Biosecurity (First Point of Entry—Port of Esperance) Determination 2019
In ForceCTH
Jurisdiction
Commonwealth
Collection
legislative instrument
Plain English Summary
3/10 complexity
This instrument names the Port of Esperance as a "first point of entry" under the Biosecurity Act for most commercial vessels and a set list of goods, and it designates specific berths at the port as the required biosecurity entry points. It also requires the port owner, lessee or operators to give written notice to the Agriculture Department of changes to ownership, operators, procedures or facilities that could affect biosecurity.
This instrument, the Biosecurity (First Point of Entry,Port of Esperance) Determination 2019, designates Port of Esperance as a statutory first point of entry under the Biosecurity Act 2015 and specifies the precise biosecurity entry points within that port for particular classes of vessels and goods. The instrument is made under subsection 229(1) of the Act (authority note at the head of the instrument). It accomplishes three mechanical changes.
First, it declares that Port of Esperance is a first point of entry for vessels other than non‑commercial vessels (see clause 5). That means vessels subject to biosecurity control that are not non‑commercial must be treated at this port as a formal arrival point for the Act’s biosecurity controls.
Second, it designates the classes of goods that may be brought into Australia at Port of Esperance by making the port a first point of entry for specified goods: baggage carried on certain vessels, freight containers (limited definition), general goods, inorganic bulk goods, and waste (clause 6). The instrument explicitly states Port of Esperance is not a first point of entry for any other goods (note after clause 6), and points readers to sections 173 and 174 of the Act for matters about prohibited or conditionally non‑prohibited goods.
Third, it maps specific areas within the port (Berth 1, Berth 2, Berth 3, and combinations thereof) to particular classes of vessels and goods (clauses 7 and 8). For vessels other than non‑commercial vessels, the designated biosecurity entry points are Berth 1, Berth 2 and Berth 3 (clause 7). For goods, the tables in clause 8 allocate baggage and waste to Berths 1-3, inorganic bulk goods to Berths 1 and 2, and freight containers and general goods to Berth 2.
Finally, the instrument attaches procedural conditions (clause 9) that bind owners, lessees and persons or bodies responsible for operations at Port of Esperance to give written notice to the Agriculture Department in two situations: (a) where an owner or lessee becomes aware that there has been, or will be, a change to the business entity operating the port or a biosecurity entry point, notice must be given as soon as practicable (subsections 9(2)-(3)); and (b) where a person or body responsible for operations proposes to make certain operational or facility changes (listed at 9(5)), the person or body must give the Department reasonable written notice of the proposed change (subsections 9(4)-(5)). The instrument references the Act for obligations to bring arriving vessels and goods to biosecurity entry points as soon as practicable (see note references to ss 147 and 246 of the Act in clauses 7 and 8).
Current sections
Direct links to the current provisions in Biosecurity (First Point of Entry—Port of Esperance) Determination 2019.
12
Part 1
Preliminary
Part 1—Preliminary
1 Name
This is the Biosecurity (First Point of Entry—Port of Esperance) Determination 2019.
3 Authority
This instrument is made under subsection 229(1) of the Biosecurity Act 2015.
4 Definitions
Note: A number of expressions used in this instrument are defined in section 9 of the Act.
In this instrument:
Act means the Biosecurity Act 2015.
freight container means a re‑usable container:
(a) that is designed to be used to transport goods by one or more modes of transport; and
(b) that can be transferred from one mode of transport to another without unloading the goods from the container; and
(c) that is known as a 20‑foot‑long container or a 40‑foot‑long container.
general goods means goods (as defined by section 19 of the Act) other than baggage, freight containers, live horses or waste.
goods means goods (as defined by section 19 of the Act):
(a) that are subject to biosecurity control; or
(b) in relation to which an exposed goods order is in force.
inorganic bulk goods means chemicals, ores, minerals or gases that:
(a) are brought or imported into Australian territory in bulk; and
(b) do not contain animals, plants, organic compounds or microbes.
non‑commercial vessel has the same meaning as in the Biosecurity Regulation 2016.
vessel means a vessel (as defined by section 9 of the Act) that is subject to biosecurity control.
waste means goods (as defined by section 19 of the Act):
(a) that are subject to biosecurity control; and
(b) that are intended, by the person in charge of the vessel on which the goods are carried, to be disposed of.
Part 2—First point of entry
5 First point of entry—vessels
Port of Esperance is a first point of entry for vessels other than non‑commercial vessels.
6 First point of entry—goods
Port of Esperance is a first point of entry for the following:
(a) baggage carried on a vessel other than a non‑commercial vessel or a passenger vessel;
(aa) freight containers;
(b) general goods;
(c) inorganic bulk goods;
(d) waste.
Note 1: Port of Esperance is not a first point of entry for any other goods.
Note 2: For other matters relating to whether particular goods may be brought into a particular first point of entry, see sections 173 and 174 of the Act (which deal with prohibited goods and conditionally non‑prohibited goods) and any determinations made under those sections.
Part 3—Biosecurity entry points
7 Biosecurity entry points—vessels
Each area of Port of Esperance specified in column 2 of an item of the following table is designated as a biosecurity entry point for a vessel, or a vessel included in a class of vessels, specified in column 1 of the item.
Note: A vessel that has arrived at Port of Esperance must be brought to a biosecurity entry point for the vessel at that port as soon as practicable (see section 246 of the Act).
8 Biosecurity entry points—goods
Each area of Port of Esperance specified in column 2 of an item of the following table is designated as a biosecurity entry point for goods, or goods included in a class of goods, specified in column 1 of the item.
Note: If a vessel has arrived at Port of Esperance and is carrying goods that are to be unloaded from the vessel, those goods must be brought to a biosecurity entry point for those goods as soon as practicable (see section 147 of the Act).
Part 4—Conditions
9 Conditions—notifying Agriculture Department of changes
(1) The determination of Port of Esperance as a first point of entry by this instrument is subject to the conditions in this section.
(2) If the owner (or, if there is more than one owner, an owner) of Port of Esperance becomes aware that there has been, or will be, a change to the business entity operating:
(a) Port of Esperance; or
(b) a biosecurity entry point at Port of Esperance;
the owner (or, if there is more than one owner, an owner) must give the Agriculture Department, in writing, notice of the change as soon as practicable after becoming aware that the change has occurred or will occur.
(3) If the lessee (if any) (or, if there is more than one lessee, a lessee) of Port of Esperance becomes aware that there has been, or will be, a change to the business entity operating:
(a) Port of Esperance; or
(b) a biosecurity entry point at Port of Esperance;
the lessee (or, if there is more than one lessee, a lessee) must give the Agriculture Department, in writing, notice of the change as soon as practicable after becoming aware that the change has occurred or will occur.
(4) If a person or body that is responsible for carrying out operations at Port of Esperance proposes to make a change referred to in subsection (5), the person or body must give the Agriculture Department, in writing, reasonable notice of the proposed change.
(5) For the purposes of subsection (4), the changes are as follows:
(a) a change to the procedures at Port of Esperance providing for biosecurity measures to be taken to manage the level of biosecurity risk associated with operations carried out at Port of Esperance;
(b) a change to the facilities or amenities available at Port of Esperance for biosecurity officials and human biosecurity officers to perform functions or exercise powers under the Act at Port of Esperance;
(c) a change to the procedures at Port of Esperance that may affect the ability of a person who carries out operations at Port of Esperance to identify biosecurity risks associated with those operations;
(d) a change to the procedures at Port of Esperance that may affect the ability for biosecurity officials or human biosecurity officials to be informed of any identified biosecurity risks associated with operations carried out at Port of Esperance;
(e) a change to the procedures at Port of Esperance for managing any other factors that may contribute to, or affect, the level of biosecurity risk associated with operations carried out at Port of Esperance.
1
Name
1 Name
This is the Biosecurity (First Point of Entry—Port of Esperance) Determination 2019.
3
Authority
3 Authority
This instrument is made under subsection 229(1) of the Biosecurity Act 2015.
4
Definitions
4 Definitions
Note: A number of expressions used in this instrument are defined in section 9 of the Act.
In this instrument:
Act means the Biosecurity Act 2015.
freight container means a re‑usable container:
(a) that is designed to be used to transport goods by one or more modes of transport; and
(b) that can be transferred from one mode of transport to another without unloading the goods from the container; and
(c) that is known as a 20‑foot‑long container or a 40‑foot‑long container.
general goods means goods (as defined by section 19 of the Act) other than baggage, freight containers, live horses or waste.
goods means goods (as defined by section 19 of the Act):
(a) that are subject to biosecurity control; or
(b) in relation to which an exposed goods order is in force.
inorganic bulk goods means chemicals, ores, minerals or gases that:
(a) are brought or imported into Australian territory in bulk; and
(b) do not contain animals, plants, organic compounds or microbes.
non‑commercial vessel has the same meaning as in the Biosecurity Regulation 2016.
vessel means a vessel (as defined by section 9 of the Act) that is subject to biosecurity control.
waste means goods (as defined by section 19 of the Act):
(a) that are subject to biosecurity control; and
(b) that are intended, by the person in charge of the vessel on which the goods are carried, to be disposed of.
Part 2
First point of entry
Part 1—Preliminary
1 Name
This is the Biosecurity (First Point of Entry—Port of Esperance) Determination 2019.
3 Authority
This instrument is made under subsection 229(1) of the Biosecurity Act 2015.
4 Definitions
Note: A number of expressions used in this instrument are defined in section 9 of the Act.
In this instrument:
Act means the Biosecurity Act 2015.
freight container means a re‑usable container:
(a) that is designed to be used to transport goods by one or more modes of transport; and
(b) that can be transferred from one mode of transport to another without unloading the goods from the container; and
(c) that is known as a 20‑foot‑long container or a 40‑foot‑long container.
general goods means goods (as defined by section 19 of the Act) other than baggage, freight containers, live horses or waste.
goods means goods (as defined by section 19 of the Act):
(a) that are subject to biosecurity control; or
(b) in relation to which an exposed goods order is in force.
inorganic bulk goods means chemicals, ores, minerals or gases that:
(a) are brought or imported into Australian territory in bulk; and
(b) do not contain animals, plants, organic compounds or microbes.
non‑commercial vessel has the same meaning as in the Biosecurity Regulation 2016.
vessel means a vessel (as defined by section 9 of the Act) that is subject to biosecurity control.
waste means goods (as defined by section 19 of the Act):
(a) that are subject to biosecurity control; and
(b) that are intended, by the person in charge of the vessel on which the goods are carried, to be disposed of.
Part 2—First point of entry
5 First point of entry—vessels
Port of Esperance is a first point of entry for vessels other than non‑commercial vessels.
6 First point of entry—goods
Port of Esperance is a first point of entry for the following:
(a) baggage carried on a vessel other than a non‑commercial vessel or a passenger vessel;
(aa) freight containers;
(b) general goods;
(c) inorganic bulk goods;
(d) waste.
Note 1: Port of Esperance is not a first point of entry for any other goods.
Note 2: For other matters relating to whether particular goods may be brought into a particular first point of entry, see sections 173 and 174 of the Act (which deal with prohibited goods and conditionally non‑prohibited goods) and any determinations made under those sections.
Part 3—Biosecurity entry points
7 Biosecurity entry points—vessels
Each area of Port of Esperance specified in column 2 of an item of the following table is designated as a biosecurity entry point for a vessel, or a vessel included in a class of vessels, specified in column 1 of the item.
Note: A vessel that has arrived at Port of Esperance must be brought to a biosecurity entry point for the vessel at that port as soon as practicable (see section 246 of the Act).
8 Biosecurity entry points—goods
Each area of Port of Esperance specified in column 2 of an item of the following table is designated as a biosecurity entry point for goods, or goods included in a class of goods, specified in column 1 of the item.
Note: If a vessel has arrived at Port of Esperance and is carrying goods that are to be unloaded from the vessel, those goods must be brought to a biosecurity entry point for those goods as soon as practicable (see section 147 of the Act).
Part 4—Conditions
9 Conditions—notifying Agriculture Department of changes
(1) The determination of Port of Esperance as a first point of entry by this instrument is subject to the conditions in this section.
(2) If the owner (or, if there is more than one owner, an owner) of Port of Esperance becomes aware that there has been, or will be, a change to the business entity operating:
(a) Port of Esperance; or
(b) a biosecurity entry point at Port of Esperance;
the owner (or, if there is more than one owner, an owner) must give the Agriculture Department, in writing, notice of the change as soon as practicable after becoming aware that the change has occurred or will occur.
(3) If the lessee (if any) (or, if there is more than one lessee, a lessee) of Port of Esperance becomes aware that there has been, or will be, a change to the business entity operating:
(a) Port of Esperance; or
(b) a biosecurity entry point at Port of Esperance;
the lessee (or, if there is more than one lessee, a lessee) must give the Agriculture Department, in writing, notice of the change as soon as practicable after becoming aware that the change has occurred or will occur.
(4) If a person or body that is responsible for carrying out operations at Port of Esperance proposes to make a change referred to in subsection (5), the person or body must give the Agriculture Department, in writing, reasonable notice of the proposed change.
(5) For the purposes of subsection (4), the changes are as follows:
(a) a change to the procedures at Port of Esperance providing for biosecurity measures to be taken to manage the level of biosecurity risk associated with operations carried out at Port of Esperance;
(b) a change to the facilities or amenities available at Port of Esperance for biosecurity officials and human biosecurity officers to perform functions or exercise powers under the Act at Port of Esperance;
(c) a change to the procedures at Port of Esperance that may affect the ability of a person who carries out operations at Port of Esperance to identify biosecurity risks associated with those operations;
(d) a change to the procedures at Port of Esperance that may affect the ability for biosecurity officials or human biosecurity officials to be informed of any identified biosecurity risks associated with operations carried out at Port of Esperance;
(e) a change to the procedures at Port of Esperance for managing any other factors that may contribute to, or affect, the level of biosecurity risk associated with operations carried out at Port of Esperance.
5
First point of entry—vessels
5 First point of entry—vessels
Port of Esperance is a first point of entry for vessels other than non‑commercial vessels.
6
First point of entry—goods
6 First point of entry—goods
Port of Esperance is a first point of entry for the following:
(a) baggage carried on a vessel other than a non‑commercial vessel or a passenger vessel;
(aa) freight containers;
(b) general goods;
(c) inorganic bulk goods;
(d) waste.
Note 1: Port of Esperance is not a first point of entry for any other goods.
Note 2: For other matters relating to whether particular goods may be brought into a particular first point of entry, see sections 173 and 174 of the Act (which deal with prohibited goods and conditionally non‑prohibited goods) and any determinations made under those sections.
Part 3
Biosecurity entry points
Part 1—Preliminary
1 Name
This is the Biosecurity (First Point of Entry—Port of Esperance) Determination 2019.
3 Authority
This instrument is made under subsection 229(1) of the Biosecurity Act 2015.
4 Definitions
Note: A number of expressions used in this instrument are defined in section 9 of the Act.
In this instrument:
Act means the Biosecurity Act 2015.
freight container means a re‑usable container:
(a) that is designed to be used to transport goods by one or more modes of transport; and
(b) that can be transferred from one mode of transport to another without unloading the goods from the container; and
(c) that is known as a 20‑foot‑long container or a 40‑foot‑long container.
general goods means goods (as defined by section 19 of the Act) other than baggage, freight containers, live horses or waste.
goods means goods (as defined by section 19 of the Act):
(a) that are subject to biosecurity control; or
(b) in relation to which an exposed goods order is in force.
inorganic bulk goods means chemicals, ores, minerals or gases that:
(a) are brought or imported into Australian territory in bulk; and
(b) do not contain animals, plants, organic compounds or microbes.
non‑commercial vessel has the same meaning as in the Biosecurity Regulation 2016.
vessel means a vessel (as defined by section 9 of the Act) that is subject to biosecurity control.
waste means goods (as defined by section 19 of the Act):
(a) that are subject to biosecurity control; and
(b) that are intended, by the person in charge of the vessel on which the goods are carried, to be disposed of.
Part 2—First point of entry
5 First point of entry—vessels
Port of Esperance is a first point of entry for vessels other than non‑commercial vessels.
6 First point of entry—goods
Port of Esperance is a first point of entry for the following:
(a) baggage carried on a vessel other than a non‑commercial vessel or a passenger vessel;
(aa) freight containers;
(b) general goods;
(c) inorganic bulk goods;
(d) waste.
Note 1: Port of Esperance is not a first point of entry for any other goods.
Note 2: For other matters relating to whether particular goods may be brought into a particular first point of entry, see sections 173 and 174 of the Act (which deal with prohibited goods and conditionally non‑prohibited goods) and any determinations made under those sections.
Part 3—Biosecurity entry points
7 Biosecurity entry points—vessels
Each area of Port of Esperance specified in column 2 of an item of the following table is designated as a biosecurity entry point for a vessel, or a vessel included in a class of vessels, specified in column 1 of the item.
Note: A vessel that has arrived at Port of Esperance must be brought to a biosecurity entry point for the vessel at that port as soon as practicable (see section 246 of the Act).
8 Biosecurity entry points—goods
Each area of Port of Esperance specified in column 2 of an item of the following table is designated as a biosecurity entry point for goods, or goods included in a class of goods, specified in column 1 of the item.
Note: If a vessel has arrived at Port of Esperance and is carrying goods that are to be unloaded from the vessel, those goods must be brought to a biosecurity entry point for those goods as soon as practicable (see section 147 of the Act).
Part 4—Conditions
9 Conditions—notifying Agriculture Department of changes
(1) The determination of Port of Esperance as a first point of entry by this instrument is subject to the conditions in this section.
(2) If the owner (or, if there is more than one owner, an owner) of Port of Esperance becomes aware that there has been, or will be, a change to the business entity operating:
(a) Port of Esperance; or
(b) a biosecurity entry point at Port of Esperance;
the owner (or, if there is more than one owner, an owner) must give the Agriculture Department, in writing, notice of the change as soon as practicable after becoming aware that the change has occurred or will occur.
(3) If the lessee (if any) (or, if there is more than one lessee, a lessee) of Port of Esperance becomes aware that there has been, or will be, a change to the business entity operating:
(a) Port of Esperance; or
(b) a biosecurity entry point at Port of Esperance;
the lessee (or, if there is more than one lessee, a lessee) must give the Agriculture Department, in writing, notice of the change as soon as practicable after becoming aware that the change has occurred or will occur.
(4) If a person or body that is responsible for carrying out operations at Port of Esperance proposes to make a change referred to in subsection (5), the person or body must give the Agriculture Department, in writing, reasonable notice of the proposed change.
(5) For the purposes of subsection (4), the changes are as follows:
(a) a change to the procedures at Port of Esperance providing for biosecurity measures to be taken to manage the level of biosecurity risk associated with operations carried out at Port of Esperance;
(b) a change to the facilities or amenities available at Port of Esperance for biosecurity officials and human biosecurity officers to perform functions or exercise powers under the Act at Port of Esperance;
(c) a change to the procedures at Port of Esperance that may affect the ability of a person who carries out operations at Port of Esperance to identify biosecurity risks associated with those operations;
(d) a change to the procedures at Port of Esperance that may affect the ability for biosecurity officials or human biosecurity officials to be informed of any identified biosecurity risks associated with operations carried out at Port of Esperance;
(e) a change to the procedures at Port of Esperance for managing any other factors that may contribute to, or affect, the level of biosecurity risk associated with operations carried out at Port of Esperance.
7
Biosecurity entry points—vessels
7 Biosecurity entry points—vessels
Each area of Port of Esperance specified in column 2 of an item of the following table is designated as a biosecurity entry point for a vessel, or a vessel included in a class of vessels, specified in column 1 of the item.
Note: A vessel that has arrived at Port of Esperance must be brought to a biosecurity entry point for the vessel at that port as soon as practicable (see section 246 of the Act).
8
Biosecurity entry points—goods
8 Biosecurity entry points—goods
Each area of Port of Esperance specified in column 2 of an item of the following table is designated as a biosecurity entry point for goods, or goods included in a class of goods, specified in column 1 of the item.
Note: If a vessel has arrived at Port of Esperance and is carrying goods that are to be unloaded from the vessel, those goods must be brought to a biosecurity entry point for those goods as soon as practicable (see section 147 of the Act).
Part 4
Conditions
Part 1—Preliminary
1 Name
This is the Biosecurity (First Point of Entry—Port of Esperance) Determination 2019.
3 Authority
This instrument is made under subsection 229(1) of the Biosecurity Act 2015.
4 Definitions
Note: A number of expressions used in this instrument are defined in section 9 of the Act.
In this instrument:
Act means the Biosecurity Act 2015.
freight container means a re‑usable container:
(a) that is designed to be used to transport goods by one or more modes of transport; and
(b) that can be transferred from one mode of transport to another without unloading the goods from the container; and
(c) that is known as a 20‑foot‑long container or a 40‑foot‑long container.
general goods means goods (as defined by section 19 of the Act) other than baggage, freight containers, live horses or waste.
goods means goods (as defined by section 19 of the Act):
(a) that are subject to biosecurity control; or
(b) in relation to which an exposed goods order is in force.
inorganic bulk goods means chemicals, ores, minerals or gases that:
(a) are brought or imported into Australian territory in bulk; and
(b) do not contain animals, plants, organic compounds or microbes.
non‑commercial vessel has the same meaning as in the Biosecurity Regulation 2016.
vessel means a vessel (as defined by section 9 of the Act) that is subject to biosecurity control.
waste means goods (as defined by section 19 of the Act):
(a) that are subject to biosecurity control; and
(b) that are intended, by the person in charge of the vessel on which the goods are carried, to be disposed of.
Part 2—First point of entry
5 First point of entry—vessels
Port of Esperance is a first point of entry for vessels other than non‑commercial vessels.
6 First point of entry—goods
Port of Esperance is a first point of entry for the following:
(a) baggage carried on a vessel other than a non‑commercial vessel or a passenger vessel;
(aa) freight containers;
(b) general goods;
(c) inorganic bulk goods;
(d) waste.
Note 1: Port of Esperance is not a first point of entry for any other goods.
Note 2: For other matters relating to whether particular goods may be brought into a particular first point of entry, see sections 173 and 174 of the Act (which deal with prohibited goods and conditionally non‑prohibited goods) and any determinations made under those sections.
Part 3—Biosecurity entry points
7 Biosecurity entry points—vessels
Each area of Port of Esperance specified in column 2 of an item of the following table is designated as a biosecurity entry point for a vessel, or a vessel included in a class of vessels, specified in column 1 of the item.
Note: A vessel that has arrived at Port of Esperance must be brought to a biosecurity entry point for the vessel at that port as soon as practicable (see section 246 of the Act).
8 Biosecurity entry points—goods
Each area of Port of Esperance specified in column 2 of an item of the following table is designated as a biosecurity entry point for goods, or goods included in a class of goods, specified in column 1 of the item.
Note: If a vessel has arrived at Port of Esperance and is carrying goods that are to be unloaded from the vessel, those goods must be brought to a biosecurity entry point for those goods as soon as practicable (see section 147 of the Act).
Part 4—Conditions
9 Conditions—notifying Agriculture Department of changes
(1) The determination of Port of Esperance as a first point of entry by this instrument is subject to the conditions in this section.
(2) If the owner (or, if there is more than one owner, an owner) of Port of Esperance becomes aware that there has been, or will be, a change to the business entity operating:
(a) Port of Esperance; or
(b) a biosecurity entry point at Port of Esperance;
the owner (or, if there is more than one owner, an owner) must give the Agriculture Department, in writing, notice of the change as soon as practicable after becoming aware that the change has occurred or will occur.
(3) If the lessee (if any) (or, if there is more than one lessee, a lessee) of Port of Esperance becomes aware that there has been, or will be, a change to the business entity operating:
(a) Port of Esperance; or
(b) a biosecurity entry point at Port of Esperance;
the lessee (or, if there is more than one lessee, a lessee) must give the Agriculture Department, in writing, notice of the change as soon as practicable after becoming aware that the change has occurred or will occur.
(4) If a person or body that is responsible for carrying out operations at Port of Esperance proposes to make a change referred to in subsection (5), the person or body must give the Agriculture Department, in writing, reasonable notice of the proposed change.
(5) For the purposes of subsection (4), the changes are as follows:
(a) a change to the procedures at Port of Esperance providing for biosecurity measures to be taken to manage the level of biosecurity risk associated with operations carried out at Port of Esperance;
(b) a change to the facilities or amenities available at Port of Esperance for biosecurity officials and human biosecurity officers to perform functions or exercise powers under the Act at Port of Esperance;
(c) a change to the procedures at Port of Esperance that may affect the ability of a person who carries out operations at Port of Esperance to identify biosecurity risks associated with those operations;
(d) a change to the procedures at Port of Esperance that may affect the ability for biosecurity officials or human biosecurity officials to be informed of any identified biosecurity risks associated with operations carried out at Port of Esperance;
(e) a change to the procedures at Port of Esperance for managing any other factors that may contribute to, or affect, the level of biosecurity risk associated with operations carried out at Port of Esperance.
9
Conditions—notifying Agriculture Department of changes
9 Conditions—notifying Agriculture Department of changes
(1) The determination of Port of Esperance as a first point of entry by this instrument is subject to the conditions in this section.
(2) If the owner (or, if there is more than one owner, an owner) of Port of Esperance becomes aware that there has been, or will be, a change to the business entity operating:
(a) Port of Esperance; or
(b) a biosecurity entry point at Port of Esperance;
the owner (or, if there is more than one owner, an owner) must give the Agriculture Department, in writing, notice of the change as soon as practicable after becoming aware that the change has occurred or will occur.
(3) If the lessee (if any) (or, if there is more than one lessee, a lessee) of Port of Esperance becomes aware that there has been, or will be, a change to the business entity operating:
(a) Port of Esperance; or
(b) a biosecurity entry point at Port of Esperance;
the lessee (or, if there is more than one lessee, a lessee) must give the Agriculture Department, in writing, notice of the change as soon as practicable after becoming aware that the change has occurred or will occur.
(4) If a person or body that is responsible for carrying out operations at Port of Esperance proposes to make a change referred to in subsection (5), the person or body must give the Agriculture Department, in writing, reasonable notice of the proposed change.
(5) For the purposes of subsection (4), the changes are as follows:
(a) a change to the procedures at Port of Esperance providing for biosecurity measures to be taken to manage the level of biosecurity risk associated with operations carried out at Port of Esperance;
(b) a change to the facilities or amenities available at Port of Esperance for biosecurity officials and human biosecurity officers to perform functions or exercise powers under the Act at Port of Esperance;
(c) a change to the procedures at Port of Esperance that may affect the ability of a person who carries out operations at Port of Esperance to identify biosecurity risks associated with those operations;
(d) a change to the procedures at Port of Esperance that may affect the ability for biosecurity officials or human biosecurity officials to be informed of any identified biosecurity risks associated with operations carried out at Port of Esperance;
(e) a change to the procedures at Port of Esperance for managing any other factors that may contribute to, or affect, the level of biosecurity risk associated with operations carried out at Port of Esperance.
Source text: opening excerpt
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
Part 1 Preliminary
Part 1—Preliminary
1 Name
This is the Biosecurity (First Point of Entry—Port of Esperance) Determination 2019.
3 Authority
This instrument is made under subsection 229(1) of the Biosecurity Act 2015.
4 Definitions
Note: A number of expressions used in this instrument are defined in section 9 of the Act.
In this instrument:
Act means the Biosecurity Act 2015.
freight container means a re‑usable container:
(a) that is designed to be used to transport goods by one or more modes of transport; and
(b) that can be transferred from one mode of transport to another without unloading the goods from the container; and
(c) that is known as a 20‑foot‑long container or a 40‑foot‑long container.
general goods means goods (as defined by section 19 of the Act) other than baggage, freight containers, live horses or waste.
goods means goods (as defined by section 19 of the Act):
(a) that are subject to biosecurity control; or
(b) in relation to which an exposed goods order is in force.
inorganic bulk goods means chemicals, ores, minerals or gases that:
(a) are brought or imported into Australian territory in bulk; and
(b) do not contain animals, plants, organic compounds or microbes.
non‑commercial vessel has the same meaning as in the Biosecurity Regulation 2016.
vessel means a vessel (as defined by section 9 of the Act) that is subject to biosecurity control.
waste means goods (as defined by section 19 of the Act):
(a) that are subject to biosecurity control; and
(b) that are intended, by the person in charge of the vessel on which the goods are carried, to be disposed of.
Part 2—First point of entry
5 First point of entry—vessels
Port of Esperance is a first point of entry for vessels other than non‑commercial vessels.
6 First point of entry—goods
Port of Esperance is a first point of entry for the following:
(a) baggage carried on a vessel other than a non‑commercial vessel or a passenger vessel;
(aa) freight containers;
(b) general goods;
(c) inorganic bulk goods;
(d) waste.
Mechanically, therefore, the instrument: fixes which vessels and which goods may be lawfully processed at Port of Esperance under the Act; ties those classes to named berths within the port; and creates affirmative notification obligations on owners, lessees and operators in the event of business‑entity change or proposed operational/facility changes affecting biosecurity risk management (clause 9). The instrument does not itself set out offence provisions or sanctions; it operates as a determinate scheduling of the port and an overlay of procedural conditions, with enforcement and additional powers derived from the Biosecurity Act 2015 under which it is made.
Main concepts
The instrument relies on core concepts and definitions from the Biosecurity Act 2015 and adds narrow, instrument‑specific definitions. The visible definitional and conceptual architecture is as follows.
Authority and link to the Act: the instrument is a determination made under s 229(1) of the Biosecurity Act 2015 (authority clause repeated at the start). The instrument uses a number of expressions already defined in section 9 of the Act; it also restates some terms for clarity within the instrument (see paragraph headed "In this instrument" in the definitions clause).
Key instrument definitions:
"freight container" is narrowly defined as a re‑usable container designed for multimodal transport that can be transferred between modes without unloading and that is known as a 20‑foot‑long container or a 40‑foot‑long container. The instrument’s definition therefore targets ISO‑type 20‑ft and 40‑ft units (clause 4). That is a narrower taxonomy than "container" in some commercial uses.
"general goods" is defined as goods (see s 19 of the Act) other than baggage, freight containers, live horses or waste (clause 4).
"goods" is defined by reference to s 19 of the Act, but limited in the instrument to goods that are subject to biosecurity control or goods in relation to which an exposed goods order is in force (clause 4).
"inorganic bulk goods" is limited to chemicals, ores, minerals or gases brought in bulk that do not contain animals, plants, organic compounds or microbes (clause 4).
"non‑commercial vessel" imports meaning from the Biosecurity Regulation 2016 (clause 4).
"vessel" is used as defined by the Act for vessels subject to biosecurity control (clause 4).
"waste" means goods subject to biosecurity control intended by the person in charge of the vessel to be disposed of (clause 4).
Functional concepts:
First point of entry: the instrument designates Port of Esperance as a "first point of entry" for particular classes of vessels and goods (clauses 5-6). That status establishes which arrivals may be lawfully processed at that location under the Act’s biosecurity regime.
Biosecurity entry points: the instrument divides the port into discrete biosecurity entry points (Berth 1, Berth 2, Berth 3) and maps them to vessel and goods classes in two separate schedules (clauses 7-8). The schedules are prescriptive about which berth(s) are the designated entry points for each listed class.
Timeliness obligations: the notes in clauses 7 and 8 refer users to the Act (ss 246 and 147) requiring that a vessel that has arrived at Port of Esperance be brought to a biosecurity entry point as soon as practicable, and that goods to be unloaded be brought to the appropriate biosecurity entry point as soon as practicable. The instrument therefore functions within the Act’s timing obligations.
Notification conditions: clause 9 imposes ongoing operational notice requirements on owners, lessees, and persons/bodies responsible for operations at the port. There are two distinct notice triggers. For ownership/lessee changes, the statutory duty is to provide written notice "as soon as practicable after becoming aware" (subsections 9(2)-(3)). For proposed operational or facility changes described in 9(5), the duty is to provide the Agriculture Department with "reasonable notice" in writing (subsection 9(4)). The enumerated types of changes in 9(5) are operational procedures affecting biosecurity measures, facilities/amenities for officials to perform functions under the Act, procedures affecting the ability to identify biosecurity risks or to inform officials of biosecurity risks, and procedures for managing other factors affecting the level of biosecurity risk.
Relationship to other instrumentary elements in the Act: the instrument explicitly points to sections of the Act dealing with prohibited goods (ss 173 and 174), the definition of goods (s 19), the Act’s definitions (s 9) and the operational timing obligations (ss 147 and 246). It is therefore an exercise in specifying place plus process: where (which berths) and how (notice and practical arrival duties) the Act’s biosecurity controls will be exercised at Port of Esperance.
Operational effect on resource allocation: the instrument segregates the functions at the port by berth and by class of goods. Freight containers and general goods are routed expressly to Berth 2. Inorganic bulk goods only to Berth 1 or Berth 2. Baggage and waste to any of Berth 1-3. Vessels other than non‑commercial vessels to Berths 1-3. These allocations will affect port scheduling, labour allocation, and the location of any physical facilities required for biosecurity officials, because clause 9(5)(b) contemplates facilities/amenities for officials to perform functions under the Act.
Taken together, the instrument produces a place‑based, berth‑by‑berth map of where biosecurity officials will assert the Act’s arrival controls at Port of Esperance, and it attaches procedural notice requirements that are aimed at preserving the efficacy of those controls in the face of changes to ownership, operators or operational procedures.
Who it affects
This instrument directly affects three classes of parties and indirectly affects several others through operational knock‑on effects.
Primary affected parties (direct duties or designations in the instrument):
Owners of Port of Esperance. Clause 9(2) imposes a mandatory duty on an owner (or, if more than one, an owner) to give the Agriculture Department written notice "as soon as practicable" where they become aware that there has been, or will be, a change to the business entity operating the port or a biosecurity entry point at the port.
Lessees of Port of Esperance. Clause 9(3) duplicates the owner duty for lessees, again with the "as soon as practicable" trigger and the requirement to notify in writing.
Persons or bodies responsible for carrying out operations at Port of Esperance. Clause 9(4) requires any such responsible party proposing to make an enumerated operational or facility change (see 9(5)) to give the Agriculture Department reasonable written notice of the proposed change.
Masters/persons in charge of arriving vessels and the parties handling goods. While the instrument does not itself restate the master’s duty, the notes explicitly link to ss 246 and 147 of the Act, which require that arriving vessels and goods to be unloaded be brought to biosecurity entry points "as soon as practicable." Thus vessel masters, shipping agents, stevedores, terminal operators and freight forwarders who arrange unloading are operationally affected because they must ensure arrivals and goods are brought to the designated berths (clauses 7-8 and notes).
Secondary affected parties (operational and market effects):
Shipping lines and agents. The berth designations change where certain vessel classes and certain commodity classes must be processed. Freight routes, berth booking, and cost allocation for berth use will be affected in practice because freight container and general goods traffic is concentrated at Berth 2 under clause 8(3).
Port service providers and stevedoring contractors. Workflows will be influenced by which berths process which goods. For example, inorganic bulk goods cannot be processed at Berth 3 (clause 8(2) limits them to Berth 1 or 2), while freight containers and general goods are limited to Berth 2. This concentrates container handling infrastructure and may require reallocation of equipment and personnel.
Biosecurity officials and human biosecurity officers. Clause 9(5)(b) contemplates facilities or amenities at the port that enable officials to perform functions or exercise powers under the Act. The instrument thereby imposes an expectation on the port operator to facilitate official presence and action.
Businesses dependent on imports through Esperance. Traders whose goods are classified as excluded by the instrument (the instrument states the port is not a first point of entry for any other goods) must reroute shipments to other first points of entry. The instrument therefore affects route choice and compliance costs for these traders.
Tertiary and informational effects:
Agricultural Department / Department of Agriculture. The instrument imposes a flow of written notifications to the Agriculture Department under clause 9. That creates administrative workload for the Department to process notices and to assess whether proposed changes affect biosecurity risk management.
Regulators referenced in the Act. The instrument points users to ss 173 and 174 of the Act for prohibited goods matters and to the Biosecurity Regulation 2016 for the non‑commercial vessel definition. Those cross‑references require users to reconcile instrument scope with other regulatory instruments and determinations.
Who is not affected by the instrument:
Non‑commercial vessels are expressly excluded from the port’s designation as a first point of entry for vessels (clause 5); passenger vessels are excluded in relation to baggage (clause 6(a)). Goods not listed in clause 6 are expressly excluded from being brought in at Port of Esperance as a first point of entry (note after clause 6).
Allocation of responsibility among multiple owners/lessees:
Where there are multiple owners or multiple lessees, the instrument adopts a practical trigger: a single owner or a single lessee who becomes aware of a relevant change must give the written notice (see 9(2)-(3)). That allocation reduces the triggering threshold for notification but can create practical questions about which owner or lessee bears ongoing compliance responsibility; the instrument does not allocate liability among co‑owners/leesees.
The instrument therefore affects a compact ecosystem comprised of port owners/operators, shipping and logistics firms, stevedores, traders and the Department of Agriculture. The specific berth allocations and the notice and facility expectations create operational choices and compliance duties, with potential cost and scheduling effects for private parties who route vessels and goods through the port.
Key duties and rights
The instrument creates several positive duties and descriptive rights by designating the port as a first point of entry and specifying biosecurity entry points. There are no express private rights of action or entitlements granted in the instrument; rather the instrument imposes operational duties on relevant parties and maps operational areas for regulatory activity. The principal duties and operating consequences follow.
Designation duties and routing obligations:
Vessels. Port of Esperance is designated a first point of entry for vessels other than non‑commercial vessels (clause 5). The instrument itself does not detail the master’s obligation, but the notes refer to the Act’s requirement that an arrived vessel must be brought to a biosecurity entry point "as soon as practicable" (see note after clause 7 referencing s 246 of the Act). Practically, this will require masters and shipping agents to plan for arrival to Berth 1, 2 or 3 as designated.
Goods. Port of Esperance is a first point of entry for specific goods (clause 6). For goods to be unloaded, the instrument’s note points to s 147 of the Act requiring goods be brought to a biosecurity entry point as soon as practicable. Clause 8 prescribes which berth is the entry point for which goods, e.g. freight containers and general goods to Berth 2 only (clause 8(3)).
Notification duties (clause 9):
Owner notification duty (9(2)). If an owner becomes aware that there has been, or will be, a change to the business entity operating Port of Esperance or a biosecurity entry point at the port, that owner must give the Agriculture Department written notice "as soon as practicable" after becoming aware. This is a mandatory obligation expressed as "must give".
Lessee notification duty (9(3)). The same duty rests with a lessee (or, if more than one, a lessee).
Operational change pre‑notice duty (9(4)-(5)). A person or body responsible for carrying out operations at the port who proposes to make certain changes (as listed in 9(5)) must give the Agriculture Department reasonable written notice of the proposed change. The listed changes include procedural changes that affect biosecurity measures, facility or amenity changes that affect officials’ abilities to perform their functions, procedural changes that affect identification of biosecurity risks or the informing of officials, and procedural changes to manage other factors affecting biosecurity risk (9(5)(a)-(e)). The duty is framed as "must give … reasonable notice."
Form and timing requirements:
Notices under 9(2) and 9(3) must be in writing and given "as soon as practicable after becoming aware" of the change. The instrument does not define "as soon as practicable", leaving it context‑sensitive.
Notices under 9(4) must be in writing and given with "reasonable notice" of the proposed change. The instrument does not define "reasonable" numerically or procedurally.
Rights and entitlements:
The instrument does not create express private rights or privileges in favour of the port owner/operator beyond the designation that the port is a first point of entry for the specified goods and vessels. That designation is an entitlement in the sense that the port may lawfully receive those classes of arrivals for the purposes of the Act. The instrument does not, however, confer or limit commercial licence arrangements, harbour dues, berth use charges, or third‑party contractual rights; those remain matters of underlying commercial agreements and other regulatory regimes.
Scope limitations and exclusions:
Non‑commercial vessels are excluded (clause 5). Baggage for passenger vessels is excluded (clause 6(a)). The instrument explicitly disclaims that the port is a first point of entry for any goods other than those listed (note after clause 6). The instrument thus simultaneously grants entry‑point status for particular classes and denies it for everything else.
Cross‑referenced statutory duties:
Clause 7’s note flags the Act’s s 246 duty that an arrived vessel must be brought to an entry point as soon as practicable. Clause 8’s note flags s 147 in relation to goods to be unloaded. Those cross‑references impose duties external to the instrument but relevant to operational compliance.
Allocation among multiple parties:
Where multiple owners or lessees exist, the instrument requires notice from "an owner" or "a lessee" (9(2)-(3)), lowering the immediate coordination threshold for notification but potentially leaving residual obligations or liabilities among co‑owners/leesees unarticulated in the instrument.
In short, the instrument imposes mandatory notification duties on owners, lessees and operators, routes vessels and goods to explicit berth locations that must be used in practice, and relies on the Act for timing obligations. It does not itself specify sanctions or enforcement mechanisms; those are expected to be applied under the Act that authorised the determination.
Penalties and enforcement
The determination itself does not set out criminal, civil or administrative penalties. It is a statutory instrument made under subsection 229(1) of the Biosecurity Act 2015 that prescribes place‑based designations and procedural conditions. Enforcement, penalties and operational powers referenced in the instrument must therefore be read in conjunction with the Biosecurity Act 2015 and associated instruments; the determination repeatedly points to Act provisions for time‑critical duties (notes to clauses 7 and 8 reference ss 246 and 147 of the Act) and relies upon the Act for definition and authority (the instrument is made under s 229(1)).
What the instrument mandates that is enforceable in practice:
Mandatory notification obligations (clause 9). The instrument uses "must give" when requiring owners, lessees and operationally responsible persons to notify the Agriculture Department in writing. Those are explicit obligations. Non‑compliance with an instrument made under the Act is likely to be actionable through the Act’s general enforcement mechanisms, but the instrument itself does not state the form of sanction for failing to provide the notices.
Routing to designated biosecurity entry points. The instrument assigns the berths to classes of vessels and goods. The notes cite the Act’s requirements that an arrived vessel must be brought to a biosecurity entry point, and that goods to be unloaded must be brought to a biosecurity entry point as soon as practicable (s 246 and s 147 respectively). Those duties derive from the Act and thus enforcement of failure to comply will rest with the Act’s powers.
What the instrument does not do in enforcement terms:
It does not create or list particular offence provisions, monetary penalties, infringement notice amounts, or administrative sanctions. The text contains no schedules of fines or specific enforcement procedures. Therefore, any penal or coercive response to non‑compliance flows from the Act and subordinate instruments that provide enforcement frameworks.
It does not provide an express process for review or appeal of decisions made by the Agriculture Department in response to notifications or to the exercise of powers at the port. The determination is procedural and prescriptive, not adjudicative.
Practical enforcement mechanisms to expect (by implication from the Act references):
Because the instrument intentionally references Act provisions that impose duties on masters and those unloading goods to bring vessels and goods to entry points as soon as practicable, enforcement in operational situations will be executed under the Act’s inspection, direction and compliance powers (the instrument’s function is to locate those powers in physical space and to impose notification duties).
The Agriculture Department is the recipient of required notices under clause 9; processing those notices will generate administrative interactions between the Department and the port operator, and potential subsequent directions or conditions under the Act. The instrument does not itself spell out what the Department may do upon receipt of notice.
Compliance uncertainty and legal exposure:
Because the instrument uses non‑quantitative standards,"as soon as practicable" and "reasonable notice",there is an element of interpretive uncertainty around the precise timing and content of required notices. That uncertainty may generate disputes about whether notification obligations were satisfied, pushing parties to rely on the Act’s general powers and enforcement instruments to resolve non‑compliance. The instrument therefore generates compliance risk that must be managed through careful operational processes and clear documentary evidence of notification and timing.
In summary, enforcement exists indirectly: the determination sets obligations and designations but leaves sanctions and enforcement modalities to the Biosecurity Act 2015 and other implementing regulations. Parties affected should assume that failure to comply with the instrument’s mandatory duties will expose them to whatever enforcement mechanisms the Act makes available, and should therefore plan to comply with the written‑notice and routing duties specified in clauses 7-9.
How it interacts with other laws
This instrument is an application of the Biosecurity Act 2015’s power to make determinations regarding first points of entry and biosecurity entry points. It is intentionally cross‑referential and must be read in the context of the Act and the Biosecurity Regulation 2016. The instrument itself contains a number of explicit cross‑references; the most salient interactions are set out below.
Primary statutory relationships:
Biosecurity Act 2015. The instrument is made under s 229(1) of the Act (authority clause). It uses defined terms that the Act provides (note before clause 4 referencing s 9) and its routing obligations refer to Act provisions on timing, specifically ss 147 (goods to be brought to a biosecurity entry point) and 246 (vessels to be brought to a biosecurity entry point). Because the instrument is a subordinate instrument under the Act, duties created by the instrument operate alongside and within the Act’s substantive offences, powers of direction, detention, inspection, and treatment that are set out in other parts of the Act.
Biosecurity Regulation 2016. The instrument imports the definition of "non‑commercial vessel" from the Biosecurity Regulation 2016 (clause 4). That means classification of vessels as non‑commercial for exclusion from clause 5 is dependent on the Regulation’s definition and any amendments to that definition will alter the instrument’s practical reach.
Specific cross‑references invoked in the instrument:
Section 9 of the Act. The instrument repeatedly notes that a number of expressions are defined in s 9 of the Act. The instrument therefore relies on the Act to supply technical meaning for commonly used terms such as "vessel", "goods", and other statutory terms.
Section 19 (goods definition) and "exposed goods order". The instrument defines "goods" by reference to s 19 of the Act and by the concept of goods subject to biosecurity control or to which an exposed goods order applies (clause 4). Operational application therefore depends on the Act’s criteria for what goods are subject to biosecurity control and the framework for issuing exposed goods orders.
Sections 173 and 174 of the Act. The instrument points readers to ss 173 and 174 regarding prohibited goods and conditionally non‑prohibited goods, noting that the port’s designation does not override those rules (note after clause 6). Shipments must still be tested against the Act’s broader prohibitions and conditional regimes.
Sections 147 and 246 of the Act. The instrument’s notes link obligations about bringing goods and vessels to biosecurity entry points to those sections. Operational obligations therefore derive from the Act and the instrument is a local specification of where those Act obligations must be performed.
Interplay with commercial regulatory regimes:
Port operation, berth allocation, and wharf management regimes under state or local law. The instrument sets which berths are biosecurity entry points, but it does not alter underlying property rights, leases, or commercial arrangements governing berth use. Port owners, lessees and berth users must reconcile the instrument’s berth designations with lease obligations, harbour master directions, and any state‑level port regulation. Clause 9(2)-(3) specifically anticipates changes to the business entity operating the port or a biosecurity entry point; these changes will likely implicate commercial contracts and state regulatory regimes.
Customs, maritime safety and environmental legislation. The instrument operates alongside customs clearance, maritime safety obligations and environmental laws; for example, waste designated as a class of goods in clause 6(d) and clause 8(1)(b) may also be subject to environmental regulation. The instrument does not displace those regimes.
Practical legal interactions and sequencing:
Before routing a vessel or unloading goods at Port of Esperance, actors must consider (a) whether the goods are permitted at that first point of entry under clause 6 and the Act (consider s 173/174), (b) whether the vessel is a non‑commercial vessel excluded by clause 5 and the Biosecurity Regulation 2016, and (c) whether the specific berth is the designated biosecurity entry point for that class of goods per clause 8. This creates a decision tree where the instrument’s local designations interact with national rules on prohibited goods and vessel classification.
Changes to port facilities or procedures that might affect biosecurity risk fall within clause 9(5) and therefore require pre‑notification to the Agriculture Department. That interlocks with state or local approvals needed to effect physical changes at the port.
Limitations of the instrument in legal effect:
The instrument does not repeal, amend or replace the Biosecurity Act or other primary legislation. It is a specification instrument that operates within the Act’s statutory framework. Any enforcement, sanctioning, or delegation of new powers beyond those in the Act would need to be grounded in the Act; the instrument does not itself alter the Act’s enforcement architecture.
In short, the instrument is tightly integrated with the Biosecurity Act 2015 and the Biosecurity Regulation 2016; users must read it alongside the referenced Act sections (notably ss 9, 19, 147, 173, 174, 229 and 246) and any other determinations or regulations that affect vessel classification and prohibited goods. Commercial and state regulatory regimes remain relevant and must be reconciled with the instrument’s berth allocations and notice obligations.
Amendment history
The instrument itself is titled the Biosecurity (First Point of Entry,Port of Esperance) Determination 2019, indicating its year of making as 2019 (see clause 1: "This is the Biosecurity (First Point of Entry,Port of Esperance) Determination 2019"). The text provided contains multiple repetitions of the instrument’s clauses but does not include any appended amending instrument notifications, later dates, rescission clauses, or marginal notes indicating subsequent versions.
What the instrument records about its own provenance:
Name and date. Clause 1 identifies the instrument and year. The authority clause (clause 3) notes it is made under subsection 229(1) of the Biosecurity Act 2015.
No internal amendment notes. The instrument text does not include any italicised or bracketed amendment annotations, nor does it attach any editorial notes listing amendments.
Implications for practical users:
Unless there is a separate public record of subsequent amendments (e.g. in the Federal Register of Legislation or a consolidated database), the text as presented should be treated as the 2019 determination. Users should check the Federal Register of Legislation or the Department of Agriculture’s public determinations list to confirm there have been no later variations, revocations or replacements.
Because the instrument cross‑references external definitions (e.g. non‑commercial vessel in the Biosecurity Regulation 2016), amendments to those external instruments can change the instrument’s practical effect without requiring an amendment to the determination itself. For example, if the Biosecurity Regulation 2016 alters the non‑commercial vessel definition, the set of vessels excluded by clause 5 may change automatically.
No expiry or sunset clause:
The instrument contains no express expiry date, sunset provision or automatic review clause. It therefore appears to remain in force until it is revoked or amended under the powers in s 229(1) of the Act or superseded by a later determination.
Administrative recordkeeping:
Clause 9 requires written notices to be given to the Agriculture Department in specified circumstances. Those written notices will generate an administrative trail and can function as documentary evidence relevant to any later amendment or regulatory interaction concerning facility or operational changes.
Because the instrument includes no internal amendment history in the provided text, practitioners should verify the current status of the determination on the official legislation register and confirm whether there have been any subsequent instruments that amend or revoke this 2019 determination. The instrument’s reliance on other subordinate instruments means that changes to those instruments should also be monitored as part of an ongoing compliance programme.
Litigation history
The instrument’s text contains no reference to judicial decisions, reviews, tribunal determinations or litigation relating to the instrument itself. The content provided does not record any legal challenges, declaratory proceedings or administrative reviews involving the port determination, nor does it append any notes about contested administrative actions.
What can be inferred from the text:
The instrument functions as an administrative determination under s 229(1) of the Biosecurity Act 2015. The dataset supplied does not show any case law that interprets or applies this particular determination.
Because the instrument sets operational and notification duties, disputes that may give rise to litigation in practice would likely involve alleged failure to comply with the instrument’s notification requirements (clause 9), alleged misuse of berth allocations, or the exercise of enforcement powers under the Biosecurity Act 2015 in the port context. None of those disputes are cited in the instrument text.
Practical implications for practitioners:
Absent recorded litigation in the instrument, parties seeking precedent or interpretive guidance on ambiguous phrases used in the instrument (such as "as soon as practicable" or "reasonable notice") will need to rely on case law interpreting the same phrases in the Biosecurity Act, other statutory contexts, or general administrative law principles. The instrument itself provides no litigated clarifications.
Administrative disputes about whether the Agriculture Department responded appropriately to a notice or whether the content or timing of a notice was sufficient will tend to be resolved under the Act’s administrative review processes, judicial review principles, or in courts where the Act’s enforcement powers were exercised. No such cases are included in the instrument.
Recommended practical step:
If a party anticipates disagreement about a notice’s sufficiency or timing, preserve contemporaneous documentary evidence (date/time stamps on written notices, records of board/management decisions, emails, and operational schedules) because the instrument’s mandatory duties use qualitative standards that invite factual assessment, which in litigation or review will turn on the recorded facts.
In sum, the supplied instrument contains no litigation history. If litigation occurs in future, it will be necessary to look to decisions under the Biosecurity Act and to general administrative law jurisprudence to interpret any ambiguous statutory standards or procedural obligations created by this determination.
Gotchas
This section flags specific drafting and practical pitfalls that arise from the instrument’s text. Each gotcha identifies a concrete mechanism by which compliance, operational planning, or legal exposure can become problematic.
Narrow definition of "freight container"
The instrument defines "freight container" specifically as a 20‑foot or 40‑foot reusable container transferable between modes without unloading (clause 4). That excludes non‑standard container sizes, intermediate swap bodies, and some bulk containerised units used in niche trade. Operators unloading containers not matching the instrument’s narrow definition must check whether the goods still fall under "general goods" or another category, otherwise those goods might not be eligible to arrive at the port as a first point of entry. Practitioners should not assume every "container" is a "freight container" for the purposes of the instrument.
"General goods" is a residual category excluding live horses, freight containers, baggage and waste
Clause 4’s definition of "general goods" explicitly excludes baggage, freight containers, live horses and waste. That residual carve‑out means certain commodities commonly treated as general cargo elsewhere may fall outside this instrument’s classification and must be checked against the Act and other determinations.
Exclusion of passenger‑vessel baggage and of non‑commercial vessels
Clause 6(a) excludes baggage carried on passenger vessels from the port’s first point of entry designation. Clause 5 excludes non‑commercial vessels entirely. Operators should verify the vessel classification under the Biosecurity Regulation 2016 (clause 4), because a change to that Regulation could change whether a vessel is excluded. Misclassification can cause arrival delays and re‑routing costs.
Freight containers and general goods are confined to Berth 2 (clause 8(3)). In peak periods this could cause scheduling congestion, demurrage costs, or delays if Berth 2’s equipment, gate infrastructure or land side connections are insufficient. Port operators and shipping lines must align berth booking and resource allocation to avoid bottlenecks.
Asymmetric timing standards: "as soon as practicable" vs "reasonable notice"
Clause 9(2)-(3) require written notice "as soon as practicable" when an owner or lessee becomes aware of a change to the business entity operating the port. Clause 9(4) requires "reasonable notice" for proposed operational changes listed in 9(5). These non‑quantitative standards invite fact‑intensive disagreements with the Agriculture Department about sufficiency and timing. Parties should err on the side of earlier and more detailed communication to reduce risk of being challenged for "late" notice.
Single owner/lessee triggers
The instrument requires "an owner" or "a lessee" (if there are multiples) to give notice (9(2)-(3)). That reduces coordination burdens but can produce internal disputes among co‑owners or co‑lessees about who is responsible for notifying and whether notice was adequate. Commercial parties should document internal governance mechanisms allocating the notification duty to a named individual or role.
Unspecified content of notices
The instrument mandates written notice but does not specify what information must be contained in the notice. That creates uncertainty about whether a short alert suffices or whether detailed operational data is required. Best practice is to provide specific details of the change, effective dates, impact on biosecurity procedures and contact points for follow up.
Facilities and amenities for officials are expected but not defined
Clause 9(5)(b) contemplates changes to facilities or amenities available for biosecurity officials to perform functions. The instrument does not define what facilities are required. Ports may be exposed to ad hoc directional requirements from the Agriculture Department after notice, or to disagreement about whether existing amenities are sufficient. Ports should maintain a baseline standard of amenities (secure office space, power, lighting, sample holding facilities, biosecure waste handling) and document them.
Interaction with prohibited goods rules
The instrument points to ss 173 and 174 of the Act for matters on prohibited goods. A party cannot assume that just because a good is listed in clause 6 it is permissible; the Act’s prohibitions and conditional non‑prohibition regimes still apply.
No sanctions in the instrument itself; enforcement depends on the Act
Because the instrument does not list penalties, parties may incorrectly assume non‑compliance carries no immediate consequence. In practice, the Act supplies enforcement powers; failure to provide notices or to route vessels/goods appropriately can draw enforcement action under the Act. Parties should not treat the absence of explicit sanctions as absence of enforcement risk.
Potential administrative workload for the Agriculture Department
The instrument creates a stream of written notices to the Department under clause 9. Ports should be prepared to receive follow up requests, audits or directions. Underestimating the Department’s administrative processing time and potential subsequent directions can cause operational disruptions.
Changes in external instruments affect scope without amendment
As the instrument imports definitions from the Act and the Biosecurity Regulation 2016, changes to those instruments can alter the set of goods and vessels covered without any alteration to this determination. Continuous monitoring of the legislative and regulatory environment is necessary.
These are concrete operational and legal "gotchas" that flow directly from the instrument’s text and its interaction with the Biosecurity Act and the Biosecurity Regulation 2016. Documented processes, early and detailed notification, and conservative operational planning are the primary mitigants.
How to comply
This section sets out a practical compliance checklist and recommended procedures grounded in the instrument’s text, with citations to the relevant clauses. The target audience is port owners/operators, lessees, shipping agents, stevedores, freight forwarders and in‑house counsel or compliance officers.
Governance and internal allocation of notification responsibility (clause 9(2)-(3))
Designate a named compliance officer or office responsible for clause 9 notifications. Because the instrument allows "an owner" or "a lessee" to satisfy the notice requirement, expressly designate which owner or lessee (or which role) has the duty to send notices to the Agriculture Department and create written internal governance assigning that duty.
Establish an internal escalation protocol: if any director, manager or operations lead becomes aware of a change to the business entity operating the port or a biosecurity entry point, they must immediately notify the designated compliance officer so the public notice can be prepared and sent "as soon as practicable" (9(2)-(3)).
Prepare written‑notice templates and recordkeeping (clause 9(2)-(4))
Draft standard written notice templates that capture: nature of the change (ownership/lessee change or proposed operational/facility change), effective or proposed dates, description of expected impact on biosecurity processes, contact details and proposed mitigations.
Use time‑stamped delivery methods (email with delivery/read receipts plus registered post where appropriate) and keep an auditable record of the notice, including file copies and acknowledgement of receipt from the Agriculture Department.
Advance notice for proposed operational/facility changes (clause 9(4)-(5))
For any proposed change within the scope of 9(5) (procedural changes managing biosecurity measures, changes to facilities/amenities for officials, changes affecting the ability to identify or inform officials about risks, or other procedural changes affecting biosecurity risk), provide the Agriculture Department with "reasonable" written notice. Because "reasonable" is not defined, treat the requirement conservatively: provide notice well in advance of implementation, include technical and risk assessment documents, and offer to consult.
Where facility changes require state or local planning approvals, include anticipated timing for those approvals in the notice to the Department and coordinate the sequence of regulatory approvals and Department notifications.
Operational routing to designated berths (clauses 7-8 and Act ss 147, 246)
Ensure vessel masters, shipping agents and terminal operators are aware of which berth is the designated biosecurity entry point for their vessel or goods class. Key mappings: vessels other than non‑commercial vessels to Berth 1, Berth 2 or Berth 3 (clause 7); freight containers and general goods to Berth 2 (clause 8(3)); inorganic bulk goods to Berth 1 or Berth 2 (clause 8(2)); baggage and waste to Berth 1-3 (clause 8(1)).
Incorporate berth designation checks into pre‑arrival notifications and berth booking systems. Use arrival notices to confirm that the vessel will be brought to the correct berth "as soon as practicable" in accordance with ss 246 and 147 of the Act (see notes to clauses 7 and 8).
Infrastructure and amenities for biosecurity officials (clause 9(5)(b))
Audit existing facilities provided to biosecurity officials and human biosecurity officers: secure office/inspection areas, sample holding and storage that can meet biosecurity standards, power and lighting, communication facilities and access control. Document the amenities and their compliance with the Act’s needs.
If proposing any changes to these facilities, follow the pre‑notice protocol in step 3. If not proposing changes, maintain documentation demonstrating ongoing provision and maintenance of those amenities.
Commodity and container classification (clause 4 and clause 6)
Implement commodity classification procedures that map incoming consignments to the instrument’s categories: baggage, freight containers (confirm 20‑ft/40‑ft unit identification), general goods (ensure they are not live horses or otherwise excluded), inorganic bulk goods (confirm absence of animals/plants/organic compounds/microbes), and waste (confirm intended disposal).
For containerised cargo, verify container size and type against the instrument’s "freight container" definition; if non‑standard container sizes are used, classify the cargo under "general goods" where appropriate or arrange alternate first points of entry if not permitted.
Interface with customs and other agencies
Coordinate with customs, state harbour masters and environmental regulators to ensure that routing to the specified berths is compatible with other regulatory clearances. Where conflicts arise, escalate to the Agriculture Department as required by clause 9 and keep cross‑agency documentation to show steps taken to reconcile competing requirements.
Training and operational manuals
Update port operations manuals and training material for berth assignment, reception of biosecurity officials, and the steps required to bring vessels and goods to biosecurity entry points. Ensure stevedores and operators know to await or facilitate biosecurity inspection before dispersal of goods beyond the biosecurity entry point.
Monitoring external legislative changes
Monitor amendments to the Biosecurity Act 2015 and Biosecurity Regulation 2016, especially any changes to the definition of "non‑commercial vessel" or to the Act’s list of prohibited goods (ss 173-174). Changes in external instruments can alter which vessels/goods are covered by the determination without any change to the instrument itself.
Contingency planning for congestion and diversion
Because freight containers and general goods are concentrated at Berth 2, prepare contingency plans for overflow, including arrangements for temporary handling areas, alternate first points of entry (if legally permissible), or staggered arrival scheduling to avoid demurrage costs. Any contingency that involves material changes to port procedures should be pre‑notified under clause 9(4) if it affects the port’s ability to identify or manage biosecurity risks.
Legal review and record retention
Have legal counsel review notice content and timing protocols to reduce interpretive risk associated with "as soon as practicable" and "reasonable notice". Retain records of notices, responses, operational schedules and maintenance of facilities for at least the period required by the Department or generally accepted records retention standards.
Liaison with the Agriculture Department
Maintain an open line of communication with the Agriculture Department, with named contacts for day‑to‑day issues and escalation contacts for questions about adequacy of facilities or timing. Where the Department requests information, respond promptly and with evidence to support assertions about reasonableness or practicability.
Following these steps will align operational practice with the instrument’s express mandates (clauses 4-9) and with the Act provisions it cross‑references (notably ss 147 and 246). Because the instrument leaves some standards qualitative, conservatism and good documentation are the primary compliance mitigants.
Note 1: Port of Esperance is not a first point of entry for any other goods.
Note 2: For other matters relating to whether particular goods may be brought into a particular first point of entry, see sections 173 and 174 of the Act (which deal with prohibited goods and conditionally non‑prohibited goods) and any determinations made under those sections.
Part 3—Biosecurity entry points
7 Biosecurity entry points—vessels
Each area of Port of Esperance specified in column 2 of an item of the following table is designated as a biosecurity entry point for a vessel, or a vessel included in a class of vessels, specified in column 1 of the item.
Note: A vessel that has arrived at Port of Esperance must be brought to a biosecurity entry point for the vessel at that port as soon as practicable (see section 246 of the Act).
8 Biosecurity entry points—goods
Each area of Port of Esperance specified in column 2 of an item of the following table is designated as a biosecurity entry point for goods, or goods included in a class of goods, specified in column 1 of the item.
Note: If a vessel has arrived at Port of Esperance and is carrying goods that are to be unloaded from the vessel, those goods must be brought to a biosecurity entry point for those goods as soon as practicable (see section 147 of the Act).
Part 4—Conditions
9 Conditions—notifying Agriculture Department of changes
(1) The determination of Port of Esperance as a first point of entry by this instrument is subject to the conditions in this section.
(2) If the owner (or, if there is more than one owner, an owner) of Port of Esperance becomes aware that there has been, or will be, a change to the business entity operating:
(a) Port of Esperance; or
(b) a biosecurity entry point at Port of Esperance;
the owner (or, if there is more than one owner, an owner) must give the Agriculture Department, in writing, notice of the change as soon as practicable after becoming aware that the change has occurred or will occur.
(3) If the lessee (if any) (or, if there is more than one lessee, a lessee) of Port of Esperance becomes aware that there has been, or will be, a change to the business entity operating:
(a) Port of Esperance; or
(b) a biosecurity entry point at Port of Esperance;
the lessee (or, if there is more than one lessee, a lessee) must give the Agriculture Department, in writing, notice of the change as soon as practicable after becoming aware that the change has occurred or will occur.
(4) If a person or body that is responsible for carrying out operations at Port of Esperance proposes to make a change referred to in subsection (5), the person or body must give the Agriculture Department, in writing, reasonable notice of the proposed change.
(5) For the purposes of subsection (4), the changes are as follows:
(a) a change to the procedures at Port of Esperance providing for biosecurity measures to be taken to manage the level of biosecurity risk associated with operations carried out at Port of Esperance;
(b) a change to the facilities or amenities available at Port of Esperance for biosecurity officials and human biosecurity officers to perform functions or exercise powers under the Act at Port of Esperance;
(c) a change to the procedures at Port of Esperance that may affect the ability of a person who carries out operations at Port of Esperance to identify biosecurity risks associated with those operations;
(d) a change to the procedures at Port of Esperance that may affect the ability for biosecurity officials or human biosecurity officials to be informed of any identified biosecurity risks associated with operations carried out at Port of Esperance;
(e) a change to the procedures at Port of Esperance for managing any other factors that may contribute to, or affect, the level of biosecurity risk associated with operations carried out at Port of Esperance.
1 Name
1 Name
This is the Biosecurity (First Point of Entry—Port of Esperance) Determination 2019.
3 Authority
3 Authority
This instrument is made under subsection 229(1) of the Biosecurity Act 2015.
4 Definitions
4 Definitions
Note: A number of expressions used in this instrument are defined in section 9 of the Act.
In this instrument:
Act means the Biosecurity Act 2015.
freight container means a re‑usable container:
(a) that is designed to be used to transport goods by one or more modes of transport; and
(b) that can be transferred from one mode of transport to another without unloading the goods from the container; and
(c) that is known as a 20‑foot‑long container or a 40‑foot‑long container.
general goods means goods (as defined by section 19 of the Act) other than baggage, freight containers, live horses or waste.
goods means goods (as defined by section 19 of the Act):
(a) that are subject to biosecurity control; or
(b) in relation to which an exposed goods order is in force.
inorganic bulk goods means chemicals, ores, minerals or gases that:
(a) are brought or imported into Australian territory in bulk; and
(b) do not contain animals, plants, organic compounds or microbes.
non‑commercial vessel has the same meaning as in the Biosecurity Regulation 2016.
vessel means a vessel (as defined by section 9 of the Act) that is subject to biosecurity control.
waste means goods (as defined by section 19 of the Act):
(a) that are subject to biosecurity control; and
(b) that are intended, by the person in charge of the vessel on which the goods are carried, to be disposed of.
Part 2 First point of entry
Part 1—Preliminary
1 Name
This is the Biosecurity (First Point of Entry—Port of Esperance) Determination 2019.
3 Authority
This instrument is made under subsection 229(1) of the Biosecurity Act 2015.
4 Definitions
Note: A number of expressions used in this instrument are defined in section 9 of the Act.
In this instrument:
Act means the Biosecurity Act 2015.
freight container means a re‑usable container:
(a) that is designed to be used to transport goods by one or more modes of transport; and
(b) that can be transferred from one mode of transport to another without unloading the goods from the container; and
(c) that is known as a 20‑foot‑long container or a 40‑foot‑long container.
general goods means goods (as defined by section 19 of the Act) other than baggage, freight containers, live horses or waste.
goods means goods (as defined by section 19 of the Act):
(a) that are subject to biosecurity control; or
(b) in relation to which an exposed goods order is in force.
inorganic bulk goods means chemicals, ores, minerals or gases that:
(a) are brought or imported into Australian territory in bulk; and
(b) do not contain animals, plants, organic compounds or microbes.
non‑commercial vessel has the same meaning as in the Biosecurity Regulation 2016.
vessel means a vessel (as defined by section 9 of the Act) that is subject to biosecurity control.
waste means goods (as defined by section 19 of the Act):
(a) that are subject to biosecurity control; and
(b) that are intended, by the person in charge of the vessel on which the goods are carried, to be disposed of.
Part 2—First point of entry
5 First point of entry—vessels
Port of Esperance is a first point of entry for vessels other than non‑commercial vessels.
6 First point of entry—goods
Port of Esperance is a first point of entry for the following:
(a) baggage carried on a vessel other than a non‑commercial vessel or a passenger vessel;
(aa) freight containers;
(b) general goods;
(c) inorganic bulk goods;
(d) waste.
Note 1: Port of Esperance is not a first point of entry for any other goods.
Note 2: For other matters relating to whether particular goods may be brought into a particular first point of entry, see sections 173 and 174 of the Act (which deal with prohibited goods and conditionally non‑prohibited goods) and any determinations made under those sections.
Part 3—Biosecurity entry points
7 Biosecurity entry points—vessels
Each area of Port of Esperance specified in column 2 of an item of the following table is designa
This is an opening excerpt, not the complete document.