Biosecurity (Consequential Amendments and Transitional Provisions) (Extension of First Points of Entry Determinations) Instrument 2019

Explanatory Statement

Issued by Authority of the Director of Biosecurity

Biosecurity Act 2015

Biosecurity (Consequential Amendments and Transitional Provisions) (Extension of First Points of Entry Determinations) Instrument 2019

Legislative Authority

The Biosecurity (Consequential Amendments and Transitional Provisions) Act 2015 (Transitional Act) provides for consequential and transitional matters arising from the enactment of the Biosecurity Act 2015 (Biosecurity Act).

The Biosecurity Act provides the Commonwealth with powers to assess and manage Biosecurity risk, among other things. Biosecurity risk is defined at sections 9 and 310 of the Biosecurity Act.

Subitem 1(4) of Schedule 3 to the Transitional Act provides that if the Director of Biosecurity or the Director of Human Biosecurity is satisfied that:

the relevant Director may, by legislative instrument, extend the transition period in relation to the landing place or port.

Purpose

The purpose of the Biosecurity (Consequential Amendments and Transitional Provisions) (Extension of First Points of Entry Determinations) Instrument 2019 (Extension Instrument) is to extend the transition period for certain landing places and certain ports.

Background

Subsections 223(1) and 229(1) of the Biosecurity Act provide that the Director of Biosecurity or the Director of Human Biosecurity (Director) may determine that a specified landing place or port in Australian territory is a first point of entry for aircraft or vessels generally, or a specified class of aircraft or vessels that are subject to biosecurity control, and/or specified goods, or a specified class of goods that are subject to biosecurity control or in relation to which an exposed goods order is in force. 

Subsections 223(2) and 229(2) of the Biosecurity Act provide that the Director may make a determination in relation to a landing place or port only if the Director who is proposing to make the determination is satisfied that the requirements (if any) prescribed by the regulations in relation to the landing place or port are met and the level of biosecurity risk associated with operations carried out at the landing place port is acceptable.

Item (1) of Schedule 3 to the Transitional Act provides that despite subsections 233(2) and 229(2) of the Biosecurity Act, the Director may make a determination under subsection 233(1) or 229(1) of that Act in relation to a landing place or port even if the Director is not satisfied of the matters referred to in subsection 233(1) or 229(2) of the Act in relation to the landing place or port.

To support commencement of the Biosecurity Act, first point of entry determinations were made under Item (1) of Schedule 3 to the Biosecurity Transitional Provision Act to allow ports and landing places that currently facilitated international arrivals of goods, vessels or aircraft to continue their operations while working towards meeting regulatory requirements.

Item (2) of Schedule 3 to the Biosecurity Transitional Provision Act provides that a determination made relying on item (1) of that Act must not be expressed or varied to have effect for a period that is longer than the transition period for the landing place or port. Item (6) of Schedule 3 to the Biosecurity Transitional Provision Act provides that the transition period is three years starting from when the Biosecurity Act commenced. The transition period ceases on 16 June, 2019.

Impact and Effect

The Extension Instrument enables the Director of Biosecurity to vary the period of effect for first point of entry determinations that were made by relying on transitional provisions contained in subitem 1(1) of Schedule 3 to the Transitional Act.  The Extension Instrument extends the transitional period for each landing place or port for a specified period of time. The time period in each landing place or port reflects the anticipated time needed for that landing place or port to be fully compliant with the necessary requirements for making determinations for landing places and ports under section 223 and 229 of the Biosecurity Act.

Consultation

In considering whether the landing places or ports met the requirements to make first point of entry determinations under the Biosecurity Act, or whether to extend the transition period for the landing place or port, the Agriculture Department (department) engaged directly with operators at ports and landing places to confirm the nature of their operations, the existing infrastructure and facilities and reviewed their compliance with legislative requirements. .

Operators at each of the landing places and ports provided in the Extension Instrument advised the department that they would not be able to meet the necessary requirements for making a determination under sections 223 and 229 of the Biosecurity Act before the end of the transition period.

The Department of Health was consulted in relation to the Determinations.

The Office of Best Practice Regulation (OBPR) was consulted in the preparation of the Regulation Impact Statement (RIS) for the Biosecurity Bill 2014 (OBPR ID: 25191). The OBPR advised on 31 March 2016 that a RIS is not required and, further to this, confirmed this advice in the context of the Extension Instrument on 30 May 2019.

Details / Operation

Details of the Extension Instrument are set out in the Attachment.

Other

The Extension Instrument is a legislative instruments for the purposes of the Legislation Act 2003. However, under subitem 1(5) of Schedule 3 to the Transitional Act, it is not subject to disallowance and so a Statement of Compatibility with Human Rights was not required to be prepared.

ATTACHMENT

Details of the Biosecurity (Consequential Amendments and Transitional Provisions) (Extension of First Points of Entry Determinations) Instrument 2019

Part 1 Preliminary 

Section 1 – Name

This section provides that the name of the instrument is the Biosecurity (Consequential Amendments and Transitional Provisions) (Extension of First Points of Entry Determinations) Instrument 2019 (the Extension Instrument). 

Section 2 – Commencement

This section provides for the Extension Instrument to commence the day after the instrument is registered.

Section 3 – Authority

This section provides that the Extension Instrument is made under subitem 1(4) of Schedule 3 to the Biosecurity (Consequential Amendments and Transitional Provisions) Act 2015.

Section 4 – Extension of transition period for certain landing places

This section provides a table in which Column 1 lists the names of landing places. Column 2 lists transition period end day for that landing place..

Item 1 lists Broome Airport in Column 1 and lists the transition period end day as 15 June 2020.

Item 2 lists Christmas Island International Airport in Column 1 and lists the transition period end day as 15 June 2021.

Item 3 lists Cocos (Keeling) Islands Airport in Column 1 and lists the transition period end day as 15 June 2021.

Item 4 lists Essendon Airport in Column 1 and lists the transition period end day as 15 December 2019.

Item 5 lists Kingsford Smith Airport, Sydney in Column 1 and lists the transition period end day as 15 June 2021.

Item 6 lists Lord Howe Airport in Column 1 and lists the transition period end day as 15 June 2020.

Item 7 lists Norfolk Island Airport in Column 1 and lists the transition period end day as 15 June 2021.

Section 5 – Extension of transition period for certain ports

This section provides a table in which Column 1 lists the names of ports. Column 2 lists the transition period end day.

Item 1 lists Lord Howe Island Port  in Column 1 and lists the transition period end day as 15 June 2020.

Item 2 lists Port Adelaide in Column 1 and lists the transition period end day as 15 June 2021.

Item 3 lists Port Hedland in Column 1 and lists the transition period end day as 15 December 2019.

Item 4 lists Port of Albany in Column 1 and lists the transition period end day as 15 December 2019.

Item 5 lists Port of Ball Bay, Norfolk Island in Column 1 and lists the transition period end day as 15 June 2021.

Item 6 lists Port of Cascade Bay, Norfolk Island in Column 1 and lists the transition period end day as 15 June 2021.

Item 7 lists Port of Christmas Island in Column 1 and lists the transition period end day as 15 June 2021.

Item 8 lists Port of Cocos (Keeling) Islands in Column 1 and lists the transition period end day as 15 June 2021.

Item 9 lists Port of Coffs Harbour in Column 1 and lists the transition period end day as 15 December 2019.

Item 10 lists Port of Dampier in Column 1 and lists the transition period end day as 15 December 2019.

Item 11 lists Port of Darwin in Column 1 and lists the transition period end day as 15 December 2019.

Item 12 lists Port of Eden in Column 1 and lists the transition period end day as 15 December 2019.

Item 13 lists Port of Esperance in Column 1 and lists the transition period end day as 15 December 2019.

Item 14 lists Port of Fremantle in Column 1 and lists the transition period end day as 15 December 2019.

Item 15 lists Port of Geelong in Column 1 and lists the transition period end day as 15 December 2019.

Item 16 lists Port of Mackay in Column 1 and lists the transition period end day as 15 December 2019.

Item 17 Port of Melbourne in Column 1 and lists the transition period end day as 15 December 2019.

Item 18 lists Port of Sydney in Column 1 and lists the transition period end day as 15 December 2019.

Item 19 lists Port of Sydney Bay (Kingston), Norfolk Island in Column 1 and lists the transition period end day as 15 June 2021.