EXPLANATORY STATEMENT
Biosecurity Act 2015
Biosecurity (Managing Human Remains) Amendment (Hair, Teeth and Bones) Instrument 2019
The Biosecurity Act 2015 (the Act) provides the main legislative and regulatory framework for the Australian Government’s management of the risk of pests and diseases entering Australian territory and causing harm to animal, plant and human health, the environment and the economy. The Act manages biosecurity risks – including the risk of listed human diseases – entering Australian territory, or emerging, establishing themselves, or spreading in Australian territory or a part of Australian territory. One way in which the Act does this is by providing for requirements to be imposed, by legislative instrument, in relation to human remains being brought into Australian territory.
The Biosecurity (Managing Human Remains) Instrument 2016 (the 2016 instrument), made under the Act, specifies classes of human remains and requirements for bringing them into Australian territory and managing them.
Authority
Section 110 of the Act specifies that the Director of Human Biosecurity may specify in writing, classes of human remains and requirements for bringing the remains into Australian territory and managing the human remains after they are brought into Australian territory.
In addition to the power to make this instrument under section 110 of the Act, subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Purpose
The purpose of the instrument is to amend the requirements imposed in the 2016 instrument for importing human remains into Australia.
The instrument provides for an embalming certificate to be accepted documentation for the importation of remains for burial or cremation.
The instrument also removes requirements for the importation of hair, teeth and bones from a deceased human’s body, and notes that hair, teeth and bones are managed by determinations made under section 174(1) of the Act.
Consultation
During the development of the instrument, the Department of Health consulted with the Department of Agriculture regarding the operational considerations for implementing the amendments. No issues were raised during this consultation.
Commencement
This instrument commences the day after registration of the instrument.
This instrument is a legislative instrument for the purposes of the Legislation Act 2003.
ATTACHMENT
Details of the Biosecurity (Managing Human Remains) Amendment (Hair, Teeth and Bones) Instrument 2019
1 Name of Instrument
Section 1 states that the name of this amending instrument is the Biosecurity (Managing Human Remains) Amendment (Hair, Teeth and Bones) Instrument 2019.
2 Commencement
Section 2 states that these amendments commence on the day after the instrument is registered on the Federal Register of Legislation.
3 Authority
Section 3 states that the authority for the instrument is subsection 110(2) of the Biosecurity Act 2015.
4 Schedules
Section 4 states that each instrument mentioned in the Schedule to the instrument is amended or repealed as set out in the Schedule.
Schedule 1 Amendments
Schedule 1 contains six items, which make amendments to subsection 5(1) of the 2016 instrument and the notes to the subsection. Subsection 5 of the 2016 instrument specifies classes of human remains and requirements for bringing those classes of human remains into Australian territory and managing them.
Item 1 Subsection 5(1) (table item 1, column 2, subparagraph (a)(i))
Item 1 amends the requirements for deceased human bodies or parts of deceased human bodies being brought into Australian territory for the purposes of burial or cremation, so that a body or part of a body may be accompanied by an official copy of an official embalming certificate.
Item 2 Subsection 5(1) (table item 3)
Item 2 repeals existing table item 3, and replaces it with a new class of human remains, being deceased human bodies or parts of deceased human bodies intended to be used for a purpose not covered by table items 1 or 2 (for example, for display or use as curios), and states the requirements for that class of remains.
Item 3 Subsection 5(1) (table item 4)
Item 3 repeals in its entirety existing table item 4, which relates to hair, teeth or bones of a deceased human’s body.
Item 4 Subsection 5(1) (note 1)
Item 4 substitutes the existing note with two new notes reflecting the amendments made to subsection 5, and referring to s 174(1) of the Act in relation to hair, teeth or bones of a deceased human body.
Item 5 Subsection 5(1) (note 2)
Item 5 replaces the title of the note to update its numbering.
Item 6 Subsection 5(1) (note 3)
Item 6 replaces the title of the note to update its numbering.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Biosecurity (Managing Human Remains) Amendment (Hair, Teeth and Bones) Instrument 2019
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The Biosecurity (Managing Human Remains) Amendment (Hair, Teeth and Bones) Instrument 2019 amends requirements for importing human remains into Australian territory.
Human rights implications
This legislative instrument engages and is consistent with Article 12(1) of the International Covenant on Economic, Social and Cultural Rights by assisting with the progressive realisation by all appropriate means of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
This instrument provides the means of protecting public health in Australia through the prescription of requirements for importing human remains as part of human biosecurity measures adopted to manage the risk of listed human diseases entering Australian territory, or emerging, establishing themselves, or spreading in Australian territory or a part of Australian territory.
Conclusion
This legislative instrument is compatible with human rights because it promotes the human right to an adequate standard of living and the highest attainable standard of physical and mental health.
Professor Brendan Murphy
Director of Human Biosecurity
Chief Medical Officer
Department of Health