We recommend amending clause 2, relating to the bill’s commencement. As introduced, clause 2 states that the bill would come into force on the day after it receives Royal assent. We recommend instead providing for it to come into force on a date specified by Order in Council, or 12 months after the bill receives Royal assent, whichever comes first. We consider that this would give stakeholders and officials more time to prepare for the changes this bill proposes.

We are aware that having a set date for commencement might give the ministry and industry representatives less flexibility to respond to issues that could arise, such as COVID-19 disruptions to implementation. To mitigate this, our amendments would allow the commencement date to be linked to the making of regulations. We were advised that the ministry would work with airline and cruise line representatives to ensure that their information systems could appropriately deliver the biosecurity information required by the bill.

As introduced, clause 4 would insert new section 17AA into the Biosecurity Act. Proposed subsections (2)(a) and (2)(b) would create a duty on the person in charge of a craft to provide biosecurity information to people on board, in written and audiovisual form.

We think these proposed subsections contain too much detail about how these provisions would be implemented. We believe this level of detail would be more appropriate in secondary legislation. We consider that the bill should instead establish a general duty for the biosecurity information to be presented.

Therefore, we recommend amending clause 4, proposed new section 17AA(2)(a) and (2)(b). Our amendments would remove reference to how the biosecurity information should be presented. They would stipulate that, before a craft arrives in New Zealand, the person in charge of the craft must provide biosecurity information to passengers as set out in the regulations. They must also inform the Director-General that the information has been provided, as set out in the regulations (if required by the regulations).

We consider that the advantage of having more detailed information in secondary legislation is that the details could be changed relatively quickly. This is especially important in the biosecurity operating environment, where high-risk threats can create the need for rapid change to the implementation details of legislation.

We recommend inserting clause 8 into the bill, which would amend section 165 of the Act. This would enable regulations to be made in relation to section 17AA(2) and (3).

In clause 4, we also recommend replacing subsection (3) of proposed section 17AA. This would include some of the bill’s implementation details in regulations rather than in primary legislation, for the reasons outlined above. Paragraphs (a) to (g) of new subsection (3) would set out what the regulations may do.

As introduced, the bill has a requirement for each person on board to receive biosecurity information, which would also apply to the crew on board. We consider it unnecessary to include crew, and recommend excluding them from this requirement.

We therefore recommend replacing references to “persons on board” with “passengers” in clause 4. This would ensure that the requirement to receive biosecurity information would only apply to passengers, and not to all persons on board.

We consider that the duty to provide biosecurity information should be narrowed to include only commercial passenger craft with 20 or more passengers (excluding crew) on board.

As introduced, clause 4 requires all craft coming into New Zealand to provide biosecurity information. This includes private planes, air ambulances, fishing vessels, cargo ships, defence force aircraft and ships, private yachts, and donor organ retrieval flights. We understand that these craft already have a high level of compliance with biosecurity measures. We have also been advised that existing biosecurity controls already apply to all arriving craft.

Our amendment would replace the term “craft” with “large commercial craft” in proposed new section 17AA(1). The term “large commercial craft” would be defined in subsection (4). The “commercial craft” part of the definition would have the same meaning as “commercial craft” in the Immigration Act 2009.

Our proposed subsection (4)(b) would limit the duty to present biosecurity information based on the number of passengers the craft was carrying. The duty to provide biosecurity information would be limited to people in charge of commercial craft with 20 or more passengers (excluding crew) on board. This amendment would target craft carrying a relatively higher number of passengers, where the biosecurity risks are higher. Biosecurity risks are lower on craft carrying 20 or fewer passengers because they have more interaction with ministry inspectors on arrival.

We were advised that the move currently under way toward a digital border system would help to protect against biosecurity risks from passengers on smaller craft. A digital border system would use apps and webpages for passenger declarations, rather than paper arrival cards. We were advised the system would also provide an opportunity to inform passengers about New Zealand’s biosecurity requirements at various points of their journey. Eventually, it should be possible for biosecurity information to be provided through a single digital portal.

As part of our consideration, we have examined the bill’s consistency with principles of legislative quality. As a result, we recommend removing clause 5.

As introduced, clause 5 would make failing to present biosecurity information to incoming passengers punishable by a pecuniary penalty under section 154H of the Act.

Pecuniary penalties are non-criminal monetary penalties that aim to deter serious regulatory breaches without criminalising the offender. Under the Act, penalty amounts can reach $500,000 for an individual and $10 million for a body corporate. Alternatively, they can be three times the value of the commercial gain resulting from non-compliance, or 10 percent of the turnover of the body corporate if the commercial gain cannot be readily quantified.

We consider that these monetary penalties would be too high for the offence of not presenting biosecurity information to passengers. It is our view that a failure to comply with proposed section 17AA involves a lower level of harm compared to other offences punishable by pecuniary penalty orders under section 154H of the Act. It would also be inconsistent with the kind of conduct and harm already targeted by pecuniary penalties under the Act.

We also note that pecuniary penalties are intended to target the commercial gain that could be made by breaching the Act. We believe there is little financial gain to be had by a body corporate or an individual not providing biosecurity information to incoming passengers.

As introduced, clause 6 provides for the enforcement option of a strict liability offence. Strict liability offences are criminal offences that can be established without the need to prove the intention of committing the offence.

For the same reasons we outlined above for pecuniary penalty orders, we consider that the penalty of a strict liability offence is too high and not proportionate to the offence of failing to provide biosecurity information to passengers. As introduced, the penalty for a strict liability offence would be up to $5,000 for an individual and up to $15,000 for a body corporate.

We consider that an infringement notice would be a more appropriate punishment for a breach of proposed new section 17AA.

Infringement offences usually involve low-level infringement fees (less than $1,000) and are often imposed by issuing an infringement notice. Infringement offences do not result in criminal convictions. The purpose of infringement offences is to deter conduct that is of relatively low seriousness and does not justify the full imposition of the criminal law.

However, to enable the creation of an infringement offence in the bill, an offence for a breach of proposed section 17AA needs to be created. Therefore, we recommend retaining the strict liability offence in the bill, but reducing the penalty to the lowest under the Act: up to $1,000 for an individual and up to $5,000 for a body corporate.

We are advised that the Ministry for Primary Industries would create an infringement offence by amending the Biosecurity (Infringement Offences) Regulations 2010. The ability to create and implement regulations for the bill is discussed earlier in our report.

Therefore, we recommend amending clause 6 to insert new section 154N(20A) in the Act. This amendment would make it an offence under the Act for failing to comply with proposed section 17AA or the related regulations under section 165(1AA).

We also recommend replacing clause 7 of the bill to insert new section 157(6A) in the Act. This change would impose the following penalties on anyone who commits an offence under proposed section 154N(20A): a fine of up to $1,000 for an individual and up to $5,000 for a body corporate.

We recommend removing clause 7, which would apply the requirement to provide biosecurity information to passengers on craft inside New Zealand’s exclusive economic zone (EEZ). This zone is the area of the sea in which New Zealand has special rights regarding the exploration and use of marine resources.

Section 162AA(2) of the Act sets out how clause 7 of the bill would apply. The requirement to provide biosecurity information to passengers would only apply if the craft was arriving in New Zealand to explore or exploit resources in the EEZ. We understand that this recommendation would not compromise the ability for passengers to be made aware of New Zealand’s biosecurity requirements. For example, cruise lines provide biosecurity information shortly before, or during, disembarkation, while for airline passengers it is current practice for a biosecurity video to be played just before landing. We believe that this is the most effective time to provide biosecurity information because it allows passengers to retain and act on the information at the appropriate time.