Biosecurity (Exposed Conveyances—Exceptions from Biosecurity Control) Determination 2016

This instrument is a legislative determination made under subsection 192(6) of the Biosecurity Act 2015. It specifies the limited circumstances in which a conveyance that is exposed to another conveyance (within the meaning of subparagraph 192(1)(a)(i) or (ii) or paragraph 192(1)(b) of the Act) does not become subject to biosecurity control. Under the default operation of the Act, an exposed conveyance automatically becomes subject to biosecurity control by force of subsection 192(2) or (3). This instrument carves out exceptions from that automatic trigger, so that in defined situations the exposed conveyance is not caught by the biosecurity control regime. The instrument operates in two distinct contexts: a general exception under section 6 for most conveyances, and a specific exception under section 7 for conveyances exposed to a protected zone vessel in the protected zone area. The general exception imposes a series of cumulative conditions relating to the absence of pest or disease transfer, the status of persons and goods on board, and compliance with end-of-journey requirements. The protected zone exception is absolute: section 7 provides that section 192 of the Act simply does not apply to a conveyance exposed to a protected zone vessel in the protected zone area, without any further conditions. The instrument therefore functions as a relief valve for routine, low-risk interactions between conveyances, particularly those involving domestic movements and the offshore petroleum industry. Its practical effect is to avoid unnecessary biosecurity control of conveyances that have not been exposed to any material biosecurity risk, thereby reducing administrative and compliance burdens for operators. However, the instrument does not confer a blanket exemption; it is tightly circumscribed and places the onus on operators to ensure that all relevant conditions are satisfied, or to seek a determination from the Director of Biosecurity that the risk level is low. The instrument does not create any independent penalties or enforcement powers; it merely defines when the biosecurity control provisions of the Act do not apply. Enforcement flows from the Act if a person relies on the exception but the conditions are not met, making the conveyance subject to control and triggering potential liability for non-compliance.

The central concept is an exposed conveyance: a conveyance that is exposed to another conveyance (the second conveyance) in one of the ways described in s192(1). The term exposed to is defined in the Act and is not further defined in this instrument; it generally covers physical contact, proximity, or transfer of persons or goods between conveyances. The instrument distinguishes between the exposed conveyance (the one that would otherwise become subject to control) and the second conveyance (the source of potential risk). Several key categories of persons and goods are defined. A domestic person means a person who was brought from a place in Australian territory, and includes a person who leaves a conveyance temporarily and returns to it. This category excludes international travellers who have not yet cleared biosecurity. Domestic goods means goods that were either released from biosecurity control under paragraphs 162(1)(a), (b) or (c) of the Act, or goods brought from a place in Australian territory that were not subject to biosecurity control and not subject to an exposed goods order at the time they were brought. This is narrower than simply all Australian-origin goods; it excludes goods still under biosecurity control. Low-risk goods are defined exhaustively as fuel, petroleum, and canisters of petroleum. Petroleum is defined broadly to cover natural hydrocarbons and mixtures, including those that have been processed or returned to a reservoir. A petroleum industry vessel means a vessel (other than an installation) used wholly or principally for exploring for or exploiting petroleum, or for associated operations. This category is important because the general exception treats installations and petroleum industry vessels differently from other second conveyances. A protected zone vessel and protected zone area are defined in subsection 617(4) of the Act, relating to biosecurity measures for certain offshore areas. The instrument creates a hierarchy of risk: for second conveyances that are not installations or petroleum industry vessels, the exception requires that only domestic persons and domestic or low-risk goods be on board the exposed conveyance. For second conveyances that are installations or petroleum industry vessels, there are three alternative pathways: (i) no transfer of persons or goods except low-risk goods; (ii) a determination by the Director that the second conveyance’s biosecurity risk level is low; or (iii) management of biosecurity risks under an approved arrangement covering the operator, together with end-of-journey requirements. The end-of-journey requirements for aircraft and vessels mandate bringing the exposed conveyance to a biosecurity entry point at its first point of entry as soon as practicable, or if landing at a non-first point of entry, obtaining permission or direction under the Act.

The instrument primarily affects operators and persons in charge of conveyances that operate in Australian territory and may come into contact with other conveyances. This includes aircraft and vessel operators in the offshore petroleum and gas industry, where crew changes, supply transfers, and servicing occur between vessels, rigs, platforms, and aircraft. For example, a supply vessel that transfers crew and fuel from a petroleum industry vessel to another vessel or to shore must assess whether the exception applies. It also affects commercial shipping where domestic goods or low-risk goods are transferred between vessels, such as bunkering operations. Fishing vessel operators who transfer catch or supplies between vessels in Australian waters may need to consider the instrument. In the aviation context, aircraft that receive passengers or cargo from another aircraft while on the ground before clearing biosecurity may rely on the exception if conditions are met. The instrument is also relevant to operators who have approved arrangements under the Biosecurity Act, as one pathway for the exception requires that biosecurity risks are managed in accordance with such an arrangement. The Director of Biosecurity is directly affected, as the instrument gives the Director a role in determining that the level of biosecurity risk associated with a second conveyance is low, based on information provided by the person in charge or operator. Persons on board conveyances are indirectly affected, particularly domestic persons: the exception requires that only domestic persons intend to disembark in Australian territory (or, in the petroleum industry vessel case, that no person who transferred from the second conveyance intends to disembark). This creates a practical constraint on crew movements. Goods owners and shippers are affected by the requirement that only low-risk goods or domestic goods be on board the exposed conveyance. Industries reliant on the transfer of foreign-origin goods between vessels will find the exception unavailable unless those goods have been released from biosecurity control. The instrument does not apply to conveyances exposed to a protected zone vessel in the protected zone area, which means operators in those areas must always comply with full biosecurity control requirements. From an economic perspective, the instrument reduces compliance costs for low-risk domestic operations but imposes a compliance burden on operators to verify that all conditions are satisfied, which may require record-keeping and documentation.

The instrument does not impose direct duties; it defines when the default duty to submit to biosecurity control under the Act does not apply. However, persons seeking to rely on the exception have a practical duty to ensure that all relevant conditions are satisfied at the time of exposure. Under section 6(1), the exception applies only if all of the following circumstances apply: no contamination, infestation, or infection is transferred from the second conveyance to the exposed conveyance; no pests (alive or dead) are transferred; no person on the exposed conveyance is exposed to a diseased animal or plant on the second conveyance; if the exposed conveyance is an aircraft or vessel, no human remains and no signs or symptoms of a listed human disease are present; and for second conveyances that are not installations or petroleum industry vessels, only domestic persons intend to disembark and only low-risk goods or domestic goods are on board. The operator bears the factual burden of satisfying these conditions; if any condition is not met, the exception fails. For second conveyances that are installations or petroleum industry vessels, there are three alternative pathways, each with distinct duties. Under section 6(1)(f)(i), the operator must ensure that no person who transferred from the second conveyance intends to disembark in Australian territory, and no goods other than low-risk goods that were transferred are on board. Under section 6(1)(f)(ii), the Director of Biosecurity must be satisfied that the biosecurity risk level is low. This gives operators the right to provide information to the Director seeking such a determination. Under section 6(1)(f)(iii), the operator (of the second conveyance) must have an approved arrangement covering its operations, and the end-of-journey requirements must be met for the exposed conveyance. End-of-journey requirements differ for aircraft and vessels: they require bringing the exposed conveyance to a biosecurity entry point at its first point of entry as soon as practicable after arrival, or if landing or mooring at a non-first point of entry, that permission has been given under the Act or a direction has been given. This imposes a duty on the operator of the exposed conveyance to physically go to the correct location. The operator also has the right to seek permission to land or moor at a non-first point of entry. The instrument does not create a duty to report reliance on the exception, but the operator may need to demonstrate compliance if later questioned by a biosecurity officer. Section 6(8) provides that the general exception does not apply to conveyances exposed to a protected zone vessel in the protected zone area; there is no corresponding operator right to an exception in that context. Section 7 provides a separate unconditional exception for exposure to protected zone vessels, but only in the protected zone area. This creates a right to avoid biosecurity control in that specific geographic context, but note that the exception is triggered by the nature of the vessel and area, not by operator action.

This instrument does not create any offences or penalties. It operates solely to define exceptions from the biosecurity control provisions of the Biosecurity Act 2015. Enforcement consequences arise under the Act if a person acts in reliance on the exception but the conditions are not satisfied. In such a case, the conveyance becomes subject to biosecurity control by default under s192(2) or (3), and any failure to comply with control directions (such as failing to report to a first point of entry, failing to allow inspection, or moving goods without permission) may attract civil or criminal liability under the Act. For example, if an aircraft lands at a non-first point of entry without permission and the operator incorrectly believes the exception applies, the aircraft is subject to control and the landing may contravene s239 of the Act, carrying penalties. Similarly, if a vessel allows a person who is not a domestic person to disembark after a transfer, and no other exception applies, the operator may face penalties for breaching biosecurity control. The Act provides for a range of penalties including infringement notices, civil penalty orders, and criminal offences with fines and imprisonment. While the instrument itself is not penal, it is critical for operators to understand that the absence of a penalty provision in the instrument does not mean the activity is risk-free. The instrument may also be relevant in administrative enforcement: if the Director of Biosecurity becomes aware that an operator has repeatedly failed to satisfy the conditions, the Director may take action under approved arrangements or issue directions. There is no specific monitoring or inspection protocol in the instrument, but biosecurity officers have general powers under the Act to board conveyances, require information, and examine records. The practical enforcement risk is that officers will test compliance with the conditions when an exposed conveyance arrives at a first point of entry. If conditions are not met, the operator may be required to submit to full biosecurity control, potentially causing delays and additional costs. From a free-market perspective, the instrument reduces the regulatory burden for low-risk operations, but the need to verify conditions and the potential for inadvertent non-compliance impose a compliance cost that smaller operators may find disproportionate.

This instrument is made under subsection 192(6) of the Biosecurity Act 2015 and must be read as a part of that Act. It interacts directly with the core provisions governing biosecurity control in Part 3, Division 1 of the Act, particularly s192. Where the instrument applies, it overrides the automatic application of biosecurity control that would otherwise occur under s192(2) or (3). The instrument also interacts with provisions of the Act dealing with first points of entry, biosecurity entry points, and permissions to land or moor at non-first points of entry (ss238-250). The end-of-journey requirements in ss6(4)-(7) cross-reference these sections, meaning operators must comply with the Act’s requirements for aircraft and vessel movements separately from the exposure exception. The instrument interacts with the approved arrangements provisions of the Act (Part 3, Division 3). Under s6(1)(f)(iii), one pathway for petroleum industry vessels and installations requires that biosecurity risks be managed in accordance with an approved arrangement covering the operator of the second conveyance. This means the instrument implicitly requires that the operator have an arrangement in place and that the arrangement be complied with. The instrument also interacts with provisions concerning protected zone vessels and protected zone areas (s617 of the Act). Section 6(8) expressly excludes conveyances exposed to a protected zone vessel in the protected zone area from the general exception, while section 7 provides a separate unconditional exception for that same scenario. The interplay means that for protected zone vessels in the protected zone area, the exception is absolute, but for protected zone vessels outside the protected zone area, the general exception (if conditions are met) may apply. The instrument does not interact with other legislation such as the Navigation Act 2012, the Offshore Petroleum and Greenhouse Gas Storage Act 2006, or environmental laws, but operators in the offshore industry will need to consider those regimes separately. The determination is a legislative instrument and must be considered alongside any other determinations made under the Act, such as determinations about first points of entry or biosecurity entry points. Amendments to the Act or to this instrument would alter the interaction; as of the source text, no amendments are indicated. Instrument makers should also be aware that the definitions in the Act (e.g., exposed to, conveyance, installation) are imported into this instrument by the note to s4. Any judicial interpretation of those terms in the Act will affect the operation of this instrument.

The instrument as provided is the original version. It was made on 24 May 2016 and commenced at the same time as section 3 of the Biosecurity Act 2015, which was 16 June 2016. No amendments are reflected in the source text. The table in section 2 refers only to provisions as originally made and states that the table will not be amended to deal with any later amendments. This suggests the instrument has not been amended, or if it has been, the amendments are not recorded in the version provided. A prudent operator would check the Federal Register of Legislation for the current compilation, as subsequent amendments may have been made. The instrument has been in force since 2016, and changes to the Biosecurity Act (such as the Biosecurity Amendment Act 2024) may have affected its operation indirectly, even if the instrument text itself was not amended. The instrument is made under a specific enabling power (s192(6)) and could be replaced or revoked by a new determination. The absence of amendment history in the source is notable; it may indicate that the instrument has remained stable, which provides regulatory certainty for industry. However, the lack of amendment does not guarantee its continued suitability. Operators should not assume that the instrument’s conditions are permanently fixed; the Director of Biosecurity could amend or replace it at any time without notice, subject to the usual legislative instrument requirements. The instrument’s commencement information shows it commenced on 16 June 2016, and the note to the table indicates that information in column 3 (date/details) is not part of the instrument. For litigation purposes, the version in force at the time of the relevant exposure is what matters; amendments would need to be checked.

The source text does not mention any litigation concerning this instrument. Given that it is a relatively technical and non-controversial legislative instrument, there is no publicly known case law directly interpreting it. The instrument is unlikely to be litigated on its own merits; disputes are more likely to arise under the Biosecurity Act itself, where the question of whether the exception applied may be a factual or legal issue. For example, if an operator is prosecuted for failing to comply with biosecurity control and argues that the conveyance was not subject to control because of this instrument, a court would need to determine whether the conditions in sections 6 or 7 were satisfied. This would involve factual findings about pest transfer, the status of persons and goods, and compliance with end-of-journey requirements. Administrative challenges to decisions of the Director of Biosecurity under s6(1)(f)(ii) (whether risk level is low) could also arise under the Administrative Appeals Tribunal or the Federal Court, although no such cases are recorded in the source. The instrument is too narrow and recent to have generated significant litigation. The protected zone exception in s7 may interact with litigation concerning the protected area provisions of the Act, but again no cases are cited. Practitioners should be aware that the instrument could be relevant in a defence to a charge under the Act, but the burden of proof on the balance of probabilities would lie with the defendant to establish the exception applies. The absence of litigation also means there is no judicial gloss on the definitions or conditions; the plain meaning of the text will be applied.

Several subtle features of the instrument can trap the unwary operator. First, all conditions in section 6(1) for the general exception are cumulative; each must be satisfied. A failure on any one condition means the conveyance becomes subject to biosecurity control. For example, even if only domestic persons and domestic goods are on board, if any pest (alive or dead) was transferred from the second conveyance, the exception fails. The term “pest” is not defined in the instrument but is defined in the Act broadly to include any organism that is harmful or potentially harmful. This means that even a dead insect accidentally transferred could defeat the exception. Second, the concept of domestic goods is narrower than “Australian goods”. Goods must have been released from biosecurity control or brought from Australian territory and not subject to an exposed goods order. Goods that are Australian-origin but that have been subject to biosecurity control (e.g., imported goods) may still be under control and therefore not domestic goods. Third, a domestic person must be someone brought from a place in Australian territory. This includes Australian residents returning from overseas only after they have cleared biosecurity and been released. A person who arrived on an international flight and is still under biosecurity control is not a domestic person. The inclusion in the definition of a person who leaves a conveyance temporarily and returns only applies if the person was originally domestic. Fourth, the low-risk goods definition is limited to fuel, petroleum, and canisters of petroleum. Other commonly transferred supplies such as food, water, or chemicals are not low-risk goods, and their presence can defeat the exception unless they are domestic goods. Fifth, the alternative pathway for petroleum industry vessels under s6(1)(f)(ii) requires that the Director of Biosecurity be satisfied the risk level is low before the exposure. This is not a retrospective determination; the operator must seek and obtain the Director’s satisfaction in advance. Sixth, the end-of-journey requirements for aircraft and vessels impose an obligation to proceed to a biosecurity entry point as soon as practicable. This means the exception does not permit the exposed conveyance to go anywhere else before reaching that point; deviating could break the exception. Seventh, section 6(8) creates a hard exclusion for conveyances exposed to a protected zone vessel in the protected zone area. Even if all other conditions are met, the general exception does not apply; only the section 7 exception applies, which is unconditional. This means operators in protected zones cannot rely on the general assessment of risk; they must rely on the specific protected zone exception, which is absolute but requires that the exposure be to a protected zone vessel within the protected zone area. Eighth, the instrument does not provide for any transitional period or grace; it applies immediately upon exposure. An operator who discovers after the fact that a condition was not met cannot retroactively fix it; the conveyance is subject to control from the moment of exposure. Finally, the instrument places no obligation on the Director of Biosecurity to notify operators of any change in circumstances. Operators relying on a low-risk determination must monitor continued satisfaction of the underlying conditions.

Compliance with this instrument is not a matter of filing forms, but of verifying factual conditions and maintaining records. The first step for an operator is to determine whether the conveyance in question is exposed to another conveyance in a way that triggers s192 of the Act. If so, the operator must assess whether the instrument provides an exception. For the general exception under section 6, the operator should systematically check each condition in s6(1). This requires having reliable information about: whether any contamination, infestation, infection, or pests were transferred between the conveyances; whether any person on the exposed conveyance was exposed to a diseased animal or plant on the second conveyance; whether human remains or signs of listed human disease are present on the exposed conveyance; the status of all persons on board (domestic or international) and their intention to disembark in Australia; the nature of all goods on board (domestic goods, low-risk goods, or other); and whether any persons or goods transferred between the conveyances. Practical measures include maintaining a log of all transfers between conveyances, keeping copies of crew and passenger manifests showing dates of arrival in Australia, and ensuring goods are accompanied by documentation proving their release from biosecurity control (e.g., quarantine entry certificates). For second conveyances that are installations or petroleum industry vessels, three compliance pathways exist. Under pathway (i), the operator must ensure that no person who transferred from the second conveyance intends to disembark and that no goods other than low-risk goods transferred are on board. This may require crew rotation restrictions or separate storage for transferred goods. Under pathway (ii), the operator must proactively provide information to the Director of Biosecurity to obtain a determination that the risk level is low. This likely involves submitting details of the second conveyance’s history, biosecurity management, and recent movements. Operators should build relationships with the Department and seek pre-clearance where possible. Under pathway (iii), the operator must have an approved arrangement covering the second conveyance and ensure that the end-of-journey requirements for the exposed conveyance are met. The end-of-journey requirements mean the exposed conveyance must go to a biosecurity entry point at its first point of entry as soon as practicable, or have permission or a direction to land or moor elsewhere. Compliance requires pre-arranging permissions from the Director for non-first point of entry arrivals, or ensuring directions are in place. For the protected zone exception under section 7, compliance is simpler: the operator only needs to confirm that the exposure occurred in the protected zone area and involved a protected zone vessel. No further conditions attach, but the operator must be careful not to mistakenly apply the general exception in the protected zone, as it is excluded by s6(8). In all cases, the operator should document the basis for relying on the exception, as a biosecurity officer may later request evidence. This documentation should include records of when and how the exposure occurred, the status of persons and goods, communications with the Director, and any permissions obtained. Operators who are uncertain should not assume the exception applies; they should either seek a determination from the Director or submit to biosecurity control and go through the normal process. The compliance burden is not trivial, particularly for smaller operators who may lack dedicated biosecurity staff. The cost of maintaining records and seeking determinations should be weighed against the cost of a potential biosecurity inspection if the exception is not used. In economic terms, the instrument offers a benefit for those who can demonstrate low risk, but the administrative overhead may make it less attractive for ad-hoc exposures.