EXPLANATORY STATEMENT
Biosecurity Act 2015
Biosecurity (Preventative Biosecurity Measures—Incoming International Flights) Repeal Determination 2022
Purpose
The Biosecurity (Preventative Biosecurity Measures—Incoming International Flights) Repeal Determination 2022 (Repeal Determination) repeals the Biosecurity (Preventative Biosecurity Measures—Incoming International Flights) Determination 2022 (Determination).
Repeal of the Determination
The Determination was made by the then Minister for Health and Aged Care under the Biosecurity Act as part of a measured and proportionate response to the COVID‑19 pandemic.
The Determination requires passengers and crew entering Australian territory on an incoming international flight to wear face masks or face coverings.
Repeal of the Determination will remove the mask wearing requirements for international travellers that were put in place to assist with Australia’s response to the COVID‑19 pandemic. Although operators of international aircraft and vessels may still choose to implement their own health and safety requirements, for example, as part of the terms and conditions of carriage on their services.
The Minister for Health and Aged Care, on advice from the Chief Medical Officer, is satisfied that the repeal of the Determination is appropriate and adapted to the current context in Australia, being the latest epidemiological trends, high vaccination coverage, balanced with the ongoing risk of COVID-19 entering Australia through infected passengers and crew on incoming international flights.
The repeal of the Determination is in line with the next stage of Australia’s public health response to the COVID‑19 pandemic, the easing of COVID-19 requirements internationally, high domestic and global vaccination rates and public health advice.
Authority
The Biosecurity Act provides the legal framework for the Australian Government to manage the risks posed by infectious human diseases.
The Repeal Determination is a legislative instrument for the purposes of the Legislation Act 2003 (Legislation Act). The Repeal Determination is automatically repealed after its commencement under section 48A of the Legislation Act.
Subsection 51(2) of the Biosecurity Act provides that the Minister for Health and Aged Care may determine one or more of the following requirements to be taken by specified classes of persons:
- banning or restricting a behaviour or practice;
- requiring a behaviour or practice;
- requiring a specified person to provide a specified report or keep specified records; or
- conducting specified tests on specified goods.
Subsection 51(4) of the Biosecurity Act provides a determination made under subsection 51(2) is a legislative instrument, to which section 42 (disallowance) of the Legislation Act 2003 does not apply.
Background
COVID‑19
On 5 January 2020, the World Health organization (WHO) notified Member States under the International Health Regulations 2005 of an outbreak of pneumonia of unknown cause in Wuhan city, China. On 21 January 2020 ‘human coronavirus with pandemic potential’ became a ‘listed human disease’ under section 42 of the Biosecurity Act (see the Biosecurity (Listed Human Diseases) Determination 2016). On 30 January 2020, the outbreak was declared by the WHO International Regulations Emergency Committee to constitute a Public Health Emergency of International Concern.
On 11 February 2020, the WHO announced that the International Committee on Taxonomy of Viruses named the pathogen virus SARS-CoV-2. The international name given by WHO to the disease caused by SARS-CoV-2 is Coronavirus disease 2019 (COVID‑19). On 11 March 2020, the WHO declared the outbreak of COVID-19 a pandemic.
Australia is one of the most vaccinated countries against COVID‑19 in the world. Over 96% of people over the age of 16 in Australia have had 2 doses of an approved COVID‑19 vaccine. Furthermore, as at September 2022 over 71% of eligible Australians have received three or more COVID‑19 vaccine doses.
Reliance on subsection 33(3) of the Acts Interpretation Act 1901
Under subsection 33(3) of the Acts Interpretation Act 1901, 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.
Commencement
The Repeal Determination commences on 9 September 2022.
Consultation
The Department of Home Affairs and the Department of Agriculture, Fisheries and Forestry were consulted in the making of the Repeal Determination.
ATTACHMENT
Details of the Biosecurity (Preventative Biosecurity Measures—Incoming International Flights) Repeal Determination 2022
Part 1—Preliminary
Section 1 provides that the name of the Repeal Determination is the Biosecurity (Preventative Biosecurity Measures—Incoming International Flights) Repeal Determination 2022.
Section 2 provides that the Repeal Determination commences on 9 September 2022.
Section 3 states that the authority for making the Repeal Determination is subsection 51(2) of the Biosecurity Act.
Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Part 2—Savings
Section 5 provides that despite the repeal of the Determination, individuals on incoming international flights scheduled to depart before it is 12:01am on 9 September 2022 in the Australian Capital Territory and scheduled to land in Australia at or after it is 12.01am on 9 September 2022 in the Australian Capital Territory are required to wear face masks or face coverings for the duration of the flight.
Schedule 1 – Repeals
Biosecurity (Preventative Biosecurity Measures—Incoming International Flights) Determination 2022
Item 1 repeals the whole of the Biosecurity (Preventative Biosecurity Measures—Incoming International Flights) Determination 2022. Repealing the Determination will mean that passengers and crew are no longer required by the Commonwealth to wear face masks or face coverings on incoming international flights.