Various instruments made under the Biosecurity Act 2015-Exempt instruments raising significant scrutiny issues [2022] AUSStaCSDLM 5 (25 January 2022)

• Scrutiny concerns
• Exemption from disallowance3

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Various instruments made under the Biosecurity Act 2015

FRL No.	F2021L01462; F2021L01463; F2021L01484; F2021L01555; F2021L01572; F2021L01578; F2021L01586[1]
Purpose	Various purposes responding to the COVID-19 pandemic
Authorising legislation	Biosecurity Act 2015
Portfolio	Health
Source of exemption	Subsections 44(3), 51(4) and 477(2) of the Biosecurity Act 2015

Overview

1.1 Subsections 44(2), 51(2) and 477(1) of the Biosecurity Act 2015 (the Biosecurity Act) empower the minister to determine entry requirements, preventative biosecurity measures and emergency requirements during a human biosecurity emergency period, respectively. These seven instruments were made under the Biosecurity Act in response to the COVID-19 pandemic and introduce a range of measures, including specifying the requirements to travel in and out of Australian territories, and measures to prevent persons from entering or leaving designated remote areas in the Northern Territory.^[2]

1.2 These instruments are exempt from disallowance by subsections 44(3), 51(4) and 477(2) of the Biosecurity Act.

Scrutiny concerns

Exemption from disallowance^[3]

1.3 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^[4]and Delegated Legislation Monitor 16 of 2021.^[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]

1.4 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.

1.5 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.

1.6 These seven instruments made under the Biosecurity Act introduce significant measures which impact the public, including temporarily imposing stringent requirements to travel and restricting the movement of people in and out of certain remote communities in the Northern Territory, effectively 'locking down' identified areas. The justification provided for the exemption from disallowance remains the same for each instrument—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.^[7]

1.7 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.

1.8 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.

1.9 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.

1.10 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.

1.11 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.

1.12 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.

1.13 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 determinations setting out entry requirements in the future will be subject to disallowance;

• section 51 of the Biosecurity Act to provide that any determinations setting out preventative biosecurity measures in the future 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 determinations setting out emergency requirements in the future will be subject to disallowance.

1.14 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]

1.15 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.

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[1] Accessible on the Federal Register of Legislation at https://www.legislation.gov.au/.

[2] Biosecurity Legislation Amendment (Incoming International Flights) Determination 2021 [F2021L01462], Biosecurity (Human Coronavirus with Pandemic Potential) Amendment (No. 2) Determination 2021 [F2021L01463], Biosecurity (Entry Requirements—Human Coronavirus with Pandemic Potential) Determination 2021 [F2021L01484], Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Retail Outlets at International Airports) Repeal Determination 2021 [F2021L01555], Biosecurity (Emergency Requirements—Remote Communities) Determination 2021 [F2021L01572], Biosecurity (Emergency Requirements—Remote Communities) Amendment (No. 1) Determination 2021 [F2021L01578] and Biosecurity (Emergency Requirements—Remote Communities) Amendment (No. 2) Determination 2021 [F2021L01586].

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

[4] 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.

[5] 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.

[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] In addition, for the Biosecurity (Emergency Requirements—Remote Communities) Determination 2021 [F2021L01572] and the Biosecurity (Emergency Requirements—Remote Communities) Amendment (No. 1) Determination 2021 [F2021L01578], the justification for the exemption also indicates that the risk of disallowance is more significant as the 'remote communities are made up of Aboriginal and Torres Strait Islander peoples who are at a high risk of adverse human health outcomes as a result of exposure to a listed human disease'.

[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.