General biosecurity duty

The NSW Biosecurity Strategy introduces the principle of shared responsibility. The vision is:

'Government, industry and the people of NSW working together to protect the economy, environment and community from the negative impacts of animal and plant pests, diseases and weeds for the benefit of the people of NSW.'

Government is committed to reducing red tape and strengthening relationships, in order to drive economic growth, productivity and innovation and create positive environments. Industry and community stakeholders can play a proactive role in developing and implementing solutions to effectively manage our biosecurity risks.

To provide a framework for the responsibility for biosecurity risk that is shared among the community, industry and government, the Biosecurity Act establishes a number of 'biosecurity duties'. These are:

  • a general biosecurity duty,
  • duties relating to prohibited matter, and
  • a duty to notify biosecurity events.

The general biosecurity duty supports the 'shared responsibility' through its broad scope. It increases flexibility in how we can manage animal and plant pests and diseases and contaminants. It provides a strong foundation for a proactive and outcome-focused framework based on education and advice instead of prescriptive regulations and processes.

The general biosecurity duty can be found in Part 3 of the Act. Specifically, section 22 of the Act provides:

Any person who deals with biosecurity matter or a carrier and who knows, or ought reasonably to know, the biosecurity risk posed or likely to be posed by the biosecurity matter, carrier or dealing has a biosecurity duty to ensure that, so far as is reasonably practicable, the biosecurity risk is prevented, eliminated or minimised.

The terms 'biosecurity matter', 'carrier', 'biosecurity impact', 'biosecurity risk' and other important terms are defined in Division 2 of Part 2 of the Act and an explanation provided in Key terms and definitions.

Although the general biosecurity duty applies broadly, there are a number of elements that must be satisfied:

  • Dealing with – the general biosecurity duty only applies to a person who 'deals with' biosecurity matter or a carrier of biosecurity matter. 'Deal with' includes a wide range of activities, which are listed in section 12 of the Act. Some examples of dealing with biosecurity matter are; to keep, possess, grow, breed, move, supply or manufacture biosecurity matter.
  • Knowledge – a person must know, or ought reasonably to know, that there is or is likely to be a biosecurity risk arising from the biosecurity matter, carrier or 'dealing'. This will be a question of fact and will depend on the circumstances of each situation.

    People who know or ought reasonably to know will generally include people who deal with biosecurity matter or carriers on a regular basis as part of a commercial or recreational activity, and people who work professionally (i.e. 'deal') with a particular type of biosecurity matter or carrier. For these people their general knowledge and expertise would in most cases be sufficient to indicate they know the risks.
  • 'Reasonably practicable' – what is reasonably practicable for the prevention, elimination or minimisation of a biosecurity risk will depend on what was reasonably able to be done at a particular time, taking into account and weighing up all relevant matters. Relevant matters include, the nature and potential impact of the biosecurity risk, the person's level of knowledge of the risk and related actions that could be taken to prevent, eliminate or minimise the risk, and the cost, availability and suitability of these actions. It is not likely to be reasonably practicable if the cost is greatly disproportionate to the risk.
  • Preventing, eliminating or minimising the biosecurity risk – the risk must be prevented or eliminated if reasonably practicable, otherwise it must be minimised so far as is reasonably practicable.

The general biosecurity duty can apply to more than one person in relation to the same biosecurity risk, for example an owner and a manager may both be responsible for managing a particular biosecurity risk on a property.

The general biosecurity duty will be an important part of education programs about specific biosecurity issues. Advice given to individuals can refer to the general biosecurity duty in order to lend more legal weight to information that was previously purely advisory.

NSW DPI, Local Control Authorities and Local Land Services provide a large number of factsheets about the management of various types of biosecurity risks. These will be updated to include the general biosecurity duty and information on how a person can meet their duties in relation to the matter.

A greater awareness of the general biosecurity duty across the community will reinforce the important principle that responsibility for biosecurity is shared between the community, industry and government.

The general biosecurity duty exists regardless of whether the particular risk, or the actions to prevent, eliminate or minimise it, are specifically addressed elsewhere in the Act, regulations or other subordinate instruments.

The general biosecurity duty can also be considered as a 'safety net' to be used for any biosecurity risk not specifically dealt with elsewhere in the legislation.

Regulations made under the Biosecurity Act may specify actions that must be taken to prevent eliminate or minimise biosecurity risks posed or likely to be posed in relation to biosecurity matter, carriers or dealings. These are known as mandatory measures.

Mandatory measures may apply generally or in specified circumstances such as only to certain classes of people or in relation to certain activities. If mandatory measures apply to a particular dealing or activity then the relevant person must comply with those measures, regardless of whether they know or reasonable should know about the risks posed or likely to be posed.

In most cases, if a person complies with the relevant mandatory measures they will have discharged their general biosecurity duty. In some cases the mandatory measures may state the minimum actions that are required for the duty to be discharged, and that depending on the circumstances additional measures may be required.

A mandatory measure may be outcomes based or more prescriptive in nature. For example, a mandatory measure may require farm machinery to be free of weed seeds before being moved from a property. This approach gives individuals flexibility in how they achieve the outcome, while ensuring that the biosecurity risk is addressed. Alternatively the mandatory measure could require that specified parts of the machinery be washed with a high pressure hose, at a particular type of location or in a specified manner.

Mandatory measures may be prescribed to highlight particular risks and how they should be addressed. Industry will be given the opportunity to participate in the development of mandatory measures. By focusing on a desired outcome, mandatory measures can be a tool to engage industry, increase the awareness of shared responsibility and encourage innovation in how to prevent, eliminate or minimise a particular biosecurity risk.

If extensive or detailed requirements for a particular type of biosecurity matter, carrier or dealing are needed, the mandatory measures may refer to compliance with other documents. This could include a code of practice or set of procedures developed by an industry body or state or local government. Such a document would only be adopted if it was enforceable, reasonable and consistent with the government's commitment to red tape reduction.

By giving industry the opportunity to participate in development and by focusing on a required outcome, mandatory measures are a tool to engage industry, increase awareness of shared responsibility and provide opportunities for co-regulation.

In many cases there may be no need to prescribe exactly how a person is to discharge their general biosecurity duty. The person with the duty is best placed to decide what is reasonably practicable in the circumstances to prevent, eliminate or minimise the particular biosecurity risk and should have the flexibility to make this decision.

Advisory material, industry standards and codes of practice are available to assist. Additionally, authorised officers can give guidance on appropriate ways to discharge a general biosecurity duty and in some cases may also issue a biosecurity direction providing detail about required actions.

The general biosecurity is invaluable in raising awareness through education and advisory material and attaining long term outcomes, however it is also enforceable.

Section 23 of the Biosecurity Act provides 2 tiers of offences for failing to discharge the general biosecurity duty. The category 1 offence applies when a person's failure to discharge their general biosecurity duty was intentional or reckless, and the failure caused (or was likely to cause) a significant biosecurity impact.

Any other failure to discharge a general biosecurity duty is a category 2 offence which has lower penalties. Failure to comply with a mandatory measure is also a category 2 offence under section 25 of the Biosecurity Act.

Failure to comply with a biosecurity direction is also a category 2 offence.

Horse owners have a general biosecurity duty to ensure that the biosecurity risks associated with keeping horses are prevented, eliminated or minimised.

These horse owners are dealing with biosecurity matter (horses). They also would know or should reasonably know about the biosecurity risks associated with keeping horses, particularly if they are in an area such as Northern NSW where Hendra virus infection is a higher risk.

These horse owners therefore have a general biosecurity duty to prevent, eliminate or minimise the biosecurity risks associated with Hendra virus infection. This could be as simple as keeping horses away from trees in which fruit bats roost and making sure that the horses' food and water is not near these trees. The horse owner may also choose to vaccinate the horses against Hendra virus.

If a weed poses a biosecurity risk in a particular area, but is not the subject of any specific legislation, authorised officers of Local Control Authorities in that area may rely on the general biosecurity duty to manage that weed or prevent its spread. A Regional Weeds Committee would normally prepare guidelines or factsheets to guide the public in the best practice management and control of the weed.

As in all situations, the general biosecurity duty only applies to people who deal with the particular weed or a carrier and who know or should reasonably know of the biosecurity risks associated with that weed.If the general biosecurity duty applies, typically, property owners might be required to discharge the duty by controlling the movement of weeds onto and off their land by:

  • finding out where products brought onto the property (such as fodder, soil, mulch or gravel) originated and taking steps to manage any risks from it,
  • holding newly acquired livestock in a restricted area before releasing them onto the property,
  • reducing the risk of weeds spreading to neighbouring properties, taking into account the likely means of distribution of the seed,
  • holding stock in a weed-free area before transporting them off the farm if they have been exposed to weed seed,
  • not selling feed, soil, gravel or other products that might contain weed seed.

Information would be made available to property owners about ways to control the spread of a particular weed. However, in this example, property owners are not required to follow any particular method so long as they take reasonably practicable measures to control the spread of the weed.

Under the Biosecurity Act the invasive aquatic weed Caulerpa is likely to be subject to regulatory controls to prevent its spread from estuaries in which it has been known to occur. The most recent survey found it at four locations out of fourteen where it had previously been found. It is however extremely difficult to completely eradicate and could reappear at any of those 14 locations or indeed new locations.

Recreational waterway users are potential carriers of Caulerpa. They have been the subject of a targeted education program but do not currently have obligations under the legislation. Caulerpa is also subject to a prohibition on possession and sale that restricts chiefly the aquarium trade and also commercial fishing and aquaculture activities in affected estuaries.

Since water is a carrier of Caulerpa, recreational users of affected waterways who have knowledge of the biosecurity risks of Caulerpa will be subject to a general biosecurity duty to prevent or minimise the spread of Caulerpa.

Additionally, recreational users of affected waterways who should reasonably know of the biosecurity risks of Caulerpa will be subject to this general biosecurity duty. For example, if educational and warning signs are prominently placed at boat ramps and other areas where the water is accessed for recreational purposes, these users "should know" of the risk and therefore subject to the general biosecurity duty. Recreational users of an affected waterway who have a general biosecurity duty in relation to Caulerpa can discharge this duty simply by cleaning their boating, fishing, swimming and other equipment of any weed before using it in other waterways.

Footrot is a serious and highly contagious disease, which historically has caused social division in communities and sensitivity around animal welfare issues. Currently NSW is largely free of footrot, although sporadic outbreaks still occur, largely as a result of the movement of stock into the state. Specific regulatory controls for footrot include:

  • the prohibition of the movement of sheep or goats into NSW unless they are accompanied by a completed, signed National Sheep Health Statement;
  • the requirement that neighbours of infected flocks be notified.

These controls will be achieved by a biosecurity zone covering the whole of NSW.

Additionally, if footrot is diagnosed in a flock, a biosecurity direction may be issued or a biosecurity undertaking may be accepted, possibly followed by a control order, to effectively quarantine the affected property, treat the outbreak and apply other measures if necessary.

However, the general biosecurity duty will also apply from the time the disease is first suspected. The owner of stock that are suspected or confirmed as having footrot is clearly dealing with the stock and would usually know or ought reasonably to know of the associated biosecurity risks. Accordingly, he or she has a GBD to ensure that the biosecurity risk is prevented, eliminated or minimised. All reasonably practicable measures must be taken to ensure that potentially infected sheep or goats cannot stray onto neighbouring properties, come into contact with uninfected stock, or have access to land that might be used by uninfected stock, such as public roads.