Various instruments made under the Biosecurity Act 2015-Exempt instruments raising significant scrutiny issues [2022] AUSStaCSDLM 18 (9 February 2022)

1.1 This part details those instruments exempt from disallowance which raise particularly significant scrutiny concerns in relation to the appropriateness of their exemption from disallowance under Senate standing order 23(4A). Where necessary, the committee additionally raises scrutiny concerns in relation to its scrutiny principles set out in Senate standing order 23(3)(3).

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FRL No.	F2021L01620; F2021L01621; F2021L01698; F2021L01718; F2021L01757^[1]
Purpose	Various purposes responding to the COVID-19 pandemic
Authorising legislation	Biosecurity Act 2015
Portfolio	Health: F2021L01620, F2021L01621, F2021L01718 and F2021L01757 Agriculture, Water and the Environment: F2021L01698
Source of exemption	Subsections 44(3), 174(5), 476(2) and 477(2) of the Biosecurity Act 2015

1.2 Sections 475 and 476 of the Biosecurity Act 2015 (Biosecurity Act) allow the Governor-General to declare that a human biosecurity emergency exists and to extend the emergency period for further periods of up to three months if the Health Minister is satisfied of certain criteria. During a human biosecurity emergency period, the Health Minister may determine emergency requirements or give directions deemed necessary to prevent or control the entry, emergence, establishment or spread of the relevant disease in Australian territory. On 9 December 2021, the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension No. 4) Instrument 2021 [F2021L01757] was made to extend the emergency period a seventh consecutive time, for a further two months until 17 February 2022.

1.3 Subsections 44(2), 174(1), and 477(1) of the Biosecurity Act 2015 (the Biosecurity Act) empower the minister determine entry requirements, and emergency requirements during a human biosecurity emergency period. The Biosecurity (Entry Requirements—Human Coronavirus with Pandemic Potential) Determination (No. 2) 2021 [F2021L01620], Biosecurity (Emergency Requirements—High Risk Country Travel Pause) Determination (No. 2) 2021 [F2021L01621], and the Biosecurity Legislation Amendment (Emergency and Entry Requirements) Determination 2021 [F2021L01718] were made under the Biosecurity Act in response to the COVID-19 pandemic and introduce a range of measures, including preventing persons travelling from Omicron high risk countries from entering Australian territory.

1.4 Subsection 174(1) of the Biosecurity Act empowers the Director of Biosecurity and the Director of Human Biosecurity to jointly determine that specified classes of goods must not be brought or imported into Australian territory unless specified conditions (including conditions for administrative purposes) are complied with. The Biosecurity (Conditionally Non-prohibited Goods) Amendment (Test Kits) Determination 2021 [F2021L01698] prescribes conditions for importing tests kits (including COVID-19 test kits).

Scrutiny concerns

Exemption from disallowance^[2]

1.6 The committee has set out its significant scrutiny concerns in relation to legislative instruments made under the Biosecurity Act which are exempt from disallowance in detail in Chapter 1 of Delegated Legislation Monitor 14 of 2021,^[3] Delegated Legislation Monitor 16 of 2021^[4] and Delegated Legislation Monitor 1 of 2022.^[5] The committee's broader concerns about the exemption from disallowance of emergency legislative instruments are set out in detail in the interim report of the committee's inquiry into the exemption of delegated legislation from parliamentary oversight.^[6]

1.7 It remains the committee's view that emergency delegated legislation should be subject to appropriate parliamentary oversight, with limited exemptions from disallowance. Where an instrument is exempt from disallowance, the committee expects that a detailed justification will be included in the explanatory statement.

1.8 As the committee has previously emphasised, this approach upholds the Parliament's constitutional role as the primary institution responsible for making law and scrutinising possible encroachments on personal rights and liberties.

1.9 The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension No. 4) Instrument 2021 [F2021L01757] extends the human biosecurity emergency period for the seventh consecutive time for a further two months to 17 December 2021. The exemption from disallowance in relation to this instrument is particularly concerning as it means that any determinations of emergency requirements made under section 477 of the Biosecurity Act that are still currently in effect will continue to apply for the duration of the extended human biosecurity emergency period (unless revoked earlier). Further, additional determinations may be made during the period, which are also not subject to disallowance by Parliament. The committee's concerns are heightened as there is no limitation on the number of times that the emergency period may be further extended without parliamentary oversight.

1.10 The purpose of the Biosecurity (Conditionally Non-prohibited Goods) Amendment (Test Kits) Determination 2021 [F2021L01698] (the Test Kits Determination) is to facilitate the importation of test kits, including particular COVID-19 test kits, containing animal material, human material or material derived from a disease agent. To achieve this, the Test Kits Determination provides that test kits must not be brought or imported into Australian territory unless they are covered by an import permit or the alternative conditions specified for such test kits are complied with. The provision of alternative conditions for test kits means that an import permit is not required for the import of test kits provided that the alternative conditions are met. The explanatory statement provides that this instrument is appropriately exempt from disallowance because the decision to make the Test Kits Determination relies solely on technical and scientifically-based evidence.

1.11 The committee does not consider that scientific or technical decisions should be exempt from disallowance on that basis alone. Notwithstanding that fact that it is rare for a decision to be purely scientific or technical, without any other considerations required, it is unclear to the committee why parliamentarians would be incapable of taking into account scientific and technical evidence when considering the appropriateness of an instrument.

1.12 As the Senate Standing Committee for the Scrutiny of Bills has noted, parliamentarians have access to considerable specialist expertise and parliamentarians regularly deal with legal, scientific and technical complexity while undertaking their law-making functions. In addition, parliamentarians are accountable to their electors in relation to how they exercise their law making functions, including the power to disallow a legislative instrument and any resulting outcomes that flow from that disallowance.^[7]

1.13 The committee agrees that disallowance of an instrument that is well-supported by scientific and technical evidence is unlikely. The mere fact that a decision may be based on scientific and technical grounds is not, of itself, a sufficient justification for an exemption from the usual disallowance process.

1.14 The remaining three instruments made under the Biosecurity Act this period are the Biosecurity (Entry Requirements—Human Coronavirus with Pandemic Potential) Determination (No. 2) 2021 [F2021L01620], Biosecurity (Emergency Requirements—High Risk Country Travel Pause) Determination (No. 2) 2021 [F2021L01621] and the Biosecurity Legislation Amendment (Emergency and Entry Requirements) Determination 2021 [F2021L01718]. These instruments introduce significant measures which impact the public, including temporarily imposing requirements to travel and preventing entry into Australian territory. The justification provided for the exemption from disallowance remains the same—that the risk of disallowance would inhibit the Commonwealth's ability to act urgently on public health advice to manage a human biosecurity risk that could threaten or harm human health, as it would create uncertainty as to whether the instrument might be disallowed.

1.15 As set out in the committee's previous Delegated Legislation Monitors, the committee does not accept the need to act urgently or to avoid potential uncertainty on their own to be an adequate justification for the exemption of delegated legislation from parliamentary oversight. In particular, the committee notes that the disallowance procedure would not inhibit the immediate commencement of the instruments. In this regard, the committee does not consider that making a legislative instrument subject to disallowance would, of itself, prevent the government from taking immediate and decisive action in response to a significant emergency.

1.16 The committee considers the disallowance process to be an opportunity to work in a constructive manner with the executive to enhance delegated legislation to ensure that it operates and functions within the boundaries placed upon it by the Parliament. In relation to these instruments, which impose significant requirements on the Australian public, the committee considers that the disallowance process is necessary to facilitate appropriate debate and scrutiny of the use of emergency powers and would operate to ensure that such powers are not misused.

1.17 The committee appreciates that during an emergency it is necessary for governments to take urgent and decisive action. However, Parliament must also have effective oversight of these critical decisions and retain the ability to scrutinise the actions of governments.

1.18 The committee notes that to date, the government has failed to substantively engage with the committee's significant concerns and continues to make instruments under the Biosecurity Act which are exempt from disallowance and fails to provide an adequate explanation for why it is necessary to do so.

1.19 Further, the committee is deeply concerned that the government has advised that it does not support any of the committee's recommendations in relation to providing for the disallowance of instruments made under the Biosecurity Act as set out in the interim report of the committee's inquiry into the exemption of delegated legislation from parliamentary oversight. Of the 18 recommendations in the interim report, the committee regrets that the government only agreed to one.

1.20 The committee will continue to rigorously pursue this matter in accordance with the mandate provided by the Senate when it agreed to amend standing order 23 to allow the committee to consider exempt instruments and report on instruments made the Biosecurity Act which are exempt from disallowance.

1.21 In light of the above, the committee reiterates its view that amendments should be made to:

• section 44 of the Biosecurity Act to provide that any future determinations setting out entry requirements will be subject to disallowance;

• section 174 of the Biosecurity Act to provide that any future determinations of 'conditionally non-prohibited goods' that must not be brought into Australia unless specified considerations are complied with will be subject to disallowance;

• section 476 of the Biosecurity Act to provide that any future variations to extend a human biosecurity emergency period will be subject to disallowance; and

• section 477 of the Biosecurity Act to provide that any future determinations setting out emergency requirements will be subject to disallowance.

1.22 If the government is not amenable to moving such amendments, the committee intends to move its own amendments to the Biosecurity Amendment (Enhanced Risk Management) Bill 2021 which is currently before the Parliament, to ensure that future legislative instruments made under the Biosecurity Act are subject to disallowance.^[8]

Additionally, the committee will continue to draw legislative instruments made under the Biosecurity Act which are exempt from disallowance to the attention of the Senate in future Delegated Legislation Monitors, as necessary.

[2] Scrutiny principle: Senate standing order 23(3)(4A).

[3] Senate Standing Committee for the Scrutiny of Delegated Legislation, Delegated Legislation Monitor 14 of 2021, 29 September 2021, pp. 14–21. Accessible at: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Delegated_Legislation/Monitor.

[4] Senate Standing Committee for the Scrutiny of Delegated Legislation, Delegated Legislation Monitor 16 of 2021, 25 November 2021, pp. 3–10. Accessible at: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Delegated_Legislation/Monitor.

[5] Senate Standing Committee for the Scrutiny of Delegated Legislation, Delegated Legislation Monitor 1 of 2022, 25 January 2022, pp. 6–9. Accessible at: styles.xml https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Delegated_Legislation/Monitor.

[6] Senate Standing Committee for the Scrutiny of Delegated Legislation, Exemption of delegated legislation from parliamentary oversight: Interim Report, 2 December 2020. Accessible at: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Delegated_Legislation/Exemptfromoversight/Interim_report.

[7] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 1 of 2022, 4 February 2022, p. 80.

[8] The committee's proposed amendments to the bill were circulated in the Senate on 2 December 2021, see sheet 1475 available at: https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6776.

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Australian Senate Standing Committee for the Scrutiny of Delegated Legislation - Monitor