under s.523 of the Biosecurity Act for 55 strict liability offences. Some apply to first points of entry such as airports and seaports, while others relate to cargo and ballast water or other areas of biosecurity concern. To be valid they must however be issued within 12 months after the day on which the contravention is alleged to have taken place.
A list of the 55 infringement notices is at s.523 of the Biosecurity Act 2015 and the following link: https://www.agriculture.gov.au/biosecurity/legislation/compliance/infringement-notice-scheme#how-much-is-my-infringement-notice
When strict liability applies to an offence, DAFF is only required to prove that the offence was committed. They are not required to prove fault elements such as intent in order for a person to be found guilty. Strict liability is used in circumstances where there is public interest in ensuring that regulatory schemes are observed, and it can reasonably be expected that the person was aware of their duties and obligations so can be expected to deal with less serious and less complex contraventions where proving guilt in a court would be disproportionately costly
At this time, we do not know if the ability to issue infringement notices is restricted to any particular training, although the DAFF website provides that any Biosecurity Enforcement Officer can issue an infringement notice. I understand that this role is different to that of a Biosecurity Officer but am unaware of the level of training or expertise required to be so appointed, as guidance material has not been issued. DAFF’s rationale for this is that this is an update regarding new provisions that are infringeable rather than a new scheme.
DAFF has however advised that a decision to issue a penalty will first consider the following:
· If this is the first occurrence of a breach
· Whether warnings have been issued in the past
· Seriousness of the breach
· Failed audits
The infringement notice provides the amount payable, the time in which it must be paid, and the methods whereby it can be paid. It also explains the process for seeking a withdrawal of a notice and/or requesting an extension of the payment period. Although payment is required within 28 days after the day the notice was given, an extension may be requested provided it is made before the original payment period has ended.
If an extension has already been granted, but additional time is required, this application must be lodged within the extended period, as late payments received outside of the extended payment period cannot be accepted by the department. More than one extension request may be made.
Paying the infringement notice within the payment period specified effectively discharges all guilt or liability regarding the alleged contravention without making any admissions. If it is not paid, DAFF may prosecute for that offence or commence court proceedings for a civil penalty order against that person. The court may impose a financial penalty for the contravention, as specified in the Biosecurity Act for that contravention.
The maximum penalty that a court could impose for each contravention is:
· s 126(2) - 300 penalty units ($93,900)
· s 128(2) - 300 penalty units ($93,900)
· s 532(1) - 60 penalty units ($18,780)
· s 533(1) - 60 penalty units ($18,780)
· s 186A (1) – 1200 penalty units ($375,600)
Under Commonwealth law, financial penalties are calculated in ‘penalty units’. Section 4AA of the Crimes Act 1914 sets the monetary amount of one penalty unit, which at 1 July 2023 was $313. This penalty is fixed at the lesser of one‑fifth of the maximum penalty that a court could impose for that contravention or 60 penalty units for commercial entities or 12penalty units for individuals. It should be noted that DAFF considers that there is no scope for lower penalties to be issued as the amount of penalty units is legislated. Although the amount payable may vary between offences, generally the amount is 12 penalty units (currently $3,756) for an individual and 60 penalty units (currently $18,780) for a company.
The penalty can be paid by credit card, cheque, money order or electronic funds transfer. Payment details are on the back of the infringement notice.
Requests for withdrawal of the infringement notice must be made in writing to the Director of Biosecurity and provide information about the circumstances of the alleged contravention as well as any other relevant information that may assist a decision to be made. A defence of honest and reasonable mistake of fact is available. This means that if a person has considered the relevant facts and is under a mistaken, but reasonable, belief about those facts, he or she is not liable for the offence.
If a broker is seeking withdrawal of an infringement notice on behalf of a client, the application must be accompanied by a signed Authority to Act from the client. A copy of this Authority is on the DAFF website.
When deciding whether or not to withdraw an infringement notice DAFF must take the following into account:
(i) whether a court has previously imposed a penalty on the person for a contravention of a provision subject to an infringement notice;
(ii) the circumstances of the alleged contravention;
(iii) whether the person has paid an earlier infringement notice, for conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention in this matter;
(iv) any other matter considered relevant.