Explanatory Statement
Issued by Authority of the Director of Biosecurity
Biosecurity Act 2015
Biosecurity (First Point of Entry-Norfolk Island Airport) Amendment (Period of Effect) Determination 2022
Legislative Authority
The Biosecurity (First Point of Entry-Norfolk Island Airport) Amendment (Period of Effect) Determination 2022 (the Amendment Instrument) is made under subsection 226(2) of the Biosecurity Act 2015 (the Biosecurity Act).
Subsection 223(1) of the Biosecurity Act provides that the Director of Biosecurity or the Director of Human Biosecurity (Director) may determine that a specified landing place in Australian territory is a first point of entry for:
aircraft generally, or a specified class of aircraft, that are subject to biosecurity control;
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.
Subsection 223(2) of the Biosecurity Act provides that the Director may make a determination under subsection 223(1) in relation to a landing place 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 are met and the level of biosecurity risk associated with operations carried out at the landing place is acceptable.
Subsection 226(1) of the Biosecurity Act provides that a determination made under subsection 223(1) in relation to a landing place may be expressed to have effect for a specified period. Subsection 226(2) of the Biosecurity Act provides that the Director who made the determination may vary the determination to extend or shorten the period of effect.
Section 227 of the Biosecurity Act provides that if a determination is made under subsection 223(1) in relation to a landing place, the Director who made the determination may vary the determination if the Director is satisfied of any of the matters set out in paragraphs 227(a) to (e) of the Biosecurity Act. Paragraph 227(e) provides that one of these matters is that a circumstance prescribed by the regulations has occurred. Paragraph 57(c) of the Biosecurity Regulation 2016 relevantly provides that a circumstance in which the Director may vary a determination made under subsection 223(1) of the Biosecurity Act in relation to a landing place is that the operator of the landing place has requested the variation of the determination.
Purpose
The purpose of the Amendment Instrument is to extend the end of the period of effect to 15 September 2022 for the Biosecurity (First Point of Entry—Norfolk Island Airport) Determination 2016 (the Norfolk Island Airport Determination).
Background
The Biosecurity Act provides the regulatory framework for the management of diseases and pests that may cause harm to human, animal or plant health or the environment.
Item 1 of Schedule 3 to the Biosecurity (Consequential Amendments and Transitional Provisions) Act 2015 (the Biosecurity Transitional Provisions Act) provides that, despite subsection 223(2) of the Biosecurity Act, the Director may make a determination under subsection 223(1) of the Biosecurity Act in relation to a landing place even if the Director is not satisfied of the matters referred to in subsection 223(2) of the Biosecurity Act in relation to the landing place.
To support commencement of the Biosecurity Act, first point of entry determinations have been made as permitted by item 1 of Schedule 3 to the Biosecurity Transitional Provisions Act, to allow landing places that facilitate international arrivals of goods or aircraft to continue their operations while working towards meeting regulatory requirements.
Item 2 of Schedule 3 to the Biosecurity Transitional Provisions 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. Item 6 of Schedule 3 of that Act provides that the transition period is three years starting from when section 3 of the Biosecurity Act commenced. The initial transition period commenced on 16 June 2016, and ceased on 15 June 2019.
New determinations commenced on 16 June 2019 for those first points of entry for which the Director was satisfied that regulatory requirements were met, and the level of biosecurity risk associated with operations carried out at the landing place or port was acceptable. However, 8 landing places and 20 ports were unable to meet regulatory requirements before the end of the transition period. The transition period for these landing places and ports was extended for periods of between 6 and 24 months depending on the type and complexity of remedial action required to achieve compliance with regulatory requirements. Some landing places and ports have since been subsequently extended by further determinations.
This includes Norfolk Island Airport, which has had its transition period as a landing place extended until 15 March 2022 by the Biosecurity (Consequential Amendments and Transitional Provisions) (Extension of First Points of Entry Determinations) Instrument 2021. As Norfolk Island Airport will be unable to meet the relevant regulatory requirements before 15 March 2022, it is proposed that its transition period as a landing place be extended to 15 September 2022 and this is proposed to be effected by the Biosecurity (Consequential Amendments and Transitional Provisions) (Extension of First Points of Entry Determinations) Amendment (Norfolk Island Airport) Instrument 2022.
The Amendment Instrument will extend the end of the period of effect of to 15 September 2022 for the Norfolk Island Airport Determination.
Impact and Effect
The Amendment Instrument extends the period of effect for the Norfolk Island Airport Determination to 15 September 2022 to provide the anticipated time needed for that landing place to be fully compliant with the necessary requirements for making a determination for landing places under subsection 223(1) of the Biosecurity Act.
Consultation
In considering whether Norfolk Island Airport as a landing place met the requirements to make a first point of entry determination under the Biosecurity Act, or whether to extend the transition period to allow for an extension of the period of effect for the transitional determination for the landing place, the Department of Agriculture, Water and the Environment (the department) engaged directly with the operator of Norfolk Island Airport, Norfolk Island Regional Council, to confirm the nature of their operations, the existing infrastructure and facilities, and reviewed their compliance with legislative requirements.
Norfolk Island Regional Council have advised the department that they would not be able to meet the necessary requirements for making a standard determination under section 223 of the Biosecurity Act before the end of the transition period of 15 March 2022, due to significant delays to the construction of a required new air cargo facility, as a result of delays in construction materials and COVID-19 restrictions. Norfolk Island Regional Council expect the works that would allow Norfolk Island Airport to meet the necessary requirements to be completed, with full evidence of compliance, by September 2022, before the end of the proposed extended transition period.
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 extension and amendment instruments on 30 May 2019.
Details / Operation
Details of the Amendment Instrument are set out in the Attachment.
Other
The Amendment Instrument is a legislative instrument for the purposes of the Legislation Act 2003 (the Legislation Act). However, under paragraph 228(b) of the Biosecurity Act, it is not subject to disallowance. This is because an instrument that varies a determination made under subsection 223(1) of the Biosecurity Act is varying a determination that designates a landing place, the designation of which is based on scientific and technical information related to the biosecurity risk associated with the area.
Subjecting a first point of entry determination made under the Biosecurity Act to disallowance would undermine the technical and scientific assessment as to the appropriate management of biosecurity risks and frustrate risk management processes leading to the inadequate management of biosecurity risks. The possibility of disallowance would also have the potential to cause disruption and potential costs to stakeholders who make decisions in reliance on the determination. For example, aircraft travelling to Norfolk Island could not be certain of landing arrangements upon arrival until after the expiry of the disallowance period. This is particularly sensitive with respect to Norfolk Island as the external territory is isolated and only has one designated landing place, being Norfolk Island Airport, which is the subject of this Amendment Instrument.
As such, this Amendment Instrument, as an instrument made under subsection 226(2) of the Biosecurity Act, is justified as not being subject to disallowance.
A statement of compatibility with human rights, prepared under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 is not required, as paragraph 15J(2)(f) of the Legislation Act only requires a statement to be prepared for disallowable legislative instruments.
ATTACHMENT
Details of the Biosecurity (First Point of Entry-Norfolk Island Airport) Amendment (Period of Effect) Determination 2022
Section 1 – Name
This section provides that the name of the instrument is the Biosecurity (First Point of Entry-Norfolk Island Airport) Amendment (Period of Effect) Determination 2022 (the Amendment Instrument).
Section 2 – Commencement
This section provides for the Amendment Instrument to commence on 15 March 2022.
Section 3 – Authority
This section provides that the Amendment Instrument is made under subsection 226(2) of the Biosecurity Act 2015 (the Biosecurity Act).
Section 4 – Schedules
This section provides that each instrument that is specified in a Schedule to the Amendment Instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Amendment Instrument has effect according to its terms.
Schedule 1 – Amendments
Biosecurity (First Point of Entry—Norfolk Island Airport) Determination 2016
Item 1 Section 9
Section 9 of the Biosecurity (First Point of Entry—Norfolk Island Airport) Determination 2016 (the Norfolk Island Airport Determination) provided that the Norfolk Island Airport Determination was to be repealed at the end of 15 March 2022.
Item 1 of Schedule 1 of the Amendment Instrument amends section 9 of the Norfolk Island Airport Determination to omit “15 March 2022” as the repeal day for the Norfolk Island Airport Determination, and substitutes “15 September 2022” as the repeal day. This has the effect of extending the period of effect for the Norfolk Island Airport Determination, which designates Norfolk Island as a landing place, as provided by subsection 223(1) of the Biosecurity Act, and permitted by subitem 1(1) of Schedule 3 to the Biosecurity (Consequential Amendments and Transitional Provisions) Act 2015, so that the period of effect now ends on 15 September 2022.