Biosecurity (Reportable Biosecurity Incidents) Determination 2016

The instrument’s central concepts are: relevant goods, categories of reportable events, the content of a report, and the permitted form of report. Each is anchored in the text.

Relevant goods: The Determination applies to goods “that are subject to biosecurity control” and “exposed goods in relation to which an exposed goods order is in force” (s 5). The instrument uses the Act’s defined terms (for example, “subject to biosecurity control” and “exposed goods”) but does not redefine them; practitioners must therefore link these concepts back to the Act and any related determinations (s 4 note).

Categories of reportable events (s 6): The instrument groups reportable incidents into three overlapping sets.

• Events relating to prohibited goods, conditionally non‑prohibited goods or suspended goods (s 6(1)). These include mismatch with manifest/import permit descriptions; damage to container/conveyance/premises that results in goods no longer being secure; loss or theft; and destruction outside of compliance with a direction given by a biosecurity officer.
• A specific event for conditionally non‑prohibited goods (s 6(2)): any change to the intended use of such goods must be reported.
• Events relating to goods generally (s 6(3)): exposure to contamination/infestation/infection from prohibited/conditionally non‑prohibited/suspended goods; infestation with a live pest unless the infested state was authorised by an import permit; and failure to take biosecurity measures required under Chapter 3 of the Act (including where it is not possible to take those measures).

Report content (s 7(1)): A report required under subsections 155(1) or 156(1) of the Act must include specified particulars: details and location of the goods; a description of the incident; timing and place of occurrence (if known); when the reporter became aware; whether goods have been moved; name and contact details of the reporter and any other persons who may have information; and details of any steps already taken to manage the incident.

Form of report (s 7(2)-(3)): Reports may be made orally or in writing (s 7(2)). If an oral report is made and the Director of Biosecurity or a biosecurity officer requests a written report within a period specified in that request, the reporter must provide the written report within that period (s 7(3)).

Other definitional links and cross‑references: The term import permit is given the meaning adopted in another Determination (s 4). The instrument notes that several expressions are defined in the Act (s 4 note). The obligations in this Determination are expressly linked to reporting obligations in the Act (subsections 155(1) and 156(1)), and to the concept of exposed goods orders (subsection 161(1)) (s 5 note; s 7(1) heading).

The instrument is procedural and focused on disclosure and situational specification, rather than on penalty or remedial powers. It reduces ambiguity about what counts as a reportable incident by enumerating event types and a report template, while leaving legal force for reporting and enforcement to the Act.

The Determination affects any person who is required under the Biosecurity Act 2015 to report a reportable biosecurity incident involving relevant goods,namely, goods subject to biosecurity control and exposed goods subject to an exposed goods order (s 5). The instrument does not create new reporting obligations beyond those in the Act; it operationalises them by specifying the incidents that must be reported and the information to be supplied (s 7(1)).

Who will typically be in scope:

• Persons in possession, custody or control of goods subject to biosecurity control. The instrument applies to events where goods are in a container, conveyance or other premises (s 6(1)(a)-(b)), which captures holders, carriers, freight forwarders, storage operators and any person with responsibility for the physical handling or storage of the goods.
• Persons with responsibility for manifests or import permits. An event includes goods “not as described on a manifest or an import permit” (s 6(1)(a)), so entities required to prepare or rely on manifests or import permits (importers, shipping agents, customs brokers) will be affected where mismatches arise.
• Owners and custodians of conditionally non‑prohibited goods. A change to the intended use of such goods is a reportable incident (s 6(2)), so ultimate owners, consignees, or other persons who decide or implement a change of use will be within scope.
• Persons responsible for preventing or detecting infestation, contamination or infection. The instrument requires reporting where goods or their holding containers or premises have been, or are likely to have been, exposed to contamination, infestation or infection from higher‑risk categories of goods (s 6(3)(a)-(b)). That brings in pest‑control contractors, warehouse operators, and transport operators.
• Persons obliged to take biosecurity measures under Chapter 3 of the Act, or who are responsible for ensuring those measures are taken. Failure to take required biosecurity measures, including where it is not possible to take them, is a reportable incident (s 6(3)(c)).

Who has decision or follow‑up responsibilities:

• The Director of Biosecurity and biosecurity officers. The Determination explicitly gives the Director of Biosecurity and any biosecurity officer the ability to request a written report when an oral report is made (s 7(3)). Those offices will therefore determine follow‑up requirements and evaluate the information provided.

Who does not appear to be brought in by this Determination alone:

• Persons dealing with goods that are not “subject to biosecurity control” and that are not exposed goods under an exposed goods order. The instrument’s application is limited by s 5.
• Persons whose goods are infested but whose infested state was authorised by an import permit: the instrument exempts that particular scenario from the infestation reporting requirement (s 6(3)(b)).

The net effect is to impose an information‑gathering and disclosure duty on a broad set of economic actors who handle biosecurity‑regulated goods, with particular attention to those who control description (manifests/import permits), custody/security (containers, conveyances, premises), intended use (conditionally non‑prohibited goods), pest status, and the taking or impossibility of taking Chapter 3 biosecurity measures.

Duties set by the Determination are narrowly procedural: to identify reportable events defined in s 6 and to report those events with specified information in the manner permitted by s 7. The reporting duties are triggered where a person is already required to report under subsections 155(1) or 156(1) of the Biosecurity Act 2015; the Determination prescribes the content and form for such reports (s 7(1)-(3)).

Principal duties:

• Identify reportable incidents. Parties must recognise the events enumerated in s 6 as reportable incidents. For prohibited goods, conditionally non‑prohibited goods, and suspended goods, the threshold events are mismatch with a manifest or import permit, damage rendering goods insecure, loss or theft, and destruction other than under an officer’s direction (s 6(1)(a)-(d)). For conditionally non‑prohibited goods, any change to intended use is reportable (s 6(2)). For any relevant goods, exposure to contamination/infestation/infection, infestation with a live pest (unless authorised by import permit), and failure to undertake required Chapter 3 biosecurity measures are reportable (s 6(3)(a)-(c)).
• Provide specified information in a report. A report required by subsections 155(1) or 156(1) of the Act must include the particulars listed in s 7(1): goods details, location, incident description, timing and place (if known), when the reporter became aware, movement since the incident, contact details for reporter and any other persons with relevant information, and details of steps taken to manage the incident.
• Use permissible channels. Reports may be made orally or in writing (s 7(2)). If an oral report is made and the Director or a biosecurity officer requests a written report within a specified period, the reporter must supply it within that period (s 7(3)).

Rights and procedural features:

• The Determination does not itself create an administrative appeal or review mechanism; it is primarily evidentiary and procedural. The Director and biosecurity officers retain the power to require written confirmation of oral reports (s 7(3)), which signals an administrative right of the agency to seek clarifying information.
• The instrument contains a limited exemption for authorised infested goods: goods infested with a live pest do not require reporting under s 6(3)(b) if the infested state was authorised by an import permit. That is a conditional right to non‑reporting in a narrowly defined circumstance (s 6(3)(b)).
• The Determination links duties back to the Biosecurity Act 2015 (for example, reporting obligations in subsections 155(1) and 156(1) of the Act). As a result, the substantive duty to report and any legal consequences for failure to report are to be determined by the Act, not by this Determination (s 7 heading and preface).

Duties that are not specified here but likely relevant:

• Timing. The Determination does not specify a time within which a report must be made; it simply sets content and form (s 7). Any temporal constraints are therefore to be sought in the Act (subsections 155(1), 156(1)) or other instruments.
• Record keeping. The Determination requires provision of specified information but does not create express record‑keeping obligations; however, the requirement to produce written reports on request (s 7(3)) implies a practical expectation that reporters can supply the details requested.

In short, the instrument prescribes a duty to report particular events and to supply a standardised set of information, and permits either oral or written reporting subject to an agency’s power to require written confirmation.

The Determination itself does not specify penalties or enforcement mechanisms. It identifies which events are reportable incidents and sets the required content and form of reports where reporting is required by subsections 155(1) or 156(1) of the Biosecurity Act 2015 (s 7(1)-(3)). Therefore, legal consequences for failure to report, and enforcement powers (including sanctions or remedial directions), are not contained in this instrument but arise, if at all, from the Biosecurity Act 2015 and any other relevant statutory provisions.

What the Determination does enforce directly is procedural: a reporter who makes an oral report must supply a written report within a specified period if the Director of Biosecurity or a biosecurity officer requests one (s 7(3)). The Determination makes that an explicit obligation attaching to an oral report where the request is made.

Because the instrument is silent on monetary penalties, criminal offences, civil remedies or administrative sanctions, the practical enforcement pathway looks like this:

• The act that triggers the reporting duty is located in the Act (subsections 155(1) and 156(1) are repeatedly referenced; see s 7 heading). Any penalty associated with failing to comply with the Act’s reporting provisions would be found in the Act, not in the Determination.
• Operational follow‑up and compliance monitoring will be carried out by the Director of Biosecurity and biosecurity officers, who have an express power to require written confirmation of oral reports (s 7(3)). The Determination therefore confers on those offices a procedural instrument to obtain fuller information.

Practical enforcement and compliance implications for practitioners:

• The absence of specified penalties in the Determination means that assessing legal risk requires consulting the Biosecurity Act 2015 (the instrument expressly ties reporting obligations to the Act in its headings and cross‑references). Legal advisors should therefore take the Determination as setting evidentiary and procedural expectations, and consult the Act for enforcement detail.
• Because the Determination prescribes required report content, a regulator assessing the adequacy of a report would have a clear baseline against which to measure completeness (s 7(1)). This increases administrative enforceability: regulators can identify omissions quickly and use s 7(3) to require written particulars where an initial report was oral.
• The Determination’s explicit exemption for goods whose infestation was authorised by an import permit (s 6(3)(b)) provides a concrete defence or justification against a reporting trigger, but whether reliance on that exemption is sufficient to avoid legal consequence depends on the Act and any enforcement provisions it contains.

In sum, the Determination operationalises reporting content and form but delegates penalties and broader enforcement authority to the Biosecurity Act 2015; it does, however, enable administrative follow up via a written report request mechanism (s 7(3)).

The Determination is explicitly framed as subordinate to, and operationally linked with, the Biosecurity Act 2015 and other biosecurity instruments. The instrument is made under ss 154 and 157 of the Act (s 3), repeatedly references reporting obligations in subsections 155(1) and 156(1) of the Act (s 7), and relies on defined expressions in the Act (s 4 note). It also imports the meaning of import permit from the Biosecurity (Prohibited and Conditionally Non‑prohibited Goods) Determination 2016 (s 4).

Specific interactions and implications:

• Reporting obligations in the Act. The Determination does not substitute for the Act’s notification duty; it prescribes what must be included in a report required under subsections 155(1) or 156(1). Practitioners therefore must read this Determination alongside the Biosecurity Act 2015 to determine timing, the persons subject to the duty, and legal consequences. The Determination is evidentiary, not substitutive (s 7 heading and s 3).
• Definitions and cross‑instrument coherence. The instrument explicitly notes that several expressions are defined in the Act (s 4 note). Where the Determination refers to “subject to biosecurity control”, “exposed goods”, “prohibited goods”, “conditionally non‑prohibited goods”, “suspended goods”, and “conveyance”, the legal meaning is determined by the Act. The instrument also defers to another Determination for the meaning of import permit (s 4). This creates a multi‑instrument interpretative task for users: they must trace several definitions and obligations across instruments.
• Exposed goods orders. The Determination applies to exposed goods “in relation to which an exposed goods order is in force” (s 5). The instrument notes s 161(1) of the Act in relation to exposed goods orders (s 5 note). Any legal features applicable to exposed goods (time limits, conditions, directions) will be governed by the Act and the instrument creating the exposed goods order; this Determination only prescribes reporting events and content for those goods.
• Chapter 3 biosecurity measures. The Determination makes failure to take Chapter 3 measures a reportable incident (s 6(3)(c)). Chapter 3 is in the Act, so the substantive scope of “biosecurity measures required to be taken” and any relevant exemptions will be defined by the Act. The Determination creates an obligation to report failures or impossibility of taking those measures, but the legal effect of such a report depends on Chapter 3 and other Act provisions.
• Import permit interaction. The instrument exempts from infestation reporting goods whose infested state was authorised by an import permit (s 6(3)(b)). The meaning and conditions of such import permits are in the other Determination referenced in s 4, so compliance advice must reconcile permit conditions with the Determination’s reporting triggers.
• Procedural interface with agency discretion. The Determination allows the Director or a biosecurity officer to require a written report when an oral report has been made (s 7(3)). That is a narrow procedural interaction: the instrument gives agency officers a specified tool to convert oral notifications into documented submissions, but it does not expand substantive agency powers beyond those the Act confers.

Constraints and gaps in cross‑legal coverage:

• The Determination does not specify penalties or enforcement; those are matters for the Act. Consequently, the Determination provides operational detail but requires cross‑reference to the Act for any sanctioning or remedial response.
• The Determination does not set timeframes for reporting. Timing may be set by the Act (subsections 155(1) and 156(1)), and so compliance requires consulting both instruments; the Determination’s silence on timeframes is a key interaction point.
• Because the Determination refers to various defined terms without restating them, users must reconcile definitions across the Act and other determinations (for example, the import permit definition), increasing the compliance mapping effort.

Practically, compliance and legal risk assessment will be driven by reading this Determination in tandem with the Biosecurity Act 2015 and the Biosecurity (Prohibited and Conditionally Non‑prohibited Goods) Determination 2016, among any other relevant instruments. The Determination is an evidentiary complement to the Act’s reporting framework.

The text presented is the instrument as originally made and contains a commencement table showing the whole instrument commenced at the same time as section 3 of the Biosecurity Act 2015, on 16 June 2016 (s 2 table). The instrument includes an express note that the commencement table relates only to the provisions as originally made and will not be amended in later published versions to deal with subsequent amendments (s 2(1)-(2)). No amended provisions, revocations or subsequent dates are set out in the instrument text before you.

What is in the instrument about amendments and change:

• Commencement: The entire instrument commenced concurrently with the stated part of the Act (s 2). The commencement entry ties the Determination’s operative start date to the Act’s commencement.
• Non‑amendment note: The instrument contains an administrative note that the commencement table relates only to the original version and will not be changed to reflect later amendments in published versions (s 2(1)). That is a standard parliamentary drafting note about presentation rather than substantive law.
• Authority for creation: The Determination records that it was made under ss 154 and 157 of the Biosecurity Act 2015 (s 3). Any amendment power would be exercisable under those or other sections of the Act, but the Determination does not itself specify amendment mechanisms.

What is not present:

• The instrument text provided does not include any subsequent amendment entries, schedules of changes, expiry, sunset clauses or review dates. It contains only the original text as made on 24 May 2016 (signature) and the commencement date (16 June 2016) (see top and s 2).
• There is no record within the text of any later variations, revocations, or replacement determinations.

Implications for users assessing currentness:

• The text itself warns users not to assume the commencement table will be updated in later published versions (s 2(1)-(2)). Practitioners should therefore verify whether the Determination has been amended post‑commencement by consulting the legislative instrument register or consolidated legislative database maintained by the relevant repository, because the instrument itself does not catalogue subsequent amendments.
• Any legal changes to definitions, scope, or reporting triggers may have been made by amendment; those would not appear in the original instrument text. The absence of amendment history in this document does not prove absence of subsequent amendments.

In short, this document is the original 2016 Determination that took effect with the Act on 16 June 2016. It records who made it and under what authority, but it does not contain within itself any later amendment history; external verification is required to confirm whether it remains in its original form.

The instrument text contains no references to litigation, judicial review, case law, or determinations of courts. It does not cite any decided cases or indicate that its provisions have been the subject of litigation. The instrument is procedural in nature, specifying reportable events and report content and form; it does not itself set penalties or confer enforcement powers that would normally generate a litigated statutory construction issue within the instrument text.

What the instrument does show from a litigation‑preparation perspective:

• The Determination links reporting obligations to subsections 155(1) and 156(1) of the Biosecurity Act 2015 and to other defined terms in that Act and in related instruments (s 4 note; s 5 note; s 7). Any litigation or judicial review challenging the scope, application or enforcement of these reporting duties would therefore be brought against decisions or actions taken under the Act as read with this Determination, rather than against the Determination in isolation.
• The instrument creates potentially litigable interpretation points by its phrasing. For example, concepts such as “no longer secure”, “likely to have been exposed”, “infested with a live pest”, and “change to the intended use” are factual and interpretive; disputes over their meaning may be matters for administrative review or judicial determination. However, the text does not report any adjudication of these phrases.

Absence of recorded litigation in this instrument text means:

• There is no litigation history recorded here to guide an understanding of how courts or tribunals have interpreted the Determination’s terms.
• Practitioners should look to any cases concerning reporting obligations under the Biosecurity Act 2015 (particularly subsections 155(1) and 156(1)), and to any administrative decisions or guidance issued by the Director of Biosecurity or relevant department, for precedent or interpretive guidance. Those materials are not contained in this Determination.

In short, no litigation history is contained in or recorded by the instrument text provided. Any disputes about application or interpretation will turn on the Act as read with this Determination, and must be researched in external case law or administrative decision records.

This instrument tightens reporting by enumerating reportable events and forcing a standardised content set, but it also contains a number of compliance traps and interpretive risks that arise directly from its text.

1. Reporting obligation is tied to the Act, but timing is unstated here (s 7). The Determination prescribes what to include in a report and how to deliver it (oral or written), but it does not state when a report must be made. The trigger is the Act’s subsections 155(1) and 156(1), so failure to consult the Act for timeframes is a practical gotcha: reporters may miss statutory time limits that are not set out here.

2. Broad and fact‑sensitive event descriptors (s 6(1)-(3)). Terms such as “not as described on a manifest or an import permit” (s 6(1)(a)); “no longer secure” (s 6(1)(b)); “likely to have been exposed” (s 6(3)(a)); and “infested with a live pest” (s 6(3)(b)) are fact dependent. They give agency officers scope to determine reportability, and they create room for disagreement about whether a particular factual constellation triggers the reporting duty. Practitioners should document contemporaneous evidence to justify decisions not to report.

3. Manifest/import permit mismatch. The unit of breath for a triggering mismatch is the manifest or import permit (s 6(1)(a)). If goods are not “as described” on either document, a reportable incident arises. That can include mislabelling, quantity discrepancies, or description errors. The Determination does not state materiality thresholds; even small mismatches could technically trigger reporting under the plain language.

4. Conditional exemption for authorised infested goods (s 6(3)(b)). Goods infested with a live pest are reportable unless that infestation as‑present was authorised by an import permit. That creates a two‑part compliance task: confirm whether an import permit exists, and whether the permit specifically authorised the infested state present. Misreading permit scope is a practical risk.

5. Change of intended use for conditionally non‑prohibited goods (s 6(2)). An economic decision to repurpose goods (for example, a change from industrial to feedstock use) is a reportable incident for conditionally non‑prohibited goods. Commercial actors who alter supply chains or product use without considering biosecurity reporting obligations risk non‑compliance.

6. Failure to take Chapter 3 measures is reportable even where measures could not be taken (s 6(3)(c)). The Determination treats impossibility as a reportable state. Parties must therefore document why measures could not be taken to justify non‑performance, and be prepared to report the impossibility as an incident.

7. Oral reports can be converted into a mandatory written report by agency request (s 7(3)). A party who thinks an oral notification suffices must be prepared to supply a full written report within any period specified by the Director or a biosecurity officer. This creates a practical evidence burden and timing risk.

8. Scope limited to goods “subject to biosecurity control” and “exposed goods” (s 5). Determining whether a particular consignment falls within those categories requires cross‑reference to the Act’s definitions and any exposed goods orders. Misclassification may lead to under‑reporting.

9. The Determination does not specify record‑keeping or proof standards. While it requires particular details in a report (s 7(1)), it does not state how those details will be verified or what documentary evidence should be retained. Good practice should be to preserve manifests, permit documents, chain‑of‑custody records, photos of damage, pest surveillance results, and communications about intended use changes.

10. Interplay with other obligations. The Determination prescribes a reporting template but does not address other regulatory filings, customs requirements, or commercial obligations triggered by the same events. Reporters should assess whether other agencies or contractual parties must be notified in parallel.

These “gotchas” follow directly from the Determination’s language. They point to practical risks: uncertainty about timing, broad factual triggers, potential for retrospective enforcement where oral reports are not followed by the requested written reports, and the need to reconcile permits and other instruments when assessing an exemption.

Compliance under this Determination requires a tidy operational workflow tying detection to documentation to reporting. Below are concrete steps, each grounded in the wording of the Determination.

1. Identify whether goods are “relevant goods” (s 5). Confirm that the goods are either subject to biosecurity control or are exposed goods under an exposed goods order. Use the Biosecurity Act 2015 definitions and any exposed goods orders to classify consignments before relying on the Determination’s rules.

2. Map roles and responsibilities. Assign responsibility for monitoring and reporting to a named person or team who can act under subsections 155(1) or 156(1) of the Act. The Determination requires the report to include the name and contact details of the person making the report and any other persons who may have information (s 7(1)(g)(i)-(ii)). Ensure internal contact details are current and that relevant staff know reporting points of contact.

3. Monitor for the specific reportable events in s 6 and maintain triggers. Operationalise the categories:

   • For prohibited, conditionally non‑prohibited and suspended goods, track manifest/import permit concordance, container/conveyance/premises integrity, loss/theft, and any destruction not under officer direction (s 6(1)).
   • For conditionally non‑prohibited goods, any contemplated change of intended use should be run through a compliance check before execution (s 6(2)).
   • For all relevant goods, monitor for contamination/infestation/infection exposure, presence of live pests (unless authorised by import permit), and the ability to perform required Chapter 3 biosecurity measures (s 6(3)(a)-(c)).

4. Prepare a reporting template matching s 7(1). Maintain a standard form or checklist containing:

   • Details of the goods (product identifiers, quantities, packaging) (s 7(1)(a));
   • Location of the goods (s 7(1)(b));
   • Clear description of the incident (s 7(1)(c));
   • When and where the incident occurred, if known (s 7(1)(d));
   • When the reporter became aware (s 7(1)(e));
   • Whether the goods have been moved since the incident (s 7(1)(f));
   • Name and contact details of the person making the report and of any other persons with information (s 7(1)(g));
   • Details of any steps taken to manage the incident (s 7(1)(h)).

5. Choose reporting channel and preserve evidence. Reports may be made orally or in writing (s 7(2)). If you report orally, be prepared for a written follow‑up request from the Director or a biosecurity officer; keep contemporaneous notes and evidence so the written report can be completed within any specified period (s 7(3)). Where possible, prefer written reporting to create an auditable trail.

6. Document reasons for non‑action or impossibility. Where biosecurity measures required under Chapter 3 could not be taken, the Determination requires that state to be reported (s 6(3)(c)). Keep documentary proof of inability to perform measures (supplier failures, quarantine access issues, force majeure) to support the report.

7. Check import permits before deciding on infestation reporting. If infestation with a live pest is present, confirm whether the relevant import permit authorised the goods in that infested state (s 6(3)(b)). If so, infestation reporting may not be required; document the permit and its terms.

8. Retain copies of manifests and import permits. Discrepancies between goods and manifests/import permits trigger reporting (s 6(1)(a)). Preserve the original manifest, permit and any amendments and reconcile physical stock against paperwork frequently.

9. Train personnel on “change of intended use” rules for conditionally non‑prohibited goods. Commercial redeployments or repurposing of goods may require reporting (s 6(2)). Ensure commercial teams consult compliance before execution.

10. Coordinate with the Director of Biosecurity and biosecurity officers. Be responsive to written report requests following oral notifications (s 7(3)). Establish direct points of contact within the agency to expedite confirmation and reduce the risk of administrative escalation.

11. Undertake regular compliance reviews. Because the Determination references definitions and obligations in the Act and in other determinations (s 4 note; s 4 import permit cross‑reference), periodic legal review should ensure that internal procedures align with any changes to the Act or related instruments.

12. Keep auditable records of steps taken to manage incidents. The Determination requires details of any steps taken to manage the incident (s 7(1)(h)). Create a central incident file that logs actions, dates, communications, remediation, and disposal or containment measures.

13. Seek legal advice where thresholds are uncertain. Where factual circumstances are ambiguous (for example, “likely to have been exposed” or “no longer secure”), and where there are commercial and reputational stakes, escalate to legal counsel to determine whether to report. Erring towards reporting preserves the declarative requirement but also triggers regulatory attention; the decision should be documented.

Following these concrete actions, each traceable to the relevant subprovision of the Determination, will align operational practice with the Determination’s reporting and information requirements and reduce the risk of inadvertent non‑compliance.