Biosecurity Amendment (Traveller Declarations and Other Measures) Bill 2020 [2020] AUSStaCSBSD 117 (6 August 2020)

• Chapter 1
• Comment bills
• Biosecurity Amendment (Traveller Declarations and Other Measures) Bill 2020
• Delegated legislation not subject to disallowance1

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Chapter 1

Comment bills

1.1 The committee comments on the following bills and, in some instances, seeks a response or further information from the relevant minister.

Biosecurity Amendment (Traveller Declarations and Other Measures) Bill 2020

Purpose	This bill seeks to amend the Biosecurity Act 2015 to set targeted amounts payable under an infringement notice in order to provide for a flexible and proportionate compliance response
Portfolio	Agriculture, Water and the Environment
Introduced	House of Representatives on 17 June 2020

Delegated legislation not subject to disallowance^[1]

1.2 Proposed subsection 524A(1) provides that the Director of Biosecurity may determine, by legislative instrument, goods or classes of goods for the purpose of infringement notice amounts under section 524 of the Biosecurity Act 2015.

1.3 Proposed subsection 524A(4) provides that legislative instruments made under proposed subsection 524A(1) are not subject to disallowance. The committee expects that any exemption of delegated legislation from the usual disallowance process should be fully justified in the explanatory memorandum.

1.4 In relation to proposed subsection 524A(4) the explanatory memorandum states:

A determination made under new subsection 524A(1) is critical to the management of biosecurity risks posed by the bringing of goods into Australia. The flexibility of Australia’s biosecurity system is one of its most important aspects. It must be adaptable to respond effectively to and manage evolving biosecurity risks threatening Australia, such as African Swine Fever. The legislative framework supporting the biosecurity system must therefore also be flexible and adaptable.
This exemption from disallowance is similar in nature to a number of other determinations that can already be made under the Biosecurity Act, such as those made under section 182 suspending the bringing or importing of specified goods into Australian territory for a specified period of time. The identification of kinds of goods or classes of goods posing a high level of biosecurity risk is a technical and scientific decision based on whether the biosecurity risk is satisfactorily managed. Potential disallowance would have a significant impact on decision-making, the risk management process and the broader management of biosecurity risks.^[2]

1.5 The committee does not consider that the need for a flexible and adaptable approach is a sufficient justification for exempting delegated legislation from the usual disallowance process. The committee's consistent scrutiny view is that the need for flexibility alone, or the fact that a certain approach is consistent with other legislative provisions, does not, of itself, provide an adequate justification for delegated legislation not being subject to the usual parliamentary disallowance process.

1.6 From a scrutiny perspective, the committee considers that providing for higher infringement notice amounts is a significant matter that should be subject to effective parliamentary oversight. Furthermore, it is not clear how providing for the usual disallowance process to apply to determinations made under proposed subsection 524A(1) would 'have a significant impact on decision-making, the risk management process and the broader management of biosecurity risks'. In this regard, the committee notes that such determinations could come into effect the day after the instrument is registered on the Federal Register of Legislation, and that the risk that the Parliament would disallow a determination well-supported by technical and scientific advice is extremely low.

1.7 The committee therefore requests the minister’s more detailed advice as to:

• why it is considered necessary and appropriate for determinations listing goods or classes of goods for the purpose of infringement notice amounts under section 524 to be exempt from disallowance; and

• whether the bill can be amended to omit proposed subsection 524A(4) so that instruments made under proposed subsection 524A(1) are subject to the usual parliamentary disallowance process.

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[1] Schedule 1, item 3, proposed subsection 524A(4). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(v).

[2] Explanatory memorandum, p. 7.