Legislation (Biosecurity Goods Determinations) Sunset-altering
Declaration 2026

EXPLANATORY STATEMENT

INTRODUCTION

The Legislation (Biosecurity Goods Determinations) Sunset-altering Declaration 2026 (the Declaration) is made under subsection 51A(1) of the Legislation Act 2003 (the Legislation Act). It is a legislative instrument for the purposes of the Legislation Act and must be registered on the Federal Register of Legislation. The Declaration is subject to the disallowance provisions of the Legislation Act.

OUTLINE

Sunsetting is the automatic repeal of legislative instruments after a fixed period. The Australian Government’s sunsetting framework is established under Part 4 of Chapter 3 of the Legislation Act. The purpose of the sunsetting framework is to ensure that legislative instruments are kept up to date and only remain in force for so long as they are needed.

Subsection 50(1) of the Legislation Act provides that a legislative instrument is automatically repealed on the 1 April or 1 October immediately on or following the tenth anniversary of its registration.

Under subsection 51A(1) of the Legislation Act, the Attorney-General may issue a declaration aligning the sunsetting days of two or more instruments, if satisfied on application by the rule-maker/s of the relevant instruments that:

1.       all the instruments to be reviewed:
   1.             would (in the absence of a declaration made under section 51A of the Legislation Act) be repealed by section 50 or 51 of the Legislation Act; and
   2.             are or will be the subject of a single review; and
2.       the making of the declaration will facilitate the undertaking of the review or the implementation of its findings. 

The objective of issuing a sunset-altering declaration is to facilitate either:

• the undertaking of a single review into the fitness-for-purpose of two or more thematically related legislative instruments, or
• the implementation of such a review’s findings.

The instruments will then be repealed on the day specified in the Declaration instead of the previously scheduled sunsetting days. This allows instruments to continue to be in force for a further but limited period of time after the date on which they would otherwise sunset. This reduces administrative burden as well as the possibility of legislative inconsistencies arising from reviewing and replacing related legislation at different times.

The Declaration aligns the sunsetting dates of the following instruments to 1 October 2031 (together, the Biosecurity Determinations):

1.       Biosecurity (Conditionally Non-prohibited Goods) Determination 2021
2.       Biosecurity (Prohibited and Conditionally Non-prohibited Goods—Christmas Island) Determination 2016
3.       Biosecurity (Prohibited and Conditionally Non-prohibited Goods—Cocos (Keeling) Islands) Determination 2016
4.       Biosecurity (Prohibited and Conditionally Non-prohibited Goods—Norfolk Island) Determination 2016
5.       Biosecurity (Prohibited and Conditionally Non-prohibited Goods—Torres Strait) Determination 2016.

Without the Declaration, the first instrument would sunset on 1 April 2031 and the remaining four instruments would sunset on 1 October 2026.

The ability to align sunsetting dates is an integral part of the sunsetting framework. It provides the necessary flexibility to ensure the standard 10-year sunsetting period does not result in unintended consequences or impose an unreasonable administrative burden on Commonwealth agencies or the Parliament. Aligning the sunsetting dates of the Biosecurity Determinations will enable the Department to conduct a thematic review of the instruments. The alignment of these sunsetting dates would provide an opportunity to conduct a comprehensive review of biosecurity goods determinations relevant to external territories, the Torres Strait and the rest of the Australian territory to ensure that the legislation is fit for purpose and continues to appropriately manage biosecurity risks.

PROCESS BEFORE DECLARATION WAS MADE

Regulatory impact analysis

Sunset-altering declarations are machinery of government instruments, and are therefore not subject to the regulatory impact assessment requirements set out by the Office of Impact Analysis (OIA). The OIA reference for this standing exemption is ID19633.

Consultation before making

Before the Declaration was issued, the Attorney‑General considered the general obligation to consult imposed by section 17 of the Legislation Act.

The Biosecurity Determinations are made under the Biosecurity Act 2015 (the Biosecurity Act). Each determination covers a different part of Australian territory, with the first three determinations covering Australia’s external territories, the fourth covering the Torres Strait and the fifth covering the rest of the Australian territory. The determinations specify certain classes of goods as conditionally non-prohibited goods which must not be brought or imported into the relevant Australian territory unless they are covered by an import permit or they comply with alternative conditions specified in the determination.

Initial scoping for a review of the determinations due to sunset on 1 October 2026 was undertaken in 2024. The scoping involved widespread consultation across operational areas within the Department of Agriculture, Fisheries and Forestry (Agriculture Department) and with external agencies. This resulted in a list of proposed changes and identified additional areas for possible further review. Consequently, the Agriculture Department intends to conduct a comprehensive review before re‑making the determinations to ensure the legislation is fit for purpose and continues to appropriately manage biosecurity risks.

Alignment declarations are machinery in nature, and enable legislative instruments that would otherwise sunset to remain in force for a further, but strictly limited, period of time. The alignment of sunsetting dates will minimise the administrative burden on stakeholders associated with consultation on the re-make of instruments that will only have effect for a limited amount of time. Any replacement instruments will be subject to further consultation and parliamentary oversight, including oversight of whether adequate consultation occurred with persons likely to be affected by the replacement instruments. As such, given that alignment of the sunsetting date of the Biosecurity Determinations is consistent with the policy intent of the sunsetting regime and does not significantly alter existing arrangements, appropriate consultation has occurred for the purposes of section 17 of the Legislation Act.

Statutory preconditions relevant to the certificate

In order to align the sunsetting day of two or more instruments, the Attorney-General must be satisfied on written application from the relevant rule-maker/s that the statutory conditions in paragraphs 51A(1)(a) and (b) of the Legislation Act are met. The statutory conditions are that:

1.         all the instruments to be reviewed:
   1.         would (in the absence of a declaration made under section 51A of the Legislation Act) be repealed by section 50 or 51 of the Legislation Act; and 
   2.       are or will be the subject of a single review; and
2.        the making of the declaration will facilitate the undertaking of the review or the implementation of its findings. 

In terms of process, the Legislation Act requires:

1.         the responsible rule-maker/s to apply to the Attorney-General;
2.        the Attorney-General to be satisfied of the statutory conditions; and
3.         the Attorney-General to make a declaration, which is a legislative instrument and subject to disallowance.

The rule-makers for the Biosecurity Determinations, the Director of Biosecurity in the Agriculture Department and the Acting Director of Human Biosecurity in the Department of Health, Disability and Ageing, provided a written application to the Attorney‑General seeking a declaration of alignment of the sunsetting days for the instruments. On the basis of the information contained in the statement of reasons below, the Attorney-General is satisfied that the criteria in paragraphs 51A(1)(a) and (b) of the Legislation Act are met.

Statement of Reasons for issuing of the Certificate

For the purposes of subsection 51A(4) of the Legislation Act, this section sets out the statement of reasons for the issue of the certificate.

The Declaration aligns the sunsetting dates for the Biosecurity Determinations to enable the Agriculture Department to conduct a thematic review in consultation with the Department of Health, Disability and Ageing.

The determinations specify certain classes of goods as conditionally non-prohibited goods which must not be brought or imported into Australian territory unless they are covered by an import permit or they comply with alternative conditions specified in the determination.

The determinations ensure that the import conditions for specified goods are designed to manage the biosecurity risk to a level that achieves an appropriate level of protection for Australia. Each of the determinations interact with one another to manage the risks of pests and diseases to Australia.  It is necessary for all determinations to be reviewed at the same time to ensure conditions and classes of goods are consistent between the external territories, the Torres Strait and the rest of the Australian territory.

A comprehensive review will ensure the Agriculture Department is able to facilitate trade consistent with the objects of the Biosecurity Act in the most efficient manner and to ensure the legislation is fit for purpose to respond to changes in biosecurity risk. Alignment of sunsetting dates will ensure that any changes are holistic and account for the complex nature of the importation of conditionally non‑prohibited goods. It is anticipated that the review will:

• consider the current framework and determinations which are currently used to manage the importation of conditionally non-prohibited goods into parts of the Australian territory (including consideration of the effectiveness of multiple determinations and whether consolidation may occur);
• consider necessary changes and any inadvertent consequences of such changes (including how such consequences can be addressed);
• involve engagement with affected stakeholders to ensure proposed changes reduce risks and improve outcomes for industry and government; and
• involve extensive consultation with operational areas across the Agriculture Department.

A thematic review will facilitate an efficient and effective review process and enable consistent implementation of review findings. As such, the Declaration is consistent with the policy intent of the sunsetting regime that legislative instruments should be kept up to date and only remain in force so long as they are needed.

More information

Further details on the provisions of the Declaration are provided in Attachment A.

The Biosecurity Determinations, which will now sunset on 1 October 2031 as specified in the Declaration, are available on the Federal Register of Legislationhttp://www.comlaw.gov.au.

Further information may be requested from the Attorney‑General’s Department about the operation of the Declaration, and from the Agriculture Department  about the instruments to which the Declaration applies.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

The Legislation (Biosecurity Goods Determinations) Sunset-altering Declaration 2026 (the Declaration) is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (the Human Rights Act).

Overview of the Declaration

The Declaration is made under subsection 51A(1) of the Legislation Act 2003 (the Legislation Act). Under that subsection, the Attorney-General can align the sunsetting days of two or more legislative instruments to 1 April or 1 October of a year that is up to five years later than the earliest sunsetting day. The instruments specified in the declaration will then be repealed on the day specified in the Declaration instead of the previously scheduled sunsetting day. The instruments specified in the Declaration are (together, the Biosecurity Determinations):

1.       Biosecurity (Conditionally Non-prohibited Goods) Determination 2021
2.       Biosecurity (Prohibited and Conditionally Non-prohibited Goods—Christmas Island) Determination 2016
3.       Biosecurity (Prohibited and Conditionally Non-prohibited Goods—Cocos (Keeling) Islands) Determination 2016
4.       Biosecurity (Prohibited and Conditionally Non-prohibited Goods—Norfolk Island) Determination 2016
5.       Biosecurity (Prohibited and Conditionally Non-prohibited Goods—Torres Strait) Determination 2016.

The Declaration aligns the sunsetting dates of the Biosecurity Determinations to 1 October 2031. Prior to the making of the Declaration, the first instrument was due to sunset on 1 April 2031 and the remaining four instruments were due to sunset on 1 October 2026. The objective of issuing the Declaration is to facilitate the undertaking of a thematic review.

Human Rights Implications

The Declaration does not engage any issues of human rights and freedoms recognised or declared by the international instruments in section 3 of the Human Rights Act. This is because the subject matter of these determinations is based on scientific evaluation of the biosecurity risk of certain imported goods and the appropriate level of protection that needs to be applied, and such evaluations do not engage any human rights.

Before issuing the Declaration, the Attorney‑General was satisfied that all instruments specified in the Declaration would be subject to a single thematic review. A thematic review is an effective mechanism for determining whether the instruments are fit for purpose, identifying opportunities to update, streamline and clarify the operation of the instruments and, where appropriate, reducing unnecessary regulation. Instruments that are replaced will be subject to parliamentary scrutiny and oversight through the disallowance processes unless otherwise exempt. The human rights impact of the Biosecurity Determinations will be assessed at the time any replacement instruments are made.

Conclusion

The Declaration is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights Act, as it does not raise any human rights issues.

ATTACHMENT A

NOTES ON THE DECLARATION 

Section 1 Name

This section provides for the declaration to be named the Legislation (Biosecurity Goods Determinations) Sunset-altering Declaration 2026. The declaration may be cited by that name.

Section 2  Commencement

This section provides for the declaration to commence on the day after it is registered.

Section 3 Authority

This section provides that the declaration is made under subsection 51A(1) of the Legislation Act 2003.

Section 4 Aligning of sunsetting

This section provides that the following instruments are repealed by section 51A of the Legislation Act 2003 on 1 October 2031:

• Biosecurity (Conditionally Non-prohibited Goods) Determination 2021
• Biosecurity (Prohibited and Conditionally Non-prohibited Goods—Christmas Island) Determination 2016
• Biosecurity (Prohibited and Conditionally Non-prohibited Goods—Cocos (Keeling) Islands) Determination 2016
• Biosecurity (Prohibited and Conditionally Non-prohibited Goods—Norfolk Island) Determination 2016
• Biosecurity (Prohibited and Conditionally Non-prohibited Goods—Torres Strait) Determination 2016.

1 October 2031 is the aligned sunsetting day for these instruments, which would otherwise have sunset on 1 October 2026 or 1 April 2031.

Section 5 Repeal of this instrument

This section provides that the declaration is repealed at the start of 2 October 2031. This ensures that the declaration is not in force any longer than is necessary.