QUARANTINE AMENDMENT ACT 2002 NO. 17, 2002 - SCHEDULE 1

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QUARANTINE AMENDMENT ACT 2002 NO. 17, 2002 - SCHEDULE 1

- Amendment of Quarantine Act 1908

Part 1—Authorisation of officers to act in exceptional circumstances
1 After subsection 2B(2)

Insert:

Note: Under section 149.1 of the Criminal Code , it is an offence to obstruct a person who is taking any action that the person is authorised to take under this subsection.

(2A): If the Governor-General is satisfied that the epidemic or danger of an epidemic to which a proclamation issued under subsection (1) relates has the potential so to affect an industry of national significance that it calls for the exercise of coordinated response powers in accordance with section 3, the Governor-General may, in the proclamation issued under subsection (1), declare it to be a proclamation to which section 3 applies.
(2B): A direction may be given, or an action taken, by the Minister under subsection (2) despite the provisions of any other Commonwealth law, or of any law of a State or Territory.

2 At the end of section 2B

Add:

(4): In paragraph (3)(a), strict liability applies to the physical element of circumstance, that the direction given to the person was under subsection (2).

Note: For strict liability, see section 6.1 of the Criminal Code .

3 After section 2B

Insert:

3 Coordinated response powers

(1): If a proclamation under subsection 2B(1) is declared to be a proclamation to which this section applies, the Minister may, during the period the proclamation remains in force, by instrument in writing:

(a): authorise persons who are the executive heads of national response agencies:

(i): to give such directions; and
(ii): to take such action;

as the persons think necessary, subject to any conditions or limitations specified under subsection (4):

(iii): to control and eradicate the epidemic; or
(iv): to remove the danger of the epidemic;

(b): revoke any authorisation so given.

(2): If the Minister, under subsection (1), authorises the executive head of a national response agency to give directions, and to take action, in accordance with that subsection, the executive head of that agency may, while that authorisation remains in force, by instrument in writing:

(a): authorise a person performing duties in that agency:

(i): to give such directions of a kind that the executive head of the agency could give and that are specified in the instrument; or
(ii): to take such action of a kind that the executive head of the agency could take and that is specified in the instrument;

as the person considers necessary, subject to any conditions or limitations specified under subsection (4):

(iii): to control and eradicate the epidemic; or
(iv): to remove the danger of the epidemic;

(b): revoke any authorisation so given.

(3): If an authorisation is given under subsection (1) or (2) to the holder of a specified office or position, the authorisation is to be taken to be an authorisation of any person from time to time holding, occupying, or performing the duties of, that office or position.
(4): An authorisation given to a person under subsection (1) or (2) may be expressed to be subject to such conditions or other limitations (if any) as are specified in the authorisation.
(5): If a person ceases to be the executive head of a national response agency, any authorisation of other persons in force under subsection (2) immediately before the cessation:

(a): is taken, on and after that cessation, to have been given by the person's successor and, subject to paragraph (b), continues to have effect according to its tenor; and
(b): may, by writing, be varied or revoked by that successor.

(6): An authorisation given to a person under subsection (1) or (2) does not affect any power that the person may be authorised to exercise apart from this section.
(7): An authorisation given under subsection (1) or (2) in respect of a particular epidemic or danger of an epidemic is taken to be revoked when the proclamation issued under subsection 2B(1) in respect of that epidemic or danger of an epidemic is revoked.
(8): A direction may be given, or an action taken, by a person under this section despite the provisions of any other Commonwealth law, or of any law of a State or Territory.
(9): A person is guilty of an offence if:

(a): a direction is given to the person under this section; and
(b): the person fails to comply with the direction.

Maximum penalty: Imprisonment for 10 years.

(10): In paragraph (9)(a), strict liability applies to the physical element of circumstance, that the giving of the direction was under this section.

Note: For strict liability, see section 6.1 of the Criminal Code .

(11): For the avoidance of doubt, a person (including the Director of Animal and Plant Quarantine, a Chief Quarantine Officer (Animals), a Chief Quarantine Officer (Plants) or a quarantine officer) is not to be taken, when acting under this Act by virtue of:

(a): an authorisation given by the Minister under subsection 3(1); or
(b): an authorisation given by the executive head of a national response agency under subsection 3(2);

to be acting as, exercising the powers of, or performing the functions of, a quarantine officer.

(12): In this section, a reference to a person performing duties in an agency includes, but is not limited to:

(a): a person performing duties in the agency under a contract; and
(b): a person performing duties in the agency as a result of an arrangement for the temporary provision to that agency of the services of persons ordinarily performing other duties in the same or in another jurisdiction; and
(c): a person performing duties in the agency on a voluntary basis.

Note: Under section 149.1 of the Criminal Code , it is an offence to obstruct a person who is taking any action that the person is authorised to take under this section.

4 Paragraph 4(a)

Repeal the paragraph, substitute:

(a): for, or in relation to:

(i): the examination, exclusion, detention, observation, segregation, isolation, protection, treatment and regulation of vessels, installations, human beings, animals, plants or other goods or things; or
(ii): the seizure and destruction of animals, plants, or other goods or things; or
(iii): the destruction of premises comprising buildings or other structures when treatment of these premises is not practicable; and

5 At the end of section 4

Add:

(2): Without otherwise limiting the nature of any quarantine measure, or measure incidental to quarantine:

(a): by way of a direction that a person may be authorised to give; or
(b): by way of an action that a person may be authorised to take;

either as a result of a Ministerial authorisation under subsection 3(1) or as a result of an authorisation by the executive head of a national response agency under subsection 3(2), that direction or action must be no more than is reasonably appropriate and adapted:

(c): to the control and eradication of the epidemic; or
(d): to the removal of the danger of the epidemic;

in respect of which the authorisation was given.

6 Subsection 5(1)

Insert:

"industry of national significance" means any primary industry the disruption of which would be a matter of national significance, whether or not the industry is involved in the export trade.

7 Subsection 5(1)

Insert:

"national response agency" means:

(a): the Australian Federal Police and the police force of each of the States and the Northern Territory; and
(b): if it is declared by the Minister, by notice published in the Gazette , to be a national response agency for the purposes of subsection 3(1):

(i): any arm or unit of the Australian Defence Force; or
(ii): any department, or part of a department, of the Commonwealth, or of a State or Territory; or
(iii): any other agency or authority, whether incorporated or not, that is established for a public purpose by or under a law of the Commonwealth, or of a State or Territory.

8 After subsection 5(1)

Insert:

(1AA): Before declaring any arm or unit of the Australian Defence Force to be a national response agency for the purposes of subsection 3(1), the Minister must consult with the Minister having responsibility for the Defence Force.
(1AB): Before declaring any department or part of a department of the Commonwealth, a State or a Territory, or any other agency or authority established by or under a law of the Commonwealth, a State or a Territory, to be a national response agency for the purposes of subsection 3(1), the Minister must consult with the Minister of the Commonwealth, that State or that Territory having responsibility for the department, agency or other authority concerned.

9 At the end of subsection 11(1)

Add:

; (c) if the Commonwealth is a party to any international agreement requiring the certification of export products—any matters necessary or convenient to be arranged to assist authorities of that State or Territory in the implementation and monitoring, in that State or Territory, of arrangements to enable that certification, and in providing reports to the Commonwealth concerning such arrangements.

10 At the end of subsection 11(2)

Add:

; (c) if the Commonwealth is a party to any international agreement requiring the certification of export products—any matters necessary or convenient to be arranged to assist authorities of the Australian Capital Territory in the implementation and monitoring, in the Australian Capital Territory, of arrangements to enable that certification, and in providing reports to the Commonwealth concerning such arrangements.

11 Subsection 69A(1)

Repeal the subsection, substitute:

(1): Subject to this section, where any goods (including any animal or plant) or any premises comprising buildings or other structures are destroyed under or in accordance with this Act, the Minister may, if he or she considers it appropriate to do so, approve the payment of compensation under this section in respect of those goods or premises.

12 Subsections 69A(3) and (5)

After "goods" (wherever occurring), insert "or premises".

13 Subsection 69A(6)

Repeal the subsection, substitute:

(6): If a quarantine officer or other person who causes goods or premises to be destroyed under this Act knows, at the time of the destruction of the goods or premises, the name and address of the owner or any of the owners of the goods or premises, the quarantine officer or other person must give written notice of the destruction of the goods or other premises to that owner or each of those owners, either personally or by post.

14 Subsections 69A(7), (9), (10) and (11)

After "goods" (wherever occurring), insert "or premises".

15 Subsection 69A(14)

After "goods" (first, second and third occurring), insert "or premises".

16 Subsection 69A(14)

After "goods" (last occurring), insert "or occupying, or otherwise in control of, the premises,".

17 After subsection 82(1)

Insert:

(1A): A person authorised under subsection 3(1) or (2) to give such directions, and to take such action, as the person considers necessary to control and eradicate an epidemic or to remove the danger of an epidemic, is not liable to any action, suit or other civil proceedings for or in relation to anything done or omitted to be done in good faith (whether negligently or not) by the person:

(a): in the performance or purported performance of any function or duty; or
(b): in the exercise or purported exercise of any power;

conferred on the person under that authorisation.

17A Amendments made by items 1 to 17 cease to have effect in certain circumstances

The amendments made by items 1 to 17 of this Schedule cease to operate at the expiration of 18 months after the commencement of this Part unless the Commonwealth, within that period:

(a): has developed, in consultation with all of the States, the Australian Capital Territory and the Northern Territory, agreed guidelines for a cooperative approach between the Commonwealth, those States and those Territories, for the control and eradication of epidemics, and the removal of the danger of epidemics, including guidelines for the exercise of quarantine measure or measures incidental to quarantine in accordance with the Quarantine Act 1908 for that purpose; and
(b): has laid a copy of the guidelines before each House of the Parliament.

Part 2—Commercial smuggling and associated offences
18 Subsections 67(1), (2), (3) and (4)

Repeal the subsections, substitute:

Basic illegal importation offence

(1): A person is guilty of an offence against this subsection if:

(a): the person imports, introduces, or brings into any port or other place in Australia or the Cocos Islands any thing; and
(b): the person knows that the thing is:

(i): a disease or pest; or
(ii): a substance or article containing a disease or pest; or
(iii): an animal, plant or other goods; and

(c): the importation, introduction or bringing in of the thing is in contravention of this Act.

Maximum penalty: Imprisonment for 10 years.

Strict liability applies to paragraph (1)(c)

(2): For the purposes of an offence against subsection (1), strict liability applies to paragraph (1)(c).

Aggravated illegal importation offence

(3): A person is guilty of aggravated illegal importation if:

(a): the person imports, introduces, or brings into any port or other place in Australia or the Cocos Islands any thing; and
(b): the person knows that the thing is:

(i): a disease or pest; or
(ii): a substance or article containing a disease or pest; or
(iii): an animal, plant or other goods; and

(c): the importation, introduction or bringing in of the thing is in contravention of this Act; and
(d): the person obtains, or is likely to obtain, a commercial advantage over the person's competitors or potential competitors.

Maximum penalty:

(a): if the offender is an individual—imprisonment for 10 years or a fine of 2,000 penalty units, or both; and
(b): if the offender is a body corporate—a fine of 10,000 penalty units.

Examples of commercial advantage

(4): The following are examples of a commercial advantage as referred to in subsection (3):

(a): the avoidance of business costs associated with obtaining an import permit or meeting quarantine requirements; or
(b): the avoidance of delays necessarily involved in compliance with applicable quarantine measures.

Strict liability applies to paragraph (3)(c)

(4A): For the purposes of an offence against subsection (3), strict liability applies to paragraph (3)(c).

Illegal removal offence

(4B): A person is guilty of an offence against this subsection if:

(a): the person removes any thing:

(i): from a part of Australia to another part of Australia; or
(ii): from a part of the Cocos Islands to another part of the Cocos Islands; or
(iii): from Australia to the Cocos Islands; or
(iv): from the Cocos Islands to Australia; and

(b): the person knows that the thing is an animal, plant or other goods; and
(c): the removal of the thing is in contravention of this Act.

Maximum penalty: Imprisonment for 10 years.

Strict liability applies to paragraph (4B)(c)

(4C): For the purposes of an offence against subsection (4B), strict liability applies to paragraph (4B)(c).

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