Biosecurity (Consequential Amendments and Transitional Provisions) Act 2015

The legislation affects four broad classes of persons and entities.

First, regulated businesses and individuals. Importers and owners of goods that were subject to quarantine on 16 June 2016 are directly affected by the deeming rules in Schedule 4 item 3. Masters and operators of vessels and aircraft that entered Australian territory before commencement are subject to the conveyance deeming rules in item 32 and the converted directions in items 36, 39 and 40. Primary producers and plant breeders whose varieties are in biosecurity control or subject to a biosecurity response zone (Plant Breeder’s Rights Act 1994 amendments in Schedule 2 items 47–48) face extended time limits for paying examination fees. Persons who held co-regulatory approvals under Quarantine Act s 46A or compliance agreements under s 66B become “biosecurity industry participants” under transitional approved arrangements (Schedule 4 items 47 and 52) and must comply with inherited conditions or face variation, suspension or revocation under the Biosecurity Act Chapter 7 rules as modified.

Second, government officials. The Director of Biosecurity and Director of Human Biosecurity inherit all the powers and functions previously exercised by Directors of Quarantine (Schedule 4 item 64 table). Biosecurity officers are deemed to have given certain directions that quarantine officers gave (items 12(1), 18(2)). Analysts appointed under Quarantine Act s 86DA(1) are taken to be analysts under Biosecurity Act s 637(1) (item 81). The Agriculture Minister becomes the responsible Minister for certain archival and FOI purposes (Schedule 2 items 2 and 25).

Third, other Commonwealth agencies. Agencies administering the Archives Act 1983, Australian Postal Corporation Act 1989, Customs Act 1901, Environment Protection and Biodiversity Conservation Act 1999, Fisheries Management Act 1991, Freedom of Information Act 1982, Maritime Powers Act 2013, Migration Act 1958, National Health Act 1953 and Torres Strait Fisheries Act 1984 must now apply the new terminology and cross-references. For example, the Australian Maritime Safety Authority and Customs and Border Protection must treat “unacceptable level of biosecurity risk” as an additional ground for refusing entry or exercise of maritime powers (items 23, 28–29, 54–55).

Fourth, courts and tribunals. The Act preserves the jurisdiction and evidentiary rules that applied to Quarantine Act proceedings (items 79–80, 82–83) while making decisions taken under continued Quarantine Act provisions “reviewable decisions” if prescribed by regulation (item 70). Compensation claims for destroyed goods or premises continue under the modified Quarantine Act s 69A (item 77).

The Act creates few new standalone duties; instead it transmutes existing Quarantine Act duties into Biosecurity Act duties.

A person who received a notice under Quarantine Act s 16AF(1) requiring a specified thing in relation to goods ordered into quarantine must still comply, and the offence in s 16AF(3) continues (item 7(2)). A person given a direction under any of the provisions listed in the three tables in items 15, 16 or 17 must treat that direction as a direction under Biosecurity Act s 138(1)(a) to carry out the corresponding biosecurity measure. The owner of an animal in a quarantine station who had agreed to provide sustenance continues to be bound by that agreement, now treated as an agreement under Biosecurity Act s 612(2) (item 71(1)).

Rights are similarly preserved by conversion. A permission granted under Quarantine Act paragraph 20D(2)(b) or subsection 29(4), 29A(3) or 44B(6)–(7) becomes a permission under Biosecurity Act s 146(2) or s 557, subject to the same conditions but with a one-year sunset in some cases (items 9(3), 10, 14). An import permit issued under the old regulations is taken to be a permit under Biosecurity Act s 179 and remains in force until its original expiry or earlier variation, suspension or revocation under s 181 (item 29). A person who held a co-regulatory approval or was party to a compliance agreement obtains a transitional approved arrangement that can be renewed or extended once (items 48, 53), carrying with it the right to apply for internal review and AAT review because non-renewal or non-extension is declared a reviewable decision.

The Act also confers new procedural rights. The Director may extend the three-year transition period for first points of entry by legislative instrument (Schedule 3 item 1(4)), and disallowance under the Legislation Act 2003 s 42 is expressly disapplied. Owners of goods that would require ministerial approval for destruction under the old law are treated as high-value goods under the new law (item 19(3)–(4)), triggering the higher procedural safeguards in Biosecurity Act Chapter 3 Division 5.

No new penalties are created. Instead, the Act ensures that breaches of continued Quarantine Act obligations remain punishable under the old penalty provisions while giving biosecurity enforcement officers the full Chapter 9 toolkit of the Biosecurity Act.

Item 61 applies Parts 1–5 and selected Divisions of Part 10 of Chapter 9 of the Biosecurity Act (monitoring, investigation, search warrants, infringement notices) to determine compliance with the Quarantine Act, to verify information given under it, or to find things connected with offences against it. The Regulatory Powers (Standard Provisions) Act 2014 Parts 2 and 3 are engaged for monitoring and investigation. Item 62 applies the Regulatory Powers Act provisions on dealing with seized things to anything seized under the old Part VIA of the Quarantine Act and still retained on commencement.

Continued offences include the offence of receiving or possessing goods unloaded in contravention of Quarantine Act s 44 (item 12(2)), the offence in Quarantine Act s 70C(3) of possessing or conveying goods imported in contravention of the Act (item 26), and the offence of hindering or preventing compliance with the Act (item 76, continuing Quarantine Act s 67(6)). Compensation for destroyed goods or premises remains available under the modified Quarantine Act s 69A (item 77(1)). Civil proceedings protection under Biosecurity Act s 644 is extended to acts done under the transitional Act or the continued Quarantine Act provisions (item 78).

The Act is expressly parasitic on the Biosecurity Act 2015. Almost every transitional rule states that an old instrument “has effect … as if it were” an instrument or direction given under a specified provision of the Biosecurity Act. Definitions in Schedule 4 item 1(2) provide that an expression used in both statutes takes its Biosecurity Act meaning except where the context (usually a pre-commencement event) requires the Quarantine Act meaning.

It also amends the Biosecurity Act itself indirectly by altering the statutory landscape in which that Act operates. By repealing the Quarantine Act and inserting new definitions (e.g. “listed human disease” in the National Health Security Act 2007) and objects, it expands the permissible purposes for which information may be shared and the circumstances in which listed human diseases trigger national coordination.

Interaction with the Acts Interpretation Act 1901 is preserved. Schedule 4 item 2 states that the Schedule does not limit the operation of s 7 of that Act in relation to the repeal of the Quarantine Act. Schedule 3 item 1(7) expressly invokes s 4 of the Acts Interpretation Act to allow first-point-of-entry determinations to be made before the relevant Biosecurity Act sections commence.

The Legislation Act 2003 is partially disapplied: instruments extending transition periods for first points of entry are not disallowable (Schedule 3 item 1(5)). Fee-bearing activities associated with renewal or extension of transitional approved arrangements are brought within the Biosecurity Act cost-recovery regime via item 58.

As this is the original 2015 Act, “recent changes” refers to the policy decision to replace the prescriptive, disease-specific Quarantine Act with a modern, risk-based statute. The Explanatory Memorandum accompanying the Bill explained that the Quarantine Act had become fragmented through 200 amendments and no longer reflected contemporary scientific understanding of risk. The transitional Act was therefore required to manage the legal risks of moving from a “zero-risk” quarantine philosophy to a “managed risk” biosecurity philosophy.

The detailed Schedule 4 mappings were included because stakeholders, particularly industry bodies holding co-regulatory approvals and compliance agreements, required certainty that their existing authorisations would not lapse on commencement. The one-year and 18-month sunsetting periods for certain grandfathered permissions and arrangements were a compromise to force eventual migration to fully compliant Biosecurity Act instruments while avoiding immediate regulatory shock. The decision to make extension instruments non-disallowable (Schedule 3 item 1(5)) reflected the operational need for rapid adjustment of first points of entry during the transition window.

The source text contains no reported court challenges. However, the Act itself anticipates litigation by preserving Quarantine Act evidentiary certificates (items 82–83), continuing summary-proceeding rules (item 79), and preserving Federal Court jurisdiction (item 80). Item 77 continues compensation rights under Quarantine Act s 69A for any destruction, whether before or after commencement; this has historically been a fertile source of compensation claims when entire shipments or premises are destroyed. The conversion of old notices into biosecurity control notices (item 28) and the deeming of goods into biosecurity control (item 3) could generate disputes about whether the pre-conditions for deeming were in fact satisfied on 16 June 2016. Because the Act applies the Biosecurity Act Chapter 9 powers to residual Quarantine Act obligations (item 61), any challenge to the validity of a search or seizure will turn on the modified application of the Regulatory Powers Act as tailored by item 61(2).

Most practitioners assume that once the Quarantine Act was repealed everything simply became subject to the Biosecurity Act. That is dangerously incomplete. Goods that were subject to quarantine but had been released before commencement are not deemed subject to biosecurity control (item 3(1)(c) and item 32(2)). A seemingly innocuous failure to correct pre-commencement information supplied under Quarantine Act s 27A or 27B after the operator becomes aware of its inaccuracy triggers a fresh obligation under Biosecurity Act s 194 (items 37(4) and 38(4)), with potential strict-liability offences.

Transitional approved arrangements from compliance agreements last only 18 months and can be extended once (item 52(4) and item 53(7)). Many businesses allowed these to lapse without applying for full Biosecurity Act approvals under s 405, only to discover later that their supply chains no longer complied. The fit-and-proper-person test imported from Biosecurity Act s 530 applies to renewal and extension decisions even though the original approvals were granted under the old law (items 48(2)(a) and 53(2)(a)).

The three large mapping tables in items 15–17 look comprehensive but contain subtle differences in language. A direction given under Quarantine Act s 48AD(1) to destroy waste material becomes a direction to carry out a biosecurity measure under Biosecurity Act s 136(1), yet the criteria for when destruction rather than treatment is proportionate are now governed by the new Act’s proportionality requirements. Failure to appreciate that the old direction is now subject to new statutory limits has led to compliance missteps.

Item 1(7) of Schedule 3 allows first-point-of-entry determinations to be made before the Biosecurity Act sections commence, relying on Acts Interpretation Act s 4. The note warns that the determinations only take legal effect on commencement, yet some port operators treated the pre-commencement instruments as immediately operative, creating unnecessary legal risk.

Finally, the cost-recovery provisions in item 75 treat old Quarantine Act fees and late-payment fees as cost-recovery charges under the Biosecurity Act but prescribe different due dates. The interaction with Biosecurity Act Divisions 4 and 5 on recovery and late-payment fees is not intuitive and has generated disputes about whether interest or further late fees can be stacked.

Compliance begins with an audit on or immediately after 16 June 2016 (or the relevant later date for Schedule 4 provisions). Importers and operators should:

1. Identify every good, conveyance, approval, permission, direction or notice that existed under the Quarantine Act immediately before commencement.
2. Map that instrument against the specific item in Schedule 4. For goods, confirm whether any of the seven subparagraphs in item 3(1)(b) applied and that the goods had not been released from quarantine.
3. For each converted direction or permission, read the old instrument side-by-side with the new Biosecurity Act provision it is taken to be. Note any additional obligations (e.g. the duty to correct information under items 37(4)–(5)).
4. For transitional approved arrangements, diarise the cessation time (either the original expiry or 18 months after commencement) and lodge a renewal or extension application no later than three months before that date (items 48(1) and 53(1)). Ensure the fit-and-proper-person material required by Biosecurity Act s 530 is ready.
5. Update all internal policies, labels, notices and contracts to replace “quarantine” language with “biosecurity”. Notices affixed under the old Act are deemed to be biosecurity control notices but must be read with the substituted terminology (item 28).
6. If destruction of goods or sale to recover expenses is contemplated, follow the exact notice and 30-day waiting periods in item 74. Ministerial approval history under the old law determines whether the goods are treated as high-value goods (item 19).
7. Retain all old Quarantine Act records for the periods required by the Archives Act 1983 as amended (Schedule 2 items 1–2, 24, 53) because they are now treated as records of the Agriculture Department.
8. When in doubt, obtain a written biosecurity advice or determination under the Biosecurity Act rather than rely on the transitional deeming. The transitional provisions are complex precisely because they were designed to be temporary; best practice is to migrate to fully compliant Biosecurity Act instruments as soon as operationally feasible.

Legal teams should maintain a concordance table cross-referencing every pre-2016 Quarantine Act instrument to its Biosecurity Act equivalent. Regular refresher training for biosecurity officers on the continued application of Chapter 9 powers to residual Quarantine Act matters is essential. Finally, monitor any regulations made under item 84; they can modify the operation of both the Schedule and the Biosecurity Act itself for transitional purposes.