The General Biosecurity Duty
The Biosecurity Act 2015 (the Act) prohibits some high-risk activities and materials - there is also a general obligation on people to be aware of their surroundings and take action to prevent the introduction and spread of pests, diseases, weeds and contaminants.
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.
Case studies
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.
