Explanatory Statement
Issued by Authority of the Director of Biosecurity
Biosecurity Act 2015
Biosecurity (First Point of Entry—Port of Cocos (Keeling) Islands) Determination 2022
Legislative Authority
The Biosecurity (First Point of Entry—Port of Cocos (Keeling) Islands) Determination 2022 (the Determination) is made under subsection 229(1) of the Biosecurity Act 2015 (the Biosecurity Act), as permitted by subitem 1(1) of Schedule 3 to the Biosecurity (Consequential Amendments and Transitional Provisions) Act 2015 (the Biosecurity Transitional Provisions Act).
Subsection 229(1) of the Biosecurity Act provides that the Director of Biosecurity or the Director of Human Biosecurity (each, a Director) may determine that a specified port in Australian territory is a first point of entry (as defined in section 18 of the Biosecurity Act) for any of the following:
vessels generally, or a specified class of vessels 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 229(2) of the Biosecurity Act provides that the Director of Biosecurity or the Director of Human Biosecurity may make a determination under subsection 229(1) in relation to a 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 port are met and the level of biosecurity risk associated with operations carried out at the port is acceptable.
Subitem 1(1) of Schedule 3 to the Biosecurity Transitional Provisions Act provides that, despite subsections 223(2) and 229(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, and
under subsection 229(1) of the Biosecurity Act in relation to a port even if the Director is not satisfied of the matters referred to in subsection 229(2) of that Act in relation to the port.
Purpose
The purpose of the Determination is to determine that the Port of Cocos (Keeling) Islands is a first point of entry for vessels and goods for the purposes of subsection 229(1) of the Biosecurity Act (as permitted by subitem 1(1) of Schedule 3 to the Biosecurity Transitional Provisions Act) with a period of effect from 16 June 2022 until 15 December 2022. This will ensure that the Port of Cocos (Keeling) Islands has always been determined to be a first point of entry from its designation as such from 16 June 2016 until 15 December 2022.
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.
The Biosecurity Transitional Provisions Act provided transitional and consequential provisions to support the commencement of the Biosecurity Act as it replaced the Quarantine Act 1908. Relevantly, the Biosecurity Transitional Provisions Act provided transitional provisions to enable the requirements for first points of entry to be met as the transition to the Biosecurity Act occurred. In particular, subitem 1(1) of Schedule 3 to the Biosecurity Transitional Provisions Act enabled this and is summarised above.
Subitem 1(2) of Schedule 3 to the Biosecurity Transitional Provisions Act provides that a determination made relying on subitem 1(1) 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. Subitem 1(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 therefore commenced on 16 June 2016, and ceased on 15 June 2019.
However, subitem 1(4) of Schedule 3 to the Biosecurity Transitional Provisions Act provides that the Director may, by legislative instrument, extend the transition period in relation to a landing place or port, if the Director is satisfied that the requirements referred to in subsections 223(2) or 229(3) of the Biosecurity Act, as relevant, will not be able to be met by the end of the transition period.
For the commencement of the Biosecurity Act and as permitted by subitem 1(1) of Schedule 3 to the Biosecurity Transitional Provisions Act, the Director of Biosecurity made determinations under both subsections 223(1) and 229(1) of the Biosecurity Act to enable the continuation of certain operations as landing places and ports. This included the making of the Biosecurity (First Point of Entry—Port of Cocos (Keeling) Islands) Determination 2016 (the 2016 Determination). The 2016 Determination and other initial transitional determinations ceased on 15 June 2019 as that was the date the initial transition period ended.
In June 2019, the Biosecurity (Consequential Amendments and Transitional Provisions) (Extension of First Points of Entry Determinations) Instrument 2019 was made, extending the transition period under subitem 1(4) of Schedule 3 of the Biosecurity Transitional Provisions Act for twenty-six (26) first points of entry, including the Port of Cocos (Keeling) Islands (for which, the transition period was extended to 15 June 2021). At the same time, the Biosecurity (First Points of Entry Determinations) Amendment (Periods of Effect) Determination 2019 amended, amongst other things, the 2016 Determination to extend its period of effect to 15 June 2021.
In June 2021, further extensions to the transition period and the periods of effect of various determinations were made. Specifically, the Biosecurity (Consequential Amendments and Transitional Provisions) (Extension of First Points of Entry Determinations) Instrument 2021 (the 2021 Extension Instrument) was made, extending the transition period under subitem 1(4) of Schedule 3 of the Biosecurity Transitional Provisions Act for seven (7) first points of entry, including the Port of Cocos (Keeling) Islands. At the same time, the Biosecurity (First Points of Entry Determinations) Amendment (Periods of Effect) Determination 2021 amended, amongst other things, the 2016 Determination, to extend its period of effect to 15 June 2022 when it would be repealed.
As the Port of Cocos (Keeling) Islands was unable to meet the regulatory requirements as specified by subsection 229(2) of the Biosecurity Act by 15 June 2022, a further extension to the transition period and the period of effect of the 2016 Determination was required.
Therefore, on 8 June 2022, the Biosecurity (Consequential Amendments and Transitional Provisions) (Extension of First Points of Entry Determinations) Amendment (2022 Measures No. 1) Instrument 2022 (2022 Extension Instrument) was made in order to amend the 2021 Extension Instrument and, amongst other things, extended the transition period for the Port of Cocos (Keeling) Islands to 15 December 2022.
The Biosecurity Legislation Amendment (First Points of Entry) Determination 2022 (2022 Determination) sought, amongst other things, to amend the 2016 Determination to extend its period of effect to 15 December 2022. It was always intended that the 2022 Determination would commence before the 2016 Determination was automatically repealed at the end of 15 June 2022.
The clear intention was that the 2022 Determination would commence on 15 June 2022. However, due to a technical issue, it appears that this intention may inadvertently not have been met prior to the repeal of the 2016 Determination. This Determination is therefore designed to restore the clear intent of the Director of Biosecurity as the rule-maker that the 2016 Determination would continue for an unbroken period of effect to 15 December 2022, hence its retrospective application.
Impact and Effect
The Determination determines that the Port of Cocos (Keeling) Islands is a first point of entry for vessels and goods for the purposes of subsection 229(1) of the Biosecurity Act (as permitted by subitem 1(1) of Schedule 3 to the Biosecurity Transitional Provisions Act) with a period of effect from 16 June 2022 until 15 December 2022.
As the Determination commences on a date (being 16 June 2022) before its registration, the Determination has retrospective effect. Read together, subsections 12(1) and 12(1A) of the Legislation Act 2003 (the Legislation Act) provide that instruments (which would include the Determination) may commence retrospectively.
It is imperative that the Determination commenced on 16 June 2022 to ensure that the Port of Cocos (Keeling) Islands continues to operate as a first point of entry in a continuous fashion until 15 December 2022. In this way, the Determination effectively provides an unbroken period of effect for the Port of Cocos (Keeling) Islands as a first point of entry. This is vital to offer certainty to all stakeholders whilst managing biosecurity risk. This is particularly important as Cocos (Keeling) Islands is a remote community that already experiences significant difficulty importing essential goods.
Notwithstanding the above, it is also important to note that the effect of subsection 12(2) of the Legislation Act is that the Determination’s retrospective commencement means that the Determination does not apply in relation to a person (other than the Commonwealth or an authority of the Commonwealth) to the extent that, as a result of that commencement:
- the person’s rights as at the time the Determination was registered would be affected so as to disadvantage the person; or
- liabilities would be imposed on the person in respect of anything done or omitted to be done before the Determination was registered.
Consultation
In considering whether the Port of Cocos (Keeling) Islands met the regulatory requirements to make a first point of entry determination under subsection 229(1) of the Biosecurity Act, the department has engaged with the operator of the Port of Cocos (Keeling) Islands, LINX Port Services Pty Ltd (LINX) to confirm the nature of their operations, the existing infrastructure and facilities, and to review their compliance with legislative requirements. The department has also engaged directly with the administrator of port facilities for the Cocos (Keeling) Islands, the Department of Infrastructure, Transport, Regional Development and Communications (DITRDC). For this reason, it was considered unnecessary to undertake additional consultation in relation to the Determination.
The department considers that LINX has demonstrated, and continues to demonstrate, that it is taking steps to actively transition to normal arrangements as a first point of entry before the end of the period of effect of the Determination.
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 Determination are set out in the Attachment.
Other
Paragraph 234(a) of the Biosecurity Act provides that the Determination is a legislative instrument for the purposes of the Legislation Act and the instrument is not subject to disallowance. As such, a Statement of Compatibility with Human Rights is not required (subsection 15J(2) of the Legislation Act refers). The decision to make the Determination is a technical and scientific decision to ensure biosecurity risk associated with vessels and goods can be satisfactorily managed at the Port of Cocos (Keeling) Islands.
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, vessels travelling to Cocos (Keeling) Islands could not be certain of arrangements upon arrival until after the expiry of the disallowance period. This is particularly sensitive with respect to Cocos (Keeling) Islands as it is an isolated community and has limited port facilities for vessels.
As such, this Determination, as an instrument made under subsection 229(1) of the Biosecurity Act, is justified as not being subject to disallowance.
ATTACHMENT
Details of the Biosecurity (First Point of Entry—Port of Cocos (Keeling) Islands) Determination 2022
Part 1 - Preliminary
Section 1 – Name
This section provides that the name of the instrument is the Biosecurity (First Point of Entry—Port of Cocos (Keeling) Islands) Determination 2022 (the Determination).
Section 2 – Commencement
This section provides for the Determination to commence on 16 June 2022.
Section 3 – Authority
This section provides that the Determination is made under subsection 229(1) of the Biosecurity Act 2015, as permitted by subitem 1(1) of Schedule 3 to the Biosecurity (Consequential Amendments and Transitional Provisions) Act 2015.
Section 4 – Definitions
This section provides definitions for terms contained in the Determination. It contains a note directing the reader to the fact that a number of expressions used in the Determination are defined in section 9 of the Biosecurity Act 2015.
Specifically, this section provides that, in the Determination:
Act means the Biosecurity Act 2015;
goods means goods (as defined by section 19 of the Act) that are subject to biosecurity control, or in relation to which an exposed goods order is in force;
vessel means a vessel (as defined by section 9 of the Act) that is subject to biosecurity control.
Part 2 - First point of entry
Section 5 - First point of entry – vessels
This section provides that the Port of Cocos (Keeling) Islands is a first point of entry for vessels, other than passenger vessels.
Section 6 - First point of entry – goods
This section provides that the Port of Cocos (Keeling) Islands is a first point of entry for all goods.
Part 3 - Biosecurity entry points
Part 3 contains a note directing the reader to the fact that no area of the Port of Cocos (Keeling) Islands is designated as a biosecurity entry point.
Part 4 – Conditions
Part 4 contains a note directing the reader to the fact that there are no specified conditions for Port of Cocos (Keeling) Islands.
Part 5 – Period of Effect
Section 7 – Repeal of this Instrument
This section provides that the Determination will be repealed at the end of 15 December 2022.