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

This instrument, the Biosecurity (First Point of Entry,Port of Wyndham) Determination 2019, is a legislative instrument made under subsection 229(1) of the Biosecurity Act 2015. It designates the Port of Wyndham as a first point of entry for specified vessels and goods, and designates particular areas within the port as biosecurity entry points. It also imposes ongoing conditions on the port’s owners, lessees, and operators regarding notification to the Agriculture Department of certain changes.

Mechanically, the instrument performs three functions. First, under section 5, it declares the entire Port of Wyndham a first point of entry for vessels that are not non-commercial vessels. That means any cargo vessel, tanker, or commercial ship arriving from overseas must enter Australian territory through that port if it is to be treated as having met its biosecurity entry obligations; there is no alternative landing site within the port for such vessels unless this determination allows it. Second, under section 6, it declares the port a first point of entry for two categories of goods only: baggage carried on a vessel that is neither a non-commercial vessel nor a passenger vessel, and inorganic bulk goods (chemicals, ores, minerals, or gases that do not contain animals, plants, organic compounds, or microbes). A critical note in section 6 expressly states that the port is not a first point of entry for any other goods - meaning general cargo, foodstuffs, timber, live animals, or organic bulk materials cannot lawfully be imported through Wyndham unless separately authorised under other provisions of the Biosecurity Act.

Third, Part 3 designates specific physical areas within the port as biosecurity entry points. For vessels (other than non-commercial), both Wyndham Anchorage Point and Wyndham Wharf are designated. For baggage, both those areas are also designated. For inorganic bulk goods, only Wyndham Wharf is designated - not the anchorage point. This creates a geographic restriction: inorganic bulk goods must be offloaded directly at the wharf and cannot be handled at anchorage.

Finally, Part 4 imposes conditions on the determination. These are ongoing notification obligations on any owner, lessee, or person responsible for operations at the port. They must notify the Agriculture Department in writing of any change to the business entity operating the port or a biosecurity entry point, and must give reasonable notice of any proposed change to biosecurity procedures, facilities, risk identification procedures, communication of risks, or other factors affecting biosecurity risk. The conditions are not optional; non-compliance may affect the validity of the designation or expose the operator to enforcement action under the Biosecurity Act.

The instrument does not itself create criminal offences or set penalties, but it regulates the physical and procedural gateways through which international vessels and goods may enter Australia at this remote port. Its practical effect is to confine biosecurity processing at Wyndham to a narrow set of traffic: commercial vessels (not recreational or fishing vessels) carrying only inorganic bulk goods or limited crew baggage. This keeps the compliance burden relatively low compared to a general cargo or passenger port, but it also means any change in cargo type would require a new determination or alternative arrangements.

First point of entry. The Biosecurity Act 2015 requires that vessels and goods entering Australian territory must be brought to a first point of entry unless an exception applies (see sections 44 and 46 of the Act). A first point of entry is a place declared by the Agriculture Minister or a delegate under section 229, typically a port or airport that has appropriate biosecurity facilities and procedures. This instrument creates that status for Port of Wyndham, but only for the specific vessel and goods classes listed. The concept is binary: if a vessel or goods class is not declared as a first point of entry, they cannot lawfully be brought into that port without a separate direction or permission.

Biosecurity entry point. Under section 246 of the Act, after a vessel arrives at a first point of entry, it must be brought as soon as practicable to a biosecurity entry point - a specific berth, anchorage, or area where biosecurity clearance can occur. This instrument designates two such points at Wyndham: the anchorage point and the wharf. These are physical locations where biosecurity officials can inspect vessels, goods, and baggage. The distinction matters because different goods have different designated points: inorganic bulk goods may only be processed at the wharf, while baggage and vessels may use either. This reflects the operational reality that inorganic bulk goods (e.g. ores loaded by conveyor) require wharf infrastructure, while vessel inspections can occur at anchor.

Inorganic bulk goods. Defined in section 4 as chemicals, ores, minerals, or gases brought into Australia in bulk that do not contain animals, plants, organic compounds, or microbes. This definition is key to the port’s scope. If a shipment of ore contains any organic material (e.g. soil on the ore, plant matter, or microbial contaminants), it arguably falls outside the definition and cannot be landed at Wyndham under this instrument. The definition imposes a purity condition that may be difficult to verify without testing. Operators must be certain that their cargo contains no organic content; otherwise, they risk breaching the requirement to bring goods to a first point of entry.

Non-commercial vessel. Defined by reference to the Biosecurity Regulation 2016. These are generally recreational vessels, fishing boats, and other non-commercial craft. The instrument explicitly excludes non-commercial vessels from all provisions: section 5 says the port is a first point of entry for vessels “other than non-commercial vessels”. Similarly, the baggage provision in section 6(a) excludes baggage from non-commercial vessels, and the tables in sections 7 and 8 also exclude them. This means recreational yachts and fishing boats cannot use Port of Wyndham as a first point of entry; they must use a different declared port or obtain a permit.

Port of Wyndham owners and lessees. The primary duty holders under this instrument are the owner and any lessee of the port. Sections 9(2) and 9(3) impose a positive obligation on each of them - individually, not just collectively - to notify the Agriculture Department of any change to the business entity operating the port or a biosecurity entry point. This is a continuing obligation that applies as soon as the person becomes aware of a change that has occurred or will occur. Failure to notify could lead to enforcement under the Biosecurity Act, including potential civil penalty provisions. For a remote port like Wyndham, which may change management or operational contracts, this imposes a real administrative cost: tracking corporate changes and promptly writing to the Department.

Persons responsible for operations. Section 9(4) applies to “a person or body that is responsible for carrying out operations at Port of Wyndham”. This could be the port manager, a stevedore, a terminal operator, or any entity with day-to-day control. They must give reasonable notice of proposed changes to procedures (five categories listed in s9(5)). “Reasonable notice” is not defined, creating uncertainty. An operator who changes a risk identification procedure without prior written notice breaches the condition, even if the change is minor or improves biosecurity. This creates a disincentive to make quick operational improvements without first obtaining Departmental approval.

Vessel operators. The instrument affects masters and agents of commercial vessels (excluding non-commercial) who intend to call at Wyndham. They must ensure their vessel and its cargo fall within the classes permitted: inorganic bulk goods or crew/passenger baggage (but only if the vessel is not a passenger vessel). A general cargo ship carrying packaged food, timber, or machinery would be in breach if it attempted to unload such goods at Wyndham without separate approval. Similarly, a passenger vessel cannot land baggage there at all. Vessel operators must verify their cargo manifest against the instrument’s limited scope before arriving.

Importers of inorganic bulk goods. Businesses importing ores, minerals, chemicals, or gases through Wyndham benefit from a dedicated first point of entry, but must comply with the inorganic definition. An importer of iron ore that contains trace organic soil may be denied or face delays. The compliance burden falls on the importer to prove the cargo meets the definition, potentially through testing and certification.

Duty to notify of entity changes. Under section 9(2) and (3), each owner and each lessee must give written notice to the Agriculture 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. This duty is not joint; it applies to each person individually. If there are multiple owners, any one owner who becomes aware of the change must notify. The standard is “as soon as practicable”, which imposes a promptness obligation; a delay of weeks may be deemed non-compliant.

Duty to give reasonable notice of proposed changes. Under section 9(4), any person responsible for operations must give the Department reasonable written notice of a proposed change to any of the five categories in section 9(5): biosecurity procedures, facilities/amenities for officials, procedures for identifying biosecurity risks, procedures for communicating identified risks, and procedures for managing other factors affecting risk. “Reasonable notice” is not quantified, but likely means sufficient time for the Department to assess and respond before the change is implemented. This effectively gives the Department a de facto veto over operational changes: an operator who implements a change without notice is in breach, even if the Department would have approved it.

Right to process vessels and goods. For vessel operators and importers, the instrument creates a right (limited by the classes) to bring vessels and goods to Port of Wyndham as a first point of entry. That right is conditional on the port’s compliance with the notification conditions. If the port operator fails to comply, the Department may suspend or revoke the determination, affecting all users.

Right to use designated biosecurity entry points. Within the port, the instrument defines where processing occurs. A vessel operator has the right to proceed to Wyndham Anchorage Point or Wyndham Wharf for clearance, but inorganic bulk goods must go only to the wharf. This limits operational flexibility: a vessel carrying bulk ore cannot be cleared at anchorage even if the wharf is unavailable.

No right to bring prohibited or conditionally non-prohibited goods. Note 2 in section 6 reminds that sections 173 and 174 of the Biosecurity Act deal with prohibited goods and conditionally non-prohibited goods. Even if a good is within the class (e.g. inorganic bulk goods), it may still be prohibited outright or subject to permits. This instrument does not override the Act’s substantive prohibitions.

The instrument itself does not prescribe penalties. Enforcement arises under the Biosecurity Act 2015. The instrument gives effect to sections 44, 46, 147, and 246 of the Act, which are enforceable by criminal or civil penalty provisions.

Failure to use a first point of entry. Under the Act, bringing a vessel or goods into Australian territory other than at a first point of entry is an offence. For a vessel, the maximum penalty for an individual is 300 penalty units (currently $93,900) or imprisonment for 2 years, or both; for a body corporate, 1,500 penalty units ($469,500). For goods, similar penalties apply. By designating Wyndham only for inorganic bulk goods and limited baggage, the instrument effectively criminalises the importation of any other goods through that port unless an exemption or permit applies.

Failure to bring vessel to biosecurity entry point. Section 246 of the Act requires a vessel to be brought to a designated biosecurity entry point as soon as practicable. Contravention is an offence of strict liability, subject to a maximum of 60 penalty units for an individual and 300 for a body corporate. The instrument’s designation of two areas means the master must choose one; anchoring elsewhere in the port without clearance risks penalty.

Failure to bring goods to biosecurity entry point. Section 147 requires goods to be brought to a biosecurity entry point as soon as practicable. Penalties mirror those for vessels. The instrument’s designation of Wyndham Wharf for inorganic bulk goods means that storing such goods at the anchorage or elsewhere could be an offence.

Breach of conditions (section 9). The instrument states that the determination is “subject to the conditions in this section”. The Biosecurity Act does not directly criminalise breach of a condition on a first point of entry determination. However, section 229(3) provides that a determination may be subject to conditions. If a condition is breached, the Minister may vary or revoke the determination under section 33 of the Acts Interpretation Act or similar provisions. Additionally, failure to give notice as required could be an offence under the general provision in section 137.1 of the Criminal Code for providing false or misleading information to a Commonwealth official - maximum 12 months imprisonment. The practical risk is that the determination is suspended, effectively shutting the port to international traffic until compliance is restored.

Enforcement role of the Agriculture Department. Biosecurity officials have wide powers under the Act: inspection, detainment, direction, and seizure. They can board vessels, examine goods, and require production of documents. If they suspect a breach of the entry point requirements, they can refuse clearance, require the vessel to leave, or impose conditions. The instrument does not create any additional review rights; decisions are reviewable under the Act’s internal review mechanism.

Biosecurity Act 2015 - primary legislation. This instrument is made under s229(1) of that Act. It forms part of a regulatory framework that includes:

• Sections 44 and 46: requirement for vessels and goods to enter at a first point of entry.
• Section 147: goods must be brought to a biosecurity entry point.
• Section 246: vessels must be brought to a biosecurity entry point.
• Sections 173 and 174: prohibited goods and conditionally non-prohibited goods.
• Part 2 of the Act: general biosecurity obligations. The instrument does not override any of these; it merely specifies the geographic and class-based limits for Wyndham. Any other provisions of the Act (e.g. permits, directions, emergency measures) continue to apply.

Biosecurity Regulation 2016. The instrument incorporates the definition of “non-commercial vessel” from the Regulation, streamlining the cross-reference. The Regulation may also prescribe other requirements for first points of entry, such as infrastructure standards or fee arrangements.

Other first point of entry determinations. Port of Wyndham is one of many ports around Australia declared as first points of entry. Each determination is specific to a port. This instrument does not affect other ports; a vessel that cannot use Wyndham may use another declared port (e.g. Port of Darwin or Port Hedland) if those determinations cover the relevant goods or vessel types.

Environmental and customs laws. The instrument does not interact with customs, quarantine (except biosecurity), or environmental protection laws directly. However, the importation of inorganic bulk goods through Wyndham may also trigger obligations under the Environment Protection and Biodiversity Conservation Act 1999, particularly if the goods are mined or processed in a way that affects threatened species or heritage. The instrument is silent on those matters.

State and local laws. Port operations are also subject to Western Australian state legislation (e.g. the Port Authorities Act 1999 (WA), the Marine and Harbours Act 1981 (WA)). The notification conditions in section 9 may overlap with state requirements to notify port authorities of operational changes. Operators must comply with both; the instrument does not pre-empt state law.

The conditions in section 9 impose obligations on “owner”, “lessee”, and “person responsible for operations”. These terms are not defined in the instrument but will be determined by property and contract law. A port operator who subcontracts stevedoring may still be responsible for notifying changes if they retain control over biosecurity procedures. The instrument creates potential for disputes over who owes the duty.

The instrument was made in 2019. The text provided shows no amendment history. It appears to be the original version. There are no amendment notes, no table of amendments, and no indication of subsequent variations. Given that the instrument is a narrow determination for a specific port, amendments are likely rare; they would occur if the port’s infrastructure changed significantly or if the scope of goods needed modification. The absence of amendments suggests the port’s operations and the Department’s assessment of biosecurity risk at Wyndham have remained stable since 2019.

Section 33 of the Acts Interpretation Act allows the Minister to vary or revoke the instrument. Any amendment would be published on the Federal Register of Legislation and would likely be a new determination that supersedes this one. Practitioners should check whether a later determination exists for Port of Wyndham, particularly if the port has expanded operations or if new biosecurity risks have emerged.

The instrument has a sunset clause under the Legislation Act 2003, typically 10 years from making, so it will expire in 2029 unless remade. This is standard for legislative instruments.

No litigation history is evident from the source. The instrument itself does not reference any cases. Given its narrow scope and limited impact - affecting one remote port and only two goods categories - it is unlikely to have been the subject of judicial review or enforcement litigation. Most biosecurity disputes involving first point of entry determinations are resolved administratively through the Department’s internal review processes or through civil penalty proceedings that are not publicly reported at the determination level.

Potential future litigation could arise if a vessel operator challenges the Department’s refusal to allow a cargo at Wyndham on the basis that it falls within the definition of “inorganic bulk goods”. The definition’s exclusion of animals, plants, organic compounds, and microbes could be contested - for example, ore containing traces of naturally occurring organic matter. A court would need to interpret whether “contain” means any detectable amount or a significant amount. Another possible dispute: whether a person “responsible for carrying out operations” includes a contractor who does not have management control. The instrument’s undefined terms invite interpretative litigation.

No Administrative Appeals Tribunal (AAT) decisions regarding this specific instrument are known. The AAT may review reviewable decisions under the Biosecurity Act, such as refusal to grant a permit to land goods outside the declared classes.

Narrow goods scope traps importers. The most significant trap: Port of Wyndham is a first point of entry only for (1) baggage from non-passenger, non-commercial vessels, and (2) inorganic bulk goods. Note 1 under section 6 states clearly: “Port of Wyndham is not a first point of entry for any other goods.” That means any other type of cargo - grain, timber, machinery, live animals, food products, organic chemicals - cannot be landed there. An importer who mistakenly assumes a broad designation faces prosecution for bringing goods into Australian territory outside a first point of entry. The penalties are severe: up to 300 penalty units for individuals. Vessel operators must check the cargo manifest carefully; even a small amount of prohibited goods could trigger liability.

Inorganic bulk goods definition is strict. The definition in section 4 requires that the chemicals, ores, minerals, or gases “do not contain animals, plants, organic compounds or microbes”. This is a negative requirement. Ore that has soil contamination (which contains plant material and microbes) likely fails the definition. An importer must be able to prove the absence of such content. If testing reveals trace organic material, the goods may be deemed outside the instrument and thus illegally imported. The burden of proof falls on the importer if challenged. There is no de minimis exception.

Non-commercial vessels completely excluded. Recreational yachts, fishing boats, and other non-commercial vessels cannot use Wyndham as a first point of entry at all. This may catch small vessel operators unaware, particularly if they are transiting the remote area and assume any port will do. They must divert to a port with a broader declaration (e.g. Broome, Darwin) or obtain a permit. The instrument also excludes passenger vessels from the baggage provision; a cruise ship cannot land passenger baggage at Wyndham.

Notification conditions apply to multiple parties. Sections 9(2) and (3) impose duties on each owner and each lessee individually. If there are multiple owners or lessees, each must notify the Department of entity changes. This could lead to duplication or confusion - one owner notifies, another fails to, and the Department may treat the condition as breached by all. The instrument does not provide that notification by one satisfies the duty of others. Similarly, section 9(4) applies to any person responsible for operations; multiple entities could owe the same notice duty.

“Reasonable notice” is undefined. Section 9(4) requires reasonable notice of proposed changes. The instrument gives no guidance on timing. A change to biosecurity procedures might be urgent in an emergency; but taking action first and notifying later likely breaches the condition. Operators must seek guidance from the Department on what is considered reasonable, or err on the side of very early notice.

Step 1: Confirm your vessel and goods fall within the declared classes. Before calling at Port of Wyndham, the vessel master and the cargo operator must check: is the vessel a non-commercial vessel? If so, it cannot use Wyndham. If it is a passenger vessel, baggage cannot be landed. If the vessel is commercial and carries inorganic bulk goods, those goods may be landed only at the wharf. If the vessel carries any other goods, they cannot be discharged at Wyndham; the operator must either obtain a permit under the Biosecurity Act or divert to another first point of entry.

Step 2: Ensure inorganic bulk goods are truly inorganic. Importers of ore, minerals, chemicals, or gases should obtain certification from the supplier that the goods contain no animals, plants, organic compounds, or microbes. This may require laboratory analysis. Retain records for at least the period specified under the Biosecurity Act (generally 5 years). If there is any doubt, apply for a permit to land the goods at Wyndham or seek a variation of the determination.

Step 3: Bring vessel and goods to the correct biosecurity entry points. On arrival, bring the vessel to either Wyndham Anchorage Point or Wyndham Wharf as soon as practicable. Inorganic bulk goods must be brought to Wyndham Wharf only; do not offload inorganic bulk goods at the anchorage. Baggage may be landed at either area. Ensure compliance with any directions from a biosecurity official.

Step 4: Set up a notification system for entity and procedural changes. The port owner(s), lessee(s), and operator must establish internal procedures to monitor:

• Changes to the business entity operating the port or a biosecurity entry point (e.g. a corporate restructure, sale of the business, new management contract).
• Proposed changes to biosecurity procedures (s9(5)(a)).
• Proposed changes to facilities or amenities for biosecurity officials (s9(5)(b)).
• Proposed changes to risk identification procedures (s9(5)(c)).
• Proposed changes to risk communication procedures (s9(5)(d)).
• Any other change that may affect biosecurity risk (s9(5)(e)).

For entity changes, the owner/lessee must notify in writing as soon as practicable after becoming aware of the change (whether past or future). For proposed procedural changes, the person responsible must give reasonable notice in writing before the change takes effect.

Prepare template letters to the Agriculture Department that include: the name of the port, the date of the change or proposed change, a description of the change, and confirmation of the effect on biosecurity risk. Address to the relevant regional office. Retain evidence of sending (e.g. email receipt, registered post).