Federal Court of Australia
Director of Biosecurity v Chi [2024] FCA 388
ORDERS
Applicant | ||
AND: | First Respondent LINH THI MY CHAU Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS AND DECLARES THAT:
Declarations against Mr Chun Lok Chi
Declaration of contravention – 29 December 2019 importations
1. Pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) that Mr Chun Lok Chi contravened s 186(1) of the Biosecurity Act 2015 (Cth) (Biosecurity Act) on 29 December 2019, by bringing and/or importing live fish into Australian territory in circumstances where:
(a) such goods were conditionally non-prohibited goods; and
(b) the condition in relation to such goods specified in s 11(1)(a) of the Biosecurity (Prohibited and Conditionally Non-prohibited Goods) Determination 2016 (Cth) (Goods Determination) in force under sub-s 174(1) of the Biosecurity Act had not been satisfied.
2. Pursuant to s 21 of the Federal Court Act that Mr Chun Lok Chi contravened s 186(1) of the Biosecurity Act on 29 December 2019, by bringing and/or importing water, or alternatively bags of water, into Australian territory in circumstances where:
(a) such goods were conditionally non-prohibited goods; and
(b) the conditions in relation to such goods specified in s 39(3) of the Goods Determination in force under sub-s 174(1) of the Biosecurity Act had not been satisfied.
Declaration of contravention – 29 January 2020 importations
3. Pursuant to s 21 of the Federal Court Act that Mr Chun Lok Chi contravened s 186(1) of the Biosecurity Act on 29 January 2020, by bringing and/or importing live fish into Australian territory in circumstances where:
(a) such goods were conditionally non-prohibited goods; and
(b) the condition in relation to such goods specified in s 11(1)(a) of the Goods Determination in force under sub-s 174(1) of the Biosecurity Act had not been satisfied.
4. Pursuant to s 21 of the Federal Court Act that Mr Chun Lok Chi contravened s 186(1) of the Biosecurity Act on 29 January 2020, by bringing and/or importing water, or alternatively bags of water, into Australian territory in circumstances where:
(a) such goods were conditionally non-prohibited goods; and
(b) the conditions in relation to such goods specified in s 39(3) of the Goods Determination in force under sub-s 174(1) of the Biosecurity Act had not been satisfied.
Declaration of contravention – 29 January 2020 incoming passenger card
5. Pursuant to s 21 of the Federal Court Act that Mr Chun Lok Chi contravened s 533(1) of the Biosecurity Act on 29 January 2020, by producing an Incoming Passenger Card (IPC) to Mr Matthew Lombardi, an officer of the Australian Border Force and Mr Ryan McNeill, a Biosecurity Officer of the Department, in circumstances where;
(a) Mr Chi knew that the document was false or misleading in that he had placed crosses in boxes marked “No” on the IPC next to the questions:
(i) “Are you bringing into Australia … meat, poultry, fish, seafood, eggs, dairy, fruit, vegetables?”; and
(ii) “Are you bringing into Australia … Animals, parts of animals, animal products including equipment, pet food, eggs, biological specimens, birds, fish, insects, shells, bee products?”,
and had signed a declaration attesting that the information he had given on the IPC was true, correct and complete, but was in fact knowingly bringing fish into Australia; and
(b) the IPC was produced in purported compliance with the Biosecurity Act.
Declarations against Ms Linh Thi My Chau
Declaration of contravention – 29 January 2020 importation
6. Pursuant to s 21 of the Federal Court Act that Ms Linh Thi My Chau contravened s 186(1) of the Biosecurity Act on 29 January 2020, by bringing and/or importing live fish into Australian territory in circumstances where:
(a) such goods were conditionally non-prohibited goods; and
(b) the condition in relation to such goods specified in s 11(1)(a) of the Goods Determination in force under sub-s 174(1) of the Biosecurity Act had not been satisfied.
7. Pursuant to s 21 of the Federal Court Act that Ms Linh Thi My Chau contravened s 186(1) of the Biosecurity Act on 29 January 2020, by bringing and/or importing water, or alternatively bags of water, into Australian territory in circumstances where:
(a) such goods were conditionally non-prohibited goods; and
(b) the conditions in relation to such goods specified in s 39(3) of the Goods Determination in force under sub-s 174(1) of the Biosecurity Act had not been satisfied.
Declaration of contravention – 29 January 2020 incoming passenger card
8. Pursuant to s 21 of the Federal Court Act that Ms Linh Thi My Chau contravened s 533(1) of the Biosecurity Act on 29 January 2020, by producing an IPC to Ms Janelle de Goede, an officer of the Australian Border Force and Mr Petar Makalovski, a Biosecurity Officer of the Department, in circumstances where;
(a) Ms Chau knew that the document was false or misleading in that she had placed crosses in boxes marked “No” on the IPC next to the questions:
(i) “Are you bringing into Australia … meat, poultry, fish, seafood, eggs, dairy, fruit, vegetables?”; and
(ii) “Are you bringing into Australia … Animals, parts of animals, animal products including equipment, pet food, eggs, biological specimens, birds, fish, insects, shells, bee products?”,
and had signed a declaration attesting that the information she had given on the IPC was true, correct and complete, but was in fact knowingly bringing fish into Australia; and
(b) the IPC was produced in purported compliance with the Biosecurity Act.
Orders
9. Pursuant to s 82(3) of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) I order that the following pecuniary penalties be paid to the Commonwealth of Australia:
(a) by Mr Chun Lok Chi:
(i) for contravening s 186(1) of the Biosecurity Act 2015 (Cth) (Biosecurity Act) on 29 December 2019, $12,000;
(ii) for contravening s 186(1) of the Biosecurity Act on 29 January 2020, $20,000; and
(iii) for contravening s 533(1) of the Biosecurity Act on 29 January 2020, $5,000.
(b) by Ms Linh Thi My Chau:
(i) for contravening s 186(1) of the Biosecurity Act on 29 January 2020, $12,000; and
(c) for contravening s 533(1) of the Biosecurity Act on 29 January 2020, $5,000.
10. Any application by the respondents for time to pay or for payment by instalments of the penalties imposed by order is to be made in writing with any supporting affidavits by 4 pm on the day that is 14 days from the making of these orders. If such application is made, the applicant may respond thereto in writing with any supporting affidavits by 4 pm on the day that is 14 days from being served with any application made by the respondents. Subject to any further order, any supplication that is made will be determined on the papers.
11. If no application is made pursuant to order 10, the amounts required to be paid in order 9 must be paid within 42 days of the publication of these reasons.
12. The respondents are to pay the applicant’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MCELWAINE J:
1 This is a case about the unlawful importation of live freshwater fish by two Australian citizens who travelled from Hong Kong to Melbourne on separate occasions in December 2019 and January 2020. The fish were in water in plastic bags in suitcases that were checked in as baggage on international flights. The respondents, Mr Chi and Ms Chau, are fish enthusiasts who buy and sell ornamental fish and aquarium equipment on Facebook and Gumtree. The importations were not sophisticated. They were intercepted by Australian Border Force Officers on each occasion. The fish were euthanised and stored. This is the first proceeding that has been commenced by the Director of Biosecurity for declaratory relief and civil penalty orders under the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (Regulatory Powers Act) for contravention of ss 186(1) and 533(1) of the Biosecurity Act 2015 (Cth). As such in these reasons, I explain the statutory scheme in detail. Each reference to a statutory provision is to the Biosecurity Act unless stated otherwise.
2 Broadly, the Director seeks declaratory relief and civil penalties for the importation into Australia, on two separate occasions by Mr Chi and on one occasion by Ms Chau, of live fish and water in contravention of s 186(1) of the Biosecurity Act and on one occasion by each of Mr Chi and Ms Chau for the production of a false or misleading Incoming Passenger Card (IPC) in breach of s 533.
3 The respondents admit liability for the contraventions. On 6 February 2024, I conducted a hearing for the purposes of determining whether it is appropriate to grant the relief sought by the Director, particularly the quantum of civil penalties to be imposed on each of Mr Chi and Ms Chau.
4 For the reasons set out below, I make the declarations as sought by the Director and have determined that the respondents pay pecuniary penalties in the amount of $37,000 for Mr Chi, and $17,000 for Ms Chau. I have made consequential orders relating to the time for payment of the pecuniary penalties.
Background
5 On 29 December 2019, Mr Chi, travelling with Ms Chau, arrived at Melbourne International Airport having flown from Hong Kong. Mr Chi’s suitcase was scanned and, following an inspection, found to contain live freshwater fish in untreated fresh water. Mr Chi was then asked to present his IPC which did not declare the importation of fish or animals. The fish were seized and euthanised and Mr Chi was issued an infringement notice.
6 On 29 January 2020, Mr Chi and Ms Chau again arrived at Melbourne International Airport from Hong Kong. Each carried a suitcase that was inspected and found to contain live freshwater fish in untreated fresh water. Each of Mr Chi and Ms Chau were asked to present their IPC, which did not declare the importation of fish or animals. The fish were seized and euthanised. I refer to these incidents on 29 December 2019 and 29 January 2020 as the first importation and second importation, respectively, and collectively as the importations.
7 On 23 December 2022, the Director commenced proceedings in this Court. The respondents have cooperated with all stages of the investigation and the proceedings, including making significant admissions as to their conduct and contraventions of the Biosecurity Act. They even pleaded “guilty” on their first appearance before me.
8 On 2 February 2024, a statement of agreed facts (SAF) was filed in accordance with s 191 of the Evidence Act 1995 (Cth). I received it into evidence at the hearing and I find in accordance with it (with minor edits) as follows:
Mr Chi’s first importation – 29 December 2019
4. On Sunday, 29 December 2019, Mr Chi arrived at Terminal 2 of Melbourne International Airport on Cathay Pacific Flight CX163 from Hong Kong. Mr Chi was travelling with Ms Chau.
5. Mr Chi was travelling with one medium sized suitcase.
6. Mr Chi’s suitcase was passed through an x-ray machine and the image indicated that goods of biosecurity concern might be present.
7. Mr Petar Makalovski (a Biosecurity Officer of the then Department of Agriculture (Department)) requested that Mr Chi provide Mr Makalovski his incoming passenger card (IPC) and Mr Chi provided the document to Mr Makalovski.
8. The IPC, which Mr Chi had completed and signed, recorded the answer “No” to Questions 6 and 8 on the IPC. Those questions were as follows:
Are you bringing into Australia: …
(6) Meat, poultry, fish, seafood, eggs, dairy, fruit, vegetables?
…
(8) Animals, parts of animals, animal products including equipment, pet food, eggs, biologicals, specimens, birds, fish, insects, shells, bee products?
9. Mr Makalovski then inspected Mr Chi’s suitcase. The suitcase contained four insulated bags, each of which contained a separate plastic bag that was tied at the top, was filled with water and contained approximately 30 live freshwater fish.
10. The plastic bags and fish were inspected and photographed by Ms Leanne Keenan (a Biosecurity Officer of the Department).
11. The fish were then euthanised and stored by the Department.
12. The fish in the plastic bags found in Mr Chi’s suitcase included plecos, arowana and snakeheads. The water in each of the four bags was fresh water, which had not been treated using a method that the Director was satisfied was appropriate to manage biosecurity risks associated with the water to an acceptable level.
13. Mr Chi admits that:
(a) he had packed his baggage and was aware of its contents;
(b) he was aware that the importation of the fish and water was prohibited without a permit; and
(c) he did not hold a permit for the importation.
14 Mr Makalovski issued Mr Chi an Infringement Notice in connection with the provision of a false or misleading IPC pursuant to s 533(1) of the Biosecurity Act. Mr Chi paid the amount stated in the Infringement Notice.
Mr Chi’s second importation – 29 January 2020
15. On the evening of Wednesday, 29 January 2020, 31 days after receiving the Infringement Notice, Mr Chi arrived at Terminal 2 of Melbourne International Airport on Cathay Pacific Flight CX163 from Hong Kong. Mr Chi was travelling with Ms Chau.
16. Mr Chi was travelling with one large suitcase and one backpack.
17. Mr Matthew Lombardi (an Australian Border Force (ABF) officer) asked for Mr Chi’s IPC and Mr Chi provided the document to him. Mr Lombardi returned the IPC to Mr Chi.
18. Mr Lombardi escorted Mr Chi to a baggage inspection area.
19. Mr Daniel Sanders (an ABF officer) and Mr Ryan McNeill (a Biosecurity Officer of the Department) attended the baggage inspection area.
20. Mr McNeill asked for Mr Chi’s IPC and Mr Chi provided the document to him.
21. The IPC, which Mr Chi had completed and signed, recorded the answer “No” to Questions 6 and 8 on the IPC. Those questions were as follows:
Are you bringing into Australia: …
(6) Meat, poultry, fish, seafood, eggs, dairy, fruit, vegetables?
…
(8) Animals, parts of animals, animal products including equipment, pet food, eggs, biologicals, specimens, birds, fish, insects, shells, bee products?”.
22. Mr Sanders asked Mr Chi: “What is inside the bag?”. Mr Chi replied: “Fish”.
23. Mr Chi’s suitcase was inspected and was found to contain an insulated bag, which contained a separate plastic bag that was tied at the top, was filled with water and contained live freshwater fish.
24. The plastic bag and fish were then inspected and photographed by Mr Glenn Johnston, a Senior Investigator at the Department.
25. The fish were then euthanised and stored by the Department.
26. The fish in the plastic bags found in Mr Chi’s suitcase included plecos and other catfish. The water in each of the four bags was fresh water, which had not been treated using a method that the Director was satisfied was appropriate to manage biosecurity risks associated with the water to an acceptable level. Mr Chi's suitcase contained 19 fish.
27. Mr Chi admits that:
(a) he had packed his baggage and was aware of its contents.
(b) he had read, understood and signed the IPC prior to providing it to Mr Lombardi and Mr McNeill;
(c) he knew that the IPC was false or misleading because he had recorded “no” to questions 6 and 8 in circumstances where he knew that his bag contained live fish;
(d) he was aware that the importation of the fish and water was prohibited without a permit; and
(e) he did not hold a permit for the importation.
Ms Chau’s Importation - 29 January 2020
28. On the evening of Wednesday, 29 January 2020, Ms Chau arrived at Terminal 2 of Melbourne International Airport on Cathay Pacific Flight CX163 from Hong Kong. Ms Chau was travelling with Mr Chi.
29. Ms Chau was travelling with one large suitcase and one backpack.
30. Ms Janelle De Goede (an ABF officer) asked for Ms Chau’s IPC and Ms Chau provided the document to her. Ms De Goede returned the IPC to Ms Chau.
31. Ms De Goede escorted Ms Chau to a baggage inspection area.
32. Mr Joel Scantlebury (an ABF officer), Mr Jarrod Smith (an ABF officer) and Mr Makalovski attended the baggage inspection area.
33. Mr Makalovski asked for Ms Chau’s IPC and Ms Chau provided the document to him.
34. The IPC, which Ms Chau had completed and signed, recorded the answer “No” to Questions 6 and 8 on the IPC. Those questions were as follows:
Are you bringing into Australia: …
(6) Meat, poultry, fish, seafood, eggs, dairy, fruit, vegetables?
(8) Animals, parts of animals, animal products including equipment, pet food, eggs, biologicals, specimens, birds, fish, insects, shells, bee products?
35. Mr Smith asked Ms Chau whether there were any fish in her bag and Ms Chau replied: “Yes, I have some fish”.
36. Ms Chau’s suitcase was inspected. The suitcase was found to contain seven insulated bags, each of which contained a separate plastic bag that was tied at the top, was filled with water and contained live freshwater fish. Ms Chau's suitcase contained 103 fish.
37. The plastic bags and fish were inspected and photographed by Mr Glenn Johnston, a Senior Investigator at the Department.
38. The fish were then euthanised and stored by the Department.
39. The fish in the plastic bags found in Ms Chau’s suitcase included catfish, plecos and snakeheads. The water in each of the four bags was fresh water, which had not been treated using a method that the Director was satisfied was appropriate to manage biosecurity risks associated with the water to an acceptable level.
40. Ms Chau admits that:
(a) she had packed her baggage and was aware of its contents.
(b) she had read, understood and signed the IPC prior to providing it to Ms De Goede and Mr Makalovski;
(c) she knew that the IPC was false or misleading because she had recorded “no” to questions 6 and 8 in circumstances where she knew that her suitcase contained live fish;
(d) she was aware that the importation of the fish and water was prohibited without a permit; and
(e) she did not hold a permit for the importation.
9 The parties agree that the illegal importation of live exotic fish and untreated water presents a biosecurity risk to Australia. The agreed risks are:
• [I]mported live fish may carry pathogenic agents and other organisms which are a disease or a disease agent (including iridoviruses) that have the potential to cause, either directly or indirectly, harm to human, animal or plant health, harm to the environment, or associated economic consequences;
• the imported live fish which Mr Chi and Ms Chau sought to import were a pest;
• as the fish were a pest, they had the potential to cause, either directly or indirectly, harm to human, animal or plant health or harm to the environment, or associated economic consequences; and
• water used to transport live fish can also be a vector for pathogenic agents and other organisms which may be a pest or a disease, which may be shed by infected fish or present in the water before the fish were added.
10 Incursions of exotic fish diseases would be expected to impact the ornamental fish industry, resulting in economic loss. Ornamental fish aquaculture production in New South Wales, Victoria and Western Australia for the 2018/2019 financial year was $1.65 million, with aquaculture exports valued at $2.8 million. There is also risk to wild capture fisheries and aquaculture industries. Iridoviruses, if introduced, are likely to have a significant economic impact on the grouper, barramundi, yellowtail kingfish and southern bluefin tuna industries, collectively estimated to have a combined value of over $100 million.
11 Each of the respondents admit to contravening the Biosecurity Act. As set out in the SAF:
Mr Chi
Mr Chi admits that, as a result of the facts and admissions identified at paragraphs [4] to [14], he contravened s 186(1) of the Biosecurity Act on 29 December 2019, by bringing and/or importing live fish and water into Australian territory in circumstances where:
(a) such goods were conditionally non-prohibited goods; and
(b) the condition in relation to such goods specified in s 11(1)(a) of the Biosecurity (Prohibited and Conditionally Non-prohibited Goods) Determination 2016 (Cth) (Goods Determination) in force under s 174(1) of the Biosecurity Act had not been satisfied.
Mr Chi admits that, as a result of the facts and admissions identified at paragraphs [15] to [27], he contravened s 186(1) Biosecurity Act on 29 January 2020, by bringing and/or importing live fish and water into Australian territory in circumstances where:
(a) such goods were conditionally non-prohibited goods; and
(b) the condition in relation to such goods specified in s 11(1)(a) of the Biosecurity (Prohibited and Conditionally Non-prohibited Goods) Determination 2016 (Cth) (Goods Determination) in force under s 174(1) of the Biosecurity Act had not been satisfied.
Mr Chi admits that, as a result of the facts and admissions identified at paragraphs [15] to [27], he contravened s 533(1) of the Biosecurity Act on 29 January 2020, by producing an Incoming Passenger Card (IPC) to Mr Ryan McNeill, a Biosecurity Officer of the Department, in circumstances where:
(a) Mr Chi knew that the document was false or misleading in that he had placed crosses in boxes marked “No” on the IPC next to questions 6 and 8;
(b) Mr Chi had signed a declaration attesting that the information he had given on the IPC was true, correct and complete, but was in fact knowingly bringing fish into Australia; and
(c) the IPC was produced in purported compliance with the Biosecurity Act.
Ms Chau
Ms Chau admits that, as a result of the facts and admissions identified at paragraphs she contravened s 186(1) Biosecurity Act on 29 January 2020, by bringing and/or importing live fish and water into Australian territory in circumstances where:
(a) such goods were conditionally non-prohibited goods; and
(b) the condition in relation to such goods specified in s 11(1)(a) of the Biosecurity (Prohibited and Conditionally Non-prohibited Goods) Determination 2016 (Cth) (Goods Determination) in force under s 174(1) of the Biosecurity Act had not been satisfied.
Ms Chau admits that, as a result of the facts and admissions identified at paragraphs [28] to [40], she contravened s 533(1) of the Biosecurity Act on 29 January 2020, by producing an Incoming Passenger Card (IPC) to Mr Petar Makalovski, a Biosecurity Officer of the Department, in circumstances where:
(a) Ms Chau knew that the document was false or misleading in that she had placed crosses in boxes marked “No” on the IPC next to questions 6 and 8;
(b) Ms Chau had signed a declaration attesting that the information she had given on the IPC was true, correct and complete, but was in fact knowingly bringing fish into Australia; and
(c) the IPC was produced in purported compliance with the Biosecurity Act.
12 Finally, despite earlier contesting the contention, the respondents subsequently admitted that the contraventions were for the purpose of obtaining a financial gain, albeit theirs was a modest enterprise.
The Statutory Scheme
13 The object of the Biosecurity Act is, relevantly, to provide for the management of biosecurity risks and to give effect to Australia’s international rights and obligations including the Biodiversity Convention: s 4(a)(i) and (b), respectively.
14 Chapter 3 is concerned with managing biosecurity risks. Within it, Pt 3 is concerned with prohibited goods and conditionally non-prohibited goods. The simplified outline at s 171 provides:
This Part deals with bringing or importing goods into Australian territory.
This Part applies to the exclusion of State and Territory laws to the extent that the laws purport to prohibit or restrict the bringing or importation of particular goods into Australian territory, or into a part of Australian territory, from outside Australian territory for the purpose of managing biosecurity risks associated with the goods.
Certain goods (prohibited goods) must not be brought or imported into Australian territory at all.
Certain goods (conditionally non‑prohibited goods) may be brought or imported into Australian territory subject to conditions.
Division 2 provides for the Director of Biosecurity and the Director of Human Biosecurity to jointly determine that certain goods are prohibited goods or conditionally non‑prohibited goods.
Division 3 deals with permits to bring or import certain conditionally non‑prohibited goods into Australian territory.
Division 4 provides for the Director of Biosecurity to determine that certain goods (suspended goods) must not be brought or imported into Australian territory for a period of up to 6 months.
Division 5 sets out offences and civil penalty provisions.
15 Part 3 applies to the exclusion of State and Territory laws: s 172. Section 173 is concerned with prohibited goods and relevantly provides that the Director and the Director of Human Biosecurity may jointly determine that specified goods, or a specified class of goods, must not be brought or imported into Australian territory: s 173(1). Goods so determined are prohibited goods: s 173(2). The term “goods” is broadly defined as having the inclusive meaning set out at s 19. The definition extends to an animal (defined to include a dead animal or any part of an animal), a pest (defined as meaning a species, strain or biotype of a plant, or animal or a disease agent, that has the potential to cause, either directly or indirectly, harm to human, animal or plant health or the environment). The definition also expansively extends to “any other article, substance or thing (including, but not limited to, any kind of movable property).”
16 Conditionally non-prohibited goods are central to this proceeding and are dealt with at s 174 which provided at the time of the importations:
Conditionally non‑prohibited goods
(1) The Director of Biosecurity and the Director of Human Biosecurity may jointly determine that specified classes of goods must not be brought or imported into Australian territory unless specified conditions (including conditions for administrative purposes) are complied with.
(2) Goods included in a class of goods specified in a determination in force under subsection (1) are conditionally non‑prohibited goods.
(3) The Director of Biosecurity and the Director of Human Biosecurity must apply the ALOP for Australia in conducting a risk assessment for the purpose of deciding whether to make a determination under subsection (1) specifying a particular class of goods.
(4) Without limiting subsection (1), a determination under that subsection may specify either, or both, of the following in relation to a class of goods specified in the determination:
(a) a condition that goods included in that class must not be brought or imported into Australian territory unless a permit authorising the goods to be brought or imported into Australian territory has been granted under Division 3;
(b) a condition relating to the use of goods included in that class.
Note: A permit may be granted under Division 3 subject to conditions (see section 180).
(5) A determination under subsection (1) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination.
(6) Despite subsection 14(2) of the Legislation Act 2003, a determination under subsection (1) may make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing, as in force or existing from time to time, if the instrument or other writing is publicly available.
17 Division 3 of Pt 3 (ss 176-181) is concerned with applications for and the grant of permits authorising the importation of particular goods. The Respondents were not so authorised.
18 The relevant legislative instrument contemplated in s 174 (that was in force at the time) was the Biosecurity (Prohibited and Conditionally Non-prohibited Goods) Determination 2016 (Cth) (Goods Determination). (The present instrument is the Biosecurity (Conditionally Non-Prohibited Goods) Determination 2021 (Cth)). The Goods Determination provided that specified classes of goods must not be brought or imported into Australian territory unless specified conditions are complied with. Conditionally non-prohibited goods were dealt with in Pt 2 commencing at s 10 which in part provided:
Classes of goods to which this Division applies
(1) This Division applies to the following classes of goods:
(a) animals;
(b) plants;
(c) biological material;
(d) infectious agents;
(e) fungi;
(f) goods that contain animals, plants, biological material, infectious agents or fungi;
(g) goods that contain an ingredient that is an animal, a plant, biological material, an infectious agent or a fungus;
(h) goods that are made of, or are made from, an animal, a plant, biological material, an infectious agent or a fungus.
19 Section 11 stated the general rule that goods included within a class to which the division applies must not be brought or imported into Australian territory unless covered by an import permit or if alternative conditions for bringing the goods into Australian territory are specified in a provision of the division and are complied with. Sections 12 and 13 provided for alternative conditions for live animals and dead animals and animal parts, none of which apply in this case.
20 Water was separately dealt with at s 39. Sea, ocean, or any other kind of water (subject to presently irrelevant exceptions) could not be brought or imported into Australian territory unless covered by an import permit or, in the case of sea or ocean water the quantity was less than 5 litres, it was free from suspended and solid material and intended for laboratory use.
21 I return to the Biosecurity Act to Div 5 of Pt 3 which provides for offences and civil penalty provisions. At the time of the importations, s 186 relevantly provided:
Contravening conditions applying to conditionally non-prohibited goods brought or imported into Australian territory
(1) A person contravenes this subsection if:
(a) the person brings or imports goods into Australian territory; and
(b) the goods are conditionally non-prohibited goods; and
(c) a condition in relation to the goods specified in a determination in force under subsection 174(1) has not been complied with.
…
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 120 penalty units.
22 The civil penalty for contravention of s 186 was subsequently increased to 1,000 penalty units with effect from 1 January 2021.
23 A number of defined terms are used in s 186, including “import”, meaning “in relation to goods, does not include unloading the goods for temporary purposes only (for example, to unload other goods)” (s 9) and “Australian Territory”, which is relevantly defined as Australia and the “airspace over” Australia: s 12.
24 Passengers arriving into Australia on incoming aircraft are required to complete an IPC by answering questions in writing as required by s 196 together with reg 53(a) of the Biosecurity Regulation 2016 (Cth) (Regulations). The provision of false or misleading documents is prohibited by s 533:
(1) A person is liable to a civil penalty if:
(a) the person produces a document to another person; and
(b) the person does so knowing that the document is false or misleading; and
(c) the document is produced in compliance or purported compliance with this Act.
Civil penalty: 60 penalty units.
(2) Subsection (1) does not apply if the document is not false or misleading in a material particular.
25 The penalty under s 533 has since increased to 600 penalty units with effect from 1 January 2021.
26 By application of the Acts Interpretation Act 1901 (Cth), a document means “any record of information” and includes “anything on which there is writing”: s 2B.
27 Section 519(1) provides that each civil penalty is enforceable under Pt 4 of the Regulatory Powers Act, which deals with civil penalty provisions. Section 82 of the Regulatory Powers Act is titled Civil Penalty orders and reads as follows:
Application for order
(1) An authorised applicant may apply to a relevant court for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty.
(2) The authorised applicant must make the application within 6 years of the alleged contravention.
Court may order person to pay pecuniary penalty
(3) If the relevant court is satisfied that the person has contravened the civil penalty provision, the court may order the person to pay to the Commonwealth such pecuniary penalty for the contravention as the court determines to be appropriate.
Note: Subsection (5) sets out the maximum penalty that the court may order the person to pay.
(4) An order under subsection (3) is a civil penalty order.
Determining pecuniary penalty
(5) The pecuniary penalty must not be more than:
(a) if the person is a body corporate—5 times the pecuniary penalty specified for the civil penalty provision; and
(b) otherwise—the pecuniary penalty specified for the civil penalty provision.
(6) In determining the pecuniary penalty, the court must take into account all relevant matters, including:
(a) the nature and extent of the contravention; and
(b) the nature and extent of any loss or damage suffered because of the contravention; and
(c) the circumstances in which the contravention took place; and
(d) whether the person has previously been found by a court (including a court in a foreign country) to have engaged in any similar conduct.
(Original emphasis.)
28 For the purposes of the Regulatory Powers Act, the Director is identified as an authorised applicant at s 519(2)(a) of the Biosecurity Act and the Court’s jurisdiction is engaged by s 519(3), in conjunction with the definition of a relevant court at s 9.
29 Sections 84 and 85 of the Regulatory Powers Act address conduct that contravenes more than one civil penalty provision and multiple contraventions, respectively:
Conduct contravening more than one civil penalty provision
(1) If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this Part against a person in relation to the contravention of any one or more of those provisions.
(2) However, the person is not liable to more than one pecuniary penalty under this Part in relation to the same conduct.
Multiple contraventions
(1) A relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character.
Note: For continuing contraventions of civil penalty provisions, see section 93.
(2) However, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions.
30 Having addressed the multiplicity of statutory provisions, I deal next with the relief that the Director seeks.
Declaratory relief
31 Declarations are sought in the form set out in Attachment A to the Director’s written submissions pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The principles that inform the discretion to grant declaratory relief are well settled. The Court has a “wide discretionary power to make declarations” (Parker Trading as On Grid off Grid Solar v Switchee Pty Ltd trading as Australian Solar Quotes [2018] FCA 479 at 92 (Gleeson J)), however, the question must have utility, such as expressing the Court’s disapproval of contravening conduct: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68 at [93] (Dowsett, Greenwood and Wigney JJ). Also the question must not be hypothetical, a contradictor is required, and the applicant must have a sufficient or real interest in the relief sought: Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; 96 ALJR 234 at [32]-[34] (Kiefel CJ, Keane and Gordon JJ). Agreed facts or admissions may form the basis for declaratory relief, but close attention must be paid to the form of any proposed declaration: Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; 201 FCR 378 (Greenwood, Logan and Yates JJ) and Comcare v Linfox Australia Pty Ltd [2015] FCA 61 at [11]-[12] (Flick J).
32 Each of those requirements is satisfied in this case.
33 Although differing views have been expressed as to the utility of granting declaratory relief in conjunction with the imposition of pecuniary penalties and/or injunctive relief (compare Australian Competition and Consumer Commission v Francis [2004] FCA 487; 142 FCR 1 at [95]-[113] (Gray J) and Australian Competition and Consumer Commission v Midland Brick Co Pty Ltd [2004] FCA 693; 207 ALR 329 at [21]-[22] (Lee J) and Cruse v Multiplex Ltd [2008] FCAFC 179; 172 FCR 279 at [53]-[55] (Goldberg and Jessup JJ, Gray J dissenting), in my view the making of declarations in this case which identify the contravening conduct and the relevant statutory provisions will assist in achieving the primary purpose of deterrence.
34 I am further satisfied that, despite that the declaratory relief is formulated on the basis of agreed facts between the parties and full admissions by the respondents, I have independently concluded that the facts admitted to do amount to contraventions of each of the provisions relied upon by the Director.
35 In summary, I am satisfied that Mr Chi on two occasions and Ms Chau on one occasion contravened s 186 of the Biosecurity Act in the manner outlined in the SAF by importing “goods” into Australian territory in the form of live fish and untreated water. I am further satisfied that the fish and water were each “conditionally non-prohibited goods” and that neither Mr Chi nor Ms Chau complied with the conditions in relation to the goods, in particular, that they were not covered by an import permit.
36 Further, I am satisfied that each of Mr Chi and Ms Chau contravened s 533 of the Biosecurity Act in the manner outlined in the SAF by producing a document, namely their IPCs, to another person, when they knew the document was false or misleading because they each recorded “no” to questions 6 and 8 in circumstances where they each knew their bag contained live fish.
37 There is an important public purpose to be served by granting the declaratory relief that is sought by the Director. So much is clear from the statutory objects at s 4, reinforced by various statements in the Explanatory Memorandum, Biosecurity Bill 2014 (Cth), the introduction to which includes:
Australia’s people, economy and environment benefit significantly from a strong biosecurity system. Australia’s unique pest and disease status helps to protect our way of life, including our environment, human health, and the wellbeing of our domestic animals and plants. This unique status means that our agricultural industries, environment and communities have remained free of many pests and diseases common elsewhere, giving Australia a comparative advantage in export markets around the world.
Australia’s biosecurity system must be underpinned by a modern and effective regulatory framework…
This favourable status increases the demand for Australian agricultural products domestically and internationally. If harmful pests or diseases enter or spread in Australian territory, the agricultural sector, including farmers and exporters, will feel an enormous impact.
38 Specifically in explanation of s 186, the Explanatory Memorandum states:
The penalties in this clause are higher than those outlined in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. Obtaining a commercial advantage from contravening a condition specified in a determination made under subclause 174(1) are aggravated circumstances that warrant the additional penalty because of the added monetary benefit that can be gained by an individual involved in this behaviour.
Additionally, these types of goods pose significant biosecurity risks, which may result in serious damage to plant and animal health, Australia’s local industries, the economy and the environment. Depending upon the nature and scale of the biosecurity risk, the social and economic costs of controlling and cleaning up the damage may be far greater than even the maximum penalties imposed by the Bill. Therefore, the overall objective is to increase compliance with the Act and decrease the need to resort to prosecution to achieve this aim.
39 The particular risks posed by the respondents’ conduct as identified in the SAF is that exotic fish may carry pathogenic agents and other organisms which have the potential to cause, directly or indirectly, harm to human, animal or plant health, harm to the environment or have associated economic consequences. The species that were imported are pests, which of themselves had the potential to cause directly or indirectly harm to human, animal or plant health or harm to the environment. In addition, the water which contained the fish was also a vector for pathogenic agents or other organisms, which may have like consequences. The risk to aquaculture and fisheries is obvious.
40 The declaratory relief not only vindicates the decision taken by the Director to prosecute this matter but also serves as a public warning to others that attempting to bring or import exotic species into Australia is a serious matter with possibly severe public health, environmental and economic consequences. For these reasons, I make the declarations as sought.
Civil penalty orders
41 The Director seeks civil penalty orders as follows:
(a) In respect of Mr Chi’s four admitted contraventions of s 186 and one admitted contravention of s 533: $68,040.
(b) In respect of Ms Chau’s two admitted contraventions of s 186 and one contravention of s 533: $37,800.
42 This matter is the first of its kind to be brought by the Director under s 82 of the Regulatory Powers Act. Section 82(6) requires the Court to take into account “all relevant matters” when determining the appropriate pecuniary penalty and lists a number of factors for consideration. Justice Beach in Commissioner of Taxation v Balasubramaniyan [2022] FCA 374 considered this provision (at [93]) by reference to French J’s observations in Trade Practices Commission v CSR Ltd [1991] ATPR 41-076 and Australian Securities and Investments Commission v Westpac Banking Corporation (No 3) [2018] FCA 1701; 131 ACSR 585. His Honour found at [93]-[95]:
Given the prefatory wording of s 82(6), let me now say something about other relevant but non-mandatory factors, which have been identified and applied in analogous civil penalty contexts. As to such non-mandatory factors, I set out a list of augmented French factors in ASIC v Westpac (No 3) at [49] and [50]:
The fixing of a pecuniary penalty involves the identification and balancing of all the factors relevant to the contravention and the circumstances of the defendant, and the making of a value judgment as to what is the appropriate penalty in light of the purposes and objects of a pecuniary penalty that I have just explained. Relevant factors include the following:
(a) the extent to which the contravention was the result of deliberate or reckless conduct by the corporation, as opposed to negligence or carelessness;
(b) the number of contraventions, the length of the period over which the contraventions occurred, and whether the contraventions comprised isolated conduct or were systematic;
(c) the seniority of officers responsible for the contravention;
(d) the capacity of the defendant to pay, but only in the sense that whilst the size of a corporation does not of itself justify a higher penalty than might otherwise be imposed, it may be relevant in determining the size of the pecuniary penalty that would operate as an effective specific deterrent;
(e) the existence within the corporation of compliance systems, including provisions for and evidence of education and internal enforcement of such systems;
(f) remedial and disciplinary steps taken after the contravention and directed to putting in place a compliance system or improving existing systems and disciplining officers responsible for the contravention;
(g) whether the Directors of the corporation were aware of the relevant facts and, if not, what processes were in place at the time or put in place after the contravention to ensure their awareness of such facts in the future;
(h) any change in the composition of the board or senior managers since the contravention;
(i) the degree of the corporation’s cooperation with the regulator, including any admission of an actual or attempted contravention;
(j) the impact or consequences of the contravention on the market or innocent third parties;
(k) the extent of any profit or benefit derived as a result of the contravention; and
(l) whether the corporation has been found to have engaged in similar conduct in the past.
Moreover and importantly, attention must be given to the maximum penalty for the contravention. But if contravening conduct is not so grave as to warrant the imposition of the maximum penalty, I am bound to consider where the facts of the particular conduct lie on the spectrum that extends from the least serious instances of the offence to the worst category.
Of course, the augmented French factors are non-mandatory factors, and whether individual factors constitute relevant matters will depend upon the circumstances. I have taken into account factors (a), (b), (d), (i) and (k) as set out in ASIC v Westpac (No 3) with appropriate modification to the circumstances of the present case.
Further, in considering and weighing all relevant factors I need to engage in intuitive synthesis, which requires a weighing together of all relevant factors, rather than an arithmetical algorithmic process that starts from some pre-determined figure and then makes incremental additions or subtractions for each factor according to a set of predetermined rules. And it is also important to note that intuitive synthesis conducted in criminal sentencing does not have the same boundaries and content as intuitive synthesis in the context that I am considering. In criminal sentencing, the synthesis involves not only the facts and circumstances of the offending, but also conflicting sentencing considerations such as retribution and rehabilitation, and differing sentencing options along a broader spectrum than the civil context from a donation to the poor box through to imprisonment.
43 While Beach J was concerned in that matter with a respondent corporation, and obviously not all the above factors will be relevant to individual respondents, this is a useful list of factors. Ultimately when considering the appropriate pecuniary penalty to be imposed, the process to be engaged in is one of “intuitive synthesis” rather than “arithmetical algorithmic processes”: Balasubramaniyan at [95].
44 I recently summarised the general principles applicable to the imposition of civil penalties in Australian Competition and Consumer Commission v Airbnb Ireland UC [2023] FCA 1633 at [19]-[22]. Pecuniary penalties are imposed for the public purpose of promoting compliance with the relevant statutory regime. Deterrence, specific and general, is the objective, not retribution or rehabilitation: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 274 CLR 450 at [14], [16], [39] [40], [43], [45] and [55] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). The statutory maximum requires only that a “reasonable relationship” exist between the theoretical maximum and the penalty ultimately imposed: Pattinson at [10], quoting the Full Court in Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 at [156] (Jagot, Yates and Bromwich JJ). The penalty should not be so severe as to be oppressive. Overall, the penalty must reflect my reasonable assessment of what is necessary to deter the respondents and others from further like contraventions and engaging in similar conduct: Pattinson at [9].
45 The Director submits that in circumstances where the respondents have admitted multiple contraventions, consideration must be given to the course of conduct and totality principle in the context of ss 84 and 85 of the Regulatory Powers Act. The question therefore arises whether the penalties sought by the Director relate “to the same conduct”, thereby limiting each respondent’s liability to not more than one pecuniary penalty (s 84 Regulatory Powers Act) or, whether the contraventions form, or are part of, “a series of contraventions of the same or a similar character” enlivening my discretion to impose a penalty not exceeding the sum of the maximum penalties available if separate penalties were ordered for each contravention: s 85 Regulatory Powers Act.
46 The analysis requires an examination of the conduct and assessment of “what penalty is, or penalties are, appropriate for the proven contravention” (Transport Workers Union of Australia v Registered Organisations Commissioner (No 2) [2018] FCAFC 203; 267 FCR 40 at [90]-[91] (Allsop CJ, Collier and Rangiah JJ)) before a “final consideration of the sum of the penalties determined” operating as a ‘final check’” to ensure the appropriateness of the imposed penalty: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 at 53 (Goldberg J).
47 Before I consider the factors set out at s 82(6) of the Regulatory Powers Act, the Director submits that it is appropriate to deal with each of the importations and the IPC conduct discretely on the basis that the contraventions are not founded on the same facts and do not form or are part of a series of contraventions of the same or similar character as provided at s 85(1) of the Regulatory Powers Act. He further submits that for each importation, the respondents contravened the Biosecurity Act in relation to both the importation of fish and the importation of water. Accordingly, the maximum penalty that could be imposed on Mr Chi is $113,400, comprising four contraventions of s 186 attracting a maximum penalty of $25,200 per contravention and one contravention of s 533 attracting a maximum penalty of $12,600. The maximum penalty that could be imposed on Ms Chau is $63,000 for two contraventions of s 186 and one of s 533.
48 In oral submissions, Mr Sherman for the Director submitted that for each of the importations, the respondents contravened the Biosecurity Act in relation to two different types of conditionally non-prohibited goods: the fish and the water. As each good was subject to different conditions in respect of which there was non-compliance, the elements of s 186 are satisfied in both cases. Further, as was accepted in the SAF, each good poses a different type of biosecurity risk.
49 In support of his submission, the Director relies on the decision of Abraham J in Commissioner of the NDIS Quality and Safeguards Commission v Australian Foundation for Disability [2023] FCA 629 (Afford). In that case, brought under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) following a death in a group home, the Commissioner of the of the NDIS Quality and Safeguards Commission sought civil penalties in relation to contraventions of ss 73J and 73V of the NDIS Act which contraventions related to the same conduct. The respondent to the matter submitted that due to the significant overlap between the provisions, only one penalty should be imposed, as otherwise what is sought would involve double punishment (at [51]). Justice Abraham (at [55]) rejected this submission, finding that each provision was directed to different conduct. The director seeks to rely on Afford in support of his submission that bringing in fish and bringing in water is different conduct as prohibited by two different aspects of the Goods Determination.
50 Put against this, the respondents submit that although the fish and the water were plainly different types of “goods”, the conduct in bringing them into Australia was a single course of conduct and the reference in s 84(2) to the “same conduct” should not be taken to the basal facts, but rather the focus should be on what the respondents did. The importation of the water had no purpose other than to sustain the live fish and was a “necessary condition for the importation of the live fish” or to put it plainly: “you can’t have live fish without water”.
51 The respondents seek to distinguish Afford on the basis that, in it, the same conduct breached multiple section of the NDIS Act. The focus at [55], therefore, was the responsibility to which each of section 73J and 73V were directed and the different purposes the two sections serve with different elements to be satisfied for a contravention to be established. In this matter, the conduct is said to breach the same section, being s 186 with the same elements being satisfied in relation to each of the type of goods.
52 Two further authorities were brought to my attention by the respondents on this question: Electoral Commissioner of Australian Electoral Commission v Wharton (No 3) [2021] FCA 742 (Logan J) and Balasubramaniyan. In each case, the “similar conduct” contravened different sections of the Commonwealth Electoral Act 1918 (Cth) in the case of Wharton, and the Foreign Acquisitions and Takeovers Act 1975 (Cth), in the case of Balasubramaniyan. No authority was brought to my attention analogous to the circumstances of this case, where the conduct is interdependent (live fish must necessarily be sustained in water).
53 I do not accept the Director’s submission that it is appropriate to impose separate penalties in relation to the breaches of s 186, one for the live fish and the other for the water. Section 85(1) of the Regulatory Powers Act confers a discretion to impose a single civil penalty for multiple contraventions of a civil penalty provision if founded on the same facts. Thus, the question is factual: is each contravention founded on the same facts? In my view they are. It would not have been possible for the Respondents to contravene the Biosecurity Act by importing live fish unless contained in water. As submitted by the respondent, Afford is distinguishable in that Abraham J at [55], in rejecting the double punishment submission, focused on the different purpose of the provisions found to have been contravened where each provision approached the conduct “from different perspectives and for different purposes”. The obligation imposed by each provision was therefore a separate obligation, breach of which appropriately attracted a separate penalty. In this case the importation of the water was a necessary element of the importation of the fish and is founded on the same facts. I therefore consider the importation of fish in water to be a single breach of s 186 of the Biosecurity Act.
What civil penalties are appropriate?
54 The parties agree that it is appropriate that a penalty be imposed on Mr Chi in relation to each importation even though they may be said to arise from the same type of conduct. The fact that Mr Chi engaged in the second contravention despite being intercepted in the first is of itself sufficient reason to impose separate penalties. Despite that the Director’s written submissions sought the same penalty to be imposed in relation to each of the importations by Mr Chi, during the hearing and in response to questions put by me, Mr Sherman embraced the proposition that the second importation was more serious because it followed the detection of the first importation and the issuing of an infringement notice and accepted that the Court could impose different civil penalties in relation to each contravention.
55 I consider the factors set out at s 82(6) of the Regulatory Powers Act seriatim before turning to other relevant factors.
The nature and extent of the contraventions.
56 The Director submits that the contraventions by Mr Chi are serious: the fish imported by Mr Chi are a pest that had the potential to cause harm to humans, animals, plants and the environment more generally, either directly or indirectly; the water used to transport the fish can also be a vector for pathogenic agents and organisms which may be a pest or a disease and compliance with the regulatory system is necessary to enable effective assessment and management of the risks associated with imported goods. This risk, in conjunction with the economic risk to the aquaculture and fishery industries weigh in favour of a conclusion that the contraventions were serious and bear upon the assessment of the nature and extent of the contraventions.
57 Whilst the respondents accept that breaches of the Biosecurity Act are “inherently concerning”, they submit that the nature and extent of the contraventions necessarily includes consideration of additional factors: whether the conduct was “deliberate, reckless, negligent or careless”, and the “number of contraventions, the period over which they occurred, and whether the contraventions comprised isolated conduct or were systematic”.
58 The number of fish brought into Australia by Mr Chi were minimal – 30 live fish on 29 December 2019 and 19 on 29 January 2020. From that, it is submitted that the contraventions ought to be seen as two separate isolated incidents occurring within the space of one month, rather than systemic conduct continuing “over a lengthy period of time”, with the first contravention amounting to reckless rather than deliberate conduct. Mr Chi’s importation and fish trading was also not a sophisticated operation, or a commercial business and the contraventions ought to be contextualised in the subjective circumstances of Mr Chi.
59 I accept that Mr Chi’s actions were not sophisticated but I cannot accept that his actions were anything other than well planned. His conduct was a serious breach of Australia’s biosecurity laws and, if undetected had the penitential to cause serious harm to aquaculture, agriculture and the environment. The harm that has been caused by many introduced pests over many years is obvious – think of the devastating consequences of the introduction of 24 European rabbits in 1859 by Thomas Austin in Victoria for “a spot of hunting” (Alves MA, Carneiro M, Day JP and Jiggins FM, “A Single Introduction of Wild Rabbits Triggered the Biological Invasion of Australia” (22 August 2022) Proceedings of the National Academy of Science).
60 The second importation also occurred shortly after the first importation when it was manifestly clear to him that his conduct was unlawful. Being caught, the issue of an infringement notice and the destruction of the fish on that occasion was ineffective. The inference that is open, and which I draw, is that Mr Chi must have accepted the risk of further detection as one he was prepared to accept and the infringement notice a cost of his running his small commercial enterprise of trading introduced fish pests and equipment. I therefore consider the second importation to be a more serious contravention than the first importation.
61 As to Ms Chau, the considerations relevant to the first importation by Mr Chi are the same in her case for the second importation.
62 I also accept the Director’s submission that this type of contravention is difficult to detect – there is a substantial volume of incoming international passengers to Australian airports with a brief opportunity to examine their luggage.
63 All these factors indicate that a substantial penalty is necessary to secure the deterrence objective.
Nature and extent of any loss or damage suffered because of the contravention.
64 There is no evidence as to any loss or damage suffered because of the respondents’ contraventions of s 186, as the fish and water were seized and the fish euthanised before any harm could occur. The respondent submits, and I accept, that it is a relevant factor that they did not profit or benefit from either the first or the second importation, although, as the respondents acknowledge, this was due to the actions of the Director in detecting the conduct.
65 This is a neutral consideration.
The circumstances in which the contravention took place.
66 The Director submits that it is significant that the conduct was repeated: Mr Chi was aware after the first importation that a permit was required to import fish and water into Australia, as he had been issued an infringement notice following the first importation. Consequentially, “specific deterrence looms large” together with the facts and circumstances of a commercial gain associated with the importations.
67 Conversely, the respondents submit that, at the time of the contraventions, they owned a hairdressing salon which housed two fish tanks where they kept their ornamental fish, which they collected and traded on Facebook and Gumtree. They were of limited financial means at the time of the contraventions and are now of “very modest means” since restrictions imposed to address COVID-19 pandemic lead to the closure of their salon.
68 The Director does not accept that Mr Chi is of “very modest means”. The accounting information adduced by the respondents is to the effect that Mr Chi in January 2024 was earning between $1,000 and $2,000 per week, gross. In my view that is modest as it is business income from his exertions as a personal trainer and does not account for business expenses. The Director accepts that Ms Chau is of very modest means.
69 Individual financial circumstances are relevant to the capacity to pay a civil penalty, but it must not obscure the primary objective of deterrence. An amount that appropriately achieves the deterrence objectives outweighs the risk of personal insolvency: Australian Competition and Consumer Commission v High Adventure Pty Limited [2005] FCAFC 247 at [11] (Heerey, Finkelstein and Allsop JJ).
Whether the person has previously been found to have engaged in similar conduct.
70 There is no evidence before me that the respondents have previously been found to have engaged in similar conduct or that this conduct has been repeated since January 2020.
Other relevant factors.
71 It is relevant to consider that the respondents admitted to their conduct when detected, cooperated with the Director, agreed to the SAF and have demonstrated remorse, each of which is a mitigating factor. Substantial costs have been avoided.
72 I next address the s 533 contraventions.
Nature and extent of the contraventions.
73 The Director submits that conduct was serious as compliance with the regulatory system of import permits and the IPC declarations are relied upon to “enable effective assessment and management of the biosecurity risks associated with imported goods”. The presentation of false or misleading documents undermines these initiatives.
74 I accept these submissions, which support a substantial civil penalty.
Nature and extent of any loss or damage.
75 This is not relevant.
Circumstances in which the contravention took place.
76 The respondents knowingly made false statements on each IPC for the purpose of the second importation. Each statement was made for the purpose of facilitating the unlawful importations by evasion. That is serious and supports a substantial civil penalty.
Whether the person has previously been found to have engaged in similar conduct.
77 There is no evidence that the respondents on any previous occasion made false statements on their IPC.
Other relevant factors.
78 As above, the respondents cooperated, admitted their conduct, agreed to the SAF and have demonstrated remorse as mitigating factors.
Conclusion
79 Taking all of these matters into account, I determine as appropriate the following civil penalties:
(1) Mr Chi:
(a) for contravening s 186(1) of the Biosecurity Act on 29 December 2019, $12,000;
(b) for contravening s 186(1) of the Biosecurity Act on 29 January 2020, $20,000; and
(c) for contravening s 533(1) of the Biosecurity Act on 29 January 2020, $5,000.
(2) Ms Chau:
(a) for contravening s 186(1) of the Biosecurity Act on 29 January 2020, $12,000; and
(b) For contravening s 533(1) of the Biosecurity Act on 29 January 2020, $5,000.
80 At the hearing, parties agreed that I would publish my judgment and invite the parties to provide further short submissions about whether this might be an appropriate matter for the payment of the penalties by instalments. The respondents should have the opportunity of making submissions, that the Director may respond to.
81 The Director seeks costs and there is no reason why they should not follow the event.
82 For the reasons set out above, I make the following declarations and orders:
Declarations against Mr Chun Lok Chi
Declaration of contravention – 29 December 2019 importations
1. Pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) that Mr Chun Lok Chi contravened s 186(1) of the Biosecurity Act 2015 (Cth) (Biosecurity Act) on 29 December 2019, by bringing and/or importing live fish into Australian territory in circumstances where:
(a) such goods were conditionally non-prohibited goods; and
(b) the condition in relation to such goods specified in s 11(1)(a) of the Biosecurity (Prohibited and Conditionally Non-prohibited Goods) Determination 2016 (Cth) (Goods Determination) in force under sub-s 174(1) of the Biosecurity Act had not been satisfied.
2. Pursuant to s 21 of the Federal Court Act that Mr Chun Lok Chi contravened s 186(1) of the Biosecurity Act on 29 December 2019, by bringing and/or importing water, or alternatively bags of water, into Australian territory in circumstances where:
(a) such goods were conditionally non-prohibited goods; and
(b) the conditions in relation to such goods specified in s 39(3) of the Goods Determination in force under sub-s 174(1) of the Biosecurity Act had not been satisfied.
Declaration of contravention – 29 January 2020 importations
3. Pursuant to s 21 of the Federal Court Act that Mr Chun Lok Chi contravened s 186(1) of the Biosecurity Act on 29 January 2020, by bringing and/or importing live fish into Australian territory in circumstances where:
(a) such goods were conditionally non-prohibited goods; and
(b) the condition in relation to such goods specified in s 11(1)(a) of the Goods Determination in force under sub-s 174(1) of the Biosecurity Act had not been satisfied.
4. Pursuant to s 21 of the Federal Court Act that Mr Chun Lok Chi contravened s 186(1) of the Biosecurity Act on 29 January 2020, by bringing and/or importing water, or alternatively bags of water, into Australian territory in circumstances where:
(a) such goods were conditionally non-prohibited goods; and
(b) the conditions in relation to such goods specified in s 39(3) of the Goods Determination in force under sub-s 174(1) of the Biosecurity Act had not been satisfied.
Declaration of contravention – 29 January 2020 incoming passenger card
5. Pursuant to s 21 of the Federal Court Act that Mr Chun Lok Chi contravened s 533(1) of the Biosecurity Act on 29 January 2020, by producing an Incoming Passenger Card (IPC) to Mr Matthew Lombardi, an officer of the Australian Border Force and Mr Ryan McNeill, a Biosecurity Officer of the Department, in circumstances where;
(a) Mr Chi knew that the document was false or misleading in that he had placed crosses in boxes marked “No” on the IPC next to the questions:
(i) “Are you bringing into Australia … meat, poultry, fish, seafood, eggs, dairy, fruit, vegetables?”; and
(ii) “Are you bringing into Australia … Animals, parts of animals, animal products including equipment, pet food, eggs, biological specimens, birds, fish, insects, shells, bee products?”,
and had signed a declaration attesting that the information he had given on the IPC was true, correct and complete, but was in fact knowingly bringing fish into Australia; and
(b) the IPC was produced in purported compliance with the Biosecurity Act.
Declarations against Ms Linh Thi My Chau
Declaration of contravention – 29 January 2020 importation
6. Pursuant to s 21 of the Federal Court Act that Ms Linh Thi My Chau contravened s 186(1) of the Biosecurity Act on 29 January 2020, by bringing and/or importing live fish into Australian territory in circumstances where:
(a) such goods were conditionally non-prohibited goods; and
(b) the condition in relation to such goods specified in s 11(1)(a) of the Goods Determination in force under sub-s 174(1) of the Biosecurity Act had not been satisfied.
7. Pursuant to s 21 of the Federal Court Act that Ms Linh Thi My Chau contravened s 186(1) of the Biosecurity Act on 29 January 2020, by bringing and/or importing water, or alternatively bags of water, into Australian territory in circumstances where:
(a) such goods were conditionally non-prohibited goods; and
(b) the conditions in relation to such goods specified in s 39(3) of the Goods Determination in force under sub-s 174(1) of the Biosecurity Act had not been satisfied.
Declaration of contravention – 29 January 2020 incoming passenger card
8. Pursuant to s 21 of the Federal Court Act that Ms Linh Thi My Chau contravened s 533(1) of the Biosecurity Act on 29 January 2020, by producing an IPC to Ms Janelle de Goede, an officer of the Australian Border Force and Mr Petar Makalovski, a Biosecurity Officer of the Department, in circumstances where;
(a) Ms Chau knew that the document was false or misleading in that she had placed crosses in boxes marked “No” on the IPC next to the questions:
(i) “Are you bringing into Australia … meat, poultry, fish, seafood, eggs, dairy, fruit, vegetables?”; and
(ii) “Are you bringing into Australia … Animals, parts of animals, animal products including equipment, pet food, eggs, biological specimens, birds, fish, insects, shells, bee products?”,
and had signed a declaration attesting that the information she had given on the IPC was true, correct and complete, but was in fact knowingly bringing fish into Australia; and
(b) the IPC was produced in purported compliance with the Biosecurity Act.
9. Pursuant to s 82(3) of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) I order that the following pecuniary penalties be paid to the Commonwealth of Australia:
(a) by Mr Chun Lok Chi:
(i) for contravening s 186(1) of the Biosecurity Act 2015 (Cth) (Biosecurity Act) on 29 December 2019, $12,000;
(ii) for contravening s 186(1) of the Biosecurity Act on 29 January 2020, $20,000; and
(iii) for contravening s 533(1) of the Biosecurity Act on 29 January 2020, $5,000.
(b) by Ms Linh Thi My Chau:
(i) for contravening s 186(1) of the Biosecurity Act on 29 January 2020, $12,000; and
(c) for contravening s 533(1) of the Biosecurity Act on 29 January 2020, $5,000.
10. Any application by the respondents for time to pay or for payment by instalments of the penalties imposed by order is to be made in writing with any supporting affidavits by 4 pm on the day that is 14 days from the making of these orders. If such application is made, the applicant may respond thereto in writing with any supporting affidavits by 4 pm on the day that is 14 days from being served with any application made by the Respondents. Subject to any further order, any supplication that is made will be determined on the papers.
11. If no application is made pursuant to order 10, the amounts required to be paid in order 9 must be paid within 42 days of the publication of these reasons.
12. The respondents are to pay the applicant’s costs.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine. |
Associate:
