Biosecurity (First Point of Entry—Gold Coast Broadwater) Determination 2019

The instrument uses a short glossary of operative terms and relies on defined terms drawn from the Biosecurity Act 2015. It defines “Act” as the Biosecurity Act 2015 (s4). It imports the Act’s definitions of “vessel” and “goods”, stating that “goods” is used as defined in s19 of the Act and “vessel” as defined in s9 of the Act (s4 and the accompanying notes). The instrument creates or clarifies five operational concepts.

First point of entry. The instrument makes Gold Coast Broadwater a first point of entry for non‑commercial vessels and for two narrow classes of goods carried on non‑commercial vessels: non‑commercial vessel baggage and non‑commercial vessel waste (ss5-6). That term is statutory within the Act; the Determination’s effect is to tag Gold Coast Broadwater with that statutory status for those classes.

Biosecurity entry point. The Determination designates particular physical areas within the port as “biosecurity entry points”: Super Yacht Berth 1-5 for non‑commercial vessels and for the specified goods (ss7-8). The instrument separates the legal concept of a first point of entry from the on‑the‑ground biosecurity entry point locations that operationalise where vessels and goods must be presented for biosecurity purposes.

Classes of vessel and goods. The instrument is tightly scoped. Only non‑commercial vessels are covered as vessels (s5). Only non‑commercial vessel baggage and non‑commercial vessel waste are covered as goods (s6). The instrument explicitly states that the Gold Coast Broadwater is not a first point of entry for other vessels or for other goods (notes to ss5-6).

Operational obligations tied to arrival. The instrument highlights linked statutory obligations in the Act for how vessels and goods are to be handled on arrival: vessels should be brought to a biosecurity entry point as soon as practicable (s7 note, cross‑referring to s246 of the Act), and goods unloaded from arriving vessels must be brought to a biosecurity entry point as soon as practicable (s8 note, cross‑referring to s147 of the Act). Those reminders anchor the practical effect of the berth designations.

Conditional designation subject to notice. The Determination conditions its designation on notification and consultative obligations about changes to operations and operators. Owners and lessees must give written notice to the Agriculture Department when they become aware of changes to the business entity operating the port or a biosecurity entry point (s9(2)-(3)). Persons or bodies responsible for operations must give reasonable notice of proposed changes of enumerated kinds (s9(4)-(5)). The enumerated changes are explicitly about procedures for biosecurity measures, facilities and amenities for officials, identification and communication of biosecurity risks, and other procedures affecting biosecurity risk (s9(5)(a)-(e)).

Notes and cross‑references. The Determination contains several notes that reference parallel or consequential obligations in the Biosecurity Act 2015 (see notes to ss6, 7 and 8), thereby signalling that the Determination’s legal force operates alongside and depends on the Act’s broader framework.

The Determination enumerates categories of parties that are directly affected, and it creates indirect effects for others who interact with the port. Directly affected parties, by the instrument’s text, are:

• Owners of Gold Coast Broadwater, or each owner if multiple (s9(2)). They have a positive obligation to give written notice to the Agriculture Department if they become aware that there has been, or will be, a change to the business entity operating Gold Coast Broadwater or a biosecurity entry point at Gold Coast Broadwater.

• Lessees of Gold Coast Broadwater, if any, or each lessee where there are more than one (s9(3)). They have the same notice obligation as owners under s9(3).

• Persons or bodies responsible for carrying out operations at Gold Coast Broadwater. They must give the Agriculture Department reasonable written notice before making proposed changes of particular kinds that could affect biosecurity risk or the capacity of officials to exercise powers or be informed of risks (s9(4)-(5)).

• Non‑commercial vessel masters and those in charge of non‑commercial vessels arriving at Gold Coast Broadwater. The Determination designates the port as a first point of entry for non‑commercial vessels (s5) and specifies that Super Yacht Berth 1-5 are the biosecurity entry points for those vessels (s7). The instrument’s notes explicitly remind that an arriving vessel must be brought to a biosecurity entry point for the vessel at that port as soon as practicable (s7 note, cross‑ref to s246 of the Act). Practically, masters of non‑commercial vessels and their operators must direct their vessels to those berths for any required biosecurity processes.

• Persons unloading goods from non‑commercial vessels. The instrument designates the same berths as entry points for non‑commercial vessel baggage and waste (s8). The instrument’s note reiterates the Act’s requirement that goods unloaded must be brought to a biosecurity entry point as soon as practicable (s8 note, cross‑ref to s147 of the Act). Therefore, crew, owners or agents responsible for unloading or handling baggage and waste are directly implicated.

Indirectly affected parties include biosecurity officials and human biosecurity officers who will operate at the designated berths. The instrument’s conditions specifically reference changes to facilities or amenities available at Gold Coast Broadwater for biosecurity officials and human biosecurity officers to perform functions or exercise powers (s9(5)(b)). Operators of the port and contractors who provide logistical services at the Super Yacht Berths will also be affected because the instrument constrains where biosecurity activities must occur, and requires notice of changes that could affect identification, communication or management of biosecurity risks (s9(5)(a), (c)-(e)).

The instrument’s scope excludes commercial vessels and goods other than non‑commercial vessel baggage and waste. The Determination explicitly states Gold Coast Broadwater is not a first point of entry for any other vessels or goods (notes to ss5 and 6). Consequently, commercial vessel operators, freight forwarders handling commercial cargo, and other classes of goods remain outside the specific designations in this Determination.

The Determination imposes a small set of specific duties and, by implication, creates positioning rights for biosecurity officials by designating where they should carry out entry checks. The primary legal duties set by the instrument are notification and pre‑change notice obligations upon owners, lessees and operational managers at Gold Coast Broadwater, and the practical duty for arriving non‑commercial vessels and certain goods to be brought to the designated berths.

Notification duties. Owners must give written notice to the Agriculture Department as soon as practicable after becoming aware that there has been, or will be, a change to the business entity operating Gold Coast Broadwater or a biosecurity entry point at the Broadwater (s9(2)). Where there are multiple owners, any one owner may discharge this duty on behalf of the owners (s9(2)). Lessees (if any), or any one lessee where there are multiple lessees, have the same obligation (s9(3)). Those duties are framed in terms of awareness: the trigger is the moment an owner or lessee becomes aware that the change has occurred or will occur.

Pre‑change notice duties. A person or body responsible for carrying out operations at Gold Coast Broadwater must give the Agriculture Department reasonable written notice of proposed changes that fall within the set listed in s9(5) (s9(4)). The listed changes are narrowly defined to concern biosecurity measures, facilities and amenities for officials, identification and communication of biosecurity risks, and procedures managing other contributory factors to biosecurity risk (s9(5)(a)-(e)).

Movement to designated entry points. The instrument designates Super Yacht Berth 1-5 as the biosecurity entry points for non‑commercial vessels and for non‑commercial vessel baggage and waste (ss7-8). The Determination makes those berths the legal loci for presentation of these vessels and goods. The instrument’s notes remind the reader that, under the Act, arrived vessels must be brought to a biosecurity entry point as soon as practicable and goods unloaded must be taken to a biosecurity entry point as soon as practicable (s7 note; s8 note). The obligation to bring vessels and goods to the designated berths is therefore effectively operationalised by the instrument’s spatial designations combined with the Act’s movement requirements.

Rights and implied authorities. The Determination does not itself create new powers for biosecurity officials. It does, however, alter the spatial scope where officials may exercise powers and perform functions under the Act by designating the berths as the biosecurity entry points (ss7-8 and the notes). The instrument also gives the Agriculture Department an information‑receiving role; owners, lessees and operational managers must provide written notices to the Department under the conditions in s9(2)-(4). This creates an ongoing information flow the Department can use to manage the port’s entry point status and to plan for operational resourcing at the designated berths.

Limitations and exclusions. The instrument is explicit about who is excluded from the designation. It states that Gold Coast Broadwater is not a first point of entry for any vessels other than non‑commercial vessels, and not a first point of entry for any goods other than non‑commercial vessel baggage and waste (notes to ss5-6). Those exclusions constrain the scope of duties that flow from the Determination to the listed classes only.

Form and timing. The instrument requires notices to be in writing (s9(2)-(4)) and, in the case of owners and lessees, to be provided “as soon as practicable after becoming aware” (s9(2)-(3)). For proposed changes by operators, the notice must be “reasonable” in advance (s9(4)). The content and administrative details that would make a notice compliant, and the consequences of non‑compliance, are not specified in the Determination itself.

The Determination itself contains no express penalty provisions or criminal sanctions. It does, however, situate duties and operational requirements within the broader enforcement architecture of the Biosecurity Act 2015 by invoking the Act and by referencing statutory obligations for vessels and goods to be brought to biosecurity entry points “as soon as practicable” (s3, notes to ss7 and 8). The immediate legal effect is therefore that the Determination prescribes locations and procedural notice duties, while enforcement and penalties, where applicable, would fall to the Biosecurity Act and its enforcement mechanisms rather than to the Determination’s text.

The instrument’s express cross‑references and ministerial locus of authority point to the Act as the statutory source of enforcement. The Determination is made under subsection 229(1) of the Biosecurity Act 2015 (s3). It also notes that the obligation to bring an arrived vessel to a biosecurity entry point as soon as practicable is contained in the Act (s7 note referencing s246), and that goods unloaded must be taken to an entry point as soon as practicable (s8 note referencing s147). Because the Determination does not itself create offences, readers must look to the Biosecurity Act 2015 for the legal consequences of failing to comply with those Act‑based movement obligations and for any sanctions attaching to failure to comply with regulatory requirements deriving from the Act.

The Determination does create compliance duties that could be relevant to administrative enforcement, such as the written notice obligations in s9. The instrument does not specify the procedural steps that the Agriculture Department will take in response to non‑receipt of notices, nor the remedial or sanctioning options available to the Department. The absence of specified penalties in the Determination means that any enforcement action against a person who fails to provide required notices, or who fails to bring vessels or goods to the designated berths, would need to be grounded in the Biosecurity Act or associated regulations. The Determination’s reliance on the Act (s3) implies that enforcement is intended to be effected through the Act’s established mechanisms, but the Determination itself does not spell out those mechanisms or any administrative discretion for civil or remedial responses.

For practical purposes, entities dealing with the port should therefore treat the Determination as creating binding duties to inform the Department and to present vessels and specified goods at the designated berths, while recognising that the legal consequences of breach are governed by the Act and its enforcement framework rather than by the Determination’s text.

This instrument is explicitly made under the Biosecurity Act 2015 (s3). It therefore operates as a subordinate instrument within the Act’s statutory framework. The Determination expressly uses and depends on definitions from the Act: “vessel” and “goods” are used as defined in ss9 and 19 of the Act respectively, and the instrument defines several terms by cross‑reference to the Act (s4). Those cross‑references mean that the Determination’s practical scope is linked directly to the Act’s substantive definitions and to the Act’s movement and handling obligations that the Determination’s notes reference.

The instrument’s notes point readers to specific Act provisions relevant to the operational consequences of the designation. It notes that Gold Coast Broadwater being a first point of entry for particular goods must be read with sections 173 and 174 of the Act, which deal with prohibited goods and conditionally non‑prohibited goods (s6 note). It also notes that vessels must be brought to a biosecurity entry point as soon as practicable under s246 of the Act (s7 note), and that goods unloaded must be brought to a biosecurity entry point under s147 of the Act (s8 note). The Determination therefore functions as a spatial and procedural adjunct to the Act: it specifies the location where Act‑authorised powers, controls and movement obligations will be operationalised for the relevant classes of vessels and goods.

Since the Determination is a delegated instrument under the Act, it must be read and applied in the context of any other determinations made under the Act and the Act’s regulations. The instrument itself contains a commencement table and a note indicating that the table relates only to the instrument as originally made and will not be amended in published versions to deal with later amendments (s2). That indicates the Determination is treated in the Department’s publication system as a static instrument; any subsequent changes to the Act or to related determinations would affect its operation only to the extent permitted by the Act.

The Determination does not purport to displace or alter other statutory duties outside the Act; rather, it defines where and for whom the Act’s biosecurity entry point and first point of entry mechanisms will apply at Gold Coast Broadwater. It does not address, for example, port safety regulation, navigation rules, maritime security laws or local government controls, and it does not specify how conflicts between port management arrangements and Act requirements will be resolved. It does, however, require owners, lessees and operational managers to give written notice to the Agriculture Department about changes to the business entity operating the port or changes to operational procedures or facilities that may affect biosecurity risk (s9(2)-(5)). Those notice duties create a point of administrative interface between the port’s commercial arrangements and the Act’s biosecurity administration.

Because the Determination refers to the roles of biosecurity officials and human biosecurity officers (s9(5)(b)-(d)), its operation is also coupled to the Act’s personnel and enforcement architecture. The instrument does not define the statutory powers of those officials; those remain in the Act. The Determination’s role is therefore to fix locations and operational information flows that the Act’s officers will use to exercise their powers and perform their functions.

The Determination contains an internal commencement record and a note about how that record is treated in publication. The instrument records its signature date and the responsible officer, Dean Merrilees, Assistant Secretary, Compliance Division, Department of Agriculture (signature block). It states that the whole of the instrument commenced on 16 June 2019 (s2 and the commencement table). The commencement table is accompanied by a note that the table relates only to the instrument as originally made and will not be amended to deal with later amendments of the instrument (s2 note). It also contains a further administrative note that any information that appears in column 3 of the table is not part of the instrument and may be edited in published versions (s2(2)). Those provisions indicate how the instrument’s publication metadata is to be treated but do not record any substantive amendments.

Beyond the initial making and commencement entries, the Determination contains no textual record of subsequent amendments. The instrument does not include a history of prior versions or a schedule of amendments. It therefore appears, on its face, as a stand‑alone instrument made on 7 June 2019 and commencing on 16 June 2019. The instrument’s note about not amending the commencement table for later amendments (s2) suggests that any future amendments to the Determination, if made, would not be annotated in the original commencement table; rather, any such amendments would be recorded separately in the statutory instruments register or equivalents.

Because the Determination is made under subsection 229(1) of the Biosecurity Act 2015 (s3), any amendment or repeal would need to be effected by an instrument made under the Act’s delegated‑legislation powers. The Determination itself does not establish an internal amendment mechanism. The instrument’s conditions (s9) create ongoing notification obligations but do not constitute textual amendment of the Determination itself. Practitioners seeking the current legal status or any amendments would therefore need to consult the statutory instruments register or the Department of Agriculture’s current releases to confirm whether later delegations, replacements, or revocations have been made.

In short, the text shows a single making and commencement entry in June 2019 and contains administrative notes governing how the instrument’s publication metadata is to be handled. The Determination does not record any subsequent amendments within its own text.

The Determination includes no references to litigation, judicial review, or adjudicated disputes. It is a delegated instrument that designates a port and specific berths for biosecurity purposes and sets notice conditions; the instrument itself does not record any past or ongoing legal proceedings, and it contains no schedule of cases, appeals, or litigation outcomes.

Because the instrument is part of the Biosecurity Act 2015 framework (s3), any legal disputes about its validity, interpretation, compliance or effect would be litigated under the administrative law and statutory frameworks applicable to instruments made under that Act. The Determination does not identify or reference any disputes, nor does it memorialise any prior adjudication about the choice of Gold Coast Broadwater, the selection of Super Yacht Berths 1-5, or the scope of goods and vessels covered.

Given the Determination’s operational features, potential future litigation or review could plausibly relate to matters such as whether particular movements to the berths complied with “as soon as practicable” obligations, whether a proposed operational change fell within the list at s9(5) requiring reasonable notice, or whether an owner or lessee had “become aware” of a change triggering the written notice duties in s9(2)-(3). The Determination itself, however, does not provide procedural detail about dispute resolution or administrative remedies, and contains no text about appeals or internal review of decisions connected to its application. Any litigated issue would therefore require reference to the Biosecurity Act and the general law for judicial review or statutory appeals.

Practitioners should note that the absence of litigation history in the instrument means there is no interior record within the Determination itself to guide interpretation based on prior adjudication. For authoritative guidance on contested points arising from the Determination’s application, advisers would need to consult the Biosecurity Act, any relevant regulations or determinations, and any external case law or administrative decisions that address similar delegated instruments. The Determination’s text alone does not furnish that litigation history.

Several features of the Determination can produce practical traps if overlooked. The following points are drawn directly from the instrument’s text and from the concrete interactions that those provisions create.

1. Narrow scope of the designation is easy to miss. The Determination applies only to non‑commercial vessels and to non‑commercial vessel baggage and waste (ss5-6). Notes explicitly state Gold Coast Broadwater is not a first point of entry for any other vessels or goods (notes to ss5-6). Parties who assume the designation covers commercial arrivals or commercial cargo would be mistaken. The instrument’s limited classes will matter for operational planning and for any obligations that rely on the designation.

2. Specific berths are mandated. Super Yacht Berth 1-5 are the designated biosecurity entry points for the covered vessels and goods (ss7-8). Arriving non‑commercial vessels and their baggage/waste should be directed to those berths. The instrument’s notes remind users of the Act’s “as soon as practicable” expectation for presenting vessels and goods at entry points (s7 note; s8 note). Practically, failure to bring a vessel to one of those specified berths could mean a breach of the Act’s movement obligations, as the Determination narrows the port locations that qualify as entry points.

3. Written notice form is required for owners and lessees. The duty in s9(2)-(3) requires written notice to the Agriculture Department “as soon as practicable after becoming aware” of a change to the business entity operating the port or a biosecurity entry point. The Determination does not define “as soon as practicable” or prescribe notice content or delivery address. That lacuna creates administrative uncertainty about timing and form. When multiple owners or lessees exist, any one owner or lessee may give the notice (s9(2)-(3)), which could create coordination issues among co‑owners if they rely on others to notify.

4. “Reasonable notice” for proposed operational changes lacks a hard deadline. The person or body responsible for operations must give the Agriculture Department reasonable notice of proposed changes of the kinds listed in s9(5). The Determination does not quantify “reasonable”. Operators seeking certainty will need to engage with the Department or establish internal protocols to define suitable lead times for different kinds of changes.

5. The list of proposed changes that require notice is focused but broad in effect. The enumerated matters in s9(5)(a)-(e) cover changes to procedures for biosecurity measures, facilities/amenities for officials, procedures affecting the ability to identify or inform officials of risks, and other procedures affecting biosecurity risk. The concept of “any other factors that may contribute to, or affect, the level of biosecurity risk” in s9(5)(e) is open‑ended and could capture a wide range of operational changes. Operators may face uncertainty over what must be notified.

6. No operational details for how biosecurity officials will use the berths. The Determination designates the berths but does not specify what facilities will be provided, what arrangements must be in place to enable officials on‑site, or who pays for on‑site amenities. Section 9(5)(b) references facilities or amenities for biosecurity officials, but the Determination only requires notice of changes to such facilities, not that the facilities meet specified standards. That leaves room for negotiation or dispute about whether facilities are adequate.

7. Interaction with Act obligations but no penalty text in the Determination. The instrument references the Act’s movement obligations for vessels and goods (s7 and s8 notes) but does not itself specify enforcement mechanisms or penalties. Parties must look to the Act for consequences of non‑compliance. The Determination therefore changes spatial and procedural duties without elaborating enforcement detail.

8. Ownership and operational changes are reportable triggers. Transfers of business entities or operators, or changes in operational procedures affecting biosecurity risk, give rise to notice duties. Parties involved in transactions, leases, or outsourcing of port services need to factor in these duties into due diligence and contractual allocation of notification responsibilities.

9. Publication metadata not substantive. The commencement table contains a column that is “not part of this instrument” and the table is said to relate only to the instrument as originally made (s2(2)). Users should not rely on the column 3 information as legally operative, and should check the formal instrument text for binding content.

10. Potential for coordination failure. Where multiple owners or lessees exist, any single owner or lessee may supply required notices (s9(2)-(3)). That feature avoids paralysis but creates potential for disputes among co‑owners about whether notifications were properly made. Contracts among owners and lessees should clarify who will discharge the statutory notice duties to the Department.

These are not speculative criticisms; they are concrete operational and legal features of the Determination as written. Each creates a potential compliance or operational risk that practitioners should address through internal protocols, contractual allocation of responsibilities, or dialogue with the Agriculture Department.

Compliance under this Determination requires doing three discrete things: ensure vessels and goods subject to the designation are presented at the designated berths, meet the written notice duties when changes occur, and provide reasonable pre‑change notice for proposed operational changes of the kinds listed in s9(5). The instrument’s text is the only source of obligations; implement the following concrete steps to reduce compliance risk.

1. Identify the covered classes. Confirm whether the vessels or goods you manage fall within the Determination’s scope. The designation applies only to non‑commercial vessels and to non‑commercial vessel baggage and waste (ss5-6). Establish an internal checklist or classification protocol so that arrival operations staff can determine quickly whether a vessel or goods fall within these definitions.

2. Direct appropriate arrivals to Super Yacht Berth 1-5. For any arriving non‑commercial vessel subject to biosecurity control, ensure the vessel is brought to one of Super Yacht Berth 1-5, the designated biosecurity entry points (s7). For non‑commercial vessel baggage and waste unloaded from arriving vessels, ensure those goods are brought to the same berths (s8). Train masters, agents and berth allocation staff to reserve and allocate those berths for biosecurity presentation when required.

3. Build “as soon as practicable” practices. The Determination’s notes reference statutory movement obligations requiring vessels and goods to be brought to a biosecurity entry point as soon as practicable (s7 note; s8 note). Because the Determination does not define “as soon as practicable”, develop an internal policy that sets operational timelines that are defensible and documented,for example, a time window from arrival to berthing, and from unloading to presentation of goods. Record decisions and reasons for deviations to create an audit trail.

4. Implement written notice processes for owners and lessees. Owners and lessees must provide written notice to the Agriculture Department as soon as practicable after becoming aware of a change to the business entity operating Gold Coast Broadwater or a biosecurity entry point (s9(2)-(3)). Assign responsibility in ownership and lease contracts for who will send such notices, and create escalation procedures to ensure notices are sent promptly when changes occur. Maintain a register of ownership and operator structures and update it on any contemplated transfer, sale or corporate restructure so that awareness and notification triggers are visible.

5. Create a pre‑change engagement protocol for operators. Persons or bodies responsible for operations must give reasonable written notice of proposed changes that would affect biosecurity procedures, facilities, risk identification, communication routes to officials, or other factors affecting biosecurity risk (s9(4)-(5)). Because “reasonable notice” is unspecified, engage early with the Department where possible and document the information exchanged. Make a conservative assessment of lead times for different classes of changes and set internal deadlines to meet or exceed a conservative “reasonable” window.

6. Maintain records of notices and communications. All written notices to the Agriculture Department under s9 should be recorded, with dates, the name of the sender, and a description of the change being notified or proposed. Keep copies of delivery confirmations. Where multiple owners or lessees exist, document which owner or lessee gave notice and how responsibility was allocated.

7. Coordinate facilities and amenities planning with the Department. The Determination highlights changes to facilities or amenities for biosecurity officials as a notifiable category (s9(5)(b)). Where feasible, consult with the Agriculture Department when planning infrastructure changes at the Super Yacht Berths that could affect officials’ ability to perform functions on site. Advance engagement can reduce the risk that the Department will object to arrangements at the time an arrival occurs.

8. Contractual allocation in transactions. Where ownership, lease, or operational responsibilities are being transferred, include express contractual obligations to notify the Agriculture Department as required by s9(2)-(4). Allocate who bears the cost and responsibility for making any physical or procedural changes required to meet biosecurity needs at the berths.

9. Training and standard operating procedures. Prepare SOPs for masters, agents, port operators and berth staff that capture the designation rules, the requirement to use Super Yacht Berth 1-5, notice obligations, and recordkeeping. Include decision trees for classifying vessels and goods, handling exceptions, and escalating novel situations to legal or compliance teams.

10. Engage the Department for clarification. When in doubt about whether a proposed change falls within s9(5), or what timing constitutes “reasonable notice” or “as soon as practicable”, obtain written clarification from the Agriculture Department. Document such clarifications and any agreed timelines to use as an administrative record.

Follow these steps to operationalise the Determination’s terse legal requirements into practical procedures. The Determination prescribes where and for which classes of vessel and goods the Act’s entry point mechanisms operate, and prescribes written notice and advance notice duties; good compliance is documentary, conservative on timing, and proactive in engagement with the Department.