Bills Digest No. 114 2001-02
Quarantine Amendment Bill 2002
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
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Quarantine Amendment Bill
Date Introduced: 14 March 2002
House: House of Representatives
Portfolio: Agriculture, Fisheries and Forestry
Commencement: The emergency coordinated
response powers provisions commence on proclamation or, in any
event, 6 months after the date of Royal Assent. Commercial
smuggling and associated offence provisions commence 28 days after
the legislation receives Royal Assent.
To amend the
Quarantine Act 1908 to:
- establish a framework for the activation and use of emergency
coordinated response powers when an epidemic caused by a
quarantinable disease or pest exists which has the potential to
affect a primary industry of national significance . These powers
will be exercisable if the Governor-General, acting on the advice
of the Executive Council, has made a proclamation and the Minister
has authorised agency heads to take action to control the epidemic
or remove the danger by using quarantine measures .
- explicitly provide that quarantine includes destroying
- amend some offence provisions and create a new offence of
aggravated illegal importation (commercial smuggling).
Constitutional power over
Section 51(ix) of the Commonwealth Constitution
gives the Commonwealth Parliament power to make laws about
quarantine . This power is exercised concurrently with the States.
The principal Commonwealth statute is the Quarantine Act which
covers human, animal and plant quarantine. The two main
Commonwealth agencies dealing with quarantine are the Department of
Health and Ageing (DHA) and the Australian Quarantine Inspection
Service (AQIS). DHA has primary responsibility for human quarantine
and AQIS for animal and plant quarantine. Legislation dealing with
human disease outbreaks, animal and plant quarantine is also in
place at State and Territory level.(1)
Emergency powers in the Quarantine
There are two existing emergency power
provisions in the Quarantine Act. In the early part of the
20th century, uncertainty and disagreement over the
appropriate role of Commonwealth and State governments resulted in
problematic responses to outbreaks of communicable disease. An
example of this was the influenza pandemic of 1918-1919, in
response to which both the Commonwealth and the States implemented
quarantine measures that were partly overlapping and inconsistent.
(2) Section 2A(3) was inserted into the
Quarantine Act in response to this situation and gives the
Commonwealth power to override State legislation by proclamation in
Section 2B enables the Governor-General, on the
advice of the Executive Council, to declare that an epidemic caused
by a quarantinable disease or pest exists or that there is a danger
of such an epidemic. Once such a declaration is made, the Minister
is empowered to take whatever action is necessary to control and
eradicate the epidemic by the use of quarantine measures. Section
2B was inserted into the Quarantine Act in 1947 because of concerns
that outbreaks of communicable diseases in Europe, Africa and Asia
in the unsettled conditions following World War II combined with
increases in the volume and speed of air travel to Australia
necessitated giving the Minister power to meet an emergency arising
through an outbreak of disease in a remote part of Australia
The amendments in the current Bill create a new
emergency power in the Quarantine Act.
Prior to the 2001 General Election, the
Coalition parties announced that if re-elected they would introduce
legislation to create an offence of commercial smuggling under the
Quarantine Act with penalties of up to $1 million.(5)
The amendments introduce such an offence.
Emergency coordinated response
Existing subsection 2B(1) of the Quarantine
Act 1908 empowers the Governor-General to proclaim that an
epidemic caused by a quarantinable disease or pest exists. For
convenience, such a proclamation is referred to in this Digest as a
subsection 2B(1) proclamation . While such a proclamation is in
force, the Minister may give such direction and take such action as
he or she thinks necessary to control and eradicate the epidemic,
or to remove the danger of the epidemic, by quarantine measures or
measures incidental to quarantine .
Item 1 amends existing section
2B so that, in certain circumstances, the Governor-General s
proclamation can authorise the use of what are called coordinated
response powers . For convenience, such a proclamation is referred
to in the Digest as a coordinated response powers proclamation .
Before issuing such a proclamation, the Governor-General must be
satisfied that an epidemic exists that potentially so affects an
industry of national significance that it calls for the exercise of
coordinated response powers . The Minister may then authorise the
heads of national response agencies to take whatever action they
think necessary to control or eradicate the epidemic or remove the
danger of the epidemic by the use of quarantine measures . These
powers may, in turn, be conferred by agency heads on their
officers, contractors and volunteers(6), and exercised
by anyone performing the duties of the agency head(7) or
by successors to those agency heads.(8)
The Minister may make the authorisation subject
to conditions or limitations [new paragraph 3(2)(a) and
subsection 3(4)]. Further, any action taken by a person
authorised by the Minister or a national response agency head must
be no more than is reasonably appropriate and adapted to
controlling and eradicating the epidemic or removing the danger of
the epidemic (item 5).
An authorisation given by the Minister or a
national response agency head is revoked when the relevant
coordinated response powers proclamation is revoked [new
The expression industry of national significance
is defined as any primary industry whose disruption would be a
matter of national significance, irrespective of whether it is an
export industry (item 6).
A national response agency is defined to mean
the Commonwealth, State and Territory police forces, or, where a
Ministerial declaration is in force and gazetted, the defence
forces, Commonwealth, State or Territory departments or other
public agencies (item 7). The Minister must
consult with the Defence Minister before declaring the defence
forces to be a national response agency [new subsection
5(1AA) inserted by item 8]. Similarly,
before declaring any department or agency to be a national response
agency , the Minister must consult with the portfolio Minister
[new subsection 5(1AB) inserted by item
The definition of
The definition of quarantine is important
because emergency proclamations made by the Governor-General
authorise action to be taken to control epidemics by the use of
There are two limbs to the existing definition
of quarantine in the Quarantine Act. Quarantine is defined to
- examining, detaining, isolating, and treating vessels, people,
plants and other things
- in order to prevent or control the introduction or spread of
diseases or pests that could cause significant damage to people,
animals, plants, the environment or economic activities.
The first limb of this definition is repealed
and replaced by item 4. The existing words are
reinserted and new words added so that the definition explicitly
refers to seizing and destroying animals, plants or other goods or
things, and destroying untreatable premises.
Arrangements with the States and
Territories for the certification of export products
Items 9 and 10 enable the
Commonwealth to make arrangements with the States and Territories
to assist them to certify export products in accordance with
Compensation for the destruction
of goods and premises
Existing section 69A of the Quarantine Act
provides for compensation to be paid if goods are destroyed under
the Act and the Minister considers it appropriate . Goods include
animals and plants. The circumstances in which compensation is not
payable and how compensation is to be determined are also set out
in section 69A. Item 11 repeals existing
subsection 69A(1) and substitutes a new subsection which enables
compensation to be paid not only when goods are destroyed under the
Act but when premises are destroyed. This amendment is
consequential on the new definition of quarantine inserted by
Items 12-16 make other
amendments which flow from the fact that the Quarantine Act will be
amended to allow for the destruction of premises as well as
Immunity from civil
Existing section 82 of the Quarantine Act makes
the Minister and quarantine officers immune from civil liability in
relation to anything they do in good faith in the performance of
their statutory duties, functions or powers.
Item 17 inserts new
subsection 82(1A) into the Quarantine Act. New
subsection 82(1A) provides that a person acting under a
coordinated response powers authorisation is immune from civil
proceedings for anything they do in good faith in the performance
of functions, duties or powers under the authorisation.
From 15 December 2001, the principles of
criminal responsibility found in the Criminal Code Act
1995 applied to all existing Commonwealth offences. Following
the passage of the Criminal Code Act, the Commonwealth embarked on
a program to review and revise all Commonwealth offences so that
they harmonised with the Code s principles of criminal
responsibility. However, this program was not completed before 15
December 2001. Apart from creating some new offences, the
Quarantine Amendment Bill 2002 amends some existing offences in the
Quarantine Act in the light of principles of criminal
responsibility found in the Criminal Code.
The Criminal Code provides that an offence
consists of physical elements and fault elements.(10)
Physical elements relate to external events such as conduct, its
circumstances and its results. Fault elements relate to a person s
state of mind. The fault elements set out in the Criminal Code, in
descending order of culpability, are intention, knowledge,
recklessness and negligence.(11)
In general, in order to establish guilt, the
prosecution must prove the existence of both the physical elements
of the offence and their corresponding fault
elements.(12) However, the Criminal Code provides for
strict and absolute liability offences and for offences where
particular physical elements attract strict or absolute
liability.(13) Where strict or absolute liability
applies, the prosecution does not have to prove fault. It is most
often used in minor or regulatory offences or where requiring the
prosecution to prove fault elements would render the legislation
unenforceable. The difference between strict and absolute liability
is that the Criminal Code supplies a mistake of fact defence in
relation to strict liability but not in relation to absolute
The amendments do not create any strict
liability offences. However, they do apply strict liability to some
physical elements in a number of offences.
Offences relating to emergency
Existing subsection 2B(3) of the Quarantine Act
creates an offence of failing to comply with a direction given by
the Minister(15) when a subsection 2B(1) proclamation is
in force. The penalty is a maximum of 10 years imprisonment. The
physical elements of this offence are conduct(16) and
circumstance. The operation of Chapter 2 of the Criminal Code means
that the fault element of intention applies to the physical element
of conduct in the offence (failing to comply with a direction). At
present, as a result of the application of the Criminal Code, the
prosecution would also have to prove fault in relation to the
physical element of circumstance in the offence that the direction
was given under subsection 2B(2). However, item 2
inserts new subsection 2B(4) which provides that
strict liability applies to the physical element of circumstance in
the offence. In other words, the prosecution will not have to prove
that a defendant put his or her mind to the particular provision in
the Quarantine Act. As stated earlier, the Criminal Code provides a
mistake of fact defence in relation to strict liability elements in
New subsection 3(9) creates a
new offence of failure to comply with Ministerial directions issued
when a coordinated response powers proclamation is in force. The
effect of new subsection 3(9) is that strict
liability will apply to the physical element of circumstance that
the direction was given under new section 3. The
maximum penalty for this offence is 10 years imprisonment.
Items 1 and 3 also insert notes
after existing subsection 2B(2) and new section 3.
These notes draw the attention of the reader to the fact that, as a
result of section 149.1(18) of the Criminal Code, it is
an offence to obstruct a person who is authorised to take action
under a Ministerial directive given when a subsection 2B(1)
proclamation or a coordinated response powers proclamation is in
Commercial smuggling and
Existing subsections 67(1)-(4) of the Quarantine
Act contain offences of illegally importing and removing animals,
plants or other goods in contravention of the Quarantine Act. These
provisions are repealed and new offences are created by
New subsection 67(1) replaces
the existing offence of importing a disease, pest or thing in
breach of the Quarantine Act. Changes are made to some of the
physical elements of the offence and also to the fault elements.
For instance, the amendments provide that strict liability will
apply to the physical element of circumstance in the offence that
the importation contravenes the Quarantine Act.(19) The
maximum penalty remains 10 years imprisonment.(20)
New subsection 67(3) creates a
new offence of aggravated illegal importation (commercial
smuggling) where a person obtains a commercial advantage by
importing a disease, pest, animal, plant or goods and the
importation contravenes the Quarantine Act. The maximum penalty for
an individual who is convicted of this offence will be 10 years
imprisonment or a fine of 2,000 penalty units(21), or
both. In the case of a corporation, the maximum fine is 10,000
penalty units.(22) Examples of commercial advantage are
provided by new subsection 67(4) and are avoiding
business costs involved in obtaining an import permit or meeting
quarantine requirements or avoiding delays associated with
complying with quarantine measures. Once again, strict liability
applies to the physical element of circumstance that the
importation contravened the Quarantine Act.
New subsection 67(4B) replaces
an existing offence of illegally removing animals, plants or things
in contravention of the Quarantine Act. Changes are made to some of
the physical elements of the offence and also to the fault
elements. For instance, strict liability will apply to the physical
element of circumstance that the removal contravenes the Quarantine
Act [new subsection 67(4C)].(23) The
existing maximum penalty of 10 years imprisonment is retained.
- See H Kelsall, P Robinson & G Howse, Public health law and
quarantine in a federal system , Journal of Law and
Medicine, 7(1), August 1999, pp. 87 95.
- Department of Health and Aged Care, Human Quarantine
Legislation Review. Public Consultation Discussion Paper,
April 2000, p. 51.
- Quarantine Act 1920.
- Senator McKenna, Second Reading Speech, Quarantine Bill (No.2)
1947, Parliamentary Debates (Hansard), 3 December 1947, p.
- John Anderson, Deputy Prime Minister, Coalition toughens
quarantine penalties , Media Release, 7 November 2001;
Warren Truss, Minister for Agriculture, Fisheries and Forestry,
Quarantine strengthened under Coalition , News Release, 7
- New subsections 3(2) and 3(12).
- New subsection 3(3).
- New subsection 3(5).
- Item 9 enables the Governor-General to make
arrangements with State Governors and the Northern Territory
Administrator. Item 10 enables the Prime Minister
to make arrangements with the Chief Minister of the Australian
Capital Territory. Under the Australian Capital Territory
(Self-Government) Act 1988, the ACT has no Administrator. The
Chief Minister carries out functions that would ordinarily be
carried out by a Governor or Administrator. For example, in other
jurisdictions the Governor or the Administrator assents to law
whereas in the ACT the Chief Minister gazettes proposed laws.
- Section 3.1.
- Sections 5.1-5.6.
- Section 3.2.
- Sections 6.1 and 6.2.
- Sections 6.1 and 6.2.
- Under subsection 2B(2).
- Conduct as defined in the Criminal Code can include an omission
to perform an act . See sections 4.1 and 4.3.
- See paragraph 6.1(2)(b), Criminal Code.
- Section 149.1 of the Criminal Code creates an offence of
obstructing a Commonwealth public official. The maximum penalty is
imprisonment for 2 years.
- A present, a person must know that the importation breaches the
Quarantine Act but in the absence of contrary evidence, this
knowledge is presumed if, for example, the person hides the thing.
See existing subsection 67(2).
- Where a Commonwealth offence is stated to be punishable by a
term of imprisonment only, the Crimes Act 1914 contains a
formula which enables a court to convert this penalty to a
pecuniary penalty and/or a term of imprisonment (section 4B).
- 2,000 penalty units equals $220,000 section 4AA, Crimes Act.
- 10,000 penalty units equals $1,100,000 section 4AA, Crimes Act.
- At present, a person must know that the removal contravenes the
Quarantine Act but knowledge is presumed to exist, in the absence
of contrary evidence if, for example, the person conceals the
animal, plant or goods. See subsection 67(4).
19 March 2002
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