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

The instrument uses a small set of statutory concepts drawn from the Biosecurity Act 2015 and the Biosecurity Regulation 2016. The operative concepts in the instrument are first point of entry, goods (as defined by section 19 of the Act), vessel (as defined by section 9 of the Act), non-commercial vessel (as given the same meaning as in the Biosecurity Regulation 2016) and biosecurity entry point.

First point of entry is the statutory construct the instrument sets for Port of Lucinda for defined categories. Section 5 limits that designation for vessels to vessels other than non-commercial vessels and passenger vessels. Section 6 makes Port of Lucinda a first point of entry only for baggage carried on vessels that are not non-commercial vessels and not passenger vessels. The instrument explicitly excludes other goods, noting that Port of Lucinda is not a first point of entry for any other goods (s 6, Note 1).

Biosecurity entry point is the site within the port where biosecurity processing must occur. The instrument designates Lucinda Bulk Sugar Terminal as the biosecurity entry point for the covered vessels (s 7, table) and for the baggage covered by the instrument (s 8, table). The tables in ss 7 and 8 map the class of vessel or goods to the designated physical area at Port of Lucinda.

Definitions are invoked from the Act and the Regulation. Section 4 states that goods has the meaning given in section 19 of the Act and that non-commercial vessel has the same meaning as in the Biosecurity Regulation 2016. The instrument therefore relies on the Act and the Regulation for the legal scope of those expressions. The instrument also repeats that vessel carries the meaning given in section 9 of the Act (s 4).

The instrument also relies on procedural timing language that sits in the Act. The notes in ss 7 and 8 reference the Act’s obligations that a vessel or goods that have arrived at a port must be brought to the biosecurity entry point “as soon as practicable”. Those timing obligations are not defined in this instrument; they are referenced to the Act (notes in ss 7 and 8).

Finally, the instrument conditions continuation of the first point of entry designation on notification and pre-notification obligations. Section 9 requires owners and lessees to give written notice to the Agriculture Department when they become aware of changes to the business entity operating the port or the biosecurity entry point. Section 9(4) and (5) create a broader notice duty on any person or body responsible for carrying out operations at the port to give reasonable notice of proposed changes to procedures or facilities that may affect biosecurity risk management. The instrument therefore couples the statutory designation with administrative information flows to the Agriculture Department.

Each of these concepts is operational and narrow. The definition choices determine which vessels and baggage fall under the port’s first point of entry status, the single designated terminal determines where processing is to occur, and the notification conditions attach observability and pre-notification duties to owners, lessees and operators.

The instrument creates obligations and operational constraints for several distinct groups, each identified in the instrument’s provisions.

Port owners: Section 9(2) places a written-notification duty on the owner of Port of Lucinda, or on any one of multiple owners, to notify the Agriculture Department in writing 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 at the port. This makes owners a primary point of compliance for corporate or ownership changes that could affect biosecurity operations.

Port lessees: Section 9(3) extends the identical notification duty to a lessee of the port, or one of multiple lessees, where the lessee becomes aware of a change to the business entity operating the port or biosecurity entry point. Lessees who carry operational responsibility therefore have a statutory channel of reporting duties.

Persons or bodies responsible for operations at Port of Lucinda: Section 9(4) and (5) require any person or body that is responsible for carrying out operations at the port to give the Agriculture Department reasonable notice of proposed changes to specified procedures, facilities and other matters that may affect biosecurity risk. That language is broader than owner/lessee and captures operators, terminal managers, contractors and possibly service providers who have responsibility for operational arrangements.

Vessel operators and masters: Section 5 designates Port of Lucinda as a first point of entry for vessels other than non-commercial vessels and passenger vessels. That designation means that operators, masters and agents of commercial cargo vessels placing calls at Port of Lucinda must treat that port as a first point of entry for their vessels, unless the vessel is a non-commercial vessel or a passenger vessel as excluded by s 5.

Importers, baggage holders and cargo agents: Section 6 makes Port of Lucinda a first point of entry only for baggage carried on vessels other than non-commercial vessels and passenger vessels. The instrument explicitly notes that the port is not a first point of entry for other goods (s 6, Note 1). Therefore importers seeking to bring ordinary cargo other than the baggage described will not have their goods treated as being brought through Port of Lucinda as a first point of entry pursuant to this instrument. Those whose imported items are baggage on qualifying vessels must expect those items to be processed at the Lucinda Bulk Sugar Terminal as the designated biosecurity entry point (s 8).

Biosecurity officials and the Agriculture Department: The instrument creates an administrative relationship between port stakeholders and the Agriculture Department, which is the Department to be notified under s 9. It also designates the physical location where biosecurity officials will conduct their functions for the covered vessels and baggage (ss 7 and 8).

Other stakeholders: The instrument references the Biosecurity Regulation 2016 for the meaning of non-commercial vessel (s 4), so regulatory managers and counsel dealing with definitions must consult that Regulation to determine whether a particular vessel falls within the exclusion. The instrument’s notes also reference sections of the Biosecurity Act concerning prohibited and conditionally non-prohibited goods (ss 173 and 174) and timing obligations for bringing vessels or goods to biosecurity entry points (ss 246 and 147), indicating that port users must take those Act provisions into account when planning arrivals and cargo handling even though they are not reproduced in this instrument.

In sum, the instrument’s practical reach touches owners, lessees and operational managers at Port of Lucinda, the operators of commercial cargo vessels that call there, holders of baggage on those vessels, and the Agriculture Department and its biosecurity officials who will receive notices and exercise functions at the designated terminal.

The instrument creates a small set of affirmative duties and designations; it does not itself create a multiplicity of rights or detailed operational powers. The key duties flow from Parts 2, 3 and 4.

Designation duties for vessel and baggage arrivals: Sections 5 and 6 specify which arrivals at Port of Lucinda are to be treated as first points of entry. Vessel operators whose vessels fall within the class described in section 5 must accept that Port of Lucinda is their first point of entry for biosecurity purposes. Likewise, those with baggage on the specified vessels must accept that Port of Lucinda is the first point of entry for that baggage (s 6). The instrument’s notes cross-reference statutory duties in the Act that a vessel or goods arriving at a port must be brought to a biosecurity entry point as soon as practicable (ss 7 and 8 notes referring to ss 246 and 147 of the Act). Although the instrument does not itself set out the "as soon as practicable" standard, the designation triggers obligations under the Act to route vessels and goods to the designated biosecurity entry point.

Physical routing to the biosecurity entry point: Sections 7 and 8 name Lucinda Bulk Sugar Terminal as the biosecurity entry point within Port of Lucinda for the vessels and baggage described. Therefore the immediate duty is that an arriving vessel, and baggage unloaded from that vessel, must be brought to the designated terminal for biosecurity processing. The instrument’s note to s 7 refers to the Act’s duty to bring a vessel to a biosecurity entry point "as soon as practicable" (see s 246 of the Act); similarly s 8’s note refers to requirements under the Act to bring goods to an entry point "as soon as practicable" (see s 147).

Notification duties on owners and lessees: Section 9(2) and (3) require owners and lessees to give the Agriculture Department written notice as soon as practicable after becoming aware that there has been, or will be, a change to the business entity operating the port or a biosecurity entry point. The instrument therefore imposes a continuing duty of disclosure about changes in the identity of the business entity responsible for the port or the entry point.

Pre-notification duties on operators: Section 9(4) and (5) impose a duty on any person or body that is responsible for carrying out operations at Port of Lucinda to give the Agriculture Department reasonable notice of proposed changes to a set of specified matters. The enumerated changes include changes to procedures for biosecurity measures, changes to facilities or amenities available to biosecurity officers, changes to procedures affecting the ability to identify biosecurity risks, changes affecting how biosecurity officers are informed of identified risks, and changes to procedures for managing other factors that may affect the level of biosecurity risk (s 9(5)(a)-(e)). Those notification duties are prospective for proposed changes and are cast in terms of reasonable notice.

Record-keeping and communication implication: While the instrument does not contain express record-keeping language, the written-notice requirements in ss 9(2) and (3) and the reasonable-notice provision in s 9(4) imply that owners, lessees and operational managers must establish timely internal governance and communications to detect ownership or operating entity changes and to prepare and transmit written notices to the Agriculture Department.

Rights and limitations: The instrument’s principal operation is descriptive and administrative; it does not create express rights for port users, carriers or third parties. It does, however, effect a de facto operational right for biosecurity officials to perform their functions at the designated Lucinda Bulk Sugar Terminal by naming that location as the biosecurity entry point for the specified classes (ss 7 and 8). The instrument does not itself set out appeal rights, fee arrangements or the scope of powers available to biosecurity officials; those matters are left to the Biosecurity Act generally and to any other applicable instruments or administrative arrangements.

In summary, the instrument imposes duties to route covered vessels and baggage to a single terminal, to notify the Agriculture Department of specified changes in ownership or operations, and to provide reasonable pre-notice of proposed procedural or facility changes that may affect biosecurity risk management.

This instrument does not itself specify criminal or civil penalties or enforcement mechanisms. The instrument is made under subsection 229(1) of the Biosecurity Act 2015 (s 3), and it expressly refers in notes to other sections of the Act that govern certain operational consequences (for example references to ss 147 and 246 in the notes to ss 8 and 7). However, the instrument contains no express penalty clauses or specified sanctions for failure to comply with the written-notification or pre-notification duties contained in section 9.

Consequently, compliance and any enforcement action for failure to meet the instrument’s duties would have to be pursued under the Biosecurity Act 2015 or other instruments and regulations that provide enforcement powers, sanctions or civil pathways. The instrument’s silence on penalties means it should be read as creating duties without prescribing the enforcement regime; any enforcement, remedies or penalties will depend on the Act and other statutory instruments under which those powers and penalties are set out.

Administrative enforcement and operational consequences: While the instrument does not specify sanctions, its practical effect is to create administrative expectations and information flows to the Agriculture Department. Non-compliance with the notification duties may lead to administrative consequences such as further departmental action, reconsideration of the port’s designation, operational instructions to vessels and port operators, or other steps available under the Biosecurity Act. Those possibilities are not articulated in the instrument itself.

Timing standards and uncertainty: The instrument relies on timing standards referenced to the Act, for example that a vessel or goods must be brought to a biosecurity entry point "as soon as practicable" (notes to ss 7 and 8 referring to ss 246 and 147 of the Act). Because those timing standards and any enforcement protocols are set out in the Act, this instrument does not state how compliance with the routing requirement will be measured or enforced at Port of Lucinda.

Who enforces: The Agriculture Department is the recipient of notifications required by s 9, and biosecurity officials will be the personnel present at the designated biosecurity entry point for carrying out functions under the Act at that location (ss 7 and 8, and the general structure of the instrument). The instrument does not, however, itself allocate enforcement powers or identify officeholders who will impose sanctions for non-compliance.

For practitioners, the key take-away in this instrument is its silence on penalties and the express reliance on the Biosecurity Act as the legal framework for operational obligations and enforcement. Parties should therefore map the instrument’s duties to the enforcement provisions of the Biosecurity Act and any relevant regulation for clarity on sanctions and compliance consequences.

The instrument is explicitly made under the Biosecurity Act 2015 (s 3) and cross-references a number of provisions in that Act and in the Biosecurity Regulation 2016. Those cross-references create direct legal interactions between the instrument and the wider statutory and regulatory framework.

Definitions: Section 4 adopts definitions from the Act and the Regulation. It adopts the Act’s definitions of goods (via reference to s 19 of the Act) and vessel (via reference to s 9 of the Act) and adopts the Regulation’s meaning of non-commercial vessel by stating that non-commercial vessel has the same meaning as in the Biosecurity Regulation 2016. This makes the instrument’s operative coverage dependent on how those terms are defined under the Act and the Regulation. That dependency means that any legal question about whether a particular vessel or item of cargo falls within the instrument will require consultation of those definitions in the Act and the Regulation.

Operational obligations in the Act: The instrument’s notes refer to specific operational provisions of the Act. In the notes to s 6 the instrument points to ss 173 and 174 of the Act for matters concerning whether particular goods may be brought into a first point of entry (prohibited and conditionally non-prohibited goods). The notes to ss 7 and 8 reference ss 246 and 147 of the Act respectively concerning the obligation to bring vessels or goods to a biosecurity entry point "as soon as practicable". Therefore the instrument operates as a local application of broader duties and restrictions established by the Act.

Administrative interface with the Department: The instrument creates direct administrative obligations to provide written notice to the Agriculture Department under s 9. That duty positions the Department as the receiving administrative authority and links port-level changes to departmental oversight or at least awareness. How the Department uses that information will be governed by the Act and Departmental policy, which are not reproduced in the instrument.

Interaction with port commercial arrangements: While the instrument does not mention maritime safety, customs, quarantine or port trust legislation directly, it necessarily intersects with commercial arrangements at the port because it designates a single terminal for biosecurity entry (Lucinda Bulk Sugar Terminal). This designation will interact operationally with berth allocation, terminal operation agreements, lease arrangements and service contracts. Section 9’s notice requirements for owners and lessees demonstrate that the instrument expects commercial and contractual arrangements at the port to bear on biosecurity operations, and vice versa.

Regulatory hierarchy and modification: The instrument is a determination under the Act. It therefore sits within the Act’s regulatory hierarchy. Any amendment, revocation, or replacement of this determination would have to follow the processes in the Act for making determinations under the relevant sections; those processes are not set out in this instrument. The instrument also includes a commencement table (s 2) and a note that the table relates only to the instrument as originally made, signalling that any future amendments would follow separate amendment-recording practices.

Limits on scope: The instrument expressly limits Port of Lucinda’s role as a first point of entry to specified vessel and baggage classes and notes that the port is not a first point of entry for other goods (s 6, Note 1). This limitation reduces the instrument’s overlap with other local or national ports that may be first points of entry for other categories of goods.

In short, the instrument functions as a port-specific application of broader biosecurity law, with its legal meaning and practical reach determined by definitions and operational provisions in the Biosecurity Act 2015 and the Biosecurity Regulation 2016. Practitioners must therefore interpret and apply the instrument alongside those instruments.

The instrument itself records its commencement information and contains a note addressing how its commencement table relates to later amendments. Section 2 contains a commencement table stating that the whole of the instrument commenced on 16 June 2019. The instrument is dated 7 June 2019 and was signed by a delegate of the Director of Biosecurity.

Section 2(2) contains a standard-format note that any information in column 3 of the commencement table is not part of the instrument and that such information may be edited in any published version. The instrument also expressly notes that the commencement table relates only to the provisions of the instrument as originally made and will not be amended to deal with later amendments (s 2, Note). That indicates the instrument’s own record-keeping approach to amendments rather than any substantive amendment.

The instrument contains no internal amendments, no repeal provisions and no schedule of prior instruments it replaces. It does not indicate any earlier determinations with equivalent effect or that it is a replacement of a previous instrument. The text shows a single enactment, with its effective date recorded. The instrument does not itself list any later amendments or revocations; there is no amendment table or history recorded within the provided text.

Because this instrument relies on definitions and provisions in the Biosecurity Act 2015 and on the Biosecurity Regulation 2016, any changes to those parent instruments could affect the operation of this determination. The instrument does not, however, record any such history itself.

For practitioners needing an authoritative amendment history, the instrument as provided contains one entry: made 7 June 2019, commenced 16 June 2019. Any subsequent amendments, revocations or replacements would need to be verified using the official legislative database or the Department of Agriculture’s records; those are outside this instrument’s text and are not recorded here.

The instrument contains no references to litigation, judicial review proceedings, protests or contested administrative decisions. It does not list any cases in which its validity, procedural adequacy, or substantive designation has been challenged. The instrument’s text does not include any record of disputes, appeals or incidental jurisprudence.

Because this instrument is a statutory determination made under the Biosecurity Act 2015, it is susceptible, in principle, to judicial review or other legal challenges under administrative law, but there is no litigation record within the instrument itself to analyse. The instrument does not reference any prior determinations or decisions that were litigated, nor does it reference case law or tribunal decisions.

Practitioners seeking to know whether this determination has been the subject of litigation will need to consult court and tribunal databases, administrative law records and Department of Agriculture files; the instrument as provided gives no litigation history.

The instrument is short and tightly drawn, but several practical and legal pitfalls arise from its precision and its dependence on external definitions and Act provisions.

Narrow scope of goods and vessels: Port of Lucinda is declared a first point of entry only for (a) vessels other than non-commercial vessels and passenger vessels (s 5) and (b) baggage carried on those vessels (s 6). The instrument explicitly states that it is not a first point of entry for any other goods (s 6, Note 1). That means that routine cargo categories may not be processed as a first point of entry at Port of Lucinda under this instrument. Practitioners must not assume Port of Lucinda covers all imports or cargo types; the instrument’s exclusions are precise.

Single designated terminal: The instrument designates Lucinda Bulk Sugar Terminal as the only biosecurity entry point for the covered classes (ss 7 and 8). That single-point approach concentrates biosecurity processing at one facility. The operational implications,such as scheduling, berthing, shore-handling logistics and terminal access,are not addressed in the instrument but can create practical bottlenecks. Parties may discover that receiving a vessel at Port of Lucinda triggers port-specific routing and terminal costs that they did not anticipate.

Dependence on Act and Regulation definitions: The instrument imports the definitions of goods and vessel from the Act and non-commercial vessel from the Regulation (s 4). Whether a particular vessel or item of baggage falls within the instrument’s scope therefore requires checking those external definitions. Misclassification risk is a legal and operational exposure.

Undefined standards of timing and notice: The instrument uses the phrases "as soon as practicable" (in notes referring to the Act’s ss 246 and 147) and "reasonable notice" (s 9(4)), but does not define them. These elastic standards leave room for departmental interpretation and operational judgement. Owners, lessees and operators may face disputes about whether their notice timing met the statutory standard.

Who must notify and when: Section 9 imposes written-notification duties on owners and lessees when they become aware that there has been or will be a change to the business entity operating the port or biosecurity entry point (ss 9(2)-(3)). The phrase "business entity operating" is not defined in the instrument. It could encompass a broad array of changes, including management contracts, operator assignments, corporate reorganisations, or changes to service providers. Parties should not assume that only formal changes of ownership trigger the duty.

Multiple owners or lessees: Sections 9(2) and (3) allow any one owner or one lessee to provide the required notice where there are multiple owners or lessees. However, the instrument does not specify coordination rules among multiple owners or lessees, which may create uncertainty about which entity will discharge the notice obligation in practice.

Scope of persons responsible for operations: Section 9(4) applies to persons or bodies "responsible for carrying out operations at Port of Lucinda". That is a broad formulation and may capture third-party contractors, terminal operators, stevedores and service providers. Organisations providing operational services should assess whether they fall within that definition and what internal procedures they must adopt to ensure timely pre-notification.

No penalty language in this instrument: The instrument contains no penalty or enforcement sections. Stakeholders might assume that the instrument’s duties are unenforceable, but enforcement and consequences may be available under the Biosecurity Act 2015. Because this instrument does not state the enforcement mechanism, parties must assess enforcement risk against the Act and Departmental practice.

Administrative dependency on the Agriculture Department: Written notices required under s 9 are to be given to the Agriculture Department. The instrument does not set out the form, address or contact point for such notices. This creates an implementation risk: notices that are sent to an incorrect office or in an inadequate form may be treated as not having been given. Parties should verify departmental procedures for delivery and receipt confirmation.

Interaction with commercial contracts and port arrangements: The instrument can produce practical frictions with port leases, terminal operating agreements and service contracts. Because the instrument requires owners and lessees to notify the Department of changes to the business entity operating the port, parties may need to create contractual clauses requiring counterparties to notify owners and to cooperate with the Department. Absent contractual mechanisms, notification obligations could become a source of dispute.

In short, the instrument’s narrow design, dependence on external definitions and elastic timing standards create multiple implementation risks that owners, lessees and operators should address proactively.

Compliance with this instrument requires coordinated action by owners, lessees, operators, vessel masters and cargo handlers. The instrument’s duties are few, but they are consequential in practice.

1. Determine whether the instrument applies to your vessel or goods. Consult the instrument’s scope: the instrument applies to vessels other than non-commercial vessels and passenger vessels (s 5) and to baggage carried on those vessels (s 6). Confirm the status of the vessel by reference to the Biosecurity Act 2015 definition of vessel and to the Biosecurity Regulation 2016 definition of non-commercial vessel, since the instrument adopts those external definitions (s 4). If you are uncertain whether a vessel is a non-commercial vessel or whether an item is baggage for the instrument’s purposes, seek clarification from the Agriculture Department.

2. Plan to route covered vessels and baggage to the designated biosecurity entry point. The instrument designates Lucinda Bulk Sugar Terminal as the biosecurity entry point for the covered vessels and baggage (ss 7 and 8). Arrange for berth access, terminal arrangements and shore-handling capacity at that terminal to ensure that vessels and baggage can be brought to the designated entry point "as soon as practicable" after arrival. The instrument references the Act’s timing obligations; parties should factor in time and cost to meet the applicable "as soon as practicable" standard as enforced by the Department.

3. Implement notification procedures for owners and lessees. Owners and lessees must give the Agriculture Department written notice as soon as practicable after becoming aware that there has been, or will be, a change to the business entity operating the port or the biosecurity entry point (ss 9(2)-(3)). Create internal governance that flags corporate, contractual and management changes that could fall within "business entity operating". Decide which owner or lessee will be the notifier where multiple owners or lessees exist, and maintain a record of notices given.

4. Establish a pre-notification protocol for operational changes. Persons or bodies responsible for operations at the port must provide the Agriculture Department with reasonable notice of proposed changes to procedures or facilities that may affect biosecurity risk (ss 9(4)-(5)). Identify the operational changes listed in s 9(5)(a)-(e), for example changes to biosecurity procedures, facilities available to biosecurity officers, procedures for identifying risks, procedures for informing officials of identified risks, and procedures for managing factors contributing to biosecurity risk. For any proposed change in those areas prepare written proposals and notify the Department with reasonable lead time; document the notice and any Departmental responses.

5. Agree contractual terms with operators and service providers. Revise lease and operating contracts to require counterparties to provide internal notice to owners, lessees and the Department where relevant changes occur. Include provisions that allocate costs of any required remediation or facilities modifications needed to meet biosecurity officer requirements at the designated terminal.

6. Record and retain written notices. The instrument imposes written-notification duties; ensure notices are in writing, are dated, specify the nature of the change, and are sent to the Agriculture Department using the Department’s accepted delivery channels. Retain proof of delivery and internal contemporaneous records of the awareness date, the decision to notify and the content of the notice.

7. Coordinate with the Agriculture Department about formats and contact points. Because the instrument does not define the Department’s preferred form of notice or its contact point, make contact with the Agriculture Department to obtain guidance on notice format, the correct office to receive notices, and any expectations for the content of pre-notification submissions. Request confirmation of receipt to reduce dispute risk.

8. Review operational schedules and budgets. The designation of the Lucinda Bulk Sugar Terminal as the single biosecurity entry point may create costs in vessel diversion, terminal bookings, stevedoring and internal transport. Account for these costs in voyage planning and cargo handling budgets.

9. Train personnel. Educate vessel masters, agents, terminal managers and port operations staff on the routing and notification duties in ss 5, 6, 7, 8 and 9, and maintain checklists to ensure timely compliance, especially where "reasonable notice" and "as soon as practicable" create tight time frames.

10. Seek clarification where discretion exists. Where terms such as "business entity operating", "reasonable notice" or "as soon as practicable" create uncertainty, seek a written position from the Agriculture Department or obtain legal advice. Early engagement can reduce the risk of contested interpretations.

Following these steps will help entities affected by the instrument to meet its procedural and routing requirements. Because the instrument is made under the Biosecurity Act 2015, affected parties should also map these obligations to related provisions of the Act and the Biosecurity Regulation 2016 in order to manage enforcement risk and ensure operational alignment with national biosecurity rules.