Bills Digest No. 116  1998-99 Quarantine Amendment Bill 1998


Numerical Index | Alphabetical Index

WARNING:
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 Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details

Passage History

Quarantine Amendment Bill 1998

Date Introduced: 3 December 1998

House: House of Representatives

Portfolio: Agriculture, Fisheries and Forestry

Commencement: Item 86 which contains provisions dealing with decisions affecting the environment commences on the same day as the proposed Environment Protection and Biodiversity Conservation Act 1998. The other provisions outlined in this Digest commence on a day to be fixed by Proclamation, however, if they do not commence within 6 months of the day on which the Bill receives the Royal Assent, they will be taken to have commenced on the day after the end of that period.

Purpose

The major amendments proposed by the Bill represent the Government's response to the recommendations of the report, Australian Quarantine: A shared responsibility, otherwise known as the Nairn Report. For the most part, the Bill gives effect to the Nairn Report and certainly the Government's response to the Nairn Report. In particular, the Bill provides for clearer identification of ministerial and authority responsibilities through the transference of major regulatory powers to the enabling legislation. The major amendments:

  • extend the Governor-General's, and consequently the Minister's, declaratory powers to declaring the existence of an epidemic caused by a quarantinable pest or danger of such an epidemic
  • include within the definition of 'quarantine measures' measures that have as their object the prevention or control of diseases or pests that will or could cause significant damage to the environment or economic activities
  • broaden the delegation powers accorded under the Quarantine Act 1908
  • require a Director of Quarantine, before making a decision which is likely to result in a significant risk to the environment to ensure that the Environment Minister is told of the intention to make the decision and give the Environment Minister an assessment of the potential impact of the decision on the environment
  • provide the Governor-General, and consequently the Minister, with power to prohibit the removal of any animals, plants or other goods
  • extend the power of the Governor-General, and consequently the Minister, to exempt, generally or subject to conditions, traditional inhabitants from the operation of proclamations prohibiting the removal of animals, plants or other goods and
  • provide for the issuing, revoking and suspension of approvals for commercially operated quarantine premises.

Background

Nairn Report

On 14 December 1995, the then Minister for Primary Industries and Energy, Senator the Hon. Bob Collins, established an independent committee to review Australia's quarantine policies and programs.

The underlying events which led to the establishment of the review included a number of incursions into Australia of exotic pests, major developments in world trade and other issues relevant to quarantine policy and the recommendations of the then major review of Australia's quarantine system, chaired by Professor David Lindsay.

The March 1996 election of the Liberal/National Party Coalition government saw the Hon. John Anderson takeover the portfolio and the new Government confirmed that the quarantine review would proceed. The committee members were Chairman, Professor Malcolm Nairn, and fellow members Mr Andrew Inglis, Dr Peter Allen and Ms Carolyn Tanner. The report, Australian Quarantine: A shared responsibility, otherwise known as the Nairn Report, was released in October 1996.

The major recommendations of the Nairn Report included:

  • That the goal of national quarantine should be to prevent the establishment and spread within Australia of exotic pests and diseases that are deemed to have a significant deleterious effect on humans, animals, plants or the natural environment
  • Quarantine be based on pre-border, border and post-border measures to ensure that the risk of unwanted pests and diseases is within acceptable risks and not in contravention of international agreements
  • Quarantine be given greater public exposure to better educate people on the risks of breaching quarantine and to involve the community and stakeholders in the whole issue of quarantine and its importance to Australia
  • A new statutory authority, Quarantine Australia, be established for discharging the responsibilities and functions of quarantine in Australia in accordance with government policy
  • The Board of Quarantine Australia to be made up of nine members including a chairperson appointed by the Minister, and seven members appointed by the Minister, with relevant experience and qualifications, subject to an independent selection process, and a managing director who would be appointed by the other Board members
  • The Board of Quarantine Australia to assume the responsibilities of the Quarantine and Inspection Advisory Council as they relate to the charter of Quarantine Australia
  • Australia to continue to take a leading position in the development of international definitions and standards and in risk analysis and market access arrangements
  • Scientifically based risk analysis continue to be the basis of quarantine policies and procedures
  • For import access requests deemed to require a detailed risk analysis, Quarantine Australia should coordinate and chair a Risk Analysis Panel (RAP)
  • The Government to provide funds to establish a Key Centre for quarantine - related risk analysis to enhance Australia as a world leader in the field
  • Quarantine Australia to consult regularly with relevant stakeholders
  • Border activities to become more efficient, effective and based on comprehensive detection databases and information systems as well as improved audit and x-ray technologies
  • Quarantine Australia to liaise closely with the Australian Customs Service
  • Government animal quarantine stations be subject to contracting out
  • The establishment of plant diagnostic laboratories and security-post entry quarantine facilities at Eastern Creek in Sydney
  • The Australian Animal Health Council and the Australian Plant Health Council to take responsibility for co-ordination and development of national contingency plans for pests and disease which threaten Australia's animals, plants and environment
  • That quarantine should have its government funding increased and
  • That the legislation establishing Quarantine Australia have a sunset clause of ten years with a review of quarantine policy and programs to be undertaken within two years prior to this date.(1)

Government Response

The Government's response to the Nairn Report was issued by the Hon. John Anderson, Minister for Primary Industries and Energy, in August 1997.(2) The Government accepted the majority of the recommendations of the Nairn Report. Recommendations the Government did not accept were:

  • The recommendation that a new statutory body, Quarantine Australia, be established, was not accepted. The rationale given by the Government for not accepting included:

That the general principles espoused by the Nairn Report for the establishment of Quarantine Australia (ie. developing a new culture both within AQIS and the wider community; enhancing the establishment of a partnership approach with stakeholders; flexible application of resources and procedures; etc.) can be delivered without creating a statutory authority, which would sever current direct links with other parts of Government that are central to the operation of an efficient and effective quarantine service.

That objectives such as community ownership of quarantine, cultural change and more efficient use of resources can be achieved without creating a statutory authority. A move to a statutory authority would weaken the links with the Department and other Commonwealth and State agencies and would take some time to implement fully.

  • The recommendation that the Board of Quarantine Australia assume the responsibilities of the Quarantine and Inspection Advisory Council as they relate to the charter of Quarantine Australia was not accepted. Instead, the Government proposes the establishment of a Quarantine and Exports Advisory Council (QEAC). This body is intended to replace the existing Quarantine and Inspection Advisory Council and have the following terms of reference:
  • provide advice on major quarantine and export services policy issues and strategic directions for AQIS
  • oversight DAFI's implementation of the Government's decisions on Nairn and Fish Task Force Reports
  • provide advice on matters referred by the Minister
  • act as a focal point to ensure broad-ranging consultation between AQIS, industry and stakeholders
  • provide advice on the effectiveness of AQIS's program delivery and
  • help AQIS evaluate its performance.
  • The recommendation that the Government provide funds to establish a Key Centre for quarantine-related risk analysis to enhance Australia as a world leader in that field was not accepted. The rationale given by the Government for not accepting the recommendation is unclear. The Government maintains that within the additional resources provided for risk assessment, AQIS and the Bureau of Sciences will continue to develop risk assessment methods.
  • The recommendation that aircraft disinfection be discontinued was not accepted by the Government, pending further scientific assessment.
  • The recommendation that galley waste and other refuse from international aircraft could be disposed of at municipal and commercial waste facilities under standard waste control measures, subject to Quarantine Australia audit, was not accepted by the Government, pending further scientific assessment.

Level of funding to implement Nairn Report recommendations

On 18 August 1997 the then Minister for Primary Industries and Energy, John Anderson, announced a funding package for quarantine, and plant and fish health services.(3) The stated rationale for the funding package, a total of $76 million over four years, was that it responds to key recommendations of the Nairn Report. The $76 million funding package included:

  • Quarantine Border - More than $38.7 million over the next four years to boost border activities, including: increased external shipping container inspection; improved wharf surveillance and signage; specialist quarantine staff at airports to facilitate the clearance process; a review of international mail centres; and an expansion of the quarantine detector dog program for airports and international mail centres.
  • Risk Analysis - More than $13.24 million over the next four years directed towards: enhancing the science-based risk analysis capacity in AQIS; increasing community and stakeholder consultation; and establishing, where required, Risk Analysis Panels to provide scientific advice on non-routine import access requests.
  • Quarantine Awareness - More than $5.6 million over the next four years to develop and implement a national quarantine awareness campaign with particular focus on industry, Australians travelling overseas, visitors to Australia, ethnic communities, schools and the general public.
  • Fish Quarantine - More than $4.48 million additional funding for AQIS to meet key recommendations of the National Fish Task Force Report over the next four years to review risks associated with importing fish and fish products into Australia.
  • Quarantine Support - Additional funding of more than $9 million to undertake major initiatives including the appoint of a Chief Plant Protection Officer, the establishment of an Australian Plant Health Council, a Plant Health Unit and a Fish Products Policy Unit within the Department of Primary Industries and Energy, to increase work on plant and aquatic health and related pests and diseases.
  • Advisory Council - Funds of $0.78 million over the next four years for a new Quarantine and Exports Advisory Council (QEAC).

Industry Response

Both the Nairn Report and the Government's response resulted in little media, industry and lobby group reaction. However, for the most part both the Nairn Report and the Government's response have been reported favourably. For example, The Sydney Morning Herald of 19 August 1997 reports that:

The National Farmers' Federation (NFF) has welcomed the moves, saying a more open import risk assessment process would "help deal with many of the issues that have surrounded contentious quarantine decisions in the recent past".

The executive director of the Tasmanian Salmonid Growers Association, Mr Tony Smithies is reported in the Australian Financial Review of 19 August 1997 as saying that the risk analysis process looked good at first glance, and that he was pleased with the package as a whole.

However, the Australian Financial Review of 19 August 1997 reported that:

The executive director of the National Farmers Federation, Dr Wendy Craik, said yesterday the NFF was disappointed by the decision to retain AQIS as part of the Department of Primary Industries and Energy. Without this fundamental reform the NFF is not confident a cultural change will be achieved," she said. The NFF has previously warned such a decision could lead to an increase in WTO challenges to quarantine decisions.

The director of trade and quarantine at the National Farmers' Federation is reported in the Australian Financial Review as saying:

[T]he new procedures looked much better on paper and were likely to reduce industry and international criticism, but said it remained to be seen how they would work in practice.

Main Provisions

Proclamation in event of epidemic

Section 2B of the Quarantine Act 1908 (the Principal Act) provides the Governor-General with power to declare the existence of an epidemic caused by a quarantinable disease or danger of such an epidemic. Where such a declaration is made the Minister may give such directions and take such action as she or he thinks necessary to control and eradicate the epidemic.

Item 1 of Schedule 1 inserts the term quarantinable pest into subsection 2B(1) of the Principal Act. This amendment will extend the Governor-General's power, as outlined above, to declare the existence of an epidemic caused by a quarantinable pest or danger of such an epidemic. The term "quarantinable pest" is defined by item 51 of Schedule 1 to mean any pest declared by the Governor-General, by Proclamation, to be a quarantinable pest.

Scope of quarantine

Section 4 of the Principal Act provides a definition of quarantine measures. The section currently provides:

In this Act, Quarantine has relation to measures for the inspection, exclusion, detention, observation, segregation, isolation, protection, treatment, sanitary regulation, and disinfection of vessels, installations, persons, goods, things, animals, or plants, and having as their object the prevention of the introduction or spread of diseases or pests affecting human beings, animals, or plants.

Item 3 of Schedule 1 substitutes a new section 4 in the Principal Act. Proposed section 4 includes within the definition of measures that have as their object the prevention or control of diseases or pests that will or could cause significant damage to the environment or economic activities.

Interpretation

Item 9 of Schedule 1 inserts a definition of ballast water in the Principal Act. The term is defined to mean water, including sediment that is or has been contained in water, used as ballast.

Note: Ships' ballast water has the potential to spread unwanted aquatic organisms. At least 15 exotic marine species are thought to have arrived in Australia in ballast water. Some of these are having a major adverse effect on Australia's marine environment and pose a significant threat to seafood production, as well as human health.

Management of ballast water in Australia is the responsibility of the Australian Quarantine Inspection Service (AQIS). In 1990 Australia was the first country to introduce guidelines for ballast water management which apply to ships entering Australia from overseas ports. AQIS currently conducts a ballast water sampling program and monitors compliance with the guidelines.(4)

Item 18 of Schedule 1 inserts a new definition of disease in the Principal Act. The term is defined to include a micro-organism, a disease agent, an infectious agent and a parasite.

Item 21 of Schedule 1 inserts a new definition of environment in the Principal Act. The term is defined to include all aspects of the surroundings of human beings, both natural and made by humans, and whether affecting them as individuals or in social groupings.

Item 22 of Schedule 1 inserts a new definition of evidential material in the Principal Act. The definition is central to the operation of enter, search, seizure and offence provisions in the Principal Act. The term is defined to mean any of the following, including in electronic form:

  • a thing with respect to which an offence against the Principal Act has been, or is suspected on reasonable grounds of having been, committed
  • a thing that there are reasonable grounds for suspecting will provide evidence of the commission of an offence against the Principal Act, or
  • a thing that there are reasonable grounds for suspecting is intended to be used for committing an offence against the Principal Act.

The definition of goods is widened by item 27 of Schedule 1 of the Bill. Currently, goods are defined to include animals and plants and any other kind of moveable property. Under the proposed definition goods are defined to include animals, plants (whether moveable or not), and any other kind of substance or thing (including mail and ballast water). The Explanatory Memorandum to the Bill states that the definition will also encompass passenger baggage.(5)

Item 39 of Schedule 1 inserts a new definition of operator in the Principal Act. The term is important as it defines the limits of liability of persons in relation to vessels, installations and aircraft. Basically, the operator is the person responsible for the operation of the vessel, installation or aircraft during the voyage or flight under a charter party or similar agreement, or the owner of the vessel, installation or aircraft.

A new definition of pest is substituted in the Principal Act by item 44 of Schedule 1. The current definition of pest provides that a pest includes weed pest and insect pest. The proposed definition is broader and provides that a pest includes any animal, or any plant, that is a pest.

Item 55 of Schedule 1 inserts a new definition of treatment in the Principal Act. The term is defined to mean any process for controlling or eliminating a disease or pest, including examination, spraying, disinfection, denaturing, cleaning, vaccination, testing, veterinary treatment, sorting and repacking.

Special quarantine zone

Item 60 of Schedule 1 inserts new sections 5A-5E, which deal with special quarantine zones, in the Principal Act. The rationale given by the Government in its Explanatory Memorandum for the provisions include:

... to ensure that there is a consistent approach in relation to the special risks associated with overseas vessels and aircraft travelling in the Special Quarantine Zone and the Protected Zone. The Special Quarantine Zone and Protected Zone restrictions are primarily concerned with enabling the movement of the traditional inhabitants of those areas. (6)

Proposed section 5A provides the Minister with power to declare, by notice published in the Gazette, an area to be a Special Quarantine Zone. The Minister's power is not subject to disallowance by Parliament.

Proposed section 5D provides a definition of the term level of quarantine risk. The term is defined to mean the probability of a disease or pest being introduced, established or spread in Australia or the Cocos Island and causing harm to humans, animals, plants, other aspects of the environment or economic activities and the probable extent of the harm.

Delegation by Minister

New sections 10-10B, dealing with the delegation of powers accorded by the Principal Act, are substituted in the Principal Act by item 82 of Schedule 1. Under proposed section 10 the Minister is accorded the power to delegate to the Secretary, a Director of Quarantine or officer all or any of her or his powers. Proposed section 10A provides that the Secretary may delegate to a Director of Quarantine or an officer all or any of her or his powers. Proposed section 10B provides that a Director of Quarantine may delegate to an officer all or any of her or his powers. The proposed sections both clarify and broaden delegation powers accorded under the Principal Act. Where the Minister delegates her or his power the proposed provisions do not provide for the Minister to be personally responsible for decisions made by the holder of delegated powers.

Decisions affecting the environment

A new Part IIA (proposed sections 11A-11E), dealing with seeking advice from the Environment Minister about quarantine decisions affecting the environment, is inserted in the Principal Act by item 86 of Schedule 1. Under proposed section 11C a Director of Quarantine must, before making a decision which is likely to result in a significant risk of harm to the environment:

  • ensure that the Environment Minister is told of the intention to make the decision, and
  • give the Environment Minister an assessment of the potential impact of the decision on the environment.

Proposed section 11D provides that where the Environment Minister is told of an intention to make a decision affecting the environment by a Director of Quarantine, she or he may advise the Director of the action that should be taken to prevent or limit any harm that may be caused to the environment as a consequence of the decision. Where a Director of Quarantine receives any advice from the Environment Minister she or he must ensure the advice is taken into account in making the relevant decision and tell the Environment Minister how the advice has been taken into account (proposed section 11E).

Emergency quarantine measures

A new section 12A is substituted in the Principal Act by item 88 of Schedule 1 which widens the power of the Minister to take quarantine measures in an emergency. Under proposed section 12A the Minister may, where she or he is of the opinion an emergency has arisen that requires action not authorised under the Act, take such quarantine measures, or measures incidental to quarantine, and give such directions as she or he thinks necessary for the diagnosis, prevention or control, of the introduction, establishment or spread, for the eradication, or the treatment, of any disease or pest. The provision differs from the current section 12A primarily in that it is not limited to quarantine measures or measures incidental to quarantine. The Ministers discretion is not subject to disallowance by Parliament. Failure to comply with a Ministerial direction under proposed section 12A is an offence punishable by a maximum term of imprisonment of 10 years.

Proclamations by Governor-General

Section 13 of the Principal Act is one of the most powerful sections in Commonwealth legislation. Section 13 provides the Governor-General (on the advice of the Minister who receives advice from AQIS) with power to make certain proclamations, for example declare that any vessel, person, animals, plants, or goods in any quarantine area, or in any part of the Commonwealth or Cocos Islands in which any quarantinable disease, or any disease or pest affecting plants or animals, exists, or is suspected to exist, is subject to quarantine. This power is not subject to disallowance by Parliament.

Item 94 of Schedule 1 inserts a new paragraph 13(1)(ca) in the Principal Act which provides the Governor-General with power to declare a disease or pest to be a quarantinable disease or quarantinable pest.

Item 100 of Schedule 1 inserts a new paragraph 13(1)(ga) in the Principal Act which provides the Governor-General with power to prohibit the removal of any animals, plants or other goods.

Item 105 of Schedule 1 substitutes a new subsection 13(2A) in the Principal Act which broadens the power of the Governor-General, and consequentially the Minister, to issue permits in relation to section 13 proclamations. The major differences between the current and proposed subsection is that the proposed subsection extends the power to issue permits to:

  • prohibiting the introduction into Australia or the Cocos Islands of any thing
  • prohibiting the bringing into a port or other place in Australia or the Cocos Islands of anything and
  • prohibiting the removal of anything from a part of Australia or the Cocos Islands to another part of Australia or the Cocos Islands, or from Australia or part of the Australia to the Cocos Islands or a part of the Cocos Islands and vice versa.

A new subsection 13(6) is inserted in the Principal Act by item 110 of Schedule 1 the principal effect of which is to extend the power of the Governor-General to exempt, generally or subject to conditions, traditional inhabitants from the operation of proclamations prohibiting the removal of animals, plants or other goods.

Notice of proposed importation

Under subsection 16AC(2) where a person importing goods into Australia or the Cocos Islands has not given notice of the proposed importation, they are required as soon as practicable after the importation to give notice of the importation. The principal effect of item 116 of Schedule 1 is to require notice of importation to be given within 35 days of importation.

Vessel arriving illegally at a place other than a port

Item 123 of Schedule 1 inserts a new section 16AH in the Principal Act which provides that where a vessel illegally arrives at a place other than a port, an officer may perform any functions or exercise any powers under this Act in relation to the vessel, or its operator, master, crew or passengers, or goods on it that she or he could have performed or exercised had the vessel arrived at a port.

Permission to enter place other than first port of entry

Section 20AA of the Principal Act provides the Minister with power, upon application, by the master, owner or agent of an overseas vessel, to give permission, subject to any conditions, for the vessel to be brought to a place in Australia or the Cocos Islands other than the first port of entry or landing place. Item 140 of Schedule 1 provides for an offence, punishable by a maximum penalty of 5 years imprisonment, for reckless breaches of conditions of section 20AA permission's.

Directions for vessels coming from proclaimed places

A new section 32A is inserted in the Principal Act by item 167 which provides a Director of Quarantine with power to direct the master of a vessel that is bound for a port in Australia or the Cocos Islands and comes from, or calls or lands at, a proclaimed place not to enter a specified port in Australia or the Cocos Islands. Failure to comply with such a direction will constitute an offence punishable by a maximum term of imprisonment of 5 years.

Quarantine surveillance

Section 34 of the Principal Act deals with the situation where a vessel has arrived in port from a proclaimed place and the quarantine officer is not satisfied that the vessel is free from infection. A new subsection 34(4) is substituted in the Principal Act by item 173 of Schedule 1 which provides that any cargo or passengers' effects landed are to be treated as directed by a quarantine officer. The existing subsection 34(4) provides that all cargo and passengers' effects are subject to treatment and disinfection as prescribed. New subsections 34(5) and 34(6) are also inserted in the Principal Act and make it an offence, of strict liability, punishable by a maximum fine of $2200 for a person who is the importer, or has control, of any cargo or passengers' effect to fail to comply with a subsection 34(4) direction.

Particulars to be given at quarantine station

Section 38 of the Principal Act makes it an offence, where a vessel arrives at an appointed quarantine station, for the master of the vessel not to produce and deliver to the officer in charge the passenger list, log, manifest, journal and other ship's papers as requested. The effect of item 183 of Schedule 1 is to make the offence, which attracts a maximum fine $55 000 or maximum term of imprisonment of 5 years, one of strict liability.

Performance of quarantine

The effect of item 199 of Schedule 1 is to make offences relating to the performance of quarantine strict liability offences.

Use of commercially operated premises for quarantine activities

New sections 46A-48AD, dealing with the issuing, revoking and suspension of approvals for commercially operated quarantine premises are inserted in the Principal Act by item 200 of Schedule 1. The major features of the proposed provisions include:

  • On application and payment of a prescribed fee, a Director of Quarantine may approve a place where goods of a specified class subject to quarantine may be treated or dealt with
  • Declarations may be sought from an applicant in relation to certain matters, including prior convictions under the Principal Act and whether a previous application has been granted or refused
  • A Director of Quarantine when deciding whether to give an approval will have to take certain matters into account, including whether the procedures proposed in the application to be carried out in relation to the goods at the place can be carried out without an unacceptably high level of quarantine risk and will be capable of being effectively monitored to determine whether the Principal Act is being complied with
  • An approval will have effect for a period, not exceeding one year, specified in the approval and may be renewed
  • An offence, punishable by a maximum term of imprisonment of 2 years, for a reckless breach of a condition attaching to an approval
  • A Director of Quarantine may suspend or revoke an approval in certain circumstances, including where any of the procedures carried out in relation to the goods at an approved place cannot be carried out without an unacceptably high level of quarantine risk or are not capable of being effectively monitored to determine compliance with the Principal Act.

Quarantine expenses in case of animals and plants

Section 63A of the Principal Act deals with expenses connected with the examination of any animals or plants or goods, and their movement to a quarantine station, and of their detention, maintenance, and treatment in quarantine or under surveillance, and expenses connected with the removal, disposal and destruction of any animals, plants or goods. New subsections 63A(2) and 63A(3) are inserted in the Principal Act by item 219 which provide that a Director of Quarantine may direct the owner of an animal in quarantine to provide food to the animal whilst it is being held. Failure to comply with such a direction will be an offence punishable by a maximum fine of $5 500.

General powers of quarantine officers

A new Part VIA (proposed sections 66AA-66AX) dealing with the general powers of quarantine officers is inserted in the Principal Act by item 221 of Schedule 1. The major features of the proposed provisions include:

  • In relation to particular premises a quarantine officer is accorded certain general powers, including to search, examine, take photographs, take extracts, secure the premises, order into quarantine infected goods and trap or destroy animals on the premises.
  • Without a warrant, for the purpose of determining whether to exercise a power under the Principal Act or finding out whether the Principal Act is being complied with, an officer may enter any premises approved for the purposes of the Principal Act (eg. a place other than quarantine stations approved as a place where goods may perform quarantine), a quarantine station, any premises at which procedures are authorised under a compliance agreement to be carried out, or any other premises with the consent of the occupier.
  • Allow a quarantine officer, without a warrant, where she or he suspects, on reasonable grounds that particular evidential material is in or on a vessel or vehicle, to prevent evidential material being concealed, lost or destroyed and because the circumstances are serious and urgent, to stop and detain the vessel or vehicle, search the vessel or vehicle for the evidential material and seize any evidential material found to hinder or prevent another person from complying with the Principal Act.

Directions to people in a quarantine state

A new section 70E, dealing with directions to persons in a quarantine station, is inserted in the Principal Act by item 251 of Schedule 1. Proposed section 70E provides that for the purpose of achieving the object of the prevention or control of diseases or pests that will or could cause significant damage to humans, animals, plants or other aspects of the environment or economic activities, a quarantine officer in charge of a quarantine station may give directions to a person in the quarantine station. Directions may also be given to a person in a commercially operated quarantine station/place. Directions which may be given include a direction to leave the station or place and/or to subject her/himself to such treatment as directed. Failure to comply with a direction will constitute an offence punishable by a maximum term of imprisonment of 2 years.

Treatment of vessel or installation subject to quarantine

A new section 78AA, dealing with directions to the master of a vessel, installation or person subject to quarantine on board a vessel or installation, is inserted in the Principal Act by item 291. Under proposed section 78AA where a vessel or installation is subject to quarantine, or a person on board a vessel or installation is subject to quarantine, a quarantine officer may give the master of the vessel or installation a direction requiring a specified process to be carried out in respect of the vessel or installation. Directions which may be given include subjecting the vessel or installation to specified treatment, keeping food in a hygienic condition and producing samples of, or exchanging or treating, ballast water in the vessel.

Moving an insanitary vessel

The effect of proposed section 78C, which is inserted in the Principal Act by item 294 of Schedule 1, is to provide a quarantine officer with power to cause a vessel to be moved to another place and/or cargo to be removed to another place, where she/he believes on reasonable grounds that the vessel is in an insanitary condition, is carrying diseases or pests and if quarantine measures are not taken there will be an unacceptably high level of quarantine risk. Movement of a vessel or removal of cargo or goods without permission of a quarantine officer will be an offence punishable by a maximum term of imprisonment of 2 years.

Exclusion of privilege against self incrimination

A new section 79A is inserted in the Principal Act by item 295 of Schedule 1 which prevents the privilege against self incrimination operating in particular circumstances. The particular circumstances specified under proposed section 79A include answering questions, giving information and producing documents under:

  • section 27A (pre-arrival and pre-departure reports by certain vessels and installations)
  • section 27B (pre-arrival and pre-departure reports by certain aircraft)
  • section 28 (questions of a quarantine officer to the master and medical officer of a vessel or installation)
  • subsection 70(2) (production by the master of a vessel of the passenger list, log, manifest, journal and other papers relating to the vessel or any persons, animals or goods on board) and
  • subsection 70AA(3) (production by the master of an installation of the passenger list, log, manifest, journal and other papers relating to the installation or any persons, animals or goods on board the installation).

Information obtained because of the exclusion of the privilege against self incrimination will not be admissible in evidence against a person in civil proceedings and criminal proceedings, other than for an offence against:

  • subsection 27A(6) (knowingly giving false or misleading information in relation to pre-arrival and pre-departure reports by certain vessels and installations)
  • subsection 27A(7) (negligently giving false or misleading information in relation to pre-arrival and pre-departure reports by certain vessels and installations)
  • subsection 27B(5) (knowingly giving false or misleading information in relation to pre-arrival and pre-departure reports by certain aircraft)
  • subsection 27B(6) (negligently giving false or misleading information in relation to pre-arrival and pre-departure reports by certain aircraft)
  • subsection 28(8) (knowingly giving false or misleading answers to prescribed matters by the master or medical officer of a vessel or installation)
  • subsection 28(9) (the master or medical officer of a vessel or installation knowingly making a false or misleading statement in a declaration verifying an answer to a question relating to a prescribed matter) and
  • 74C(4) (knowingly failing to correct false or misleading information in a document required to be produced).

Concluding Comments

Major issues for consideration flowing from the Bill include:

  • Non-acceptance of Nairn Report recommendation for new statutory body, Quarantine Australia.
  • Whether commercially operated quarantine premises should be allowed? Are the safeguards adequate? What role does Parliament have in reviewing the activities of commercially operated bodies. See remarks relating to this issue below.
  • Ministerial responsibility. The provisions do not provide for the Minister to be personally responsible for quarantine measures. While not an issue specifically canvassed by the Nairn Report this issue has been of ongoing concern to Members and Senators.
  • Adequacy of provisions relating to the environment.

Establishment of Quarantine Australia - pros and cons

The Nairn Report outlined a number of pros and cons regarding the establishment of Quarantine Australia, including:

Pros:

  • functional independence from the department
  • a suitable structure for engendering a cultural change in the organisation
  • potential for greater job satisfaction for staff
  • clearer identification of Ministerial and authority responsibilities in the enabling legislation
  • competitive management
  • greater resource efficiency and flexibility
  • financial independence
  • greater community ownership and responsiveness to stakeholders and
  • more public accountability.

Cons:

  • increased vulnerability to budget cuts
  • possibly greater pressure to increase external revenue
  • perceived increased susceptibility to community pressure
  • weaker links with government bodies
  • developing a new culture both within AQIS and the wider community; enhancing the establishment of a partnership approach with stakeholders; flexible application of resources and procedures; etc., can be delivered without creating a statutory authority.

Commercially operated premises for quarantine activities

The Nairn Report recommended that, in principle, Government animal quarantine stations should be offered for privatisation, subject to audit by Quarantine Australia and maintenance of appropriate security. The Nairn Report expressed concern that any proposals for private ownership of Government quarantine stations of any level of security, should be allowed only after development of the necessary security controls and conditions, and subject to strict audit.

It should be recognised that the provisions of the Bill providing for commercially operated quarantine premises extend to 'goods', that is, animals, plants and any other article, substance or thing. The Nairn Report recommendation was only in respect of animal quarantine stations.

While the provisions of the Bill providing for commercially operated quarantine premises facially provide for adequate safeguards, the level of parliamentary scrutiny which will apply in respect to commercial operations remains unclear.

Ministerial responsibility

The inability to sheet home personal responsibility/liability for poor quarantine decisions which have resulted in financial loss to stakeholders has been an ongoing concern of opposition, minor party and independent Members and Senators. The Bill makes a number of important amendments to delegation powers and increases declaratory powers available to the Governor-General/Minister/AQIS. There is nothing in these provisions which makes the Minister personally responsible/liable for decisions which result in financial loss to stakeholders.

Decisions affecting the environment

A new Part IIA (proposed sections 11A-11E), dealing with seeking advice from the Environment Minister about quarantine decisions affecting the environment, is inserted in the Principal Act by item 86 of Schedule 1. Under proposed section 11C a Director of Quarantine must, before making a decision which is likely to result in a significant risk of harm to the environment, ensure:

  • that the Environment Minister is told of the intention to make the decision, and
  • give the Environment Minister an assessment of the potential impact of the decision on the environment.

Proposed section 11D provides that where the Environment Minister is told of an intention to make a decision affecting the environment by a Director of Quarantine, they may advise the Director of the action that should be taken to prevent or limit any harm that may be caused to the environment as a consequence of the decision. Where a Director of Quarantine receives any advice from the Environment Minister she or he must ensure the advice is taken into account in making the relevant decision and tell the Environment Minister how the advice has been taken into account (proposed section 11E).

The key features to note in respect of the 'environment provisions' include

  • no definition of 'significant risk to the environment'.
  • AQIS, and not an independent body, provides the environmental analysis which goes to the Environment Minister.
  • Advice from the Environment Minister has only to be 'taken into account'. It is unclear what taken into account means.

Endnotes

  1. Nairn, M. E., Allen, P. G., Inglis, A. R. and Tanner, C. (1996) Australian Quarantine - A Shared Responsibility. Department of Primary Industries and Energy, Canberra, pp. xi-xxii.

  2. Hon. John Anderson Minister for Primary Industries. (1997) Australian Quarantine - A Shared Responsibility - The Government Response, Department of Primary Industries and Energy, Canberra.

  3. Hon. John Anderson Minister for Primary Industries, Media Release, 18 August 1997.

  4. For a comprehensive outline of federal measures relating to ballast water the reader is referred to the Digest for the Ballast Water Research and Development Funding Levy Collection Bill 1997, Bills Digest No. 57 of 1997-98.

  5. Quarantine Amendment Bill 1998, Explanatory Memorandum, p. 10.

  6. Ibid., at p. 14.

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Ian Ireland and Brad Hinton
17 February 1999
Bills Digest Service
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ISSN 1328-8091
© Commonwealth of Australia 1999

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Published by the Department of the Parliamentary Library, 1999.

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