Is your business ready for the next biosecurity emergency?

The general biosecurity duty

We expect Australian state and territory regulators that have enacted a general biosecurity duty¹ will rely on businesses in the affected sectors to defend against bird flu. For example, NSW has identified the general biosecurity duty as a key part of its response.²

General biosecurity duties differ by state. However, a duty generally requires any person who deals with biosecurity matter (which is broadly defined to include any living thing other than a human) to take all reasonable and practical measures to prevent or minimise any biosecurity risks that the person knows about or ought reasonably to know about.

Businesses that operate in an Australian jurisdiction with a general biosecurity duty need to establish processes to continuously:

• be aware of current and emerging biosecurity risks;
• be aware of the measures they can implement to prevent or minimise those risks; and
• implement any such measures that fall within the scope of the general biosecurity duty.

In the case of bird flu, the NSW Department of Primary Industries and Regional Development has suggested options that owners or persons in charge of poultry enterprises consider to discharge their general biosecurity duty. These include:

• requiring poultry workers to be vaccinated against influenza and requiring workers to stay at home if they have signs of influenza;
• preventing poultry workers from working in an abattoir processing pigs or poultry;
• not allowing poultry workers to keep poultry or pigs at home;
• installing biosecurity signs on the front gate;
• keeping the number of people (visitors) accessing a poultry production area to a minimum and maintaining a sign-in book; and
• providing boots, overalls, footbaths and hand sanitation facilities to visitors.³

None of these practices are mandatory at this stage. Each business should determine whether any of these options are needed to discharge its general biosecurity duty.

However, this list shows that regulators expect businesses to take robust steps to manage avian influenza, even to the point of interfering with the personal decisions of employees (for example, by requiring employees to be vaccinated and by restricting the animals that employees can keep at home). At a minimum, businesses need to ensure that they have a robust biosecurity strategy. They also need to ensure that this strategy aligns with their corporate policies.

A breach of the general biosecurity duty may attract criminal and civil penalties.

Importantly, in all states that have implemented a general biosecurity duty, a business can be prosecuted for a breach of the general biosecurity duty even if the breach has not led to an actual biosecurity incident (such as an outbreak from the business premises). However, businesses may be exposed to greater penalties if a breach of the general biosecurity duty causes an incident or increases the risk of one.

In addition to the general biosecurity duty, each state and territory has extensive powers in the event of a declared biosecurity emergency. These can include the power to require testing of produce and destruction of materials, prevent the transportation of produce or materials (effectively 'locking down a premises') or order an operator to decontaminate or treat a premises.

Impacts on nature and biodiversity

To date, the current outbreak of bird flu has mainly impacted wildlife. This demonstrates the clear link between biosecurity issues and biodiversity issues. The manner in which industry manages biosecurity risk has the potential to amplify the impacts of pathogens on wildlife.

We are seeing a slow but steady focus on how companies assess, disclose and manage their biodiversity and nature-related risks and impacts. This is likely to be relevant to how companies manage biosecurity risk, given risk and resilience in one area can inform others. So far, the CEOs of 14 Australian superannuation funds have said that nature risk is an area of increasing importance, and we are seeing a growing commitment across different sectors to nature-related voluntary standards and frameworks.

These developments may herald an increasing focus on how companies understand, manage and report on the feedback loop between biodiversity and biosecurity. This, in turn, may lead to heightened expectations as to how, for example, companies test resilience against possible future scenarios for the state of nature, and how companies conduct nature risk assessments that incorporate biosecurity risks.

We are also seeing increased scrutiny of relevant governance and controls (such as accountability for nature) at board level. Regulators and stakeholders increasingly expect organisations to embed biosecurity issues within their broader governance risk frameworks, including identification on risk registers, clear management accountabilities and routine board reporting.