Australian Quarantine Review Secretariat Australian Quarantine a shared responsibility
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- 11.2.2 Previous Amendments to Quarantine Legislation
- 11.2.3 Reviewing the Legislation
- 11.2.4 Revisions following this Review
- 11.2.5 Legislative Support
11.2 LEGISLATION11.2.1 Current Powers and Scope of the Existing ActAustralian quarantine legislation consists of the following elements: · Quarantine Act 1908; · Regulations (Animal, Plant and General) under the Act; and · Proclamations (Animal, Plant and General). All three elements of the legislation have been updated many times in an attempt to keep pace with change — the inevitable result being that the legislative package is now disjointed and, for the most part, difficult to interpret and implement. Further, the Review Committee understands that over the years the Quarantine Act 1908 has been used as a stop-gap for various activities, such as controls on ballast water discharge, imported food inspection, and (before the introduction of specific wildlife legislation) for some aspects of wildlife protection, usually in conjunction with the Customs Act 1901. Section 4 of the Quarantine Act 1908 (the Scope), describes quarantine as having 'measures for the inspection, exclusion, detention, observation, segregation, isolation, protection, treatment, sanitary regulation and disinfection of vessels, installations, persons, goods, things, animals, or plants, and having as their object the prevention of the introduction or spread of diseases or pests affecting human beings, animals, or plants'. Although dated, the Act and subordinate legislation are still very powerful instruments. As an example, Section 2B of the Act empowers the Governor-General to proclaim any part of Australia where there exists a quarantinable disease epidemic or a danger of an epidemic, as being an area subject to quarantine direction by the Minister. Generally, the Act does not comprehend contemporary quarantine situations and requires amendment as these situations arise. As a principle, such a band-aid approach is unsatisfactory as all it achieves is the specific short-term objective; it does not address the fundamental issue — that is, that the Act and subordinate legislation need to be updated and made relevant to the modern era. 11.2.2 Previous Amendments to Quarantine LegislationThere have been many attempts to update quarantine legislation over the years. Significant updates were undertaken between 1981 to 1984 following the Senate Standing Committee on National Resources' report on the adequacy of quarantine (Senate 1979). With the transfer of responsibility for animal and plant quarantine to the Department of Primary Industry in 1984, approval was given by Government to proceed with the drafting of two new Bills — a Human Quarantine Bill and an Agricultural Quarantine Bill. Work on these Bills progressed slowly between 1985 and 1993, when the then Minister agreed to defer indefinitely further work on the draft Bills. Since then, only essential amendments have been made to the Act, Regulations and Proclamations. 11.2.3 Reviewing the LegislationIt is important that the Quarantine Act 1908 provides all the powers necessary to maintain Australia's relative freedom from pests and diseases. In examining quarantine legislation, the Review Committee had the benefit of a recently completed report by the Quarantine Development Unit. The Unit was established by the Secretary of the Department of Primary Industries and Energy (DPIE) to review specific aspects of quarantine operations. In mid-1996, it completed a comprehensive review of the 'condition' of the Quarantine Act 1908, Regulations and Proclamations. The Unit's report concluded, inter alia, that: · the legislation was in urgent need of major attention; · the Act should be comprehensively amended rather than continuing to work on shaping an entirely new Bill; · the existing Regulations should be amended; and · the Proclamations should be restructured and totally rewritten. The report examined options for amending the legislation, identified Regulations that need amendment, and provided details of the restructure and amended wording needed. Concerns related to a number of the deficiencies identified by the Quarantine Development Unit were also conveyed to the Review Committee in submissions and public hearings. Areas identified as needing amendment included sanctions for non-compliance (e.g. on-the-spot fines), the control of progeny from illegal imports, the inclusion of unwanted heritable traits of plants and animals, the registration of premises and their control, the power to order the re-export of goods, the lack of legislative reference to risk analysis, the revocation of permits, the powers for emergency search and related emergency activities, the application of the Act to ballast water, the return of goods seized under search warrant, and the protection of Quarantine Officers from liability. It was also believed important for the legislation to clarify that quarantine authorities do have legal access to all lands, including those in control of indigenous peoples, in the discharge of quarantine responsibilities. Establishment of the Travellers Statement (see Section 8.9.4) as a prescribed document under the Act would also assist in the prosecution of persons making false quarantine declarations. It is understood that the DPIE Executive Board endorsed the approach recommended by the Quarantine Development Unit and noted that any amendments to the legislation must take into account: · the requirement to review all Commonwealth legislation that restricts competition (including quarantine) as a result of the Council of Australian Governments' Competition Agreement of April 1995 arising out of the Hilmer Report. (The Review Committee understands that all Commonwealth quarantine legislation is to be reviewed in 1997); and · the expected commencement of the Commonwealth's Legislative Instruments Bill (which is scheduled for enactment on 1 January 1997), which will require all legal instruments such as quarantine Proclamations and Regulations to be subject to Parliamentary scrutiny and to be recorded on a Commonwealth register. 11.2.4 Revisions following this ReviewIn keeping with the Executive Board's decision, the Review Committee believes that the day-to-day working tools of quarantine decision making — the Quarantine Proclamations — should be updated as a matter of urgency. In this regard, the Review Committee notes a consultant has been engaged to review the Proclamations, make recommendations, and draft proposed changes. Furthermore, the Review Committee understands that the consultant has completed the first draft of the revised Proclamations and that these have been presented to senior management. The Proclamations have been consolidated from about 150 into a set of 20. They have been redrafted to make them more relevant, effective and responsive to the contemporary situation, particularly Australia's commitment to the World Trade Organization and the Agreement on the Application of Sanitary and Phytosanitary Measures. It is proposed that there will be attached to these Proclamations, a number of schedules that will list specific pests and diseases of animals and plants. Prohibitions on import, a feature of former Proclamations, have been supplemented by an approved list with a system of permits that will be granted subject to necessary conditions. This approach is consistent with the view expressed by the Review Committee in Section 8.4.3, recommending that seeds for import be covered by an approved list rather than solely the current 'prohibited' list. The consultant's report also makes recommendations on necessary amendments to the Quarantine Act 1908 and Regulations that will be required to accommodate the changes to the Proclamations. Overall, the proposed amendments suggested by the consultant appear to address the shortcomings and concerns with the current legislation as expressed in submissions to the Review Committee, and also accord with Australia's international obligations and commitments. Recommendation 107: The Review Committee recommends Quarantine Australia ensure that work on updating the Quarantine Proclamations and Regulations and facilitating their passage through Parliament, continue as a matter of urgency. 11.2.5 Legislative SupportThe Quarantine Act 1908 specifically refers to measures for the prevention of the introduction or spread of pests and diseases. The Act does not appear to preclude the wider coordinating responsibilities for Government quarantine authorities recommended by the Committee. Chapter 7 (on Risk Analysis) deals with the Review Committee's philosophy of scientific risk analysis comprising risk assessment, risk management and risk communication and sets aside as a misconception, any suggestion of a 'no risk' policy in quarantine. The risk analysis approach together with the concept of a continuum of pre-border, border and post-border quarantine arrangements and the importance of the environment to the community, encapsulates the Review Committee's approach to quarantine policy. It may well be that as a result of the adoption by Government of this Report, some amendments to quarantine legislation will be necessary. Any amendments would be the responsibility of the group established to prepare the enabling Bills and any consequential legislative change. Recommendation 108: The Review Committee recommends that relevant sections of the Quarantine Act 1908 be revised as soon as possible to reflect fully the changed scope and focus of quarantine advocated in this Report. In addition, it will be necessary to draft and enact legislation for the establishment of Quarantine Australia. As discussed in Section 4.5, the Review Committee believes that a task force should be established by DPIE with responsibility for this matter. The Review Committee is aware of the requirement that all new legislation include a sunset provision for review or termination of that legislation. The Review Committee believes that it is important that the new processes recommended in this Review have time to be implemented, tested and amended where required. This natural process of evaluation, self analysis and revision is easily disrupted and can become disjointed in circumstances of ongoing external reviews. Recommendation 109: The Review Committee recommends that legislation establishing Quarantine Australia have a sunset clause of 10 years, with a review of its performance in the development and delivery of national quarantine policy and programs to be undertaken within the two years preceding this date. APPENDIXES APPENDIX A: SUBMISSIONS RECEIVED This appendix lists the names of individuals or organisations that provided a submission to the Review. In addition, four confidential submissions were received.
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