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 (No. 2) 2022
Legislative Authority
The Biosecurity (First Point of Entry—Norfolk Island Airport) Amendment (Period of Effect) Determination (No. 2) 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 March 2023 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.
Subitem 1(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 the commencement of the Biosecurity Act, first point of entry determinations were made in 2016, including the Norfolk Island Airport Determination, as permitted by subitem 1(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.
Subitem 1(2) of Schedule 3 to the Biosecurity Transitional Provisions Act provides that a determination made relying on subitem 1(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. Subitem 1(6) of Schedule 3 to the Act provides that the transition period means the three years starting from when section 3 of the Biosecurity Act commenced. The initial transition period therefore commenced on 16 June 2016, and ceased on 15 June 2019.
However, Norfolk Island Airport was unable to meet the regulatory requirements before the end of the initial transition period. As such, Norfolk Island Airport had its transition period extended to the end of 15 June 2021 by way of the Biosecurity (Consequential Amendments and Transitional Provisions) (Extension of First Points of Entry Determinations) Instrument 2019. The extension of the transition period enabled the period of effect of the Norfolk Island Airport Determination to be similarly extended to 15 June 2021 via the Biosecurity (First Points of Entry Determinations) Amendment (Periods of Effect) Determination 2019.
Due to a variety of factors, including the emergence of the COVID-19 pandemic and its concomitant impact on travel and supply lines, Norfolk Island Airport has had its transition period as a first point of entry extended on a further two occasions. The Biosecurity (Consequential Amendments and Transitional Provisions) (Extension of First Point of Entry Determinations) Instrument 2021 (the Biosecurity Extension Determination Instrument) extended the transition period to 15 March 2022. This allowed for the extension of the period of effect of the Norfolk Island Airport Determination to also be extended to 15 March 2022 by the Biosecurity (First Points of Entry Determinations) Amendment (Periods of Effect) Determination 2021. The Biosecurity (Consequential Amendments and Transitional Provisions) (Extension of First Points of Entry Determinations) Amendment (Norfolk Island Airport) Instrument 2022 which amended the Biosecurity Extension Determination Instrument further extended the transition period of Norfolk Island Airport as a first point of entry to 15 September 2022. The further extension of the transition period enabled the period of effect of the Norfolk Island Airport Determination to be similarly extended to 15 September 2022 via the Biosecurity (First Point of Entry-Norfolk Island Airport) Amendment (Period of Effect) Determination 2022.
As Norfolk Island Airport will be unable to meet the relevant regulatory requirements before 15 September 2022, the operator of Norfolk Island Airport, Norfolk Island Regional Council, submitted a formal request to the Department of Agriculture, Fisheries and Forestry (the department) to vary the Norfolk Island Determination by extending period of effect to 15 March 2023. This request also requires that the transition period be extended to 15 March 2023. The latter 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 (No. 2) 2022.
The Amendment Instrument will extend the end of the period of effect from 15 September 2022 to 15 March 2023 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 March 2023. The extension is anticipated to provide the time needed for Norfolk Island Airport to be fully compliant with the necessary requirements to be determined as a first point of entry 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 engaged directly with 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 regulatory requirements for the making of a determination under subsection 223(1) of the Biosecurity Act before the end of the transition period of 15 September 2022. This is due to delays in the construction of a new air freight shed for the purposes of fulfilling regulatory requirements. Shipping issues and supply unavailability, exacerbated by the impact of COVID-19, have caused delays in acquiring required building materials and equipment. Weather events on Norfolk Island have also impacted both the delivery of supplies and the facility’s construction.
Norfolk Island Regional Council, its contractor, the department and the Department of Infrastructure, Transport, Regional Development, Communications and the Arts have attended meetings and exchanged correspondence regarding the delays and the request for extension. Norfolk Island Regional Council expects that an extension will provide the required time for Norfolk Island Airport to complete construction and become compliant with regulatory requirements before the end of the proposed extension period of 15 March 2023. This is reflected in a formal request for extension received by the department on 29 July 2022.
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Additional consultation on the Amendment Instrument was undertaken with the Department of Health and Aged Care (DHAC). Endorsement of the Amendment Instrument has been provided by the DHAC.
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 RIS for extension and amendment instruments on 30 May 2019.
Details / Operation
Details of the Amendment Instrument are set out in the Attachment.
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 as a first point of entry. The designation of a landing place as a first point of entry 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, the Amendment Instrument, as an instrument made under subsection 226(2) of the Biosecurity Act, is justified as being exempt from 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 of compatibility of human rights to be prepared for disallowable legislative instruments.
ATTACHMENT
Details of the Biosecurity (First Point of Entry—Norfolk Island Airport) Amendment (Period of Effect) Determination (No. 2) 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 (No. 2) 2022 (the Amendment Instrument).
Section 2 – Commencement
This section provides for the Amendment Instrument to commence immediately after the commencement of the Biosecurity (Consequential Amendments and Transitional Provisions) (Extension of First Points of Entry Determinations) Amendment (Norfolk Island Airport) Instrument (No. 2) 2022 (the Extension Instrument). The Amendment Instrument can only extend the period of effect of the Norfolk Island Airport to 15 March 2023 in circumstances where the transition period has also been extended to 15 March 2023. As such, it is necessary for the Extension Instrument to commence immediately before the Amendment Instrument commences. This commencement provision achieves this outcome.
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
Item 1 amends section 9 of the Biosecurity (First Point of Entry—Norfolk Island Airport) Determination 2016 (the Norfolk Island Airport Determination) to omit “15 September 2022” as the repeal day for the Norfolk Island Airport Determination, and substitutes “15 March 2023” as the new date of repeal.
This has the effect of extending the period of effect for the Norfolk Island Airport Determination, which designates Norfolk Island Airport as a first point of entry, under subsection 223(1) of the Biosecurity Act, and as permitted by subitem 1(1) of Schedule 3 to the Biosecurity (Consequential Amendments and Transitional Provisions) Act 2015. The period of effect will now end at the end of 15 March 2023.