Biosecurity (First Point of Entry—HMAS Albatross Naval Air Station Nowra) Determination 2019

The Biosecurity (First Point of Entry,HMAS Albatross Naval Air Station Nowra) Determination 2019 is a legislative instrument made under subsection 223(1) of the Biosecurity Act 2015. It designates HMAS Albatross Naval Air Station Nowra as a first point of entry for aircraft generally. It also designates the station as a first point of entry for baggage and waste, while stating that the station is not a first point of entry for any other goods. The instrument specifies one biosecurity entry point for baggage at the Air Movements Section ACC. No areas are designated as biosecurity entry points for aircraft. The determination is subject to conditions set out in Part 4 that require owners, lessees and persons responsible for operations at the station to notify the Agriculture Department of specified changes. The instrument commenced on 16 June 2019 in accordance with the commencement table in section 2.

Part 1 contains preliminary provisions. Section 1 names the instrument. Section 2 provides that the whole instrument commences on 16 June 2019 and includes a table with a note that the table relates only to the provisions as originally made and will not be amended to deal with any later amendments. Section 3 states the authority under subsection 223(1) of the Biosecurity Act 2015. Section 4 defines Act as the Biosecurity Act 2015, aircraft as an aircraft as defined by section 9 of the Act that is subject to biosecurity control, goods as goods as defined by section 19 of the Act that are subject to biosecurity control or in relation to which an exposed goods order is in force, and waste as goods as defined by section 19 of the Act that are subject to biosecurity control and intended by the person in charge of the aircraft to be disposed of.

Part 2 addresses first points of entry. Section 5 states that HMAS Albatross Naval Air Station Nowra is a first point of entry for aircraft generally. Section 6 states that HMAS Albatross Naval Air Station Nowra is a first point of entry for baggage and waste, with two notes. Note 1 states that the station is not a first point of entry for any other goods. Note 2 refers to sections 173 and 174 of the Act for prohibited goods and conditionally non-prohibited goods and any determinations made under those sections.

Part 3 addresses biosecurity entry points. Section 7 states that this determination does not designate any area of HMAS Albatross Naval Air Station Nowra as a biosecurity entry point for aircraft and includes a note referring to section 238 of the Act. Section 8 designates the Air Movements Section ACC as a biosecurity entry point for baggage, presented in a table with one item. Note 1 refers to section 147 of the Act for the requirement to bring goods to a biosecurity entry point as soon as practicable. Note 2 states that this determination does not designate biosecurity entry points for other goods for which the station is a first point of entry, so the requirement in section 147 of the Act does not apply to the unloading of those other goods.

Part 4 imposes conditions. Section 9 states that the determination of HMAS Albatross Naval Air Station Nowra as a first point of entry is subject to the conditions in the section. Subsections 9(2) and 9(3) require the owner or lessee to give written notice to the Agriculture Department of changes to the business entity operating the station or a biosecurity entry point at the station, as soon as practicable after becoming aware of the change. Subsections 9(4) and 9(5) require a person or body responsible for carrying out operations to give the Agriculture Department reasonable written notice of proposed changes to procedures providing for biosecurity measures, facilities or amenities for biosecurity officials and human biosecurity officers, procedures that may affect the ability to identify biosecurity risks, procedures that may affect the ability for officials to be informed of identified risks, or procedures for managing other factors that may contribute to or affect the level of biosecurity risk.

The instrument relies on definitions in section 4 that cross-refer to the Biosecurity Act 2015. Aircraft is limited to an aircraft as defined by section 9 of the Act that is subject to biosecurity control. Goods covers items as defined by section 19 of the Act that are subject to biosecurity control or subject to an exposed goods order. Waste is a subset of goods that are subject to biosecurity control and intended by the person in charge of the aircraft to be disposed of. These definitions determine the scope of the first point of entry designation and the biosecurity entry point requirements.

First point of entry is the central concept. Section 5 applies it to aircraft generally at the station. Section 6 applies it to baggage and waste but excludes all other goods. The notes in section 6 direct attention to sections 173 and 174 of the Act for rules on prohibited goods and conditionally non-prohibited goods. This means that even though the station is a first point of entry for aircraft, baggage and waste, the entry of other goods remains governed by those sections and any separate determinations.

Biosecurity entry point is the second key concept. Section 7 confirms that no biosecurity entry point is designated for aircraft, with an express note that the requirement in section 238 of the Act therefore does not apply. Section 8 designates only the Air Movements Section ACC for baggage. The notes in section 8 clarify that goods mentioned in the table must be brought to the designated point as soon as practicable under section 147 of the Act, while the requirement in section 147 does not apply to other goods for which the station is a first point of entry.

The conditions in section 9 introduce ongoing obligations tied to the first point of entry status. These conditions address changes in the business entity operating the station or a biosecurity entry point, and changes to procedures or facilities that relate to biosecurity measures, identification of risks, information flows to officials, or management of factors affecting biosecurity risk levels. The conditions apply separately to owners, lessees and persons or bodies responsible for operations.

The instrument directly affects the owner or owners of HMAS Albatross Naval Air Station Nowra. Subsection 9(2) imposes a duty on an owner to give written notice to the Agriculture Department of changes to the business entity operating the station or a biosecurity entry point at the station. The same duty applies to a lessee under subsection 9(3) if there is a lessee.

Persons or bodies responsible for carrying out operations at the station are affected by subsections 9(4) and 9(5). They must give reasonable written notice of proposed changes to biosecurity-related procedures or facilities. This includes changes to procedures for taking biosecurity measures, facilities or amenities available for biosecurity officials and human biosecurity officers, procedures that may affect identification of biosecurity risks, procedures that may affect informing officials of identified risks, and procedures for managing other factors that may contribute to or affect biosecurity risk levels.

Aircraft operators are affected because the station is a first point of entry for aircraft generally under section 5. Operators bringing aircraft subject to biosecurity control must comply with the first point of entry rules, including any requirements that flow from the absence of designated biosecurity entry points for aircraft under section 7. Operators carrying baggage or waste must bring those goods to the designated biosecurity entry point at the Air Movements Section ACC under section 8 and section 147 of the Act.

Biosecurity officials and human biosecurity officers are affected because the conditions in section 9(5) require notice of changes to facilities or amenities available for them to perform functions or exercise powers under the Act, and changes to procedures that may affect their ability to be informed of identified biosecurity risks. The Agriculture Department receives the required notifications under section 9.

The delegate of the Director of Biosecurity who made the instrument under subsection 223(1) of the Act is affected in the sense that the instrument operates as an exercise of that statutory power. The determination also affects any person dealing with prohibited goods or conditionally non-prohibited goods at the station, as the notes in section 6 refer to sections 173 and 174 of the Act.

The instrument creates duties rather than express rights. The primary duties are the notification obligations in section 9. Subsection 9(2) requires an owner of the station to give the Agriculture Department written notice of a change to the business entity operating the station or a biosecurity entry point as soon as practicable after becoming aware that the change has occurred or will occur. Subsection 9(3) imposes the same duty on a lessee.

Subsection 9(4) requires a person or body responsible for carrying out operations to give the Agriculture Department reasonable written notice of a proposed change of the kind listed in subsection 9(5). The listed changes cover procedures providing for biosecurity measures to manage the level of biosecurity risk, facilities or amenities for biosecurity officials and human biosecurity officers, procedures that may affect the ability to identify biosecurity risks, procedures that may affect the ability for officials to be informed of identified risks, and procedures for managing other factors that may contribute to or affect the level of biosecurity risk.

The designation in sections 5 and 6 creates the practical ability for aircraft generally to use the station as a first point of entry and for baggage and waste to be handled there, subject to the conditions. Section 8 creates a specific duty in conjunction with section 147 of the Act: goods mentioned in the table (baggage) must be brought to the Air Movements Section ACC as soon as practicable after unloading. The notes in section 8 confirm that the section 147 requirement does not apply to other goods for which the station is a first point of entry.

Section 7 confirms the absence of any duty under section 238 of the Act to bring aircraft to a biosecurity entry point, because no such point is designated. The notes in section 6 remind users that sections 173 and 174 of the Act continue to apply to prohibited goods and conditionally non-prohibited goods, creating duties to comply with those provisions when bringing goods into the station.

The source text does not prescribe penalties or enforcement mechanisms within the instrument itself. The determination is made subject to the conditions in section 9, and the first point of entry status is stated to be subject to those conditions. Non-compliance with the notification requirements in section 9 could therefore affect the continued operation of the designation, although the instrument does not specify the consequences.

Enforcement occurs through the Biosecurity Act 2015. The notes in sections 6 and 8 refer to sections 147, 173, 174 and 238 of the Act, which impose requirements on the movement of goods and aircraft. Failure to bring baggage to the designated biosecurity entry point at the Air Movements Section ACC as soon as practicable would engage section 147 of the Act. The absence of designated biosecurity entry points for aircraft under section 7 means the requirement in section 238 does not apply, but other provisions of the Act governing biosecurity control of aircraft remain relevant.

The conditions in section 9 require written notice to the Agriculture Department. The instrument does not state what action the Department may take upon receiving notice or upon failure to give notice. The commencement table in section 2 notes that the table relates only to the provisions as originally made and will not be amended to deal with any later amendments, indicating that any future modification of the conditions or the designation would require a separate instrument.

The instrument interacts primarily with the Biosecurity Act 2015. It is made under subsection 223(1) of that Act and uses definitions from sections 9 and 19 of the Act. Section 4 of the instrument adopts those definitions for aircraft, goods and waste. The notes in section 6 refer to sections 173 and 174 of the Act, which deal with prohibited goods and conditionally non-prohibited goods. The notes in section 8 refer to section 147 of the Act, which requires goods to be brought to a biosecurity entry point as soon as practicable. Section 7 refers to section 238 of the Act, which requires aircraft to be brought to a biosecurity entry point if one is designated.

The interaction with section 147 is limited by the designation in section 8. Only baggage must be brought to the Air Movements Section ACC. For waste, which is a first point of entry good under section 6, no biosecurity entry point is designated, so the section 147 requirement does not apply. For aircraft, the absence of any biosecurity entry point under section 7 means the section 238 requirement does not apply.

The instrument may have a connection to the Aviation Transport Security Act 2004 in relation to cargo entering Australian territory, as that Act contains provisions allowing the Minister to prohibit entry of certain kinds of cargo. However, the determination focuses on biosecurity entry points and does not address aviation security prohibitions. The related retrieval context includes section 65B of the Aviation Transport Security Act 2004, which permits prohibition of specified kinds of cargo, but this determination does not engage that power and remains confined to biosecurity designations under the Biosecurity Act 2015.

The instrument has limited interaction with the Maritime Transport and Offshore Facilities Security Act 2003. That Act contains provisions on establishing on-board security zones on regulated Australian ships under sections 110 and 112, and definitions in section 10. Because the determination concerns an air station rather than a ship, the connection is indirect and arises only if operations at the station involve regulated ships or if security considerations overlap with biosecurity measures notified under section 9(5) of the determination.

The South Pacific Nuclear Free Zone Treaty Act 1986 and the Environment Protection (Sea Dumping) Act 1981 appear in the related retrieval context but do not directly interact with this determination. The determination does not address visits by foreign ships or aircraft carrying nuclear explosive devices, nor does it address sea dumping or artificial reefs.

The source text records that the instrument was made on 7 June 2019 by Dean Merrilees, Assistant Secretary, Compliance Division, Department of Agriculture, as delegate of the Director of Biosecurity. Section 2 states that the whole instrument commences on 16 June 2019. The commencement table includes a note that the table relates only to the provisions of this instrument as originally made and will not be amended to deal with any later amendments of this instrument. No amendments are recorded in the provided text.

The absence of any amendment history in the source text indicates that the determination remains in the form in which it was originally made. Any future changes to the first point of entry designation, the biosecurity entry point for baggage, or the conditions in section 9 would require a new instrument or an amending instrument under the Biosecurity Act 2015 and the Legislation Act 2003. The note in the commencement table signals that the published version will not automatically reflect amendments through updates to the table itself.

The instrument was made to exercise the power in subsection 223(1) of the Biosecurity Act 2015 to determine first points of entry. The text does not set out the reasons for selecting HMAS Albatross Naval Air Station Nowra or for limiting the goods designation to baggage and waste. The conditions in section 9 ensure that the Agriculture Department receives notice of operational changes that could affect biosecurity risk management at the station.

The source text does not reference any court challenges or controversies relating to this determination. No cases are named in the instrument or in the related retrieval context that concern this specific determination. The instrument operates as a legislative instrument made by delegate under subsection 223(1) of the Biosecurity Act 2015 and is therefore subject to the general framework for judicial review of administrative decisions and legislative instruments.

The conditions in section 9 require written notice of changes to the business entity operating the station or a biosecurity entry point, and reasonable notice of proposed changes to biosecurity procedures and facilities. Failure to provide such notice could give rise to administrative consequences under the Biosecurity Act 2015, but the instrument itself does not create a private right of action or specify review mechanisms. The notes in sections 6 and 8 refer to sections 147, 173, 174 and 238 of the Act, which may be the subject of compliance action, but no disputes concerning those interactions are recorded in the source text.

The designation of a single biosecurity entry point for baggage at the Air Movements Section ACC, combined with the absence of entry points for aircraft and other goods, creates a narrow operational scope. This narrow scope may reduce the likelihood of broad challenges, but the source text provides no information on any actual or potential proceedings.

One gotcha is the limited scope of the goods designation. Section 6 states that the station is a first point of entry for baggage and waste only, with Note 1 expressly stating that it is not a first point of entry for any other goods. Operators must therefore check sections 173 and 174 of the Act and any determinations made under those sections before bringing other goods to the station.

A second gotcha is the absence of biosecurity entry points for aircraft. Section 7 states that this determination does not designate any area as a biosecurity entry point for aircraft and includes a note that the requirement in section 238 of the Act therefore does not apply. Aircraft may land at the station under the first point of entry designation in section 5, but there is no designated area to which they must be brought.

A third gotcha concerns waste. Waste is defined in section 4 as goods subject to biosecurity control that are intended to be disposed of. While the station is a first point of entry for waste under section 6, Note 2 in section 8 states that no biosecurity entry point is designated for other goods, so the section 147 requirement does not apply to waste. Operators must still manage waste in accordance with the general biosecurity control provisions of the Act.

A fourth gotcha is the breadth of the notification conditions in section 9(5). The required notices cover not only changes to the business entity but also changes to procedures for biosecurity measures, facilities for officials, identification of risks, informing officials of risks, and management of other factors affecting biosecurity risk. The obligation applies to proposed changes and requires reasonable notice, which is not defined in the instrument.

A fifth gotcha is the specific location of the biosecurity entry point for baggage. Section 8 designates only the Air Movements Section ACC. Goods must be brought there as soon as practicable under section 147 of the Act. Any change to the operation of that area would trigger the notification requirements in section 9(2) or 9(3) if it involves a change to the business entity operating the biosecurity entry point.

To comply, owners and lessees of HMAS Albatross Naval Air Station Nowra must monitor for changes to the business entity operating the station or a biosecurity entry point and provide written notice to the Agriculture Department as soon as practicable after becoming aware of the change, in accordance with subsections 9(2) and 9(3). Persons or bodies responsible for operations must give reasonable written notice of any proposed change listed in subsection 9(5), including changes to biosecurity measures procedures, facilities for biosecurity officials and human biosecurity officers, risk identification procedures, information procedures for officials, or procedures for managing other biosecurity risk factors.

Aircraft operators must treat the station as a first point of entry for aircraft generally under section 5. Because no biosecurity entry point is designated for aircraft under section 7, the section 238 requirement of the Act does not apply. Operators carrying baggage must bring it to the Air Movements Section ACC as soon as practicable after unloading, in accordance with section 8 and section 147 of the Act. Operators carrying waste must manage it in accordance with the biosecurity control provisions of the Act, noting that no biosecurity entry point is designated for waste.

Operators must not bring goods other than baggage and waste to the station without checking compliance with sections 173 and 174 of the Act and any determinations made under those sections, as required by Note 1 in section 6. The station is not a first point of entry for any other goods.

To maintain the first point of entry status, all relevant parties should keep records of notifications given under section 9 and ensure that changes to procedures or facilities do not undermine the ability to manage biosecurity risks or to provide information to officials. The Agriculture Department should be contacted in writing for any proposed operational changes that fall within subsection 9(5). Compliance with the conditions in Part 4 is necessary to preserve the designation made under sections 5 and 6.