INSIGHT: Infringement notices under the Biosecurity Act

ON 3 SEPTEMBER 2018, the then Department of Agriculture (DAFF) advised it would issue infringement notices under the Biosecurity Act for 55 strict liability offences. Some apply to first points of entry such as airports and seaports, while others apply to cargo, ballast water, or other areas of biosecurity concern. To be valid they must, however, be issued within 12 months after the day on which the alleged contravention took place.

A list of the 55 infringement notices is at s.523 of the Biosecurity Act 2015.

When strict liability applies to an offence, DAFF is only required to prove that the offence was committed and not required to prove fault elements such as intent. Strict liability is used where there is public interest in ensuring that regulatory schemes are observed and it reasonably can be expected that the person was aware of their duties and obligations and proving guilt in court would be disproportionately costly

We do not know if the ability to issue infringement notices is restricted to any particular training, although the DAFF website provides that any Biosecurity Enforcement Officer can issue an infringement notice. I understand that this role is different to that of a Biosecurity Officer but am unaware of the level of training required, as guidance has not been issued.

DAFF has advised that a decision to issue a penalty will first consider:

• If this is the first occurrence of a breach.
• Whether warnings have been issued in the past.
• Seriousness of the breach.
• Failed audits.

The infringement notice provides the amount payable, the time in which it must be paid and the methods whereby it can be paid. It also explains the process for seeking a withdrawal of a notice and/or requesting an extension of the payment period. Although payment is required within 28 days after the day the notice was given, an extension may be requested if made before the original payment period has ended.

If an extension has already been granted, but additional time is required, this application must be lodged within the extended period. Payment after the extended period

Under Commonwealth law, financial penalties are calculated in ‘penalty units’. Section 4AA of the Crimes Act 1914 sets the monetary amount of one penalty unit, which is currently $330. This penalty is fixed at the lesser of onefifth of the maximum penalty that a court could impose for that contravention or 60 penalty units for commercial entities or 12 penalty units for individuals. It should be noted that DAFF considers that there is no scope for lower penalties to be issued as the amount of penalty units is legislated. Although the amount payable may vary between offences, generally the amount is 12 penalty units for an individual and 60 penalty units for a company.

Requests for withdrawal of the infringement notice must be made in writing to the Director of Biosecurity with details of the alleged contravention and any other relevant information to assist a decision to be made. A defence of honest and reasonable mistake of fact is available. This means that if a person has considered the relevant facts and is under a mistaken, but reasonable, belief about those facts, he or she is not liable for the offence.

If a broker is seeking withdrawal of an infringement notice on behalf of a client, the application must be accompanied by a signed Authority to Act from the client. A copy of this is on the DAFF website.

In considering the withdrawal of an infringement notice DAFF must take the following into account:

1. whether a court has previously imposed a penalty on the person for a contravention of a provision subject to an infringement notice;
2. the circumstances of the alleged contravention;
3. whether the person has paid an earlier infringement notice, for conduct that is the same, or substantially the same, as the alleged conduct in this matter;
4. any other relevant matter.

Paying an infringement notice within the payment period specified in the notice effectively discharges all guilt or liability regarding the alleged contravention without making admissions. If not paid, the party issued the infringement notice may be prosecuted for an offence, or DAFF may commence court proceedings for a civil penalty order against the recipient. The court may impose a financial penalty for the contravention, as specified in the Biosecurity Act for that contravention.