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Biosecurity (Consequential Amendments and Transitional Provisions) Bill 2014

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2013-2014

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

BIOSECURITY (CONSEQUENTIAL AMENDMENTS AND TRANSITIONAL PROVISIONS) BILL 2014

EXPLANATORY MEMORANDUM

 

(Circulated by authority of the Minister for Agriculture,

the Hon. Barnaby Joyce MP)





 

Contents

 

Overview of the Bill 4

Repeal of the Quarantine Act and the Collection Act 4

Consequential amendments . 5

Transitional Provisions . 5

Financial Impact Statement 8

Human Rights Compatibility Statement 9

Overview of the Bill 9

List of human rights . 10

Right to freedom of movement 10

Right to the presumption of innocence (reverse burden provisions) 11

Right to the presumption of innocence (strict liability provisions) 13

Right to be free from self-incrimination . 14

Right to protection from arbitrary interference with privacy . 15

Right to health . 17

Conclusion . 18

Notes on Clauses . 19

Schedule 1—Repeals . 19

Schedule 2—Consequential Amendments . 20

Schedule 3—Transitional provisions commencing on Royal Assent 23

Schedule 4—Application, saving and transitional provisions commencing later 24

Part 1—Preliminary . 24

Part 2—Managing biosecurity risks: goods . 26

Part 3—Managing biosecurity risks: conveyances . 41

Part 4—Managing biosecurity risks: monitoring, control and response . 47

Part 5—Co-regulatory approvals and compliance agreements . 47

Part 6—Emergencies . 56

Part 7—Compliance and enforcement 57

Part 8—Governance and officials . 58

Part 9—Miscellaneous . 61

Part 10—Regulations . 66

 



 

Biosecurity (Consequential Amendments and Transitional Provisions) Bill 2014

Overview of the Bill

The Biosecurity (Consequential Amendments and Transitional Provisions) Bill 2014 (the Bill) makes transitional and consequential provisions to support the commencement of the Biosecurity Bill as it replaces the Quarantine Act 1908 (Quarantine Act) as the Commonwealth’s primary biosecurity legislation.

Biosecurity risks are currently managed under the Quarantine Act and related delegated legislation. Biosecurity refers to the management of the risks of pests and disease entering Australian territory and causing harm to animal, plant and human health, the environment and the economy.

Shifting global demands, growing passenger and trade volumes, increasing imports from a growing number of countries, population expansion and climate change all contribute to the modern biosecurity environment. The Quarantine Act has been progressively amended—no less than fifty times—to cater for the changing demands placed on the biosecurity system. This means that the legislation is complex to interpret and now has overlapping provisions and powers.

Whilst the Quarantine Act has enabled the effective management of biosecurity risks to date, the Biosecurity Bill provides a much simpler legislative framework that covers changing biosecurity risks and reduces unnecessary regulation to better protect Australia’s animal, plant and human health, the environment and the economy now and in the future.

The transition from the Quarantine Act to the Biosecurity Bill needs to be managed to ensure that biosecurity risks are appropriately managed and that people, goods and conveyances are able to move through the border without any delays or additional costs. Clear guidance will be provided to biosecurity officers and stakeholders to ensure they are aware of any rights or obligations which will continue to apply.

This Bill is being introduced to:

·          repeal the Quarantine Act and the Quarantine Charges (Collection) Act 2014

(Collection Act) to allow biosecurity risks to be managed under the Biosecurity Bill

·          make consequential amendments to Commonwealth legislation to reflect the repeal of the Quarantine Act and replace with references to managing biosecurity risks under the Biosecurity Bill, and

·          make transitional provisions to provide for the management of biosecurity risks during the transition from the Quarantine Act to the Biosecurity Bill.

Repeal of the Quarantine Act and the Collection Act

Schedule 1 of the Bill repeals the Quarantine Act and the Collection Act. Repeal of the Quarantine Act will allow for the Biosecurity Bill to become the Commonwealth’s primary legislation for the management of biosecurity risks.

 

The provisions of the Collection Act have been incorporated in the Biosecurity Bill, which will provide the authority to collect charges imposed by the Biosecurity Charges Imposition (Customs) Act 2014 , Biosecurity Charges Imposition (Excise) Act 2014 and the Biosecurity Charges Imposition (General) Act 2014 .

Consequential amendments

Schedule 2 of the Bill amends the following Commonwealth legislation:

·          Archives Act 1983

·          Australian Postal Corporation Act 1989

·          Biological Control Act 1984

·          Customs Act 1901

·          Customs Administration Act 1985

·          Environment Protection and Biodiversity Conservation Act 1999

·          Fisheries Management Act 1991

·          Freedom of Information Act 1982

·          Imported Food Control Act 1992

·          Industry Research and Development Act 1986

·          Maritime Powers Act 2013

·          Maritime Transport and Offshore Facilities Security Act 2003

·          Migration Act 1958

·          National Health Act 1953

·          National Health Security Act 2007

·          National Residue Survey (Customs) Levy Act 1998

·          Plant Breeder’s Rights Act 1994

·          Primary Industries (Customs) Charges Act 1999

·          Privacy Act 1988

·          Torres Strait Fisheries Act 1984

to update references to managing biosecurity risk under the Biosecurity Bill and substitute references to Quarantine Act with Biosecurity Act.

Transitional Provisions

Schedules 3 and 4 of the Bill manage the transition from the Quarantine Act to the new biosecurity framework under the Biosecurity Bill.

The primary focus of these Schedules is to ensure that biosecurity risks are managed in a way that is not administratively or operationally burdensome for the Commonwealth and business. The overall approach taken is one of maintaining existing policy approaches under the Quarantine Act and seeking alignment between powers, decisions and processes to ensure that decisions made and processes followed under the Quarantine Act continue have effect under the Biosecurity Bill. To this extent, most decisions or powers exercised under the Quarantine Act will be transitioned as though they were made or exercised under specific provisions of the Biosecurity Bill.

While both the Quarantine Act and the Biosecurity Bill provide similar powers for the management of biosecurity risks, there are some differences which require some Quarantine Act provisions to continue to operate until the completion of all biosecurity risk management activities involved.

For consistency and to avoid confusion the transitional provisions—where there are equivalent Quarantine Act and Biosecurity Bill provisions—have been set out in the same subject order as the Biosecurity Bill. The main transitional aspects of the Bill are summarised below.

Managing biosecurity risks: goods and conveyances

Parts 2 and 3 of Schedule 4 provide that goods and conveyances that were brought into Australian territory and are likely to pose a biosecurity risk or were subject to quarantine prior to commencement day will be taken to be subject to biosecurity control under the Biosecurity Bill. This will enliven the assessment and management powers in Chapters 3 and 4 of the Biosecurity Bill to manage any biosecurity risks in relation to the goods or conveyances.

Directions, permissions or notices, given or required under the Quarantine Act relating to the assessment or management of biosecurity risks associated with the goods or conveyances will continue to have effect, either by continuing the requirement to comply or transitioning it to a direction, permission or notice given or required under an equivalent provision in the Biosecurity Bill.

This will ensure that biosecurity risks will continue to be managed appropriately and that biosecurity officers do not need to give directions, permissions or notices again on or after commencement day and that stakeholders are not delayed by having to seek permissions again.

First points of entry

International vessels and aircraft arriving in Australia from overseas and the goods on board must arrive at a first point of entry that is approved to accept them (unless given permission to do otherwise). This ensures that biosecurity risks enter Australia at a location where there are the appropriate facilities and personnel to manage them to an acceptable level.

Schedule 3 provides for a three year transition period for first points of entry, during which landing places or ports do not need to meet the requirements for first points of entry under the Biosecurity Bill. It is envisaged that most first ports of entry under the Quarantine Act will become first points of entry under the Biosecurity Bill.

This three year transition period will provide port and landing place operators additional time to upgrade their facilities (if necessary) and undertake any additional activity to satisfy the requirements. This transition period can be extended to provide additional time for a first point of entry to meet these requirements.

Managing biosecurity risks: monitoring, control and response

Part 4 of Schedule 4 provides for the continuation of vector monitoring and control activities under section 55E of the Quarantine Act. This will allow biosecurity officers to set traps and assess biosecurity risks on private property and where a risk is identified carry out biosecurity measures such as fumigation. This will provide an appropriate timeframe to manage any risks and to transition to a temporary biosecurity monitoring zone.

Approved Arrangements

Part 5 of Schedule 4 provides that co-regulatory approvals and compliance agreements under sections 46A and 66B of the Quarantine Act in force immediately before the commencement day will become approved arrangements under the Biosecurity Bill.

An approved arrangement allows industry participants to voluntary enter into an arrangement with the Commonwealth to manage the biosecurity risks associated with their own operations in the most efficient and effective way.

Under these transitional approved arrangements, biosecurity industry participants will be able to continue carrying out biosecurity activities approved under the Quarantine Act.

Biosecurity industry participants will have up to three years to meet the requirements under the Biosecurity Bill. This Part also sets out how these transitional arrangements are governed, varied, suspended or revoked consistent with Parts 3, 4 and 5 of Chapter 7 of the Biosecurity Bill.

Emergencies

While the Quarantine Act emergency powers have rarely been used, Part 6 of Schedule 4 provides that any Quarantine Act emergency directions in force immediately before commencement day will continue to have effect after commencement day.

Compliance and enforcement

Part 7 of Schedule 4 provides that Chapter 9 of the Biosecurity Bill will be modified to allow biosecurity enforcement officers to continue to investigate possible non-compliance under the Quarantine Act when it was in force. This will allow biosecurity enforcement officers to access warrants and to seize evidence, ensuring that any compliance activities can continue despite the repeal of the Quarantine Act.

Governance and Officials

Part 8 of Schedule 4 provides that any person appointed as a quarantine officer under the Quarantine Act will be authorised as a biosecurity officer under the Biosecurity Bill. This will reduce complexity and ensure a smooth transition on commencement day, as there will be a biosecurity officer in place to carry out functions and exercise powers.

Biosecurity officials authorised under the Biosecurity Bill, such as biosecurity officers and the Director of Biosecurity will be able to perform functions and exercise powers under this Bill.

It also allows biosecurity officers to continue some activities that were undertaken immediately before commencement day, on and after that day, ensuring that biosecurity risks can continue to be appropriately managed.

Review of decisions

Division 1 of Part 9 provides that decisions made under any saved Quarantine Act provisions may be reviewable decisions and subject to internal and merits review under the Biosecurity Bill. This will ensure that any people who are affected by a reviewable decision and believe an incorrect decision has been made are able to apply to have the decision reviewed.

Cost Recovery

Division 2 of Part 9 provides that any liability for unpaid fees, late payment fees or quarantine charges under the Quarantine Act and the Collection Act will continue despite the repeal of both Acts and can be collected under the Biosecurity Bill. Unpaid late payment fees under the Quarantine Act will continue to accrue under the Biosecurity Bill. The recovery of these fees and charges is consistent with the Australian Government Cost Recovery Guidelines .

Similarly, deposits paid under the Quarantine Act may be taken to be deposits under the Biosecurity Bill (if prescribed in the Regulations) or may alternatively be refunded.

The Director of Biosecurity will be able to sell goods or other items to recover unpaid expenses accrued under the Quarantine Act.

Miscellaneous

Division 3 of Part 9 sets out various miscellaneous transitional arrangements. The Bill will provide that any compensation arrangements in place for goods or premises destroyed under the Quarantine Act will continue to have effect after commencement day.

To the extent that Quarantine Act functions and powers continue to apply because of this Bill, biosecurity officials and individuals who comply with directions or requests will be protected from civil proceedings under section 644 of the Biosecurity Bill.

No significant direct or indirect financial impact on the Commonwealth will arise from the introduction of this Bill.



 

Human Rights Compatibility Statement

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Biosecurity (Consequential Amendments and Transitional Provisions) Bill 2014

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

The Biosecurity (Consequential Amendments and Transitional Provisions) Bill 2014 (the Bill) is a companion bill to the Biosecurity Act which provides a modern regulatory tool aimed at better managing biosecurity risks in current and future trading environments.

The purpose of this Bill is to:

·          repeal the Quarantine Act 1908 (the Quarantine Act)

·          repeal the Quarantine Charges (Collection) Act 2014 (the Collection Act)

·          make consequential amendments to Acts that refer to the Quarantine Act, replacing redundant terminology such as ‘quarantine’ with more appropriate terminology, amongst other consequential amendments, and

·          provide for certain matters managed under the Quarantine Act to transition to being managed under the Biosecurity Act.

General protections and principles affecting decisions

A number of Quarantine Act directions or requirements will transition to a direction or requirement given under the Biosecurity Act. To ensure that the decision to exercise certain powers under the Biosecurity Act is reasonable and proportionate to achieve a legitimate objective, section 32 provides a range of principles that a biosecurity official must be satisfied of when making certain decisions, including:

·          that exercising the power is likely to be effective in, or to contribute to, achieving the purpose for which the power is to be exercised

·          that exercising the power is appropriate and adapted to achieve that purpose

·          that the manner in which the power is to be exercised is no more restrictive or intrusive than is required in the circumstances

·          if the power is to be exercised in relation to an individual—that the power is no more restrictive or intrusive than is required in the circumstances, and

·          if the power is to be exercised during a period—that the period is only as long as is necessary.

Decisions to which these principles apply are listed under section 32 of the Biosecurity Act.

While the directions or requirements given under the Quarantine Act will transition to a direction or requirement given under the Biosecurity Act , the principles under section 32 of the Biosecurity Act would not have been considered in making these initial directions or requirements. However the principles will have ongoing application after the commencement of the Biosecurity Act and biosecurity officials will need to consider these principles when exercising powers after commencement day.

 

 

In addition, the normal principles of administrative law also apply to the exercise of powers in sections to which the principles under section 32 of the Biosecurity Act apply, such as reasonableness, proportionality and natural justice—as they do to currently to the Quarantine Act and the Biosecurity Act as a whole (except where express limitations apply, such as in Chapter 8 which deals with emergencies.

List of human rights

List of rights engaged:

·          Article 12 of the International Covenant on Civil and Political Rights (ICCPR) - right to freedom of movement

·          Article 14(2) of the ICCPR - right to the presumption of innocence

·          Article 14(3) 0f the ICCPR - right to be free from self-incrimination

·          Article 17 of the ICCPR - right to protection from arbitrary interference with privacy, and

·          Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR ) - right to health.

Right to freedom of movement

The right to freedom of movement under Article 12 of the ICCPR includes the right to move freely within a country for those who are lawfully within the country, the right to leave any country and the right to enter a country of which you are a citizen. The right may be limited in certain circumstances, including where the limitation is justified on any of the following grounds: to protect national security, public order, public health or morals or the rights and freedoms of others. The limitation must be necessary and proportionate to protect the purpose for which it is imposed, and should be as least intrusive as possible to achieve the desired result.

Item 32 of Schedule 4 sets out the circumstances when a conveyance being managed under the Quarantine Act is taken to be subject to biosecurity control under subsection 191(2) of the Biosecurity Act with the effect that provisions in Chapter 4 of the Biosecurity Act apply that may impact on the right to freedom of movement.

Conveyances will become subject to biosecurity control on commencement day if:

·          the conveyance had entered Australian territory before the commencement day during a flight or voyage that commenced outside Australian territory, or

·          the conveyance was subject to quarantine (under any provision of the Quarantine Act) immediately before commencement day.

The following items involving a transition from a direction under the Quarantine Act to the Biosecurity Act may impact the right to freedom of movement:

·          Item 33 of Schedule 4 provides that a biosecurity officer may give a direction to move an exposed conveyance, in certain circumstances, under subsection 207(2) of the Biosecurity Act

·          Item 36 of Schedule 4 provides that a requirement given to a master of a vessel in relation to the movement of a vessel under section 25 may transition to a direction given under subparagraph 202(1)(a)(ii) of the Biosecurity Act

·          Item 39 of Schedule 4 provides that a movement direction given to a person in charge of a conveyance under subsections 36(1), (2), 74D(1) or 78B(1) of the Quarantine Act in some circumstances may be treated as a direction under paragraph 206(2)(a) of the Biosecurity Act, and

 

 

·          Subitem 40(2) of Schedule 4 provides that a biosecurity officer is taken as giving a person in charge of a conveyance a direction under subparagraph 202(1)(a)(iii) of the Biosecurity Act if the conveyance is in quarantine immediately before the commencement of the Biosecurity Act.

These provisions are necessary for the legitimate objective of managing biosecurity risks associated with conveyances (and goods and people on board) by ensuring they arrive at appropriate places, and if necessary, to manage unacceptable risks, can be prevented from arriving at places. These provisions may operate to limit the right to free movement of passengers on board a conveyance to which the direction or requirement relates, as although they are not required to remain on board the conveyance, they may not be able to disembark (for example if the aircraft is in flight when a direction is given)

These provisions only apply to conveyances that are subject to biosecurity control.

Summary:

The right to freedom of movement under Article 12 of the ICCPR may be permissibly limited in these instances because these sections are necessary for the protection of public health, and the protection of the rights and freedoms of others (for example, the right to an adequate standard of living, including food, water and housing under Article 11(1) of the ICESCR).

Right to the presumption of innocence (reverse burden provisions)

Article 14(2) of the ICCPR states that everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. The right to presumption of innocence is also a fundamental common law principle.

Laws which shift the burden of proof to a defendant, commonly known as ‘reverse burden provisions’, can be considered a limitation of the presumption of innocence. This is because a defendant’s failure to discharge a burden of proof or prove an absence of fault may permit their conviction despite reasonable doubt as to their guilt. This includes where an evidential or legal burden of proof is placed on a defendant or where strict liability is applied to an offence (an explanation of strict liability follows below).

When a defendant bears an evidential burden in relation to an exception, it means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. That is, the defendant must produce or point to evidence that suggests a reasonable possibility that an exception applies in their particular case . It is then up to the prosecution to establish that this exception does not apply.

Reverse burden offences will not necessarily be inconsistent with the presumption of innocence provided that the reverse burden pursues a legitimate objective and is reasonable, necessary and proportionate to achieving that objective. Whether a reverse burden provision impermissibly limits the right to the presumption of innocence will depend on the circumstances of the case  and the particular justification for the reverse burden.

The Australian Government Guide to Framing Commonwealth Offences Infringement Notices and Enforcement Powers (the Guide) notes that placing the burden of proof on the defendant should be limited to where the matter is peculiarly within the knowledge of the defendant and where it is significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. The Guide also notes that a reverse burden provision is more readily justified if:

·          the matter in question is not central to the question of culpability for the offence

·          the penalties are at the lower end of the scale, and

·          the conduct proscribed by the offence poses a grave danger to public health or safety.

An additional factor to consider is whether the offences only impose an evidential burden (as the prosecution must still disprove the matters beyond reasonable doubt if the defendant discharges the evidential burden).

The Bill may operate to limit the right to be presumed innocent through imposing an evidential burden on the defendant in relation to a range of matters. Sections in which an evidential burden is imposed on the defendant, and where strict liability applies, are outlined below. Chapter 4 of the Guide was considered in the development of these sections and is considered consistent with the proposed reverse burden of proof. Agreement of the Attorney-General was also received in relation to these sections.

Item 10 of Schedule 4 continues the offence provisions in subsection 29(5) of the Quarantine Act which provides that a master of a vessel is guilty of an offence if he or she contravenes a condition of a permission granted to remove goods from a vessel or installation under subsections 29(4) and 29A(3) and the offence and exception in subsections 29A(4) and (4A). 

The offence and exception in subsections 29A(4) and (4A) of the Quarantine Act will continue to apply after commencement day in relation to any conditions made on the permission. If a condition of the permission is contravened the master of the vessel or installation may commit an offence. The maximum penalty for each offence is two years imprisonment if the elements of a fault-based offence are established.

Subsection 29A(4A) provides for an exception to the offence if the removal is made with the written permission of a quarantine officer but the person charged with the offence bears the evidential burden. Placing the evidential burden on the defendant is reasonable in the circumstances as the fact of whether there is permission should be readily within the person’s knowledge and the penalties are at the lower end of the scale. This provision is to ensure the legitimate objective that biosecurity risk is managed.

Item 45 of Schedule 4 continues subsection 78C(2) of the Quarantine Act which provides that a person may be guilty of an offence for moving a vessel that may be in an insanitary condition or carrying pests or diseases. If the vessel or good is moved from the specified place a person may commit an offence. The maximum penalty for this offence is two years imprisonment if the elements of a fault-based offence are established. 

The offence provision will not apply if a person has permission under paragraph 78C(2)(b) of the Quarantine Act but he or she bears the evidential burden of proving the defence. Placing the evidential burden on the defendant is reasonable in the circumstances as the fact of whether there is permission should be readily within the person’s knowledge and the penalties are at the lower end of the scale. This provision is necessary to ensure that a vessel that may pose to public health is not moved. 

Subitem 12(2) of Schedule 4 modifies section 149 of the Biosecurity Act to provide that a person who receives or has in his or her possession goods that were unloaded from an aircraft or vessel in contravention of section 44 of the Quarantine Act is liable to a civil penalty.   Section 149 of the Biosecurity Act has exceptions where the defendant bears the evidential burden of proving the exception.

It is necessary that the defendant bears the evidential burden in this instance in order to achieve the legitimate objective of ensuring the biosecurity risk associated with the goods is managed. This is reasonable and proportionate to the legitimate objective because the defendant will have the information or knowledge that is evidence of the exception.

Summary

These provisions are compatible with Article 14(2) of the ICCPR as they:

·          impose an evidential, rather than legal, burden on the defendant, and

·          the burden relates to facts which are readily within the person’s knowledge, and

·          the offences are necessary, reasonable and proportionate to the legitimate objective of protecting Australia’s human, plant and animal health, the environment and economy.

Right to the presumption of innocence (strict liability provisions)

Article 14(2) of the ICCPR states that everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. The right to presumption of innocence is also a fundamental common law principle.

When ‘strict liability’ applies to an offence, the prosecution is only required to prove the physical elements of an offence, they are not required to prove fault elements, in order for the defendant to be found guilty. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9..2 of the Criminal Code). Strict liability is used in circumstances where there is public interest in ensuring that regulatory schemes are observed and it can reasonably be expected that the person was aware of their duties and obligations. Strict liability offences can be considered a limitation of the presumption of innocence because the defendant can be found guilty without the prosecution being required to prove fault.

Strict liability offences will not necessarily be inconsistent with the presumption of innocence provided that removal of the presumption of innocence pursues a legitimate objective and is reasonable, necessary and proportionate to achieving that objective. Whether a strict liability provision impermissibly limits the right to the presumption of innocence will depend on the circumstances of the case, and the particular justification for an offence being a strict liability offence.

Item 59 of Schedule 4 continues subsection 2B(4) of the Quarantine Act which provides that it is an offence to fail to comply with a direction given by the Agriculture or Health Ministers under subsection 2B(2) of the Quarantine Act, to control and eradicate an epidemic by quarantine measures or measures incidental to quarantine. The maximum penalty for contravening a direction is ten years imprisonment if the elements of a fault-based offence are established.  

Strict liability applies to only one element of the offence being the physical element of the circumstance that the direction given to the person was made under subsection 2B(4) of the Quarantine Act. The defence of honest and reasonable mistake is available under the Criminal Code . Placing strict liability on the defendant is reasonable in the circumstances as this provision is dealing with conduct that poses a grave danger to human, plant and animal health, local industries, the economy and the environment. 

Section 2B was added to the Quarantine Act by the Quarantine Amendment Act 2002 and was found by the Senate Standing Committee for the Scrutiny of Bills to be consistent with its Sixth Report of 2002: The Application of Absolute and Strict Liability Offences in Commonwealth Legislation (First Report of 2003, 5 February 2003).    

 

Right to be free from self-incrimination

Article 14(3)(g) of the ICCPR protects the right of an individual to be free from self-incrimination in the determination of a criminal charge by providing that a person may not be compelled to testify against him or herself or confess guilt. The common law also recognises the privilege against self-incrimination which applies unless expressly or impliedly overridden by statute. The privilege against self-incrimination may be subject to permissible limits. Any limitations must be for a legitimate objective, and be reasonable, necessary and proportionate to that objective.

Subitem 5(2) of Schedule 4 provides that a notice under subsection 16AC(1) of the Quarantine Act in relation to a proposed importation of goods into Australia, the Cocos Islands or Christmas island is treated as if it has been given under subsection 120(1) of the Biosecurity Act, if the importation of goods has not occurred before commencement of the Biosecurity Act.

Item 6 of Schedule 4 provides that a notice under subsection 16AD(1) of the Quarantine Act requiring a person to give information about particular goods immediately in force before the commencement of the Biosecurity Act is treated as if it had been made under subsection 126(1) of the Biosecurity Act after commencement.

Subitem 37(4) and subitem 38(4) of Schedule 4, dealing with pre-arrival reporting that occurred under the Quarantine Act for vessels and aircraft respectively, provide that section 194 of the Biosecurity Act will apply, requiring additional or corrected information after commencement of the Biosecurity Act where the pre-arrival reporting was incomplete or incorrect.

Section 635 of the Biosecurity Act removes the privilege against self-incrimination for information provided under sections 120, 126 and 194. Removing the privilege in these circumstances is necessary to achieve the legitimate objective of effective assessment and management of biosecurity risks to human health, plant and animal health, the environment, and the economy of Australia posed by pests and diseases.

Upholding the privilege in relation to individuals who have information regarding a potential biosecurity risk could have significant consequences such as reduced agriculture, fisheries or forestry productivity, serious environmental damage or increased costs associated with controlling pests and diseases. A disease outbreak (such as foot and mouth disease) has the potential to cause significant and long term damage to Australian industries and the reputation of Australia overseas.

Whilst in some cases it may be feasible to obtain information by other means (for example, warrants), the additional time taken to obtain such information may significantly increase the risk of a disease or pest entering, establishing or spreading to Australia, or within Australian territory. Without these limitations, the Commonwealth’s ability to manage biosecurity risks through a responsive, evidence-led approach will be significantly reduced. Removal of the privilege ensures that the assessment of biosecurity risk and application of response measures can occur as urgently as necessary and reflects the magnitude of the potential impacts biosecurity risks pose to Australia.

These limitations are reasonable and proportionate to achieving the legitimate objective of managing biosecurity risk and, as section 635 of the Biosecurity Act provides, self-incriminatory disclosures cannot be used against the person making the disclosure either directly in court (use immunity) or indirectly to gather other evidence against the person (derivative use immunity). The only exception to the use and derivative use immunity are in relation to proceedings arising out of sections 137.1 and 137.2 of the Criminal Code 1995 (Cth) in relation to false and misleading information and documents.

 

Summary:

The limitations on the right to be free from self incrimination under Article 14(3)(g)of the ICCPR are permissible as protections apply to ensure the exercise of these powers is reasonable and proportionate to achieving the legitimate objective, and adequate safeguards apply to prevent the risk of abuse or arbitrary exercise of discretion.

Right to protection from arbitrary interference with privacy

Article 17 of the ICCPR protects the right to be free from arbitrary or unlawful interference with an individual’s privacy family, home or correspondence. This right may be subject to permissible limitations where those limitations are provided by law and are non-arbitrary. In order for limitations not to be arbitrary, they must seek to achieve a legitimate objective and be reasonable, necessary and proportionate to this purpose.

Item 6 of Schedule 4 provides that a notice under subsection 16AD(1) requiring a person to give information about particular goods immediately in force before the commencement of the Biosecurity Act, is treated as if it had been made under subsection 126(1) of the Biosecurity Act after commencement.

Subitem 37(4) and subitem 38(4) of Schedule 4, dealing with pre-arrival reporting for vessels and aircraft under the Quarantine Act respectively, provide that section 194 of the Biosecurity Act may apply in some circumstances to require additional or corrected information after the commencement of the Biosecurity Act where the pre-arrival reporting was incomplete or incorrect. Reporting and notification obligations under section 194 of the Biosecurity Act apply only in particular circumstances, and the persons required to provide the information (such as the owner or operator of the aircraft or vessel) can be reasonably expected to be aware of these obligations.

By exercising powers to ask questions or requiring persons to provide documents, notices or reports in the exercise of these powers, a biosecurity officer may incidentally require the provision of personal information. These provisions are necessary for the legitimate objective of assessing the level of biosecurity risk associated with goods or conveyances in, or intending to enter, Australian territory.

Biosecurity officers need access to this information in order to properly assess the level of biosecurity risk and to be able to manage any biosecurity risks appropriately. However, the collection, use, storage and sharing of personal information may operate to limit the right to privacy.

Part 2 of Chapter 11 of the Biosecurity Act includes a range of protections relating to the collection, storage and disclosure of protected information. Section 580 provides that only certain persons may collect, disclose, or use information, and that they may only do so for a permissible purpose (a purpose which promotes the objects of the Act). Section 585 also provides an offence for improper collection or use of protected information.

Item 61 of Schedule 4 applies Parts 1, 2, 3, 4 and 5 and Divisions 4 and 6 of part 10 of Chapter 9 of the Biosecurity Act which provide for compliance and enforcement powers, including powers to be drawn from the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act). Section 511 of Chapter 9, and sections 18 and 48 of the Regulatory Powers Act, provide for powers to enter premises, which enables a number of monitoring and investigation powers to be exercised on those premises.

These powers include the ability to search the premises, inspect documents or things on the premises, take extracts or copies of documents, and sample anything on the premises (sections 19 and 49 of the Regulatory Powers Act and subsections 482(2) and 485(2) of the Biosecurity Act).

Additional powers available include the powers to seize evidence (sections 49 and 52 of the Regulatory Powers Act) and ask questions and seek production of documents (sections 24 and 54 of the Regulatory Powers Act).

These powers are necessary for the legitimate objective of ensuring that relevant information required under the Act, and information required to assess compliance with the Act, is accessible and available to biosecurity officials when required. However, these sections may operate to limit the right to privacy as they enable entry to premises that may be a person’s residence as well as inspection, copying and sampling of potentially personal information.

Entry to premises is only allowed with consent or a warrant, and a warrant to enter premises may only be granted for the purposes of:

·          determining whether the Act has been, or is being, complied with

·          determining whether information supplied for the purposes of the Act is correct, or

·          there are reasonable grounds for suspecting that there may be evidential material on the premises.

The threshold tests that are laid out above are designed to ensure that any interference with the right to privacy is lawful and is only to ensure compliance with the Act and manage biosecurity risks.

A number of protections are in place to ensure that any interference with the right to privacy is lawful and protect individuals’ rights including:

·          obligations on biosecurity enforcement officers when entering with consent or under warrant, which include the requirement that consent of the occupier is only to be given voluntarily; and where entry is with a warrant, the requirement that an announcement must be made before entry and details of the warrant given to the occupier (section 25 to 28, 55 to 58 of the Regulatory Powers Act, and sections 500 to 504 of the Biosecurity Act), and

·          the limitations on use of force against things (subsections 482(8) and 485(8) and section 505 of the Biosecurity Act).

Entry to premises without a warrant is only provided for in specific circumstances listed in section 513, which include:

·          entering landing places or ports for the purposes of performing function or exercising powers under the Act (section 252(2)), and

·          monitoring or searching premises at which biosecurity activities are carried out by a biosecurity industry participant that is covered by an approved arrangement, or at a first point of entry (sections 511 and 512).

Protections apply in these circumstances including the requirement for announcement before entry (section 514), and rights of the appropriate person for the premises (as defined under section 9) to observe the exercise of powers while on the premises (section 516).

Stakeholders affected by section 252(2) will be informed of this power through the public release of a determination by the Director of Biosecurity or the Director of Human Biosecurity establishing a place to be a first point of entry. Additionally, entry to premises under this section is only allowed if the biosecurity official is satisfied of the principles affecting the decision to exercise certain powers (section 32).

Entry to premises without a warrant or consent is provided for in sections 511 and 512, as the relevant premises relate to an approved arrangement, where consent to entry is implied by the voluntary nature of the arrangement (and will be a condition of the approved arrangement). Additionally, the premises may only be entered during business hours. Entry under section 512 is limited to situations where a biosecurity officer has reasonable grounds for suspecting that there may be evidential material on the premises.

The above sections involving the collection, use and storage of personal information are also subject to the confidentiality of information sections (Part 2 of Chapter 11). These limit the circumstances and purposes for which personal information obtained in accordance with the Act can be recorded, disclosed or used (for example, contacting the applicant regarding the application). Additionally, the powers contained in these sections are required to be exercised in compliance with the Privacy Act 1988, which means that there are additional protections on the use and storage of personal information collected under these sections. 

Summary

These limitations of the right to protection from arbitrary interference with privacyunder Article 17 of the ICCPR are permissible as tests and protections apply to ensure the exercise of these powers is reasonable and proportionate to achieving the legitimate objective, and adequate safeguards apply to prevent the risk of abuse or arbitrary exercise of discretion.

Right to health

Article 12 of the ICESCR promotes the right of all individuals to enjoy the highest attainable standards of physical and mental health. This includes the application of measures for the prevention, treatment, and control of epidemic, endemic, occupational and other diseases (Article 12(2)).

The United Nations Committee on Economic, Social and Cultural Rights has stated in General Comment 14 (2000) that health is a ‘fundamental human right indispensable for the exercise of other human rights’, and that the right to health is not to be understood as the right to be healthy, but rather entails a right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.

Article 4 of the ICESCR provides that countries may subject economic, social and cultural rights (such as the right to health) only to such limitations ‘as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.’ The United Nations Committee has stated that such limitations must be proportionate, and must be the least restrictive alternative where several types of limitations are available, and that even where such limitations are permitted, they should be of limited duration and be subject to review.

The Bill operates to transition certain directions given in relation to conveyances under the Quarantine Act to the Biosecurity Act, with the effect that provisions in Chapter 4 of the Biosecurity Act that may limit the right to health may apply.

These provisions are necessary to achieve the legitimate objective of preventing harm to human, animal or plant health as they enable the assessment and management of biosecurity risks related to conveyances. In managing biosecurity risks, the Bill promotes the right to health for the Australian community.

 

However, these provisions may also operate to limit the right to health as they may affect passengers’ access to health facilities and goods, including essential medications and services, by preventing them from disembarking from a conveyance that is subject to a direction (for example, to stay out of a port) . This is unlikely to occur in practice, as individuals are not required to remain on board a vessel that is subject to a direction.

The relevant powers to give directions are in subitems 33(4) and items 36, 39 and 40 of Schedule 4 .

Subitem 33(4) of Schedule 4 provides that a biosecurity officer may give a direction to move an exposed conveyance under subsection 207(2) of the Biosecurity Act where a conveyance is in Australian territory, on or after commencement day, notwithstanding that under subitem 33(3) of Schedule 4 the biosecurity officer has no power under subsection 206(2) of the Biosecurity Act in relation to the conveyance.

Item 36 of Schedule 4 provides a requirement given to a master of a vessel in relation to the movement of a vessel under section 25 of the Quarantine Act may transition to a direction given under subparagraph 202(1)(a)(ii) of the Biosecurity Act.

Item 39 of Schedule 4 provides that a movement direction given to a person in charge of a conveyance under subsections 36(1), (2), 74D(1) or 78B(1) of the Quarantine Act in some circumstances may be treated as a direction under paragraph 206(2)(a) of the Biosecurity Act.

Item subitem 40(2) of Schedule 4 provides that a biosecurity officer is taken as giving a person in charge of a conveyance a direction under subparagraph 202(1)(a)(iii) of the Biosecurity Act if the conveyance is in quarantine immediately before the commencement of the Biosecurity Act.

Summary

This Bill represents a positive measure to protect the right to health under Article12 of the ICESCR. Where it limits this right, the limitations are permissible as tests and protections apply to ensure the exercise of these powers is reasonable and proportionate to achieving the legitimate objective, and adequate safeguards apply to prevent the risk of abuse or arbitrary exercise of discretion.

Conclusion

This Bill is compatible with the human rights outlined above because it advances the protection of human rights, and to the extent that it may operate to limit these rights, the limitations are reasonable, necessary and proportionate to achieve legitimate objectives.

 

Minister for Agriculture ,

the Hon. Barnaby Joyce MP



Clause 1                     Short title

This clause provides for the short title of the Act to be the Biosecurity (Consequential Amendments and Transitional Provisions) Act 2014.

Clause 2                     Commencement

This clause provides for the commencement of the Act. The effect of items within the table in subclause (1) is to enable different parts of the Bill to commence at different times. Each provision of the Bill specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 in the table.

Item 1 of the table provides that clauses 1 to 3 of the Bill (and anything in the Bill not elsewhere covered by the table) will commence on the day the Bill receives Royal Assent.

Item 2 of the table provides that Schedules 1 and 2 of the Bill—relating to repealing and consequentially amending legislation—will commence at the same time as

section 3 of the Biosecurity Act 2014 . This timing ensures that the amendments to other Commonwealth legislation and repeal of the Quarantine Act 1908 and Quarantine Charges (Collection) Act 2014 will only take effect once all of the provisions in the Biosecurity Act commence.

Item 3 of the table provides that Schedule 3 of Bill will commence on the day the Bill receives Royal Assent. Once the Bill receives Royal Assent, the Director of Biosecurity or the Director of Human Biosecurity will be able to make transitional determinations of first points of entry prior commencement day, to come into effect once section 3 of the Biosecurity Act commences.

Item 4 of the table provides that Schedule 4 of the Bill—relating to transitional arrangements for Quarantine Act powers—will commence at the same time as section 3 of the Biosecurity Act. This timing ensures that these transitional arrangements are in place when the Quarantine Act is repealed.

Clause 3                     Schedule(s)

The clause provides that any Acts set out in the Schedules to this Act are amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Repeals

Items 1 and 2

These items repeal the Quarantine Act and the Collection Act.

These Acts contain provisions relating to the management of quarantine risks and the collection of charges imposed under the Biosecurity Charges Imposition (General) Act 2014 , Biosecurity Charges Imposition (Excise) Act 2014 and Biosecurity Charges Imposition (Customs) Act 2014 . These provisions will cease to have effect or be replaced on the same date that the Biosecurity Act commences.



 

Schedule 2—Consequential Amendments

Schedule 2, amends the following Acts:

·          Archives Act 1983 (items 1 and 2)

·          Australian Postal Corporation Act 1989 (item 3)

·          Biological Control Act 1984 (item 4)

·          Customs Act 1901 (items 5, 6, 7, 8, 9)

·          Customs Administration Act 1985 (items 10)

·          Environment Protection and Biodiversity Conservation Act 1999 (items 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21)

·          Fisheries Management Act 1991 (items 22 and 23)

·          Freedom of Information Act 1982 (items 24 and 25)

·          Imported Food Control Act 1992 (item 26)

·          Industry Research and Development Act 1986 (item 27)

·          Maritime Powers Act 2013 (items 28 and 29)

·          Maritime Transport and Offshore Facilities Security Act 2003 (items 30, 31, 32 and 33)

·          Migration Act 1958 (items 34 and 35)

·          National Health Act 1953 (item 36)

·          National Health Security Act 2007 (items 37, 38, 39, 40, 41 and 42)

·          National Residue Survey (Customs) Levy Act 1998 (items 43, 44, 45 and 46)

·          Plant Breeder’s Rights Act 1994 (items 47 and 48)

·          Primary Industries (Customs) Charges Act 1999 (items 49, 50, 51 and 52)

·          Privacy Act 1988 (item 53)

·          Torres Strait Fisheries Act 1984 (items 54 and 55)

As many of the amendments to these Acts achieve the same effect, the amendments are grouped as follows:

·          Omit redundant references and substitute with updated reference to managing biosecurity risk under the Biosecurity Act

·          Remove redundant references

·          Substitution of references to Quarantine Act with Biosecurity Act, and

·          Miscellaneous amendments.

Omit redundant references and substitute with updated reference to managing biosecurity risk under the Biosecurity Act—items 6, 7, 8, 9, 28, 29

These items amend the Customs Act 1901 (items 21, 26, 31 and 32) and Maritime Powers Act 2013 (items 220 and 221) that refer to:

·          quarantine

·          matters of quarantine

·          for quarantine purposes, or

·          the Quarantine Act .

The amendments to these acts under these items remove redundant references to quarantine and the Quarantine Act and substitute appropriate references to managing biosecurity risk under the Biosecurity Act.

Remove redundant references—items 3, 5, 21, 31

These items remove references to the Australian Quarantine Inspection Service (AQIS), particular definitions and a table item that are redundant due to the repeal of the Quarantine Act and commencement of the Biosecurity Act.

Specifically, these items remove references to AQIS in the Australian Postal Corporation Act 1989 and the Customs Act 1901 (items 3 and 5, the definition of disease and quarantine officer under the Environment Protection and Biodiversity Conservation Act 1999 and Maritime Transport and Offshore Facilities Security Act 2003 (items 21 and 31). These references are redundant following the repeal of the Quarantine Act.

Replace or amend references to Quarantine Act with Biosecurity Act—items 2, 4, 11, 12, 13, 14, 16, 17, 18, 19, 25, 26, 34, 35, 36

These items substitute or amend references in various Acts to Quarantine Act with

Biosecurity Act.

References to the Quarantine Act   have been replaced with references to Biosecurity Act to reflect the repeal of the Quarantine Act and commencement of the Biosecurity Act . Specifically references have been replaced under the Biological Control Act 1984 (item 4), the Environment Protection and Biodiversity Conservation Act 1999 (items 11, 12, 13, 14, 16, 17 and 19) and the Imported Food Control Act 1992 (item 26). In addition, references under the Archives Act 1983 and the National Health Act1953 to the Minister administering the Quarantine Act being the responsible Minister for the purposes of that Act (items 2 and 36), have been updated to reflect the responsibilities of the Agriculture Department and the Minister responsible for administering the Biosecurity Act following the commencement of that Act.

Other amendments have also been made to the Environment Protection and Biodiversity Conservation Act 1999 to update a reference from “quarantine officer” to “biosecurity officer” (item 18) as well as the Freedom of Information Act 1982 where a reference to a “Commission of Inquiry” had been amended to acknowledge the repeal of the Quarantine Act and commencement of the Biosecurity Act (item 25).

Finally, amendments have also been made to the Migration Act 1958 to update how a Minister may authorise an officer for the purposes of managing biosecurity risk (items 34 and 35). These references have been amended to reflect the commencement of the Biosecurity Actand to remove redundant references under the Quarantine Act.

Miscellaneous amendments—items 1, 10,15, 17, 20, 22, 23, 24, 27, 30, 32, 33, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55

Item 1, 24, 53

These items amend provisions of the Archives Act 1983 (item 1), Freedom of Information Act 1982 (item 24) and the Privacy Act 1988 (item 53) where the definition of a Commission of Inquiry includes a reference to the Quarantine Act. The items amend these Acts to reflect the repeal of the Quarantine Act.

Item 10

This item provides for a purpose relating to matters covered by the Biosecurity Act to be a “permissible purpose” in relation to the disclosure of certain information under the Customs Administration Act 1985 . This amendment provides for the commencement of the Biosecurity Act and ensures that, where appropriate information may be disclosed for a permissible purpose when it should be permissible to do so for the operation of that Act.



 

Item 15

This item removes a reference to the Director of Animal and Plant Quarantine under the Environment Protection and Biodiversity Conservation Act 1999 and replaces it with a reference to Director of Biosecurity. The Director of Animal and Plant Quarantine was a position provided for under the Quarantine Act and no longer exists. The role and responsibilities of the Director of Animal and Plant Quarantine are now afforded to the Director of Biosecurity under the Biosecurity Act .

Items 22, 23, 54 and 55

These items amend references to quarantine in the Fisheries Management Act 1991 (items 22 and 23) and the Torres Strait Fisheries Act 1984 (items 54 and 55) that relate to the authorisation of the Australian Fisheries Management Authority destroying or disposing of a boat on the behalf of the Commonwealth under certain circumstances. The amendments to these Acts under these items reflect the repeal of the Quarantine Act and the commencement of the Biosecurity Act and provide for a boat that poses an unacceptable level of biosecurity risk within the meaning of the Biosecurity Act to be dealt with subject to these Acts.

Item 27

This item amends the Industry Research and Development Act 1986 to include a reference to the Biosecurity Act. The amendment to this Act ensures that a condition for a finding that an overseas activity cannot be conducted in Australia includes a contravention of the Biosecurity Act.

Item 20, 30, 32, 33, 37, 47

These items amend the Environment Protection and Biodiversity Conservation Act 1999 , Maritime Transport and Offshore Facilities Security Act 2003 , National Health Security Act 2007 and Plant Breeder’s Rights Act 1994 to insert various definitions contained in the Biosecurity Act. The definitions include the definition of the “Director of Biosecurity” (item 20), “biosecurity officer” (item 30), “Australian territory”, “listed human disease” (item 37), “biosecurity control order”, “biosecurity response zone”, “biosecurity response zone determination”, “release from biosecurity control” and “subject to biosecurity control” (item 47). The inclusion of these various definitions in these Acts ensures that concepts and powers contained in the Biosecurity Act are contemplated by these Acts to ensure their proper operation following the repeal of the

Quarantine Act and the commencement of the Biosecurity Act.

Other amendments to these Acts substitute references to quarantine officers with references to biosecurity officers (items 32 and 33). The term “quarantine officer” no longer exists following the repeal of the Quarantine Act and has been replaced with “biosecurity officer” following the commencement of the Biosecurity Act. A definition of “biosecurity officer” is also included as part of these amendments (item 30). These amendments ensure that duly authorised officers under the Maritime Transport and Offshore Facilities Security Act 2003 appropriately reflect the repeal of the Quarantine Act and the Biosecurity Act.

Item 38, 40, 41, 43, 44, 45, 46, 49, 50

These items make minor technical amendments to the National Health Security Act 2007 (items 38, 40, 41), National Residue Survey (Customs) Levy Act 1998 (items 43, 44, 45 and 46) and the Primary Industries (Customs) Charges Act 1999 (items 49 and 50). Item 38 amends the definition of a “public health event of national significance” to include potential cases of a disease listed on the National Notifiable Disease List in order to accommodate biosecurity risks to human health contemplated by the Biosecurity Act.

Other amendments under these items make minor typographical corrections (items 40, 41, 43, 44, 45, 46, 49 and 50) to the National Residue Survey (Customs) Levy Act 1998 and Primary Industries (Customs) Charges Act 1999 .

Item 39 and 42

Item 39 adds two provisions that would be a “permissible purpose” for the purposes of public health surveillance under the National Health Security Act 2007 . The addition of these provisions acknowledges the capacity of the Biosecurity Act to manage biosecurity risks that may pose a threat to human health and ensures that the National Health Security Act 2007 is able to operate on a consistent basis with the powers to manage biosecurity risk that may pose a threat to human health under the Biosecurity Act.

Item 42 adds a further provision to the National Health Security Act 2007 which provides for a Minister to take action if a responsible Commonwealth, state or territory body gives the National Focal Point information relating to one or more cases or potential cases of a listed human disease. The addition of this provision provides for the concept of “listed human disease” under the Biosecurity Act which replaces “quarantinable disease”. The concept of quarantinable disease no longer exists following the repeal of the Quarantine Act.

Item 48

This item substitutes a provision under the Plant Breeder’s Rights Act 1994 which provides an exemption for an applicant for a plant breeder’s right to pay the Commonwealth the prescribed examination fee. This item provides for the exemption to apply in circumstances where the examination becomes payable and the plant variety is either subject to biosecurity control, subject to a biosecurity control order or a biosecurity response zone determination is in force. This amendment to the Act under this item will ensure that the exemption for an applicant to pay a prescribed examination fee will still apply in the appropriate circumstances following the repeal of the Quarantine Act and the commencement of the Biosecurity Act.

Schedule 3—Transitional provisions commencing on Royal Assent

This Schedule outlines the arrangements for transitioning first points of entry under the Biosecurity Act. International vessels and aircraft arriving in Australia from overseas and the goods on board must arrive at a first point of entry that is approved to accept them (unless given permission to do otherwise). This ensures that biosecurity risks enter Australia at a location where there are the appropriate facilities and personnel to manage them to an acceptable level.

Item 1                         Determination of first points of entry

This item allows the Director of Biosecurity or the Director of Human Biosecurity to make determinations under subsections 223(1) and 229(1) of the Biosecurity Act that a landing place or port is a first point of entry for aircraft or vessels entering Australian territory even if all the requirements of those subsections are not met.

While the item provides that determination can be made prior to the day of commencement all of the sections of the Biosecurity Act, it will only have effect on and after that day.

During the ‘transitional period’ (three years after commencement) a port or landing place does not need to meet the requirements to become a first point of entry in subsections 223(2) and 229(2) of the Biosecurity Act, that the:

·          level of biosecurity risk associated with the operations of the port or landing place is acceptable, and

·          requirements set out in the regulations are met.

This allows port and landing place operators three years to upgrade their facilities (if required) in order to meet the requirements in the Biosecurity Act.

After this time, the relevant Director can extend a transitional determination if the first point of entry will not be in a position to meet the requirements in Biosecurity Act.

Consistent with first point of entry determinations made under sections 223 and 229 of the Biosecurity Act, a transitional determination is not subject to disallowance under the Legislative Instruments Act 2003.

This item clarifies that it operates before the commencement of sections 9, 223, 229, 540 and 544 of the Biosecurity Act in the same way as this item would have if those sections had commenced.

Subitem 1(6) provides definitions for this item, which are consistent with the definitions in the Biosecurity Act including:

Director of Biosecurity refers to the person who is, or is acting as, the Agriculture Secretary , as specified in section 540 of that Act.

Director of Human Biosecurity refers to the person appointed by the Health Minister as the Commonwealth Chief Medical Officer, as specified in subsection 544(1) of that Act.

landing place refers to any place where an aircraft can land, including an area of land or water, or an area on a building or a vessel.

port includes:

·          a navigable estuary, river, creek or channel

·          a haven, roadstead, dock pier or jetty, or

·          any other place in or at which vessels can obtain shelter or load and unload goods or embark and disembark passengers.

Schedule 4—Application, saving and transitional provisions commencing later

Part 1—Preliminary

Item 1                                     Definitions

This item provides definitions for Schedule 4 of the Bill. Notes are provided below for each definition.

Biosecurity Act

This definition provides that ‘Biosecurity Act’ refers to the Biosecurity Act 2014.

cessation time

This definition provides that the ‘cessation time’ for a transitional approved arrangement is when the transitional approved arrangement ceases to exist.

For quarantine approved premises under section 46A of the Quarantine Act transitioning to approved arrangements, the cessation time is when the relevant previous approval would have ceased to be in force unless the arrangement has been renewed under subitem 47(4) of this Schedule or revoked under Part 5 of Chapter 7 of the Biosecurity Act.

For compliance agreements under section 66B of the Quarantine Act transitioning to approved arrangements the cessation time is 18 months after commencement unless the timeframe is extended under item 53 of this Schedule, the arrangement is revoked under

Part 5 of Chapter 7 of the Biosecurity Act or ceases to be in force under subitem 52(4) of this Schedule.

commencement day

This definition provides that the ‘commencement day’ is the same day on which section 3 of the Biosecurity Act commences. This ensures that the transitional arrangements commence at the same time as all of the provisions of the Biosecurity Act.

released from quarantine

This definition provides that ‘released from quarantine’ has the same meaning as ‘released from quarantine’ under the Quarantine Act. This means that the goods, vessels, aircraft, people or thing are no longer ‘subject to quarantine’ (see definition below). This occurs where the goods, vessel, aircraft, person or thing no longer present a quarantine risk.

subject to quarantine

This definition provides that ‘subject to quarantine’ has the same meaning as ‘subject to quarantine’ under the Quarantine Act. Sections 17 and 18 of the Quarantine Act set out the circumstances where vessels (including aircraft), installations, goods, persons and things become subject to quarantine.

under

This definition provides that ‘under’ in relation to the Quarantine Act, has the same meaning given by subsection 5(1A) of the Act immediately before its repeal, including things made under:

·          regulations, a Proclamation under the Quarantine Act or a term of a compliance agreement; or

·          an order, determination or declaration made, or an approval, direction, authorisation, permission or permit given, under the Quarantine Act, the regulations, such a Proclamation or a term of such an agreement; or

·          a condition, restriction or requirement imposed under any of the above.

Subitems (2) and (3) provide that expressions (definitions) used in both this Schedule and the Biosecurity Act—have the same meaning as in the Biosecurity Act subject to the expressions used in both this Bill and the Quarantine Act.

Expressions (definitions) used in this Bill and the Quarantine Act—have the same meaning as in the Quarantine Act to the extent that:

·          the expression relates to an event that occurred or state of affairs under the Quarantine Act before commencement, or

·          the provision has the affect of continuing application of Quarantine Act provision despite repeal of Quarantine Act.

These subitems ensure that expressions do not need to be defined in this Act (and that to the extent that we are transitioning Quarantine Act provisions to the Biosecurity Act, Quarantine Act expressions take precedence.

Subitem (4) provides that a reference to a particular provision under the Quarantine Act includes references to anything—such as a decision, direction, approval, authorisation, permission—made or done under that provision.

 

Item 2                         Section 7 of the Acts Interpretation Act 1901

This item provides that section 7 of the Acts Interpretation Act 1901 will apply to the repeal of the Quarantine Act ensuring that the repeal of the Quarantine Act does not affect any right, privilege, obligation, penalty, liability accrued or incurred under the Quarantine Act.

Part 2—Managing biosecurity risks: goods

This Part outlines the arrangements for transitioning the management of biosecurity risks associated with goods under the Quarantine Act to management under the Biosecurity Act.

Division 1—Goods brought into Australian territory or otherwise subject to quarantine

Item 3                         Goods brought into Australian territory or otherwise subject to quarantine before commencement day

This item outlines the circumstances where goods being managed under the Quarantine Act are taken to be subject to biosecurity control for the purposes of the Biosecurity Act, allowing biosecurity officers to exercise powers in relation to the goods to assess and manage any associated biosecurity risks. These powers are set out in Chapter 3 of the Biosecurity Act. 

Goods that had been brought into Australian territory before the commencement day from outside Australian territory will become subject to biosecurity control on commencement day if immediately prior to commencement day, one of the following circumstances applies:

·          the goods had not been unloaded from the aircraft or vessel

·          the goods were within the precincts of a landing place or port

·          the goods were subject to quarantine and were at a place approved under subsection 46A(1) of the Quarantine Act

·          the goods were subject to quarantine and were subject to the application of procedures in accordance with a compliance agreement under section 66B of the Quarantine Act

·          the goods had been ordered, or were taken to have been ordered, into quarantine under the Quarantine Act

·          the goods were in a quarantine station, or other quarantine or biosecurity facility, in accordance with a law of the Commonwealth or a state or territory relating to quarantine or biosecurity, or

·          the goods were under quarantine surveillance under section 52 of the Quarantine Act.

The goods will not become subject to biosecurity control if they were released from quarantine immediately before commencement day. Goods which have been assessed as not posing, or which no longer pose a biosecurity risk will be able to move smoothly through the border. This ensures that individuals or business is not subject to any additional delays or costs.

In addition, the item also provides that goods in Australian territory will become subject to biosecurity on commencement day if the goods were subject to quarantine prior to commencement day and:

·          a quarantine risk management measure given under subsections 16AF(1), 29(4), 29A(3), 29B(1), 44A(4), 44B(6) or (7) 48AB(1), 48AC(1), 48AD(1) or 74D(1) or paragraphs 20D(2)(b) or  48(2)(b) of the Quarantine Act was in force prior to commencement day and had not been complied with, or

·          a movement direction had been given under subsections 48(1), (3) or (6) or 70D(2) the Quarantine Act in relation to the goods and they were subject to quarantine immediately before that day.

It is appropriate that these goods become subject to biosecurity control as there are still outstanding measures to managed biosecurity risks which need to be completed or there are biosecurity risks that have not yet been assessed.

If this provision is not triggered and the goods are not subject to biosecurity control any biosecurity risks identified post-commencement can be managed using powers under Chapter 6 of the Biosecurity Act.

Item 4                         Applications of section 119 of the Biosecurity Act

This item provides that section 119 of the Biosecurity Act will apply to goods that are subject to biosecurity control under item 3 of this Schedule. These goods will:

·          remain subject to biosecurity control until they are released under Division 10 of Part 1 of Chapter 3 of the Biosecurity Act, and

·          become subject to biosecurity control on re-entering Australian territory if they are released from biosecurity control by leaving Australian territory on a vessel or aircraft travelling between Australian ports or landing places.

This means that the systems and processes that are in place for the Biosecurity Act will be valid for the release of goods under the transitional provisions.

Goods that are brought into Australian territory on or after the commencement day on a flight or voyage that commenced outside Australian territory will become subject to biosecurity control under section 119 of the Biosecurity Act.

Item 5                         Notice of proposed importation of good

This item provides that a notice of proposed importation of goods into Australia given under subsection 16AC(1) of the Quarantine Act prior to commencement day has effect, on and after the commencement day, as if it had been given in relation to the goods in accordance with

subsection 120(1) of the Biosecurity Act.

If a person has imported goods prior to commencement day and has not given notice under subsections 16AC(1) or (2) prior to that day, they will be required to give a notice in accordance with section 120 of the Biosecurity Act.

This item ensures that a person only has to give one notice of intention to bring in goods into Australia, either prior to, or on and after commencement day. It is important that this notice is provided to allow for the proper assessment of the level of biosecurity risk associated with the goods and movement of goods in a timely manner across Australia’s borders.

Item 6                         Notice requiring additional information about goods

This item provides that a written notice given by a quarantine officer under subsection 16AD(1) of the Quarantine Act prior to commencement day seeking information from a person about particular goods, has effect, on and after commencement day as a request being made by a biosecurity officer under subsection 126(1) of the Biosecurity Act.

This ensures that on commencement day a biosecurity officer does not need to reissue the request for information about particular goods and the person must comply with original request for information. It is important that this information is provided to a biosecurity officer as it will allow for the proper assessment of the level of biosecurity risk associated with the goods.

 

Item 7                         Notice to do specified thing in relation to goods

This item provides that a person must comply, on and after commencement day, with a notice given to a person by a quarantine officer under subsection 16AF(1) of the Quarantine Act requiring that person to do a specified thing in relation to goods that had been ordered into quarantine.

The offence in subsection 16AF(3) of the Quarantine Act will continue to apply after commencement day in relation to the requirements in the notice, despite the repeal of the Quarantine Act. A person who contravenes a requirement in the notice may commit an offence. This means that a person that does not comply with a notice issued under

subsection 16AF(3) will commit an offence. The maximum penalty for contravening a direction is five years imprisonment if the elements of a fault-based offence are established.

It is important that the requirements under subsection 16AF(3) continue as they may relate to the management of biosecurity risks in relation to the goods. For example, a notice may be issued under subsection 16AF(3) releasing the goods from quarantine on the condition that they undergo treatment such as fumigation. This requirement has not been transitioned to a Biosecurity Act provision as there are no equivalent provisions in that Act.

The notice given under subsection 16AF(1) of the Quarantine Act may make complying with the requirement in the notice a condition of the goods being released from quarantine. If the person complies with the requirement on and after commencement day and the goods are taken to be subject to biosecurity control under item 3 of this Schedule, the goods are taken to be released from biosecurity control by notification under paragraph 162(1)(a) of the Biosecurity Act.

This ensures that a biosecurity officer does not have to re-release the goods from biosecurity control and that the person has access to the goods as soon as the requirement is complied with.

Item 8                         Unloading goods at landing place or port at which aircraft or vessel has arrived

This item allows aircraft or vessels that entered Australian territory before the commencement day during a flight or voyage that commenced outside Australian territory to unload goods at a landing place or port that is not determined as a first point of entry for the goods under the Biosecurity Act.

This is only permitted where the landing place or port was declared under subsection 13(1) of the Quarantine Act to be a first port of entry at which the goods on board the aircraft or vessel could be unloaded.

Under sections 224 and 230 of the Biosecurity Act, a biosecurity entry point may be determined at a first point of entry. A biosecurity entry point is a designated area within a port or landing place that an aircraft, vessels or goods must enter as soon as practicable upon arriving—allowing biosecurity risks associated with the aircraft, vessel or goods to be managed at a specific location within the landing place or port.

As there is no equivalent concept of biosecurity entry points under the Quarantine Act, the Biosecurity Act applies as if the goods were unloaded at a biosecurity entry point.

This item ensures that vessels and aircraft that entered Australian territory before commencement day are not disadvantaged by potential changes in the status of a port or landing place under the Biosecurity Act during the transition from the Quarantine Act.

Item 9                         Permission to land goods at place other than declared port

This item provides that a permission to unload goods at a place other than a first point of entry for those goods under paragraph 20D(2)(b) of the Quarantine Act has effect, on and after commencement day as a permission being granted by the Director of Biosecurity under

subsection 146(2) of the Biosecurity Act.

If the permission had expired immediately before commencement day, it will not have effect under the Biosecurity Act.

If the permission given under the Quarantine Act was subject to any conditions the permission deemed to be given under the Biosecurity Act is subject to those same conditions. It is important that these conditions continue as they are required to manage biosecurity risks. A permission given under paragraph 20D(2)(b) to arrive at a first port of entry may be conditional on not having any pests or diseases on board. If a pest was discovered, the aircraft or vessel would need to arrive at a first port of entry—where the biosecurity risk can be better managed.

This ensures that on commencement day a person in charge or operator of the aircraft or vessel is not delayed or subject to additional costs by having to seek permission again under the

Biosecurity Act. This is appropriate as the permission will only be given under

paragraph 20D(2)(b) if the biosecurity risks could be managed, the transition to the Biosecurity Act will not create any additional biosecurity risks.

The permission ceases to be in force one year from commencement day, if it does not cease earlier. At this point, it is appropriate that the biosecurity risks associated with arriving at a non first point of entry are reassessed and that after the transitional period all biosecurity risks are managed under the Biosecurity Act. After it ceases, the person in charge or operator of the vessel or aircraft must seek permission under section 146 of the Biosecurity Act to unload goods at a port or landing place other than a first point of entry.

Item 10                       Permission to allow goods to be removed from vessel or installation

This item provides that a permission given to a master to allow another person to remove goods from a vessel or installation under subsections 29(4) and 29A(3) continues to have effect despite the repeal of the Quarantine Act.

If the permission had expired immediately before commencement day, it will not have effect under the Biosecurity Act.

If the permission given under the Quarantine Act was subject to any conditions the permission deemed given under the Biosecurity Act is subject to those same conditions. It is important that these conditions continue as they are required to manage biosecurity risks. For example, a permission given under subsection 29A(3) to remove a dead animal may be conditional on the remains being kept in sealed container to ensure that the biosecurity risks do not spread

The offence in subsection 29(5) of the Quarantine Act will continue to apply after commencement day in relation to any conditions made on the permission.

The offence and exception in subsections 29A(4) and (4A) of the Quarantine Act will continue to apply after commencement day in relation to any conditions made on the permission.

Both of these offences continuing means that if a condition under subsections 29(4) and 29A(3) is contravened after commencement day, the master of the vessel or installation will commit an offence.

The maximum penalty for each offence is two years imprisonment if the elements of a fault-based offence are established.

This permission has not been transitioned over to a Biosecurity Act as it is inconsistent with section 143 of the Biosecurity Act which allows goods to be unloaded from an aircraft or vessel unless a direction not to unload is provided

Item 11                       Directions relating to movement of animals on aircraft or vessels

This item provides that a direction given by the Director of Quarantine under

paragraph 29B(1)(a) of the Quarantine Act prior to commencement day, in relation to confinement, control or isolation of an animal has effect, on and after commencement day as a direction being given by a biosecurity officer under subparagraph 128(1)(a)(iii) of the Biosecurity Act.

A direction to confine, isolate or control an animal under paragraph 29B(1) would only be given if it poses an unacceptable level of biosecurity risk . It is appropriate that this direction continue as the animal will still pose a biosecurity risk on and after commencement day.

If the direction was not in force immediately before commencement day, it will not have effect under the Biosecurity Act.

This ensures that on commencement day a biosecurity officer does not need to reissue the direction again reducing the administrative burden on the department and ensuring that the biosecurity risks associated with the animal are appropriately managed.

Item 12                       Goods on board the aircraft or vessel that was in quarantine

This item provides that where goods are:

·          subject to biosecurity control under item 3, and

·          on board an aircraft or vessel that was in quarantine prior to commencement day

a biosecurity officer is taken to have given the person in charge of the aircraft or vessel a direction under subsection 143(3) of the Biosecurity Act at the beginning of the commencement day not to allow the goods to be unloaded from the aircraft or vessel.

This item continues the policy intent of section 44 of the Quarantine Act that goods not be unloaded from a vessel in quarantine.

This is appropriate as an aircraft or vessel (and any goods on board) that is in quarantine has been assessed as posing an unacceptable level of biosecurity risk. Under section 37 of the Quarantine Act a vessel which has been ordered into quarantine requires to undertake biosecurity measures is deemed to be in quarantine.

This item also provides that person who receives or has in his or her possession goods that were unloaded from an aircraft or vessel in contravention of section 44 of the Quarantine Act is liable to a civil penalty. It does this by modifying section 149 of the Biosecurity Act which creates a civil penalty provision for the same conduct. The maximum civil penalty for a contravention is 120 penalty units.

This means that a person will be liable to a civil penalty under section 149 of the Biosecurity Act for receiving or possessing goods unloaded from a vessel that was in quarantine under the Quarantine Act. This is appropriate as the goods pose an unacceptable level of biosecurity risk which needs to be managed.

Item 13                       Directions not to unload certain goods that were subject to quarantine

This item provides that a direction given by a quarantine officer prior to commencement day under subsection 44A(4) of the Quarantine Act not to unload goods from a vessel has effect on and after commencement day as a direction being given by a biosecurity officer under subsection 144(3) of the Biosecurity Act.

A direction to not unload goods under subsection 44A(4) would only be given if the goods have been assessed as posing an unacceptable level of biosecurity risk . It is appropriate that this direction continue as the goods will still pose a biosecurity risk on and after commencement day.

If the direction was not in force immediately before commencement day, it will not have effect under the Biosecurity Act.

This ensures that on commencement day a biosecurity officer does not need to reissue the direction again reducing the administrative burden on the department and ensuring that the biosecurity risks associated with the goods are appropriately managed.

Item 14                       Permission to do relevant act in relation to goods that were subject to quarantine

This item provides that a permission to move, interfere or deal with goods under

subsections 44B(6) or (7) of the Quarantine Act has effect, on and after commencement day as a permission being granted to the person under section 557 of the Biosecurity Act to move, interfere or deal with the goods.

A permission to move, interfere or deal with goods under subsections 44B(6) or (7) would only be given where it is necessary to move the goods and where the biosecurity risks can be appropriately managed. For example, a stevedore may be given permission to move these goods around a first point of entry.

This ensures that on commencement day a person is not delayed or subject to additional costs by having to seek permission again under the Biosecurity Act and allows goods to move smoothly across the border.

A person who has permission under section 557 will not commit an offence or be liable to a civil penalty under sections 130 and 141 of the Biosecurity Act for moving goods to which a biosecurity officer has affixed a notice under sections 129 or 139 of that Act.

Item 15                       Directions about movements of goods

This item provides that in limited circumstances a number of directions given under the Quarantine Act before commencement day relating to the movement of goods have effect, on and after commencement day as if it were a direction given under paragraph 138(1)(a) of the Biosecurity Act to carry out a biosecurity measure. Section 138 of the Biosecurity Act allows for biosecurity measures relating to the movement of goods to be performed under section 132 of the Biosecurity Act.

If the direction was not in force immediately before commencement day, it will not have effect under the Biosecurity Act.

This ensures that on commencement day a biosecurity officer does not need to reissue the direction again, reducing the administrative burden on the department and business, and ensuring that the goods are taken to an appropriate place where the biosecurity risks can be assessed or managed.

The table in this item outlines which directions in relation to specific types of goods will be transitioned to the Biosecurity Act. The item provides that the movement direction in force immediately before commencement day will only transition to the Biosecurity Act where it:

·          was given to a person under a provision of the Quarantine Act described in column 1 of an item of the following table,

·          was of a kind described in column 2 of the item, and

·          related to goods that are of a kind described in column 3 of the item.

Item 1 of the table provides that directions given under paragraph 48(1)(b) and

subsections 48(3) and (6) of the Quarantine Act that:

·          goods be taken to a place and detained there in a specified manner and for a specified period

·          relates to the extent to which goods may be moved, dealt with or interfered with, or

·          goods be detained at a vessel, installation, quarantine station or other place, in a specified manner and for a specified period

will only transition in relation to goods that have been ordered into quarantine under the Quarantine Act, and had not been released from quarantine prior to commencement day.

Item 2 of the table provides that directions given under subsection 52(5A) of the

Quarantine Act relating to the movement of the animal will only transition where the animal was under quarantine surveillance under subsection 52(3) of the Quarantine Act.

Item 3 of the table provides that a movement direction given in a notice under

subsection 56(1) of the Quarantine Act will only transition where the goods were in quarantine immediately before commencement day in accordance with the notice.

Item 4 of the table provides that directions given under paragraphs 70D(2)(a), (b) or (c) of the Quarantine Act relating to the movement of goods will only transition if the goods were subject to quarantine.

This table provides that only movement directions made in relation to goods which are subject to quarantine or which have been assessed as posing an unacceptable level of biosecurity risk will transition to a direction under the Biosecurity Act. This ensures that there are no delays or additional costs on individuals and businesses through the smooth movement of goods—which have been assessed as not posing an unacceptable level of biosecurity risk—through the border.

Item 16                       Directions to treat goods

This item provides that in limited circumstances a number of directions given under the Quarantine Act before commencement day relating to the treatment of goods has effect, on and after commencement day as if it were a direction given under paragraph 138(1)(a) of the Biosecurity Act to carry out a biosecurity measure. Section 138 of the Biosecurity Act allows for biosecurity measures relating to the treatment of goods to be performed under section 133 of the Biosecurity Act.

If the direction was not in force immediately before commencement day, it will not have effect under the Biosecurity Act.

This item ensures that on commencement day a biosecurity officer does not need to reissue the direction again, reducing the administrative burden on the department and business, and ensuring that the goods are treated to appropriately manage the biosecurity risks.

It also ensures there are no delays or additional costs on individuals and businesses through the smooth movement of goods—which have been treated and no longer pose an unacceptable level of biosecurity risk—through the border.

The table in this item outlines which directions in relation to specific types of goods will be transitioned to the Biosecurity Act. The item provides that the treatment direction in force immediately before commencement day will only transition to the Biosecurity Act where it:

·          was given to a person under a provision of the Quarantine Act described in column 1 of an item of the following table,

·          was of a kind described in column 2 of the item, and

·          related to goods that are of a kind described in column 3 of the item.

Item 1 of the table provides that direction given under paragraph 48(2)(b) of the Quarantine Act to cause a good to be treated in a specified manner will only transition in relation to goods that have been ordered into quarantine under the Quarantine Act, and had not been released from quarantine prior to commencement day.

Item 2 of the table provides that a direction given under subsection 48AB(1) of the Quarantine Act to treat goods in the stated manner will only transition if given in relation to animals, plants or other goods.

Item 3 of the table provides that a direction given under subsection 48AC(1) of the Quarantine Act to treat in a specified manner will only transition if given in relation to plants, part of a plant, soil or seed.

Item 4 of the table provides that a direction given under subsection 48AD(1) of the Quarantine Act to treat will only transition if given in relation to a package, packaging material or other waste material.

Item 5 of the table provides that a direction given under subsection 52(5A) of the

Quarantine Act requiring an animal to be treated in a specific manner will only transition where the animal was under quarantine surveillance under subsection 52(3) of the Quarantine Act.

Item 6 of the table provides that a direction given in a notice issued under

subsection 56(1) of the Quarantine Act to cause goods to be treated in a specified manner will only transition where the goods were in quarantine immediately before commencement day in accordance with the notice.

Item 7 of the table provides that a direction given under subsection 74D(1) of the Quarantine Act to take measures in respect of goods will only transition where the goods are infected with a quarantinable pest or are subject to quarantine and are being or will be carried on a vessel, aircraft or vehicle.

Item 17                       Directions to destroy goods

This item provides that in limited circumstances a number of directions given under the Quarantine Act before commencement day relating to the destruction of goods has effect, on and after commencement day, as if it were a direction given under paragraph 138(1)(a) of the Biosecurity Act to carry out a biosecurity measure.

Section 138 of the Biosecurity Act allows for biosecurity measures relating to the destruction of goods to be performed under section 136 of the Biosecurity Act.

If the direction was not in force immediately before commencement day, it will not have effect under the Biosecurity Act.

This item ensures that on commencement day a biosecurity officer does not need to reissue the direction again reducing the administrative burden on the department and ensuring that the goods are destroyed to appropriately manage the biosecurity risks.

The table in this item outlines which directions in relation to specific types of goods will be transitioned to the Biosecurity Act. The item provides that the destruction direction in force immediately before commencement day will only transition to the Biosecurity Act where it:

·          was given to a person under a provision of the Quarantine Act described in column 1 of an item of the following table,

·          was of a kind described in column 2 of the item, and

·          related to goods that are of a kind described in column 3 of the item.

Item 1 of the table provides that a direction given under paragraph 29B(1)(c) of the Quarantine Act relating to the disposal of the animal will only transition where the animal was killed, or died, after being brought on board a vessel or installation.

Item 2 of the table provides that a direction given under subsection 48AD(1) of the Quarantine Act relating to destruction of goods will only transition if given in relation to a package, packaging material or other waste material.

Item 18                       Directions in relation to goods ordered into quarantine

This item provides that a direction given by a quarantine officer under paragraph 48(1)(a) of the Quarantine Act before commencement day to detain goods on board a vessel or installation, or at premises, in a specified manner and for a specified period has effect, on and after the commencement day, as if it were given under subsection 124(1) of the

Biosecurity Act.

The item also provides that a direction given under paragraph 48(1)(c) of the Quarantine Act before commencement day to export the goods has effect, on and after the commencement day, as if it were a direction given to the person under paragraph 135(2)(b) of the Biosecurity Act.

This item only applies

·          to directions which were in force immediately before commencement day

·          in relation to goods that have been ordered into quarantine under the Quarantine Act and had not been released from quarantine prior to commencement day.

It ensures that on commencement day a biosecurity officer does not need to reissue the direction again reducing the administrative burden on the department and ensuring that the goods are destroyed to appropriately manage the biosecurity risks.

As the item only applies to goods that have been ordered into quarantine, it also ensures that there are no delays or additional costs on individuals and businesses as goods—which have been assessed as not posing an unacceptable level of biosecurity risk—will move smoothly through the border.

If the direction was not in force immediately before commencement day, it will not have effect under the Biosecurity Act.

 

Item 19                       Goods that were required to be destroyed

This item outlines how a requirement under subsection 48AA(2) of the Quarantine Act that goods be destroyed transitions to a requirement for destruction under Biosecurity Act. This item only applies to goods subject to biosecurity control under item 3. It transitions Quarantine Act requirements for destruction of high-valued goods to similar requirements under the Biosecurity Act.

If the Agriculture Minister’s approval was not required to destroy goods under subsection 48AA(3) of the Quarantine Act prior to commencement day, then the goods are not deemed high-valued goods for the purpose of the Biosecurity Act the goods can be destroyed under subsection 136(1) of that Act.

If the Agriculture Minister’s approval was required and was given to destroy goods under subsection 48AA(3) of the Quarantine Act prior to commencement day, then the goods deemed to be high-valued goods for the purpose of the Biosecurity Act and the additional approval requirements in section subsection 136(2) are taken to be complied with.

In both these circumstances it is taken that a biosecurity officer has required the goods to be destroyed under subsection 136(1) of the Biosecurity Act.

If the Agriculture Minister’s approval was required and was not given to destroy goods under subsection 48AA(3) of the Quarantine Act prior to commencement day, then the

Biosecurity Act applies in relation to the goods as if they were high-value goods. 

The biosecurity officer would need to seek the approval of the Director of Biosecurity before requiring the goods to be destroyed in compliance with subsection 136(2) of the Biosecurity Act. In this circumstance the biosecurity officer will have to re-require the goods to be destroyed under section 136(1) of the Biosecurity Act.

This item ensures that the approval processes for the destruction of high-value goods between the Quarantine Act and the Biosecurity Act are aligned and where approval requirements under the Quarantine Act have been met, the equivalent approval under the Biosecurity Act does not need to be sought.

This will reduce administrative burden on the department as the relevant approvals will not have to be reissued.

The requirement that the Minister or the Director approve the destruction of high-value goods reflects the monetary outlay that an owner may have invested in the good.

Item 20                       Treatment required that might damage goods

This item outlines how a requirement under the Quarantine Act for a good to be treated, where the treatment may cause damage to the goods, transitions to similar requirements under the Biosecurity Act. This item only applies where the goods have not been treated as required before commencement day.

If the requirement was not in force immediately before commencement day, it will not have effect under the Biosecurity Act.

If the owner of the goods, or their agent, had agreed to the treatment before the commencement day, then the Biosecurity Act applies in relation to the goods as if the treatment of the goods had been required by a biosecurity officer under subsection 133(1) of that Act.

In this circumstance a biosecurity officer does not have to seek approval from the Director of Biosecurity under subsection 133(2) or meet the notification requirements in section 134. This is appropriate as agent or the owner of the goods has consented to the treatment already and the process should not be duplicated.

If the owner of the goods, or their agent had been given a notice under subsection 48AA(4) of the Quarantine Act to treat the goods and the request had not been agreed to before commencement day the Biosecurity Act applies as if:

·          the treatment have been required by a biosecurity under subsection 133(1) of that Act, and

·          a notice informing the person in charge that treatment is likely to cause damage is deemed to be issued under section 133(2) of that Act.

Goods forfeited to the Commonwealth under subsection 48AA(5) of the Quarantine Act are dealt with under item 24 of this Schedule.

If the owner of goods or their agent had not been given notice under subsection 48AA(4) then the Biosecurity Act applies as if the treatment had been required under subsection 133(1) of that Act. In this circumstance a biosecurity officer will need to meet the notification and approval requirements in section 134 of the Biosecurity Act in order to treat the goods.

This item ensures that the approval processes for the treatment that may damage goods between the Quarantine Act and the Biosecurity Act are aligned and where approval requirements under the Quarantine Act have been met, the equivalent approval under the Biosecurity Act does not need to be sought.

This will reduce administrative burden on the department as it will not have to seek the relevant approvals if they were already issued, ensuring there are no delays or additional costs on individuals and business through duplicating the approval process.

The notification requirement under section 134 of the Biosecurity Act gives a person in charge of goods a reasonable opportunity to address the biosecurity risks associated with the goods―with appropriate consequences―if the biosecurity risks have not be managed.

Item 21                       Direction to treat goods exposed to goods that were subject to quarantine

This item provides that where a direction given by a quarantine officer under

subsection 48AB(1) of the Quarantine Act prior to commencement day, then the

Biosecurity Act applies as if an exposed goods order were in force in relation to the goods.

An exposed good order extends some of the powers in Chapter 3 of the Biosecurity Act to manage the biosecurity risks with the exposed goods and may be issued under section 160 of that Act, where a biosecurity officer suspects on reasonable grounds that the biosecurity risks associated with exposed goods is unacceptable.

A direction under subsection 48AB(1) may be given in relation to exposed goods which are not subject quarantine. In this circumstance the goods would not become subject to biosecurity control under item 3 of this Schedule.

This item will make those goods not picked up by item 3—subject to an exposed goods order —enabling biosecurity officers to use the biosecurity risk assessment and management powers in Divisions 4 and 5 of Part 1 of Chapter 3 of the Biosecurity Act.

An exposed goods order is deemed to be in force in relation to these goods consistent with the management of exposed goods under the Biosecurity Act.

The direction to treat the good under subsection 48AB(1) of the Quarantine Act will be transitioning to a direction to treat under the Biosecurity Act under item 16 of this Schedule.

Item 22                       Direction to treat plant etc

This item provides that a direction given by a quarantine officer under subsection 48AC(1) of the Quarantine Act, in force immediately before commencement day requiring a plant, a seed or soil to be treated in a specified manner has the effect of the plant, seed or soil being taken to be subject to biosecurity control for the purposes of the Biosecurity Act.

A direction under subsection 48AC(1) may be given in relation to a plant, seed or soil that is not subject quarantine. In this circumstance the plant, seed and soil would not become subject to biosecurity control under item 3 of this Schedule.

This item will make those plants, seeds and soil not picked up by item 3—subject to biosecurity control—enabling biosecurity officers to use the biosecurity risk assessment and management powers in Divisions 4 and 5 of Part 1 of Chapter 3 of the Biosecurity Act.

The direction to treat the good under subsection 48AC(1) of the Quarantine Act will be transitioning to a direction to treat under the Biosecurity Act under item 16 of this Schedule.

Item 23                       Direction to treat or destroy package, packing material or other waste material

This item provides that a direction given under subsection 48AD(1) of the Quarantine Act, in force immediately before commencement day to treat, destroy or otherwise dispose of a package, packing material or other waste material has the effect of the package, packing material or other waste material being taken to be subject to biosecurity control for the purposes of the

Biosecurity Act.

A direction under subsection 48AD(1) may be given in relation to a package, packing material or other waste material that is not subject quarantine. In this circumstance the package, packing material or other waste material would not become subject to biosecurity control under item 3 of this Schedule.

This item will make the packages, packing material and other waste not picked up by

item 3 subject to biosecurity control enabling biosecurity officers to use the biosecurity risk assessment and management powers in Divisions 4 and 5 of Part 1 of Chapter 3 of the

Biosecurity Act.

The direction to treat and destroy (including disposal) under section 48AD(1) of the

Quarantine Act has been transitioned to a direction under the Biosecurity Act under items 16 and 17 of this Schedule.

Item 24                       Abandoned or forfeited goods

This item provides that goods which had been forfeited to the Commonwealth under subsections 48AA(5), 48A(1), (2) and (3) of the Quarantine Act and had not been disposed of prior to commencement day are taken to have been forfeited to the Commonwealth, at the beginning of the commencement day, under subsection 627(2) of the Biosecurity Act.

The Director of Biosecurity may take possession of the goods for the purposes of causing the goods to be sold, destroyed, or otherwise disposed of under section 627 of the

Biosecurity Act.

If the owner of goods had been given a notice under paragraph 48A(2)(a) of the

Quarantine Act, they will have 30 days from receiving the notice to collect their goods. After this 30 day period the goods will be forfeited to the Commonwealth under subsection 627(2) of the Biosecurity Act.

This provides the owner of the goods an appropriate amount of time to collect the goods and will reduce administrative burden on the department as it will not have to reissue the relevant notice under subparagraph 627(2)(a)(i) of the Biosecurity Act.

Item 25                       Goods ordered into Quarantine by electronic notice

This item provides that a person must continue to comply, on and after commencement day, with the requirements in a notice issued under subsection 56(1) of the Quarantine Act relating to how they may deal with or interfere with goods

The obligation to comply with the requirements in the notice will only continue where the notice ordered the goods into quarantine. This is appropriate as these goods would have been assessed as posing a biosecurity risk. This ensures that there are no delays or additional costs on individuals and businesses as they will be able to move or deal with goods which have been assessed as not posing a biosecurity risk.

It is important that this requirement relating to dealing with or interfering with the goods continues in order to ensure that biosecurity risks are appropriately managed. A notice issued under subsection 56(1) may restrict access to a good containing a disease or pest which poses an unacceptable level of biosecurity risk, stopping an individual from dealing with or interfering with that good. If the person was to deal with or interfere with the good they may spread the disease or pest.

The offence in subsection 56(5) of the Quarantine Act will continue to apply after commencement day in relation to the requirements in the notice to the extent that the notice set out the extent (if any) to which the person may deal with or interfere with the goods, despite the repeal of the Quarantine Act. As the Biosecurity Act will be in effect, the item modifies paragraph 56(5)(c) to refer to biosecurity risk, instead of quarantine risk.

If a requirement, relating t o the extent (if any) a person may deal with or interfere with the goods, is contravened the person may commit an offence. The maximum penalty for the offence is two years imprisonment if the elements of a fault-based offence are established.

This notice requirement has not been transitioned over to a Biosecurity Act provision as there is no order into quarantine equivalent in that Act.

Item 26                       Offence of possessing or conveying goods imported in contravention of the Quarantine Act

This item provides that despite the repeal of the Quarantine Act the offence in subsection 70C(3) of the Quarantine Act continues. After commencement day, a person who has in their possession goods imported, introduced or otherwise brought into Australia in contravention of the Quarantine Act may commit an offence. The maximum penalty for the offence is two years imprisonment if the elements of a fault-based offence are established.

The continuation of this offence is appropriate due to the equivalent Biosecurity Act provisions only applying to goods imported or brought into Australia after commencement day.

Item 27                       Directions to persons in quarantine stations to undergo decontamination

This item provides that a direction given by a quarantine officer under subsections 70E(1) and (2) of the Quarantine Act before commencement day to undergo decontamination has effect, on and after the commencement day, as if it were given under paragraph 559(4)(a) of the Biosecurity Act.

If the direction was not in force immediately before commencement day, it will not have effect under the Biosecurity Act.

This item ensures that on and after commencement day a biosecurity officer does not need to reissue the direction again, reducing the administrative burden on the department and ensuring that the person undergoes decontamination to appropriately manage any biosecurity risks.

Item 28                       Notices affixed to goods by quarantine officer

This item provides that a notice affixed to goods by a quarantine officer under paragraph 74(1)(b) of the Quarantine Act which has not been removed before commencement day has effect on commencement day as if the notice were a biosecurity control notice affixed to the goods under subsection 129(1) of the Biosecurity Act. It also modifies the notice to update references from the Quarantine Act and quarantine risk to refer to Biosecurity Act and biosecurity risk.

A biosecurity control notice issued under section 129 of the Biosecurity Act may be affixed to goods or given to a person in charge of the goods, providing notice that the goods are subject to biosecurity control and that their movements are restricted.

This item ensures that on and after commencement day a biosecurity officer does not need to reissue the notice, reducing the administrative burden on the department. It is important that this notice transitions to the Biosecurity Act, as the goods present a biosecurity risk and a biosecurity officer may not be able to remove and replace the notice with one issued under subsection 129(1) of the Biosecurity Act on commencement day.

Division 2—Import permits

Item 29                       Import permits in force before commencement day

This item provides that an import permit granted by the Director of Quarantine that was in force immediately before commencement day has effect as if it were a permit granted to the person by the Director of Biosecurity under section 179 of the Biosecurity Act, authorising, the person, or a person acting on behalf of the person, to import the goods into Australian territory.

Any conditions on the Quarantine Act import permit will remain under the Biosecurity Act. This is appropriate as the conditions are necessary to reduce the biosecurity risk to an acceptable level.

The permit will have effect for the period for which it was originally granted, unless it is earlier varied, suspended or revoked under section 181 of the Biosecurity Act. This ensures that a person is not delayed or subject to additional costs by having to re-apply for a permit under the Biosecurity Act and that import permits do not need to be reissued, reducing the administrative burden on the department.

Item 30                       Applications for import permits not decided before commencement day

This item provides that where no decision has been made on an application for an import permit in accordance with regulations made under subparagraph 87(1)(ra)(i) the Quarantine Act before commencement day, the application has effect as if it were an application for a permit made under section 177 of the Biosecurity Act.

This item ensures that an application under the Quarantine Act is valid under the Biosecurity Act. The applicant for the permit will need to meet the requirements in section 179 of the Biosecurity Act and may need to provide additional personal information consistent with section 531 of that Act. The application may be rejected if the Director of Biosecurity considers the applicant or an associate is not a fit and proper person under section 530 of the Biosecurity Act.

Division 3—Prohibited Goods

Item 31                       Goods imported etc. in contravention of the Quarantine Act

This item outlines the circumstances where goods can be forfeited to the Commonwealth where they have been brought into Australian territory in contravention of the Quarantine Act.

This item applies to all animals, plants or other goods that, before the commencement day:

·          had been imported or introduced into, or brought into any port or other place in Australia

·          removed from a place to another place as described in paragraph 68(1)(b) of the Quarantine Act, or

·          had been moved, interfered with or dealt with

in contravention of the Quarantine Act.

If the animals, plants or other goods have not been seized under subsection 68(2) of the Quarantine Act and a notice has not yet been issued under subsection 68(3) of that Act, then section 628 of the Biosecurity Act applies, despite subsection 628(1) and the process in

section 628 of the Biosecurity Act will need to be followed.

If the animals, plants or other goods have not been seized under subsection 68(2) of the Quarantine Act and a notice has been issued under subsection 68(3) of that Act, then section 628 of the Biosecurity Act applies, despite subsection 628(1) and the person is taken to have been given a notice consistent with subsection 628(4). This means that this notification process does not need to be repeated. This will allow biosecurity officers to take possession of the goods, subject to the notification and approval requirements in subsection 628(4) of the Biosecurity Act being met. This is appropriate before the goods are forfeited, as notification has not occurred under the Quarantine Act.

If the animals, plants or other goods had been forfeited to the Commonwealth under paragraphs 68(2)(a) or (9)(c) of the Quarantine Act before the commencement day but had not been dealt with under section 68 of that Act, a biosecurity officer can take possession (if they are not already in the possession of the Commonwealth) and cause it to be sold, destroyed, exported or disposed of under paragraph 628(5)(b) of the Biosecurity Act .

This item ensures that the approval processes for the forfeiting goods between the

Quarantine Act and the Biosecurity Act are aligned and where approval and notification requirements under the Quarantine Act have been met, the equivalent approval or notification under the Biosecurity Act does not need to be sought or met again.

This will reduce administrative burden on the department as it will not have to seek the relevant approvals or reissue the relevant notifications.

Part 3—Managing biosecurity risks: conveyances

This Part outlines the arrangements for transitioning the management of biosecurity risks associated with conveyances under the Quarantine Act to management under the Biosecurity Act.

Item 32                       Conveyances in Australian territory on commencement day

This item outlines the circumstances where conveyances being managed under the Quarantine Act are taken to be subject to biosecurity control, allowing biosecurity officers to exercise powers in relation to the conveyances to assess and manage any associated biosecurity risks under the Biosecurity Act. These powers are in Chapter 4 of the Biosecurity Act. 

Conveyances will become subject to biosecurity control on commencement day if

·          the conveyance had entered Australian territory before the commencement day during a flight or voyage that commenced outside Australian territory, or

·          the conveyance was subject to quarantine (under any provision of the Quarantine Act) immediately before commencement day.

If the conveyance had been had been ordered, or was taken to have been ordered, into quarantine under the Quarantine Act and had been released from quarantine and was not subject to quarantine immediately before commencement day the conveyance will not become subject to biosecurity control as it have been assessed as not posing a biosecurity risk.

If this provision is not triggered and the conveyance is not subject to biosecurity control, any biosecurity risks identified on and after commencement day can be managed using powers under Chapter 6 of the Biosecurity Act.

Item 33                       Application of Biosecurity Act to conveyances in Australian territory on commencement day

This item provides that section 191 of the Biosecurity Act will apply to conveyances that are subject to biosecurity control under item 32 of this Schedule. These conveyances will

·          remain subject to biosecurity control until they are released under Division 7 of Part 2 of Chapter 4 of the Biosecurity Act, and

·          become subject to biosecurity control on re-entering Australian territory if they are released from biosecurity control by leaving Australian territory on a voyage or flight between Australian ports or landing places.

This means that the systems and processes that are in place for the Biosecurity Act will be valid for release of conveyances under the transitional provisions.

Aircraft or vessels that enter Australian territory on or after the commencement day on a flight or voyage that commenced outside Australian territory will become subject to biosecurity control under section 191 of the Biosecurity Act.

A biosecurity officer can only give a direction under subsection 206(2) of the Biosecurity Act that a conveyance move outside Australian territory if the conveyance had originally entered Australian territory during a journey that commenced outside Australian territory.

This means that a domestic conveyance cannot be directed to leave Australian territory. As these conveyances have not entered Australian territory from another country, it is not appropriate for them to be given a direction to leave Australian territory.

Despite this, a biosecurity officer will be able to give domestic conveyances a movement direction under subsection 207(2) of that Act causing the conveyance to be moved to another place, except outside of Australian territory. This ensures that biosecurity officers can move a conveyance to a place where biosecurity measures can be carried out.

Item 34                       Permissions for aircraft or vessels to be brought to a place other than a landing place or first point of entry

This item provides that a permission issued under subsection 20AA(1) of the Quarantine Act, before the commencement day, for a vessel or aircraft to be brought to a place other than a first port of entry has effect, on and after commencement day as if it were a permission issued under:

·          subsection 239(2) of the Biosecurity Act if it is an aircraft, or

·          subsection 247(2) of the Biosecurity Act if it is a vessel.

If the permission given under the Quarantine Act was subject to any conditions the deemed permission under the Biosecurity Act is subject to those same conditions. This will ensure that any conditions imposed to manage biosecurity risks continue to apply.

If the permission was not in force immediately before commencement day, it will not have effect under the Biosecurity Act.

This ensures that on commencement day a person in charge or operator of the aircraft or vessel is not delayed or subject to additional costs by having to seek permission again under the Biosecurity Act. This is appropriate as the permission will only be given under subsection 20AA(1) if the biosecurity risks could be managed, the transition to the Biosecurity Act will not create any additional biosecurity risks.

The permission ceases to be in force two years from commencement day, if it does not cease earlier. At this point, it is appropriate that the biosecurity risks associated with arriving at a non-first point of entry are reassessed and that after the transitional period all biosecurity risks are managed under the Biosecurity Act.

After it ceases, the person in charge or operator of the vessel or aircraft may seek permission under subsections 239(1) and 247(1) of the Biosecurity Act to arrive at a port or landing place other than a first point of entry. 

Item 35                       Notification of outbreak of disease on aircraft or vessel

This item provides that a notification given to a quarantine office under paragraph 22(2)(a) of the Quarantine Act, before commencement day of a symptom, the break out of a disease or the existence of a pest, has effect, on and after commencement day as if the report was given in accordance with the reporting requirements in subsection 193(2) of the Biosecurity Act.

This means that a disease notification report under the Quarantine Act will be valid under the Biosecurity Act. This ensures that a person in charge or operator of the aircraft or vessel is not delayed or subject to additional costs by having to reissue the notification of disease again under the Biosecurity Act. This will also reduce the administrative burden on the department as it will not need to reassess the notification.

Item 36                       Requirement relating to movement of vessel

This item provides that a requirement given under section 25 of the Quarantine Act, in force immediately before the commencement day, that the master of a vessel to stop the vessel, has effect, on and after commencement day as if it were a movement direction given under subparagraph 202(1)(a)(ii) of the Biosecurity Act.

If the requirement was not in force immediately before commencement day, it will not have effect under the Biosecurity Act.

This item ensures that on and after commencement day a biosecurity officer does not need to reissue the direction to move the vessel and that the conveyance will be moved to a place where biosecurity risks can be assessed or managed.

Item 37                       Pre-arrival reports for vessels

Item 38                       Pre-arrival reports for aircraft

These items provide that an operator of a vessel or aircraft that has entered into Australian territory on flight or voyage that commenced outside Australian territory and has issued a pre-arrival report to a quarantine officer, prior to commencement day under:

·          subsection 27A(2) of the Quarantine Act if a vessel, or

·          subsection 27B(2) of the Quarantine Act if an aircraft

does not have to comply with the pre-arrival reporting requirements in section 193 of the Biosecurity Act.

 

If additional information has been provided, prior to commencement day, updating incomplete or incorrect information under subsections 27A(3) or 27B(3) of the Quarantine Act, the operator does not have to comply with the requirement to provide updated information under section 194 of the Biosecurity Act.

However, after commencement day if the operator of the vessel or aircraft becomes aware that information given prior to commencement day was incomplete or incorrect the operator must, as soon as practicable, give the additional or corrected information to a biosecurity officer under section 194 of the Biosecurity Act. Failure to do so may make the operator liable to penalties under the Biosecurity Act.

To ensure that the requirement to update information in section 194 of the Biosecurity applies to a report given under the Quarantine Act, this item also provides that a reference to a report in relation to the aircraft under section 193 included a reference to information in respect of the aircraft under subsection 27B(2) or (3) of the Quarantine Act.

This means that a pre-arrival report under the Quarantine Act will be valid under the

Biosecurity Act. This ensures a person in charge or operator of the aircraft or vessel is not delayed or subject to additional costs by having to reissue the pre-arrival report. This will also reduce the administrative burden on the department as it will not need to reassess the report.

The requirement on the operator to provide updated information will allow a more accurate assessment of biosecurity risks associated with conveyances that intend to enter Australian territory.

Item 39                       Directions about movements of conveyances

This item provides that a movement direction given to a person in charge of a conveyance under subsections 36(1), (2), 74D(1) or 78B(1) under the Quarantine Act, has effect on and after the commencement day as if it were a direction given to the person in charge of the conveyance under paragraph 206(2)(a) of the Biosecurity Act.

If the direction was not in force immediately before commencement day, it will not have effect under the Biosecurity Act.

This item only applies to conveyances which are subject to biosecurity control under item 32 of this Schedule as these directions are given for the purpose of managing biosecurity risks. It is not necessary for a biosecurity officer to give a movement direction to a conveyance that has an acceptable level of biosecurity risk.  

This item ensures that on and after commencement day a biosecurity officer does not need to reissue the direction again, reducing the administrative burden on the department and that the conveyance will be moved to a place where the biosecurity risks can be appropriately assessed or managed.

Item 40                       Movement of conveyance in quarantine

This item provides that a person in charge of a conveyance that was in quarantine immediately before commencement day is taken to have been given a direction under

subparagraph 202(1)(a)(iii) of the Biosecurity Act at the beginning of commencement day, not to move the conveyance.

If a person had been granted permission under subsection 40(2) of the Quarantine Act for the conveyance to be moved and the permission was in force immediately before commencement day, the permission has effect, on and after commencement day as if it were a permission given under section 557 of the Biosecurity Act.

This item continues the policy intent of section 40 of the Quarantine Act, which provided that a master of a vessel that is subject to quarantine is guilty of an offence if they allow the vessel to be moved—unless permission has been granted by a quarantine officer. It is appropriate that this policy continues so that biosecurity risks associated with the conveyances are able to managed are not spread by the conveyance moving.

This item also ensures that on and after commencement day the person in charge of the conveyance is not delayed or subject to additional costs by having to seek permission again under the Biosecurity Act, where that permission has already been granted. This will also reduce the administrative burden on the department as it will not need to reassess the request.

Item 41                       Directions to treat conveyances

This item provides that a direction given under:

·          subsection 48AB(3) or (3A) of the Quarantine Act to a person in charge of a conveyance, or

·          subsection 74D(1) of the Quarantine Act to a person in charge of a conveyance that is taken under item 32 of this Schedule to have become subject to biosecurity control at the beginning of the commencement day

relating to treatment of, or performance of work on, the conveyance, the direction has effect on and after the commencement day as if it were a direction given under paragraph 213(1)(a) of the Biosecurity Act to carry out a biosecurity measure required under subsection 208(1) of that Act.

If the direction was not in force immediately before commencement day, it will not have effect under the Biosecurity Act.

This item also provides that where the direction was given under subsections 48AB(3) or (3A) of the Quarantine Act, the Biosecurity Act applies in relation to the conveyance as if it were an exposed conveyance that is subject to biosecurity control.

 

A conveyance will become an exposed conveyance under section 192 of the Biosecurity Act where it interacts with another conveyance that poses a biosecurity risk. An exposed conveyance will come subject to biosecurity control as there is a chance that the biosecurity risk will be transferred between the two conveyances.

As an exposed conveyance, the conveyance cannot be given a direction to be moved to a place outside Australian territory. This is appropriate as directions given under subsection 48AB(3) can be given to vehicles such as cars or trucks which are not able to comply with such a direction.

This item ensures that on and after commencement day a biosecurity officer does not need to reissue the direction again, reducing the administrative burden on the department and ensuring that the biosecurity risks associated with the conveyance are appropriately managed.

Item 42                       Notices affixed to conveyances by quarantine officer

This item provides that a notice affixed to a conveyance by a quarantine officer under paragraph 74(1)(a) of the Quarantine Act (which has not been removed before commencement day) has effect on commencement day as if the notice were a biosecurity control notice affixed to the conveyance under subsection 203(1) of the Biosecurity Act. It also modifies the notice to update references from the Quarantine Act and quarantine risk to refer to Biosecurity Act and biosecurity risk.

A biosecurity control notice issued under section 203 of the Biosecurity Act may be affixed to conveyances or given to a person in charge of the conveyance, providing notice that the goods are subject to biosecurity control and that their movements are restricted.

This item ensures that on and after commencement day a biosecurity officer does not need to reissue notice, reducing the administrative burden on the department. It is important that this notice transitions to the Biosecurity Act, as the conveyance presents a biosecurity risk and a biosecurity officer may not be able to remove and replace the notice with one issued under subsection 203(1) of the Biosecurity Act prior or on commencement day.

Item 43                       Information about biosecurity requirements to be given to persons on incoming aircraft or vessels

This item provides that an incoming vessel or aircraft which has given, on and after commencement day, a notice of quarantine measures to all on board as required by subsection 74AA(1) of the Quarantine Act, is taken to have complied with the notice requirements in section 220 of the Biosecurity Act.

 

This item ensures that vessels and aircraft that entered Australian territory before commencement day are not disadvantaged by potential changes the information requirements under the Biosecurity Act from the Quarantine Act. It is likely that the operator may not have access to updated information or material prior to commencement day.

Item 44                       Direction to treat conveyance in insanitary condition etc.

This item provides that a person must comply, on and after commencement day, with a direction given by a quarantine officer under subsection 78A(2) of the Quarantine Act requiring a specific process to be carried out in respect of the conveyance.

 

The offence in subsection 78A(4) of the Quarantine Act will continue to apply after commencement day in relation to the direction, despite the repeal of the Quarantine Act. A person who fails to comply with the direction may commit an offence. The maximum penalty for contravening a direction is two years imprisonment if the elements of a fault-based offence are established.

It is important that this direction under Quarantine Act continues as they may relate to the assessment or management of biosecurity risks in relation to the conveyance. For example, a direction given under subsection 78A(4) may require treatment of the vessel such as deratting or that samples of ballast water be taken, so that the biosecurity risks can be assessed. This direction has not been transitioned to a Biosecurity Act provision as there is no equivalent provision in that Act covering all the subject matters listed in paragraph 78(A)(3)(a).

After commencement day subject matter specific powers would be used to manage biosecurity risks. For example, a direction not to discharge ballast water would be given under section 302 of the Biosecurity Act.

If the direction was not in force immediately before commencement day, it will not have effect under the Biosecurity Act.

Item 45                       Moving an insanitary vessel or things removed from it

This item provides that a person must comply, on and after commencement day, with a requirement given by a quarantine officer under paragraphs 78C(1)(c) or (d) of the Quarantine Act, that was in force immediately before commencement day, requiring the vessel or the goods to be moved to another place.

If permission was given under paragraph 78C(2)(b) of the Quarantine Act which was in force immediately before the commencement day to allow the vessel or cargo to be moved, it continues to have effect after commencement day, despite the repeal of the Quarantine Act.

The offence and exception in subsections 79(2) and (2A) of the Quarantine Act will continue to apply after commencement day in relation to any requirements. This means that if a person moves the vessel or goods from the specified place they will commit an offence. The maximum penalty for this offence is two years imprisonment if the elements of a fault-based offence are established. The offence provision will not apply if a person has permission under paragraph 78C(2)(b) of the Quarantine Act.

It is important that the requirement that the goods or vessel remain in the specified place continues as it allows for the management of biosecurity risks and stops the spread of any risks through the movement of the vessel or goods.

This requirement has not been transitioned over to a Biosecurity Act provision as there is no equivalent provision in that Act. After commencement day Chapter 3 powers would be used to manage biosecurity risk associated with goods, while Chapter 4 powers would be used for conveyances.

 

 

 

Part 4—Managing biosecurity risks: monitoring, control and response

Item 46                       Power to carry out vector monitoring and control activities with consent

This item provides that section 55E of the Quarantine Act will continue to apply for 6 months from commencement day in relation to private property in which the owner or person in control has:

·          consented (prior to commencement day) to a quarantine officer (human quarantine) conducting vector monitoring and control activities, or

·          given consent not more that 90 days after commencement day for a biosecurity officer to conduct vector monitoring and control activities.

Section 55E will only continue in relation to properties that are not in a biosecurity monitoring zone under the Biosecurity Act.

For the transitional period, the reference in section 55E to a “quarantine office (human quarantine)” means a human biosecurity officer.

This item ensures that vector monitoring and control activities can continue where necessary, providing an appropriate amount of time to determine a biosecurity monitoring zone. Vector monitoring and control activities will only be able to be conducted with the consent of the owner or person in control. If the consent is revoked, any biosecurity risks can be monitored using powers under Chapter 6 of the Biosecurity Act.

Part 5—Co-regulatory approvals and compliance agreements

This Part outlines the arrangements for transitioning co-regulatory approvals and compliance agreements under the Quarantine Act to approved arrangements under the Biosecurity Act.

A co-regulatory approval is an approval under section 46A of the Quarantine Act of

Quarantine Approved Premises (QAPs) as places where quarantine activities may be carried out on a wide range of goods. For example, premises may be approved as a QAP where the fumigation of goods, containers and packaging is undertaken.

A compliance agreement is a legally binding agreement made under section 66B of the

Quarantine Act, between the Department of Agriculture and an industry party which allowing the industry party to perform quarantine activities in an agreed manner. For example, a compliance agreement may allow accredited fumigators to perform fumigation treatment of goods under direction from the department.

The Biosecurity Act replaces the co-regulatory approval scheme and compliance agreements in the Quarantine Act with a broader and simpler model for approved arrangements. An approved arrangement gives members of industry the opportunity to voluntarily enter in an agreement to manage biosecurity risks associated with their operations in the most efficient way.

The scope of arrangements that can be by an approved arrangement will be expanded from those under the Quarantine Act.

 

 

 

Division 1—Co-Regulatory approvals

Item 47                       Co-regulatory approvals in force before commencement day

This item provides that an approval in force under section 46A of the Quarantine Act immediately before commencement day has effect, on or after the commencement day as if it were an approval by the Director of Biosecurity under section 406 of the Biosecurity Act.

A quarantine approved premises under the Quarantine Act is transitioned to an approved arrangement under the Biosecurity Act. The transitional approved arrangements will continue approvals for the premises and activities that were permitted under the previous approval granted under the Quarantine Act.

This ensures that quarantine activities can be carried out by industry on commencement day, resulting in no additional delays or costs as goods will be able to move smoothly through the border. It will also reduce costs on industry as they do not need to re-apply for approval under the Biosecurity Act. Applications for re-approval as an approved arrangement will not need to be assessed, reducing the administrative burden on the department. If the approval under the Quarantine Act was subject to any conditions the approval deemed given under the Biosecurity Act is subject to those same conditions. For the purposes of the Biosecurity Act, the holder of the Quarantine Act approval is taken to be a biosecurity industry participant under section 14 of the Biosecurity Act.

The transitional approved arrangement ceases to be in force at the time (cessation time—see

item 1 of this Schedule) when the relevant previous Quarantine Act approval would have ceased to be in force unless the arrangement has been renewed under subitem 48 of this Schedule or revoked under Part 5 of Chapter 7 of the Biosecurity Act.

This item ensures that holders of an approval under section 46A of the Quarantine Act do not need to apply for an approved arrangement on commencement day, as their approval will become an approved arrangement under these transitional provisions.

At any point in time after commencement day, if the biosecurity industry participant wants to carry out a broader range of biosecurity activities, they can apply for an approved arrangement under section 405 of the Biosecurity Act which will have to be approved under the requirements of that Act.

Item 48                       Renewal of transitional approved arrangement

This item outlines the process for renewing a transitional approved arrangement as it nears its cessation time or after it ceases to be in force. A biosecurity industry participant will be able to apply, in writing, to the Director of Biosecurity for renewal of the arrangement.

The application must be made within three months of the cessation time for the transitional approved arrangement. After the cessation period, the application for extension can only be made with the consent of the Director.

Consistent with an application or renewal of an approved arrangement under the Biosecurity Act an application fee may be required under section 592 of that Act (see item 58 of this Schedule).

 

In considering the application the Director must consider whether the applicant is a fit and proper person under section 530 of the Biosecurity Act and whether the level of biosecurity risk associated with the operation of the arrangement is acceptable. This is consistent with the approval requirements for approved arrangement under paragraphs 406(2)(b) and (c) of the Biosecurity Act.

The renewal of the transitional approved arrangement may be subject to any conditions that the Director of Biosecurity considers appropriate. The conditions that are put in place will depend upon the nature and level of biosecurity risks associated with the approved arrangement and what measures are required to manage them to an acceptable level.

Consistent with the transition of a co-regulatory approval to a transitional approved arrangement, the application for extension will not have to meet the requirements under for proposed arrangements under the Biosecurity Act. This is appropriate as these requirements were not in place when the original application for a co-regulatory arrangement was made.

The transitional approved arrangements can only be renewed for a period of up to 18 months after cessation time of the arrangement or up to three years after cessation time of the arrangement if the Director is satisfied that it is appropriate to do so. This additional time is provided to manage the number of new approvals of approved arrangements under the Biosecurity Act once the transitional approved arrangements expire, reducing the administrative burden on the department.

The renewed transitional approved arrangement commences immediately after cessation time for the arrangement. This means that if the extension is approved, the transitional approved arrangement will continue after it expires.

The transitional approved arrangement will only be able to be renewed once, after this the biosecurity industry participants will have to apply and meet all the requirements under

section 406 of the Biosecurity Act. This provides an adequate amount of time for biosecurity participants to update any systems or process to meet the requirements under the Biosecurity Act.

The Director must notify an applicant of whether the application is approved or not. If the application is approved the notice must include any conditions on and the period of approval. If the application is not approved the notice must include the reasons for the decision.

The decision to not approve an application is a reviewable decision for the purposes of the Biosecurity Act. The applicant will be able to appeal the decision by seeking internal and merits review under sections 576 and 578 of the Biosecurity Act. This is consistent with an applicant’s rights with any new application for a proposed arrangement under the Biosecurity Act.

Item 49                       Co-regulatory approvals suspended or revoked before commencement day

If an approval under section 46A of the Quarantine Act has been suspended before commencement day or a notice of suspension or revocation has been given under

subsection 46A(10) of that Act but the suspension or revocation had not taken effect before that day, the approval is taken have been revoked before commencement day.

This means that the approval under section 46A of the Quarantine Act will not become a transitional approved arrangement under item 47 of this Schedule. This is appropriate as the approval would not have been in effect prior to commencement day.

 

A notice of suspension or revocation of an approval under section 46A(10) of the

Quarantine Act will only be issued if the criteria in subsection 46A(9) is met. For example, where the approval holder has committed an offence under the Quarantine Act or they have not been able to manage quarantine risks.

While the approval will not automatically transition to a transitional approved arrangement, the holder of the previous approval may apply for a new proposed arrangement under

section 405 of the Biosecurity Act.

Item 50                       Notices to take action if co-regulatory approval has expired or is suspended or revoked

This item provides that a person must comply with a notice given by the Director of Quarantine under subsection 46A(11) of the Quarantine Act to take action in respect of the place or goods within the specified period, despite the repeal of the Quarantine Act.

The offence in subsections 46A(12) of the Quarantine Act will continue to apply after commencement day in relation to the notices. If the notice is not complied within the specified period a person may commit an offence. The maximum penalty for this offence is two years imprisonment if the elements of a fault-based offence are established.

Subsection 46A(11) of the Quarantine Act will continue to apply after commencement day as if that subsection referred to the Director of Biosecurity instead of the Director of Quarantine.

It is important that the notice is complied with as any actions taken will allow for the assessment and management of biosecurity risks and may potentially stop the spread of any biosecurity risks.

Item 51                       Applications for co-regulatory approvals made before commencement day

This item provides that an application to a Director of Quarantine for an approval under section 46A of the Quarantine Act that has not been approved prior to commencement day and for which the prescribed fee has been paid is taken on and after the commencement day, to be an application to the relevant Director under section 405 of the Biosecurity Act for approval of a proposed arrangement.

Consistent with the policy in the Biosecurity Act the relevant Director will be the Director of Biosecurity unless the application provides for biosecurity activities to be carried out in relation to human health risks only. If the arrangement relates only to human health risks, the Director of Human Biosecurity is the relevant Director.

The Biosecurity Act application will be taken to be for the same biosecurity activities covered by the section 46A Quarantine Act application submitted to the Director of Quarantine.

Section 435 of the Biosecurity Act will apply to this application requiring the relevant Director to make a decision within a timeframe prescribed in the regulations. If a decision is not made within this period, the application is taken to be refused by the relevant Director. 

The decision to not approve an application is a reviewable decision for the purposes of the Biosecurity Act. The applicant will be able to appeal the decision by seeking internal and merits review under sections 576 and 578 of the Biosecurity Act. This is consistent with an applicant’s rights with any new application for a proposed arrangement under the Biosecurity Act.

An applicant will not have to meet the requirements in paragraph 406(2)(a) of the Biosecurity Act for the proposed arrangement, consistent with transitional approved arrangements. This is appropriate as these requirements were not in place when the application was made. If the proposed arrangement is approved, the approved arrangement would be for the same premises and biosecurity activities listed in the application.

To ensure that the applicant does not have to remake an application under the Biosecurity Act, sections 434 and 531 of that Act—which set out the format of an application and the personal information required to be included in the application—will not apply.

Any fee required to be paid under the Biosecurity Act in relation to an application under

section 405 of that Act is taken to have been paid. This ensures that an applicant is not disadvantaged by increases (if any) in application fees from the Quarantine Act to the

Biosecurity Act.

The item also provides that for the purposes of section 410 of the Biosecurity Act, the relevant Director can refuse an application for a proposed arrangement from an associate of a person who has had an application for approval under section 46A of the Quarantine Act refused or has had the approval revoked. This means that the process and considerations for an application are consistent with new applications for proposed arrangements under the Biosecurity Act.

Division 2—Compliance Agreements

Item 52                       Compliance agreements in force before commencement day

This item provides that a compliance agreement between the Commonwealth and another party in force under section 66B of the Quarantine Act immediately before commencement day has effect, on or after the commencement day as if it were an approved arrangement approved by the Director of Biosecurity, under section 406 of the Biosecurity Act.

A compliance agreement under the Quarantine Act is transitioned to an approved arrangement under the Biosecurity Act. The transitional approved arrangements will continue approvals for activities and processes that were permitted under the previous agreement under the

Quarantine Act.

This ensures that quarantine activities can be carried out by industry on commencement day, resulting in no additional delays or costs as goods will be able to move smoothly through the border. It will also reduce costs on industry as they do not need to re-apply for approval under the Biosecurity Act. Applications for re-approval as an approved arrangement will not need to be assessed, reducing the administrative burden on the department.

Additionally, this item provides that a compliance agreement is taken to have been in force under section 66B of the Quarantine Act if a Director of Quarantine had decided to enter into the compliance agreement with another party before the commencement day, but the agreement had not been signed by the Commonwealth and the biosecurity industry participant before that day. This ensures that the other party does not have to reapply for a proposed arrangement under the Biosecurity Act once the agreement is formalised.

The transitional approved arrangement ceases to be in force 18 months after commencement day (cessation time—see item 1 of this Schedule) unless the period has been extended under

subitem 53 of this Schedule or the arrangement is revoked under Part 5 of Chapter 7 of the Biosecurity Act.

If a transitional approved arrangement is taken to exist because the Director of Quarantine had decided to enter into an agreement but had not signed the agreement before commencement day, the arrangement ceases to be in force after 90 days after commencement day, unless the Director signs the agreement. This ensures that the biosecurity industry participant is not carrying out biosecurity activities indefinitely outside a signed agreement.

At any point in time after commencement day, if the biosecurity industry participant wants to carry out a broader range of biosecurity activities they can apply for an approved arrangement under section 405 of the Biosecurity Act will have to be approved under the requirements of that Act.

Item 53                       Extension of transitional approved arrangements

This item outlines the process for extending a period of a transitional approved arrangement as it nears its cessation time or after it ceases to be in force. A biosecurity industry participant will be able to apply, in writing, to the Director of Biosecurity to extend the period of their arrangement.

The application must be made within three months of the cessation time for the transitional approved arrangement. After the cessation period, the application for extension can only be made with the consent of the Director.

Consistent with an application or renewal of an approved arrangement under the Biosecurity Act an application fee may be required under section 592 of that Act (see item 58 of this Schedule).

In considering the application the Director must consider whether the applicant is a fit and proper person under section 530 of the Biosecurity Act and whether the level of biosecurity risk associated with the operation of the arrangement is acceptable. This is consistent with the approval requirements for approved arrangement under paragraphs 406(2)(b) and (c) of the Biosecurity Act.

Consistent with the transition of a compliance agreement to a transitional approved arrangement, the application for extension will not have to meet the requirements under for proposed arrangements under the Biosecurity Act. This is appropriate as these requirements were not in place when the original application for compliance agreement was made.

The transitional approved arrangements can only be extended for a period of up to 18 months after cessation time of the arrangement. This additional time is provided to manage the number of new approvals of approved arrangements under the Biosecurity Act once the transitional approved arrangements expire, reducing the administrative burden on the department.

The extended transitional approved arrangement commences immediately after cessation time for the arrangement. This means that if the extension is approved, the transitional approved arrangement will continue after it expires.

The transitional approved arrangement will only be able to be extended once, after this the biosecurity industry participants will have to apply meet all the requirements under section 406 of the Biosecurity Act. This provides an adequate amount of time for biosecurity participants to update any systems or process (if required) to meet the requirements under the Biosecurity Act.

The Director must notify an applicant of whether the application is approved or not. If the application is approved the notice must include any conditions on and the period of approval. If the application is not approved the notice must include the reasons for the decision.

The decision to not approve an application is a reviewable decision for the purposes of the Biosecurity Act. The applicant will be able to appeal the decision by seeking internal and merits review under sections 676 and 678 of the Biosecurity Act. This is consistent with an applicant’s rights with any new application for a proposed arrangement under the Biosecurity Act.

Item 54                       Additional circumstances for variation, suspension or revocation of transitional approved arrangement

This item outlines the circumstances in which a compliance agreement taken to be a transitional approved arrangement under subitem 52(3) of this Schedule may be revoked, cancelled or suspending in line with the terms of the agreement under subsection 66B(3) of the Quarantine Act.

Consistent with the terms of the compliance agreement, the Director of Biosecurity may give the biosecurity industry participant a notice under subsection 413(1) of the Biosecurity Act varying the transitional approved arrangement. The Director can also choose to suspend all or part of the agreement or revoke the agreement.

The relevant Director can also use the powers conferred by Parts 4 and 5 of Chapter 7 of the Biosecurity Act to suspend or revoke the transitional approved arrangement. If the transitional approved arrangement relates only to human health risks, the Director of Human Biosecurity is the relevant Director and can suspend or revoke the arrangement under the Biosecurity Act.

These additional powers will allow the relevant Director to suspend or revoke a transitional approved arrangement where the biosecurity industry participant is no longer a fit and proper person under section 530 of the Biosecurity Act or where the level of biosecurity risk associated with the operation of the arrangement has changed.

 

This means that the process and considerations for suspension and revocation are consistent with approved arrangements under the Biosecurity Act.

The relevant Director may suspend a transitional approved arrangement under subsection 418(1), on any of the grounds referred to in any of paragraphs 418(1)(a) to (e) of that Act. The relevant Director will need to meet the notice requirements for suspension under subsection 418(2) and section 419 of the Biosecurity Act.

Similarly, the relevant Director may revoke a transitional approved arrangement under

subsection 423(1), on any of the grounds referred to in any of paragraphs 423(1)(a) to (e) of that Act. The relevant Director will need to meet the notice requirements for suspension under subsection 423(2) and section 424 of the Biosecurity Act.

A transitional approved arrangement will not be able to be suspended or revoked where the biosecurity industry participant is an associate of a person who has had an application for a proposed arrangement refused or an approved arrangement is revoked.

This is appropriate as there is no risk that the biosecurity industry participant would be an associate under section 410 of the Biosecurity Act as the transitional approved arrangement (and compliance agreement under the Quarantine Act) would have been in place prior to any approved arrangements under the Biosecurity Act.

The decision to suspend or revoke an approved arrangement under subsection 418(1) of the Biosecurity is a reviewable decision for the purposes of the Biosecurity Act. The biosecurity industry participant will be able to appeal the decision by seeking internal and merits review under sections 576 and 578 of the Biosecurity Act. This is consistent with an applicant’s rights with any new application for a proposed arrangement under the Biosecurity Act.

Consistent with sections 421and 426 of the Biosecurity Act, the biosecurity industry participant may be required to manage biosecurity risks in relation to goods, premises or things under their arrangement, where the transitional approved arrangement has been suspended or revoked. This is to ensure that biosecurity risks continue to be managed, until alternative arrangements can be put in place.

Item 55                       Compliance agreements suspended or cancelled before commencement day

If a compliance agreement under section 66B of the Quarantine Act has been suspended before commencement day or a notice of suspension or revocation has been given Act but the suspension or revocation had not taken effect before that day, the agreement is taken have been revoked before commencement day.

This means that the agreement under section 66B of the Quarantine Act will not become a transitional approved arrangement under item 52 of this Schedule. This is appropriate as the agreement would not have been in effect prior to commencement day.

While the agreement will not automatically transition to a transitional approved arrangement, the holder of the previous agreement may apply for a new proposed arrangement under section 405 of the Biosecurity Act.

This item also provides that a person must comply, on and after commencement day, with any directions given by a Director of Quarantine, in accordance with the compliance agreement in relation to matters covered by the compliance agreement under section 66B of the Quarantine Act.

The holder of the previous agreement must comply with these directions even if the compliance agreement had been revoked it is important that the party continues to comply with these directions as they allow for the assessment and management of biosecurity risks.

As the compliance agreement has not become a transitional approved arrangement, the direction powers in sections 421 and 426 of the Biosecurity Act for a biosecurity industry participant to manage biosecurity risks are not available.

The offence in subsection 66B(7) of the Quarantine Act will continue to apply after commencement day in relation to the requirements imposed on the other party by the directions, despite the repeal of the Quarantine Act. A person who contravenes a direction may commit an offence. The maximum penalty for contravening a direction is ten years imprisonment if the elements of a fault-based offence are established.

The maximum penalty for contravening a requirement is ten years imprisonment if the elements of a fault-based offence are established.

Item 56                       Applications to enter compliance agreement—no decision made before commencement day

This item provides that an application to a Director of Quarantine to enter into a compliance agreement under section 66B of the Quarantine Act that has not been approved prior to commencement day and for which the prescribed fee has been paid is taken on and after the commencement day, to be an application to the relevant Director under section 405 of the Biosecurity Act for approval of a proposed arrangement.

 

Consistent with the policy in the Biosecurity Act the relevant Director will be the Director of Biosecurity unless the application provides for biosecurity activities to be carried out in relation to human health risks only. If the arrangement relates only to human health risks, the Director of Human Biosecurity is the relevant Director.

The Biosecurity Act application will be taken to be for the same biosecurity activities covered by the previous section 66B of the Quarantine Act application.

Section 435 of the Biosecurity Act will apply to this application requiring the relevant Director to make a decision within a timeframe prescribed in the regulations. If a decision is not made within this period, the application is taken that the relevant Director has refused to approve the application. 

The decision to not approve an application is a reviewable decision for the purposes of the Biosecurity Act. The applicant will be able to appeal the decision by seeking internal and merits review under sections 576 and 578 of the Biosecurity Act. This is consistent with an applicant’s rights with any new application for a proposed arrangement under the Biosecurity Act.

An applicant will not have to meet the requirements in paragraph 406(2)(a) of the Biosecurity Act for the proposed arrangement, consistent with transitional approved arrangements. This is appropriate as these requirements were not in place when the application was made. If the proposed arrangement is approved, the approved arrangement would be for the same premises and biosecurity activities listed in the application.

To ensure that the applicant does not have to remake an application under the Biosecurity Act, sections 434 and 531 of that Act—which set out the format of an application and the personal information required to be included in the application, will not apply.

Any fee required to be paid under the Biosecurity Act in relation to an application under

section 405 of that Act is taken to have been paid. This ensures that an applicant is not disadvantaged by increases (if any) in application fees from the Quarantine Act to the Biosecurity Act.

The item also provides that for the purposes of section 410 of the Biosecurity Act, the relevant Director can refuse an application for a proposed arrangement from an associate of a person who has had an application for approval under section 46A of the Quarantine Act refused or has had the approval revoked. This means that the process and considerations for an application are consistent with new applications for proposed arrangements under the Biosecurity Act.

Division 3—General provisions relating to applications

Item 57                       Dealing with applications for renewal or extension

This item provides section 435 of the Biosecurity Act will apply to applications made under subitems 48 and 53 of this Schedule. Section 435 of the Biosecurity Act provides that the relevant Director must make a decision in relation to an application for extension of a transitional approved arrangement within a consideration period prescribed by the regulations for an application of that kind.

 

 

A reference to the relevant Director in section 435 of the Biosecurity Act is taken to be a reference to the Director of Biosecurity. The Director of Human Biosecurity will not have any role in approving transitional approved arrangements. This is appropriate as co-regulatory approvals and compliance agreements under the Quarantine Act were approved by the Director of Animal and Plant Quarantine (the Director of Biosecurity). 

If a decision is not made within this period, the Director of Biosecurity is taken to have refused the application.

The decision to not approve an application is a reviewable decision for the purposes of the Biosecurity Act. The applicant will be able to appeal the decision by seeking internal and merits review under sections 576 and 578 of the Biosecurity Act. This is consistent with an applicant’s rights with any new application for a proposed arrangement under the Biosecurity Act.

Item 58                       Fees relating to applications for renewal or extension of transitional approved arrangements

This item provides that section 592 of the Biosecurity Act applies, allowing the Commonwealth to charge fees for assessing applications under:

·          item 48 for renewal of a transitional approved arrangement, or

·          item 53 to extend the period during which a transitional approved arrangement remains in force.

This will allow the Commonwealth to recovery costs for assessing applications for extension consistent with the Australian Government Cost Recovery Guidelines.

Part 6—Emergencies

Item 59                       Directions to manage epidemic

This item provides that a person must comply, on and after commencement day, with any directions given by the Agriculture or Health Ministers under subsection 2B(2) of the

Quarantine Act, to control and eradicate an epidemic by quarantine measures or measures incidental to quarantine.

The offence in subsection 2B(3) of the Quarantine Act will continue to apply after commencement day in relation to the directions, despite the repeal of the Quarantine Act. A person who contravenes a direction may commit an offence. The maximum penalty for contravening a direction is ten years imprisonment if the elements of a fault-based offence are established.

Subsection 2B(4) of the Quarantine Act will also apply to this offence after commencement day. Strict liability applies to the physical element of circumstance that the direction given to the person was made under subsection 2B(2) of the Quarantine Act. The application of strict liability negates the requirement to prove that the direction was given under section 3 and allows a defence of honest and reasonable mistake of fact to be raised (see section 9.2 of the Criminal Code). The prosecution will still need to prove beyond a reasonable doubt that the person failed to comply with the direction.

This item also provides that a person must comply, on and after commencement day, with any directions given by a national response agency authorised under section 3 of the Quarantine Act. During an emergency, national response agencies may be authorised to take action or give directions to control or eradicate an epidemic.

The offence in subsection 3(9) of the Quarantine Act will continue to apply after commencement day in relation to the directions, despite the repeal of the Quarantine Act. A person who contravenes a direction may commit an offence. The maximum penalty for contravening a direction is ten years imprisonment if the elements of a fault-based offence are established.

Subsection 3(10) of the Quarantine Act will also apply to this offence after commencement day. A strict liability applies to the physical element of circumstance that the direction given to the person was made under section 3 of the Quarantine Act. The prosecution will still need to prove beyond a reasonable doubt that the person failed to comply with the direction.

The powers in sections 2B and 3 of the Quarantine Act provide the Commonwealth to manage a quarantine emergency. While sections 2B and 3 of the Quarantine Act have not been used, it is important that the requirement to comply with these directions continue, as a failure to comply with a direction may result in the spread of an epidemic and may have serious impacts on human, plant or animal health, the environment or the Australian economy. The penalties reflect the potentially high level of threat or harm posed by the quarantinable pest or disease during an epidemic and are consistent with the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers .

Item 60                       Directions to deal with emergency

This item provides that a person must comply, on and after commencement day, with any directions given by the Agriculture or Health Minister under section 12A of the Quarantine Act before commencement day for the diagnosis, prevention or control of the introduction, establishment or spread, eradication or treatment of any disease or pest.

The offence in subsection 12A(2) of the Quarantine Act will continue to apply after commencement day in relation to the directions, despite the repeal of the Quarantine Act. A person who contravenes a direction may commit an offence. The maximum penalty for contravening a direction is ten years imprisonment if the elements of a fault-based offence are established.

The powers in section 12A of the Quarantine Act provide for the Commonwealth to manage a quarantine emergency. While this section has been rarely used, it is important that the requirement to comply with these directions continue, as a failure to comply with a direction may result in the spread of a pest or disease which may have serious impacts on human, plant or animal health, the environment or the Australian economy. The penalties reflect the potentially high level of threat or harm posed by the pest or disease and is consistent with other similar provisions as discussed at item 59.

Part 7—Compliance and enforcement

Item 61                       Investigation of offences etc. against Quarantine Act

This item provides that Parts 1, 2, 3, 4 and 5 and Divisions 4 and 6 of Part 10 of Chapter 9 (and any related provisions) of the Biosecurity Act will apply as modified by subitems 61(2) and (3). These modifications will allow biosecurity enforcement officers to continue to investigate possible non-compliance under the Quarantine Act and to determine whether information provided for the purposes of the Quarantine Act is correct.

The modifications will enable a biosecurity enforcement officer:

·          to monitor whether the Quarantine Act has been, or is being, complied with or whether information given in compliance or purported compliance with the Act is correct (Part 1)

·          to gather material that relates to the offence provisions (Part 2)

·          seek warrants to authorise entry to premises for the taking of possession of premises or a conveyance under certain circumstances (Part 3)

·          to access premises through adjacent premises if authorised by warrant

 (Part 4)

·          to enter premises without a warrant, where goods were treated or otherwise dealt with in accordance with an approval under section 46A of the Quarantine Act or a compliance agreement, landing place or port that was a first port of entry under the Quarantine Act (Part 5)

The civil penalty provisions for false and misleading information or documents in Division 4 of Part 10 of Chapter 9 of the Biosecurity Act will apply in relation to investigations of non-compliance under the Quarantine Act after commencement day.

This item will ensure that biosecurity enforcement officers can access warrants and seize evidence of non-compliance with the Quarantine Act despite the repeal of that Act.

Item 62                       Dealing with things seized under the Quarantine Act

This item provides that if a thing has been seized under Part VIA of the Quarantine Act and has been retained under section 66AS of the Quarantine Act immediately before commencement day, then sections 66, 67 and 68 of the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act) apply as if the thing has been seized under Part 3 of that Act. These provisions in the Regulatory Powers Act set out the circumstances in which the thing is returned, retained or disposed of.

An order authorising a person to keep a thing under subsection 66AT(2) of the Quarantine Act, in force immediately before commencement day, has effect, on and after that day, as if it were an order made under subsection 67(4) of the Regulatory Powers Act as it applies in relation to the Quarantine Act because of this Part.

Part 8—Governance and officials

This Part outlines the arrangements for individuals performing functions or exercising powers and sets out the governance arrangements for decision making under this Bill.

Item 63                       Quarantine officers (animals) and quarantine officers (plants)

This item provides that a person appointed as a quarantine officer (animals), or quarantine officer (plants) or both under subsection 9AA(3) of the Quarantine Act, is taken to have been duly authorised as a biosecurity officer under subsection 545(1) of the Biosecurity Act. 

This ensures that any quarantine officers whose appointment is in force immediately before commencement day will become biosecurity officers, reducing the administrative burden on the department and providing a smooth transition on commencement day.

Item 64                       Instruments continued by this Act that confer functions or powers on certain persons

This item provides that an instrument under the Quarantine Act that continues to have effect because of this Bill, on and after commencement day, confers powers or functions on a person mentioned in Column 1 in the table has effect as if it is a reference to a person mentioned in Column 2 of the item.

This item ensures that instruments that confer certain powers or functions under the Quarantine Act continue to have effect in relation to animal and plant quarantine. 

Item 1 in the table provides that if the person in the instrument is the Minister administering the Quarantine Act, then on and after commencement day, it is taken to be a reference to the Agriculture Minister.

Item 2 in the table provides that if the person in the instrument is the Secretary of the Department, then on and after commencement day it is taken to be a reference to the Director of Biosecurity.

Item 3 in the table provides that if the person in the instrument is the Director of Quarantine, then on and after commencement day it is taken to be a reference to the Director of Biosecurity.

Item 4 in the table provides that if the person in the instrument is a quarantine officer, then on and after commencement day it is taken to be a reference to a biosecurity officer.

Item 65                       Powers that may be exercised on board a conveyance

This item outlines the circumstances when a quarantine officer on board a conveyance immediately before commencement day may remain on the conveyance for the purposes of carrying out functions or exercising powers.

A quarantine officer on board a conveyance under paragraph 71(1)(a) of the Quarantine Act prior to commencement day may remain on the conveyance on and after commencement day provided that:

·          the conveyance is taken to be subject to biosecurity control under item 32 of this Schedule, and

·          the quarantine officer becomes a biosecurity officer under subitem 63(2) of this Schedule.

This ensures that the officer can continue to assess or manage biosecurity risks on the conveyance on commencement day and does not have to leave the conveyance immediately before commencement day.

If prior to commencement day, the officer have given the master of a conveyance a direction under paragraph 71(1)(b) of the Quarantine Act, the direction has effect on and after commencement day as if it were given under subsection 556(2) of the Biosecurity Act. This ensures that the officer has adequate facilities to carry out their functions or duties on commencement day.

If the direction was not in force immediately before commencement day, it will not have effect under the Biosecurity Act.

Item 66                       Directions to assist person performing functions etc

This item provides that a direction given by a quarantine officer under subsection 74DA(1) of the Quarantine Act in relation to the conveyance or a thing or person on board the conveyance has effect on and after the commencement day, as if it were a direction given under subsection 552(2) of the Biosecurity Act to provide reasonable assistance to the official.

This item also provides that a direction given by a quarantine officer under subsection 74E(1) of the Quarantine Act to provide assistance in relation to imported goods has effect on and after the commencement day, as if it were a direction given under subsection 552(1) of the Biosecurity Act to provide reasonable assistance to the official.

This item ensures that on and after commencement day a biosecurity officer does not need to reissue the directions again, reducing the administrative burden on the department.

It is important that these directions continue to ensure that biosecurity officers are still able to carry out functions and exercise powers to manage biosecurity risks associated with the conveyance or imported goods.

This item only applies to conveyances or goods taken to be subject to biosecurity control under items 32 and 3 of this Schedule as these conveyances and goods present a biosecurity risk which needs to be managed. It is not necessary for a biosecurity officer to remain or board a conveyance that has an acceptable level of biosecurity risk.  

If the direction was not in force immediately before commencement day, it will not have effect under the Biosecurity Act.

Item 67                       Delegation and Subdelegation of Director of Biosecurity’s functions and powers under this Act etc.

This item provides that section 542 of the Biosecurity Act applies to the Director of Biosecurity’s powers under this Act, allowing the Director to delegate his or her powers in the same way as that section applies to the Director’s powers under the Biosecurity Act.

The Director’s powers will be able to be delegated to SES employees who will then able to sub-delegate those powers to the following persons for the purposes of administrative necessity: biosecurity officers, biosecurity enforcement officers and employees of the Agriculture Department who are holding, or acting in, an Executive Level 1 or 2 position or equivalent.

This ensures that decision-making powers under the Bill are still carried out efficiently and effectively in an operational environment where the Director of Biosecurity or SES may not have the capacity at a particular time to undertake all functions and powers conferred by the Bill. This will ensure a smoother transition from the Quarantine Act to the Biosecurity Act.

This item also ensures that the governance of decision making under this Bill will be the same that is in place under the Biosecurity Act.

However, this item provides that the powers under subsection 46A(11) of the Quarantine Act as it continues to apply under item 50 of this Schedule cannot be subdelegated to a biosecurity officer or a biosecurity enforcement officer. This ensures that responsibility for powers with more serious implications remain at a senior level.

Item 68                       Functions and powers of biosecurity officers and biosecurity enforcement officers

This item ensures that biosecurity officers and biosecurity enforcement officers can perform functions and exercise powers under the:

·          Biosecurity (Consequential Amendments and Transitional Provisions) Act 2014 (this Bill)

·          Quarantine Act to the extent that it continues to apply because of the Biosecurity (Consequential Amendments and Transitional Provisions) Act 2014 , and

·          Biosecurity Act as it applies because of the Biosecurity (Consequential Amendments and Transitional Provisions) Act 2014

It does this by modifying subsections 550(3), 551(1) and (3), 552(1) and (2), 553(1) and (2), 554(1) and (2) and 555(3) and 556(1) of the Biosecurity Act, which set out the functions and powers of biosecurity officers and biosecurity enforcement officers under that Act.

 

Item 69                       Delegation of Agriculture Minister’s functions and powers under this Act etc.

This item provides that section 643 of the Biosecurity Act applies, allowing the Agriculture Minister to delegate any or all of his or her powers and functions under this Bill and the Quarantine Act to the extent that it continues to apply because of this Act, to the Director of Biosecurity, a SES employee, or acting SES employee in the Agriculture Department.

This may be required for practical reasons, for example where the Agriculture Minister is required to focus on other portfolio responsibilities the Minister may delegate certain powers to a SES employee. It also means that powers and functions may be exercised by staff in all regions of Australian territory.

This item also ensures that the governance of decision making under this Bill will be the same that is in place under the Biosecurity Act.

Part 9—Miscellaneous

This Part outlines the transitional arrangements for a range of concepts including reviewable decisions under the Bill, recovery of costs incurred under the Quarantine Act and Collection Act, and other miscellaneous provisions from the Quarantine Act.

Division 1—Review of decisions

Item 70                       Review of decisions made under continued provisions of the Quarantine Act

This item outlines how certain decisions (known as reviewable decisions) can be reviewed internally or by the Administrative Appeals Tribunal. Part 1 of Chapter 11 of the Biosecurity Act (about review of decisions) applies for decisions where the following conditions are met;

·          the decisions are made after the commencement day under provisions of the Quarantine Act that continue to apply because of this Act

·          the decisions are prescribed as reviewable decisions by the regulations, and

·          the regulations specify who are the relevant persons who can seek review.

This ensures that people who are affected by a reviewable decision and believe an incorrect decision has been made are able to apply to have the decision reviewed.

This item does not apply to decisions which are taken to be made under the Biosecurity Act. These decisions can be reviewed under the Biosecurity Act, provided they are reviewable decisions under section 574 of that Act.

Division 2—Cost recovery

Item 71                       Sustenance for animals in quarantine

This item outlines the circumstances in which an agreement with, or a direction given to the owner of an animal to provide sustenance to an animal under subsections 63A(1) and (2) of the Quarantine Act has effect under the Biosecurity Act on commencement day.

If the owner of an animal had an agreement with the Commonwealth, under subsection 63A(1) of the Quarantine Act, to provide sustenance for the animal, the agreement will have effect on and after commencement day as if it were made under subsections 612(2) of the Biosecurity Act.

If the owner of an animal had been given a direction, under subsection 63A(2) of the Quarantine Act, to provide sustenance for an animal, the direction will have effect, on and after commencement day as if it were a direction given under subsection 612(4) of the Biosecurity Act.

This agreement and direction will only transition over to the Biosecurity Act, if the animal is subject to biosecurity control under item 3 of this Schedule as this is the only circumstance where it will be under the Commonwealth’s control.

This ensures that the animal’s health and welfare is maintained in circumstances where the animal is subject to biosecurity control, or is required to undergo biosecurity measures, and that these obligations continue to apply after the repeal of the Quarantine Act.

Item 72                       Recovery of amounts by agent of master or owner of vessel

This item provides that despite the repeal of the Quarantine Act, on and after commencement day, an agent of the master or owner of the vessel will remain liable under subsections 63AA(2) and (3) of that Act to:

·          cover expenses connected with the performance of a service referred to in paragraphs 59A(1)(a), (b) or (c) of the Quarantine Act, and

·          provide remuneration to a medical officer appointed by the Minister under subsection 63(1) of that Act.

This ensures that the liability for expenses incurred under these provisions continues after commencement day. The recovery of these expenses is consistent with the Australian Government Cost Recovery Guidelines .

Item 73                       Quarantine expenses in relation to goods that were subject to quarantine

This item provides that despite the repeal of the Quarantine Act, on and after commencement day, an agent of an importer or owner of goods will remain liable under subsections 64(1AC) and (1AD) of that Act for expenses connected with the performance of a service referred to in paragraphs 64(1)(a), (b), (c) or (d) of the Quarantine Act. This includes expenses associated with the management of biosecurity risks of goods, animals or plants—such as examination, treatment and destruction.

This ensures that the liability for expenses incurred under these provisions continues after commencement day. The recovery of these expenses is consistent with the Australian Government Cost Recovery Guidelines .

Item 74                       Sale of animals, plants or other goods to recover expenses

This item provides that the Director of Biosecurity may sell animals, plants or other goods to recover expenses that were payable in respect of a thing under section 64 of the

Quarantine Act. Section 64 of the Quarantine Act covers expenses payable due to the assessment and management of biosecurity risks of plants, animals and goods that are subject to quarantine or under quarantine surveillance.

Prior to the sale of any thing, a notice must be given to the owner under subsection 66A(2) of the Quarantine Act. If this notice had not been given before the commencement day, then the Director must, as soon as practicable after the commencement day, give the owner of the thing a notice consistent with subsection 66A(2) of the Quarantine Act. This will ensure that adequate notice is provided to the owner allowing them the opportunity pay any unpaid expenses.

The thing may be sold if the Director has given notice to the owner under section 66A(2) of the Quarantine Act, and the expenses have not been paid within 30 days of giving the notice.

If the Director has not been able to give the notice to the owner section 66A(2) of the

Quarantine Act, despite making reasonable efforts, and has certified this in writing, the Director may sell the thing if the expenses has not been paid within 30 days of first attempting to give the notice.

In selling the thing, the Director gives full and effective title to it, free of all other interests. This extinguishes all other interest in the thing, allowing the purchaser to have full title.

This item also allows the Director to take possession of the thing and make and execute the documents which are necessary for the sale of the thing to proceed. This may include transfer of title documents and contracts of sale.

The proceeds of sale may be applied to any unpaid expenses payable under section 64 of the Quarantine Act and the cost of the sale.

Once any unpaid expenses have been recovered, the Director must pay the remainder of the proceeds to the owner of the thing. This ensures that the Commonwealth only recovers expenses that have been incurred and any further profit is returned to the owner.

Where the Director cannot locate the owner of the thing which was sold, despite making reasonable efforts, and has certified this in writing, the remaining proceeds are forfeited to the Commonwealth.

This item does not limit the ability of the Commonwealth to recover costs by other means, such as through a relevant court. This is consistent with current practice and the recovery of fees under the Biosecurity Act. This will be used as a compliance tool to ensure that fees are paid on time, and to ensure the Commonwealth can recover costs for services already provided.

Item 75                       Fees and deposits

This item outlines how fees incurred or deposits paid under the Quarantine Act and related legislation prior to commencement day will be treated under the Biosecurity Act.

This item provides that the Biosecurity Act applies as if the following fees and charges were

cost-recovery charges:

·          fees required by a determination made for the purposes of subsection 86E(1) of the Quarantine Act to be paid

·          late payment fees required by a determination made for the purposes of subsection 86E(2B) of the Quarantine Act to be paid, and

·          late payment fees prescribed by a regulation for the purposes of subsection 13(1) of the Collection Act .

A cost-recovery charge covers all the fees and charges that can be collected under the

Biosecurity Act. This includes fees imposed by the Biosecurity Act and charges imposed by the Biosecurity Charges Imposition (Customs) Act 2014 , Biosecurity Charges Imposition (Excise)

Act 2014
and the Biosecurity Charges Imposition (General) Act 2014 .

This item also provides that the Biosecurity Act applies as if regulations for the purpose of the Biosecurity provide that:

·          fees are due and payable at the end of the payment day specified for the fee under section 86E of the Quarantine Act (whether the payment day is before, on or after the commencement day)

·          late payment fees are due and payable at the beginning of the commencement day, and

·          the person liable to pay an amount under the Biosecurity Act is the same person liable to pay the amount under section 86E of the Quarantine Act or the Quarantine (Charges) Collection Act 2014 .

These unpaid fees will be due and payable under the Biosecurity Act. This item ensures that the Commonwealth can recover unpaid fees and charges despite the repeal of the Quarantine Act and Collection Act. The recovery of these fees and charges is consistent with the Australian Government Cost Recovery Guidelines .

The item also provides that booking fees or deposits that were paid under subsection 86(2E) of the Quarantine Act may be taken to be deposits under the Biosecurity Act. This will ensure smooth transition to the Biosecurity Act as individuals and business will not need to remake any bookings for services under the Biosecurity Act.

The booking fees or deposits must be refunded, to the extent that:

·          the fee or deposit was not refunded under subsection 86(2H) of the Quarantine Act or forfeited or returned under subsection 86(2F) of that Act, or

·          regulations made for the purposes of paragraph 592(4)(a) of the Biosecurity Act do not provide for the reduction of a deposit relating to a fee-bearing activity due to the previous booking fee or deposit.

Division 3—Miscellaneous

Item 76                       Hindering or preventing compliance

This item provides that the offence in subsection 67(6) of the Quarantine Act for hindering or preventing a person from complying with that Act continues despite the repeal.

A person who hinders or prevents a person from complying with the Quarantine Act may commit an offence. The maximum penalty for contravening subsection 67(6) is ten years imprisonment if the elements of a fault-based offence are established.

This offence is continuing because a number of Quarantine Act provisions will continue to have effect, despite the repeal of that Act and this offence should apply to situations where a person is hindering or preventing a person from complying with these provisions.

This is consistent with the offence in section 636 of the Biosecurity Act for engaging in conduct that hinders or prevents another person from performing functions or duties, or exercising powers under that Act, or from complying with that Act.

Item 77                       Compensation

This item provides that any approvals given under section 69A of the Quarantine for compensation for goods or any premises destroyed in accordance with that Act continue to apply, as though the approval had been given by the Agriculture Minister.

This item also provides that section 86F of the Quarantine Act will continue to apply in relation to any acquisition of property from a person resulting from the operation of the Quarantine Act, despite the repeal of that Act.

This is intended to ensure consistent with section 51(xxxi) of the Constitution, that if the operation of the Quarantine Act results in the acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay reasonable compensation to the person.

Item 78                       Protection from civil proceedings

This item provides that those exercising powers or carrying out functions under this Bill or the Quarantine Act to the extent that it continues to have effect will have protection from civil proceedings under section 644 of the Biosecurity Act. This protection will only apply by a person acting appropriately in good faith.

 

Civil proceedings involve legal disputes between individuals based on one person claiming that the other has failed in his or her legal duty. Protection from civil proceedings allows those required under the Bill or the Quarantine Act to make decisions and take action to manage biosecurity risk appropriately to do so without the fear of being sued.

The protection from civil proceedings does not extend to criminal offences for example theft or intentional destruction of documents or property.

Item 79                       Summary proceedings relating to the Quarantine Act instituted on or after the commencement day

This item provides that for proceedings relating to the Quarantine Act that are instituted on or after commencement day, section 86A of the Quarantine Act continues to apply.

This means that the proceedings in a court of summary jurisdiction instituted on or after commencement day may take place either in the state or part of the Commonwealth where the offence was committed or where the defendant is. This is consistent with the arrangements under the Quarantine Act.

Item 80                       Jurisdiction in matters relating to the Quarantine Act

This item provides that section 86B of the Quarantine Act continues to apply to matters arising under that Act. 

Under section 86B of the Quarantine Act a court of a state or territory may be invested with federal jurisdiction in relation to matters arising under the Quarantine Act.

Item 81                       Analysts appointed under the Quarantine Act

This item provides that a person appointed to be an analyst for the purposes of the Quarantine Act under subsection 86DA(1) of that Act is taken, at the beginning of the commencement day, to have been duly appointed to be an analyst by the Director of Biosecurity under subsection 637(1) of the Biosecurity Act.

This ensures that Quarantine Act analysts, whose appointment is in force immediately before commencement day, will become analysts under subsection 637(1) of the Biosecurity Act.

Item 82                       Certificate given by analyst before commencement day

This item provides that any certificate issued under subsection 86DA(2) of the Quarantine Act before commencement day, will continue to have effect in:

·          proceedings that had been instituted, but had not been finally determined, before commencement, or

·          proceedings that had not been instituted before that day.

The purpose of an analyst’s certificate is to obtain an independent verification of an analysis that can be used as evidence if any issue related to the analysis is considered by a court. The certificate is admissible in any proceedings in relating to contravention of this Act as prima facie evidence.

The item provides that subsections 86DA(2) to (6) of the Quarantine Act (which set out matters that need to be contained in the certificate and the process once a certificate is issued) continue to apply in relation to the certificate, despite the repeal of that Act.

This item ensures that these certificates can be used in court proceedings after commencement day, despite the repeal of the Quarantine Act. It is important that these certificates remain valid as analysis or verification tests or examinations may have resulted in the destruction of any collected evidence. In these circumstances it would not be possible to perform any additional analysis for the purposes of reissuing an analyst certificate under the Biosecurity Act.

Item 83                       Certificate given by analyst on or after commencement day relating to alleged offence against Quarantine Act

This item provides that after commencement day, an analyst appointed under subsection 637(1) of the Biosecurity Act can issue a certificate under subsection 86DA(2) of the Quarantine Act for offences against that Act.

The item provides that subsections 86DA(2) to (6) of the Quarantine Act which set out matters that need to be contained in the certificate and the process once a certificate is issued, continue to apply as modified in relation to the certificate.

The certificate will be in a form approved by the Director of Biosecurity (within the meaning of the Biosecurity Act).

This item ensures that new evidential certificates can be given after commencement day, providing an analysis of any evidence for court proceedings.

Part 10—Regulations

Item 84                       Regulations may deal with transitional and other matters

This item provides the ability for the Governor-General to make regulations prescribing matters of a transitional nature relating to the amendments or repeals made by this Bill or the enactment of this Bill or the Biosecurity Act.

This will allow for more detailed and specific aspects of the Bill relating to the transitional arrangements to be included in regulations instead of the Bill.

This item also provides that regulations made for the purpose of this item may modify provisions of the Biosecurity Act or this Schedule for the purpose of transitioning between the Quarantine Act to the Biosecurity Act.

Modifications may be necessary to deal with any unforseen transitional issues which may result in biosecurity risks going unmanaged or general issues during the transition from the Quarantine Act to the Biosecurity Act.

 

 

The Biosecurity Act will replace the century-old Quarantine Act providing a modern regulatory tool aimed at better managing biosecurity risks in the current and future trading environments. The Quarantine Act has been progressively amended numerous times to cater for the changing demands placed on the biosecurity system, creating a piece of legislation that is complex to interpret and containing overlapping provisions and powers.

The Bill sets out the transitional arrangements for moving from the Quarantine Act to the Biosecurity Act. However, given that the biosecurity systems under each of the Acts will be significantly different it is possible that the transitional arrangements may not cover every aspect of the transition between the two Acts.

In these circumstances there are significant consequences for not having the right transitional arrangements in place. Goods, conveyances and people may not be able to move smoothly through the border affecting international trade and tourism and potentially placing additional costs on individuals and businesses

Additionally, biosecurity risks may go unmanaged, or the response to biosecurity risks may be delayed due to uncertainty over which powers apply or how the powers transition.  Managing these biosecurity risks is vital, not only for the wellbeing of Australia’s population and native environment but also for the viability of some of Australia’s most important sectors. For example, in the event of a biosecurity emergency prior to commencement day, the commencement of the Biosecurity Act may be delayed by regulations to ensure provide certainty in which powers are being used and allow the department and the Commonwealth to focus on managing the biosecurity emergency.

The item provides that the regulations must only be transitional in nature creating a direct link with the transition from the Quarantine Act to the Biosecurity Act. To ensure that there is parliamentary oversight, the regulations will be subject to disallowance.