Biosecurity (Preventative Biosecurity Measures—Incoming International Flights) Repeal Determination 2022

Administered by Department of Health, Disability and Ageing

Legislation au F2022L01180 Not in force Legislative Instrument

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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 COVID19 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 COVID19 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 COVID19 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 The Repeal Determination is automatically repealed after its commencement under section 48A of the Legislation Act.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

 

COVID19

 

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 COVID19 in the world. Over 96% of people over the age of 16 in Australia have had 2 doses of an approved COVID19 vaccine. Furthermore, as at September 2022 over 71% of eligible Australians have received three or more COVID19 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.

 

 

 

Overview

The Biosecurity (Preventative Biosecurity Measures—Incoming International Flights) Repeal Determination 2022 was enacted in response to the evolving COVID-19 pandemic situation in Australia. This legislation repeals the earlier Biosecurity (Preventative Biosecurity Measures—Incoming International Flights) Determination 2022, which mandated the wearing of face masks or face coverings by passengers and crew on incoming international flights. This repeal was initiated by the Minister for Health and Aged Care, following advice from the Chief Medical Officer, recognising the current context in Australia with improved epidemiological trends, high vaccination coverage, and the global easing of COVID-19 restrictions. The determination aligns with the next stage of Australia's public health response to COVID-19, considering the high vaccination rates and public health advice. The Biosecurity Act 2015, enacted by the Australian Parliament, provides the legal framework for managing risks posed by infectious human diseases. The Repeal Determination, a legislative instrument under the Legislation Act 2003, is automatically repealed after its commencement, as per section 48A of the Legislation Act. This repeal determination effectively removes the federal mandate for mask-wearing on international flights, although individual airlines may still enforce their own health and safety measures. The repeal is effective from 9 September 2022, as specified in the commencement section of the Repeal Determination.

Scope and Application

The Biosecurity (Preventative Biosecurity Measures—Incoming International Flights) Repeal Determination 2022 repeals the Biosecurity (Preventative Biosecurity Measures—Incoming International Flights) Determination 2022, which was a response to the COVID-19 pandemic and required passengers and crew on international flights entering Australian territory to wear face masks. This repeal determination applies to all individuals on international flights scheduled to land in Australia on or after 9 September 2022 in the Australian Capital Territory, effectively removing the federal mandate for mask-wearing on such flights. The repeal is based on the current epidemiological context in Australia, high vaccination rates, and international easing of COVID-19 requirements. The repeal aligns with Australia's public health strategy and recognises the significant progress made in managing the pandemic. The Biosecurity Act 2015 provides the legislative framework for the Australian government to manage infectious disease risks, and this repeal determination is a legislative instrument under that Act, subject to the provisions of the Legislation Act 2003. Although this repeal removes the federal mask mandate, airlines and other transport operators may still implement their own health and safety requirements as part of their terms of carriage.

Key Provisions

The main operative sections of the Biosecurity (Preventative Biosecurity Measures—Incoming International Flights) Repeal Determination 2022 (section 2) require that the repeal takes effect from 9 September 2022. Section 3 specifies the authority under which this repeal is made, namely subsection 51(2) of the Biosecurity Act 2015. This repeal effectively cancels the previous Determination, which mandated the wearing of face masks or face coverings for passengers and crew on incoming international flights. The repeal is intended to align with Australia's evolving public health response to COVID-19, taking into account current epidemiological trends and vaccination rates. The obligations imposed by the Repeal Determination are primarily on the Minister for Health and Aged Care, who is required to consider the latest health advice and epidemiological data when deciding to repeal the Determination. The repeal itself removes the mandate for passengers and crew to wear face masks on international flights, although it is noted that individual airlines may still enforce their own health and safety measures. The determination ensures that passengers on flights departing before the repeal and landing after its commencement are still subject to the mask-wearing requirement, as outlined in section 5. Any breaches of the repealed Determination would have been subject to penalties under the Biosecurity Act 2015, although with the repeal, such requirements no longer exist. The previous Determination may have included civil or criminal penalties for non-compliance, but these are no longer applicable following the repeal. The Repeal Determination ensures that the legislative instrument is consistent with current health advice and public health strategies, reflecting the high vaccination rates and the easing of international COVID-19 restrictions.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.