Chapter 2
Background to the Bill
Introduction
2.1 On 3 December 1998 the Government introduced into the House of Representatives the Quarantine
Amendment Bill 1998. The Bill seeks to amend the Quarantine Act 1908, the main legislative basis for
the control and management of quarantine in Australia.
The Governments response to the Nairn Report
2.2 According to the Second Reading Speech, the amendments proposed in the Bill represent the
Governments response to the Nairn Report - Australian Quarantine: A shared responsibility:
The Nairn Report provides a `blueprint' for Australian quarantine based on the notion of
a `shared responsibility'. The Nairn Committee emphasises the need for this new focus to
ensure quarantine protection is not diminished. [1]
2.3 The Government accepted most of the recommendations of the Nairn report:
The Government adopted almost all of the 109 recommendations in the report, including
the recommendation that the Quarantine Act 1906 be revised as soon as possible to
reflect fully the changed scope and focus of quarantine advocated in the report. [2]
The Government did not, however, accept the need to create a statutory authority called “Quarantine
Australia” and recommendations related to its creation. Hence where the report refers to Quarantine
Australia, AQIS will be the agent carrying out the recommendation.
2.4 The Nairn Report recommendations directly relevant to the terms of reference of this Committee
include recommendations 51, 52, 81 and 82. Recommendation 51 covers, subject to audit arrangements,
the use of industry developed quality assurance arrangements for low risk quarantine goods and tasks.
Recommendation 52 recommends:
That a national system for the approval and audit of private premises for the performance
of quarantine be established and implemented as a matter of urgency. [3]
2.5 Recommendation 81 recommended that Government animal quarantine stations be run on a more
commercial basis. Recommendation 82 argued in principle that, subject to audit and appropriate security,
the stations should be offered for privatisation.
2.6 The report also made recommendations concerning the need for quarantine decisions to take greater
account of environmental considerations.
2.7 Some of the items in the Bill are arguably not relevant to the Government's response to the Nairn
Report. The Government is also using the opportunity of a major amendment to the Act to bring certain
aspects of the Act into line with current drafting policy with regard to the drafting of Commonwealth
legislation and to update the language used in the Act.
Outline of the Bill
2.8 According to the Explanatory Memorandum accompanying the Bill, the major provisions of the Bill
cover:
- The Scope of Quarantine – amendments are made by the Bill to section 4 of the Act to include
reference to environment and economic activity. A new part is to be included to cover consultation
with the Minister for Environment.
- Managed Risk - adjustment is proposed to sections 44C and 44D to reflect the Governments
approach to managed risk and the definition of the `level of quarantine risk'.
- Border Measures – these insertions into and amendments to the Act seek to ensure that:
- The Act is comprehensive yet flexible in its approach in relation to pre-border, border and
post border measures. [4]
- The Protected Zone and the Special Quarantine Zone.
- Industry Participation – these changes have particular relevance to this inquiry and can be
summarised as follows:
- A number of provisions are amended to facilitate the increasing role of industry in the
performance of quarantine activities. In particular, section 46A of the Act is amended to
provide a comprehensive framework for the issuing, revoking and suspension of approvals
for commercial quarantine premises. Section 66B of the Act, which provides for
compliance agreements is also amended to clarify that the agreements can be entered into in
relation to procedures under the Act, regulations, proclamations, conditions on permits or
approvals and in connection with activities carried out in the performance related to
quarantine. [5]
- Redrafting of the Offence and Penalty provisions to bring them into line with the new Criminal
Code Act 1995.
- Clarification on a number of definitions including the replacement of antiquated terms.
- Miscellaneous amendments.
2.9 According to the Parliamentary Library Bills Digest the bill also provides:
for clearer identification of ministerial and authority responsibilities through the
transference of major regulatory powers to the enabling legislation. [6]
This includes a reframing of or extensions to the powers of the Governor-General, Minister and other
delegates of the Act.
Provisions of the Bill relevant to this inquiry
2.10 Of particular relevance to the reference are the proposed amendments to the Act with regard to the
issuing, revoking and suspension of approvals for commercially operated quarantine premises. Currently
section 46A of the Act allows the delegate to approve places for the performance of quarantine by
goods as follows:
SECT 46A Approval of places for the performance of quarantine by goods
(1) Where goods have been ordered into quarantine, a quarantine officer may, in writing,
approve a place other than a quarantine station as a place where the goods may perform
quarantine.
(2) Where, in relation to any goods, a place has been approved under subsection (1),
any reference in section 47, 56 or 69 to a quarantine station shall, in relation to those
goods, be read as including a reference to that place.
SECT 47 Performance of quarantine by goods
All goods ordered into quarantine shall perform quarantine, and for that purpose may be
detained on board the vessel or installation or in a quarantine station. [7]
2.11 In item 200, the Bill repeals the existing section 46A, along with section 47 and section 48 and
inserts new sections 46A, 48, 48AA, 48AB and 48AC. In particular the new 46A sets out the
framework and criteria for approval of premises for quarantine of goods of a specified class. It also
covers the framework and criteria for suspending or revoking approvals, renewing approvals and the
offences that apply to failing to take action if approval expires, is suspended or revoked.
2.12 Issues considered by the Committee with regard to commercially operated premises and the
privatisation of quarantine stations are discussed in Chapter 3.
Other provisions of the Bill discussed in the course of the inquiry
2.13 During the course of the inquiry a number of other amendments were discussed, including
amendments covering:
- Special Quarantine Areas.
- The privilege against self incrimination.
- Delegation powers of the Minister and issues of Ministerial responsibility for decisions made by
public servants.
- Issues affecting the environment.
2.14 Special Quarantine Areas –item 60 of the Bill inserts new sections 5A-5E. The explanatory
memorandum indicates that the intention of the new section 5A is to enable the minister to declare an
area to be a special quarantine notice by publishing a notice in the Gazette. 5B-5E are more general and
do not appear to be specifically related to the issue of special quarantine areas.
2.15 Privilege against self incrimination – item 295 of the Bill inserts an new section 79A Exclusion
of privilege against self incrimination in certain circumstances as follows:
(1) A person is not entitled to refuse to answer a question, give information or produce a
document that he or she is required to answer, give or produce by or under section 27A,
27B or 28 or subsection 70(2) or 70AA(3) on the ground that the answer, the
information or the production of the document, as the case may be, might tend to
incriminate him or her.
(2) However, any answer or information so given or the production of such a document,
and any information or thing (including any document) obtained as a direct or indirect
result of the giving of the answer or information or the production of the document, is not
admissible in evidence against the person in:
(3) Except as provided by subsection (1), nothing in this Act affects the right of a person
to refuse to answer a question, give information, or produce a document or thing, on the
ground that the answer to the question, the information, or the production of the
document or thing, might tend to incriminate him or her or make him or her liable to a
penalty. [8]
2.16 Delegation powers of the Minister - item 82 repeals existing sections 10, 10A and 10B.
According to the Bills Digest:
The proposed sections both clarify and broaden delegation powers accorded under the
Principle Act. [9]
2.17 The existing section 10 of the Act reads:
SECT 10 Delegation of authority
In relation to any particular matter or class of matters, or as to any particular State,
Territory, installation or port, the Minister may by writing under his or her hand delegate
any of his or her powers under this Act (except this power of delegation) so that the
delegated powers may be exercised by the delegate with respect to the matter or class of
matters, or the State, Territory, installation or port specified in the instrument of
delegation. [10]
The Bill proposes that a new section 10 replace the existing section as follows:
The Minister may, by signed writing, delegate to the Secretary, a Director of Quarantine
or an officer all or any of his or her powers under this Act. [11]
2.18 The existing section 10A covers the revocation of delegations. It is the Committee's understanding
that this is not required as it is covered in the Acts Interpretation Act 1901 under section 33(3). The
new 10A provided for the Secretary to delegate their powers to a Director of Quarantine or officer.
2.19 The proposed section 10B allows the Director of Quarantine to delegate their powers to an officer,
the old section 10B on the other hand covered the following:
SECT 10B Delegation by Director of Quarantine
(1) A Director of Quarantine may, either generally or as otherwise provided by the
instrument of delegation, by writing signed by that Director of Quarantine, delegate to a
person all or any of the powers of that Director of Quarantine under this Act, the
regulations or any proclamation or other instrument under this Act or the regulations,
other than this power of delegation.
(2) A power so delegated, when exercised by the delegate, shall, for the purposes of this
Act, be deemed to have been exercised by the Director of Quarantine by whom the
power was delegated.
(3) A delegation under this section does not prevent the exercise of a power by a
Director of Quarantine.
2.20 Other amendments referred to involved extending the powers of the Governor General and the
Minister. For example new section 12A extends the Ministers powers in relation to emergency
quarantine measures, including declaring an epidemic or danger thereof. Insertions into Section 13 of the
Act extends some of the Governor-General's powers in relation to making proclamations concerning
such things as vessels, persons, animals or goods in a quarantine area. These extended powers are not
subject to disallowance by parliament.
2.21 Issues affecting the environment - item 86 of the Bill inserts a new Part 11A – Proposed
decisions affecting the environment. In particular, the new section 11C-11E provides the requirement
and corresponding framework for a Director of Quarantine to ensure the Environment Minister is advised
before making a decision of significant risk to the environment. This amendment provides for an
assessment of the impact on the environment to be given to the Environment Minister. It also provides for
the Environment Minister to provide advice to the Director of Quarantine and for the Director to take this
advice into account in making decisions under this and advise the Environment Minister of how this was
taken into account.
2.22 Further discussion concerning these items of the Bill can be found in Chapter 4.
Footnotes
[1] Australian Quarantine – A shared Responsibility: The Government Response, p. 3.
[2] Second Reading Speech, p. 1.
[3] Nairn Report, Recommendation 51.
[4] Quarantine Amendment Bill 1998 – Explanatory Memorandum, p. 1.
[5] Quarantine Amendment Bill 1998 – Explanatory Memorandum, p. 3-4.
[6] Bills Digest No. 116 1998-1999, p. 1.
[7] Quarantine Act 1908.
[8] Quarantine Amendment Bill 1998, p. 136.
[9] Bills Digest No. 116 1998-1999, p. 10.
[10] Quarantine Act 1908. Section 10.
[11] Quarantine Amendment Bill 1998, p. 21.