Dear producers fire ant action group Members,
I am writing to inform you about an issue that’s been brought to my attention involving the Biosecurity Regulation 2016, specifically Section 71(2), which has led to concerns about potential unfair fines under the National Fire Ant Eradication Program (NFAEP).
This email aims to clarify the legislation, its wording, and your legal rights to help prevent others from facing similar challenges/ unjust fines. In this particular case the matter related to chemical records and an alleged re-treatment period breach.
Key Details of the Legislation
• Section 71(2)(c): This section requires that if a special risk fire ant carrier (e.g., hay) is stored at ground level on a fire ant-resistant surface in a fire ant biosecurity zone, the area must be ”treated” with an “appropriate barrier chemical” to create a 30cm wide chemical perimeter, using an “appropriate chemical product”.
• Wording Clarification: The regulation does not specify a mandatory re-treatment frequency (e.g., every 3 months) or require keeping records of that chemical treatment. For S.71 Under the Regulation 2016, the term “treated” allows flexibility based on an “appropriate chemical product” being defined as one used on or in relation to fire ants and is applied per label instructions (e.g., “when required”) “or” permit conditions. The word “can” on the permit gives the ability for its use, rather than the enforcement of the use. The word “or” in the legislation suggests the ability to choose.
• General Biosecurity Obligation (Section 24): Under the Biosecurity Act 2014, individuals must discharge this obligation, but a “reasonable excuse” (e.g., unsafe weather conditions, heavy rain, strong winds) is a valid defence, if the offense is not aggravated.
Potential Issues with Enforcement
Recent experiences suggest that compliance officers may issue penalties (e.g., infringement notices) based on assumed re-treatment schedules (e.g., every 3 months as they suggest) or the absence of records, even though these are not explicitly mandated.
Safety guidelines prohibit applying chemicals in excessively wet conditions or after heavy rain to avoid environmental harm, which can serve as a reasonable excuse.
Failure to respond to review requests or disclose the severity of penalties (e.g., potential imprisonment) has also been noted, raising concerns about fairness.
Your Legal Rights
• Reasonable Excuse Defense: If weather or safety conditions prevent treatment, you can argue this as a defence under Section 24(2) of the Biosecurity Act 2014.
• Lack of Mandatory Records: Section 71(2) does not legally require maintaining records of this treatment; guidelines only highly recommend it. Other evidence (e.g., photos, receipts) can demonstrate compliance.
• Review and Challenge: If issued a penalty, request a review within the specified period (e.g., via 13 25 23) and seek legal advice. The burden of proof lies with the officer to show non-compliance beyond reasonable doubt, especially if the matter escalates to court.
• Proactive Measures: Document all treatments, weather conditions, and compliance efforts (e.g., bait use, nest reporting) to protect yourself.
How to Avoid Unfair Fines
• Familiarize yourself with the Biosecurity Regulation 2016, APVMA permits, and safety guidelines.
• Complete the NFAEP’s online training and retain certificates.
• Maintain informal records (e.g., photos, notes) as evidence of compliance, even if not legally required.
• Report any compliance checks or disputes promptly and request clarification on alleged breaches.
• Consult a legal professional if you receive an infringement notice to assess its validity.
When asked questions,
s120 Requirement to answer question or give information
(1) It is a reasonable excuse for an individual to fail to answer a question or give information or a document, as directed by an inspector under this division, on the basis that complying with the direction might tend to incriminate the individual or make the individual liable to a penalty. ( to put it simply, my response could be something like “I don’t answer questions).
This information is shared to empower you to protect your livelihood and avoid potential misuse of legislation against you. If you encounter similar issues, document everything (email, video/ audio recording) and consider seeking legal advice. Stay vigilant and proactive in managing biosecurity risks. If you have been or are subjected to any unfair infringements please do not hesitate to reach out.
Best regards,
Jake Holzheimer
Producers Fire Ant Action Group.
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