Biosecurity (First Point of Entry—Port of Ardrossan) Determination 2019

The Determination uses a small set of statutory concepts, drawn from the Biosecurity Act 2015 and the Biosecurity Regulation 2016 as defined in the instrument (s 4). Key concepts in the Determination, and how the instrument treats them, are:

• First point of entry. The instrument declares that "Port of Ardrossan is a first point of entry" for specified vessels and for specified baggage (ss 5-6). The designation is narrowly framed. Note 1 to s 6 expressly says Port of Ardrossan is not a first point of entry for any other goods. The term is used in the Act and the instrument relies on those statutory meanings (s 4 note refers to s 9 of the Act).

• Biosecurity entry point. The instrument designates particular areas within the port as biosecurity entry points for the specified vessels and goods (ss 7-8). The tabular format pairs classes (column 1) with the designated area (column 2). For this instrument the only designated area is Viterra Ardrossan Wharf for vessels other than non‑commercial and passenger vessels, and for baggage of those vessels.

• Vessel and goods. The instrument adopts the Act’s definitions for vessel and goods (s 4). It explicitly excludes non‑commercial vessels and passenger vessels from the first point of entry designation for vessels (s 5) and excludes baggage from non‑commercial vessels and passenger vessels from the baggage first point of entry designation (s 6). The instrument notes that the Biosecurity Regulation 2016 defines non‑commercial vessel (s 4).

• Obligations of owners, lessees and operators. Part 4 sets conditions on the designation. Owners or lessees must provide written notice to the Agriculture Department "as soon as practicable" after becoming aware of an actual or future change to the business entity operating the port or a biosecurity entry point (s 9(2)-(3)). Persons or bodies responsible for operations must give the Agriculture Department "reasonable notice" in writing before proposed changes to procedures, facilities, or practices that may affect biosecurity measures or the ability to identify or communicate biosecurity risks (ss 9(4)-(5)). The instrument enumerates the kinds of changes that trigger the notice requirement, including changes to procedures for biosecurity measures, changes to facilities or amenities for officials, and changes that affect the ability to identify or inform officials of biosecurity risks (s 9(5)(a)-(e)).

• Conditioned designation. The designation as a first point of entry is explicitly made subject to the conditions in s 9(1). That creates a conditional statutory status: the port’s designation continues only while these notice obligations are met in the terms stated.

These concepts combine a point‑of‑entry mapping function with information‑flow and facility‑capability conditions intended to maintain the port’s usefulness for biosecurity functions. The instrument leaves the operational detail,what is "reasonable notice" or "as soon as practicable",unsettled, using the ordinary language thresholds rather than numeric time limits.

This Determination imposes duties and creates expectations that directly attach to a small set of identified actors and indirectly affect a broader group. The instrument specifies the following categories of affected parties in text:

• Owners of Port of Ardrossan. Section 9(2) places an obligation on "the owner (or, if there is more than one owner, an owner)" to 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 the port or a biosecurity entry point. The drafting means that where there are multiple owners only one owner need satisfy the notice obligation, but that the obligation nonetheless sits with any owner who becomes aware.

• Lessees of Port of Ardrossan. Section 9(3) mirrors the owner obligation for lessees: "the lessee (if any) (or, if there is more than one lessee, a lessee)" must give similar written notice as soon as practicable upon becoming aware of the same types of changes.

• Persons or bodies responsible for carrying out operations at Port of Ardrossan. Section 9(4) requires that such persons or bodies must give the Agriculture Department reasonable written notice of proposed changes of the types listed in s 9(5). The instrument does not define "person or body that is responsible for carrying out operations", so the obligation will attach to whoever undertakes operational responsibilities at the port.

• Vessel operators and masters. While the instrument does not create direct new duties for masters or vessel operators, its designations for vessels and baggage (ss 5-6, ss 7-8 tables) control where affected vessels and their baggage must be brought for biosecurity processing, referencing the Act’s timing obligations (notes to ss 7-8: see ss 246 and 147 of the Act). Those operational constraints will affect commercial vessel operators and their movements while in Port of Ardrossan.

• Biosecurity officials and the Department of Agriculture. The Department is the recipient of the required notices (s 9(2)-(4)). The instrument also references facilities and amenities for "biosecurity officials and human biosecurity officers" in the list of changes that must be notified when altered (s 9(5)(b)). The instrument therefore imposes information flows to the Department and establishes the port as a place where officials may be expected to exercise functions.

• Third parties using the port. The designation of Viterra Ardrossan Wharf as the biosecurity entry point for the specified vessel and baggage classes (ss 7-8) channels the movement of goods and personnel to that physical location, affecting logistics providers, stevedores, terminal operators and those arranging onshore transport for baggage and cargo from affected vessels.

The instrument’s exclusions are also consequential: non‑commercial vessels and passenger vessels are explicitly not covered by the first point of entry declaration for vessels (s 5) and their baggage is also excluded from s 6. The text signals that these classes will be handled under other arrangements or not treated as first point of entry at Port of Ardrossan.

In short, the immediate legal burdens fall on owners, lessees and operational controllers at the port for notification duties, and the operational effect falls on commercial vessels using the port and their baggage, since Viterra Ardrossan Wharf is the port’s designated point to interface with biosecurity functions.

The Determination creates a compact set of duties and designations rather than a broad statutory regime. The key duties and rights, as expressed in the instrument, are:

Duties

• Owners and lessees to notify. Owners (or one owner where there are multiple) and lessees (or one lessee where there are multiple) must give written notice to the Agriculture Department as soon as practicable after becoming aware of a change to the business entity that operates the port or a biosecurity entry point (s 9(2)-(3)). The phrase "in writing" is mandatory, but the instrument does not specify the content, format, address or time limit beyond "as soon as practicable".

• Persons or bodies responsible for operations to give reasonable notice of proposed changes. If a person or body responsible for operations proposes to make a change listed in s 9(5), they must give the Agriculture Department reasonable written notice of the proposed change (s 9(4)). Again, the specification is procedural; "reasonable notice" is not numerically defined.

• Operational obligations implicit in designation. By designating Viterra Ardrossan Wharf as the biosecurity entry point for the relevant vessels and baggage classes (ss 7-8), the instrument creates an expectation that affected vessels and goods will be brought to that location for biosecurity processing, consistent with the Act’s timing obligations cited in the notes (see s 246 and s 147 of the Act as referenced in the Determination).

Rights and entitlements

• Right to designation. The instrument confers the status of "first point of entry" and "biosecurity entry point" on Port of Ardrossan and on Viterra Ardrossan Wharf respectively, subject to conditions (ss 5-8 and s 9(1)). That statutory status authorises the Department and biosecurity officials to treat arrivals at those locations in the manner the Act contemplates for first points and biosecurity entry points.

• Departmental receipt of notice. The Agriculture Department is the statutory recipient of notices required under s 9(2)-(4). The instrument does not create a right for owners or operators to receive a Departmental acknowledgement or approval; the instrument simply requires notice.

Unspecified elements and consequential duties

• The Determination is explicit that the designation is subject to the conditions in s 9(1). It does not itself set civil penalties, enforcement tools or detailed procedural requirements for the notices. The absence of explicit timetables or prescribed content for notices means the duty is to communicate in writing in a timely way, leaving detail to the Department’s administrative practice or to other Act provisions not reproduced in this instrument.

• The instrument relies on Act definitions (s 4) and cross‑references sections of the Act in notes. Those Act provisions will supply substantive regulatory duties and the scope of enforcement powers, but those are not restated in the Determination itself.

Practical implication: the most concrete legal obligations in the Determination are the written notice duties for owners, lessees and operational controllers, and the physical channeling effect of specifying Viterra Ardrossan Wharf as the biosecurity entry point for the described classes of vessels and baggage.

The Determination itself does not set out express penalties, sanctions or enforcement mechanisms. It is an administrative instrument made under subsection 229(1) of the Biosecurity Act 2015 (s 3), and it states that the port designation is subject to conditions in s 9(1). The instrument prescribes procedural duties,written notices to the Agriculture Department in certain circumstances (ss 9(2)-(4)),but it does not specify statutory offences, monetary penalties, civil remedies, or enforcement steps that will follow a failure to comply with those duties.

Because the Determination is made under the Biosecurity Act 2015 (s 3), enforcement, compliance actions and any penalties that might attach to failing to comply with the Act or directions made under the Act will be matters governed by the Act and any associated regulations. The instrument does not reproduce those enforcement provisions or refer to particular sanctioning sections by number. Therefore:

• The Determination puts the Department in a position to receive notices and to be informed about operational changes that may affect biosecurity risk management. It does not itself state what the Department may do after receiving a notice, nor what it may do if notice is not given.

• The text makes clear that compliance expectations exist,owners, lessees and operators must give written notice in defined circumstances (s 9). The instrument does not set a penalty for failure to comply with those notice duties. Any sanction would therefore have to be found in the Act or other applicable law, not in this Determination.

• The notes in ss 7-8 refer to the Act’s requirements that vessels or goods be brought to biosecurity entry points "as soon as practicable" (see ss 246 and 147 of the Act). Those Act sections likely contain duties on masters and persons handling goods, but the Determination itself does not restate or expand the enforcement detail.

From the instrument alone it follows that enforcement cannot be exercised under this Determination's text; remedial or sanctioning steps must be sought in the Biosecurity Act 2015 and the Biosecurity Regulation 2016 to the extent they provide enforcement powers or penalties. The instrument places administrative compliance burdens on private parties and sets the physical locus for biosecurity processing at Viterra Ardrossan Wharf. Parties who fail to comply with the notice obligations may therefore be exposed to whatever compliance or enforcement framework the Act supplies, but readers will need to consult the Act and any relevant regulations for the precise enforcement regime and potential penalties.

This Determination is an instrument made under the Biosecurity Act 2015 (s 3: authority under subsection 229(1)). The Determination explicitly invokes and relies on several definitions and sections of the Act and other subordinate legislation. The instrument references the following inter‑legal relationships which affect how it operates:

• Definitions in the Act and Biosecurity Regulation. Section 4 of the Determination states that "Act means the Biosecurity Act 2015" and that "non‑commercial vessel has the same meaning as in the Biosecurity Regulation 2016" and that "vessel means a vessel (as defined by section 9 of the Act) that is subject to biosecurity control" (s 4). Thus, the Determination's substantive reach depends on statutory definitions in the Act and on the Regulation for the term non‑commercial vessel. For example, whether a particular vessel is covered by the first point of entry designation depends on those external definitions.

• Cross references to Act provisions governing movement to entry points. The notes appended to ss 7 and 8 direct readers to sections 246 and 147 of the Act respectively for obligations about bringing a vessel to a biosecurity entry point "as soon as practicable" and bringing goods unloaded from a vessel to a biosecurity entry point "as soon as practicable". Those references make the Determination operationally dependent on the Act’s movement and holding rules for vessels and goods entering Australian territory.

• Conditioned status under section 229(1). The Determination is made pursuant to the Act’s statutory power under subsection 229(1). That situates the instrument as an exercise of delegated statutory authority, so interpretation and effect depend on the scope of that power in the Act. Any conflict between the Determination and the Act would be resolved in favour of the Act.

• Interaction with other determinations. The notes in s 6 and the instrument’s form indicate that other determinations under the Act may deal with prohibited goods, conditionally non‑prohibited goods and with first point of entry status elsewhere (s 6 Note 2: see ss 173 and 174 of the Act). This indicates that this Determination functions as a port‑specific layer within a broader statutory framework, and that the treatment of particular goods or categories may be governed by other determinations operating under the same Act.

• Administrative relations with the Department. The instrument creates procedural obligations to notify the Agriculture Department about changes (s 9). Administrative law principles and the Department’s policies will therefore intersect with the Determination when the Department considers notices, evaluates proposed changes or makes subsequent decisions about the port’s designation or required mitigation steps.

In short, the Determination is tightly integrated with the Biosecurity Act 2015 and the Biosecurity Regulation 2016. It does not stand alone; its correct application requires reference to the Act for definitions, movement/holding obligations for vessels and goods, and to the Act and regulations for enforcement powers. The instrument channels obligations and information flows to the Agriculture Department and it operates as a port‑specific mapping that the Act’s general provisions will supplement.

The Determination contains a commencement table in s 2 that records the instrument's commencement information. The table states that "The whole of this instrument" commenced on 16 June 2019 (s 2, commencement table). There is an explicit note attached to the commencement table stating that the table "relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument." Section 2(2) notes that any information placed in the third column of the table is not part of the instrument and may be edited in published versions.

Beyond the initial commencement entry, the text of the Determination as provided contains no amendment provisions, no subsequent amendment dates, and no revocation statement. The instrument does not include a schedule of amendments, and the content presented is self‑contained as the original instrument. The only recorded dates are the making date (signed 7 June 2019 by Dean Merrilees as delegate of the Director of Biosecurity) and the commencement date set in the table (16 June 2019).

From the instrument alone the recorded amendment history is therefore limited to:

• Made: 7 June 2019 (signature block).
• Commenced: 16 June 2019 (s 2 commencement table).

The instrument explicitly warns that the commencement table will not be updated to show later amendments. If later amendments were made after the original making, they would not appear in the instrument text as this copy sets out. Users who need the current legal status, any amendments or revocations, or consolidated text should therefore check the official legislative database or the Department’s records for later instruments altering or repealing this Determination. The Determination as provided does not itself show any subsequent amendment history.

This Determination, as presented, does not include any case citations, judicial decisions or references to litigation. The text names no cases and provides no account of judicial interpretation, challenge, review or appeal arising from the instrument. The instrument’s formal elements indicate it was made under subsection 229(1) of the Biosecurity Act 2015 and was signed by an official delegate, but no litigation record is part of the instrument.

Because the Determination is an administrative instrument recorded in text only, any litigation arising from the designation, the operation of the notice requirements, or actions taken under the Biosecurity Act in relation to Port of Ardrossan would be recorded in judicial records and not in the Determination itself. The instrument does not assert that any judicial review proceedings have occurred, nor does it identify decisions interpreting its clauses.

Practitioners needing to know whether this Determination has been litigated or judicially considered must consult court databases and administrative law reports. The instrument itself supplies no litigation history to cite.

The Determination appears concise, but several practical and legal friction points arise directly from its wording. These are concrete "watchouts" grounded in the instrument’s text:

• Narrow scope by goods class. Section 6 and Note 1 make clear that Port of Ardrossan is a first point of entry only for baggage carried on a non‑passenger, commercial vessel, and Note 1 explicitly states that the port is not a first point of entry for "any other goods." Practically, that means cargo (other than baggage) destined for or discharged at Ardrossan may not be within the port’s first point of entry status and may be governed by other determinations or Act provisions. Operators should not assume the port is a general commercial entry point for all cargo.

• Limited physical designation. The biosecurity entry point is a single named area, Viterra Ardrossan Wharf (ss 7-8). Biosecurity processing requirements, including where vessels and baggage must be taken "as soon as practicable" (notes referencing ss 246 and 147 of the Act), are therefore concentrated at that facility. If operations use a different wharf or staging area, owners and operators will need to ensure alignment with the Determination or notify the Department as required.

• Ambiguity in timing standards. The instrument uses phrases such as "as soon as practicable" and "reasonable notice" (ss 9(2)-(4), notes to ss 7-8) without numerical limits or examples. That leaves timing open to administrative and possibly judicial interpretation, creating potential uncertainty about whether a given notice was timely.

• Notice allocation among multiple owners/lessees. Sections 9(2)-(3) phrase the obligation as "the owner (or, if there is more than one owner, an owner)" and similarly for lessees. This drafting makes only one owner or lessee responsible to give notice when multiple parties exist, but does not prescribe which one. That can create uncertainty or strategic non‑reporting if the parties do not coordinate.

• Breadth of "changes" that must be notified. Section 9(5) lists several broad categories of change that trigger notice obligations, including "procedures at Port of Ardrossan providing for biosecurity measures" and "facilities or amenities available at Port of Ardrossan for biosecurity officials." These categories are purposive but broad, potentially capturing minor operational adjustments. The instrument does not set materiality thresholds.

• Unclear consequences of non‑notification. The Determination does not specify administrative consequences or penalties for failing to notify. Practitioners cannot rely on this instrument alone to understand the legal exposure for non‑compliance; the potential consequences will depend on the Biosecurity Act and departmental practice.

• Exclusion of passenger and non‑commercial vessels. The explicit exclusions in s 5 and s 6 mean that passenger vessels and non‑commercial vessels are not treated as arrivals needing to use Port of Ardrossan as a first point of entry. Operators and regulators should confirm which port or mechanism governs those vessel classes.

• Delegated decision maker and contact point. The instrument was made by a delegate of the Director of Biosecurity (signature block). It requires notices to "the Agriculture Department" in writing but does not specify the process, contact point, inbox or address for such notices. In practice, ambiguity about where to send notices can delay compliance and create dispute about whether notice was given.

• Reliance on external definitions and sections. The Determination depends on definitions and other sections of the Act and the Regulation (s 4 and notes). If a party misapplies those external definitions,for instance, mischaracterising a vessel’s commercial status,the effect can be a misapplication of the Determination’s obligations.

These "gotchas" are textual consequences of the instrument’s brevity and reliance on the Act. They identify areas where parties should seek clarity from the Agriculture Department or legal certainty by consulting the Biosecurity Act and the Biosecurity Regulation 2016 where definitions and enforcement details reside.

Compliance with this Determination involves a short set of concrete, administratively focused tasks for owners, lessees and persons or bodies responsible for operations at Port of Ardrossan, and operational awareness for vessel operators. Steps that implement the instrument’s requirements are:

1. Establish who will perform written notices. For ports with multiple owners or multiple lessees, appoint a nominated owner and a nominated lessee (if relevant) to discharge the duties in ss 9(2)-(3). The instrument permits "an owner" or "a lessee" to give notice where multiple parties exist. Document the nomination internally so there is a clear chain of responsibility in case of a compliance query.

2. Put a written notification procedure in place. Create a simple written‑notice template to be sent to the Agriculture Department when the conditions in s 9(2)-(3) occur. The Determination requires notices to be "in writing" and to be given "as soon as practicable" after becoming aware of the change. Practical components of a notice should include:

   • identity of the port and the biosecurity entry point (Viterra Ardrossan Wharf),
   • a description of the change to the business entity operating the port or biosecurity entry point,
   • the date the notifier became aware and the effective date of the change (if known),
   • contact details for the new operator or responsible party,
   • a brief statement on how biosecurity measures, facilities or the ability to identify or inform biosecurity officials will be managed during the transition.

3. Adopt a "reasonable notice" protocol for proposed operational changes. For proposed changes listed in s 9(5) (procedures, facilities/amenities, identification or communication procedures, or other factors affecting biosecurity risk), give the Agriculture Department reasonable written notice ahead of implementation. To reduce dispute about reasonableness:

   • set an internal advance notice period that is prudentially longer than what you would regard as minimally necessary (for example, 30 days), but tailor that to the scale of the change;
   • include in the notice an assessment of the biosecurity risk implications and proposed mitigations;
   • make sure the notice identifies the precise changes to procedures, facilities or amenities and proposed implementation dates.

4. Maintain contemporaneous records. Keep copies of all written notices, records of when the sender became aware of a relevant change, acknowledgements (if any) from the Agriculture Department, and internal minutes or emails evidencing decision making. The Determination requires notice to the Department but does not provide forms; records will be the primary evidence to show compliance with "as soon as practicable" and "reasonable notice".

5. Align physical operations with designated points. Ensure that vessels subject to the designation and their baggage are directed to the designated biosecurity entry point, Viterra Ardrossan Wharf. The Determination’s tables in ss 7-8 pair the vessel/goods classes with that area. Operators should coordinate scheduling, berthing and logistics so that the relevant vessels and baggage can be brought to the designated wharf in compliance with the Act’s timing obligations as referenced in the Determination’s notes.

6. Review internal procedures against the list in s 9(5). The instrument lists specific kinds of changes that require notice, including changes to procedures for managing biosecurity measure levels, facilities or amenities for officials, identification procedures and communication procedures. Carry out a compliance review of existing procedures and facilities to identify any vulnerabilities or any planned changes that will trigger the notice obligations.

7. Liaise early with the Agriculture Department. Because the Determination does not specify the address, format or content of notices, early contact with the Department to confirm the appropriate recipient, preferred format, and any preferred content will reduce risk. Seek written confirmation of the correct departmental contact point and keep that in your compliance files.

8. Train staff and operational contractors. Ensure that port managers, terminal operators and contractors understand that Viterra Ardrossan Wharf is the biosecurity entry point for the specified classes, that passenger and non‑commercial vessels are excluded from the port’s first point of entry status, and that notices must be given in writing to the Department when the listed changes occur or are proposed.

9. Consult the Act and the Regulation for definitions and enforcement. The Determination relies on definitions and Act provisions. To interpret whether a vessel is "non‑commercial" or whether a given procedural change triggers s 9(5), consult the Biosecurity Act 2015 and the Biosecurity Regulation 2016. The Determination does not set out enforcement measures; understanding the Act’s enforcement regime is necessary for risk assessment.

By implementing these steps,nomination of responsible parties, standardised written notice templates, prudent internal notice periods for proposed changes, record keeping, physical alignment of vessel movements to the designated wharf, and early departmental liaison,owners, lessees and operators can produce a defensible compliance posture under the Determination’s procedural duties.