EXPLANATORY STATEMENT
Biosecurity Act 2015
Biosecurity (Entry Requirements – Human Coronavirus with Pandemic Potential) Repeal Determination 2023
Purpose
The Biosecurity (Entry Requirements – Human Coronavirus with Pandemic Potential) Repeal Determination 2023 (Repeal Determination) repeals the Biosecurity (Entry Requirements – Human Coronavirus with Pandemic Potential) Determination 2023 (Determination).
Repeal of the Determination
The Determination was made by the Minister for Health and Aged Care under the Biosecurity Act 2015 (Biosecurity Act). The requirements intended to prevent entry or establishment or spread of COVID-19 in an Australian territory or part of an Australian territory.
The Determination imposed entry requirements on passengers to provide proof of a negative test for COVID-19 taken within a 48 hour period prior to boarding a flight that commenced from the People’s Republic of China or the Special Administrative Region of Hong Kong or Macau and ends in Australian territory.
The Repeal Determination removes the requirement for passengers to provide proof of a negative test for COVID-19 from the beginning of 11 March 2023 AEDT.
Authority
Subsection 44(2) of the Biosecurity Act provides that the Health Minister may determine one or more requirements for individuals who are entering Australian territory at a landing place or port for the purpose of preventing a listed human disease from entering, or establishing itself or spreading in, Australian territory or a part of Australian territory.
Subsection 44(3) of the Biosecurity Act provides that a determination made under subsection 44(2) is a legislative instrument, but that section 42 (disallowance) of the Legislation Act 2003 (Legislation Act) does not apply to the determination.
The Repeal Determination is a legislative instrument for the purposes of the Legislation Act. The Repeal Determination is automatically repealed after its commencement under section 48A of the Legislation Act.
Commencement
The Repeal Determination commences on 11 March 2023.
Consultation
The Department has consulted with the Department of the Prime Minister and Cabinet, the Department of Home Affairs, the Department of Education, Skills and Employment, the Department of Infrastructure, Transport, Regional Development, Communications and the Arts, the Department of Foreign Affairs and Trade, and the Department of Agriculture, Fisheries and Forestry.
Other
A provision by provision description of the Repeal Determination is contained in the Attachment.
ATTACHMENT
Details of the Biosecurity (Entry Requirements – Human Coronavirus with Pandemic Potential) Repeal Determination 2023
Part 1—Preliminary
Section 1 provides that the name of the Repeal Determination is the Biosecurity (Entry Requirements—Human Coronavirus with Pandemic Potential) Repeal Determination 2023.
Section 2 provides that the Repeal Determination commences on 11 March 2023. This means the Repeal Determination will have effect as at 12:01am Australian Eastern Daylight Time (AEDT) on 11 March 2023.
Section 3 states that the authority for making the Repeal Determination is subsection 44(2) of the Biosecurity Act.
Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule—Repeals
Biosecurity (Entry Requirements—Human Coronavirus with Pandemic Potential) Determination 2023
Item 1 repeals the whole of the Biosecurity (Entry Requirements—Human Coronavirus with Pandemic Potential) Determination 2023.
Repealing this Determination will mean that individuals travelling from the People’s Republic of China or the Special Administrative Region of Hong Kong or Macau and entering Australian territory on or after 12:01am AEDT 11 March 2023, will no longer be required to provide evidence of a negative COVID-19 test result upon entering Australian territory.
Overview
The Biosecurity (Entry Requirements – Human Coronavirus with Pandemic Potential) Repeal Determination 2023 was enacted to repeal the Biosecurity (Entry Requirements – Human Coronavirus with Pandemic Potential) Determination 2023, which was made under the Biosecurity Act 2015. The earlier Determination was introduced to mitigate the risks of COVID-19 entering or spreading within Australia by imposing specific entry requirements, such as the need for travellers from certain regions to present proof of a negative COVID-19 test taken within 48 hours of their flight. The Repeal Determination removes these entry requirements, effective from 11 March 2023, reflecting the changing nature of the pandemic and Australia’s evolving public health strategy. The repeal was authorised under subsection 44(2) of the Biosecurity Act, which empowers the Minister for Health and Aged Care to impose entry requirements to prevent the spread of listed human diseases. The repeal determination itself is a legislative instrument under the Legislation Act 2003 and is automatically repealed after its commencement.
Scope and Application
The Biosecurity (Entry Requirements – Human Coronavirus with Pandemic Potential) Repeal Determination 2023 applies to individuals entering Australian territory, specifically those who have travelled from the People’s Republic of China or the Special Administrative Regions of Hong Kong or Macau, effective from 11 March 2023. This repeal eliminates the requirement for these travellers to present proof of a negative COVID-19 test taken within 48 hours prior to their flight. The Repeal Determination is a legislative instrument made under subsection 44(2) of the Biosecurity Act 2015, allowing the Health Minister to impose requirements to prevent the spread of listed human diseases, such as COVID-19, into Australian territory. The repeal is automatic and does not require disallowance under the Legislation Act 2003, and it will cease to have effect after its commencement as per section 48A of the Legislation Act.
Key Provisions
The Biosecurity (Entry Requirements – Human Coronavirus with Pandemic Potential) Repeal Determination 2023 (Repeal Determination) is a legislative instrument that repeals the Biosecurity (Entry Requirements – Human Coronavirus with Pandemic Potential) Determination 2023 (Determination), effectively removing the requirement for passengers to provide proof of a negative COVID-19 test before travelling from the People’s Republic of China or the Special Administrative Region of Hong Kong or Macau to Australian territory. This repeal came into effect on 11 March 2023. The authority for making this Repeal Determination is provided under subsection 44(2) of the Biosecurity Act 2015 (Biosecurity Act). The Repeal Determination is a legislative instrument under the Legislation Act 2003 and is automatically repealed after its commencement, as per section 48A of the Legislation Act.
The Repeal Determination imposes specific obligations on individuals travelling from the People’s Republic of China or the Special Administrative Region of Hong Kong or Macau and entering Australian territory on or after 12:01am AEDT on 11 March 2023. These individuals are no longer required to provide evidence of a negative COVID-19 test result upon entering Australian territory. This repeal simplifies the entry requirements for travellers from these regions by removing the need for pre-departure testing documentation.
Failure to comply with the repealed entry requirements, though no longer applicable, would have previously resulted in significant consequences under the Biosecurity Act 2015. However, as the Repeal Determination has removed these requirements, there are no longer any specific offences, penalties, or civil/criminal consequences associated with non-compliance with the repealed entry requirements for these travellers. It is important to note that any previous breaches of the repealed requirements prior to 11 March 2023 would have been subject to the applicable penalties under the Biosecurity Act 2015.