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

First point of entry. This is a status conferred under Part 2 of the Biosecurity Act. Once a port is declared a first point of entry for a class of vessels or goods, vessels of that class arriving in Australian territory must proceed directly there (unless an exemption or alternative arrangement exists). This determination gives Port of Melbourne that status for most commercial vessels and for all goods except the three listed exclusions. It does not, however, make the entire port a single zone; it carves out exceptions and then subdivides the port into biosecurity entry points.

Biosecurity entry points. These are the precise physical locations within the first point of entry where vessels must be brought and where goods must be unloaded. The determination creates two separate tables: one for vessels and one for goods. The vessel table has only two items. Item 1 says vessels other than non-commercial vessels must use Station Pier. Item 2 says all other vessels (excluding non-commercial and passenger vessels) may use a long list of areas including many commercial berths. The goods table has five items, each mapping a class of goods (baggage/waste; freight containers; general goods; inorganic bulk goods; passenger vessel baggage) to specific areas. For example, freight containers are restricted to only five areas: Appleton Dock (B-E), Swanson Dock East and West, and Webb Dock East Berth 4 and 5. General goods are allowed at a larger but still selective set of berths. Passenger vessel baggage is confined to Station Pier. The notes to each table cross-reference the Act’s requirements that vessels and goods must be brought to the biosecurity entry point “as soon as practicable” (sections 246 and 147 respectively). This means the operator of the port and the person in charge of the vessel have a statutory duty to ensure the vessel or goods end up at the correct designated location; the determination simply fills in which locations count.

Excluded items. The instrument explicitly excludes three categories of goods from the first point of entry designation: live horses, non-commercial vessel baggage, and non-commercial vessel waste. That means those items cannot be brought into the port for biosecurity clearance under this determination; other first point of entry determinations or alternative arrangements would need to apply. Non-commercial vessels themselves are also excluded from the port’s first point of entry status for vessels. The effect is practical: recreational or private vessels arriving at Port of Melbourne must use a different declared first point (if any) or seek a permit under the Act.

Conditions as ongoing obligations. Part 4 attaches conditions to the determination itself. This is not a run-of-the-mill feature; many first point of entry determinations are unconditional. Here, the Director of Biosecurity has imposed notification duties that apply indefinitely. The conditions have two limbs: (1) a duty to notify changes to the business entity operating the port or a biosecurity entry point (applies to owner and lessee); (2) a duty to give “reasonable notice” of proposed changes to procedures, facilities, amenities or any factor that might affect biosecurity risk identification, management or communication. The second limb is prospective: “proposes to make a change” triggers the notice obligation. The phrase “reasonable notice” is not defined, creating legal uncertainty about timing and sufficiency.

Relationship to the Act. The instrument itself is a legislative instrument made under s 229(1) of the Biosecurity Act. It is one piece in a broader regulatory puzzle. Sections 173 and 174 of the Act deal with prohibited goods and conditionally non-prohibited goods, and the note reminds that those sections and any determinations under them also govern what may be brought into a first point of entry. Sections 246 and 147 impose the “as soon as practicable” duty. The instrument does not override those; it merely supplies the location component.

Port of Melbourne owners and lessees. The Port of Melbourne is leased by the Victorian Government to a private consortium (as of the instrument’s commencement in December 2019, that was Lonsdale Consortium). The owner (State of Victoria) and any lessee are directly captured by section 9(2) and (3). They must monitor changes to the business entity operating the port or any biosecurity entry point and notify the Department in writing. This is a perpetual obligation; it does not expire. The term “business entity operating” is not defined but would likely include terminal operators, stevedores, or any subcontractor that runs a berth or facility. If a terminal operator changes, the owner/lessee must notify. This imposes an administrative tracking burden.

Person or body responsible for carrying out operations at Port of Melbourne. Section 9(4) uses this phrase to capture whoever actually runs day-to-day activities,likely the port operator or manager. That person must give “reasonable notice” of proposed changes to procedures, facilities, amenities, or any factors relevant to biosecurity risk. This is a broader class than owner/lessee. It catches operational entities that may not hold title or lease. The change could be as small as altering a biosecurity inspection procedure or as large as upgrading a wharf. The trigger is “proposes to make a change”, not “makes a change”. That means the duty arises before the change is finalised, requiring forward planning and notification lags.

Vessel operators and masters. They are not directly named in the determination, but they are affected because they must ensure their vessel is brought to the correct biosecurity entry point as listed in section 7. If a vessel carries freight containers, it must berth at one of the five designated container berths; if it carries passenger vessel baggage, it must go to Station Pier. This restricts the berths available to a master, potentially causing delays if the designated berth is occupied or unsuitable. The master must also ensure that goods are unloaded only at the designated goods entry points. The Act imposes liability for non-compliance, and the determination defines what compliance looks like.

Importers, freight forwarders and customs brokers. They are indirectly affected because the physical location where goods are inspected and cleared is predetermined. Goods can only be unloaded at permitted berths; that may affect logistics, transport costs, and onward movement. For example, freight containers arriving in a vessel that berths at an undesignated dock would have to be shifted to a designated area before biosecurity clearance, adding time and expense. Importers bear that cost through supply chain pricing.

Biosecurity officials and the Department of Agriculture. The determination structures how the Department deploys inspectors and facilities. By specifying which berths are biosecurity entry points, the Department knows where to have inspection facilities, x-ray machines, quarantine officers, and holding areas. The notification conditions ensure the Department is told of changes that might affect its operational planning. This is a benefit to the regulator, but it also creates a channel for the regulator to object to changes or impose additional requirements before a change proceeds.

Lessees and tenants of individual berths. The determination does not exempt berth-level operators. Under section 8, goods like general goods can be unloaded at many berths, but freight containers are tightly restricted. A terminal operator that handles only containers at a berth not listed for containers (e.g., Holden Dock) cannot perform biosecurity clearance for containers at that location. That may force business decisions about which cargo types to accept or compel investment in alternative clearance arrangements.

Duty to notify entity changes. Section 9(2) and (3) impose a duty on each owner and each lessee (if any) to give the Agriculture Department written notice of any change to the business entity operating the port or a biosecurity entry point. The duty is triggered when the person “becomes aware” that a change has occurred or will occur. Notification must be “as soon as practicable”. This is an ongoing, indefinite duty. It does not require the Department’s prior approval; it is a disclosure obligation. The purpose is to keep the regulator informed of who is responsible for biosecurity at each point. Failure to notify could be a breach of a condition of the determination, potentially leading to revocation or variation of the first point of entry status or other enforcement under the Act. The right conferred is merely the right to operate the port subject to compliance; there is no right to silence on operational changes.

Duty to give reasonable notice of proposed changes. Section 9(4) applies to the person or body responsible for carrying out operations at the port. That entity must give the Department “reasonable notice” of any proposed change to: (a) procedures for biosecurity measures; (b) facilities or amenities available for biosecurity officials; (c) procedures affecting ability to identify biosecurity risks; (d) procedures affecting ability to inform biosecurity officials of identified risks; (e) procedures for managing any other factors affecting biosecurity risk. The duty is triggered by a proposal, not a firm decision. The term “reasonable notice” is undefined; it will depend on the nature and scale of the change. A small procedural tweak may require only a few days; a major facility redevelopment could need months. The Department can use this notice to review, comment, or potentially direct changes. The duty does not require the Department’s consent, but in practice the Department could use its broader powers under the Act (e.g., to impose conditions on a permit or to issue a biosecurity direction) to block or modify the change. The notification duty therefore creates a de facto consultation right for the regulator.

Rights of the Department. The instrument does not expressly grant any new rights to the Department; it relies on existing powers under the Act. However, by attaching conditions, it gives the Department a basis to enforce compliance through mechanisms in the Act (e.g., civil penalties, injunctions, suspension or revocation of the first point of entry determination). The Department also receives the benefit of timely information about operational changes.

Rights of port operators. The instrument gives the port a positive right to operate as a first point of entry,without it, vessels and goods could not be brought into the port for biosecurity clearance. That is valuable commercially, as it enables the port to handle international cargo. The conditions are the price of that right. The operator also has the right to propose changes to procedures and facilities, subject to the notification duty; the instrument does not require prior approval for changes, only notice. That leaves operational flexibility, but the notice requirement means changes cannot be implemented instantly if “reasonable notice” requires a lead time.

Rights of vessel masters and importers. The determination indirectly gives vessel masters and importers certainty about where they must go. That reduces discretion and creates a clear compliance path. However, it also reduces flexibility: if the designated berth is congested, the master cannot choose an alternative berth unless an exemption or direction from the Department is obtained. The notes to the tables cross-refer to the Act’s duties, making it clear that the master must bring the vessel to the designated point “as soon as practicable”. There is no right to delay or choose a different point.

No general right to use undesignated areas. The instrument is exhaustive: the listed areas are the only biosecurity entry points for the described classes. Any use of a non-listed area for biosecurity processing is a breach of the Act’s requirement to use a designated point. This is a limitation on the port’s ability to reconfigure its operations without Department involvement.

The determination itself does not set out penalty amounts; those come from the Biosecurity Act 2015. A breach of a condition imposed under section 229 (which this instrument does) may constitute a contravention of the Act. Section 532 of the Act creates an offence of contravening a condition of a determination, punishable by a maximum penalty of 120 penalty units (currently about $31,320 for an individual, but for a body corporate the penalty is five times that: 600 penalty units, about $156,600). These amounts are set by the Act and are subject to indexation. The instrument’s conditions in section 9 therefore carry that potential criminal penalty if breached. Enforcement is by the Department of Agriculture or the Director of Biosecurity. The Department can also issue infringement notices (on-the-spot fines) under Part 5 of the Act for certain contraventions, though the instrument does not specify which provisions are infringement-notice eligible. The Act also allows civil penalty orders under Part 5, which can attract penalties of up to 500 penalty units for an individual and 2,500 for a body corporate. The Director can also vary or revoke the determination under section 229(2) if satisfied that the conditions have not been complied with. Revocation would remove Port of Melbourne’s first point of entry status, which would have severe commercial consequences: vessels and goods could not be brought there for biosecurity clearance, effectively shutting the port to international traffic until an alternative determination is made or a permit issued. That is the nuclear option, but the existence of the power encourages compliance. In practice, the Department is more likely to issue a warning, a remedial direction, or a fine for a first breach. The notification conditions are administrative in nature, so enforcement may focus on whether notice was given in time rather than on the substance of the change. A failure to notify a change (subsection 9(2)/(3)) is straightforward to prove: the Department can check its records. A failure to give “reasonable notice” of a proposed change (subsection 9(4)) is more subjective; the Department would need to argue that the notice was not reasonable in the circumstances. That could lead to disputes over what constitutes reasonable notice for a given change. The penalty provisions of the Act also apply to the duties in sections 7 and 8 indirectly: if a vessel is brought to an area not designated in the tables, that is a breach of section 246 of the Act, which requires bringing the vessel to a biosecurity entry point. The determination defines what that point is, so a breach is a breach of the Act, carrying the same penalty framework.

Biosecurity Act 2015 (Cth). This is the parent Act. The determination is made under section 229(1), which allows the Director of Biosecurity to determine that a port or place is a first point of entry for vessels, goods or classes of either. The determination works in conjunction with several other parts of the Act. Section 246 requires the person in charge of a vessel that is subject to biosecurity control and has arrived at a first point of entry to bring the vessel to a biosecurity entry point at that port as soon as practicable. Section 147 imposes a similar duty for goods. The determination supplies the specific entry points. Sections 173 and 174 deal with prohibited goods and conditionally non-prohibited goods; the note in section 6 reminds that even if Port of Melbourne is a first point of entry for goods, those goods must still comply with any prohibitions or conditions under those sections. The Act also contains powers for biosecurity officials to give directions, to issue biosecurity control orders, and to require treatment or export of goods. The determination does not override any of those powers.

Biosecurity Regulation 2016. The determination incorporates the definition of “non-commercial vessel” from the Regulation, so any changes to that definition automatically affect who is excluded from the vessel first point of entry. The Regulation also contains provisions on biosecurity entry points, fees, and documentation requirements that interact with this determination.

Other first point of entry determinations. Port of Melbourne is not the only declared first point of entry. Other ports have their own determinations, and they may have different conditions or entry points. A vessel that arrives at Port of Melbourne but is carrying goods for which the port is not a first point of entry (e.g., live horses) must proceed to a different port or seek a permit. Likewise, a vessel that cannot berth at a designated biosecurity entry point may be directed to another port under the Act’s powers.

State and local laws. The determination is a Commonwealth legislative instrument. It does not directly interact with Victorian planning, environment, or work health and safety laws, but those laws may indirectly affect the ability of the port to make changes to facilities or procedures. For example, a change to a biosecurity inspection facility may require a building permit under Victorian law. The notification condition in section 9 requires notice to the Department before such a change, which may create a timing tension if state permits take longer. The operator must manage the interactions.

Commonwealth anti-discrimination and freedom of information provisions. The notification conditions require the provision of information to the Department. That information may be subject to FOI requests. The operator should be aware that business-sensitive information about changes to procedures or facilities could become publicly accessible unless an exemption applies. This is an indirect effect of the condition.

Contracts and commercial arrangements. The determination imposes obligations on owners and lessees that may flow through into port terminal leases and operating agreements. A terminal operator may have a contractual duty to notify the port owner of changes, and the port owner then must notify the Department. Breach of the condition could lead to enforcement action by the Department, which could then give rise to liability under the contract if the operator’s failure to notify caused the breach.

The instrument was made on 29 November 2019 by Leanne Herrick, Acting Assistant Secretary, Compliance Division, Department of Agriculture, as delegate of the Director of Biosecurity. It commenced on 16 December 2019. The commencement table shows that all provisions commenced on that date. There is no indication in the provided text of any later amendments. The note to the commencement table states that the table relates only to provisions as originally made and will not be amended to deal with later amendments. That means if this instrument has been amended since 2019, the provided text is not the current version. However, the user has given only this text; we cannot assume amendments exist. The instrument is a legislative instrument registered on the Federal Register of Legislation; its amendment history would be publicly available. Possible amendments could include changes to the tables of biosecurity entry points (e.g., adding or removing berths) or to the conditions (e.g., adding new notification triggers). The port’s physical layout has changed over time; for instance, Webb Dock has undergone redevelopment, and the table includes both “Webb Dock East Berth 4” and “Webb Dock East Berth 5” and also a “Web Dock West” (likely a typo for Webb Dock West). Any such typographical correction or substantive change would require an amending determination. The instrument’s authority under s 229(1) allows the Director to vary or revoke the determination at any time. Users should check the current version on the Federal Register of Legislation to see if any amendments have been made. The existence of the notification conditions in Part 4 means that any substantive change to the port’s operation must be notified, and the Director could use that notification as the basis for amending this determination. The instrument is therefore potentially dynamic: it can be updated without being remade entirely, by a new determination that revokes and replaces it or by an amending instrument.

The provided text contains no reference to any litigation. The instrument itself is a legislative instrument of an administrative character; it is not itself a court judgment. However, litigation could arise around its conditions. For example, an owner or lessee could dispute whether a particular change falls within section 9(5) (the list of changes requiring notice). The phrase “procedures at Port of Melbourne providing for biosecurity measures” is broad; a party might argue that an internal administrative change does not constitute a change to “procedures” for biosecurity measures. The phrase “factors that may contribute to, or affect, the level of biosecurity risk” is even broader, potentially catching almost any operational change. A court might be asked to interpret the scope of the condition. Another potential litigation area is the meaning of “reasonable notice” in section 9(4). What is reasonable will depend on the circumstances; a party might challenge the Department’s view that notice was insufficient. Also, if the Department revokes or varies the determination based on an alleged breach of condition, the affected party could seek judicial review under the Administrative Decisions (Judicial Review) Act 1977 or the common law. The instrument is a legislative instrument, so a challenge to its validity could be made on grounds such as ultra vires (whether s 229 authorises the imposition of notification conditions) or procedural error in its making. To date, there are no widely reported cases involving this specific determination. Given that the instrument operates at a single port and the conditions are largely administrative, litigation may be rare. However, the high commercial stakes of a revocation could encourage a legal challenge if enforcement escalates. Practitioners dealing with this determination should monitor the Federal Court of Australia for any proceedings involving the Department of Agriculture and Port of Melbourne operators. The lack of litigation history does not mean the instrument is immune to challenge; it simply reflects the limited time it has been in force and the compliance-oriented nature of the conditions.

The “biosecurity entry point” tables are not symmetrical. A vessel that is not a non-commercial vessel must be brought to Station Pier under section 7, item 1. But the same vessel may carry freight containers, and under section 8, freight containers can only be processed at five berths (Appleton Dock (B-E), Swanson Dock East and West, Webb Dock East Berth 4 and 5). If the vessel is allocated to Station Pier, which is a passenger terminal, it cannot physically unload freight containers at that location because it is not a designated goods entry point for containers. The master would have to move the vessel to one of the container berths after arriving, or arrange for the containers to be transferred via lighter vessel to a designated berth. This mismatch between vessel entry points and goods entry points is a trap for those who assume that the vessel’s entry point automatically permits unloading. The goods must be brought to their own designated area, even if the vessel is at a different berth.

Non-commercial vessel exclusion creates a gap. Non-commercial vessels (private yachts, fishing boats) are wholly excluded from the Port of Melbourne first point of entry for vessels and from the goods exceptions. That means they cannot use the port for biosecurity clearance at all. The operator of a non-commercial vessel arriving at Port of Melbourne must either use a different declared first point (if the vessel is pre-cleared) or seek a permit from the Department. The port cannot legally accommodate them for biosecurity purposes. This may surprise visiting boat owners who expect to clear customs and biosecurity at a major port.

The definition of “waste” is limited to goods intended for disposal by the person in charge of the vessel. Section 4 defines waste as goods that are subject to biosecurity control and are intended by the person in charge of the vessel to be disposed of. This is narrower than ordinary understandings of waste. If waste is generated on board but the person in charge does not intend to dispose of it (e.g., it is held for treatment), it may not qualify as “waste” under the determination and would fall under a different goods class, potentially requiring a different entry point. This is a definitional trap.

Notification of “proposed” changes requires judgment. The duty under section 9(4) to give reasonable notice of proposed changes applies from the moment a change is “proposed”. But at what point does a change become “proposed”? Is it when management begins discussing it, when a business case is developed, or when a final decision is made? The instrument does not clarify. An operator who notifies too early (when the change is vague) risks giving notice of a change that never materialises; one who notifies too late (after a decision) may be in breach. The safest approach is to notify early and update, but that increases administrative volume.

“Owner” and “lessee” notification duties overlap but may not cover all operators. Section 9(2) and (3) apply to the owner and lessee of Port of Melbourne. But if the port is operated by a management company that is neither owner nor lessee (e.g., a sub-lessee or contractor), those entities are not directly covered by subsections (2) and (3). They are covered by subsection (4) if they are “responsible for carrying out operations”, but subsection (4) only covers proposed changes, not entity changes. So a change in a sub-contractor that operates a biosecurity entry point might not be notifiable if the owner/lessee is unaware of it. That could create a loophole.

The “reasonable notice” condition does not require Department approval, but the Department can use its other powers. The instrument does not say the Department must approve the change. However, the Department can issue a biosecurity direction under the Act to impose conditions or halt the change. An operator who gives notice and proceeds before the Department responds risks a direction requiring reversal, at cost.

Map your operations to the tables. The first step is to audit every vessel class and goods class that your entity handles at Port of Melbourne and confirm that the berths and areas you use are listed in the corresponding table in sections 7 and 8. For example, if you handle freight containers, ensure that your operations occur only at Appleton Dock (B-E), Swanson Dock East, Swanson Dock West, Webb Dock East Berth 4, or Webb Dock East Berth 5. If you handle general goods, your permissible areas are broader but still limited to the 12 areas listed in item 3. If you operate a berth that is not listed for the goods you handle, you must either stop handling those goods at that berth, move them to a listed area before biosecurity inspection, or apply to the Department to vary the determination. The compliance team should maintain a register of all vessel and goods movements and cross-reference them against the tables daily.

Establish a change notification protocol. Because section 9 imposes ongoing notification duties, the port owner, lessee, and operator should set up a standard operating procedure to monitor and report changes. The protocol should define who within the organisation is responsible for detecting changes: changes to the business entity operating the port or any entry point (e.g., a new stevedore taking over a terminal); changes to procedures affecting biosecurity (e.g., alterations to inspection schedules, new screening technology, revised cargo segregation rules); changes to facilities or amenities for biosecurity officials (e.g., new office space, upgraded x-ray machines, additional quarantine holding areas); and any other change that could affect biosecurity risk identification, management, or communication. The protocol must capture changes that are merely “proposed”, not only those that have been approved. The organisation should keep a log of proposals and the date notice was given. The Department should be notified in writing, by email or letter, as soon as practicable after the change is known or proposed. For proposed changes, the notice should state the nature of the change, the expected impact on biosecurity measures, and the intended timeline. The notice should be sent to the Department’s official contact for port biosecurity matters. The organisation should seek acknowledgment of receipt.

Monitor all changes, not just your own. The condition applies to changes “to the business entity operating Port of Melbourne or a biosecurity entry point”. This means the owner/lessee must monitor not just their own entity changes but also changes by their tenants or operators. If a terminal operator sub-contracts its operations to a new company, that change must be notified. The owner/lessee should have contractual terms requiring operators to promptly disclose such changes. Regular audits of all entry point operators are advisable.

Train staff on “reasonable notice”. Operations staff should be trained that any proposed change to procedures, facilities, or risk factors must be identified early and escalated to the compliance team. The team must assess what constitutes “reasonable notice” for each change. For a minor procedural tweak (e.g., updating a risk assessment checklist), a week may be reasonable. For a multi-year redevelopment of a wharf, notice should be given years in advance if it affects biosecurity facilities. When in doubt, notify early and supplement with additional details later. The Department cannot complain about too much notice.

Keep records of all notifications. The instrument does not specify a retention period, but under the Biosecurity Act’s general record-keeping obligations and the owner’s duty to avoid disputes, it is prudent to keep all written notices and acknowledgments for at least seven years. This will assist in demonstrating compliance if the Department later alleges a failure to notify.

Review the definitions of goods classes. Compliance officers should learn the precise definitions in section 4. “Inorganic bulk goods” is defined as chemicals, ores, minerals or gases brought in bulk that do not contain animals, plants, organic compounds or microbes. If a bulk chemical contains a trace organic additive, it may not qualify as inorganic bulk goods and must be processed at a different entry point (e.g., as general goods). Similarly, “freight container” is defined as a reusable container designed for multimodal transport, known as a 20-foot or 40-foot container. Non-standard containers (e.g., 45-foot, flat racks, open tops) may not fit the definition, meaning they cannot use the freight container entry points. Those containers would fall under “general goods” and must use a general goods entry point. This is a common source of error.

Seek a variation if needed. If your operations require a berth that is not listed, or if you anticipate a change that cannot proceed under the current tables, contact the Department early to discuss varying the determination. The Director has power under s 229(2) to vary or revoke. The notification conditions in section 9 already require notice of proposed changes; use that process as the basis for requesting a variation. The Department may agree to add a new berth or amend a class. Do not assume you can operate at an undesignated area while the variation is pending; doing so may constitute a breach of the Act. Seek interim approval or a permit if needed.