Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
1998
HOUSE OF
REPRESENTATIVES
(Circulated
by the authority of the Minister for Agriculture, Fisheries and Forestry,
the
Hon Mark Vaile, MP)
ISBN: 0642 378606
QUARANTINE AMENDMENT BILL 1998
OUTLINE
This Bill seeks to amend the Quarantine Act
1908, the central plank of Australia’s quarantine legislation. It
will ensure that Australia’s quarantine laws reflect the scope and focus
of quarantine into the 21st century.
The major legislative proposals
contained in this Bill are detailed below.
The scope of
Quarantine
This Bill amends section 4 of the Act, which outlines the
scope of quarantine, by including reference to the environment and economic
activities. This provides formal recognition to the important role quarantine
already has in protecting indigenous flora and fauna from exotic pests and
diseases. A new Part will also be inserted to require consultation with the
Minister for the Environment in certain circumstances.
Managed
Risk
Australia’s quarantine policy is based on the concept of the
management of risk to an acceptably low level. The natural and economic
movement of people, animals, plants and goods results in an inevitable
quarantine risk to Australia. Australia’s approach is to manage the risk
in a manner that provides the appropriate protection for Australia, is based on
scientific reasoning and is consistent with international rules and standards.
This Bill contains some minor adjustments to sections such as sections 44C and
44D of the Act to better reflect this approach. It also introduces a definition
in relation to the ‘level of quarantine risk’ which is used in the
provisions that relate to the managed risk approach.
Border
Measures
This Bill introduces a number of amendments and some new
provisions to ensure that the Act is comprehensive yet flexible in its approach
in relation to pre border, border and post border measures.
In
particular, the pre-arrival reporting obligations (new sections 27A and 27B),
are clarified and drafted in a manner that allows for flexibility as to the time
the report is made, the material to be contained in it and to provide for
reporting by exception (for example, in relation to scheduled international
flights). The amendments bring existing provisions in this respect into the Act
from the Quarantine (General) Regulations to ensure that appropriate penalty
provisions apply.
In addition, section 28 of the Act has been redrafted
to provide for greater flexibility in the nature of questions that can be asked
of the master or medical officer of a vessel. There is also a requirement that
answers be corrected if they are later discovered to be
inaccurate.
Section 36(1) of the Act is also amended to provide greater
flexibility in relation to where a vessel is to perform quarantine. A vessel is
currently compelled to move to a quarantine station in order to be
treated.
A new section 48AC is inserted into the Act which is designed to
provide appropriate powers in relation to the high risk associated with
packaging material.
A new provision, section 70BB ensures appropriate
recognition is given in the Act to the role played by animals in assisting
quarantine officers in border activities.
The emergency power in section
12A of the Act is also amended to enable an emergency response not only in
relation to diseases that have been declared by proclamation to be quarantinable
diseases, but also to unproclaimed diseases or pests. This ensures that
expedient measures can be taken in respect of newly emerging diseases or
pests.
The Bill amends the provisions in the Act relating to seizure.
Section 68 of the Act will provide for a system of rectification that enables
importers to rectify deficiencies that might otherwise cause their goods to be
refused entry into Australia. Where goods have been imported contrary to the
Act, a Director of Quarantine may give a notice to a person stating that the
goods will be seized, sold, destroyed, exported from Australia or otherwise
disposed of in any way that the Director thinks fit unless, within the time
stated on the notice, the goods are dealt with in a way set out in the notice or
destroyed or exported from Australia.
This provision creates some
flexibility to deal with situations where the importation would be in
contravention of the Act due to a minor technical deficiency. For example, a
permit might require that an animal being imported into Australia is to be
accompanied by certain certificates. If the animal arrives in Australia without
the certificates, this provision will enable the importer to provide that
certificate or export the animal within a time stated on the notice and avoid
forfeiture and seizure of the goods. However, compliance with a rectification
notice does not mean that the importer cannot be convicted of an offence in
relation to the illegal importation under section 68 of the Act.
The
Protected Zone and the Special Quarantine Zone
A number of provisions
have been amended 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. While facilitating such
movements is in line with the Torres Strait Treaty, it is also necessary that
there be some control to ensure that diseases or pests are not introduced,
established or spread.
In particular, the pre-arrival reporting
obligations mentioned above will apply. Without the pre-arrival information, it
would often be that precautionary measures would be adopted which might result
in over regulation.
By requiring pre arrival information, a more
streamlined relevant set of procedures can be put in place to ensure appropriate
measures are adopted. In addition, section 55A of the Act, which contains a
powers to order goods into quarantine will apply and the powers of a quarantine
officer to search such vessels and goods on board the vessel is clarified in
section 70A.
A new definition of a ‘Special Quarantine
Zone’ is inserted into the Act 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.
Industry Participation
A number of provisions are
amended to facilitate the increasing role of industry in the performance of some
quarantine activities. In particular, section 46A of the Act is amended to
provide a comprehensive framework for the issuing, revoking and suspension of
approvals for commercial quarantine premises. Section 66B of the Act, which
provides for compliance agreements, is also amended to clarify that the
agreements can be entered into in relation to procedures under the Act,
regulations, proclamations, conditions on permits or approvals and in
connection with activities carried out in the performance of functions related
to quarantine.
Offence and Penalty provisions
As a result
of the new Criminal Code Act 1995 (the Criminal Code), the offence
provisions have been redrafted so that the elements of the offence are
distinguished and the rules in relation to mental and fault elements, the burden
of proof and evidentiary provisions apply.
The penalty provisions have
also been redrafted in a manner that is consistent throughout the Act and in
accordance with the Criminal Code.
The Bill introduces a number of new
offences, for example, in relation to making false statements (section 69A(12)),
or failing to comply with a direction given by a quarantine officer (section
74DA).
In addition, the Bill introduces new Part VIA which updates the
entry and search powers to accord with current Commonwealth policy.
Some
material currently contained in the Quarantine Regulations is also placed into
the Act to ensure appropriate penalties apply, for example, in relation to
quarantine stations, (section 76).
Clarification of
Definitions
A number of antiquated terms are replaced. For example, a
definition of an aircraft is inserted and the phrase ‘vessel engaged in
navigation by air’ removed. New definitions of ‘police
officer’ and ‘officer of Customs’ are inserted so that a
consistent definition applies throughout the Act in relation to these
terms.
In particular, the definitions of ‘disease affecting
animals’ and ‘disease affecting plants’ are repealed. In
substitution, the definitions of disease and pest have been revised and apply
consistently throughout the Act. This ensures that the Act accommodates the
cross transmission of diseases between animals and plants and to
humans.
In relation to plants, the term ‘quarantinable pest’
is introduced in substitution for ‘quarantinable disease’. This
reflects the standard international approach to refer to pests rather than
diseases when discussing plants. The definitions of ‘quarantinable
disease’ or ‘quarantinable pest’ are particularly relevant
throughout the Act in relation to the exercise of many of the powers provision,
for example, ordering goods into quarantine under sections 35 and 55A of the
Act.
Miscellaneous
There are other miscellaneous
amendments. A number of provisions have been amended to provide greater
flexibility in the Act so as to enable the repeal of prescriptive regulations.
These amendments include powers to order particular treatments in relation to
goods, to provide the period for the performance of quarantine for particular
goods, or to provide directions in relation to, for example, animals under
quarantine surveillance (section 52).
FINANCIAL IMPACT
STATEMENT
The amendments proposed in this Bill have no direct
financial implications.
QUARANTINE AMENDMENT BILL 1998
NOTES ON INDIVIDUAL CLAUSES
Clause 1 - Short
Title
1. Provides for the Act to be cited as the Quarantine
Amendment Act 1998.
Clause 2 - Commencement
2. This
clause provides for the commencement of the various amendments contained in the
Act as set out below.
3. Subclause 2(1) provides that subject to the
following the Act will commence on the day on which the Act receives the Royal
Assent.
4. Subclause 2(2) provides that Item 86 of Schedule 1 commences
on the same day as the Environment Protection and Biodiversity Conservation
Act 1998.
5. Subclause 2(3) provides that the remaining items of
Schedule 1 commence on a day to be fixed by Proclamation.
6. Subclause
2(4) provides that the commencement by Proclamation of the Schedule is subject
to the standard provision that if no provision has been made for commencement
within 6 months of the Act receiving the Royal Assent, then the amendments will
commence automatically on the first day after the end of that 6 month
period.
Clause 3 - Schedule(s)
7. This clause provides for
the amendment of the Quarantine Act 1908 as set out in the
schedule.
SCHEDULE 1
AMENDMENT OF THE QUARANTINE ACT
1908
Item 1 - Subsection 2B(1)
8. By inserting the words
“quarantinable pest” into the existing subsection, the
Governor-General is empowered to declare by proclamation the existence in a part
of the Commonwealth of an epidemic or the danger of an epidemic of a
quarantinable pest. The existing provision only applies in respect of
quarantinable diseases.
Item 2 - Subsection 2B(3) and
(4)
9. This item repeals the existing subsection and replaces it with
an offence that is drafted in a way that clearly enables the Criminal Code to
apply. It provides a penalty for failing to comply with a direction given under
subsection 2B(2) of the Act.
Item 3 - Section
4
10. Section 4 of the Act is repealed and replaced with a provision
that is drafted in a more modern style. The new section 4 also contains a
reference to the environment and economic activities as being relevant to the
scope of quarantine. This ensures that appropriate recognition is given to the
important role quarantine already has in protecting indigenous flora and fauna
from exotic pests and diseases.
Item 4 - Subsection
5(1)
11. This item inserts a new definition of aircraft
into section 5 of the Act. This reflects the approach adopted in these
amendments to update some of the terminology contained in existing provisions.
Current provisions of the Act that refer to “vessels engaged in navigation
by air” will now refer to “aircraft”.
Item 5 -
Subsection 5(1)
12. This item inserts a definition of
analyst into section 5 of the Act.
Item 6 -
Subsection 5(1)
13. This item clarifies the meaning to be given to
animals, plants or goods or animals, plants or other
goods.
Item 7 - Subsection 5(1)
14. This item
provides for a definition of the area in the vicinity of the Protected
Zone. Subsection 5(8) provides the Minister with the power to declare
such an area.
Item 8 - Subsection 5(1)
15. This item
amends the Act to include the Ashmore and Cartier Islands as part
of Australia and excludes Christmas Island as part of Australia.
As a result of this definition, vessels coming into Australia from the Christmas
Islands are treated as coming from overseas and goods arriving from this
destination are dealt with as if they were imported goods.
Item 9
- Subsection 5(1)
16. A definition of ballast water has
been inserted by this item.
Item 10 - Subsection
5(1)
17. A definition of commander has been inserted to
assist in clarifying the application of certain obligations in relation to the
landing of vessels and aircraft.
Item 11 - Subsection
5(1)
18. This item amends the Act to clarify that when the term
Commonwealth is used in a geographical sense, the Ashmore and Cartier
Islands are part of the Commonwealth and Christmas Island
is not part of the Commonwealth.
Item 12 - Subsection
5(1)
19. This item clarifies that where the Act refers to
compliance, it has a meaning given by section
5(1A).
Item 13 - Subsection 5(1)
20. This item
clarifies that where the words compliance agreement appear in the
Act, they refer to an agreement entered into under section 66B of the
Act.
Item 14 - Subsection 5(1)
21. This item clarifies
that where the word contravention appears, it has a meaning given
by section 5(1A).
Item 15 - Subsection 5(1)
22. This
item clarifies the meaning of discharge where used in the
Act.
Item 16 - Subsection 5(1)
23. This
item repeals the definition of ‘disease in relation to
animals’. In order to accommodate the cross transmission of
disease from animals and plants to humans, the new approach is to repeal the
definition of ‘disease in relation to animals’ and rely on the
definition of disease as amended by this Bill. This will result in
consequential amendments to a number of sections.
Item 17 -
Subsection 5(1)
24. This item repeals the definition of
‘disease in relation to plants’. In order to
accommodate the cross transmission of disease from animals and plants to humans,
the new approach is to repeal the definition of ‘disease in relation to
plants’ and rely on the definition of pest as amended by this Bill. This
will result in consequential amendments to a number of
sections.
Item 18 - Subsection 5(1)
25. This item
introduces a new definition of a disease. The item ensures that
where the word disease is used in the Act, it includes a micro-organism, a
disease agent, an infectious agent and a parasite.
Item 19 -
Subsection 5(1)
26. This item inserts a new definition of
document into the Act.
Item 20 - Subsection
5(1)
27. This item clarifies that when an aircraft lands at a port,
it is regarded as having entered that port for the purposes of the
Act. It also clarifies the fact that the provisions relating to entry and
search of vessels, vehicle or aircraft include the ability to go on board a
vessel, vehicle or aircraft.
Item 21 - Subsection
5(1)
28. This item inserts a definition of
environment.
Item 22 - Subsection
5(1)
29. This item will insert a definition of evidential
material into subsection 5(1) of the Act. Evidential material
means:
- a thing with respect to which an offence against this Act has been
committed or is suspected on reasonable grounds to have been committed;
and
- a thing as to which there are reasonable grounds for suspecting
that it will afford evidence of the commission of an offence against the Act;
and
- a thing as to which there are reasonable grounds for suspecting
that it is intended to be used for the purposes of committing an offence against
this Act.
30. The issue of an offence-related warrant to enter and search
premises where a magistrate is satisfied that there are reasonable grounds for
suspecting that there is or will be within the relevant time evidential
material at the premises is provided for under new section 66AF (see
item 221). New section 66AD, also provides for the seizure of evidential
material (see item 221).
Item 23 - Subsection 5(1) (at
the end of the definition of examine)
31. The definition of
examine is amended by adding a new paragraph (d) it provides that
to examine in relation to a vessel, installation or premises includes carrying
out tests on and taking samples from the vessel, installation or
premises.
Item 24 - Subsection 5(1)
32. This item will
insert into subsection 5(1) of the Act a definition of executing
officer in relation to warrants.
Item 25 - Subsection
5(1)
33. This item provides that where the term exposed
is used in the Act, it has the meaning given to it under section
5B.
Item 26 - Subsection 5(1)
34. This item provides
that give includes grant.
Item 27 - Subsection
5(1) (definition of goods)
35. This item redrafts the definition of
goods to ensure that it is broad in its effect and captures such
items as mail or ballast water. It would also encompass passenger baggage for
the purposes of provisions such as new section 70A.
Item 28 -
Subsection 5(1)
36. This item provides that grant
includes give.
Item 29 - Subsection
5(1)
37. This item provides that where the phrase ‘in
quarantine’ is used in the Act in relation to a vessel or
installation, it refers to the meaning given in section 37 of the
Act.
Item 30 - Subsection 5(1) (definition of landing
place)
38. This item replaces the phrase ‘vessel engaged in
navigation by air’ with the newly defined term
‘aircraft’.
Item 31 - Subsection
5(1)
39. This item provides that where the phrase level of
quarantine risk is used throughout the Act, it is to have the meaning
given to that phrase in section 5D of the Act. The phrase level of
quarantine risk is used in a variety of sections including section 44C,
44D and 78C of the Act.
Item 32 - Subsection
5(1)
40. This item will amend subsection 5(1) by inserting a
definition of magistrate.
Item 33 - Subsection 5(1)
(paragraph (a) of the definition of master)
41. This item clarifies
the definition of master in subsection 5(1) of the Act to take
account of the new definition of aircraft.
Item 34 - Subsection
5(1)
42. This item will insert a definition of occupier
into subsection 5(1) of the Act which is relevant in relation to new
Part VIA of the Act inserted by item 221.
Item 35 - Subsection
5(1)
43. This item will insert a definition for the phrase
offences against this Act. It provides that where this phrase is
used in the Act, it refers to offences against the Act, regulations, and
particular sections of the Crimes Act 1914.
Item 36 -
Subsection 5(1)
44. This item will insert into subsection 5(1) a
definition of officer assisting in relation to a
warrant.
Item 37 - Subsection 5(1)
45. This
item inserts a definition into subsection 5(1) of an officer of
Customs that draws together in a consistent way current references to an
officer of Customs throughout the Act.
Item 38 - Subsection
5(1)
46. This item provides that where the term on is
used in relation to premises, it includes ‘in’.
Item
39 - Subsection 5(1)
47. This item introduces the term
operator. This assists in defining the liability and obligations
of persons in relation to vessels. See for example, the pre-arrival reporting
obligations in new section 27A, item 159.
Item 40 - Subsection
5(1)
48. Consequential to the introduction of the term aircraft, this
item introduces a definition of an overseas
aircraft.
Item 41 - Subsection 5(1) (definition of
oversea vessel)
49. The existing provision is
repealed.
Item 42 - Subsection 5(1)
50. The
definition of oversea vessel is replaced with a similar definition that uses the
term ‘overseas vessel’ rather than
‘oversea’. This will result in a number of minor consequential
amendments throughout the Act.
Item 43 - Transitional provision
relating to overseas vessels
51. This item is a transitional
provision which ensures that where the word ‘oversea vessel’ has
been used in an instrument in force prior to the amendments introduced by this
Bill, that it is taken to be a reference to an ‘overseas vessel’,
the term introduced in item 42.
Item 44 - Subsection
5(1)
52. Substitutes a new definition of pest that
includes any animal, or any plant, that is a
pest.
Item 45 - Subsection 5(1)
53. This
item inserts a new definition of police officer to apply
throughout the Act. The reference to constable in the Act will be replaced by
the term police officer which will bring consistency in definitions to various
sections of the Act.
Item 46 - Subsection 5(1) (definition of
port)
54. This item inserts a new definition of port
in order to clarify the position in relation to landing places for
aircraft.
Item 47 - Subsection 5(1)
55. This item
inserts a definition of premises into subsection 5(1) of the
Act.
Item 48 - Subsection 5(1)
56. This item provides
that a proclaimed place has a meaning given by section
12.
Item 49 - Subsection 5(1) (definition of quarantinable
disease)
57. The definition of quarantinable disease
is amended by removing the reference to specific diseases in the Act. All
quarantinable diseases will now be defined by proclamation. This is consistent
with the approach adopted for quarantinable pests.
Item 50 -
Saving of Proclamations
58. This item is a savings provision in
respect of a proclamation made under section 5(1) of the Act for the purposes of
the definition of a quarantinable disease.
Item 51 - Subsection
5(1)
59. This item inserts a definition of a quarantinable
pest. This reflects a new approach that is consistent with
international norms of referring to pests when talking of plant related
maladies.
Item 52 - Subsection 5(1)
60. This item
inserts a definition of Secretary.
Item 53 -
Subsection 5(1)
61. This item provides that a reference in the Act to
a Special Quarantine Zone is a reference to an area declared by
the Minister under section 5A of the Act to be such an area.
Item 54 -
Subsection 5(1)
62. This item inserts a definition of
thing.
Item 55 - Subsection 5(1)
63. This
item provides for a definition of the word treatment and provides
examples of the variety of activities that are covered by the
term.
Item 56 - Subsection 5(1)
64. This item clarifies
that where the phrase under this Act appears, it has a meaning
given by subsection 5(1A).
Item 57 - Subsection 5(1) (definition
of vessel)
65. Consequential to the new definition of aircraft, this
item provides a new definition of the word
vessel.
Item 58 - Subsection
5(1)
66. Consequential to the new definition of aircraft, a
definition of a voyage in relation to an aircraft is introduced by
this item.
Item 59 - Subsection 5(1)
67. This item
inserts new subsection 5(1A), which clarifies the scope of phrases such as
‘under this Act’, ‘contravention of this Act’ and
‘compliance with this Act’.
Item 60 - After section
5
68. This item introduces new section 5A under which
the Minister may declare an area to be a special quarantine zone by publishing a
notice in the Gazette. This approach is consistent with the way in which
an area in the vicinity of the Protected Zone is declared under subsection 5(8)
of the Act.
69. This item also introduces new section 5B.
It sets out when something is considered to have been exposed to something else
for the purposes of the Act. The provision encompasses direct and indirect
exposure.
70. New section 5C is also introduced by this
item. It confirms that where the Act empowers a person to do something, that
person may cause another person to do the thing. Where the Act requires a person
to do the thing, the person can comply with the requirement by causing another
person to do it on his or her behalf.
71. New section 5D
provides an explanation of what is meant by the phrase level of quarantine
risk where it appears in the Act. The phrase is used in sections such
as sections 44C and 44D of the Act and reflects the “managed risk”
approach that Australia adopts with respect to quarantine.
72. New
section 5E puts beyond doubt that where provisions of the Act
refer to the more general terms of vessel or master of a vessel, they also
include a reference to an aircraft and the commander of an
aircraft.
Item 61 - At the end of section 6
73. This
item inserts new subsection 6(2) which clarifies the operation of the Act to the
Cocos Islands.
Item 62 - Sections 6AA and 6AB
74. This
item substitutes new section 6AA which clarifies that the Act does
not extend to the Territory of the Christmas Island.
75. It also
substitutes new section 6AB which clarifies that the Act extends
to the Territory of Ashmore and Cartier Islands.
Item 63 - After
section 6A
76. This item provides for new section 6B.
This section provides confirmation as to the power to grant various instruments
referred to in the Act and to grant them either unconditionally or subject to
conditions or restrictions. It also clarifies that where there is a power to
make a Proclamation, order, determination or declaration or give an approval,
direction, authorisation or permit, there is a power to suspend, vary or revoke
the relevant instrument.
77. New section 6C clarifies that
where something can be done subject to a condition, restriction or requirement,
then subject to a contrary intention, the condition, restriction or requirement
might apply before or after the doing of the act to which the condition,
restriction or requirement relates and the condition, restriction or requirement
might be required to be complied with before or after the doing of the act. For
example, if the act is importation, then a condition may require something to be
done before or after the importation.
Item 64 - Subsection 8A(2)
and (3)
78. This item redrafts the existing provision to clarify that
the appointment of a Chief Quarantine Officer is
discretionary.
Item 65 - Saving of
determinations
79. This item is a savings provisions in relation to
appointments of Chief Quarantine Officers.
Item 66 - Subsection
8A(6)
80. This item is a consequential amendment to new subsection
8A(2).
Item 67 - subsection 8B(2)
81. This item
redrafts subsection 8B(2) to clarify that the appointment of a Chief Quarantine
Officer (Plants) is discretionary.
Item 68 - Saving of
determinations
82. This item is a savings provision in relation to
previous appointments of Chief Quarantine Officers (Plants).
Item
69 - Subsection 8B(3)
83. This item is a consequential amendment to
new subsection 8B(2).
Item 70 - Subsection
8B(6)
84. This item is a consequential amendment to new subsection
8B(2).
Item 71 - subsection 9(1)
85. This item is a
consequential amendment to new subsections 8A(2) and 8B(2).
Item
72 - subsection 9(3)
86. This item redrafts subsection 9(3) in a
manner that clarifies that the appointment of quarantine officers (human
quarantine), is discretionary.
Item 73 - Saving of
appointments
87. This item is a savings provision in relation to any
prior appointments of quarantine officers (human quarantine).
Item
74 - Subsection 9AA(2)
88. This item redrafts subsection 9AA(2) to
clarify that the appointment of Chief Quarantine Officers (Animals) and (Plants)
is discretionary.
Item 75 - Subsection
9AA(4)
89. This item redrafts subsection 9AA(2) to clarify that the
appointment of Chief Quarantine Officers (Animals) and (Plants) is
discretionary.
Item 76 - Saving of
appointments
90. This item is a savings provision in relation to any
previous appointments of quarantine officers (animals) or
(plants).
Item 77 - Subsection 9A(1)
91. This item
clarifies that either Director may appoint temporary quarantine
officers.
Item 78 - Subsection 9A(1A)
92. This item is
consequential to the preceding amendment.
Item 79 - Subsection
9A(1B)
93. This item redrafts subsection 9A(1B) in a more modern
style and to take account of the amendments in items 77 and
78.
Item 80- subsection 9A(4)
94. This item repeals
subsection 9A(4), as the matter is clarified by new subsection
6(2).
Item 81 - Saving of appointments and
authorities
95. This item is a savings provision in relation to any
prior appointments of temporary quarantine officers.
Item 82 -
Sections 10, 10A and 10B
96. This item inserts a new section
10 which clarifies that the Minister may delegate to the Secretary, a
Director of Quarantine or an officer all or any of his or her powers under the
Act.
97. New section 10A clarifies that the Secretary may
delegate to a Director of Quarantine or an officer all or any of his or her
powers under the Act.
98. New section 10B clarifies that a
Director of Quarantine may delegate to an officer, all or any of his or her
powers under the Act.
Item 83 - Saving of
delegations
99. This item is a saving provision for previous
delegations by the Minister and Director of Quarantine.
Item 84 -
Section 11
100. This item amends section 11 so that it is drafted in
a manner that is consistent with current protocols in respect of Commonwealth
and State relations.
Item 85 - Saving of
arrangements
101. This item saves an arrangement that was entered
into under section 11 prior to amendment.
Item 86 After Part
II
102. This item inserts a new Part 11A which specifies when the
Director of Quarantine is required to seek advice from the Minister for the
Environment.
Item 87 - Section 12
103. This item
extends the scope of section 12 to quarantinable pests.
Item 88 -
Section 12A
104. This amendment extends the scope of section 12A to
allow an emergency response not only in relation to diseases that have been
declared by proclamation to be quarantinable diseases, but also to unproclaimed
diseases. This ensures that an immediate or appropriate response can be taken
in an emergency in respect of newly emerging diseases. The amendment also
enables action to be taken under section 12A to prevent the spread of a
pest.
105. Subsection 12A(2) of the existing section as it relates to
obstructing an officer, has not been retained as it is now dealt with under the
Crimes Act 1914. With respect to compliance, the section has been
rewritten in a manner consistent with the Criminal Code.
Item 89 -
Paragraphs 13(1)(a) and (aaa)
106. Consequential to the new
definition of overseas vessel, this item replaces “oversea” with
“overseas”.
Item 90 - Paragraph
13(1)(aa)
107. This item substitutes the new term
“aircraft” for “vessels engaged in navigation by
air”.
Item 91 - Saving of Proclamations
108. This
item is a savings provision that is required due to the introduction of the new
term “aircraft”.
Item 92 - Paragraph
13(1)(b)
109. This item amends paragraph 13(1)(b) of the Act, so that
particular ports may declared as landing places for goods as well as for animals
and plants.
Item 93 - Saving of
Proclamations
110. This item is a saving provision for any
proclamation made in respect of landing places for animals and
plants.
Item 94 - After paragraph 13(1)(c)
111. This
item provides for the insertion of the power, which enables the Governor-General
to declare a disease or pest to be a quarantinable disease or pest, in a more
appropriate location in the Act. This proclamation making power is currently
contained in the existing definition of quarantinable disease or pest in section
5(1) of the Act. As that section is a definition section, the power has been
placed in the body of the Act for certainty.
Item 95 - Paragraph
13(1)(d)
112. This item amends the existing provision by extending it
to importations as well as introductions. It also refines the provision by
referring to disease or pest as they are now defined.
Item 96 -
Saving of Proclamations
113. This item is a savings provision to
capture any proclamation made under the provision prior to
amendment.
Item 97 - Paragraph 13(1)(e)
114. This item
refines the existing provisions as a consequence of the new definitions of
disease or pest.
Item 98- Saving of
Proclamations
115. This item is a savings provision to capture any
proclamation made under the provision prior to amendment.
Item 99
- Paragraph 13(1)(fa)
116. This item amends the existing provision by
extending the proclamation power in relation to bringing into port, to plants
and other goods.
Item 100 - Paragraph
13(1)(g)
117. This item inserts paragraph 13(1)(ga) which provides
that the removal power applies between the Cocos Islands and Australia and
Australia and the Cocos Islands.
Item 101 - Paragraph
13(1)(h)
118. The existing provision is amended by this item
consequential to the new definitions of disease or pest.
Item 102
- Paragraph 13(1)(i)
119. The existing provision is amended by this
item consequential to the new definition of disease or pest and the application
of the provision to Australia and the Cocos Islands.
Item 103 -
Subsections 13(1A) and (1B)
120. This item replaces the term oversea
with overseas.
Item 104 - Subsection 13(2)
121. This
item redrafts a portion of subsection 13(2) in a simpler
style.
Item 105 - Subsection 13(2A)
122. This item
extends the ability to grant a permit for introductions, bringing into port and
removals. This item reflects the amendments made to sections 13(1)(d), (e),
(fa) and new 13(1)(ga). Section 13(2AA) ensures that a permit may cover a
single or multiple importation, bringing in, or removal of a specified thing or
class of things.
Item 106 - Subsection
13(2B)
123. This item enables conditions to be attached to permits
for introductions and bringing into port as well as to importations and
removals.
Item 107 - Paragraph
13(2C)(a)
124. As the amendment in item 105 enables permits for
introductions and bringing into port, this item enables permits for
introductions and bringing into port to be revoked where the level of quarantine
risk (new section 5D, item 60) has altered.
Item 108 - Subsection
13(3)
125. Consistent with the new approach in relation to the
definition of a disease or pest, this item replaces the reference to a disease
or pest affecting animals or plants and quarantinable disease with
‘disease or pest’.
Item 109 - Subsections 13(4) and
(5)
126. This item removes reference to ‘articles’ as the
new definition of goods in subsection 5(1), item 27 ensures that articles are
covered by the term ‘goods’.
Item 110 - At the end of
section 13
127. This item creates new section 13(6) and
section 13(7). Subsection 13(4) of the Act enables proclamations
to be made to exempt traditional inhabitants in certain circumstances from the
operation of proclamations that prohibit importation into Australia of articles,
animals and plants. Subsection 13(5) of the Act provides that any such
exempting proclamation can be made generally or subject to conditions or
restrictions as specified in the Proclamation. There is no similar power to
exempt traditional inhabitants in relation to proclamations that prohibit
removals. New section 13(6) provides that a proclamation may be
made to exempt traditional inhabitants from proclamations that prohibit
removals. New section 13(7) provides that such a proclamation may
be granted generally or subject to conditions or restrictions as specified in
the Proclamation.
Item 111 - At the end of paragraph
14(d)
128. This item clarifies that paragraph 14(1)(d) applies to any
class of persons, animals, plants or other goods.
Item 112 -
Saving of exemptions
129. This item is a savings provision in
relation to any exemption previously granted under section 14(1)(d) of the
Act.
Item 113 - Subsection 15
130. This item
substitutes a new section 15 which empowers the Director of Quarantine rather
than the Minister to give certain directions in relation to the carrying of
efficient disinfecting apparatus or appliances and disinfectants as are
specified.
131. Empowering the Director of Quarantine to give
directions, provides for greater flexibility in the disinfecting apparatus
carried.
Item 114 - Orders taken to be
directions
132. This item is a savings provision in relation to any
order made under subsection 15(1) of the Act.
Item 115 -Section
15A
133. The flexibility provided for in the amendments to subsection
15(1) enables the repeal of this provision.
Item 116 - Subsection
16AC(2)(including the penalty)
134. The existing subsection 16AC(2)
requires that where notification of the importation of goods is required and is
not given prior to the importation of the goods, that the notice must be
provided “as soon as practicable after the importation”.
135. To provide greater certainty as to the obligation to provide the
notice, this item amends that section, by providing that where a person is
required to give a notice of intention to import, that the notice must be given
within 35 days of
- the person or their agent receiving notice of the
landing of the goods; or
- if the person or their agent does not receive
notice of the landing, the day on which the goods are
received.
Item 117 - Subparagraph
16AC(5)(a)(ii)
136. The existing provision is amended consequential
to the new definition of an officer of Customs.
Item 118 -
Subsection 16AC(6)
137. This item introduces new subsection
16AC(5A) which provides that the regulations may set out what will
constitute the giving of notice in satisfaction of the requirements of
subsection 16AC(1) or (2).
138. This item also redrafts subsection
16AC(6) in a more modern drafting style.
Item 119 - Saving of
regulations
139. This item is a savings provision in relation to
regulations made under section 16AC(5A).
Item 120 - Subsection
16AD(4) (including the penalty)
140. This item provides for the
redrafting of subsection 16AD(4) in accordance with current Commonwealth
policy.
Item 121 - Section 16AE (penalty)
141. This
item provides for the redrafting of section 16AE, a penalty provision, in
accordance with current Commonwealth policy.
Item 122 -
Subsection 16AF(2) (including the penalty)
142. This item repeals
existing subsection 16AF(2) which is an offence and penalty provision and
substitutes new subsection 16AF(2) and (3) which redrafts the provision in a
manner that reflect current Commonwealth criminal law policy.
Item
123 - At the end of Part III
143. This item introduces new
section 16AH which provides that where a vessel illegally lands at
a place other than a port in contravention of the Act, an officer may perform
any function or exercise and powers in relation to the vessel, or its operator,
master, crew, passengers or cargo, that he or she could have performed or
exercised if the vessel were at a port.
Item 124 - Subsection
17(1)
144. This item makes a minor technical amendment to
punctuation.
Item 125 - Paragraphs 17(1)(a) and (b)
145. This item makes a minor technical amendment to
punctuation.
Item 126 - Paragraphs 17(1)(b) and
(2)(b)
146. This item expands the scope of these provisions to cover
quarantinable pests so that a vessel or installation on which a quarantinable
pest or a pest believed or suspected to be a quarantinable pest has broken out
or been discovered, will be subject to quarantine.
Item 127-
Paragraphs 17(1)(b) and 17(2)(b)
147. This item makes a minor
technical amendment to punctuation.
Item 128 - Subsection
18(1)
148. This item makes a minor technical amendment to
punctuation.
Item 129 - Paragraphs 18(1)(a) and
(2)(a)
149. This item makes a minor technical amendment to
punctuation.
Item 130 - Paragraph 18(1)(b)
150. This
item expands the provision so that a person infected with a quarantinable pest
is subject to quarantine in addition to a person infected with a quarantinable
disease. This recognises the potential for pests to affect
humans.
Item 131 - Paragraph 18(1)(d)
151. This item
provides for a minor technical amendment to punctuation.
Item 132
- At the end of subsection 18(1)
152. This item inserts new paragraph
18(1)(f) which provides that a person who has been ordered into quarantine is
also, for the purposes of the Act, subject to quarantine. This amendment is
consistent with the current approach in paragraph 17(1)(c) in relation to
vessels.
Item 133 - Subsection 18(2)
153. This item
provides for a minor technical amendment to punctuation.
Item 134
- paragraph 18(2)(b)
154. This item amends paragraph 18(2)(b) so that
all goods infected with a quarantinable pest are subject to quarantine in
addition to those goods infected with a quarantinable disease.
Item 135 - paragraph 18(2)(c)
155. This item amends
paragraph 18(2)(b) so that all goods infected with a quarantinable pest are
subject to quarantine in addition to those goods infected with a quarantinable
disease.
Item 136 - paragraph 18(2)(d)
156. This item
provides for a minor technical amendment to punctuation.
Item 137
- Paragraph 18(2)
157. This item inserts new paragraph 18(2)(f) which
provides that goods that have been ordered into quarantine are also, for the
purposes of the Act, subject to quarantine. This amendment is consistent with
the current approach in paragraph 17(1)(c) in relation to
vessels.
Item 138 - Sections 20 and 20A
158. This item
substitutes new sections 20 and 20A which are rewritten to take account of
Commonwealth criminal law policy and the new definition of
aircraft.
Item 139 - Section 20AA
159. This item is a
minor technical amendment to punctuation.
Item 140 - At the end
of section 20AA
160. This item introduces new subsection
20AA(2), which is an offence provision in relation to a special
permission given under subsection 20AA(1).
Item 141 - Sections
20B and 20C
161. This item repeals existing sections 20B and 20C.
New section 20B is drafted in a more modern style, takes account
of the new definition of aircraft, commander and operator and sets out the
offence and penalty provision in accordance with current Commonwealth
policy.
162. New section 20C is drafted in a more modern
style, takes account of the new definition of aircraft and provides that a
Director of Quarantine may give directions as to how an aircraft, a person, an
animal, a plant or other goods that have been landed at a place that is not a
landing place, are to be dealt with rather than providing for detailed
prescription to be contained in regulations. Subsection 20C(3) specifies who
the direction may be given to and subsection 20(5) provides that it is an
offence not to comply with a direction. The section does not apply where a
person has been granted permission under section 20AA of the Act so long as any
condition attached to such a permission has been complied with.
163. This
item also inserts new section 20D which reflects existing section
50 of the Act, but extends it to other goods. The provision provides that it is
an offence to land imported animals, plants or other goods at a place that is
not declared to be a port at which they may be landed unless
- they are
landed from an overseas vessel; and
- a Director of Quarantine has given
written permission for them to be landed at that place; and
- where the
permission is subject to a condition, that condition has been
satisfied.
Item 142 - Subsection 21(1) (including the
penalty)
164. This item substitutes new section 21(1) and new section
21(1A). The new sections reflect the existing provisions but are drafted in a
more modern style and separate the obligations for masters of vessels and
commanders of aircraft. It is current practice to refer to a master of a vessel
and a commander of an aircraft.
Item 143 - Saving of
regulations
165. This item is a savings provision in relation to any
regulation prescribing a signal for the purposes of paragraph 21(1)(c) of the
Act.
Item 144 - Subsection 21(2) (penalty)
166. This
item amends the penalty provision in line with current Commonwealth
policy.
Item 145 - At the end of section 21
167. This
item inserts new subsection 21(3) which clarifies in accordance with the
Criminal Code, that an offence against the section is an offence of strict
liability.
Item 146 - At the end of paragraph
22(1)(c)
168. This item extends the scope of the section to
accommodate quarantinable pests as well as diseases.
Item 147 - At
the end of subsection 22(1)
169. This item amends the penalty
provision in line with current Commonwealth policy.
Item 148 -
Subsection 22(1A)
170. This item repeals the existing definition of
vessel for the purposes of this section. A new definition is inserted by item
150 below.
Item 149 - Subsection 22(2)
(penalty)
171. This item repeals the existing penalty for the
purposes of this section and substitutes a penalty in line with current
Commonwealth policy.
Item 150 - At the end of section
22
172. This item adds new subsection 22(3) which provides that a
notice given under subsection (2) is to be given in a form approved by a
Director of Quarantine. It also adds new subsection 22(4) which has been
drafted in a more modern style to provide for a definition of
vessel.
Item 151 - Subsection 24(1) (penalty)
173. This
item repeals the existing penalty provision and provides for a penalty that is
drafted in accordance with current Commonwealth policy.
Item 152 -
Subsection 24(2) (penalty)
174. This item repeals the existing
penalty provision and provides for a penalty that is drafted in accordance with
current Commonwealth policy.
Item 153 - At the end of section
24
175. This item adds new subsection 24(3) which clarifies in
accordance with the Criminal Code, that an offence against the section is an
offence of strict liability.
Item 154 - Section 25
(penalty)
176. This item repeals the existing penalty provision and
provides for a penalty that is drafted in accordance with current Commonwealth
policy.
Item 155 - Section 25A (penalty)
177. This
item repeals the existing penalty provision and provides for a penalty that is
drafted in accordance with current Commonwealth policy.
Item 156 -
Subsection 26(1) (penalty)
178. This item repeals the existing
penalty provision and provides for a penalty that is drafted in accordance with
current Commonwealth policy.
Item 157 - Section
26A
179. This item amends the section to take account of the new
definition of aircraft.
Item 158 - Section 26A
(penalty)
180. This item repeals the existing penalty provision and
provides for a penalty that is drafted in accordance with current Commonwealth
policy.
Item 159 - Sections 27, 28 and 29
181. This
item repeals sections 27, 28 and 29 and inserts new sections 27A, 27B, 28, 29,
29A and 29B.
182. New section 27A deals with pre-arrival
reports and pre-departure reports for vessels other than aircraft and
installations while new section 27B deals with pre-arrival and
pre-departure reports for aircraft.
183. These sections insert
requirements most of which are currently contained in the Quarantine (General)
Regulations. Placing these provisions in the Act ensures that a more
appropriate penalty can be attached to the provisions. The provisions have also
been inserted in a way that allows for flexibility as to the time the report is
made, the material to be contained in the report and to deal with exception
reporting (for example, in relation to scheduled international
flights).
184. Reports are also now required from vessels travelling to
Australia or the Cocos Islands from the Special Quarantine Zone or the Protected
Zone and also from those vessels travelling between Australia and the Cocos
Islands.
185. The new sections contain obligations to correct incomplete
or incorrect material given to a quarantine officer and identifies who is
responsible in terms of operator or the master.
186. New section
28 provides a quarantine officer with the power to require a master or
medical officer of a vessel or installation to answer questions. The provision
has been redrafted in a more modern style and is extended to apply to the
master, commander, medical officer or agent of the operator of a vessel or
aircraft. The new section also takes account of the new definition of commander
in relation to an aircraft.
187. Reports are also now required from
vessels travelling to Australia or the Cocos Islands from the Special Quarantine
Zone or the Protected Zone and also from those vessels travelling between
Australia and the Cocos Islands.
188. The offence and penalty provisions
contained in the section are also now drafted in a manner that is consistent
with current Commonwealth policy.
189. New section 29
essentially redrafts the original provision in a more modern style that takes
account of current Commonwealth policy in respect of offences and penalty
provisions.
190. The new section now provides a power to a quarantine
officer to give a permission in respect of a person leaving the vessel or
installation or allowing a person to remove goods from the vessel or
installation. The permission may be of general application or limited in a way
stated in the direction and may also be subject to conditions. The original
provision provides for prescriptive regulation in this respect. Providing a
power in the Act creates a more flexible approach.
191. New section
29A now places in the Act, some of the requirements currently placed in
the Quarantine (Animal) Regulations (Regulations 8, 9 and 87-92) and clarifies
that where an animal that has been killed, or has died on a vessel or
installation, the animal or any thing that has been exposed to an animal that
has been so killed or has so died, cannot be removed from an overseas vessel or
an overseas installation that is at a port or other place in Australia or the
Cocos Islands unless a quarantine officer has given permission for the removal
of the animal or thing. The permission may be given in writing and may be of
general or limited application and may be subject to a condition.
192. It is an offence for the master to cause or permit another person
to remove any animal or thing without the permission of a quarantine officer.
It is also an offence if the master is reckless as to whether or not a condition
attached to a permission granted under the section is not complied with. By
placing these provisions in the Act, an appropriate penalty can be
imposed.
193. New section 29B also brings up provisions
from the Quarantine (General) Regulations to provide that a Director of
Quarantine may give directions to the master of a vessel or installation
described in subsection (2) that is at a port or other place in Australia or the
Cocos Islands in relation to
- the confinement, isolation or control of an
animal that is on board the vessel or installation
- the people who may be
granted access to such an animal and the nature and extent of such
access
- the disposal of an animal that has been killed, or has died, since
it was brought on board the vessel or installation.
194. A person is
guilty of an offence if they fail to comply with such a direction. Placing these
provisions in the Act ensures that an appropriate penalty can be
imposed.
Item 160 - Saving of requirements
195. This
item is a savings provision in relation to any requirements made by a quarantine
officer under section 28.
Item 161 - Subsection 30(1)
(penalty)
196. This item repeals the existing penalty provision and
provides for a penalty that is drafted in accordance with current Commonwealth
policy.
Item 162 - Subsections 31(1), (1A), and
(2)
197. Further to the new definition of police officer in item 45,
this item replaces the term “constable” with “police
officer”.
Item 163 - Subsection 31(2)
198. This
item replaces a reference to a “Justice of the Peace” with
“magistrate”.
Item 164 - Subsection
31(3)
199. This item repeals subsection 31(3) as it is no longer
necessary due to the new definition of “police officer” in item
45.
Item 165 - Existing section 31 to continue to apply to people
apprehended before making of amendments
200. This item is a savings
provision in relation to any person who was apprehended and brought before a
Justice of the Peace before the commencement of the amendments to section
31.
Item 166 - section 32 (penalty)
201. This item
repeals the existing penalty provision and provides for a penalty that is
drafted in accordance with current Commonwealth policy.
Item 167 -
After section 32
202. Consequential to the repeal of section 15A of
the Act, this item inserts new section 32A which provides that a
Director of Quarantine may direct a master of a vessel that has come from,
called or landed at a proclaimed place, not to enter any port, or any specified
port in Australia or the Cocos Islands. Subsection 32A(2) provides that it is
an offence to fail to comply with such a direction.
Item 168 -
Subsection 33(1) and paragraph 33(1A)(a)
203. This item is a minor
technical amendment consequential to the new definition of overseas
vessel.
Item 169 - Before paragraph 33(4)(a)
204. This
item inserts new paragraph 34(4)(aa) so that pratique may have effect in all
places in Australia.
Item 170 - At the end of paragraphs 33(4)(a),
(b), (c), (d), (e) and (f)
205. This item is a minor technical
amendment to drafting style.
Item 171 - After paragraph
33(4)(d)
206. This item introduces new paragraph 33(4)(da) so that
pratique has effect in all places in the Cocos Islands.
Item 172 -
Subsection 34(3) (penalty)
207. This item repeals the existing
penalty provision and provides for a penalty that is drafted in accordance with
current Commonwealth policy.
Item 173 - Subsection 34(4)
208. This item repeals subsection 34(4) and replaces
it with a provision that provides that a quarantine officer may direct as to how
cargo and passengers’ effects are to be treated. The existing provision
relies on treatments being prescribed in regulations. Moving away from this
prescriptive approach ensures that there is flexibility in the range of
treatments that can be carried out.
209. This item also introduces new
subsection 34(5) and 34(6) that provide that it is an offence not
to comply with a direction given by a quarantine officer under this section.
The offence is an offence of strict liability.
Item 174 - Matters
in existing regulations taken to be included in direction
210. This
item is a savings provision in relation to any treatment of cargo or
passengers’ effects prescribed for the purposes of subsection 34(4) prior
to commencement of the new provision.
Item 175 - Subsection
35(1)
211. This item ensures that there is a power to order into
quarantine in respect of quarantinable pests as well as
diseases.
Item 176 - Subsection 35(1AA)
212. This item
amends the subsection to reflect the new definitions inserted by this Bill and
ensure coverage of pests as well as diseases.
Item 177 -
Subsection 35(1A)
213. This item is a minor technical amendment
consequential to the new definition of overseas vessel.
Item 178 -
Paragraph 35(3)(c)
214. This item expands the scope of the provision
to cover the importer in addition to the
owner.
Item 179 - Sections 35A and
36
215. Section 35A is redrafted to allow for greater
flexibility in the treatment measures to be taken. This item also places an
offence provision, currently in regulation 40 of the Quarantine (General)
Regulations, into the Act to ensure that a more appropriate penalty can be
imposed.
216. Section 36 provides that the quarantine
officer may direct the master of a vessel to take the vessel, people or goods to
a quarantine station or other place for the purposes of performing quarantine.
The current provisions require that the vessel must move to a quarantine
facility. The amendment is designed to increase the flexibility by providing a
discretion, so that the vessel could be treated without being compulsorily
required to move to a quarantine station.
Item 180 - Saving of
instruments
217. This item ensures that any certificate, order,
direction or permission given under section 35A, prior to amendment, continues
in force.
Item 181 - Subsection 38(1)
(penalty)
218. This item repeals the existing penalty provision and
provides for a penalty that is drafted in accordance with current Commonwealth
policy.
Item 182 - Subsection 38(1A)
(penalty)
219. This item repeals the existing penalty provision and
provides for a penalty that is drafted in accordance with current Commonwealth
policy.
Item 183 - At the end of section 38
220. This
item inserts new subsection 38(3) which provides that an offence against the
section is an offence of strict liability.
Item 184 - Subsection
40
221. This item redrafts the existing provision, including the
penalty component in accordance with current Commonwealth
policy.
Item 185 - Section 43
222. This section repeals
section 43 of the Act, which is subsumed in the more general provision, section
78AA, item 292.
Item 186 - Subsection 44(1)
(penalty)
223. This item repeals the existing penalty provision and
provides for a penalty that is drafted in accordance with current Commonwealth
policy.
Item 187 - Subsection 44(2) (penalty)
234. This
item repeals the existing penalty provision and provides for a penalty that is
drafted in accordance with current Commonwealth policy.
Item 188 -
Subsection 44(3)
235. This item rewrites the penalty provision for
the section. The very broad reverse onus provision is replaced with a more
limited provision, drafted in accordance with the Criminal Code. It places the
evidential burden, as opposed to the legal burden, on the defendant in the very
limited circumstances set out in subsection 44(3).
Item 189 -
Paragraph 44A(5)(a)
236. Reference to the ‘Chief Quarantine
Officer’ is repealed in this section and the ‘Director of
Quarantine’ is inserted by this item.
Item 190 - At the end
of subsections 44A(2), (3) and (4)
237. This item inserts a penalty
in accordance with current Commonwealth policy.
Item 191 -
Subsection 44A(5) (penalty)
238. This item repeals the existing
penalty provision and provides for a penalty that is drafted in accordance with
current Commonwealth policy.
Item 192- Section
44B
239. This item redrafts existing section 44B in a more modern
style and extends the section to the giving of a permission to a person to move,
or deal with goods of a kind described in the permission, so that it is not
limited to one-off permissions for identified goods. The redrafting will also
enable conditions to be attached to the permission. Such permissions can be
revoked or amended in appropriate circumstances (new sections 6B and 6C relate).
240. The new provision retains the existing offence redrafted in a more
modern style. In addition, a new offence is created which makes a person guilty
of an offence if they have the permission of a Director of Quarantine that is
subject to a condition and the condition is contravened and the person is
reckless as to whether or not the condition is contravened.
241. Under
the existing provisions goods moved to a place approved by the Chief Quarantine
Officer did not have to comply with section 44B. Under the new provisions,
movements to these places will be dealt with by granting a continuing
permission.
Item 193 - Saving of instruments
242. This item
is a saving provision for any permissions, consents, approvals or specification
of conditions given under section 44B prior to amendment.
Item 194
- Subsections 44C (2), (3) and (4)
243. This item redrafts section
44C to better reflect the managed risk approach to quarantine. It introduces
the phrase “level of quarantine risk” as defined in new section
5D.
244. Subsection(4) is not retained; it required that a Customs
release must be obtained before release under the Quarantine Act can
occur.
Item 195 - Subsection 44D(2)
245. This item
redrafts section 44C to better reflect the managed risk approach to quarantine.
It introduces the phrase “level of quarantine risk” as defined in
new section 5D.
Item 196 - Subsection 45(2)
(penalty)
256. This item repeals the existing penalty provision and
provides for a penalty that is drafted in accordance with current Commonwealth
policy.
Item 197 - Subsection 45(3A)
(penalty)
247. This item repeals the existing penalty provision and
provides for a penalty that is drafted in accordance with current Commonwealth
policy.
Item 198 - Subsection 45(4)
(penalty)
248. This item repeals the existing penalty provision and
provides for a penalty that is drafted in accordance with current Commonwealth
policy.
Item 199 - At the end of section 45
249. This
item inserts new subsection 45(5) which clarifies that an offence
against the section is a strict liability
offence.
Item 200 - Sections 46A, 47 and
48
250. This item repeals existing sections 46A, 47 and 48 and
inserts new sections 46A, 48, 48AA, 48AB and 48AC.
251. New section
46A provides a comprehensive legislative framework for the granting of
approvals in relation to the use of commercial premises for quarantine
activities. New subsection 46A(1) provides that upon application and payment of
a prescribed fee, a Director of Quarantine may approve a place where goods of a
specified class that are subject to quarantine may be treated or otherwise dealt
with and if a place is so approved, may approve goods of that class being
moved, dealt or interfered with in a way set out in the approval.
252. The amendments ensure that the approval may be given on a
continuing basis and the goods need not be ordered into quarantine prior to
arriving at a place approved under this section. By providing that the section
applies to goods subject to quarantine as opposed to ordered into quarantine,
ensures that goods may be moved quickly from the port to the 46A place without
requiring inspection and notice from a quarantine officer ordering the goods
into quarantine.
253. New subsection 46A(3) provides that a
declaration may be sought from the applicant in relation to amongst other
things, previous convictions of relevant offences, previous applications for
approval or previous suspension or revocations of approvals
granted.
254. New subsection 46A(4) provides a
comprehensive list of relevant factors that the Director of Quarantine must take
into account in determining whether to grant the approval.
255. New
subsection 46A(5) provides that an approval has a maximum life of
one year, but may be renewed on one or more occasions.
256. New
subsection 46A(6) provides that an application for renewal must be
made within 3 months before the approval is to end. An application for renewal
can only be made after cessation of the approval if the Director of Quarantine
consents.
257. New subsection 46A(7) provides that if a
renewal is granted after the cessation of an approval, the renewed period
commences from the date that the original approval expired. For example, if the
original approval was granted on 1 July 1998, it would expire on 30 June 1999.
If a renewal was sought on 3 July 1999 and granted on that day, the renewed
approval would expire on 30 June 2000.
258. New subsection 46A(8)
provides that it is an offence to recklessly breach a condition of an approval
and provides for a penalty.
259. New subsection 46A(9) sets
out the grounds on which a Director of Quarantine may suspend or revoke an
approval. The power to suspend or revoke is confirmed by new section 6B (item
57).
260. New subsection 46A(10) provides that if the
approval is suspended, varied or revoked, written notice stating the grounds for
the suspension, variation or revocation will be given to the applicant for the
approval.
261. New subsection 46A(11) provides that where
an approval expires, is suspended or revoked, that a Director of Quarantine may
give notice to the applicant for the approval of action required to be taken in
respect of goods.
262. New subsection 46A(12) provides that
it is an offence to fail to comply with a notice given under subsection
46A(12).
263. New subsection 46A(13) confirms that the
section applies in the same way to an original application and a renewal
application.
264. New section 48 sets out the general
principles that apply in relation to goods ordered into quarantine and subsumes
requirements currently set out in sections 48 and section 56. Subsection 48(1)
provides that where goods have been ordered into quarantine, a quarantine
officer may order that they are to be
- detained on board a vessel or
installation for such period as directed;
- taken to a quarantine station to
be detained for such period as directed; or
- exported from
Australia.
265. New subsection 48(2) provides that a
quarantine officer may cause goods ordered into quarantine to be treated in such
manner as he or she determines or may direct another person to cause the goods
to be treated in a manner specified in a direction. This provision ensures that
there is flexibility in the manner in which goods ordered into quarantine can be
treated. In doing so it replaces a number of quarantine regulations that
prescribed outmoded treatments.
266. New subsection 48(3)
provides that a quarantine officer may give a direction to a person as to how
goods that have been ordered into quarantine can be moved, dealt or interfered
with. New subsection 48(4) provides that the direction can be
given to the importer, owner or a person in control of the goods. New
subsection 48(5) provides that it is an offence to fail to comply
with such a direction.
267. New subsection 48(6) provides
that if at the end of the period the goods were detained under subsection 48(1),
a Director of Quarantine is of the opinion that release of the goods would
result in an unacceptably high level of quarantine risk, he or she may direct
that the goods be detained at the vessel, installation or quarantine station for
a further period stated in the direction. The combined effect of section 48(1)
and 48(6) is to provide for flexibility as to the period of quarantine and
replace the highly prescriptive periods of quarantine found in the
regulations.
268. New subsection 48(7) provides a
definition of quarantine station for the purposes of the section which provides
that where the term quarantine station is used, that it encompasses a place
approved under section 46A.
269. New section 48AA brings
together the elements of sections 48, 48A and 58 relating to the treatment and
destruction of goods. It increases the value of goods for which the
Minister’s consent must be obtained from $200 to $1000 or a higher amount
prescribed by regulations and clarifies that disposal after seizure includes
destruction and removal from Australia.
270. New section
48AB brings a number of provisions currently contained in the Quarantine
Regulations up into the Act. For example, Regulations 87-92 of the Quarantine
(Animals) Regulations make a provision for the treatment of a range of things
which have been in contact with an animal in quarantine. In view of the
quarantine risk associated with such things, these provisions will now be
redrafted and inserted in the Act to ensure an appropriate penalty applies. For
example, new section 48AB imposes a maximum penalty of imprisonment for 2 years,
whereas the maximum penalty under regulation 97 of the Quarantine (Animal)
Regulations is $1,000.
271. New section 48AC brings the
detail of Regulation 21(F) of the Quarantine (Plants) Regulations into the Act
and extends it to allow for the destruction of plants grown from plants that
have been ordered into quarantine. A maximum penalty of imprisonment for 2
years is imposed compared with the maximum penalty of $2,000 under regulation 35
of the Quarantine (Plants) Regulations.
272. New section
48AD provides direct recognition of the high quarantine risk attached to
dunnage and packing material that may be associated with imported goods. New
section 48AC enables a Director of Quarantine to give a direction to a person
who
- carries on the business of unloading overseas vessels at a wharf or
airport; or
- carries on the business of unpacking imported cargo at a place
licensed under section 77G of the Customs Act 1901 or approved under section 46A
of the Act; or
- is an occupier of these places,
to treat, destroy or
otherwise dispose of any package, packing material or other waste material
situated at that place.
273. New subsection 48AD(2)
provides that it is an offence to fail to comply with a direction given under
subsection 48AD(1).
Item 201- Saving of
approvals
274. This item is a savings and validation provision that
ensures that any approval given under section 46A prior to amendment retains its
validity.
Item 202 - Subsection 48A(1)
275. The title
“Chief Quarantine Officer” is replaced with a reference to
“Director of Quarantine”.
Item 203 - Subsections
48A(1) and (2)
276. This item clarifies the manner in which abandoned
goods may be dealt with.
Item 204 - At the end of section
48A
277. This item provides for the insertion of new subsection
48A(3) that provides that where a quarantine officer has made reasonable
enquiries but has been unable to identify or find the whereabouts of the owner
of the goods that have been ordered into quarantine, and certifies in writing to
that effect, the goods may be sold, destroyed, exported from Australia or
otherwise disposed of. The power is now provided in the Act rather than in the
regulations.
278. Existing subsections 48(1) and (2) only provide for
disposal where the owner of the goods is known. It is necessary to have a power
to deal with goods in an appropriate manner where the owner of the goods cannot
reasonably be determined.
Item 205 - Section 49
(penalty)
279. This item repeals the existing penalty provision and
provides for a penalty that is drafted in accordance with current Commonwealth
policy.
Item 206 - Sections 50 and 51
280. This item
repeals section 50 which is reflected in new section 20D (refer item
141).
Item 207 - Subsection 52(1)
281. This item amends
the existing subsection and provides a Director of Quarantine can authorise a
person to examine an imported animal that has not been released from quarantine.
This is a more flexible arrangement than the current prescriptive
approach.
Item 208 - At the end of subsection
52(3)
282. This item clarifies that where a quarantine officer
releases an animal under quarantine surveillance, that it is for such period as
the Director of Quarantine determines.
Item 209 - Subsection
52(5)
283. This item substitutes new subsection 52(5)
which provides that an animal may be released under quarantine surveillance
unconditionally or subject to conditions. The conditions may be notified to the
importer either at the time of release or at any time while the animal remains
under quarantine surveillance.
284. New subsection 52(5A)
is also inserted by this item. It provides that the Director of Quarantine may
give directions as to a range of things in relation to the animal such as where
and how the animal is to be kept.
285. New subsection
52(5B) provides that a direction given under subsection 52(5A) can be
given either at the time the animal is released or at any time while the animal
remains under quarantine surveillance.
286. New subsection
52(5C) provides that a person is guilty of an offence if that person
fails to comply with a direction given under subsection 52(5A).
287. The
current requirement that a release under the Customs Act 1901 must be
obtained prior to release from Quarantine is not retained.
Item 210 -
Subsections 52A(1) to (4)
288. This item repeals existing sections
52A(1) to (4). New subsection 52A(1) provides that a person authorised by a
Director of Quarantine may examine any animal or plant that is subject to
quarantine and on board an installation.
289. New subsection 52A(2)
provides that if a quarantine officer, after examining an animal or plant on
board the installation, is of the opinion that an animal or plant poses an
unacceptably high level of quarantine risk, the animal or plant must be ordered
into quarantine. If the officer does not order the animal or plant into
quarantine, the animal or plant is to be released from quarantine. The phrase
“level of quarantine risk” is defined in new section
5D.
Item 211 - Subsections 53(2) to (4)
290. This item
repeals existing subsections 53(2) to (4) and substitutes new subsection 53(2).
New subsection 53(2) provides that if after examining an imported plant that has
not been released from quarantine, the officer is of the opinion that the plant
poses an unacceptably high level of quarantine risk, the animal or plant must be
ordered into quarantine. If the officer does not order the plant into
quarantine, the plant is to be released from quarantine. The phrase
“level of quarantine risk” is defined in new section
5D.
Item 212 - Subsection 55A(1)
291. This item repeals
existing subsection 55A(1) and substitutes new subsection 55A(1) which reflects
the existing provision redrafted in a modern style and modified to take into
account the reliance on the term ‘disease or pest’ rather than the
phrase ‘disease affecting animals or plants’.
Item 213
- Paragraph 55A (2)(b)
292. This item expands the scope of paragraph
55A(2)(b) by providing that the section applies to goods that are on board a
vessel or installation as described in the subparagraphs as well as to goods
that have been on those vessels or installations.
Item 214- After
subparagraph 55A(2)(b)(i)
293. This item extends the scope of this
section to vessels that travel to a place in Australia from or through a place
in the Protected Zone or a Special Quarantine Zone.
Item 215 - At
the end of subparagraph 55A(2)(b)(v)
294. This item is a minor
technical drafting amendment.
Item 216 - Sections 56 and
58
295. This item provides for the repeal of section 56, performance
of quarantine which is replaced by new section 48, item 200. This item also
repeals section 58, power to destroy diseased plants, which is replaced by new
section 48AA, item 200.
Item 217 - Sections
59A
296. This item repeals existing section 59A and substitutes a
provision that reflects the detail of the existing provision but clarifies that
the master, owner and agent are jointly and severally liable for the specified
costs. The provision is redrafted in a more modern style, takes account of the
new definition of treatment (refer item 55, section 5(1)) and is extended to
cover the cost of piloting or towing of a vessel.
Item 218 - Section
60
297. This item repeals section 60 which is now covered by new
section 59A.
Item 219 - At the end of section
63A
298. This item inserts new subsection 63A(2) and (3). These
provisions provide that a Director of Quarantine may direct the owner of an
animal that has been ordered into quarantine, to provide sustenance for the
animal during the period, or a part of the period, that the animal is held. A
person is guilty of an offence if they fail to comply with such a
direction.
Item 220 - Subsection 64(1)
299. This item
repeals existing subsection 64(1) and provides a substitute provision that is
redrafted in a more modern drafting style. It also clarifies that the owner and
importer are jointly and severally liable for the specified costs and
rationalises the circumstances when liability for costs arises.
300. This
item also inserts new subsection 64(1A) which places in the Act requirements
currently found in the Quarantine Regulations. The new provision provides the
flexibility required to enable owners or importers to provide their own cartage
and labour in connection with quarantine activities.
Item 221 -
After Part VI
301. This item creates a new Part VIA
that replaces sections 74AB - 74BA and contains enforcement powers that reflect
current Commonwealth Criminal law policy and ensures that there are effective
monitoring powers to check compliance with the Act.
Division 1 -
General powers
66AA General powers of authorised officers in
relation to premises
302. New section 66AA specifies the
general powers of authorised officers in relation to search of premises and
anything on the premises. These powers include the power to inspect, take
samples, take photographs or make videos or audio recordings, make copies of
documents, order infected goods into quarantine and to secure the premises or
things on the premises.
Division 2 - Monitoring
powers
66AB The monitoring of premises
303. New
section 66AB specifies the powers of a quarantine officer to enter and
search without a warrant either premises approved under the Act (including under
section 44A(5) and 46A), quarantine stations, or premises at which procedures
may be carried out under a compliance agreement, or other premises with the
consent of the occupier, in order to find out whether the provisions of the Act
are being complied with.
66AC Monitoring warrants
304. New
section 66AC provides for the issuing by a magistrate of a monitoring
warrant authorising the entry and search of premises for the purposes of finding
out whether the provisions of the Act are being complied with. This new section
provides for the details that must be set out in the monitoring
warrant.
66AD Seizures without offence-related warrant in emergency
situations
305. New section 66AD sets out the power of a
quarantine officer to seize evidential material found on premises entered in a
monitoring capacity (that is, premises entered into under clause 66AB or 66AC).
The power is limited to emergency situations where there is an urgent and
serious need to seize a thing in order to prevent its concealment, loss or
destruction.
Division 3 - Offence related searches and
seizures
66AE Offence-related searches and
seizures
306. New section 66AE specifies the powers of a
quarantine officer to enter and search where the officer has reasonable grounds
for suspecting that there may be particular evidential material on the premises.
The powers under this section are limited to premises approved under the Act
(such as those under section 46A), quarantine stations, premises at which
procedures may be carried out under a compliance agreement or where the occupier
of the premises has consented to the entry. This clause also provides for the
stopping and detaining of aircraft, ships and vehicles and for a power of
seizure of the particular evidential material found at the premises by a
quarantine officer.
66AF Offence-related warrants
307. New
section 66AF sets out the rules for the issuing by a magistrate of
offence-related warrants authorising the entry and search of premises if the
magistrate is satisfied that there are reasonable grounds for suspecting that
there is, or may be within the next 72 hours, evidential material at the
premises. This clause also provides for the details that must be set out in the
offence-related warrant.
66AG The things that are authorised by a
search warrant
308. New section 66AG sets out for the powers
of the executing officer of an offence-related warrant and of officers assisting
in the execution of that warrant. These include specified powers of entry,
search and seizure of evidential material found at the premises. They also
include the powers referred to in clause 66AA to inspect, take samples, take
photographs or make video or audio recordings, make copies of documents and to
secure the premises or things on the premises. Powers for the seizure of other
evidential material found are also set out in this
provision.
Division 4 - Warrants granted by telephone or other
electronic means
66AH Warrants may be granted by telephone or
other electronic means
309. New section 66AH sets out the
circumstances which must be present before a monitoring warrant or an offence
related warrant may be granted over the telephone or by other electronic means.
It provides for the granting of the warrant by a magistrate and for the
procedures which must be followed in relation to such
warrants.
Division 5 - Stopping and searching vessels or
vehicles
66AI Searches without warrant in emergency
situations
310. New section 66AI allows a quarantine officer,
in an emergency situation, to stop and detain a vessel (aircraft or ship) or a
vehicle and to search the vessel or vehicle for and to seize evidential
material. It provides for the ability to seize other evidential material found
on the aircraft, vehicle or ship if the circumstances are serious and urgent and
it is necessary to seize the material to prevent its concealment, loss or
destruction.
66AJ How a quarantine officer exercises a power under
section 66AI
311. New section 66AJ sets out how a quarantine
officer may exercise the powers set out in 66AI. The provision allows for a
quarantine officer to use such assistance as necessary in exercising these
powers, and to use such force as is necessary and reasonable in the
circumstances and sets out the limitations which apply.
Division 6 -
General rules about premises and warrants
66AK Availability of
assistance, and use of force, in executing a warrant
312. New
section 66AK provides for when an executing officer may obtain assistance
and when an executing officer or officer assisting may use reasonable force in
executing the warrant.
66AL Announcement before entry under
warrants
313. New section 66AL sets out the requirements to be
observed before entry and specifies when these requirements do not have to be
complied with.
66AM Details of warrant to be given to occupier
etc.
314. New section 66AM specifies the persons to whom the
executing officer or officer assisting must make available a copy of the warrant
that is being executed. This clause requires the executing officer named in the
warrant to identify himself or herself to the occupier or person representing
the occupier who is at the premises.
66AN Occupier
entitled to be present during search under warrants
315. New
section 66AN provides for the right of the occupier to observe the search
being conducted.
66AO Use of equipment to examine or process
things
316. New section 66AO authorises a person who enters
premises under Part VIA to bring to the premises equipment that is reasonably
necessary for the examination or processing of things found at the premises.
This new section also set out the circumstances in which things may be removed
from the premises in order to examine them and also provides for the use of
equipment already at the premises.
66AP Use of electronic equipment
at premises
317. New section 66AP provides the circumstances
in which a person who enters premises under this Part may operate electronic
equipment for the purpose of exercising their powers under the Act. It also
provides for seizure of the equipment and any device such as a computer disk or
a tape which can be used to access evidential material and provides for the use
of facilities and the copying of material to a storage device and the removal of
the device from the premises. This clause also provides for the securing of the
electronic equipment.
66AQ Compensation for damage to
equipment
318. New section 66AQ makes provision for
compensation to be payable by the Commonwealth to the owner of equipment that is
damaged by being operated where the damage is caused by insufficient care in
selecting the person to operate the equipment or insufficient care by the person
operating the equipment. In determining the amount of compensation payable,
regard is to be had to the action of the occupier of the premises or of the
employees or agents of the occupier.
66AR Copies of seized things to
be given
319. New section 66AR requires a person who seizes a
document, film, computer file or other thing that can be readily copied or a
storage device in which there is information that can be readily copied to give
a copy of the thing or information to the occupier on request.
66AS
Retention of things that are seized
320. New section 66AS
provides for the return of a thing that has been seized, including where the
reason for its seizure no longer exists, where it is decided not to use the
thing in evidence or at the end of 60 days after the thing is seized. A thing
does not have to be returned where an order is obtained from a magistrate under
clause 66AT, or proceedings have commenced, or person is required by a law of
the State or the Commonwealth to retain, destroy or otherwise dispose of the
thing.
66AT Magistrate may permit a thing to be
kept
321. New section 66AT enables a magistrate to order that
a person may keep a thing that has been seized for the period specified in the
order. It sets out the procedures for obtaining the order, and the things a
magistrate must be satisfied of before making such an order.
66AU
Release of seized goods
322. New section 66AU provides for the
release by the Secretary of evidentiary material unconditionally or on
conditions.
66AV Quarantine officer must produce identity
card
323. New section 66AV sets out when a quarantine officer
must produce his or her identity card.
66AW Giving of
consent
324. New section 66AW requires that a person be told
that they may refuse consent. It also provides that consent is not lawful
unless the person has voluntarily consented to entry.
66AX Receipts
for things seized or moved
325. New section 66AX requires the
giving of receipts for things that are seized under Part VIA or moved under new
subsection 66AO(2).
Item 222 - Subsection
66B(1)
326. This item repeals existing subsection 66B(1) and
substitutes a new subsection that provides that a Director of Quarantine may, on
behalf of the Commonwealth, enter into a compliance agreement in connection with
the application of particular procedures in respect of goods and the
supervision, monitoring and testing of the person’s compliance with those
procedures. This new subsection clarifies the scope of compliance agreements.
Item 223 - Subsection 66B(3)
327. This item amends
subsection 66B(3) to reflect the fact that a Director of Quarantine will be the
person entering into the agreement. The amendments also clarify that there is a
power to vary the terms of an agreement.
Item 224 - Subsections
66B(4) and(6)
328. This item deleted the reference to “under
this Act” in subsections 66B(4)-(6). These words are unnecessary with the
insertion of the new definition for procedures (see item 225).
Item 225 - Subsection 66B(7) (including the
penalty)
329. This item redrafts the existing provision including the
penalty and substitutes a penalty that is drafted in accordance with current
Commonwealth policy.
330. This item also inserts new subsection
66B(8) which provides a definition for procedures. This
definition clarifies that compliance agreements may be entered into in respect
of anything under the Act or anything in connections with activities carried out
in the performance of functions related to quarantine. New section 5(1A), item
59, clarifies the scope of the phrase under this Act.
Item 226 - Saving of
agreements
331. This item is a savings provision that also validates
any prior agreements.
Item 227 - Section 67
332. This
item repeals existing section 67 and substitutes new section 67 which is drafted
in accordance with Commonwealth policy. The new section takes account of the
new definitions of disease and pest and clarifies that contravention of any
conditions or requirements of a permit or permission is also an
offence.
333. The very broad reverse onus provision in existing
subsection (2) is replaced by a provision that provides for the evidential
burden to lie with the defendant only in certain circumstances.
334. New
subsection 67(5) replaces subsection 67(1B) and extends the
existing provision to apply to the situation where a person is reckless as to
whether or not the condition or requirement is complied with.
335. New
subsection 67(6) inserts a new offence into the Act. This new
subsection provides that it is an offence for a person to do an act that hinders
or prevents another person form complying with a condition or requirement of a
permit given under the Act, regulations or any proclamation under the Act and
that person is reckless as to whether or not the doing of the act hinders or
prevents the other person from complying with the condition or requirement.
Item 228 - Section 67A (penalty)
336. This item
repeals the existing penalty provision and provides for a penalty that is
drafted in accordance with current Commonwealth policy
Item 229 -
Sections 68, 68A and 69
337. This item repeals existing sections 68,
68A and 69 and substitutes new sections 68, 68A and 69.
338. New
section 68 replaces and enhances the existing section 68. The new
section, provides that offending goods can be required to be exported from
Australia in order to encourage compliance with Australia’s quarantine
requirements and to keep quarantine issues off-shore. The new section also
introduces a system of rectification which enables importers to rectify
deficiencies that might otherwise cause their goods to be seized and disposed
of.
339. New subsection 68(1) provides that the section
applies to animal, plants and goods that have been imported, introduced, brought
into a port or other place in Australia or removed from one part of Australia to
another part of Australia in contravention of the Act. It also provides that the
section applies to certain goods that have been moved or dealt with in
contravention of the Act. The phrase in contravention of the Act, is clarified
by new subsection 5(1A), item 59
340. New subsection 68(2)
provides that a quarantine officer may seize goods that have been imported in
contravention of the Act. The goods will be forfeited to the Commonwealth. A
notice is required to be sent to the importer, owner or person in possession or
control of the goods as the case may be. Goods that have been seized under this
subsection may be sold, destroyed, exported from Australia or the Cocos Islands
or otherwise disposed of in any way that a Director of Quarantine thinks
appropriate.
341. New subsection 68(3) provides that a
Director of Quarantine may give a notice to a specified person which states that
the animals, plants or goods will be seized, and sold, destroyed, exported from
Australia or otherwise disposed of in any way that the Director thinks
appropriate unless within the time stated on the notice, the animals, plants or
goods are destroyed, exported from Australia or otherwise dealt with in away set
out in the notice and any other requirements set out in the notice relating to
the animals, plants or goods are complied with. This provision creates some
flexibility to deal with situations where the importation would be in
contravention of the Act, regulations etc due to a minor technical deficiency.
342. For example, a permit might require that an animal being imported
into Australia be accompanied by certain certificates. If the animal arrives in
Australia without the certificate, this provision will enable the importer to
provide that certificate or export the animal within a time stated on a notice
and avoid forfeiture and seizure of the goods.
343. New subsection
68(4) provides that where the goods have been imported, the notice may
be given to the importer or in other circumstances to the owner, or the person
in possession or control, of the animals, plants or goods.
344. New
subsection 68(5) provides that the notice is not to be given in
circumstances where he or she is not satisfied that if the thing was dealt with
in a manner set out in the notice that there would not be an unacceptably high
level of quarantine risk associated with the thing. The notice must also not be
given where the Director is not satisfied that the notice will be complied with
or that the person will not within a time set out in the notice advise that he
person does not wish to deal with the goods as required by the
notice.
345. New subsection 68(6) ensures that no other
provision of the Act, regulations or a proclamation will be contravened where
the person moves, deals or interferes with goods that have not been released
from quarantine, where such moving, dealing or interfering is necessary to
comply with a notice given under this section
346. New subsection
68(7) clarifies that the liability for an offence is not affected by the
issuing or complying with a rectification notice. For example, if goods were
imported contrary to a proclamation by the importer not obtaining a permit, and
the permit is subsequently issued after importation and the issuing of a
rectification notice, the importer remains liable for an offence under this
section.
347. New subsection 68(8) provides that the
Director may amend or vary the notice at any time before the person complies
with the notice.
348. New subsection 68(9) provides that
where a notice is given but the person either fails to comply with it within the
stated time or gives notice to the Director that they do not wish to deal with
the goods in the manner stated in the notice, then the thing is forfeited to the
Commonwealth and may be seized and sold, destroyed, exported from Australia or
otherwise disposed of.
349. New section 68A redrafts the
existing provision in a more modern drafting style and replaces the Chief
Quarantine Officer with Director of Quarantine to take account of the fact that
the appointment of a Chief Quarantine Officer is discretionary.
350. New
section 69 redrafts the existing provision in a more modern
drafting style and removes the reference to officer of Customs. It also extends
its operation to animals under quarantine surveillance and to commercial
quarantine premises.
Item 230 - Subsection 69A(1)
351. This
item is a consequential amendment following the repeal of sections 48 and
58.
Item 231 - Subsection 69A(4)
352. This item
recognises that a pest might affect an animal as well as a
disease.
Item 232 - Subsection 69A(6)
353. This item is
a consequential amendment to take account of the repeal of section 48.
Item 233 - Paragraph 69A(9)(b)
354. This item recognised
that a pest might affect an animal as well as a disease.
Item 234
- Subsection 69A(12)
355. The provision is redrafted to comply with
the Criminal Code.
Item 235 - Section 70(1)
356. This
item is one of a number of minor technical amendments which have the purpose of
achieving a consistent use of examine instead of the
inspect throughout the Act.
Item 236 - Paragraphs
70(1)(d) and (e)
357. This item amends paragraphs 70(1)(d) and (e) to
ensure that a quarantine officer can examine any plants, as well as goods and
animals.
Item 237 - Subsection 70(2)
358. This item is
one of a number of minor technical amendments which have the purpose of
achieving a consistent use of examine instead of
inspect throughout the Act. This item also repeals the existing
penalty provision and provides for a penalty that is drafted in accordance with
current Commonwealth policy.
Item 238 - Subsection
70(3)
359. This item amends paragraph 70(3) to ensure that a
quarantine officer can examine any animals plants or other goods including any
other thing (by virtue of the definition of goods in section 5(1)) such as the
ballast water.
Item 239 - Section 70AA
360. This item
is a minor technical amendment consequential to the amendment to the definition
of goods.
Item 240 - Section 70AA
361. This item is one
of a number of minor technical amendments which have the purpose of achieving a
consistent use of examine instead of the inspect
throughout the Act.
Item 241 - Subsection
70AA(3)
362. This item is one of a number of minor technical
amendments which have the purpose of achieving a consistent use of
examine instead of inspect throughout the Act.
This item also repeals the existing penalty provision and provides for a penalty
that is drafted in accordance with current Commonwealth
policy.
Item 242 - Section 70A
363. This item repeals
existing section 70A and substitutes a new section that provides for additional
powers for quarantine officers. In particular the new section extends the types
of things which can be examined and about which questions may be asked and the
types of vessels to which the section applies. The new section clarifies that
some of the powers apply to things about to be placed on vessels or
installation. In addition, the offence provisions have been redrafted in
accordance with Commonwealth policy.
Item 243 - Subsection
70B(2)
364. This item inserts a note to alert the reader to the
interaction of sections 70B and 74C.
Item 244 - Subsection
70B(3)
365. This item omits the words “or other records”
as a document is defined in item 19, section 5(1), to include other
records.
Item 245 - Subsection 70B(3)
366. This item
inserts a note to alert the reader to the interaction of sections 70B and
74C.
Item 246 - Subsection 70B(4)
367. This item omits the
words ‘in contact with” and substitutes “exposed to” in
accordance with the definition inserted by item 60, section
5B.
Item 247 - Subsection 70B(4)
368. This item inserts
a note to alert the reader to the interaction of sections 70B and
74C.
Item 248 - Subsection 70B(5) and (6)
369. This
item repeals subsection 70B(5) and substitutes new subsection 70B(5) which is
revised to take account of the new definition of document in item
16.
370. This item also repeals subsection 70B(6) and substitutes new
subsection 70B(6) which is revised by removing references to a power to
“cause tests to be carried out”. This reference is no longer
necessary as it is covered by the general provision contained in new section 5C,
inserted by item 60.
Item 249 - Section 70C
371. This
item repeals section 70C and substitutes new sections 70BA, 70BB, 70C and
70CA.
372. New section 70BA provides that where a
quarantine officer has the power to carry out tests on any samples, the officer
has the power to carry out tests that result in the destruction, or reduce the
value of the samples or of a package or goods associated with the
samples.
373. New section 70BB provides that quarantine
officers may be accompanied by animals and use the animal to assist them in the
exercise of their powers as specified in subsection 70BB(1). The provision does
not apply unless the officer is authorised by a Director of Quarantine to handle
animals in the performance of his or her functions or duties and the animal is
under the effective control of the quarantine officer (70BB(2)). Where the
quarantine officer is exercising powers under a warrant, the warrant must
authorise the use of an animal.
374. New section 70C
redrafts the existing provision consistent with the Criminal
Code.
375. New section 70CA provides a new offence for
making false or misleading statements in relation to approvals, permits,
compliance agreements etc.
Item 250 - Subsection 70D(3)
(including the penalty)
376. This item repeals the existing offence
and penalty provision and provides for an offence and penalty that is drafted
in accordance with current Commonwealth policy.
Item 251 -
After section 70D
377. This item inserts new section
70E . The new section consolidates provisions currently in the
Quarantine (Animal) Regulations (regulations 45 and 46) and in the Act (section
76), and extends these provisions to commercial quarantine premises.
Item 252 - Subsection 71(1) (including the
penalty)
378. This item repeals existing subsection 71(1) and
substitutes a provision that is drafted in a more modern drafting style. The
penalty provision is redrafted in accordance with current Commonwealth policy
and the item also clarifies that a penalty against the section is an offence of
strict liability.
Item 253 - Subsection 72(2)
379. This
item repeals the existing penalty provision and provides for a penalty that is
drafted in accordance with current Commonwealth policy.
Item 254 -
Subsection 72(3) (penalty)
380. This item repeals the existing
penalty provision and provides for a penalty that is drafted in accordance with
current Commonwealth policy.
Item 255 - Subsection 72(4)
(penalty)
381. This item repeals the existing penalty provision and
provides for a penalty that is drafted in accordance with current Commonwealth
policy.
Item 256 - Subsection 72(5) (penalty)
382. This
item repeals the existing penalty provision and provides for a penalty that is
drafted in accordance with current Commonwealth policy.
Item 257 -
After subsection 72(5)
383. This item repeals the existing penalty
provision and provides for a penalty that is drafted in accordance with current
Commonwealth policy.
Item 258 - Subsection 72(6)
(penalty)
384. This item repeals the existing penalty provision and
provides for a penalty that is drafted in accordance with current Commonwealth
policy.
Item 259 - After subsection 72(6)
385. This
item inserts new subsection 72(6A) which clarifies that an offence against
subsections (2), (3), (4) or (6) is an offence of strict
liability.
Item 260 - Subsection 73(1)
(penalty)
386. This item repeals the existing penalty provision and
provides for a penalty that is drafted in accordance with current Commonwealth
policy.
Item 261 - Subsection 73(2) (penalty)
387. This
item repeals the existing penalty provision and provides for a penalty that is
drafted in accordance with current Commonwealth policy.
Item 262 -
Subsection 73(3)
388. This item omits all the words after
“questions” which create an offence against the section. The
offence is redrafted under item 263.
Item 263 - After subsection
73(3)
389. This item inserts new subsections 73(3A) and (3B) which
provide for an offence redrafted in accordance with current Commonwealth policy
and clarifies that an offence against the section is an offence of strict
liability.
Item 264 - Subsection 74(1)
390. This item
repeals subsection 74(1) and substitutes new subsection 74(1) which redrafts the
provision in a more modern style and ensures that the provision is expanded to
deal with the increased use of commercial quarantine premises by referring to
places approved under section 46A or any other place approved by a Director of
Quarantine. This provision also replaces a requirement that a notice be
prescribed with an ability that the notice can be approved by a Director of
Quarantine.
Item 265 - Saving of notices
391. This item
is a savings provision in relation to any notice prescribed under subsection
74(1) prior to amendment.
Item 266 - subsection 74(2)
(penalty)
392. This item repeals the existing penalty provision and
provides for a penalty that is drafted in accordance with current Commonwealth
policy.
Item 267 - After subsection 74(2)
393. This item
inserts new subsection 74(2A) which clarifies that an offence against the
section is an offence of strict liability.
Item 268 - Section 74AA
(penalty)
394. This item repeals the existing penalty provision and
provides for a penalty that is drafted in accordance with current Commonwealth
policy.
Item 269 - At the end of section 74AA
395. This
item inserts new subsection (2) which provides that an offence against the
section is an offence of strict liability.
Item 270 - Sections
74AB, 74A, 74B, 74BA and 74C
396. This item repeals sections 74AB,
74A, 74B, 74BA and 74C. The repealed sections in relation to warrants, search
and entry powers are replaced by new Part VIA inserted by item
221.
397. This item inserts a new section 74BB and rewrites sections 74BC
and 74C to reflect Commonwealth policy.
398. New section 74BB
provides for the issue of identity cards to quarantine
officers.
399. New section 74BC specifies when a quarantine
officer may require a person to answer questions or to produce
documents.
400. New section 74C provide for offences
relating to failure to answer a question or produce a document, failure to
deliver a sample, giving false or misleading answers or failing to correct false
or misleading information in a document.
Item 271 - Saving of
warrants, consents and notices
401. This item is a savings provision
in respect of any warrant issued, consent given or notice issued prior to the
amendments of these provisions.
Item 272 - Subsection
74D
402. This item redrafts the existing provision, section
74D, in a more modern style and extends its application to vessels as
well as vehicles. It repeals the existing offence and penalty provision and
provides for an offence and penalty that is drafted in accordance with current
Commonwealth policy.
403. This item also inserts new section
74DA which provides that a quarantine officer may direct the master or
owner of a vessel to provide reasonable assistance to an officer in the exercise
of his or her functions or duties or in the exercise of a power under the act or
regulations in relation to the vessel or installation. It creates an offence
for failure to comply with such a direction.
Item 273 - Subsection
74E(1) (penalty)
404. This item repeals the existing penalty
provision and provides for a penalty that is drafted in accordance with current
Commonwealth policy.
Item 274 - Subsection 75(1) (including the
penalty)
405. This item repeals existing subsection 75(1) and
substitutes new subsection 75(1) which is redrafted in a more modern
style.
406. This item also repeals the existing offence and penalty
provision and provides for an offence and penalty that is drafted in accordance
with current Commonwealth policy. This item also clarifies that the offence is
one of strict liability.
Item 275 - subsection 75A(1) (at the end
of paragraphs (a) and (b) of the definition of approved
person)
407. This item provides for a minor technical
amendment.
Item 276 - Subsection 75A(1) (paragraphs (c) and (d) of
the definition of approved person)
408. This item repeals existing
paragraphs (c) and (d) and consequential to the new definition of police officer
in item 45, substitutes a new paragraph which refers only to a police officer.
Item 277 - Subsequent 75A(1) (definition of officer of
Customs)
409. This item repeals the subsection that defines an
officer of Customs. The definition is now found in section 5(1), Item
37.
Item 278 - Subsection 75A(1) (paragraph (b) of the definition
of prescribed vessel)
410. This item substitutes a new paragraph (b)
consequential to the new definition of aircraft in item 4.
Item
279 - At the end of paragraphs 75A(2)(a), (b), (c), (d) and
(e)
411. This item is a minor technical amendment to
punctuation.
Item 280 - Paragraph
75A(2)(b)
412. Consequential to the new definition of aircraft in
item 4, this item amends paragraph 75A(2)(b) so that it refers to
‘aircraft’ rather than ‘a vessel used in navigation by
air’.
Item 281 - Paragraph 75A(2)(e)
413. This
item is consequential to the repeal of section 50 and insertion of new section
20D in its place.
Item 282 - Subsection
75A(6)
414. This item repeals the existing penalty provision and
provides for a penalty that is drafted in accordance with current Commonwealth
policy.
Item 283 - Section 75B(1)
415. This item
provides for a minor technical amendment consequential on the new definition of
overseas vessel.
Item 284 - Subsection 75B(2)
416. This
item repeals the definition of prescribed oversea vessel; a new definition is
inserted by the following item to take account of the replacement of the word
oversea with overseas.
Item 285 - Subsection
75B(2)
417. This item inserts a definition of a prescribed
overseas vessel for the purposes of the section.
Item 286
- Sections 76, 77 and 78
418. This item provides for the repeal of
sections 76, 77 and 78 and substitutes new provisions.
419. New
section 76 redrafts the existing section 76 in a more modern style
and brings certain offences from the Quarantine (General) Regulations
(regulation 55) and Quarantine (Animal) Regulations (regulations 45 and 47) and
the Quarantine (Plants) Regulations (regulation 34) into the Act, thereby
attracting more appropriate penalties.
420. New section 77
redrafts the existing offence in accordance with Commonwealth policy and imposes
a higher penalty.
421. New section 78 redrafts existing
section 78 in a more modern style and extends the application of the provision
to quarantinable pests as well as diseases. The penalty provision is also
redrafted in accordance with current Commonwealth policy.
Item 287 -
Subsection 78A(1) (definition of Commonwealth)
422. This item repeals
a definition.
Item 288 - Subsection 78A(1) (paragraph (d) of the
definition of vessel)
423. This item amends paragraph 78A(1)(d) to
ensure that the provision applies where a vessel is at a place other than a
port.
Item 289 - Subsections 78A(2), (3) and (4) (including the
note to subsection (4))
424. This item repeals the existing
subsections 78A(2), (3) and (4) and substitutes new provisions redrafted to
provide greater clarity. New subsection 78A(2) provides that a quarantine
officer may give a direction to the owner or master of a vessel or installation
that requires that a specified process is to be carried out with respect to the
vessel or installation. New subsection 78A(3) provides examples of the
processes that may be specified in the direction and provides that the direction
may specify where the process is to be carried out.
425. New subsection
78A(4) redrafts the penalty provision in accordance with current Commonwealth
policy.
Item 290 - Saving of orders
426. This item is a
savings provision for any order given under section 78A prior to
amendment.
Item 291 - After section 78A
427. This item
inserts new section 78AA, which subsumes existing section 43 and
some of the requirements in the Quarantine (General)Regulations. It applies in
respect of a vessel or installation that is subject to quarantine or a person
who is subject to quarantine and is on board a vessel or installation. New
subsection 78AA(1) provides that a quarantine officer may give a direction to
the master of the vessel or installation requiring a specified process to be
carried out in relation to the vessel or installation.
428. New
subsection 78AA(2) provides examples of the processes that might
be specified in the direction and that the direction may specify where the
specified process is to be carried out.
429. New subsection
78AA(3) provides that a person is guilty of an offence if they fail to
comply with the direction.’
Item 292 - Section
78B
430. This item is a technical amendment as a result of the
amendments to section 78A and the introduction of 78AA.
Item 293 -
Section 78B (penalty)
431. This item repeals the existing penalty
provision and provides for a penalty that is drafted in accordance with current
Commonwealth policy.
Item 294 - After section
78B
432. This item inserts new section 78C provides
that a quarantine officer may cause a vessel, cargo or other goods or any thing
on a vessel to be moved to another place if the vessel is in an insanitary
condition or is carrying diseases or pests and presents an unacceptably high
level of quarantine risk if quarantine measures are not taken. New section 5D
defines “level of quarantine risk”.
Item 295 - After
section 79
433. This item inserts new section 79A which
provides for some limited exclusions in relation to the privilege against self
incrimination. The material required under section 27A, 27B or 28 or 70(2) or
70AA(3), is considered of such significance and vital importance to the
integrity of the quarantine regime, that it overrides the privilege against self
incrimination. Subsection 79A(2) provides that any information given or
document produced in such circumstances is not admissible in evidence against
the person in any criminal proceedings other than a preceding for an offence
against the relevant section. This new section reflects Commonwealth
policy.
Item 296 -Paragraph 80(a)
434. This
item makes a minor amendment to ensure compatibility with the Criminal
Code.
Item 297 - Paragraph 80(b)
435. This item makes a
minor amendment to ensure compatibility with the Criminal
Code.
Item 298 - Section 80
436. This item amends the
provision to ensure compatibility with the Criminal Code.
Item 299
- Subsection 81(1) (penalty)
437. This item repeals the existing
penalty provision and provides for a penalty that is drafted in accordance with
current Commonwealth policy.
Item 300 - Subsection
81(2)
438. This item repeals subsection 81(2) as this offence is
covered by the Crimes Act 1914.
Item 301 - Sections 82, 83, 84
and 85
439. This item repeals sections 82, 83, 84 and
85.
440. New section 82 inserts into the Act a provision
relating to the protection from civil prosecution that are provided in the
Quarantine (Plants) and (Animals) Regulations in a way that accords with
Commonwealth policy and extends the limitation of liability to persons who are
assisting officers, to analysts and to persons approved under sections 75A and
75B.
441. New section 83 redrafts the
existing section in accordance with Commonwealth policy and extends it to an
agent.
442. This item also inserts new section 84 which
redrafts the existing offence for a quarantine officer who maliciously orders a
vessel, installation, person, animal, plant or other goods into quarantine in
accordance with Commonwealth policy and increases the maximum penalty to 5 years
imprisonment.
Item 302 - Section 86D
443. This item
repeals section 86D as it is contrary to current Commonwealth
policy.
Item 303 - Before section 86E
444. This item
inserts new section 86DA which provides that an analyst may give a
certificate as to a range of matters set out in subsection 86DA(2) which is
admissible as prima facie evidence of the matters in the certificate and the
correctness of the certificate. This section is designed to overcome some of
the evidential problems that might arise due to the loss of the averment
provision in section 86D of the Act.
Item 304 - Subsection
86E(1)
445. This item redrafts a phrase in a more modern
style.
Item 305 - Paragraphs 86E(1)(a) and
(b)
446. This item amends paragraphs 86E(1)(a) and (b) to clarify
that the paragraphs apply to examinations or services and certificates under the
regulations as well as the Act.
Item 306 - Paragraph 86E
(1)(c)
447. This item enables a determination to be made in respect
of approvals made under section 46A of the Act which recognises the increased
usage of commercial premises for quarantine.
Item 307 -
Paragraph 86E (1)(d)
448. This item amends paragraph 86E(1)(d) to
ensure that it applies to places approved under section 46A as well as
subsection 44A(5). It also inserts new paragraphs providing that
a determination may be made in respect of permits and compliance
agreements.
Item 308 - Subsection 86E(2AB)
449. This
item amends section 86E(2AB) to reflect the amendments made to section 63A in
item 219.
Item 309 - Subsection
86E(2E)
450. Consequential to the recognition of commercial
quarantine premises provided by these amendments, this item amends subsection
86E(2E) to extend its application to a place approved under section
46A.
Item 310 - At the end of 86E(2E)(b)
451. This
item extends paragraph (b) to places in recognition of the increased reliance on
commercial premises for quarantine.
Item 311 - At the end of
section 86E
452. This item inserts new subsection 86E(5) which
provides that a Director of Quarantine may determine that a fee is not payable
in circumstances set out in the determination, in respect of examinations or
services carried out or provided for under the Act. This provides a discretion
to cater for circumstances that may justify non payment of a
fee.
Item 312 - Before section 87
453. This item
inserts new section 86G which provides that the Criminal Code
applies to all offences against this Act.
Item 313 - Paragraph
87(1)(e)
454. This item extends this regulation making power to
accommodate quarantinable pests.
Item 314 - Paragraphs 87(1)(f),
(g) and (h)
455. This item extends these regulation making powers to
accommodate pests as well as diseases.
Item 315 - At the end
of paragraph 87(1)(j)
456. This item extends this regulation making
power to accommodate quarantinable pests.
Item 316 - Paragraph
87(1)(k)
457. This item redrafts paragraph 87(1)(k) in a more modern
drafting style.
Item 317 - Saving of
regulations
458. This item is a savings power for any regulations
made under paragraph 87(1)(k) prior to amendment.
Item 318 -
paragraph 87(1)(la)
459. This item amends this regulation making
power to ensure that it applies to pests as well as diseases.
Item
319 - Paragraph 87(1)(lb)
460. This item redrafts paragraph 87(1)(lb)
to take account of the new definitions of aircraft and
treatment.
Item 320 - Saving of
regulations
461. This item is a savings provision for any regulations
made under paragraph 87(1)(lb) prior to amendment.
Item 321 -
Subparagraph 87(1)(qa)(ii)
462. This item ensures that this
regulating power extends to pests as well as disease agents.
Item
322 - Paragraphs 87(1)(ra) and (rb)
463. This item substitutes new
paragraphs 87(1)(ra) and (rb) which ensure that these regulation making powers
encompass applications for permits, authorisations or approvals under the Act,
regulations or procedures for consideration of such applications and the
granting or refusing of such applications and the making of orders,
determinations, or declarations under the Act or regulations and the giving of
notices or directions, or the making of any requirement under the Act or
regulations.
464. Paragraph 87(1)(rb) ensures that regulations may be
made to prescribe the manner in which any permit, authorisation, approval,
notice, direction, requirement or other instrument granted or given, or any
order, determination, declaration or other instrument made, under this Act or
the regulations may be produced to a person or body.
Item 323 - Saving of
regulations
465. This item is a savings provision for any regulations
made under paragraph 87(1)(ra) or (rb) prior to amendment.
Item
324 - Paragraph 87(1)(v)
466. Consequential to the repeal of the
definition of diseases or pests affecting animals or plants, this item amends
paragraph 87(1)(v) to refer to diseases or pests.
Item 325 -
Subsection 87(1B)
467. This item amends subsection 87(1B) to refer to
diseases or pests. The existing provision refers only to
diseases.
Item 326 - Subparagraph 87
(1B)(a)(i)
468. This item ensures that this regulation making power
extends to powers to examine as well as to search and enter.
Item
327 - Paragraph 87(1B)(e)
469. This item amends paragraph 87(1B)(e)
to ensure that this regulation making power applies to pests as well as
diseases.