Commonwealth of Australia Explanatory Memoranda

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BIOSECURITY AMENDMENT (STRENGTHENING BIOSECURITY) BILL 2022

                                        2022




      THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                                      SENATE




BIOSECURITY AMENDMENT (STRENGTHENING BIOSECURITY) BILL 2022




           ADDENDUM TO THE EXPLANATORY MEMORANDUM




   (Circulated by authority of the Minister for Agriculture, Fisheries and Forestry,
                           Senator the Hon. Murray Watt)

BIOSECURITY AMENDMENT (STRENGTHENING BIOSECURITY) BILL 2022

The purpose of this addendum is to provide additional clarifying material for the Explanatory
Memorandum to the Biosecurity Amendment (Strengthening Biosecurity) Bill 2022 (the
Bill).

This addendum responds to a request of the Senate Standing Committee for the Scrutiny of
Bills in Scrutiny Digest No. 7 of 2022, tabled on 23 November 2022. The addendum provides
additional explanatory material in relation to the inclusion of no-invalidity clauses at new
sections 196A and 393B of the Bill, and in relation to why determinations made under new
sections 196A, 196B and 393B are not subject to disallowance process under section 42 of
the Legislation Act 2003.

SCHEDULE 1 - Amendments

Part 1 - Entry requirements

Biosecurity Act 2015

Item 5        After Division 3 of Part 2 of Chapter 4

1. At the end of paragraph 39 on page 10 of the Explanatory Memorandum, insert:

   A determination made under new subsection 196A(2) is a decision that is scientific and
   technical in nature, critical to the effective management of biosecurity risks and may be
   an emergency action to ensure fast and urgent action necessary to manage a threat or
   harm from a biosecurity risk. It will implement technical and scientifically based
   decision-making, risk management processes and the broader management of biosecurity
   risks, noting that those risks arise quickly and could have devastating impacts on
   Australia, like FMD or Xylella fastidiosa. A determination made under new subsection
   196A(2) would be critical to preventing or reducing the risk of dangerous diseases or
   pests entering, or establishing themselves or spreading in, Australian territory.

2. In paragraph 40 on page 11 of the Explanatory Memorandum, omit the whole paragraph
   and insert:

   Australian businesses, individuals and global trading partners rely upon Australia's
   favourable biosecurity status and the Commonwealth's ability to effectively manage
   biosecurity risk in a timely manner. Where there is an imminent threat or actual outbreak
   of such disease or pest entering Australia, emergency action would be required to ensure
   fast and urgent action is taken to manage a threat or harm from the spread of the disease
   or pest within Australian territory. A determination made under new subsection 196A(2)
   will play a crucial role in that response and will be fundamental in the effective
   management of disease and may need to be made on a time critical basis to protect our
   industry and economy. The provision will support greater certainty for impacted
   industries, the individuals that implement these decisions and the broader community in
   order to protect Australia's plant and animal health, the nation's $70 billion dollar
   agriculture industry and the 1.6 million jobs that rely on it.




                                             1

3. At the end of paragraph 41 on page 11 of the Explanatory Memorandum, insert:

   Each biosecurity measure or entry requirement in a determination made under new
   subsection 196A(2) must be appropriate and adapted to its purpose. There would also be
   appropriate safeguards to prevent a determination under new subsection 196A(2) from
   continuing in force indefinitely. For example, under new subsection 196B(1), the
   Agriculture Minister must vary or revoke a determination in force under new section
   196A if satisfied that the relevant pest or disease no longer poses an unacceptable
   biosecurity risk or that a requirement is no longer appropriate and adapted for its purpose.
   This effectively acts as a constraint on the Agriculture Minister's exercise of power as it
   compels variation or revocation in the circumstances set out above. For completeness,
   other mechanisms remain available to Parliament to ensure oversight over instruments
   which are exempt from disallowance, such as Senate Estimates, Senate Committee
   processes, Question Time and Questions on Notice.

4. This additional material explains why the proposed exemption from disallowance for a
   determination made under new subsection 196A(2) is appropriately justified. It is
   intended that paragraph 64 on page 15 of the Explanatory Memorandum would also refer
   to this justification, for the purposes of explaining why a determination made under new
   subsection 196B(1) is also exempt from disallowance. This responds to a request of the
   Senate Standing Committee for the Scrutiny of Bills in Scrutiny Digest No. 7 of 2022,
   tabled on 23 November 2022.

5. At the end of paragraph 57 on page 14 of the Explanatory Memorandum, insert:

   The inclusion of new subsection 196A(10) would align with similar provisions in the
   Biosecurity Act, such as a biosecurity response zone determination (see sections 365 and
   368), a temporary biosecurity monitoring zone determination (see sections 384 and 387)
   or a biosecurity activity zone determination (see sections 395 and 396), all of which are
   crucial in providing a rapid response to a pest or disease.

6. In paragraph 58 on page 14 of the Explanatory Memorandum, after the words 'Before
   making a determination', insert ' under new subsection 196A(2), in all but exceptional
   circumstances'.

7. At the end of paragraph 58 on page 14 of the Explanatory Memorandum, insert:

   Biosecurity threats are often urgent and emerging, with a limited window of time to
   respond effectively. In the event of a possible extreme and time critical situation where
   there is a need to act urgently to respond to a pest or disease, any arguable defects in the
   consultation process with all of the specified bodies should not invalidate a determination
   made to combat serious threats to Australia, its economy, environment and way of life.
   Further, as the process involves consultation with State and Territory bodies, the no-
   invalidity clause in new subsection 196A(10) provides a mechanism to reduce
   jurisdictional uncertainties and facilitate activities where matters cross State and Territory
   boundaries. For the avoidance of doubt, new subsection 196A(10) only applies in relation
   to a failure by the Agriculture Minister to comply with the consultation processes in new
   subsection 196A(9). It does not affect a person's right to seek judicial review in relation to
   the exercise of power in making the determination. As such, avenues to challenge
   executive decision-making remain.

                                               2

8. This additional material explains why it is both necessary and appropriate to include a
   no-invalidity clause in proposed subsection 196A(10). This responds to a request of the
   Senate Standing Committee for the Scrutiny of Bills in Scrutiny Digest No. 7 of 2022,
   tabled on 23 November 2022.

Part 2 - Preventative biosecurity measures

Biosecurity Act 2015

Item 11       After Part 6 of Chapter 6

9. At the end of paragraph 98 on page 20 of the Explanatory Memorandum, insert:

   A determination made under new subsection 393B(2) is a decision that is scientific and
   technical in nature, critical to the effective management of biosecurity risks and may be
   an emergency action to ensure fast and urgent action necessary to manage a threat or
   harm from a biosecurity risk. It will implement technical and scientifically based
   decision-making, risk management processes and the broader management of biosecurity
   risks, noting that those risks arise quickly and could have devastating impacts on
   Australia, like FMD or Xylella fastidiosa. A determination made under new subsection
   393B(2) would be critical to preventing or reducing the risk of dangerous diseases or
   pests entering, or establishing themselves or spreading in, Australian territory.

10. In paragraph 99 on page 21 of the Explanatory Memorandum, omit the whole paragraph
    and insert:

   Australian businesses, individuals and global trading partners rely upon Australia's
   favourable biosecurity status and the Commonwealth's ability to effectively manage
   biosecurity risk in a timely manner. Where there is an imminent threat or actual outbreak
   of such disease or pest entering Australia, emergency action would be required to ensure
   fast and urgent action is taken to manage a threat or harm from the spread of the disease
   or pest within Australian territory. A determination made under new subsection 393B(2)
   will play a crucial role in that response and will be fundamental in the effective
   management of disease and may need to be made on a time critical basis to protect our
   industry and economy. The provision will support greater certainty for impacted
   industries, the individuals that implement these decisions and the broader community in
   order to protect Australia's plant and animal health, the nation's $70 billion dollar
   agriculture industry and the 1.6 million jobs that rely on it.

11. At the end of paragraph 100 on page 21 of the Explanatory Memorandum, insert:

   Each biosecurity measure in a determination made under new subsection 393B(2) must be
   appropriate and adapted to its purpose. In addition, a determination made under new
   subsection 393B(2) is time limited and can only be imposed for 1 year. For completeness,
   other mechanisms remain available to Parliament to ensure oversight over instruments
   which are exempt from disallowance, such as Senate Estimates, Senate Committee
   processes, Question Time and Questions on Notice.



                                             3

12. This additional material explains why the proposed exemption from disallowance for a
    determination made under new subsection 393B(2) is appropriately justified. This
    responds to a request of the Senate Standing Committee for the Scrutiny of Bills in
    Scrutiny Digest No. 7 of 2022, tabled on 23 November 2022.

13. At the end of paragraph 105 on page 22 of the Explanatory Memorandum, insert:

   The inclusion of new subsection 393B(8) would align with similar provisions in the
   Biosecurity Act, such as a biosecurity response zone determination (see sections 365 and
   368), a temporary biosecurity monitoring zone determination (see sections 384 and 387)
   or a biosecurity activity zone determination (see sections 395 and 396), all of which are
   crucial in providing a rapid response to a pest or disease.

14. In paragraph 106 on page 22 of the Explanatory Memorandum, after the words 'Before
    making a determination', insert ' under new subsection 393B(2), in all but exceptional
    circumstances'.

15. At the end of paragraph 106 on page 22 of the Explanatory Memorandum, insert:

   Biosecurity threats are often urgent and emerging, with a limited window of time to
   respond effectively. In the event of a possible extreme and time critical situation where
   there is a need to act urgently to respond to a pest or disease, any arguable defects in the
   consultation process with all of the specified bodies should not invalidate a determination
   made to combat serious threats to Australia, its economy, environment and way of life.
   Further, as the process involves consultation with State and Territory bodies, the no-
   invalidity clause in new subsection 393B(8) provides a mechanism to reduce
   jurisdictional uncertainties and facilitate activities where matters cross State and Territory
   boundaries. For the avoidance of doubt, new subsection 393B(8) only applies in relation
   to a failure by the Agriculture Minister to comply with the consultation processes in new
   subsection 393B(7). It does not affect a person's right to seek judicial review in relation to
   the exercise of power in making the determination. As such, avenues to challenge
   executive decision-making remain.

16. This additional material explains why it is both necessary and appropriate to include a
    no-invalidity clause in proposed subsection 393B(8). This responds to a request of the
    Senate Standing Committee for the Scrutiny of Bills in Scrutiny Digest No. 7 of 2022,
    tabled on 23 November 2022.




                                               4
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