Biosecurity (Prohibited and Conditionally Non-prohibited Goods—Torres Strait) Determination 2016

This instrument, the Biosecurity (Prohibited and Conditionally Non‑prohibited Goods,Torres Strait) Determination 2016, specifies which classes of animals, plant products and other goods may move from particular parts of Australian territory identified in the Biosecurity (Movements between Parts of Australian Territory) Declaration 2016 only if specified conditions are met, or if the goods are covered by an import permit. It is made under subsection 174(1) of the Biosecurity Act 2015 (see s 3) and, by operation of its stated purpose, makes goods in the specified classes “conditionally non‑prohibited goods” for the purposes of the Act (see s 4 and the note to s 4). The instrument commenced at the same time as s 3 of the Biosecurity Act 2015 (commencement statement in s 2).

Mechanically, the instrument does three things:

• It defines the classes of goods subject to restrictions for movements from the origin parts listed in items 9, 10 and 11 of the Regulated Movements Declaration to the corresponding destination parts (see s 6 and the defined terms in s 5).
• It creates a binary compliance route: goods in a listed class must either be covered by an import permit or meet specified alternative conditions set out in the tables in Part 2 (see s 7(1)(a)-(b), and the alternative‑conditions tables in ss 8-13 and ss 14-16).
• It prescribes more exact alternative conditions for identified sub‑classes (for example canned meat, dairy products, certain fruits, bottles of water, soil, and used machinery) and sets exceptions to the classes (see s 6(2)).

The instrument ties its operation to the Regulated Movements Declaration. The terms “destination part”, “origin part”, and the item 9/10/11 designations are defined by reference to that Declaration (s 5). It also references other rule instruments for definitions (the Biosecurity (Prohibited and Conditionally Non‑prohibited Goods) Determination 2016 and the Biosecurity Regulation 2016) (s 5(2) and notes). The practical result is that movements from specified Torres Strait/protected zone origins to other parts of Australian territory are permitted only if either there is an import permit under the Act or the goods meet the instrument’s alternative conditions.

The instrument does not itself set criminal penalties or enforcement procedures; it operates within the Act’s framework. It therefore functions procedurally: class → condition(s) or permit → compliance evidence at point of movement. The tables of alternative conditions use operational criteria such as “commercially manufactured and packaged”, “clean and free from other animal or plant material and soil”, “shelf‑stable”, and “for personal use” (see ss 8-13, 14-16), which are the compliance tests that replace the permit route for the listed movements.

The instrument relies on a small set of recurring legal and operational concepts. Understanding these is essential because the majority of downstream compliance obligations and discretionary determinations by officials will rest on them.

• Conditionally non‑prohibited goods: The instrument makes goods in specified classes conditionally non‑prohibited for movements between particular parts of Australian territory by either permitting them under an import permit or allowing them subject to alternative conditions (s 4, see the note to s 4). The concept is statutory: the goods would otherwise be prohibited unless these conditions are met.

• Origin/destination parts and the Regulated Movements Declaration: The instrument does not identify geography directly. Instead, it ties operation to items 9, 10 and 11 of the table in s 5 of the Biosecurity (Movements between Parts of Australian Territory) Declaration 2016 via definitions in s 5. All “destination part” and “origin part” references are thus contextually defined by that separate Declaration; the instrument’s effect depends on how those items are drafted and amended.

• Classes of goods: Section 6 lists high‑level classes: animals; goods wholly or partly of animal origin (including dairy, eggs); live plants; specified plants (banana, sugar cane, maize, cassava, citrus, cotton) and goods originating from those plants; propagative plants (including seeds); fresh fruit and vegetables; fungi and goods containing fungi. The instrument also lists specific excluded items (s 6(2)), which remove some common items from the classes’ scope.

• Alternative conditions versus import permit: The central compliance architecture is s 7. Subsection 7(1) establishes that goods in a class must not be brought or imported into a destination part from a related origin part unless either an import permit covers the goods or, where provided, the alternative conditions in Part 2 are complied with. The permit route remains available in every case (s 7(2) notes that paragraph 7(1)(b) does not limit 7(1)(a)).

• Composite goods rules: Sections 7(3)-(5) establish layered rules for goods composed of multiple component goods. If any component requires an import permit (and there are no alternative conditions for that component) then the composite good requires a permit (s 7(3)). If alternative conditions exist for the whole good and for each component, then the composite good may be transported if either the whole‑good conditions or the component‑level conditions are met, or a permit is held (s 7(4)). Subsection 7(5) deals with a fallback where component alternatives exist but the structure in s 7(4) does not apply.

The instrument affects parties involved in moving goods between the specified origin and destination parts of Australian territory identified in items 9, 10 and 11 of the Regulated Movements Declaration. That includes, at minimum:

• Individuals and households transporting goods for personal use, because the instrument permits certain items only if “for personal use” in several provisions (for example s 9(2)(a) meat for item 11 destination part; s 10 item 1(b) dairy products; s 12 item 1(b) egg products). The “personal use” label imposes an eligibility test that affects travellers, residents and those carrying personal consignments.

• Commercial importers, retailers and manufacturers who move products from the specified origin parts to the destination parts. Commercial actors are implicated by the requirement in multiple places that goods be “commercially manufactured and packaged” or “commercially prepared” (for instance s 9(1) canned meat, s 9(2)(b) meat to item 11, s 10 item 1(a) dairy products, s 11 item 3 preserved fruit, and s 11 item 5 nuts). These commercial tests channel certain movements to supply chains that can document and demonstrate commercial processing and packaging.

• Agricultural and equipment traders: Sellers and buyers of used earth‑moving, agricultural, construction or timber felling machinery and equipment, used mining machinery, grain‑milling machinery, field‑tested agricultural machinery, and food processing equipment are directly affected by s 16. Those goods must either be covered by an import permit or be “clean and free from animal and plant material and soil” (s 16(2)(a)-(b)). That imposes an onus on operators to decontaminate and to document cleaning.

• Communities and producers in the Torres Strait and related origin parts: The instrument targets movements originating in the protected zone area or the Torres Strait permanent biosecurity monitoring zone as identified by the Regulated Movements Declaration and the Biosecurity Regulation 2016 (note in s 4 and definition in s 5). Producers and communities in those origin parts will face constraints on moving produce, animals and artefacts to the mainland or other destination parts unless the listed conditions are met.

• Ports, carriers and transport operators: Because the instrument conditions movement of goods, carriers who transport goods between the defined parts will be expected to verify permits or alternative condition compliance, at least insofar as carriers are responsible under the Act or associated enforcement protocols.

Duties imposed by this instrument are procedural and goods‑specific. The instrument does not create freestanding criminal offences; it prescribes conditions that must be satisfied for goods to be treated as conditionally non‑prohibited, within the statutory framework of the Biosecurity Act 2015.

Core duties

• Duty to hold an import permit or meet alternative conditions: Section 7(1) creates the central duty. Goods in classes covered by Division 1 or Division 2 must not be brought or imported into a destination part from the related origin part unless the goods are covered by an import permit (s 7(1)(a)) or, where alternative conditions are specified, those alternative conditions are complied with (s 7(1)(b)). The permit route remains available at all times (s 7(2)).

• Composite goods due diligence: For goods comprising multiple components, s 7(3)-(5) requires actors to assess each component against the instrument’s provisions. If any component requires a permit and no alternative is specified, the composite good requires a permit (s 7(3)). If alternative conditions exist both for the whole good and for each component, compliance can be achieved by meeting either set (s 7(4)). Subsection 7(5) is a further rule for when component alternatives exist but s 7(4) does not apply.

• Item‑specific duties: The various tables in ss 8-13 and ss 14-16 place itemised duties on holders and movers. Examples:

  • Cleanliness and freedom from animal/plant material and soil: recurring requirement (for instance s 8 item 1 for animal bone, tusks and teeth; s 11 items for nuts, taro, sago; s 13 items for artefacts and fibre goods; s 16 for used machinery).
  • Specific processing: items such as canned meat must be “commercially manufactured and packaged” (s 9(1)), taro must be peeled and cooked (s 11 item 8), wooden artefacts must have been fired and be clean (s 13 item 10).
  • Viability tests: some seed jewellery or goods or shells must be “not viable” (s 8 item 5 for sea shells and s 13 items 4 and 8 for seeds).

Rights and procedural options

• Right to choose the permit route: The instrument preserves the import permit option for all covered goods (s 7(2) and the consistent tables that allow a permit as an alternative). This creates a rights‑like procedural option for actors who cannot meet the prescribed alternative conditions.

• Right to rely on alternative conditions: Where the instrument lists alternative conditions for a class or item, meeting those conditions allows movement without a permit. For example, commercially packaged bottled water may move without a permit (s 14(2)(b)), and canned meat that has been commercially manufactured and packaged is permitted without a permit under s 9(1)(item 1).

The Determination itself does not set specific monetary fines, criminal offences, or detailed enforcement procedures. It is made under the Biosecurity Act 2015 (s 3), and s 4 states that goods included in the specified classes are conditionally non‑prohibited goods for the purposes of the Act. Enforcement and penalties therefore arise under the Act and its enforcement regime rather than in this instrument. The instrument operates by prescribing conditions that, if unmet, mean goods are not conditionally non‑prohibited and may be treated as prohibited by application of the Act.

Key enforcement‑related implications from the instrument:

• Enforcement jurisdiction is that of biosecurity officials operating under the Biosecurity Act 2015. The instrument gives officials a list of goods and specified alternative compliance conditions to check. It gives no separate enforcement framework; the Act provides powers to inspect, detain, treat, destroy, or direct other action for goods that do not satisfy legal requirements. The Determination is silent on specific enforcement powers,those powers are to be sought in the Biosecurity Act and associated regulations.

• Evidence and inspection: The alternative conditions lean heavily on observable criteria that inspectors can verify at ports, airports or other points of movement. Examples include observing whether goods are “commercially manufactured and packaged”, checking whether plant material is “clean and free from animal or other plant material and soil”, seeing whether wooden artefacts have been fired, or determining whether seeds are “not viable”. The instrument places a practical burden on authorised officers to assess these criteria, and on movers to present evidence.

• Permit compliance: Where an import permit is required or chosen, compliance with permit conditions becomes enforceable under the Act. While this instrument preserves the permit option (s 7(2)), it does not describe permit conditions, application process, or enforcement; those are governed by the Act and the import permit rules under it.

• Composite goods enforcement complexity: Sections 7(3)-(5) create potentially complex compliance determinations for composite goods. Inspectors must identify component goods and apply applicable alternative conditions or determine whether a permit is required, which may require decomposing packaging or seeking documentary evidence of component origins and processing.

• No specified sanctions in the instrument: Because the Determination does not state penalties, users cannot rely on it for penalty quantum or procedural enforcement detail. Where goods are moved in breach of s 7, officials will rely on the Act’s enforcement powers. The instrument’s purposes, as declared in s 4, indicate that it is part of the statutory matrix that defines permitted movements; failure to comply alters the legal status of goods under the Act.

This Determination is an instrument under the Biosecurity Act 2015 and is explicitly interdependent with other statutory instruments and the Act itself. Its operation and interpretation depend on those connected instruments and on the Act’s enforcement and permit frameworks.

Primary statutory relationships

• Biosecurity Act 2015: The Determination is made under subsection 174(1) of the Act (s 3). Section 4 explains its purpose "for subsection 174(1)" , it authorises Part 2 to operate so that specified classes of goods are conditionally non‑prohibited goods for movements specified in items 9-11 of the Regulated Movements Declaration. The Act supplies the legal mechanics for import permits, the concept of prohibited/conditionally non‑prohibited goods, and enforcement powers. The Determination does not duplicate enforcement detail; it operates within the Act's framework.

• Biosecurity (Movements between Parts of Australian Territory) Declaration 2016 (the Regulated Movements Declaration): The Determination is keyed to items 9, 10 and 11 of the table in s 5 of that Declaration. Definitions in s 5 of this Determination (for example “item 9 destination part”, “related origin part”) are defined by reference to that Declaration (s 5). The instrument’s geographic scope (movements from the protected zone area or the Torres Strait permanent biosecurity monitoring zone to another part of Australian territory) derives from the items in that Declaration (see s 4 note 1). Any amendment to the Regulated Movements Declaration that changes items 9-11 will change the set of movements to which this Determination applies.

• Biosecurity (Prohibited and Conditionally Non‑prohibited Goods) Determination 2016: Section 5(2) states that words or phrases used in this instrument have the same meaning here as in that Determination where used. The Determination lists terms that are not redefined here (for example “animal part”, “animal tissue”, “shelf‑stable”, “viable” as noted in s 5 and its notes). Therefore interpretive definitions for several operative terms lie in that other Determination.

• Biosecurity Regulation 2016: The term “Torres Strait permanent biosecurity monitoring zone” is defined by subsection 117(3) of the Biosecurity Regulation 2016, and s 5 refers users to that definition. The Regulation is therefore necessary to locate the geographic policy boundaries that make this Determination applicable.

Operational and administrative interactions

The instrument itself includes a commencement table in section 2 and an editorial note indicating that the table relates only to the provisions as originally made and will not be updated in published versions. The specifics in the instrument are:

• Commencement: Section 2(1) states that the whole of the instrument commences at the same time as section 3 of the Biosecurity Act 2015 commences, with a commencement date listed as 16 June 2016 in the tabular material included in s 2. Section 2(2) contains a conventional note that column 3 information is not part of the instrument and may be edited in published versions.

• No recorded amendments within the text provided: The text of the Determination supplied here contains no amendment schedule, no later commencement entries, and no inserted or repealed provisions. The instrument’s own note at s 2 indicates the tabular material pertains only to the original instrument and will not be amended in published versions to reflect later amendments. Therefore, within this document there is no in‑text amendment history to record.

• Cross‑instrument amendment dependency: Because the Determination’s operation depends on the Regulated Movements Declaration and on terms defined in another Determination and the Regulation (see s 5), amendments to those instruments will have the practical effect of changing the reach or interpretation of this Determination even if this instrument is not itself amended. For example, if the items in the Regulated Movements Declaration that designate origin and destination parts (items 9, 10 or 11) are amended, the scope of movement subject to this Determination will change without any amendment here.

• Editorial note on versioning: Section 2(2) reiterates a standard drafting practice that material in the commencement table’s column 3 is not part of the instrument and may be edited in published versions. That means authoritative amendment records will appear in the Federal Register of Legislation or other official amendment registers rather than in this text.

Implications for legal research and due diligence

• When advising clients or drafting compliance plans, practitioners must check the Federal Register of Legislation or the current consolidated versions of the Biosecurity Act and related instruments for any amendments to this Determination, the Regulated Movements Declaration, the Biosecurity (Prohibited and Conditionally Non‑prohibited Goods) Determination 2016 and the Biosecurity Regulation 2016. The instrument’s effect is partly contingent on those other instruments.

The text of the Determination provided contains no cases, references to litigation, or judicial interpretations. It does not cite or summarise any judicial consideration of its provisions, nor does it include any statements about legal challenges. As a statutory instrument, it is conceivable that disputes could arise under the Biosecurity Act 2015 about application, interpretation, or enforcement of the conditions it prescribes, but this Determination contains no record of such proceedings.

What the instrument itself indicates about adjudication pathways:

• Enforcement and challenge mechanisms are governed by the Biosecurity Act 2015: Because this Determination operates under the Act (s 3) and the Act sets out enforcement powers, rights of review and challenge, any dispute about decisions made under this Determination , for example, an official’s decision that a good is not “clean and free” or that a seed is “viable” , would be litigated or administratively reviewed within the legal mechanisms established by the Act and general judicial review principles. The Determination does not set out mechanisms for review.

• Absence of precedent in instrument: There is no content here providing judicial gloss on operational terms (such as “commercially manufactured and packaged”, “shelf‑stable”, “clean and free”, or “not viable”), nor any guidance about the evidentiary standard to be applied by inspectors or decision makers.

Practical consequences for practitioners

• Need to check external jurisprudence: Because the Determination contains no litigation history, practitioners should search case law databases and administrative decision records for judicial or tribunal authority interpreting the Biosecurity Act, the Regulated Movements Declaration, or any of the alternative‑condition terms where disputes have arisen. The instrument itself gives no guidance on whether courts have interpreted its tables or applied its composite goods rules.

• Anticipate administrative decision challenges: The instrument’s operational terms and composite goods rules (s 7(3)-(5)) create factual questions (for example, whether a wooden artefact has been “fired”, whether seeds are “not viable”, or whether a nut has been processed by blanching). These factual questions are often the subject of administrative decisions, and therefore potential review or litigation under the Act’s review or judicial review provisions. The Determination provides the legal basis for such decisions but not the procedural roadmap.

This instrument contains several technical traps and interpretive tight corners that create practical and legal risk if overlooked. Below are the principal “gotchas” drawn from the instrument text.

1. Geographic dependence on another instrument: The Determination does not itself identify the geographic origin and destination parts; instead, it ties to items 9-11 of the Regulated Movements Declaration (see s 4 and definitions in s 5). If you misread the Regulated Movements Declaration or use an outdated version, you can mistakenly apply (or fail to apply) these conditions.

2. Composite goods complexity (s 7(3)-(5)): When goods are composed of multiple components, the rules are layered and non‑intuitive:

   • If any component requires a permit with no alternative conditions, the whole good requires a permit (s 7(3)).
   • If there are alternative conditions for both the whole good and for each component, any of the alternative routes (whole‑good conditions, component‑level conditions) will suffice, or a permit (s 7(4)).
   • If component alternatives exist but s 7(4) does not apply, s 7(5) allows compliance by meeting each component’s alternative conditions or holding a permit. Practically, this means movers must identify every component and match it to the correct provision. Failure to decompose and check components can lead to inadvertent non‑compliance.

3. Undefined but operative terms: Terms that determine compliance , for example “commercially manufactured and packaged”, “commercially prepared”, “shelf‑stable”, “clean and free from other animal or plant material and soil”, and “for personal use” , are used as legal gates. Some of these may be defined in the other Determination referenced (s 5(2)), but several are not explicitly defined here. That creates interpretive risk and operational inconsistency between inspectors unless departmental guidance or definitions are located.

4. Different rules by item/destination: Some alternative conditions apply only to particular item destinations. For example s 9(2) concerns meat (other than canned meat) for human consumption moving into the item 11 destination part from the item 11 origin part; it requires the meat to be cooked and for personal use, or commercially manufactured and packaged. That is a narrower rule tied to the item 11 pairing. Misapplying s 9(2) to other destination parts is a risk.

5. “Clean and free” is a binary standard that may be operationally difficult: Many items require being “clean and free from animal or other plant material and soil” (for example s 8 items, s 11 items, s 13 items, s 16(2)(b)). Inspectors will apply their judgment to what “clean and free” means. Without a specified tolerance or test, goods could be detained for minor residues. Movers should proactively document cleaning.

Compliance with this Determination is a process of classification, documentary preparation, physical treatment, and, where needed, obtaining an import permit under the Biosecurity Act 2015. Below are practised steps and practical controls based on the instrument’s text.

1. Identify whether the movement is within scope:

   • Confirm the origin and destination parts by reference to items 9, 10 and 11 of the Biosecurity (Movements between Parts of Australian Territory) Declaration 2016. The Determination’s definitions (s 5) tie “item 9 origin/destination” etc. to that Declaration. If the movement is not from a listed origin or to a listed destination in those items, this Determination will not apply.

2. Classify the goods precisely:

   • Use s 6(1) to determine whether the goods fall within the listed classes (animals; goods wholly or partly of animal origin; live plants; specified plants such as banana, sugar cane, maize, cassava, citrus, cotton; propagative plants and seeds; fresh fruit and vegetables; fungi and goods containing fungi).
   • Check exclusions in s 6(2) carefully to see whether the goods are explicitly outside the classes (for example bread, cooked cakes without fresh fruit, marine organisms, turtle/dugong products).

3. If goods are in scope, decide permit or alternative conditions:

   • Per s 7(1), either obtain an import permit (s 7(1)(a)), or, where the Determination specifies an alternative condition for that good, comply with the alternative conditions in the relevant Part 2 provision (s 7(1)(b)).
   • Remember s 7(2): the alternative conditions do not limit the availability of the import permit option. If any uncertainty exists, the permit route is the fallback.

4. Apply composite goods rules for multi‑component items:

   • For packaged or composite goods, identify each component and match it to the appropriate instrument provision.
   • If any component requires a permit and has no alternative, the whole good requires a permit (s 7(3)).
   • If alternative conditions exist for the whole good and for each component, then meeting either set is acceptable (s 7(4)).
   • If alternatives exist only at the component level and s 7(4) does not apply, meet each component’s alternative conditions or obtain a permit (s 7(5)).