Biosecurity (Movements between Parts of Australian Territory) Declaration 2016

EXPLANATORY STATEMENT

Issued by Authority of the Director of Biosecurity and the Director of Human Biosecurity

Biosecurity Act 2015

Biosecurity (Movements between Parts of Australian Territory) Declaration 2016

Legislative Authority

The Biosecurity Act 2015 (the Biosecurity Act) provides the Commonwealth with powers to assess and manage the risk of pests and diseases entering Australian territory and causing harm to animal, plant and human health, the environment and the economy.

Subsection 618(2) of the Biosecurity Act specifies that the Director of Biosecurity and Director of Human Biosecurity may make a declaration that a modified operation of the Biosecurity Act will apply to persons, goods, or conveyances, or classes of persons, goods, or conveyances, which move from an ‘origin part’ to a ‘destination part’ of Australian territory.

Subsection 618(3) of the Biosecurity Act provides that before making a declaration under subsection (2) relating to the movements, the Director of Biosecurity and the Director of Human Biosecurity must be satisfied that there is an unacceptable level of biosecurity risk associated with the movements if they are not regulated and the application of the provisions affected by the modification (set out in section 619) is appropriate and adapted to managing biosecurity risks associated with the movements.

Subsection 618(4) includes a table of origin and destination parts that may be specified in a declaration made under section 618. Places other than the origin and destination parts specified in this table may be declared as origin and destination parts if the criteria set out in subsection 618(5) are met.

Subsection 618(5) of the Biosecurity Act provides that before additional parts of Australian territory as origin and destination parts, the Director of Biosecurity and the Director of Human Biosecurity must be satisfied that the origin part and the destination part do not overlap and persons, goods or conveyances cannot be moved from the origin part to the destination part by land.

Purpose

The purpose of the Biosecurity (Movements between Parts of Australian Territory) Declaration 2016 (Declaration) is to set out which origin parts and destination parts in Australian territory the modified application of the Biosecurity Act applies to in order to enable the management of unique biosecurity risks in certain parts of Australian territory.

This declaration will transition the regulatory scheme set out under the Quarantine Act 1908 (Quarantine Act) to continue under the Biosecurity Act by triggering the application of provisions of the Biosecurity Act that would normally only be triggered by persons, goods or conveyances entering Australian territory from an international origin.

Background

The Biosecurity Act commenced on 16 June 2016 12 months after royal assent. The Biosecurity Act replaces the Quarantine Act and provides a strong regulatory framework that enables the management of biosecurity risks in a modern and responsive manner. The Biosecurity Act enhances Australia’s capacity to manage biosecurity risks into the future by providing a high-level legislative framework that clearly sets out the powers that can be exercised by officials as well as the requirements for those being regulated.

The Biosecurity Act is principles-based and lays the foundation for biosecurity risk management. The detail and specific information requirements for certain activities under the Biosecurity Act are provided for in the Biosecurity Regulation 2016 and other delegated legislation, including this Declaration.

Impact and Effect

Legislative requirements were in place under the Quarantine Act relating to the movement of certain goods and conveyances between mainland Australia and some of Australia’s external territories and from the Torres Strait to mainland Australia. The Declaration benefits individuals and businesses by clearly setting out all the movements to which the modified operation of the Act applies in the one instrument.

Consultation

During preparations for the implementation of the Biosecurity Act in 2015–16, the Department of Agriculture and Water Resources actively raised awareness among clients, stakeholders and the general public that new legislation commenced on 16 June 2016. This included holding forums targeting peak industry bodies in Canberra and major city regions in Australia, which were attended by over 700 representatives overall from shipping, ports, petroleum, airlines, airports, freight, cargo, food and beverage industries, research, education, science, plant and animal health and state, territory and federal governments. Meetings and workshops were also held with state and territory governments, other government agencies (including the Department of Health, Department of Defence and the Department of Immigration and Border Protection), as well as with consultative committees, and environmental groups. Regular biosecurity legislation update notifications were distributed to subscribers across five of the department’s subscription lists. International trading partners were also notified via the World Trade Organization Sanitary and Phytosanitary notification.

The consultation undertaken built upon extensive consultation on the Biosecurity Act which began in 2009. During the development process, the department consulted with industry representatives from the cargo, shipping, ports, supply chain and logistics, airline, airport, customs, environment, animal, plant, invasive species, primary production and petroleum/exploration sectors through working groups.

The department and the Department of Health also maintained ongoing consultation with the residents of the external territories and the Torres Strait region in making the Declaration. Both departments communicated the details of the Declaration with individuals and business in the external territories and the Torres Strait prior to its commencement as a measure to ensure compliance and foster ongoing positive relationships.

The Office of Best Practice Regulation (OBPR) was consulted in the preparation of the Regulation Impact Statement (RIS) for the Biosecurity Bill 2014 (ID: 16609). The OBPR advised on 31 March 2016 that a further RIS is not required for the purposes of Biosecurity delegated legislation. The department consulted the Office of Parliamentary Counsel in the drafting of this Determination.

The Declaration is a legislative instrument for the purposes of the Legislation Act 2003. However, it is not subject do disallowance under subsection 618(7) of the Biosecurity Act. The decision to make a declaration under subsection 618(2) of the Biosecurity Act is a technical and scientific based decision that the level of biosecurity risks associated with the movements are unacceptable if they are not regulated.

A Statement of Compatibility with Human Rights was prepared for the Biosecurity Act. An additional statement is not required for this Determination as it is not subject to disallowance.

Details of the Biosecurity (Movements between Parts of Australian Territory) Declaration 2016

Section 1 – Name

‘

This section provides that the name of this Declaration is the Biosecurity (Movements between Parts of Australian Territory) Declaration 2016.

Section 2 – Commencement

This section provides that this Declaration commences at the same time as section 3 of the Biosecurity Act 2015 (Biosecurity Act) commences. Section 3 of the Biosecurity Act commences on 16 June 2016.

Section 3 – Authority

This section provides that this Declaration is made under subsection 618(2) of the Biosecurity Act. The Director of Biosecurity and the Director of Human Biosecurity were satisfied of the matters provided in subsections 618(3) and (5) of the Biosecurity Act before making this instrument.

Section 4 – Definitions

This section provides the definitions used in the Declaration. Some of these definitions refer to defined terms used in the Biosecurity Act and the Biosecurity Regulation 2016 (Biosecurity Regulation), as in force from time to time. The Biosecurity Act and Biosecurity Regulation are available on the Federal Register of Legislation at www.legislation.gov.au.

Act

This definition provides that the reference to ‘Act’ means the Biosecurity Act.

Torres Strait permanent biosecurity monitoring zone

This definition provides that the reference ‘Torres Strait permanent biosecurity monitoring zone’ has the same meaning as in the Biosecurity Regulation.

The note clarifies that there are a number of other expressions used in this Declaration that are defined in the Biosecurity Act, including ‘affected provisions’, ‘Australian territory’, ‘conveyance’, ‘goods’ and ‘protected zone’.

Section 5 – Regulated movements between parts of Australian territory

This section provides that Subdivision B of Division 2 of Part 4 of Chapter 11 of the Biosecurity Act applies to movements that:

(a)   are of a thing specified in column 3 of an item in the table of this section, and

(b)   are from a part (the origin part) of Australian territory specified in column 1 of that item, and

(c)   are to another part (the destination part) of Australian territory specified in column 2 of that item.

This means that the provisions listed in section 619 (the affected provisions) of the Biosecurity Act apply to goods and conveyances—or in some cases certain classes of goods or conveyances—that move from an origin part to a destination part listed in the table in this section. The affected provisions apply as described in sections 620-624 of the Biosecurity Act, subject to the exemptions provided by section 118 of the Biosecurity Regulation and section 6 and subsection 7(3) of the Biosecurity (Human Health) Regulation 2016 (see Note 1).

Items 1 – 6 in the table set out the origin parts and destination parts that were listed under subsection 618(4) of the Biosecurity Act for the movement of goods and conveyances:

• Australian territory except Christmas Island and airspace above it (origin part) to Christmas Island and the airspace above it (destination part)
• Christmas Island and airspace above it (origin part) to Australian territory except Christmas Island and airspace above it (destination part)
• Christmas Island and the airspace above it (origin part) to Cocos (Keeling) Islands and airspace above them (destination part)
• Australian territory except Cocos (Keeling) Islands and airspace above them (origin part) to Cocos (Keeling) Islands and airspace above them (destination part)
• Cocos (Keeling) Islands and airspace above them (origin part) to Australian territory except Cocos (Keeling) Islands and airspace above them (destination part)
• Cocos (Keeling) Islands and airspace above them (origin part) to Christmas Island and airspace above it (destination part).

Items 7 and 8 in the table set out Norfolk Island and the airspace above it as an origin part and Australian territory except Norfolk Island and the airspace above it as a destination part (and vice versa) for the movement of goods and conveyances. This means that the affected provisions set out in section 619 of the Biosecurity Act—such as the ability for the Director of Biosecurity and the Director of Human Biosecurity to determine that specified classes of goods must not be brought in unless conditions are complied with, and the requirement to provide pre-arrival reporting for goods, vessels and aircraft—apply in relation to goods and conveyances covered by these items.

Item 9 in the table sets out the protected zone and the airspace above it as an origin part and the Torres Strait permanent biosecurity monitoring zone and the airspace above it as a destination part for the movement of goods. Items 10 and 11 in the table set out the protected zone and the Torres Strait permanent biosecurity monitoring zone and the airspace above each zone as origin parts and Australian territory (except the Torres Strait permanent biosecurity monitoring zone and the protected zone and the airspace above each zone) as destination parts for the movement of:

• goods
• aircraft that are intended to land at a landing place in the destination part, and
• vessels longer than 7 metres that are intended to be moored at a port in the destination part.

This means that the affected provisions set out in section 619 of the Biosecurity Act—such as the ability for the Director of Biosecurity and the Director of Human Biosecurity to determine that specified classes of goods must not be brought in unless conditions are complied with, and the requirement to provide a pre-arrival report for vessels and aircraft— apply in relation to goods covered by item 9, 10 and 11 and conveyances covered by items 10 and 11 of the table.

Note 1 explains that the application of the affected provisions is subject to the exemptions provided by section 118 of the Biosecurity Regulation and section 6 and subsection 7(3) of the Biosecurity (Human Health) Regulation 2016. These exemptions are in place to reduce regulation of goods and conveyances being moved between these parts of Australian territory where some of the affected provisions are not necessary or appropriate to manage biosecurity risk to an acceptable level.

Vessels are excluded from item 9 of the declaration, and vessels that are less than 7 metres in length are excluded from items 10 and 11, as the powers in Chapter 6 of the Biosecurity Act are intended to be used to manage risks associated with these vessels, if necessary. Aircraft and vessels that are not intending to land or moor in the destination parts are excluded from items 10 and 11 of this declaration as the biosecurity risks associated with transiting aircraft and vessels is acceptable.

Note 2 clarifies that a notice may not need to be given under section 120 of the Biosecurity Act in relation to goods that are, or are intended to be, brought from the origin part specified in column 1 of item 9, 10 or 11 of the table to the destination part specified in column 2 of the relevant item (see section 16 of the Biosecurity Regulation).

Note 3 clarifies that the operator of an aircraft or vessel that is intended to enter, or that enters, the destination part specified in column 2 of an item in the table from the origin part specified in column 1 of the relevant item may not need to give a report under section 193 of the Biosecurity Act (see sections 50 and 51 of the Biosecurity Regulation).