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

The instrument operates with several distinct definitions and categories. A first point of entry is a port or place declared under the Act where vessels or goods may be brought into Australian territory. Port of Gladstone is declared as a first point of entry for vessels generally (section 5) and for goods generally, with the exclusions noted above (section 6). A biosecurity entry point is a specific area within a first point of entry where the vessel or goods must actually be taken or unloaded. The determination specifies these areas by reference to berths and terminals at the port. For vessels, three categories exist: non commercial vessels (must use Gladstone Marina), passenger vessels (must use Auckland Point No 1), and all other vessels (which must use one of 20 listed areas including Auckland Points 1 4, APLNG Terminal, Barney Point Wharf, Boyne Smelter, Fisherman’s Landing No 1, 2, 4, 5, Gladstone LNG Facility Curtis Island, QGC Curtis Island LNG Export Jetty, RG Tanna Coal Terminal Nos 1 4, South Trees East and West, and Wiggins Island Coal Terminal). For goods, separate tables apply depending on the nature of the goods: non commercial vessel baggage and waste (must be brought to Gladstone Marina), freight containers (Auckland Point No 3 or 4), inorganic bulk goods (various terminal areas), general goods (Auckland Point No 1, 3, 4, or Barney Point Wharf), and waste (a larger list of areas). The term inorganic bulk goods is defined restrictively: chemicals, ores, minerals or gases brought in bulk that do not contain animals, plants, organic compounds or microbes. A freight container is limited to 20 foot or 40 foot re usable containers designed for intermodal transfer. General goods is defined as a residual category: goods (as defined by section 19 of the Act) that are not baggage, freight containers, live horses, or waste. Waste is defined as goods subject to biosecurity control that are intended to be disposed of by the person in charge of the vessel. The classification of goods into these categories determines which biosecurity entry point must be used, and therefore affects routing and handling costs for cargo owners. A misclassification could lead to a vessel unloading at the wrong berth, potentially triggering a breach of the Act. The instrument also distinguishes non commercial vessels by reference to the Biosecurity Regulation 2016, which exempts certain smaller vessels from commercial requirements but still subjects them to biosecurity entry point obligations for non commercial vessel baggage and waste.

The determination directly affects several groups. The owner of Port of Gladstone and any lessee of the port bear the conditions in Part 4. They must monitor changes to the business entity operating the port or any biosecurity entry point, and notify the Department in writing as soon as practicable after becoming aware of such a change. They must also give reasonable notice in writing to the Department if they propose to change procedures for biosecurity measures, facilities for biosecurity officials, procedures that affect identification of biosecurity risks, procedures that affect communication of identified risks, or procedures for managing other factors contributing to biosecurity risk (section 9). The person or body responsible for carrying out operations at Port of Gladstone (which may be the owner, lessee, or a third party terminal operator) is also captured by the notice obligations for changes. Vessel operators and their agents must ensure that their vessel goes to the correct biosecurity entry point upon arrival. For passenger vessels, the only option is Auckland Point No 1; for non commercial vessels it is Gladstone Marina; for all other vessels any of the 20 listed areas may be used, but the operator must choose one and must bring the vessel there as soon as practicable. Cargo owners and freight forwarders are affected indirectly because the goods entry point table dictates where containers, bulk commodities, general goods and waste may be unloaded. If a cargo owner imports waste, the allowable unloading points are much wider, but for general goods only four berths are available. That limitation may constrain supply chain flexibility and increase costs if those berths are congested or not suited to the cargo. The Department of Agriculture is the recipient of all notifications under section 9 and must process them, potentially leading to staff time and administrative overhead. Biosecurity officials and human biosecurity officers are affected because the determination informs where they are expected to perform inspections and exercise powers. The instrument also indirectly affects insurers and financiers of maritime trade, because compliance with biosecurity entry point requirements affects risk exposure and liability for delays or penalties. Foreign vessel operators unfamiliar with Australian biosecurity law may inadvertently use a non designated berth, making it important for local agents and charterers to verify the correct entry point before arrival.

The instrument creates duties primarily through the interaction with the Act. A vessel operator has a duty under section 246 of the Act to bring the vessel to a biosecurity entry point as soon as practicable after arriving at Port of Gladstone. That duty is enforceable regardless of whether the operator knew which entry point was designated. The determination provides the information necessary to comply: the operator must match the vessel type to the correct entry point specified in section 7. Similarly, the person in charge of goods has a duty under section 147 of the Act to bring those goods to a biosecurity entry point for those goods as soon as practicable after the vessel arrives. The goods entry point table in section 8 must be consulted. Where no biosecurity entry point is designated for particular goods (e.g. live horses or passenger vessel baggage), the section 147 duty does not apply to the unloading of those goods, which means they can be unloaded elsewhere within the first point of entry subject to any other requirements under the Act.

The owner or lessee of the port has a duty under section 9(2) and (3) to notify the Department of changes to the business entity operating the port or a biosecurity entry point. That duty arises when the owner or lessee becomes aware of a past or future change. It is not a duty to prevent the change, only to give written notice. Under section 9(4), the person responsible for carrying out operations at the port has a duty to give the Department reasonable notice of a proposed change to procedures, facilities, or amenities that affect biosecurity risk management. Unlike the business entity change, this duty requires notice before the change occurs and requires the notice to be reasonable in timing. The Department has a corresponding right to receive that notice and to evaluate the proposed change. The Department does not have a power under this instrument to veto the change, but if the change increases biosecurity risk the Department may take other action under the Act, such as varying or revoking the determination. Port users have the right to use the designated biosecurity entry points for vessels and goods, but that right is contingent on compliance with the conditions. There is no right in the instrument to demand that a particular area be added or removed. The granting of a first point of entry designation is a privilege conferred by the Director of Biosecurity, and the conditions reflect that the port operator must maintain biosecurity standards to retain that privilege.

The determination itself does not prescribe monetary penalties or imprisonment terms. Enforcement flows from the Biosecurity Act 2015. Failure to bring a vessel to the correct biosecurity entry point is an offence under section 246 of the Act. The maximum penalty for an individual is 120 penalty units (currently $31,320 as of July 2024) or for a body corporate 600 penalty units ($156,600). Similarly, failing to bring goods to the correct biosecurity entry point under section 147 is an offence with the same penalty scale. These are strict liability offences in some respects, but the Act provides defences such as reasonable excuse or that the person could not reasonably have known the requirement.

The conditions in section 9 are not standalone penalties. However, if the owner, lessee, or operator does not comply with the notification duties, that could be a breach of a condition of the first point of entry determination. Under section 229(2) of the Act, the Director of Biosecurity may revoke or vary a determination if satisfied that a condition is not being complied with. Revocation would mean that Port of Gladstone is no longer a first point of entry for the purposes of the Act, which would effectively stop international vessels from landing there unless alternative arrangements are made. That is a severe economic consequence, far beyond any fine. The instrument also creates an obligation to give notice, but does not make it an offence to proceed with a change before giving notice; the Department could react by revoking the designation if it regards the failure as a material breach.

Enforcement discretion rests with the Department. It may issue infringement notices (on the spot fines) for certain offences under the Act. It can also seek civil penalties or injunctions. In practice, the Department is likely to work with port operators to address non compliance before escalating to revocation, but the risk of a sudden loss of biosecurity clearance for the port is real. The cost of losing first point of entry status would be immense: all international vessels would have to be diverted to another port such as Brisbane or Hay Point, imposing additional voyage time, fuel, and supply chain disruption on miners, exporters, and importers using Gladstone.

This instrument is made under subsection 229(1) of the Biosecurity Act 2015 and must be read in conjunction with that Act. The Act provides the framework for biosecurity entry points, first points of entry, offences, and enforcement. The determination does not replace or override any other provision of the Act. It operates as a specific designation within the broader regulatory regime. The Biosecurity Regulation 2016 is incorporated by reference for the definition of non commercial vessel; that definition is not reproduced in the instrument, so the regulation must be consulted to determine whether a particular small craft qualifies. The instrument’s note at section 6 cross references sections 173 and 174 of the Act, which deal with prohibited goods and conditionally non prohibited goods. Even if goods are within the general first point of entry, they may still be prohibited from entry under those sections or subject to conditions imposed by other determinations.

Other first point of entry determinations made under the same subsection 229(1) for other ports operate independently. There is no coordination mechanism within this instrument. A vessel arriving at Gladstone must comply with this determination; a vessel arriving at Sydney must comply with that port’s determination. The determination does not affect the operation of the Navigation Act 2012, the Customs Act 1901, or state port authority regulations, but compliance with federal biosecurity law is a separate requirement. Port operators must also comply with state environmental and safety laws, but this instrument does not purport to address them.

Part 4 of the determination imposes obligations that sit within the contract like relationship between the port operator and the Commonwealth. Those obligations may overlap with existing reporting requirements under the Gladstone Ports Corporation Act (Queensland) or port leases. Care must be taken to avoid duplication or conflicting timeframes. The requirement to give “reasonable notice” of proposed changes is not defined, leaving it to the Department to assess. That introduces uncertainty for port operators who may need to move quickly for commercial or safety reasons. The instrument does not provide for expedited procedures or emergency exceptions.

The source text reflects the instrument as originally made on 7 June 2019 by Dean Merrilees, Assistant Secretary of the Compliance Division of the Department of Agriculture, acting as delegate of the Director of Biosecurity. It commenced on 16 June 2019. The commencement table indicates that the whole of the instrument commenced on that date and that there are no amendments recorded in the table. The note states that the table relates only to the provisions as originally made and will not be amended to deal with any later amendments. Therefore, the published version does not disclose whether any subsequent amendments have occurred. A thorough search of the Federal Register of Legislation would be needed to confirm the current status. As a legislative instrument, it would be subject to automatic repeal under the Legislation Act 2003 if it is a sunsetting instrument that is not remade. The Biosecurity Act 2015 does not specify a sunset period for these determinations, but the instrument may be amended or replaced by the Director of Biosecurity at any time. Given the date of commencement 2019, it is possible that amendments have been made since, but the source provided does not evidence any. The practitioner should always check the latest version on the Register.

The source does not refer to any litigation concerning this determination. There are no cases mentioned in the instrument itself, nor any consequential amendments that might indicate court challenges. It is possible that the instrument has not been directly litigated. However, the underlying Biosecurity Act has been subject to judicial review in other contexts, particularly regarding the exercise of biosecurity entry point conditions. The absence of litigation on this specific instrument may reflect that it was carefully drafted and that port operators have generally complied with its conditions. It may also indicate that any disputes have been resolved administratively without going to court. A LexisNexis or AustLII search would be necessary to confirm, but based on the source, no litigation history is recorded. If a port operator were to challenge a notice of proposed change refusal or a revocation decision, such a case would likely be heard by the Federal Court or the Administrative Appeals Tribunal. The determination is a legislative instrument, and judicial review would be under the Administrative Decisions (Judicial Review) Act 1977 or section 75(v) of the Constitution. Any litigation would involve interpretation of the conditions, particularly what constitutes “reasonable notice” and what changes fall within the enumerated categories in section 9(5).

Several traps exist for the unwary. First, the distinction between “first point of entry” and “biosecurity entry point” is critical. A vessel may safely arrive at Port of Gladstone, but if it ties up at a wharf that is not a designated biosecurity entry point for that vessel type, the operator may be in breach. The list of areas for vessels other than non commercial and passenger vessels is extensive, but does not include every berth at the port. For example, if a bulk carrier uses a layby berth or a repair facility that is not on the list, it must still move to one of the listed areas as soon as practicable. Second, the goods entry point table does not cover all goods. Live horses and passenger vessel baggage are excluded entirely from section 6, so they can be unloaded at any berth, but other goods like livestock, cars, or breakbulk cargo that are not “general goods”, “freight containers”, “inorganic bulk goods”, or “waste” fall into a gap. The note states that no biosecurity entry point is designated for those other goods, so section 147 does not apply, but that does not mean they may be brought in without any biosecurity assessment. The Act still imposes other requirements. Third, the definition of “inorganic bulk goods” is narrow. A cargo of ore that contains trace organic material (e.g. coal with plant fossils) may not qualify, meaning it might be “general goods” with a much narrower set of allowed berths. Fourth, the condition in section 9(4) requires notice of a “proposed” change. If a port operator makes an emergency operational change without prior notice, they may later be held to have breached the condition. There is no exception for urgent safety or maintenance changes. Fifth, “reasonable notice” is not quantified. The Department may argue that a week’s notice is insufficient for a major procedural change. Sixth, the notification obligations apply to both the owner and the lessee individually. Each has a separate duty even if information is shared. Failure by one does not excuse the other. Seventh, the definition of “waste” depends on the intention of the person in charge of the vessel. If a vessel carries cargo that it later intends to dispose of, the classification can change, potentially affecting which berth must be used for unloading. Eighth, freight containers are defined by size (20 foot or 40 foot). Containers of other dimensions, such as 10 foot or 45 foot, do not qualify and would likely fall under “general goods”. That may affect the available unloading points for those containers. Ninth, the instrument does not provide a mechanism for a vessel or goods to use a non designated entry point with permission from the Director. If the Department issues a direction under other powers, it may override the determination, but the default is strict compliance.

Port Gladstone’s owner, lessee, and operator should first ensure they have a clear understanding of which areas are designated for which classes of vessels and goods. They should maintain an up to date map and communicate it to all harbour masters, pilots, and line handlers. The port’s vessel traffic service should be programmed to route vessels to the correct berth based on vessel type. For goods, the cargo manifest must be checked against the definitions in the instrument before the vessel arrives, so that the correct berth is allocated. If the cargo falls into a category not listed in the goods table, then no specific biosecurity entry point is required, but the port must still ensure compliance with other parts of the Act.

To comply with Part 4 conditions, the port operator should establish a register of business entities operating the port and each entry point, and monitor any changes in ownership, corporate structure, or operational control. A system should be in place to detect changes: for example, if a stevedoring company changes its corporate name, the owner must notify the Department as soon as practicable. The notification must be in writing; email to the designated Department contact is likely acceptable, but a formal letter may be safer.

For proposed changes to procedures, facilities, or amenities that affect biosecurity risk, the operator should give the Department notice well in advance. What is “reasonable” will depend on the magnitude of the change. A simple procedural update might require 14 days notice; a major infrastructure change might require 90 days. The operator should document the notice and the Department’s response. The operator should also keep internal records of the procedures that currently exist, so that any amendment is clearly identifiable. The categories in section 9(5) are broad; any change that could affect identification of biosecurity risks or the ability of officials to perform functions must be notified. That includes changes to lighting, signage, quarantine lanes, waste disposal facilities, and software used for manifest processing.

Operators of vessels using the port must consult the determination before arrival. The master or agent should confirm that the berth assigned by the port is a designated biosecurity entry point for that vessel type and for the goods being carried. If the assigned berth is not on the list, the vessel should not accept that assignment and should request a compliant berth. The person in charge of goods should also ensure that if goods are being unloaded at a berth that is not a biosecurity entry point for those goods, they are not in a category that requires one. If in doubt, seek advance ruling from the Department. Keeping a copy of the determination on board or in the operations office is a basic step. Regular training for marine and cargo staff on the specific requirements of this instrument will reduce the risk of inadvertent non compliance. The port operator should also consider reviewing the instrument for any amendments at least once per year, and whenever there is a major infrastructure project or change in port ownership.