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

This determination, made under subsection 229(1) of the Biosecurity Act 2015 by a delegate of the Director of Biosecurity, designates the Port of Hobart as a first point of entry for vessels generally and for goods other than live horses. It also specifies, by category, which berths, wharves and marinas within the port are designated as biosecurity entry points for particular types of vessels and goods. The instrument attaches ongoing conditions to the first-point-of-entry designation: the owner, lessee and operator of the port must notify the Department of Agriculture of changes to the business entity operating the port or a biosecurity entry point, and must give reasonable written notice of proposed changes to procedures, facilities, amenities or risk‑management practices that affect biosecurity at the port.

Mechanically, part 2 establishes the port‑level designation. Section 5 makes Port of Hobart a first point of entry for all vessels. Section 6 makes it a first point of entry for all goods except live horses. The exclusion of live horses means that any vessel carrying live horses as cargo cannot lawfully bring them into Australian territory through Hobart; they must be landed at a port that is a first point of entry for that good type. The note to section 6 cross‑references sections 173 and 174 of the Act, which deal with prohibited goods and conditionally non‑prohibited goods, and any determinations under those sections. This reminder signals that the first‑point designation does not override separate restrictions on what goods may be brought into a particular port, even if the port is a designated first point for that good class.

Part 3 goes to the berth‑level. Section 7 sets out three tables for vessels. Non‑commercial vessels (private pleasure craft, for example) must use Kings Pier Marina. All other vessels except non‑commercial and passenger vessels must use Macquarie No. 1 through No. 5 Berths and Princes No. 1 and Princes Intermediate Berths. A third row restricts vessels that are neither non‑commercial nor passenger vessels to Princes No. 3, Princes No. 4, Risdon Wharf and Selfs Point. This means that passenger vessels (cruise ships) have a narrower set of available berths than other commercial vessels, and cannot use the berths in the third row.

Section 8 designates entry points for goods in a six‑row table. Non‑commercial vessel baggage and waste go to Kings Pier Marina. Freight containers and general goods share Macquarie No. 3, No. 4 and No. 5 Berths, with general goods also allowed at Princes No. 3 and No. 4. Inorganic bulk goods have the widest range: Macquarie No. 3, No. 4 and No. 5, Princes No. 3 and No. 4, Risdon Wharf and Selfs Point. Passenger vessel baggage may be unloaded at Macquarie No. 2 through No. 5 and Princes Intermediate and Princes No. 1. Waste may be unloaded at the most extensive set: Macquarie No. 1 through No. 5, Princes Intermediate, Princes No. 1, Princes No. 3, Princes No. 4, Risdon Wharf and Selfs Point. The second note to section 8 is critical: if a good type has a first point of entry at Hobart but no designated biosecurity entry point in this determination, the requirement under section 147 of the Act to bring goods to a biosecurity entry point does not apply to that good type. That is, the determination can create a permissive gap - a good may be landed at Hobart but need not be taken to any specific berth for biosecurity processing.

Part 4 imposes the conditions. Section 9(2) and (3) require the owner (or one owner) and any lessee (or one lessee) of the port to give written notice to the Department as soon as practicable after becoming aware that there has been or will be a change to the business entity operating the port or a biosecurity entry point. Section 9(4) and (5) require any person or body responsible for carrying out operations at the port to give the Department reasonable notice of a proposed change to: procedures for biosecurity measures; facilities or amenities for biosecurity officials; procedures affecting the ability to identify biosecurity risks; procedures affecting the communication of identified risks; or procedures managing other factors that affect biosecurity risk. These conditions give the Department oversight of operational changes, but they also impose a compliance burden on private port operators and lessees.

First point of entry. Under the Biosecurity Act, a first point of entry is a port or place at which vessels and goods may be brought into Australian territory for the first time. The Director of Biosecurity may determine a place as a first point of entry under section 229(1). This instrument makes that determination for the Port of Hobart. The consequence is that vessels and goods arriving from overseas must, subject to other Act provisions, be brought to Hobart (if that is their intended port) rather than to a non‑designated port. The designation is not absolute: the Act allows the Director to impose conditions on a first‑point determination, and this instrument does so in part 4.

Biosecurity entry point. Within a first point of entry, the Director may designate specific areas as biosecurity entry points. These are the locations where vessels must be brought (section 246 of the Act) and where goods must be unloaded (section 147). The determination distinguishes between entry points for vessels and for goods, and further subdivides by vessel type and good type. The tables in sections 7 and 8 are exhaustive: only listed berths, wharves and marinas may be used as biosecurity entry points for the categories they cover. If an area is not listed for a given category, the Act’s requirement to bring the vessel or goods to a biosecurity entry point does not apply (section 8 note 2).

Biosecurity control. The definitions in section 4 draw on the Act. Goods are defined for the instrument’s purposes as goods that are subject to biosecurity control (section 19 of the Act) or in relation to which an exposed goods order is in force. Vessels are vessels subject to biosecurity control (section 9 of the Act). This means the determination only applies to vessels and goods that have not yet been cleared by biosecurity officials. Once cleared, the vessel or goods are no longer subject to biosecurity control and the first‑point and entry‑point rules cease to apply.

Goods categories. The instrument defines its own subcategories: freight container (20‑foot or 40‑foot re‑usable intermodal containers), general goods (any goods other than baggage, freight containers, live horses or waste), inorganic bulk goods (chemicals, ores, minerals or gases brought in bulk that do not contain animals, plants, organic compounds or microbes), waste (goods intended to be disposed of), non‑commercial vessel baggage and waste, and passenger vessel baggage. These definitions are narrower than the Act’s definition of goods. They determine which entry points apply. For example, a live horse is not a general good, a good type for which Hobart is a first point, so live horses cannot be landed at Hobart at all.

Port owners, lessees and operators. The owner of Port of Hobart (TasPorts, a state‑owned corporation) and any lessee of the port must notify the Department of changes to the business entity operating the port or a biosecurity entry point. The operator (the person or body responsible for carrying out operations) must give reasonable notice of proposed changes to procedures, facilities or amenities that affect biosecurity risk. This includes private terminal operators, stevedores and any contractor managing biosecurity functions. These entities bear the direct compliance cost of monitoring operational changes and preparing written notifications. The condition is worded broadly - “procedures at Port of Hobart providing for biosecurity measures to be taken” - so even minor workflow changes could trigger a notification requirement if they affect risk identification or management. The vagueness of “reasonable notice” creates uncertainty: a week’s notice may or may not suffice depending on the nature of the change.

Vessel operators. Every person in charge of a vessel subject to biosecurity control that arrives at Port of Hobart must bring that vessel to the correct biosecurity entry point as soon as practicable (section 246 Act). The operator must know whether the vessel is a non‑commercial vessel, a passenger vessel or another type, and then consult the table in section 7. A mistake could lead to the vessel being at the wrong berth and potentially in breach of the Act. For passenger vessels, the available berths are limited to the Macquarie and Princes No.1/Intermediate berths; they cannot use Risdon Wharf or Selfs Point. Non‑commercial vessels can only use Kings Pier Marina. This restricts operational flexibility and may force vessels to wait for a berth that is designated for their class, increasing turnaround time and cost.

Importers and exporters. Anyone importing or exporting goods through Hobart must ensure that goods of the relevant category are unloaded only at the designated biosecurity entry points (section 147 Act). This includes freight forwarders, customs brokers and logistics providers. The determination does not designate entry points for all goods that have a first point of entry at Hobart - the second note to section 8 explicitly states that for goods not listed, the section 147 requirement does not apply. This creates a permissive regime for goods like live horses (which cannot enter at all) or any good category not caught by the table (e.g., perhaps bulk liquids not classed as inorganic bulk goods). Importers of goods that have an entry point must factor the berth restriction into their shipping schedule.

Duty to bring vessel to designated biosecurity entry point. Section 246 of the Act requires a vessel that has arrived at a first point of entry to be brought to a biosecurity entry point for that vessel as soon as practicable. Section 7 of this determination specifies which biosecurity entry points apply for each vessel class. The duty falls on the person in charge of the vessel. There is no duty if no biosecurity entry point is designated for that vessel type at that port (the determination designates entry points for all vessel categories that may enter Hobart, so the duty applies in all cases for vessels subject to biosecurity control).

Duty to bring goods to designated biosecurity entry point. Section 147 of the Act requires goods to be brought to a biosecurity entry point for those goods as soon as practicable after the vessel arrives. Section 8 of this determination designates entry points for specific goods categories. Critically, if a good type has a first point of entry at Hobart but no entry point is designated, the section 147 duty does not apply. For example, no entry point is designated for live horses (they are excluded altogether), and no entry point is designated for any other goods not listed in the table. The duty only arises for the categories listed: non‑commercial vessel baggage and waste, freight containers, general goods, inorganic bulk goods, passenger vessel baggage, and waste.

Duty to notify of changes to business entity. Section 9(2) and (3) impose a duty on the owner (or an owner, if multiple) and any lessee (or a lessee) of the port to give written notice to the Agriculture Department as soon as practicable after becoming aware of a change or proposed change to the business entity operating the port or a biosecurity entry point. This is an ongoing obligation. The trigger is awareness, not the change itself. If an owner learns of a forthcoming change, notice must be given before the change occurs? The phrase “has occurred or will occur” implies notice after awareness of either past or future change. “As soon as practicable” will be judged objectively.

Duty to notify of proposed changes to procedures, facilities and amenities. Section 9(4) and (5) impose a duty on any person or body responsible for carrying out operations at the port to give the Department reasonable notice of a proposed change to biosecurity‑related procedures or facilities. The list in subsection (5) is broad, covering any change that may affect the level of biosecurity risk, the ability to identify risks, the ability to inform officials of risks, or the facilities available to officials. This creates a duty to assess whether a change is caught. The separate obligation on owners/lessees and operators may lead to duplicate notifications, but the instrument treats them as independent duties.

The instrument itself does not prescribe penalties. Enforcement occurs through the Biosecurity Act 2015. Failure to comply with the duties in sections 7 and 8 (by not bringing a vessel or goods to the correct biosecurity entry point) would be a breach of sections 246 and 147 of the Act respectively. Those sections carry civil penalty provisions. Section 246(2) states that a person commits an offence of strict liability if the vessel is not brought to the entry point as soon as practicable. The maximum penalty under the Act for an individual is 120 penalty units (currently $31,320, as a penalty unit is $261 as of 2024) or a corresponding civil penalty. For a body corporate, the penalty is five times that amount. Similar penalties apply under section 147 for goods.

The conditions in section 9 are attached to the determination. Non‑compliance with a condition is a breach of the determination itself. The Act provides for civil penalty provisions for contravening a determination made under section 229(1). Section 229(5) states that a person must not contravene a condition of a determination. The penalty is the same as for other biosecurity breaches: up to 120 penalty units for an individual, 600 for a body corporate.

Enforcement is by the Director of Biosecurity or authorised officers, who may issue infringement notices (on‑the‑spot fines), seek civil penalty orders from a court, or take administrative action such as suspending or revoking the first‑point designation. The Director also has power under section 229(3) to vary or revoke a determination. If the Department is not satisfied with the port’s compliance with conditions, it could reduce the first‑point designation or remove it entirely, which would have significant economic consequences for port users. However, the instrument does not specify what action follows a notice failure.

The notification duties are ongoing, so a failure to notify could accrue over time. The Department may discover the non‑compliance through its own monitoring or a subsequent change. The reasonableness of “as soon as practicable” and “reasonable notice” will be assessed in the circumstances. No court proceedings have yet tested these provisions.

The determination is made under subsection 229(1) of the Biosecurity Act 2015, which is the primary legislation. It operates within the broader biosecurity framework. Sections 173 and 174 of the Act deal with prohibited goods and conditionally non‑prohibited goods. The note to section 6 reminds readers that even though Hobart is a first point for goods other than live horses, a good that is prohibited under a determination made under section 173 cannot be brought into the port at all, regardless of the first‑point designation. Similarly, conditionally non‑prohibited goods may only be brought in if the conditions are met. So the determination is subordinate to those prohibitions.

The Biosecurity Regulation 2016 defines “non‑commercial vessel”, which is used in the tables. The determination adopts that definition. Any amendment to the regulation affecting that definition would flow into the operation of this instrument.

The determination also interacts with other first‑point determinations made under section 229 for other ports. If a vessel or good type is not designated for Hobart, the alternative first point provisions in the Act will apply. For instance, live horses cannot enter through Hobart; they must be landed at a port that is a first point for live horses, such as perhaps Melbourne or Sydney. The network of first‑point determinations operates to distribute biosecurity risk across designated ports. A port not designated for a particular good or vessel type effectively cannot receive that biosecurity‑controlled traffic.

The determination does not interact directly with state or territory port safety or planning laws, but those laws may affect the port procedures that trigger the notification duties. For example, if a state regulation changes the layout of a berth, the operator must consider whether that change falls within section 9(5)(b) (facilities or amenities for officials) and give notice.

There is no interaction with customs laws in the instrument itself, though in practice biosecurity control often runs parallel to customs control. The determination does not displace customs requirements.

This instrument was made on 7 June 2019 and commenced on 16 June 2019. No amending instruments have been registered on the Federal Register of Legislation as of the date of this analysis. The commencement table only provides for the original instrument. It has not been varied or revoked. The note to section 2 says the table will not be amended later; any subsequent amendments would appear as separate instruments. Given the specificity of port designations, amendments are likely to occur if port infrastructure changes, such as the addition or removal of a berth, or if the Department reclassifies goods categories. As of writing, none have occurred.

No reported litigation has been found involving this determination. As a technical, location‑specific instrument, it is unlikely to be challenged directly. The conditions in section 9 have not been judicially considered. However, the parent Act, the Biosecurity Act 2015, has been the subject of administrative review cases in the Administrative Appeals Tribunal and federal courts, but none affecting this determination. The lack of litigation may indicate that the instrument is operating without controversy, or that the duties are clear and compliance is straightforward. It may also reflect the fact that non‑compliance by a port operator would be more likely resolved through administrative action than court proceedings. The practical stakes are low relative to the cost of litigation.

Live horses are completely excluded. Section 6 makes Port of Hobart a first point of entry for goods other than live horses. This is not merely an absence of a biosecurity entry point; the port is not a first point for live horses at all. Therefore, under sections 166 and 167 of the Act, a vessel cannot bring live horses into Australian territory through Hobart. This is a hard prohibition, not a matter of berth choice. Vessel operators carrying horses must plan to use a different port.

Some goods have first point but no entry point; the section 147 duty does not apply. The note to section 8 says that for goods not listed in the table, the requirement to bring them to a biosecurity entry point does not apply. This creates a permissive gap. For example, if a good does not fall within the definitions of baggage, freight containers, general goods, inorganic bulk goods, passenger vessel baggage, or waste, there is no duty to unload at any particular berth. This includes, potentially, bulk liquids that are not inorganic bulk goods (e.g., molasses, edible oils containing organic compounds). The operator could use any berth. This is a deliberate feature, but it may catch importers who assume they must use a designated berth because the port is a first point.

The waste entry point table contains a formatting error. In section 8, item 6 column 2 lists areas for waste. After listing (g) Princes No. 1 Berth, the list restarts with (a) Princes No. 3 Berth. This appears to be a drafting error. The correct reading is that the list after (g) is part of the same item, but the restart of the lettering is confusing. The likely intended areas are all those listed: Macquarie No. 1‑5, Princes Intermediate, Princes No. 1, Princes No. 3, Princes No. 4, Risdon Wharf and Selfs Point. A cautious operator should treat the entire list as designated, ignoring the erroneous re‑lettering.

Duplicate notification duties. Both the owner and the lessee (if any) must notify the Department of changes to the business entity operating the port or an entry point. The operator (person responsible for carrying out operations) must give notice of proposed procedural changes. If the owner, lessee and operator are different entities, they must each comply independently. Over‑notification is unlikely to be problematic, but missing a notice could be. The instrument does not excuse one via another.

“As soon as practicable” and “reasonable notice” are vague. In notification duties, timing is measured by these standards. In practice, the Department may accept any timely notification, but a dispute could arise if the Department believes notice was delayed. The person giving notice should record the time of awareness and the steps taken to notify.

For port owners, lessees and operators. Establish an internal monitoring system to detect any change to the business entity operating the port or a biosecurity entry point. This includes changes to the corporate structure of TasPorts or a sub‑lessee terminal operator. When such a change occurs or is planned, the owner (if more than one, any owner) and any lessee must each give written notice to the Agriculture Department as soon as practicable. The notice should be sent to the address or email designated by the Department for that purpose. Keep a record of the notice and the date of awareness.

For procedural and facility changes, the person responsible for operations (likely the port manager or terminal operator) must give reasonable notice of any proposed change that falls within the categories in section 9(5). To determine what is caught, the operator should conduct a biosecurity impact assessment for every planned physical alteration (e.g., installing new lighting, changing security gates, altering drainage) and every procedural change (e.g., changing quarantine inspection protocols, modifying waste handling). If the change could affect the level of biosecurity risk, the ability to identify risks, the ability to inform officials, or the facilities available to officials, notice is required. “Reasonable notice” means enough time for the Department to consider the change and, if necessary, object or impose conditions. At least 30 days is prudent for significant changes; for minor ones, 7 days may be enough. The operator should discuss the timeframe with the Department.

For vessel operators. Upon arrival at Port of Hobart, determine the vessel’s classification: non‑commercial vessel (private yacht), passenger vessel (cruise ship), or other commercial vessel. Consult section 7 table. Non‑commercial vessels must go to Kings Pier Marina. Passenger vessels may only use Macquarie No. 1‑5 or Princes No. 1/Intermediate. All other vessels (including cargo ships, tankers, fishing vessels) may use Macquarie No. 1‑5, Princes No. 1/Intermediate, and also Princes No. 3, Princes No. 4, Risdon Wharf and Selfs Point. Do not moor at a berth not listed for your vessel class. If the intended berth is not listed, you must request a variation to the determination or use a different port. Contact the Department’s regional biosecurity office for guidance.

For persons unloading goods. Identify the category of goods from the definitions: non‑commercial vessel baggage/waste, freight container, general goods, inorganic bulk goods, passenger vessel baggage, or waste. If the goods fit a category, check the table in section 8 and ensure the goods are brought to a listed area as soon as practicable after the vessel arrives. For goods that do not fit any category (e.g., bulk liquids that are not inorganic, or live horses which are excluded from the port entirely), there is no duty under section 147 to bring them to a specific entry point, but other biosecurity requirements (reporting, inspection) remain under the Act. Do not assume that no entry point means no biosecurity control; it only means the berth is unrestricted.