Explanatory Statement
Issued by Authority of the Director of Biosecurity
Biosecurity Act 2015
Biosecurity (First Points of Entry Determinations) Amendment (Periods of Effect) Determination (No. 2) 2019
Legislative Authority
The Biosecurity Act 2015 (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.
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 under subsection (1) 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.
Subsections 226(1) and 232(1) of the Biosecurity Act provide, respectively, that a determination made under subsection 223(1) and 229(1) in relation to a landing place or in relation to a port may be expressed to have an effect for a specified period of time. Section 226(2) and 232(2) Biosecurity Act provide, respectively, that the Director who made the determination may vary the determination to extend or shorten the period of effect.
Section 227 and section 233 of the Biosecurity Act provide, respectively, that if a determination is made under subsection 223(1) and 229(1) in relation to a landing place or in relation to a port, 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) – (e) and 233(a) – (e) of the Biosecurity Act. Paragraphs 227(e) and 233(e) provide that one of these matters is that a circumstance prescribed by regulation 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. Paragraph 59(c) relevantly provides that one of the circumstances in which the Director may vary a determination made under subsection 229(1) of the Biosecurity Act in relation to a port is that the operator of the port has requested the variation.
Purpose
The purpose of the Biosecurity (First Points of Entry Determinations) Amendment (Periods of Effect) Determination (No. 2) 2019 (Amendment Instrument No. 2) is to vary the date of repeal in the following First Point of Entry Determinations:
- Biosecurity (First Point of Entry—Alice Springs Airport) Determination 2016 (Alice Springs Airport Determination)
- Biosecurity (First Point of Entry—Port of Derby) Determination 2016 (Port of Derby Determination)
Background
Subitem 1(1) of Schedule 3 to the Biosecurity (Consequential Amendments and Transitional Provisions) Act 2015 (Transitional Act) provides that despite subsections 223(2) and 229(2) of the Biosecurity Act, the Director may make a determination under subsection 233(1) or 229(1) of that the Biosecurity Act in relation to a landing place or port even if the Director is not satisfied of the matters referred to in subsection 223(2) or 229(2) of the Biosecurity Act in relation to the landing place or port.
To support commencement of the Biosecurity Act, first point of entry determinations were made in relation to landing places and ports under section 223(1) and 229(1) respectively, as permitted by subitem (1)(1) of Schedule 3 to the Transitional Act, to allow ports and landing places that facilitate international arrivals of goods, vessels or aircraft to time to be fully compliant with the necessary requirements under section 223 and 229 of the Biosecurity Act. The period of effect for these determinations is the ‘transition period’, which is defined in subitem 1(6) of Schedule 3 to the Transitional Act to be three years after the Biosecurity Act commences. Therefore, these determinations cease on 15 June 2019.
A related instrument, the Biosecurity (Consequential Amendments and Transitional Provisions) (Extension of First Points of Entry Determinations) Instrument (No. 2) 2019 extends the transitional period for a specified period of time for the landing place (Alice Springs Airport) and the port (the Port of Derby).
Two other related instruments, the Biosecurity (Consequential Amendments and Transitional Provisions) (Extension of First Points of Entry Determinations) Instrument 2019 (the first Extension Instrument) and the Biosecurity (First Point of Entry Determinations) Amendment (Periods of Effect) Determination 2019 (the first Amendment Instrument) were made on 4 June 2019. The first Extension Instrument extends the transition period for seven landing places and 19 ports for a specified period of time and the first Amendment Instrument varies the date of repeal accordingly in the transitional first point of entry determinations to which those landing places and ports relate.
Impact and Effect
The Amendment Instrument No. 2 varies the repeal date for the Alice Springs Airport Determination and the Port of Derby Determination to provide the anticipated time needed for that landing place that port to be fully compliant with the necessary requirements for making determinations for landing places and ports under sections 223 and 229 of the Biosecurity Act.
Consultation
In considering whether landing places and ports met the necessary requirements to make first point of entry determinations under the Biosecurity Act (Determinations), or whether to vary the repeal date of the Determinations, 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 the landing place and the port provided in the Amendment Instrument No. 2 have advised the department that they would not be able to meet the necessary requirements for making a determination under sections 223 and 220 of the Biosecurity Act before the end of the transition period.
The Department of Health was consulted in relation to the Amendment Instrument No. 2.
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). OBPR advised on 31 March 2016 that a RIS is not required and, further to this, confirmed this advice in the context of the amendment instruments on 30 May 2019.
Details / Operation
Details of the Amendment Instrument No. 2 are set out in the Attachment.
Other
The Amendment Instrument No. 2 is a legislative instrument for the purposes of the Legislation Act 2003. However, under sections 228 and 234 of the Biosecurity Act it is not subject to disallowance and so a Statement of Compatibility with Human Rights was not required to be prepared.
ATTACHMENT
Biosecurity (First Points of Entry Determinations) Amendment (Periods of Effect) Determination (No. 2) 2019
Part 1 Preliminary
Section 1 – Name
This section provides that the instrument is the Biosecurity (First Points of Entry Determinations) Amendment (Periods of Effect) Determination (No. 2) 2019 (the Amendment Instrument No. 2).
Section 2 – Commencement
This section provides for the Amendment Instrument No. 2 to commence on 15 June 2019.
Section 3 – Authority
This section provides that the Amendment Instrument No. 2 is made under subsection 226(2) and section 227 and subsection 232(2) and section 233 of the Biosecurity Act 2015.
Section 4 – Schedules
This section provides that a Schedule is attached to the instrument that sets out each determination amended by the Amendment Instrument No. 2.
Schedule 1 – Amendments
Biosecurity (First Point of Entry—Alice Springs Airport) Determination 2016 (Alice Springs Airport Determination)
Item 1 repeals the section called “Period of effect” in the Alice Springs Airport Determination and substitutes a new section with a new heading, “Repeal of this instrument”. The new section provides that the Alice Springs Airport Determination is repealed at the end of 15 June 2021.
Biosecurity (First Point of Entry—Port of Derby) Determination 2016 (Port of Derby Determination)
Item 2 repeals the section called “Period of effect” in the Port of Derby Determination and substitutes a new section with a new heading, “Repeal of this instrument”. The new section provides that the Port of Derby Determination is repealed at the end of 15 June 2021.