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23 August 2022

Biosecurity compliance obligations for property developers, mining and resources companies and landowners

A biosecurity outbreak is one of the few events that has the power to cripple industries overnight. As we have seen with COVID, if not prevented or rapidly addressed, an outbreak can threaten human health and industry profitability, and the impact can go beyond the industry involved, with flow-on effects to the rest of the economy.

This article aims to provide a high-level overview of how your business can be impacted by Biosecurity Act 2014 (Qld) and Biosecurity Regulation 2016 (Qld) and what you need to know to meet your biosecurity obligations.

So, who should read this?

  • agriculturalists
  • developers
  • manufacturers
  • mining and resources companies
  • pastoralists
  • processing facilities, such as abattoirs
  • port and transport operators
  • tourists and tourist operators.

How are biosecurity activities regulated?

The Act establishes a general biosecurity obligation that requires everyone to take an active role in managing and responding to biosecurity risks. A suite of comprehensive regulatory powers and measures are provided under the Act and the Regulation to support a risk-based approach to biosecurity and enable rapid responses to biosecurity emergencies. These powers and measures include:

  • Biosecurity emergency orders – emergency actions to isolate and stop the spread of biosecurity matter, and where possible eradicate it.
  • Movement control orders – some examples are:
  • Currently a movement control order for varroa mite, restricting movement of bees, beehives, bee keeping equipment or bee products has been put in place in Queensland, given the recent outbreak in New South Wales.
  • Livestock standstill (a measure under the Australian Veterinary Emergency Plan) would be administered under movement restriction to limit the spread of animal disease, such as foot-and-mouth disease, in the event an outbreak reaches Australian shores.
  • Biosecurity zone regulatory provisions – these include arrangements for eradicating, reducing, or managing an animal or plant pest or disease, a weed, marine pests, or contaminant. A biosecurity zone may be established across the whole or part of the State, for an extended period or indefinitely. Current examples are:
  • permanent quarantine zones to control fire ants and cattle ticks
  • temporary quarantine and restrictions in relation to bees.
  • Biosecurity orders – an authorised officer may issue a biosecurity order to direct a person to comply with their general biosecurity obligation or issue an entry order to check compliance. Examples of biosecurity issues that could give rise to this type of orders being issued are a failure to:
  • isolate an infected animal from a herd
  • eliminate biosecurity incursions of certain weeds
  • notify in the event of a biosecurity outbreak.

When is a biosecurity obligation likely to impact you?

Given the Act imposes a general biosecurity obligation on every Queenslander, its application is extensive and applies to property, resources, and transport sectors, just to name a few, when undertaking operations or civil works comprising activities in land or water. Biosecurity obligations should be considered when conducting the following types of works:

Developers

  • disposing of regulated waste – ensure compliance with requirements of biosecurity zones and movement restrictions
  • using cut and fill during civil earth works
  • bringing on materials from shipping containers – ensure materials are fumigated at the port of origin to avoid delays.

Mining and resources

  • accessing agricultural land under land access code – comply with registered biosecurity management plan
  • importing locomotives from offshore – under the ‘Stink Bug Season’ mandatory measures, any non-enclosed shipments must be loaded on board a vessel within 120 hours of being fumigated.

Agriculturalists/pastoralists and their supply chain

  • transporting livestock under National Livestock Identification System (NLIS) program – ensure NLIS transfers are completed within 48 hours of livestock arrival
  • washdown facilities – adequate design to meet operational and maintenance requirements of the property.

In the post-COVID world, businesses need to consider biosecurity compliance as a key compliance risk that needs to be adequately assessed, at both organisational level and specific project level, to achieve early awareness and risk identification and implement controls to meet obligations and appropriately manage compliance risks in contracts and insurance.

What are the consequences for breach?

Biosecurity offence provisions under the Act carry significant penalties. The maximum penalties for failing to discharge a general biosecurity obligation are:

  • 1000 penalty units ($143,750) for an individual or 5000 penalty units ($718,750) for a corporation or one year’s imprisonment for a breach in relation to a prohibited matter
  • 750 penalty units ($107,812.50) for an individual or 3750 penalty units ($539,062.50) for a corporation or six months’ imprisonment for a breach in relation to a restricted matter
  • 3000 penalty units ($431,250) for an individual or 15000 penalty units ($2,156,250) for a corporation or three years’ imprisonment if the offence is found to cause significant damage to health and safety of people or to the economy or the environment.

In addition to penalties, particularly in the case of large-scale ongoing operations requiring land access, any prosecution under the Act could also represent reputational damage and impact the company’s credibility as a responsible operator in the local area.

What can you do to meet my biosecurity obligations?

For livestock producers

  • consider implementing a biosecurity management plan (discussed in more details below)
  • maintain accurate NLIS databases to track and trace animals and use NLIS to correctly record livestock movements onto and off your property identification code (known as PIC).

For miners and visitors of agricultural properties

  • consider putting in place biosecurity protocols (and integrate biosecurity protocols in contractor agreements) to ensure your employees/representatives/contractors understand what is required before entering and leaving agricultural properties, for example, vehicle washdown; ensure shoes, clothing, and equipment are free from weed seeds, dirt, soil or debris; drive on designated tracks: leave gates as find them etc.
  • when accessing a property under a conduct and compensation agreement, while compliance with the biosecurity management plan is not mandatory, consider follow through reasonable measures set out in the biosecurity management plan as it will help you to discharge your general biosecurity obligation (i.e. this could give you a defence of due diligence against causing or spreading a biosecurity outbreak under the Act)
  • maintain good working relations with landholders and follow their reasonable directions (again this could give you a defence of due diligence under the Act)
  • ongoing biosecurity employee education – for example, alert your employees of the current threat of foot-and-mouth disease, and their biosecurity obligations if they have recently returned from at-risk countries.

Transporters of agricultural produce

  • check for and follow biosecurity zones and other movement restrictions
  • ensure you are aware of biosecurity matters in the area you conduct business before moving certain plant material, animals, food products, soil, and related equipment
  • ensure you are aware of local government biosecurity plans that identify important pests and associated requirements in the area.

What is a biosecurity management plan?

In 2019, the Queensland Government introduced additional biosecurity regulations to address potential biosecurity risks of unauthorised entry to places where animals are kept. Under the Regulation, a registered biosecurity entity (i.e. a livestock producer) can register a biosecurity management plan. Anyone, unless they are permitted by legislation to enter a place, must comply with a biosecurity management plan if it has been implemented on a property. Failure to comply with a registered biosecurity management plan is an offence under the Act.

We make the following observations about the legal status of a biosecurity management plan:

  • It is not legally required of a livestock producer to have a biosecurity management plan.
  • Implementing a biosecurity management plan can serve as a deterrence measure against unauthorised entry to your property. As a livestock producer, it is also a way of meeting your general biosecurity obligation under the Act.
  • Compliance of the biosecurity management plan is not mandatory for those who have a legal right to access (e.g. access by a miner under a conduct and compensation agreement) unless it is a contractual obligation that they will comply with the biosecurity management plan in the conduct and compensation agreement.

Compensation for loss or damage

It is important to understand contravention of the Act does not create a civil cause of action. This means that a landowner cannot sue a defendant for compensation for loss or damage following successful prosecution under the Act.

With that in mind, to ensure you are protected, when negotiating a conduct and compensation agreement, it is prudent to consider appropriate contractual rights and remedies in the event of any biosecurity breach (e.g. contractual damage, right to terminate, indemnity etc.). The Act states that compliance with the Act does not necessarily show that a civil obligation has been satisfied or has not been breached, hence a contractual obligation can potentially capture a broader set of acts and omissions.

The fact that contravention of the Act does not create a civil cause of action does not mean, however, you do not have a separate civil cause of action to claim damages against someone who causes you loss through the introduction of a biosecurity outbreak (e.g. under common law or contracts).

In the event of a biosecurity response causing a reduction in land value (e.g. orders to eradicate produce as a response to emergency plant pest incident), the Act provides a compensation scheme as well as availability of compensation payable by the State in the absence of scheme compensation being payable.

If you would like advice regarding biosecurity management plans or conduct and compensation agreements, please contact Leanne O’Neill.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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