EXPLANATORY STATEMENT
STATUTORY RULES 1985 No. 313
Issued by the Authority of the Minister for Primary Industry
QUARANTINE ACT 1908
QUARANTINE (ANIMALS) REGULATIONS (AMENDMENT)
Section 87 of the Quarantine Act 1908 (‘the Act’) provides, among other things, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Statutory Rules 1983 No. 70 amended the Quarantine (Animals) Regulations (‘the Regulations’) by inserting Part VIIIA into the Regulations to provide for the examination of animals for export. The Senate Standing Committee on Regulations and Ordinances (‘the Committee’) wrote to the Minister for Health, who was then responsible for these Regulations, expressing concern with respect to sub-regulations 86B(1), 86B(3), 86B(6), 86F(8), and regulation 86G.
The Committee was concerned that the words ‘where the Director is satisfied’ in sub-regulations 86B(1), 86B(3), 86B(6), 86C(1) and 86F(8) made the Director’s judgement a subjective rather than an objective one as there are no qualifications or criteria in those provisions upon which the decision could be based. The Committee also felt that the review provisions under regulation 86G would be more effective if there was an objective basis upon which the Director should be ‘satisfied’. Concern was also expressed with respect to the use of the word ‘regularly’ in sub-regulation 86B(1) as its meaning was not readily apparent.
The Committee accepted the explanation of the Minister for Health that the provision that the Director be satisfied in sub-regulation 86B(6) was necessary to prevent recognised exporters abusing the fee collection system by withholding payment of the fees and where approval was revoked as a result, paying the fees at a later time and thereby becoming approved as a recognised exporter again.
The Minister for Health advised the Chairman of the Committee that regulations 86B, 86C and 86F would be amended to provide for the Director to be satisfied on reasonable grounds and sub-regulation 86B(1) would be amended to convey the intended meaning of ‘regularly’. The Committee has accepted the proposed changes to these provisions.
The Regulations amend sub-regulations 86B(1), 86B(3), 86C(1) and 86F(8) to satisfy the Committee’s recommendation that in making a decision under these provisions the Director must be satisfied on reasonable grounds. Sub-regulation 86B(1) is also amended to more clearly convey the intended meaning of the word ‘regularly’ by omitting the words ‘a person exports animals regularly’ and substituting ‘a person has a continuing interest in the livestock export industry’.
The opportunity has been taken in the Regulations to bring the review and notification provisions of Part VIIIA of the Regulations into line with similar provisions in other recent legislation. The changes to the Regulations are primarily concerned with the form of the review and notification provisions.
The Regulations introduce two changes to sub-regulation 86G(1) to require that decisions be notified within a period of 30 days and to further require that the Director notify the grounds for that decision. The latter amendment attracts the operation of section 25D of the Acts Interpretation Act 1901. Section 25D would require a notice given under proposed sub-regulation 86G(1) to set out the findings on material questions of fact that gave rise to the decision so notified and refer to the evidence or other material on which the findings were based.
Regulation 5 of the Statutory Rules is a savings provision which will ensure that any applications before the Administrative Appeals Tribunal prior to the commencement of the regulations, will not be affected by the proposed amendments.
Overview
The Quarantine Act 1908 was enacted to prevent the introduction and spread of pests and diseases through the regulation of the import and export of animals and goods. The Quarantine (Animals) Regulations (Amendment) Statutory Rules 1985 No. 313, issued by the authority of the Minister for Primary Industry, were introduced to address concerns raised by the Senate Standing Committee on Regulations and Ordinances regarding the subjective nature of certain provisions in the Quarantine (Animals) Regulations. These concerns primarily centred around the use of phrases like "where the Director is satisfied" and the ambiguous term "regularly." The policy objective of the amendments was to provide more objective criteria for the Director's decisions and to clarify certain terms, thereby ensuring a more consistent and transparent regulatory framework. The Committee's recommendations were accepted, and the Regulations were amended to require the Director to be satisfied on reasonable grounds and to clarify the meaning of "regularly" in the context of animal exports. Additionally, the review and notification provisions were updated to align with similar provisions in other legislation, enhancing the overall effectiveness and fairness of the regulatory process.
Scope and Application
The Quarantine (Animals) Regulations (Amendment) Statutory Rules 1985 No. 313, issued under the authority of the Minister for Primary Industry, amend the Quarantine (Animals) Regulations to enhance the regulatory framework for the export of animals in Australia. These amendments respond to recommendations made by the Senate Standing Committee on Regulations and Ordinances, aiming to ensure that decisions made by the Director under specific sub-regulations are based on reasonable grounds and to clarify certain terms used in the Regulations. The Regulations apply to all persons and entities involved in the export of animals, ensuring that the Director's decisions are both objective and transparent. Geographically, the application of these Regulations is nationwide, covering all states and territories within Australia. There are no specific exclusions or thresholds outlined in these amendments, but they are intended to refine the administrative process and ensure compliance with legislative intent. Subordinate instruments may further extend or specify the application of these Regulations.
Key Provisions
The Quarantine (Animals) Regulations (Amendment) Statutory Rules 2004 amend the Quarantine (Animals) Regulations under section 87 of the Quarantine Act 1908. The main provisions of these amendments are found in sub-regulations 86B(1), 86B(3), 86B(6), 86C(1), 86F(8), and regulation 86G (paragraphs 1 to 5). The amendments respond to concerns raised by the Senate Standing Committee on Regulations and Ordinances about the subjectivity of the Director’s decision-making authority in certain provisions, as well as the clarity of the term ‘regularly’ in sub-regulation 86B(1). To address these issues, the amendments require the Director to be satisfied on reasonable grounds when making decisions under these sub-regulations, and they clarify the meaning of ‘regularly’ by changing the phrase in sub-regulation 86B(1) to ‘a person has a continuing interest in the livestock export industry’. Additionally, the review and notification provisions in Part VIIIA have been updated to align with other recent legislation, requiring decisions to be notified within 30 days and specifying that the Director must notify the grounds for the decision, subject to the requirements of section 25D of the Acts Interpretation Act 1901.
The amended Regulations impose specific obligations on the Director, the primary enforcer of the provisions. The Director must now make decisions based on reasonable grounds when satisfying certain conditions in sub-regulations 86B(1), 86B(3), 86C(1), and 86F(8). This change aims to provide a more objective basis for the Director’s decisions and ensure that they are made according to clear, specified criteria. Furthermore, the amendments to sub-regulation 86B(1) aim to clarify the intended scope of the term ‘regularly’ by replacing it with ‘a person has a continuing interest in the livestock export industry’. This change is intended to ensure that the provisions apply to individuals or entities that are genuinely engaged in the livestock export industry on an ongoing basis. Additionally, the Director is required to notify decisions within 30 days and provide the grounds for those decisions, as stipulated in the amended sub-regulation 86G(1). These obligations are designed to enhance transparency and accountability in the decision-making process.
The Regulations do not explicitly outline specific offences, penalties, or consequences for breaches of the amended provisions. However, the requirement for the Director to be satisfied on reasonable grounds suggests that a failure to meet these criteria could potentially lead to legal challenges or reviews. If the Director’s decisions are found to be unreasonable or not based on proper criteria, this could result in administrative or judicial review, potentially leading to the quashing of the decision or the imposition of additional requirements on the Director. Additionally, the obligation to notify decisions within 30 days and to provide the grounds for those decisions means that failure to comply with these requirements could also lead to legal consequences. Although specific penalties are not detailed in the Regulations, non-compliance with these notification requirements could potentially result in administrative or judicial action against the Director or the relevant authorities.
The savings provision in Regulation 5 ensures that any applications before the Administrative Appeals Tribunal prior to the commencement of these regulations will not be affected by the proposed amendments. This provision is designed to protect the rights of parties who have already initiated proceedings under the previous version of the Regulations, ensuring that their cases are not retroactively impacted by the changes. This safeguard helps maintain legal certainty and fairness for those involved in ongoing administrative appeals, allowing them to proceed under the existing legal framework until their cases are resolved.