed appropriately.

 

Under subsection 541A(3) of the Act, the Director of Biosecurity must take reasonable steps to ensure that electronic decisions made by the operation of a computer program are consistent with the objects of the Act. It is intended that all automated decisions made will be consistent with the objects of the Act. These objects are set out in section 4 of the Act and are, in brief:

 

  • to provide for managing biosecurity risks, the risks of contagion of human diseases, the risk of a human disease entering, emerging, establishing itself or spreading in Australian territory, risk relating to ballast water and biosecurity and human biosecurity emergencies; and
  • to give effect to Australia’s international obligations. 

 

As such, in making an electronic decision which requires a person to answer questions, or require information or documents from a person, it is intended that such a decision will be consistent with the objects of the Act. Upholding the objects of the Act is a legitimate objective and, therefore, to the extent any such decision limits the right to privacy, such limitation is reasonable and proportionate. Subsection 541A(3) acts as a reasonable constraint on the making of an electronic decision.

 

Further, subsection 541A(4) of the Act provides that the Director of Biosecurity must take reasonable steps to ensure that an electronic decision is based on grounds on the basis of which a biosecurity officer could have made that decision. However, an electronic decision may be made without any state of mind being formed in relation to a matter to which the decision relates. While a decision made by operation of a computer program would not involve the formation of a state of mind (as would be the case for decisions made by a biosecurity officer), subsection 5(3) of the Legislative Instrument provides that it is a condition of use that a person who is in a class of persons who may use an authorised computer program to be satisfied on reasonable grounds that information entered into the computer program by the person for the purpose of enabling decisions to be made by the operation of the computer program is true and correct. It is also a condition of use to ensure that the information is accurately entered into the computer program. This would ensure that an authorised computer program would have access to the same information that a biosecurity officer would in making a decision under a relevant provision of the Act. As such, legislative safeguards exist to ensure that the grounds for electronic decision-making are the same as those upon which a biosecurity officer may make a decision. This ensures that, to the extent any electronic decision may limit the right to privacy, such limitation is reasonable and proportionate.

 

Additionally, Part 2 of Chapter 11 of the Act includes protections relating to the collection, storage and disclosure of protected information. This includes offences and a civil penalty for the unauthorised use or disclosure of protected information.

 

The limitations on the right to protection from arbitrary interference with privacy under Article 17 of the ICCPR are permissible as protections apply to ensure the exercise of powers is reasonable and proportionate to achieving the legitimate objective and adequate safeguards apply to prevent the risk of abuse or arbitrary exercise of discretion.

 

Right to non-discrimination (Articles 2(1) and 26 of the ICCPR)

 

Under Article 2(1) of the ICCPR, Australia has an obligation to respect, and to ensure all individuals within its territory and subject to its jurisdiction respect, the rights recognised in the ICCPR without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 26 of the ICCPR protects the right to equality and non-discrimination, and provides that the law shall protect against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property or other status.

 

Subsection 5(1) of the Legislative Instrument may engage this right. Subsection 5(1) provides the relevant provisions of the Act under which a decision may be made by the operation of a computer program. This includes decisions under subsections 122(2), 122(3), and sections 126 and 127. These provisions provide for the power to require information, answers to questions or the production of documents. The power to ask questions or require a person to provide information or produce documents is limited to circumstances where it is reasonable to expect that the person has the relevant information or documents (e.g. the person is the importer of relevant goods). These requirements are necessary for the legitimate objective of assessing the level of biosecurity risk associated with goods that are intended to be or being brought or imported into Australian territory. Access to further information or documents is required in order to properly assess the level of biosecurity risk associated with the goods and then to manage any biosecurity risks appropriately.

 

The right to non-discrimination in Article 26 of the ICCPR, read with Article 2(1), may be engaged by the operation of subsection 5(1) of the Legislative Instrument.

 

Electronic decisions which may made by a computer program under subsections 122(2), 122(3), and sections 126 and 127 will be made based on information and data entered into the relevant computer program. That information and data will be of a kind which is intended to provide relevant factors relating to the assessment of the level of biosecurity risk associated with goods. As such, electronic decision-making under these provisions will be on the basis of relevant information and data and will solely be aimed at managing biosecurity risks in the most appropriate manner for a legitimate purpose.

 

These measures therefore do not impose impermissible limitations and are compatible with the right to non-discrimination in Article 26 (read with Article 2(1)) of the ICCPR.

 


Conclusion

 

This Legislative Instrument is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

 

 

Victoria Anderson

Director of Biosecurity

Interactions

Authorises

All Versions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.