Chapter 4
Other issues considered by the committee
Introduction
4.1 During the course of the inquiry the Committee sought clarification on a number of other aspects of
the Bill.
Privilege against self incrimination
4.2 The issue of item 295, the insertion of the new section 79A - excluding in some circumstances the
privilege against self incrimination, was discussed during the hearing. Put simply, the new section provides
for a witness to be required to give self incriminating evidence in a limited number of circumstances, with
a “use-derivative-use indemnity” being provided in the section to prevent evidence so gained being
admitted in legal proceedings against that witness.
4.3 Advice provided by AQIS during the hearing was somewhat unclear and seemed to suggest that
AQIS did not fully understand (given that the changes had been suggested by Parliamentary Counsel) the
reason or implication of the proposed section. In answering a question on notice, AQIS provided further
information together with advice from the Attorney-General's Department which clarified the issue for the
Committee. AQIS's response to questions on notice did redress the impression gained by the Committee
at the hearing that AQIS was unclear on the implications of the new provisions. AQIS state in their
response:
The benefits of taking this approach have been carefully weighed against the loss of the
opportunity to take prosecution action. On balance, it was decided that in the limited
number of instances covered by Item 295, the emphasis should be on obtaining the
information, such as advice of illness or the presence of an animal onboard, as this
information is essential for basic quarantine protection. [1]
A copy of the advice received from AQIS and Attorney-General's is in Appendix 3.
4.4 In Alert Digest (No1/99), the Senate Committee for the Scrutiny of Bills Committee noted:
Item 295 proposes to insert a new section 79A in the Principal Act. This provision
excludes the privilege against self-incrimination in certain circumstances, but provides that
derivative use immunity applies to information or documents obtained as a result. The
Committee has been prepared to accept that such an approach strikes a reasonable
balance between the requirements of law enforcement and the protection of individual
rights. In these circumstances, the Committee makes no further comment on this
provision. [2]
4.5 Given the advice from Attorney-General's, and the Scrutiny of Bills Committee's comment, this
Committee sees no need to pursue this issue further.
Delegation of powers by the Minister and Ministerial Responsibility
4.6 In order to understand the implications of the Bill further, the Committee sought to clarify issues with
regard to changes to the delegation powers of the minister and the issue of Ministerial Responsibility and
personal liability in relation to the exercise of delegation powers under the Act.
4.7 Based on the evidence provided by AQIS and advice sought by AQIS from Attorney-General's
Department, it would appear that the changes to the Quarantine Act put forward in item 82 of the Bill
do not change significantly the powers of the Minister in this regard. Attorney-General's Department state
in their advice:
In my opinion, the proposed sections 10, 10A and 10B to be inserted by the Bill will not
have a significantly different effect to the current sections 10, 10A and 10B of the Act.
They are also not significantly different from other delegation provisions used elsewhere
in legislation. [3]
4.8 On the subject of the Bills Digests comment that sections 10, 10A and 10B:
..both clarify and broaden delegation powers accorded under the Principle Act. [4]
Mr O'Connor, Assistant Director, Compliance, Legal and Evaluation, AQIS, by way of example,
indicated in evidence that the Bill does extend some powers under the Act, but largely in a technical
manner:
At the top of page 10, about the power of the Governor-General being broadened: it is
actually the power to grant an exemption in the Torres Strait area to traditional
inhabitants moving from one area to another, so that there is a power to prohibit the
removal of goods. They have got the power to stop the entry of goods; they have also
got the power to stop the removal of goods. So in a technical sense it is an extension of
power. It is a very, very minor power. I suppose there is an argument that, where the
Governor-General did have the power to do something under an act, he also has the
power to stop it from being done. So if you can allow the movement of goods into the
area, you can stop the removal of goods from the area. So to that extent it is a
clarification.
It is a technical extension of his power, although some would argue that that power is
already there under the Acts Interpretation Act. So for the sake of clarity, rather than as
something that Nairn has raised, because it has been a legal drafting issue that we sought
to clarify that. That has been cleared with ATSIC.
4.9 With regard to the other issue raised by the Committee concerning Ministerial Responsibility the
Attorney-General's Departments comment is attached as Appendix 4.
4.10 Based on the advice provided, the Bill does not appear to generally change the current position of
the Minister. The Committee does note, however, that item 301 of the Bill introduces a new section 82
which provides in certain circumstances protection from civil proceedings for:
The Minister, a Director of Quarantine, an officer, an analyst an authorised or an
approved person referred to in section 75A or 75B… [5]
The Explanatory Memorandum indicates that this is in accord with Commonwealth policy. [6]
Special quarantine areas
4.11 During the public hearing the changes to the power of the Minister with regard to special quarantine
zones were discussed. At the hearing Mr O'Connor, Assistant Director, Compliance, Legal and
Evaluation, AQIS, indicated that the changes proposed in this area where to address the problem that the
existing Act seems to allow for only one `protected' zone – in this case the Torres Strait zone:
There has been the power for the Governor-General to declare a special quarantine
zone, rather than declaring a whole area to be quarantined, but to focus that. That power
has been used in creating a special quarantine zone in the Torres Strait area. But the way
the legislation was drafted, when the special quarantine zone was put into place, it
seemed to destroy the principle of general application, because it talked about the special
quarantine zone being the Torres Strait area.
Originally there was a contingency provision so that the Governor-General could create a
special quarantine area. With some very minor technical amendments to the bill, we have
given that power back. It could be another area, for instance around Cocos Island or
around another area that was of special quarantine interest. The drafting had made a
general provision into a very specific provision and it has now gone back to being a
general contingency provision. [7]
4.12 Specifically the new section 5A would give the Minister power to declare a Special Quarantine
Zone. The Bill also inserts, according to the Explanatory Memorandum, new definition of `Special
Quarantine Zone':
…to ensure that there is a flexible approach in dealing with quarantine matters that arise
in a particular area, rather than relying on the more intrusive powers in section 13(1)(h)
and (i) of the Act.
The Parliamentary Library Bills Digest No 116 notes that decisions under section 5A will not be
disallowable by parliament. The subject of disallowance in this Bill is currently the subject of further
inquiry by the Scrutiny of Bills Committee. The Scrutiny of Bills Committee notes that it has raised
directly with the Minister the issue of the lack of provision, in items 145, 153, 183, 242, 259, 263, 267,
and 269 of the Bill, for Parliamentary scrutiny [8].
4.13 The Committee is satisfied with the reason given by AQIS for the insertion of section 5A. To avoid
confusion the Committee leaves the issue of disallowance and the sufficiency of the allowance in the Bill
for Parliamentary scrutiny to the Scrutiny of Bills Committee to address.
Issues affecting the environment
4.14 The Committee also sought clarification concerning the new sections proposed in the Bill that
require consultation of the Environment Minister in certain circumstances. Item 86 of the Bill inserts a new
Part 11A – Proposed decisions affecting the environment, 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.
4.15 At the hearing AQIS briefly provided some examples of where this new requirement might be used.
Mr Hickey, Executive Director, AQIS provided a brief explanation of what significant risk entails under
the new part and when the Environment Minister would be consulted:
The judgment that is applied to the level of risk is the same judgment that applies to
quarantine risk generally under the import risk assessment process. As part of the import
risk assessment process we are required to have regard to the provisions of the relevant
environment legislation and processes.
He went on to add in later evidence:
As part of those processes, where a decision is to be made that may have an effect on
the environment, the EP(IP) Act and the subsidiary processes require certain
considerations to be given. We have interpreted those requirements as relating to
decisions of a significant quarantine nature which is subject to the import risk assessment
processes and not to day-to-day decisions by quarantine officers about whether they will
allow a ship to dock and discharge passengers and cargo and the like.
Within each of our import risk analyses there is consideration given to environmental
impact. If there is a question of substantial impact on the environment then it would need
to be referred to the minister for the environment under these proposed provisions. [9]
4.16 The Committee was satisfied that it understands the intention of this new part of the Bill and sees no
need to pursue this matter further.
Footnotes
[1] Correspondence, Australian Quarantine and Inspection Service, p. 1.
[2] Alert Digest 1 of 1999, Scrutiny of Bills Committee, part B.
[3] Correspondence, Australian Quarantine and Inspection Service, p. 8.
[4] Bills Digest No: 116 1998-99, p. 10.
[5] Quarantine Amendment Bill 1998, p. 137.
[6] Explanatory Memorandum – Quarantine Amendment Act 1998, p.57.
[7] Evidence, Australian Quarantine and Inspection Service, p. 165.
[8] Alert Digest 1 of 1999, Scrutiny of Bills Committee, part B.
[9] Evidence, p.168.