House of Representatives

Explanatory Memorandum

(Circulated by authority of the Treasurer, the Hon. Josh Frydenberg MP)

Chapter 5 Delegation power for the Director of Human Biosecurity

Outline of chapter

5.1 Schedule 5 to this Bill amends the Biosecurity Act 2015 to enable the Director of Human Biosecurity to delegate their function or powers under Part 3 of Chapter 2 (human biosecurity control orders) of the Biosecurity Act 2015

Context of amendments

5.2 The ability for the Director of Human Biosecurity to delegate his or her functions or powers related to human biosecurity control orders ensures that the exercise of these functions and powers is able to occur in a considered and timely manner.

5.3 The Director of Human Biosecurity is the person occupying, or acting in, the position of Commonwealth Chief Medical Officer. The Director of Human Biosecurity plays a very active role in human biosecurity responses, including the Coronavirus response, so it is appropriate that this role is supported by the ability to delegate certain functions and powers under the Biosecurity Act 2015.

Summary of new law

5.4 An SES employee, or acting SES employee, in the Health Department who is also a human biosecurity officer may act as a delegate of the Director of Human Biosecurity for functions or powers related to human biosecurity control orders (Part 3 of Chapter 2).

Comparison of key features of new law and current law

Detailed explanation of new law

5.5 The new law sets out that the Director of Human Biosecurity may, in writing, delegate any or all of their functions or powers under Part 3 of Chapter 2 of the Biosecurity Act 2015 in relation to human biosecurity control orders, to an SES employee or acting SES employee in the Health Department who is a human biosecurity officer. [Schedule 5, item 1, subsection 544A(1) of the Biosecurity Act 2015]

5.6 A human biosecurity officer is a person authorised in writing by the Director of Human Biosecurity. Before authorising a person, the Director must be satisfied that they have appropriate clinical expertise. The Director also determines in writing training and qualification requirements for these officers. The officers are registered medical practitioners, who complete training for the role prior to their authorisation.

5.7 An SES employee or acting SES employee is defined in section 2B of the Acts Interpretation Act.

5.8 A delegate may review a biosecurity measure in a control order issued by a human biosecurity officer and decide either to direct an individual to comply with the measure or inform the individual that he or she is not required to comply with the measure, with reasons provided (section 72).

5.9 A delegate may also perform other functions or powers relating to control orders, such as:

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approving a control order form (section 62);

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being notified that a control order has been imposed, varied or revoked (section 67);

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receiving a request from a human biosecurity officer to review a biosecurity measure in a control order (section 71); and

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informing an individual of their review rights under the Administrative Appeals Tribunal and ensuring reasonable facilities to communicate and participate in Tribunal proceedings (section 75).

5.10 A delegate may also make notifications regarding a traveller movement measure in a control order, including notifying the Agriculture Department, the Immigration Department, the Foreign Affairs Department and the National Focal Point (all defined terms in the Biosecurity Act 2015) if a traveller movement measure is included in a control order (section 98).

5.11 A delegate cannot perform other functions or powers relating to control orders if the delegate is the human biosecurity officer who imposed the control order under paragraph 60(1)(b) or made the request under subsection 71(3) of the Biosecurity Act 2015. This avoids the risk of abuse of powers by ensuring appropriate separation of function. [Schedule 5, item 1, subsection 544A(3) of the Biosecurity Act 2015]

5.12 A delegate of the Director of Human Biosecurity must comply with any directions of the Director in performing any functions or exercising any powers under their delegation. Any directions must not be consistent with the Biosecurity Act 2015. [Schedule 5, item 1, subsection 544A(2) of the Biosecurity Act 2015]

Application and transitional provisions

5.13 The amendments in Schedule 5 to this Bill will commence on the day after this Bill receives Royal Assent.