House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Agriculture, the Hon. Barnaby Joyce MP)

Overview of the Bill

The Biosecurity (Consequential Amendments and Transitional Provisions) Bill 2014 (the Bill) makes transitional and consequential provisions to support the commencement of the Biosecurity Bill as it replaces the Quarantine Act 1908 (Quarantine Act) as the Commonwealth's primary biosecurity legislation.

Biosecurity risks are currently managed under the Quarantine Act and related delegated legislation. Biosecurity refers to the management of the risks of pests and disease entering Australian territory and causing harm to animal, plant and human health, the environment and the economy.

Shifting global demands, growing passenger and trade volumes, increasing imports from a growing number of countries, population expansion and climate change all contribute to the modern biosecurity environment. The Quarantine Act has been progressively amended - no less than fifty times - to cater for the changing demands placed on the biosecurity system. This means that the legislation is complex to interpret and now has overlapping provisions and powers.

Whilst the Quarantine Act has enabled the effective management of biosecurity risks to date, the Biosecurity Bill provides a much simpler legislative framework that covers changing biosecurity risks and reduces unnecessary regulation to better protect Australia's animal, plant and human health, the environment and the economy now and in the future.

The transition from the Quarantine Act to the Biosecurity Bill needs to be managed to ensure that biosecurity risks are appropriately managed and that people, goods and conveyances are able to move through the border without any delays or additional costs. Clear guidance will be provided to biosecurity officers and stakeholders to ensure they are aware of any rights or obligations which will continue to apply.

This Bill is being introduced to:

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repeal the Quarantine Act and the Quarantine Charges (Collection) Act 2014 (Collection Act) to allow biosecurity risks to be managed under the Biosecurity Bill

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make consequential amendments to Commonwealth legislation to reflect the repeal of the Quarantine Act and replace with references to managing biosecurity risks under the Biosecurity Bill, and

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make transitional provisions to provide for the management of biosecurity risks during the transition from the Quarantine Act to the Biosecurity Bill.

Repeal of the Quarantine Act and the Collection Act

Schedule 1 of the Bill repeals the Quarantine Act and the Collection Act. Repeal of the Quarantine Act will allow for the Biosecurity Bill to become the Commonwealth's primary legislation for the management of biosecurity risks.

The provisions of the Collection Act have been incorporated in the Biosecurity Bill, which will provide the authority to collect charges imposed by the Biosecurity Charges Imposition (Customs) Act 2014, Biosecurity Charges Imposition (Excise) Act 2014 and the Biosecurity Charges Imposition (General) Act 2014.

Consequential amendments

Schedule 2 of the Bill amends the following Commonwealth legislation:

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Archives Act 1983

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Australian Postal Corporation Act 1989

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Biological Control Act 1984

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Customs Act 1901

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Customs Administration Act 1985

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Environment Protection and Biodiversity Conservation Act 1999

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Fisheries Management Act 1991

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Freedom of Information Act 1982

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Imported Food Control Act 1992

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Industry Research and Development Act 1986

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Maritime Powers Act 2013

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Maritime Transport and Offshore Facilities Security Act 2003

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Migration Act 1958

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National Health Act 1953

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National Health Security Act 2007

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National Residue Survey (Customs) Levy Act 1998

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Plant Breeder's Rights Act 1994

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Primary Industries (Customs) Charges Act 1999

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Privacy Act 1988

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Torres Strait Fisheries Act 1984

to update references to managing biosecurity risk under the Biosecurity Bill and substitute references to Quarantine Act with Biosecurity Act.

Transitional Provisions

Schedules 3 and 4 of the Bill manage the transition from the Quarantine Act to the new biosecurity framework under the Biosecurity Bill.

The primary focus of these Schedules is to ensure that biosecurity risks are managed in a way that is not administratively or operationally burdensome for the Commonwealth and business. The overall approach taken is one of maintaining existing policy approaches under the Quarantine Act and seeking alignment between powers, decisions and processes to ensure that decisions made and processes followed under the Quarantine Act continue have effect under the Biosecurity Bill. To this extent, most decisions or powers exercised under the Quarantine Act will be transitioned as though they were made or exercised under specific provisions of the Biosecurity Bill.

While both the Quarantine Act and the Biosecurity Bill provide similar powers for the management of biosecurity risks, there are some differences which require some Quarantine Act provisions to continue to operate until the completion of all biosecurity risk management activities involved.

For consistency and to avoid confusion the transitional provisions - where there are equivalent Quarantine Act and Biosecurity Bill provisions - have been set out in the same subject order as the Biosecurity Bill. The main transitional aspects of the Bill are summarised below.

Managing biosecurity risks: goods and conveyances

Parts 2 and 3 of Schedule 4 provide that goods and conveyances that were brought into Australian territory and are likely to pose a biosecurity risk or were subject to quarantine prior to commencement day will be taken to be subject to biosecurity control under the Biosecurity Bill. This will enliven the assessment and management powers in Chapters 3 and 4 of the Biosecurity Bill to manage any biosecurity risks in relation to the goods or conveyances.

Directions, permissions or notices, given or required under the Quarantine Act relating to the assessment or management of biosecurity risks associated with the goods or conveyances will continue to have effect, either by continuing the requirement to comply or transitioning it to a direction, permission or notice given or required under an equivalent provision in the Biosecurity Bill.

This will ensure that biosecurity risks will continue to be managed appropriately and that biosecurity officers do not need to give directions, permissions or notices again on or after commencement day and that stakeholders are not delayed by having to seek permissions again.

First points of entry

International vessels and aircraft arriving in Australia from overseas and the goods on board must arrive at a first point of entry that is approved to accept them (unless given permission to do otherwise). This ensures that biosecurity risks enter Australia at a location where there are the appropriate facilities and personnel to manage them to an acceptable level.

Schedule 3 provides for a three year transition period for first points of entry, during which landing places or ports do not need to meet the requirements for first points of entry under the Biosecurity Bill. It is envisaged that most first ports of entry under the Quarantine Act will become first points of entry under the Biosecurity Bill.

This three year transition period will provide port and landing place operators additional time to upgrade their facilities (if necessary) and undertake any additional activity to satisfy the requirements. This transition period can be extended to provide additional time for a first point of entry to meet these requirements.

Managing biosecurity risks: monitoring, control and response

Part 4 of Schedule 4 provides for the continuation of vector monitoring and control activities under section 55E of the Quarantine Act. This will allow biosecurity officers to set traps and assess biosecurity risks on private property and where a risk is identified carry out biosecurity measures such as fumigation. This will provide an appropriate timeframe to manage any risks and to transition to a temporary biosecurity monitoring zone.

Approved Arrangements

Part 5 of Schedule 4 provides that co-regulatory approvals and compliance agreements under sections 46A and 66B of the Quarantine Act in force immediately before the commencement day will become approved arrangements under the Biosecurity Bill.

An approved arrangement allows industry participants to voluntary enter into an arrangement with the Commonwealth to manage the biosecurity risks associated with their own operations in the most efficient and effective way.

Under these transitional approved arrangements, biosecurity industry participants will be able to continue carrying out biosecurity activities approved under the Quarantine Act.

Biosecurity industry participants will have up to three years to meet the requirements under the Biosecurity Bill. This Part also sets out how these transitional arrangements are governed, varied, suspended or revoked consistent with Parts 3, 4 and 5 of Chapter 7 of the Biosecurity Bill.

Emergencies

While the Quarantine Act emergency powers have rarely been used, Part 6 of Schedule 4 provides that any Quarantine Act emergency directions in force immediately before commencement day will continue to have effect after commencement day.

Compliance and enforcement

Part 7 of Schedule 4 provides that Chapter 9 of the Biosecurity Bill will be modified to allow biosecurity enforcement officers to continue to investigate possible non-compliance under the Quarantine Act when it was in force. This will allow biosecurity enforcement officers to access warrants and to seize evidence, ensuring that any compliance activities can continue despite the repeal of the Quarantine Act.

Governance and Officials

Part 8 of Schedule 4 provides that any person appointed as a quarantine officer under the Quarantine Act will be authorised as a biosecurity officer under the Biosecurity Bill. This will reduce complexity and ensure a smooth transition on commencement day, as there will be a biosecurity officer in place to carry out functions and exercise powers.

Biosecurity officials authorised under the Biosecurity Bill, such as biosecurity officers and the Director of Biosecurity will be able to perform functions and exercise powers under this Bill.

It also allows biosecurity officers to continue some activities that were undertaken immediately before commencement day, on and after that day, ensuring that biosecurity risks can continue to be appropriately managed.

Review of decisions

Division 1 of Part 9 provides that decisions made under any saved Quarantine Act provisions may be reviewable decisions and subject to internal and merits review under the Biosecurity Bill. This will ensure that any people who are affected by a reviewable decision and believe an incorrect decision has been made are able to apply to have the decision reviewed.

Cost Recovery

Division 2 of Part 9 provides that any liability for unpaid fees, late payment fees or quarantine charges under the Quarantine Act and the Collection Act will continue despite the repeal of both Acts and can be collected under the Biosecurity Bill. Unpaid late payment fees under the Quarantine Act will continue to accrue under the Biosecurity Bill. The recovery of these fees and charges is consistent with the Australian Government Cost Recovery Guidelines.

Similarly, deposits paid under the Quarantine Act may be taken to be deposits under the Biosecurity Bill (if prescribed in the Regulations) or may alternatively be refunded.

The Director of Biosecurity will be able to sell goods or other items to recover unpaid expenses accrued under the Quarantine Act.

Miscellaneous

Division 3 of Part 9 sets out various miscellaneous transitional arrangements. The Bill will provide that any compensation arrangements in place for goods or premises destroyed under the Quarantine Act will continue to have effect after commencement day.

To the extent that Quarantine Act functions and powers continue to apply because of this Bill, biosecurity officials and individuals who comply with directions or requests will be protected from civil proceedings under section 644 of the Biosecurity Bill.