Biosecurity Compliance Strategy

Our plan for managing biosecurity compliance and enforcement

This strategy is part of a business reform program of the Department of Agriculture, Fisheries and Forestry's biosecurity business areas. The reform program is transitioning the current business model from one focused on mandatory intervention at the border to a risk return approach across the biosecurity continuum i.e. offshore, at the border and onshore.

Contents

1. Introduction
2. Our stakeholders
3. Our regulatory philosophy 
4. Helping stakeholders comply
5. How we achieve compliance
6. Monitoring compliance
7. Compliance and enforcement response
8. Managing enforcement

Introduction

The purpose of this Strategy is to outline to stakeholders how the Department of Agriculture, Fisheries and Forestry (DAFF) manages compliance and enforcement with its biosecurity legislation.

The department has the following role in managing biosecurity within Australia:

"Safeguard Australia's animal and plant health status to maintain overseas markets and protect the economy and environment from the impact of exotic pests and diseases, through risk management, inspection and certification, and the implementation of emergency response arrangements for Australian agricultural, food and fibre industries" (Portfolio Budget Statements 2010-11, Outcome 2).

The primary legislative basis for DAFF's work is contained in the Quarantine Act 1908, the Imported Foods Control Act 1992, the Australian Meat and Live-stock Industry Act 1997, and the Export Control Act 1982.

As an example, the Quarantine Act 1908 provides the legal basis for preventing or controlling the entry of people, vessels, goods, animals and plants into Australia, and managing the associated biosecurity risks. It also establishes the powers for the Director of Quarantine and quarantine officers to deal with biosecurity matters. The DAFF website publishes a range of information to assist stakeholders to be compliant.

The successful management of biosecurity relies on key stakeholders and the general public. This makes it vital that we have a strong regime in place to ensure compliance with the legislation and broader biosecurity requirements.

Our stakeholders

This Strategy applies to a diverse range of biosecurity stakeholders.  The key stakeholders that will benefit from familiarisation with this Strategy include:

• importers/importer's agents
• exporters/exporter's agents
• international travellers (crew and passengers)
• transport companies (airlines, shipping lines, trucking companies)
• accredited third party service providers
• states and territories.

The Department of Agriculture, Fisheries and Forestry's mission is to:

• work to sustain the way of life and prosperity of all Australians
• advise the government and our stakeholders how to improve the productivity, competitiveness and sustainability of our portfolio industries
• help people and goods move in and out of Australia while managing the risks to the environment and animal, plant and human health.

Our regulatory philosophy

Managing compliance is about encouraging stakeholders to voluntarily comply with biosecurity requirements and dealing with non-compliance appropriately.

In managing compliance, we will:

• be accountable, transparent, consistent and fair in our dealings with biosecurity stakeholders
• provide an environment that is responsive to changing biosecurity risks and has the capacity to minimise the regulatory impact on compliant stakeholders
• work towards achieving a shared responsibility philosophy with biosecurity stakeholders to deliver outcomes across the biosecurity continuum
• engage with biosecurity stakeholders to encourage compliance with biosecurity regulations
• implement regulatory response measures that are proportionate to the degree of non-compliance and the biosecurity risk.

The department will use intelligence information and risk assessment to make decisions about allocating resources to maximise the number of compliant stakeholders. Our objective is to focus on communication, education and training to reduce the need to use resources on enforcement.

The core elements of this approach are:

• to assist stakeholders to understand their rights and obligations—this will be supported with a customised communication strategy
• to make it as easy as possible for stakeholders to meet their biosecurity obligations
• to support stakeholders who want to do the right thing
• to actively pursue those who opportunistically or deliberately contravene the law.

The department's import conditions (ICON/BICON) system manages and publishes the quarantine conditions relating to the importation of goods. This information helps Australian importers and overseas exporters to comply with the requirements necessary to minimise the risk of exotic pests and diseases entering the country and for DAFF staff to apply import conditions consistently and accurately.

The Manual of Importing Country Requirements (MICoR) and the Tracking Animal Certification for Exports (TRACE) are systems that support the preparation of export documentation for meat, plant and live animals respectively under the Export Control Act 1982 and associated legislation.

Helping stakeholders comply

Responsibility for compliance with legislation, including ensuring the accuracy of all relevant information and advice, rests with the individual person or organisation affected by the legislation.

The department supports stakeholders to be compliant by:

• providing access to necessary information to help stakeholders understand regulatory requirements and legislation through systems such as ICON/BICON, MICoR and TRACE
• providing real time technical advice (via telephone)
• communicating instances of non compliance in a timely manner
• working with clients and stakeholders to gain an understanding of systems, and commercial processes and priorities, which affect their decision making
• providing advice on the development of strategies and systems designed to achieve compliance with Australia's biosecurity requirements
• understanding stakeholder operating environments when developing and implementing regulations
• streamlining regulatory processes and developing and tailoring incentives to encourage mutual benefits of compliance with Australia's biosecurity requirements

  The Imported Bulk Cargo Fertiliser inspection protocol establishes documented procedures, quality assurance processes and the standards and qualifications to be applied for bulk imported fertiliser.  These arrangements were developed in conjunction with industry to clearly articulate the quarantine inspection protocols for the importation of bulk in-ship fertiliser.  The protocols allow importers to take extra measures to reduce commercial risk and capture the maximum benefit of this improvement. These protocols are underpinned by legislation and a robust audit regime.

• designing and entering into arrangements with key stakeholders that bind the party through legislation and appropriate business incentives for continued compliance (underpinned by robust audit systems and fit and proper person requirements).

  The Food Import Compliance Agreements (FICA) are regulatory arrangements where the department can recognise an organisation's documented food management systems for sourcing and importing their food.  Under a FICA, the department can recognise these systems thereby minimising unnecessary regulatory burdens on Australian food importers.  These arrangements are underpinned by recently amended legislation and a robust audit regime and provide an alternative to the current regulatory arrangement in Australia which relies solely on inspection and testing of imported food at the border.

The department's import conditions (ICON/BICON) system manages and publishes the quarantine conditions relating to the importation of goods. This information helps Australian importers and overseas exporters to comply with the requirements necessary to minimise the risk of exotic pests and diseases entering the country and for DAFF staff to apply import conditions consistently and accurately.

The Manual of Importing Country Requirements (MICoR) and the Tracking Animal Certification for Exports (TRACE) are systems that support the preparation of export documentation for meat, plant and live animals respectively under the Export Control Act 1982 and associated legislation.

How we achieve compliance

The department's approach to implementing compliance programs (see Figure 1), is based on the responsive regulation model.¹

Figure 1

The department's compliance model (see Figure 2) outlines compliance approaches and activities used to enforce the law. The department uses a risk-based approach that increasingly takes into account the behaviour and motivations of stakeholders. The model guides the department to assist stakeholders to comply with the law through responsive and effective regulatory programs. The department recognises that the way it interacts with stakeholders can influence the behaviour of individuals and organisations.

Figure 2

The compliance model assumes that most stakeholders will comply, or try to comply, with their obligations. The department's objective is to encourage compliance and, in doing so, work towards reducing the cost of compliance for those who do the right thing.

However, the department recognises that it is not appropriate to respond to all compliance issues in the same way, and uses strong enforcement techniques to deal with serious non-compliance where deliberate fraud occurs.

Monitoring compliance

The department routinely monitors compliance with laws through the analysis of our systems, operations and programs. We also monitor trade and performance information, outcomes from audit activities and information provided by external sources. These include the general public, non-public organisations, other government agencies and overseas authorities. We value the ongoing contribution made by the general public in the provision of information that highlights noncompliance with biosecurity laws.

Information received is confidential and assessed to determine the most appropriate compliance or enforcement action required. We endeavour to respond to correspondence in accordance with the department's service charter, to the extent that confidentiality and privacy considerations permit.

Monitoring helps the department:

• determine the level of compliance and trends in stakeholder behaviour
• detect possible contraventions of legislative requirements
• identify whether, and what type of, education campaign or enforcement action may be required
• assess the effectiveness of its systems, operations and programs and identify opportunities for improvement.

The department strives to constantly improve its capacity to detect and respond to noncompliance, and works with other agencies to enhance this capacity.

Where appropriate (for example, where our monitoring responsibilities overlap with those of other agencies), we may develop strategic partnerships to formulate shared capacity building.  Information may be shared with other agencies where required or permitted by law. 

Monitoring activities are focussed on areas of highest risk to Australia's biosecurity and may include:

• routine and random inspections
• routine and random audits
• periodic and specific surveillance
• targeted campaigns
• intelligence gathering and data analysis
• the 1800 hotline.

Compliance and enforcement response

The department uses the most appropriate compliance and enforcement option in response to each contravention.

Responses range from education and/or warnings to deterrent sanctions such as exclusion from programs, suspension or cancellation of permits or approvals, seizure of goods, infringement notices (on-the-spot fines) and criminal prosecution.

In determining the appropriate response to a non-compliance incident, the department considers several factors including:

• evidence of criminality
• the nature and severity of the harm done/potential
• the law
• the integrity of the regulatory system
• any mitigating or aggravating circumstances.

Where legislation provides for a range of administrative or criminal responses, the department will determine the most appropriate response based on the particular circumstances of the case.

The different types of administrative or criminal responses used by the department are described below.

Administrative responses

• Cautions and educational messages.
• Formal letters of advice or warning seeking a commitment for future compliance.
• Infringement notices.
• Varying audit and verification regimes.
• Revoking or imposing further conditions on permits, licences or approvals.
• Suspending or cancelling permits, licensing or approvals.
• Seizure of items (for example illegal importations of biosecurity concern).

The subject of an administrative sanction may, in some cases, have a right of appeal depending on the type of sanction used.

Criminal responses

The department's brief of evidence may then be referred to the Commonwealth Director of Public Prosecutions (CDPP), who has responsibility for prosecutions of offences against Australian Government law. A person found guilty of committing a criminal offence may receive:

• a criminal record
• a fine and/or
• a custodial penalty.

The department favours a referral to the CDPP where any of the following circumstances occur:

• the level of criminality is evident
• the offence produced real or potential harm to the Australian Government or the community, including harm to biosecurity or the well being of Australia or Australians
• the Australian Government or the community would reasonably expect that the offence will be dealt with by prosecution conducted in public before a court
• the offence is of such a nature or magnitude that is important to deter potential offenders and prosecution is likely to act as an effective deterrent
• when previous administrative or civil responses to contraventions by the suspect have not resulted in compliance.

The final decision on whether a prosecution proceeds rests with the CDPP and is made in accordance with the Prosecution Policy of the Commonwealth. In making the decision, the CDPP takes into account the views expressed by the department on the issue.

Managing enforcement

The department's investigation and enforcement procedures and practices are in line with the requirements of the Australian Government Investigation Standards.

All reported or detected incidents of non-compliance with the law are subject to assessment to determine their priority for further compliance or enforcement action. Prioritisation is used to ensure investigative resources are applied in the most effective way. The department's investigation and enforcement procedures and practices are in line with the requirements of the Australian Government Investigation Standards.

Based on the outcome of the assessment of a non-compliance incident, the department may:

• elect not to pursue the matter (dependant on its jurisdiction, priorities, and the best way to achieve the objective of the legislation or program)
• elect not to proceed with further investigative action, but take action to increase awareness and encourage compliance (such as using educational material, engaging relevant stakeholder groups and/or other administrative responses)
• elect not to proceed with further investigative action but seize goods of biosecurity risk
• proceed with further investigative action.

Investigations aim to:

• determine whether the law has been contravened
• gather evidence which would be admissible in criminal prosecutions or civil proceedings, or which may facilitate appropriate administrative measures
   improve controls to prevent contraventions through the department's risk control processes
• deter further or similar action
• improve public confidence in the integrity of the regulatory system
• achieve an appropriate outcome within a reasonable time and at reasonable cost, according to legislative requirements and the nature of the investigation.

In certain circumstances, the department may refer suspected incidents of noncompliance to the Australian Federal Police or other enforcement agencies for investigation. During such investigations, the department provides support to the relevant investigating agencies on matters relating to administration of our legislation. Any information shared with other investigating agencies will only be done so when required or permitted by law. 

Generally the department will not release information on specific investigations to the public unless it is absolutely necessary or required by the investigative process (for example, to seek information from potential witnesses).

In particular, no comment will be made that may:

• prejudice a person's right to a fair hearing or legal process
• impinge upon the privacy or safety of others involved in the investigation (such as complainants, witnesses and suspects)
• prejudice past or future actions.

Requests for information relating to compliance or enforcement, or matters made pursuant to the Freedom of Information Act 1982 (FOI Act), will be handled in accordance with the processes set out in the FOI Act.  Any decision to release or refuse to release information will be considered on a case-by-case basis in accordance with the FOI Act.

Further information

If you witness a suspected breach of Australian biosecurity regulations or laws call the Redline number on 1800 803 006.

Redline allows people to confidentially report matters that may not be detected, reported or acted on through other means. 

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 ¹ Refers to the Braithwaite responsive regulation model.