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Quarantine Amendment (National Health Security) Bill 2008

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2008

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

QUARANTINE AMENDMENT (NATIONAL HEALTH SECURITY) BILL 2008

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Health and Ageing, the Hon Nicola Roxon, MP)



 



 

QUARANTINE AMENDMENT (NATIONAL HEALTH SECURITY) BILL 2008

 

OUTLINE

 

The Quarantine Amendment (National Health Security) Bill 2008 (the Bill) is a component of new national health security legislation to improve the Commonwealth’s capability to protect the health of the nation.

 

The national health security legislation gives effect to the International Health Regulations 2005 (the IHR).   The IHR aim to prevent, protect against, control and provide a public health response to the international spread of disease in ways which avoid unnecessary interference with international trade and traffic.

 

In particular, certain provisions of the IHR deal with requirements for vaccinations and other prophylaxes, and related health certificates.  In addition, the IHR enable charges to be levied on some international travellers for the costs of certain health measures provided for public health reasons.

 

The National Health Security Act 2007 (the NHS Act) addresses the core IHR obligations related to public health surveillance in providing a public health response.  This Bill addresses the other IHR requirements relating to vaccinations, health certificates and charges for the provision of health measures.  Although the Quarantine Act 1908 (the Quarantine Act) already provides for these kinds of matters, minor amendments are required to give effect to Australia’s obligations under the IHR for standardized certification.

 

The amendments made by the Bill deal with:

 

·          vaccinations (and other prophylaxes) and related health certificates.  The proposed amendments will require persons including travellers who are subject to quarantine (or people who are performing quarantine) to submit themselves to vaccination or other prophylaxis if this is necessary for the prevention of the spread of a quarantinable disease or if the vaccine or other prophylaxis is specified in the IHR or recommended by the World Health Organization (WHO).  At this time, yellow fever is the only disease specifically designated under IHR for which proof of vaccination or prophylaxis may be required for travellers as a condition of entry to a country (other health certificates may also be required for entry into Australia under Migration requirements).  The amendments also provide for the issuing of health certificates proving vaccination or other prophylaxis in accordance with the requirements set out in the IHR; 



·          charges for health measures provided for public health protection.  The Quarantine Act and Regulations already enable the recovery of quarantine-related expenses.  However, amendments are required to these provisions to better align them with the IHR provisions relating to charges for human quarantine measures .  The IHR provide that, except for persons seeking temporary or permanent residence, charges should not be applied for certain health measures administered to international travellers (or their personal effects) to protect public health.  The amendments give effect to the IHR , and also enable the Commonwealth to charge persons seeking permanent or temporary residency in Australia for the provision of certain health measures.  These health measures include medical examinations, vaccinations (as described above) and restrictions on travel that may be necessary to prevent the spread of the disease.  Such charges must be set by legislative instrument, are limited to the actual cost of the measure and only come into effect 10 days after they are published; and 

 

·          other minor and technical amendments to the Quarantine Act.  For example, to update references to certain notices to clarify the status of such documents under the Legislative Instruments Act 2003 .

 

FINANCIAL IMPACT STATEMENT

 

Section 86E of the Quarantine Act currently enables the Minister to make a determination to set fees for human quarantine services provided under that Act, including prescribed health measures.  Such a determination has never been made because the circumstances that would give rise to fees being charged have not arisen.

 

The IHR limit the application of charges to persons seeking permanent or temporary residence.  The amendments give effect to this treaty obligation, without changing the operation of section 86E.  Any determination under section 86E would need to be made in accordance with the IHR.  The effect would be to limit the Commonwealth’s liability for costs to Australian citizens (under the Medicare arrangements), and for a small group of in-transit travellers.

 

It is not possible to quantify the potential cost of providing prescribed health measures to in-transit travellers as there have been no such cases to date. 

 

To ensure that any charging arrangement complies with the Government’s Cost Recovery policy, a Cost Recovery Impact Statement will be developed prior to a determination being made to establish a cost recovery scheme for persons seeking temporary or permanent residence.

 



NOTES ON CLAUSES

 

QUARANTINE AMENDMENT (NATIONAL HEALTH SECURITY) BILL 2008

 

Clause 1 Short title

This is a formal provision that specifies the short title of the Act as the Quarantine Amendment (National Health Security) Act 2008 .

 

Clause 2 Commencement

This clause describes when each provision of this Act commences:

·          Sections 1 to 3 which deal with preliminary matters will commence on the day the Bill receives the Royal Assent; and

·          Schedules 1 and 2, which detail amendments to the Quarantine Act, will commence on the 28th day after the day the Act receives the Royal Assent.

 

Clause 3 Schedule(s)

This clause provides that each Act specified in a Schedule to this Act is amended or repealed as set out by the applicable items in the relevant Schedule, and any other item in a Schedule to this Act has effect according to its terms.  Both Schedules 1 and 2 amend only the Quarantine Act.

 

SCHEDULE 1—PROPHYLAXES

 

Quarantine Act 1908

 

Outline

Vaccination or other forms of prophylaxis for a particular disease may allow a person to travel and carry on normal activities even though they have been in an area affected by a particular disease, or exposed to persons affected by that disease.  Such prophylaxes may be given to reduce a person’s chances of contracting a disease and, as a public health measure, to reduce the chances of a person transferring a disease to others.

 

Health certificates provide proof of vaccination, or the use of other forms of prophylaxis such as antiviral drugs.  At present, the only disease for which IHR health certificates (in Annex 7) proving vaccination are required is yellow fever.  However, there is a real prospect that new vaccines or other forms of prophylaxis will need to be developed for other emerging diseases and, accordingly, for relevant international health documents to be issued.  

 

Article 35 of the IHR provides that, as a general rule, no health documents, other than those provided under the IHR or as recommended by the World Health Organization, shall be required for international travel.  However, that general rule does not apply to travellers seeking temporary or permanent residence nor to document requirements concerning the public health status of goods or cargo in international trade under applicable international agreements.  Article 36 of the IHR details requirements for the quality of the prophylaxis and for the validity of health certificates.

 

This Schedule amends sections 5 and 75 of the Quarantine Act to better align the existing provisions with the IHR requirements.

 

Item 1 - Subsection 5(1)

Subsection 5(1) of the Quarantine Act sets out definitions used in the Act. 

Item 1 inserts a definition of ‘International Health Regulations’ into subsection 5(1).  The definition is the same as that in the NHS Act and means the International Health Regulations 2005, done at Geneva on 23 May 2005, as in force for Australia from time to time. 

The definition picks up the IHR as in force from time to time because matters such as lists of diseases in the IHR may change (for example, to add emerging diseases).  The IHR anticipate that such changes will be made and provide for member states to make reservations in relation to such amendments, consistent with the initial accession process for the treaty.  The definition takes into account the possibility that Australia could make a reservation in relation to an amendment - the meaning of IHR would then exclude the ‘reserved’ provision.  While a reservation option would be available if required, in practice it is unlikely that it would be taken up, as Australia did not make any reservations in relation to any provision of the treaty initially.  The immediate application in Australia of amendments to the IHR will facilitate swift compliance, which may be important for the management of a public health event. 

A note informs readers that, in 2008, the text of the IHR was accessible through the Australian Treaties Library on the AustLII Internet site (www.austlii.edu.au).

 

Item 2 - Subsection 75(1)

Subsection 75(1) currently provides that a quarantine officer may require a person who is subject to quarantine (or performing quarantine) to submit himself or herself to vaccination or inoculation with any prophylactic or curative vaccine.  Subsections 75(1A) and (1B) deal with the strict liability offence for a person’s failure to comply with the requirement made under subsection 75(1).

 

Consistent with the IHR, this item replaces subsection 75(1) with a new subsection that enables the use of other prophylaxes in addition to vaccines.  

 

New subsection 75(1) provides that, subject to new subsection 75(2), a quarantine officer may require a person who is subject to quarantine, or performing quarantine, to submit to vaccination with any prophylactic or curative vaccine, or any other prophylaxis.

 

New headings are also being inserted within the section to improve readability.  The heading for section 75 will be altered to read ‘Persons may be vaccinated etc.’  A new heading ‘Offence’ will be inserted immediately before the offence provision in subsection 75(1A).

 

As subsections 75(1A) and (1B) currently operate, a person is guilty of a strict liability offence if they fail to comply with a quarantine officer’s requirement to submit to vaccination.  The proposed amendment does not change the operation of the offence provisions other than to enhance consistency with the IHR by including ‘other prophylaxes’, in the requirements that can be imposed by a quarantine officer. 

 

It is recognised that there may be circumstances in which a person does not wish to submit to vaccination or other prophylaxis, for example, on religious or medical grounds.  While quarantine officers will be able to take this into account in determining the best course of action, it is also recognised that there may be cases where there is a broader public health interest in reducing the spread of a dangerous disease within Australia.  Where a person does not wish to submit to vaccination or prophylaxis, a decision under subsection 75(1) would be made on the advice of a qualified medical practitioner, who is under a common law duty of care not to cause hurt or injury to a patient.

 

It should be noted that while section 75 has not been used to date, it is important that the capacity to require people to submit to vaccination or prophylaxis is available for use in extraordinary situations.  For instance, in relation to diseases with the most serious consequences for the Australian community such as SARS (Severe Acute Respiratory Syndrome), smallpox or avian influenza. 

 

The Department of Health and Ageing will review the provision within the next 12 months to ensure that, should it ever need to be used, it will effectively balance public health interests with the wishes of individuals who may be required to submit to vaccination or other prophylaxis.  Amendments will be made to improve the operation of the provision if required.

 

Item 3 - Subsection 75(2)

 

Subsection 75(2) currently provides that a quarantine officer shall not require any person to be vaccinated or inoculated unless, in his or her opinion, vaccination or inoculation is necessary for the prevention of the spread of the quarantinable disease.

 

This item replaces subsection 75(2) with a new subsection that expands the circumstances in which a quarantine officer may require a person to submit to vaccination or other prophylaxis under subsection (1). There are two circumstances in which this may occur:

 

·          if the officer is of the view that the vaccination or other prophylaxis is necessary for the prevention of the spread of a quarantinable disease; or

·          if the vaccine or other prophylaxis is specified in Annex 7 to the IHR, or recommended under those Regulations.

 

In either case, the quarantine officer may only require the person to submit themselves to a vaccination or other prophylaxis if the IHR does not preclude the requirement.

 

The item also inserts a new subsection 75(2A) which requires that a vaccine or other form of prophylaxis administered under new subsection 75(1) must conform with the IHR Annex 6 requirements relating to the quality of the prophylaxis and the form of a corresponding certificate.  The treatment must also conform with any applicable IHR Annex 7 recommendations and requirements (which currently only apply to vaccinations against yellow fever).  

 

Item 4 - Subsection 75(3)

Subsection 75(3) currently enables the Minister to take such action as he or she thinks fit to ensure the manufacture or importation of any prophylactic vaccine or other biological product required for the prevention or treatment of disease.

 

Item 4 removes the word ‘biological’ from subsection 73(3).  This means that the Minister’s ability to take action is not limited to a biological product.  This is consequential to the amendment made by item 2 which refers to other forms of prophylaxes, and thus ensures that the Minister’s power in subsection 75(3) extends to all forms of prophylaxes that may be required to prevent disease.

 

To assist readers to navigate the section, a new heading is also being inserted before subsection 75(3): ‘Minister may ensure manufacture or importation of vaccines etc’.

 

SCHEDULE 2—CHARGES FOR HUMAN QUARANTINE MEASURES

 

Quarantine Act 1908

 

Outline

 

Article 40 of the IHR deals with charges for health measures provided to international travellers for the protection of public health.  The effect of the IHR is that only travellers seeking temporary or permanent residence are able to be charged for the health measures provided by, or on behalf of, the Commonwealth for the protection of public health.  An Australian citizen, or a person in Australia for transit purposes, cannot be charged a tariff for being provided with a health measure for the protection of public health.

 

In the case of travellers seeking temporary or permanent residence, certain conditions must be satisfied before charges may be levied for the costs of providing the health measures for the purposes of public health protection.  The charges must be set by tariff, must not exceed the cost of the service, and must be published at least 10 days in advance of the charges being levied.

 

The amendments made to the Quarantine Act are to align the provisions which deal with the expenses of quarantine and the determination of fees with the obligations imposed of the IHR in relation to charges for prescribed health measures.

 

Schedule 2 also includes other minor and technical amendments relating to amendments consequential to implementation of the IHR and amendments to enhance the operation of the Quarantine Act generally.    

 

Items 1, 2, 3 and 4 - Subsection 5(1)

These items insert new definitions in subsection 5(1) of the Quarantine Act.  The definitions relate to new terms used to effect the IHR obligations.

 

The following terms and words are defined:

·                 ‘permanent residence’ has the meaning given by subsection 64B(3);

·                 ‘prescribed health measure’ has the meaning given by section 64A;

·                 ‘temporary residence’ has the meaning given by subsection 64B(3); and

·                 ‘traveller’ has the meaning given by section 64B.

 

Items 5, 6, 7, 8 and 9

Among other things, these items reorganise Part VI of the Act, and insert new Divisions.  In summary:

·                 the heading of Part VI (‘Expenses of Quarantine’) will be replaced with the heading ‘Expenses’;

·                 Division 1 of the Part will be entitled ‘Interpretation’ and will contain existing section 58A;

·                 Division 2 of the Part will be entitled ‘Expenses of quarantine’ and will include a new section 58B, along with existing sections 59 to 64.  New section 58B (prescribed health measures provided in relation to travellers) provides that the Division has effect subject to Division 3 which deals with charges for the provision of prescribed health measures in relation to travellers;

·                 A new Division 3, entitled ‘Charges for the provision of prescribed health measures in relation to travellers’ will be inserted.  This Division will include new sections 64A to D; and

·                 Division 4 will be entitled ‘Recovery of expenses’ and will contain existing sections 65 to 66A.

 

Item 8 - Subsection 64(1)

Subsection 64(1) deals with liability for quarantine expenses and provides for such expenses to be a charge on the animals, plants and other goods which may be recovered under Part VI of the Quarantine Act.  Consistent with the reorganisation of the Part (as described above), this item replaces the reference to Part VI in subsection 64(1) with a reference to  ‘Division 4’ which is where the recovery provisions will now be located.

 

Item 9 - After section 64

This item inserts a new division entitled ‘Division 3—Charges for the provision of prescribed health measures in relation to travellers’.  This new Division comprises new sections 64A, 64B, 64C and 64D.  The item also inserts the heading for a new Division 4 (‘Recovery of expenses’) immediately after new section 64D in new Division 3.

 



Section 64A Definition of prescribed health measure

 

Definition of prescribed health measure

 

Subsections 64A(1) and (2) define the term ‘prescribed health measure’.  Subsection 64A(1) provides that a prescribed health measure in relation to a traveller, is a health measure referred to in subsection (2) that is provided by, for or on behalf of the Commonwealth under the Quarantine Act, the Migration Act 1958 and any other law of the Commonwealth.  This definition reflects Australia’s obligations that domestic legislation must conform with the IHR.

 

For the purposes of subsection 64A(1), subsection 64A(2) provides for the following health measures:

(a)     a medical examination to ascertain the health status of the traveller;

(b)     a vaccination or other prophylaxis provided to the traveller on arrival in Australia (subject to the exception detailed in subsection (3));

(c)     a restriction of the activities of the traveller, or the segregation or isolation of the traveller, for the purpose of preventing the spread of disease;

(d)     the issuing to the traveller of a certificate that specifies that a health measure referred to in paragraph (a), (b), (c) or (e) was provided in relation to the traveller and the date on which the measure was provided; and

(e)     a health measure applied to the personal effects of the traveller.

 

Notification requirements for vaccinations etc.

 

Subsection 64A(3) provides that a vaccination or other prophylaxis provided on a certain day to a traveller on arrival in Australia is not a prescribed health measure if the requirement for the administration of the vaccination or other prophylaxis was published on the web, at least 10 days before the day of its provision.  The notice must be published on the website of the Department that deals with human quarantine and is also expected to be included on other websites accessed by overseas travellers.

 

The effect is that such health measures would fall outside the charging regime described in section 64D, and also outside the IHR as they are a published requirement of entry.  The Commonwealth may, however, recover the cost of such measures through other cost recovery schemes and, in doing so, would not be subject to the limitations in the IHR (and described in Division 3).

 

Treatments and benefits for travellers in isolation etc.

 

Subsection 64A(4) provides that if, for the purpose of preventing the spread of disease, a traveller’s activities are restricted, or the traveller is segregated or isolated, then:

(a)     any treatment (other than treatment referred to in paragraph 64A(2)(a), (b) or (e)) provided in relation to the traveller for the disease or any other medical condition is not a prescribed health measure; and

(b)     any other benefit provided to the traveller solely for his or her benefit is also not a prescribed health measure.

 

The effect is that in the event that a traveller’s activities are restricted or the traveller is segregated or isolated, the cost of certain treatments or other benefits can not be recovered by the Commonwealth by way of tariff under section 64D (because they are not prescribed health measures). 

 

This enables the Commonwealth to recover, for example, the cost of benefits provided to the traveller solely for his or her own benefit such as the provision of laundry services.  

 

Section 64B Traveller definitions

 

Travellers

 

Subsection 64B(1) defines ‘traveller ’ as a person who has entered Australia while undertaking a voyage from another country and where none of the following apply:

·          subject to subsection (2), the person has been immigration cleared (within the meaning of subsection 172(1) of the Migration Act 1958 ): subparagraph (1)(b)(i);

·          the person has been detained under section 189 of that Act;

·          the person has left Australia;

·          the person is prescribed by the regulations.  A note informs readers that subsection 13(3) of the Legislative Instruments Act 2003 applies to regulations providing for specification by class.

 

Subsection 64B(2) provides that subparagraph 64B(1)(b)(i) does not apply to a person who has been immigration cleared if:

·          before the person was immigration cleared, the person was notified that he or she would be required to submit to the provision of a prescribed health measure as soon as practicable after being immigration cleared; and

·          the person submits to the provision of the prescribed health measure as soon as practicable after being immigration cleared; and

·          the provision of the prescribed health measure is not yet complete.

 

This ensures that where a traveller is immigration cleared, in order for them to be provided with a prescribed health measure, they will continue to be treated as a traveller until provision of the prescribed health measure is complete.

 

Temporary residence or permanent residence

 

Subsection 64B(3) provides that, for the purposes of the IHR and the Quarantine Act, a traveller is seeking temporary or permanent residence in Australia unless the traveller is:

·          an Australian citizen under the Australian Citizenship Act 2007 ;

·          in Australia for transit purposes only; or

·          is a member of a class of travellers specified in the regulations.  A note informs readers that subsection 13(3) of the Legislative Instruments Act 2003 applies.  This means that the regulations may prescribe classes of travellers.

 

Subsection 64B(4) provides that a person is ‘in Australia for transit purposes only’ if the traveller:

·          is not required to comply with section 166 of the Migration Act 1958 ; and

·          holds a confirmed onward booking to leave Australia to travel to another country within 8 hours of arrival, plus documentation necessary to enter the country of their destination; and

·          is not prescribed by the regulations.  A note informs readers that subsection 13(3) of the Legislative Instruments Act 2003 applies to regulations providing for specification by class.

 

Section 64C Charges for the provision of prescribed health measures in relation to travellers

 

In summary this section states that, in relation to the provision of a prescribed health measure to a traveller (provided by, for, or on behalf of the Commonwealth under the Quarantine Act, the Migration Act 1958 or any other law):

 

·          if the traveller is not seeking temporary residence or permanent residence, no person (other than the Commonwealth) is liable, under any law of the Commonwealth, to pay a tariff for the provision of the prescribed health measure;

 

·          if the traveller is seeking temporary residence or permanent residence in Australia, no person (other than the Commonwealth) is liable, under any law of the Commonwealth, to pay a tariff for the provision of the prescribed health measure, unless the liability conforms to the tariff made under section 64D;

 

·          neither of the above statements preclude a person from seeking reimbursement from:

o    the master, owner or agent of the vessel for expenses incurred in providing the prescribed health measure to travellers who are members of the crew of a vessel (including the master of the vessel); or

o    in any case from an applicable insurance source (as defined in article 40 of the IHR).  

 

This reflects the provisions of the IHR about the circumstances in which travellers are, and are not, liable to pay for the provision of prescribed health measures.

 

Section 64D Tariff of amounts payable for prescribed health measures

 

Section 64D provides for the making of a tariff for prescribed health measures defined in subsections 64A(1) and (2).  In other words, section 64D applies to a health measure referred to in subsection 64A(2) that is provided by, for or on behalf of the Commonwealth under this Act, the Migration Act 1958 or any other law of the Commonwealth.

 

Section 64D reflects article 40 of the IHR which requires that:

·                 a tariff is an amount payable for the provision of a prescribed health measure where the prescribed health measure has been provided in relation to a traveller who is seeking temporary or permanent residence in Australia; and

·                 the amount of the tariff must not exceed the actual cost of the provision of the prescribed health measure; and

·                 the tariff must be published at least 10 days before taking effect. 

 

Section 64D achieves this result by providing that the Minister must set the amount of the tariff by legislative instrument, the amount must not exceed the actual cost of the provision of the prescribed health measure and the tariff must not take effect before the tenth day after it is registered under the Legislative Instruments Act 2003 .  Registration necessarily involves publication of the instrument as the Federal Register of Legislative Instruments is displayed on the Internet.

 

This means that travellers who are Australian citizens or who are in transit in Australia cannot be charged for the provision of prescribed health measures.  This does not, however, preclude the Commonwealth (or any other person) seeking reimbursement for expenses from an insurance source or from the master, owner or agent of a vessel (in respect of crew).

 

Item 10 - Subsection 86E(1B)

This item makes a technical amendment to replace the reference to the requirement for a determination to be made by ‘notice published in the Gazette’ with the requirement that the determination be made by ‘legislative instrument’.

 

The effect is to put beyond doubt that a determination made under section 86E is a legislative instrument for the purposes of the Legislative Instruments Act 2003 .

 

To assist readers, headings are also being included to signpost subsections within section 86E.  The heading to subsection 86E(1A) will be ‘Definitions’ and the heading to subsection 86E(1B) will be ‘Determination of basic fees’.

 

Items 11, 12 and 13

Subsection 86E(1) sets out the activities for which the Minister may determine that fees are payable, and for which he or she may determine the fee amounts.  The amendment made by item 11 provides that any determinations made under subsection 86E(1) are subject to new subsection (1AA).

 

Item 13 inserts a new subsection (1AA) that provides that the Minister’s power to make a determination that relates to the provision of a prescribed health measure in relation to a traveller is subject to Division 3 of Part VI.  The effect is that if a determination requires a fee to be paid for, or in relation to, the doing of anything in connection with the provision by, for, or on behalf of the Commonwealth of a prescribed health measure in relation to a traveller who is seeking temporary residence or permanent residence, the fee must conform with a tariff in force under section 64D.

 

Paragraph 86E(1)(a) provides that a determination may be made (by the Minister) to require fees to be paid for doing anything in connection with specified examinations or services carried out or provided under the Quarantine Act.  Item 12 omits the words ‘or services’ and substitutes the words ‘services or other quarantine measures’.  The item clarifies that determinations that are able to be made under section 86E include the quarantine measures carried out or provided under the Quarantine Act.

 

If a quarantine measure is not a prescribed health measure because, for example, its requirement has been published 10 days before it is provided to a traveller, because it is a quarantine measure provided under the Act, the Minister is able to make a determination setting the fee for its provision under section 86E.

 

Item 14 - Subsection 86E(2)

Section 86E deals with the Minister’s power to make determinations including setting the fees for certain quarantine services and specifying the persons by whom fees are payable.  Part VI of the Quarantine Act sets out the persons who will be liable for the expenses of specified quarantine services.  The technical amendment made by item 14 clarifies that the power to specify the persons by whom fees are payable, is subject to Part VI. 

 

Item 15, 16, 17, 18, 19 and 20

These items repeal subsections 86E(2AA), (2AB), (2D), (3), (4) and (5) and replace them with two new subsections - subsections 86E(2CB) and (2H).

 

Section 86E deals with fees determined by the Minister.  Among other things, the provision enables the Minister to determine fees to be paid in relation to, for example, services carried out under the Act.  The provision enables the Minister to set a late payment fee, and also to remit fees in certain limited and defined circumstances.

 

The amendments achieve three main purposes:

 

·                 first, a new subsection (86E(2CB)) is inserted which provides that late payment fees (as provided for in subsections 86E(2B), (2C) and (2CA)) do not apply in relation to fees in connection with the provision of a prescribed health measure (by, for, or on behalf of the Commonwealth) in relation to a traveller.  This amendment is necessary to conform with the IHR charging condition that charges do not exceed the actual cost of the service;

 

·                 second, the power for the Minister to remit fees in the current subsections 86E(2AA), (2AB) and (2D) is being replaced with a power to remit fees, and a new power to refund fees, if the Minister is satisfied that there are exceptional circumstances that justify doing so (new subsection 86E(2H)).  The ability to refund, as well as remit, fees is necessary to ensure that fees are able to be repaid where it seems wholly unjust for the Commonwealth to charge a fee for quarantine measures .  Therefore, merits review is inappropriate in these limited and exceptional circumstances.  This is a minor technical amendment that is not specific to the IHR-related amendments but will improve the operation of the legislation generally; and

 

·                 third, subsections that are no longer necessary either because of the changes to related provisions described above or because of the operation of the Legislative Instruments Act 2003 , are also being repealed (subsections 86E(3), (4) and (5)).

 

New headings are being inserted throughout the section to assist readers.  The headings for the subsections will be as follows:

·                 subsection 86E(2B) - ‘Late payment fees’;

·                 subsection 86E(2E) - ‘Booking fees and deposits’;

·                 subsection 86E(2G) - ‘Unpaid fees and deposits’; and

·                 subsection 86E(2H) - ‘Minister may remit and refund fees’.

 

Item 21 - Application

 

This item describes how the amendments will apply.

Main amendments

Other than the amendments made by items 10, 12, 14, 15, 17, 18, 19 and 20, the amendments of the Quarantine Act made by Schedule 2 apply in relation to prescribed health measures provided after the commencement of the Schedule, that is, 28 days after Royal Assent.

Amendments relating to the remission of fees

Items 15 and 17 repeal the provisions dealing with the Minister’s power to remit fees specified in a determination.  Item 20 repeals the Director of Quarantine’s power to determine that fees are not payable in respect of a quarantine service.  Item 18 inserts new subsection 86E(2H) which enables only the Minister to refund or remit the whole or part of a fee specified in a determination.

 

The amendments made by items 15, 17, 18 and 20 apply in relation to fees that become payable after the commencement of those items.  In effect, the Minister is able to refund or remit a fee that becomes payable after the commencement of those items which will occur 28 days after Royal Assent.