Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Incoming International Flights) Determination 2021

This instrument is the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Incoming International Flights) Determination 2021.

3 Authority

This instrument is made under subsection 477(1) of the Biosecurity Act 2015.

4 Definitions

Note: A number of expressions used in this instrument are defined in the Act, including the following:

(aa) Agriculture Department;

(a) Australian territory;

(b) landing place;

In this instrument:

Act means the Biosecurity Act 2015.

connecting traveller means a person who undertakes one or more connecting flights in order to undertake a relevant international flight.

Home Affairs Department means the Department administered by the Minister administering the Australian Border Force Act 2015.

Home Affairs SES employee means an SES employee in the Home Affairs Department.

NAAT test means a test that uses nucleic acid amplification technology as the testing method.

Note: For example, each of the following is a test that uses nucleic acid amplification technology as the testing method:

(a) polymerase chain reaction test;

(b) transcription mediated amplification test;

relevant international flight means a flight:

(a) that commences outside Australian territory and is intended to arrive at a landing place in Australian territory; and

(b) for which the scheduled departure time is at or after 12.01 am on 22 January 2021 in the place where the flight commences.

relevant official means any of the following:

(a) a biosecurity officer;

(b) a chief human biosecurity officer;

(d) an APS employee in the Agriculture Department;

(e) an APS employee in the Home Affairs Department.

suitable face mask or face covering means a face mask or face covering that meets the requirements of section 5.

5 Suitable face masks and face coverings

(1) This section sets out the requirements that a face mask or face covering must meet to be a suitable face mask or face covering.

(2) The face mask or face covering must be a medical or non‑medical face mask or face covering that:

(a) completely covers the wearer’s nose, mouth and chin without gaping; and

(b) can be secured to the wearer’s head with ties or ear loops.

(3) The face mask or face covering must:

(a) be made of multiple layers of tightly woven materials such as cotton or linen; or

(b) be made as follows:

(i) the portion of the face mask or face covering in front of the wearer’s lips must be made of transparent material that permits lip reading;

(ii) the rest of the face mask or face covering must be made of multiple layers of tightly woven materials such as cotton or linen;

(iii) there must be a tight seal between the transparent material and the rest of the face mask or face covering.

Part 2—Requirements relating to face masks or face coverings—passengers and crew

6 Requirement not to enter Australian territory

Passengers

(1) A person who is a passenger of an aircraft on a relevant international flight must not enter Australian territory at a landing place unless:

(a) the person wore a suitable face mask or face covering at all times during the flight period mentioned in subsection (3) and, if the person was a connecting traveller, at all times during the connecting period mentioned in subsection (4) for the person when the person was in close proximity to other persons, other than as follows:

(i) for the minimum time required to consume food, beverages or oral medication;

(ii) when the person was required by law to remove the face mask or face covering;

(iii) for a person assisting a person who is deaf or hearing‑impaired (the assisted person)—when communicating with the assisted person;

(iv) if, while the person was on an aircraft, the person in charge of the aircraft permitted the removal of face masks and face coverings for a period for operational reasons—during that period;

(v) if it was necessary to remove the face mask or face covering in an emergency (including a medical emergency) or to meet safety requirements; or

(b) an exemption set out in section 7 applies to the person; or

Person in charge and members of crew

(2) A person who is the person in charge, or a member of the crew, of an aircraft on a relevant international flight must not enter Australian territory at a landing place unless:

(i) for the minimum time required to consume food, beverages or oral medication;

(ii) when the person was required by law to remove the face mask or face covering;

(iii) when wearing the face mask or face covering would interfere with the carrying out of the person’s duties (for example when communicating with passengers, the person in charge or a member of the crew);

(iv) if, while the person was on an aircraft, the person in charge of the aircraft permitted the removal of face masks and face coverings for a period for operational reasons—during that period;

(v) if it was necessary to remove the face mask or face covering in an emergency (including a medical emergency) or to meet safety requirements; or

(b) an exemption set out in section 7 applies to the person; or

Flight period

(3) For the purposes of paragraphs (1)(a) and (2)(a), the flight period is the period that:

(a) began when the person boarded the aircraft; and

(b) ended when the person disembarked the aircraft.

Connecting period

(4) For the purposes of paragraphs (1)(a) and (2)(a), the connecting period for a person who was a connecting traveller is the period that:

(a) began:

(i) if the person boarded the person’s connecting flight (or, if the person undertook more than one connecting flight, the person’s first connecting flight) less than 72 hours before the scheduled departure time of the relevant international flight—when the person boarded the connecting flight (or the first connecting flight); and

(ii) if the person boarded the person’s connecting flight (or, if the person undertook more than one connecting flight, the person’s first connecting flight) 72 hours or more before the scheduled departure time of the relevant international flight—72 hours before the scheduled departure time of the relevant international flight; and

(b) ended when the person boarded the aircraft for the relevant international flight.

Note: A person who fails to comply with a requirement that applies to the person under this instrument may commit an offence (see section 479 of the Act). For generally available defences to offences, see Part 2.3 of the Criminal Code.

7 Exemptions—general

Persons with evidence of medical conditions

(1) An exemption from the condition in paragraph 6(1)(a) or (2)(a) (as applicable) applies to a person who is carrying evidence, provided by a medical practitioner, that the person has a medical condition that:

(a) prevents the person from wearing a suitable face mask or face covering; or

(b) would make wearing a suitable face mask or face covering difficult.

Persons under 12

(2) An exemption from the condition in paragraph 6(1)(a) applies to a person who was less than 12 years old on the day the relevant international flight was scheduled to commence.

8 Exemptions—exceptional circumstances

(1) In exceptional circumstances, a relevant official may grant an exemption from the condition in paragraph 6(1)(a) or (2)(a) (as applicable) to a person.

(2) For the purposes of subsection (1), exceptional circumstances are demonstrated by the person providing a compelling reason for not complying with the condition.

(3) An exemption made under subsection (1) must be in writing.

Part 3—Requirements relating to exposure—passengers and crew

9 Requirement not to enter Australian territory

A person who is a passenger, or the person in charge or a member of the crew, of an aircraft on a relevant international flight must not enter Australian territory at a landing place if, within 3 days before the day the flight was scheduled to commence, the person had been exposed, without adequate personal protective precautions, to a person who tested positive for the coronavirus known as COVID‑19 in that period, unless:

(a) the person was not aware, before the flight commenced, that the person had been so exposed; or

(aa) an exemption was granted under section 9A for the flight before the flight commenced; or

(ab) an exemption that applies to the person was granted under section 9B before the flight commenced; or

(b) an exemption was granted to the person under section 10 before the flight commenced; or

9A Exemptions for flights—exceptional circumstances

(1) In exceptional circumstances, the Director of Human Biosecurity, a chief human biosecurity officer, a human biosecurity officer or a Home Affairs SES employee may grant an exemption for the purposes of section 9 for a relevant international flight.

(2) An exemption under subsection (1) must be in writing.

9B Exemptions for classes of persons—exceptional circumstances

(1) In exceptional circumstances, the Director of Human Biosecurity may grant an exemption from the requirement in section 9 to a class of persons.

(2) An exemption under subsection (1) must be in writing.

10 Exemptions for individual persons—exceptional circumstances

(1) In exceptional circumstances, a relevant official may grant an exemption from the requirement in section 9 to a person.

(2) For the purposes of subsection (1), exceptional circumstances are demonstrated by the person providing a compelling reason for not complying with the requirement.

(3) An exemption made under subsection (1) must be in writing.

Part 4—Requirements relating to negative tests—passengers

11 Requirement not to enter Australian territory

(1) A person who is a passenger of an aircraft on a relevant international flight must not enter Australian territory at a landing place unless:

(a) the person had provided evidence mentioned in subsection (1A):

(i) before the person boarded the aircraft, if requested by a member of the aircraft operator’s staff; and

(ii) at the landing place, if requested by a relevant official; or

(b) an exemption set out in section 14 applies to the person; or

(d) an exemption granted under section 16 before the flight commenced applies to the person; or

(e) an exemption was granted under section 16A for the flight before the flight commenced; or

(f) the flight is an Australian Government facilitated flight.

(1A) For the purposes of paragraph (1)(a), the evidence is:

(a) evidence, in the form of the result of a test specified in subsection (4), that in the period mentioned in subsection (2) or (3) (as applicable) the person was tested for the coronavirus known as COVID‑19 and that the result of the test was negative; or

(b) evidence, in the form of a certificate provided by a medical practitioner that includes the matters specified in subsection (6), that:

(i) in the period mentioned in subsection (7), the person was tested for the coronavirus known as COVID‑19 using a rapid antigen test conducted in accordance with subsection (5); and

(ii) the result of the test was negative.

NAAT and other approved tests

(2) For the purposes of paragraph (1A)(a), the period for a person to whom an extension does not apply under section 12 is:

(a) for a person who was not a connecting traveller—the period of 3 days before the day the relevant international flight was scheduled to commence; and

(b) for a person who was a connecting traveller—the period of 3 days before the day the person’s connecting flight (or, if the person undertook more than one connecting flight, the person’s first connecting flight) was scheduled to commence.

(3) For the purposes of paragraph (1A)(a), the period for a person to whom an extension applies under section 12 is the period specified in the extension.

(4) For the purposes of paragraph (1A)(a), the following tests are specified:

(a) a NAAT test;

(b) a test approved under section 13 for a country or region, if:

(i) the person was in the country or region in the period mentioned in subsection (2) or (3) (as applicable); and

(ii) the approval was in force at the beginning of that period.

Rapid antigen tests

(5) For the purposes of subparagraph (1A)(b)(i), a rapid antigen test is conducted in accordance with this subsection if the specimen for the test is collected, and the test is carried out, by or under the supervision of a medical practitioner.

(6) For the purposes of paragraph (1A)(b), the following matters are specified for a certificate for a rapid antigen test:

(a) the date and time of the test;

(b) the name of the person tested;

(d) the brand and make of the test;

(e) that the specimen for the test was collected, and the test was carried out, by or under the supervision of a medical practitioner;

(f) the result of the test;

(g) the signature of the medical practitioner providing the certificate.

(7) For the purposes of subparagraph (1A)(b)(i), the period is:

(a) for a person who is not a connecting traveller—the period of 24 hours before the scheduled departure time for the relevant international flight; and

(b) for a person who is a connecting traveller—the period of 24 hours before the scheduled departure time for the person’s connecting flight (or, if the person undertook more than one connecting flight, the person’s first connecting flight).

12 Extension of period for testing for classes of persons

(1) The Director of Human Biosecurity may extend the period for being tested as mentioned in paragraph 11(1A)(a) for a class of persons if it is not reasonably practicable for that class of persons to be tested and receive test results within a period of 3 days.

(2) An extension made under subsection (1) must be in writing.

13 Approval of tests other than NAAT tests for countries or regions

(1) The Director of Human Biosecurity may approve a kind of test for the coronavirus known as COVID‑19 for a country or region if a NAAT test is not reasonably available in the country or region.

(2) An approval made under subsection (1) must be in writing.

14 Exemptions for individual persons—general

(1) An exemption from the condition in paragraph 11(1)(a) applies to the following:

(a) a person who was less than 5 years old on the day the relevant international flight was scheduled to commence;

(b) a person who is carrying evidence, provided by a medical practitioner within 30 days before the day the relevant international flight was scheduled to commence, that the person has a medical condition that prevents the person from taking a test for the coronavirus known as COVID‑19;

(c) a person who is carrying a certificate, provided by a medical practitioner within 30 days before the day the relevant international flight was scheduled to commence, that includes the matters mentioned in subsection (2);

(d) a person:

(i) who is a passenger of an aircraft on a relevant international flight that is an emergency medical evacuation flight; and

(ii) who meets the requirement mentioned in subsection (3);

(e) a person:

(i) who is a passenger of an aircraft on a relevant international flight that is an emergency medical evacuation flight; and

(ii) who is accompanying and supporting a person (the patient) mentioned in paragraph (d) because of the patient’s medical condition.

Certificate for recovered persons

(2) For the purposes of paragraph (1)(c), the matters are the following:

(a) the day the certificate is provided;

(b) a statement to the effect that the person has had the coronavirus known as COVID‑19 but is now recovered and is not considered to be infectious;

(c) the day when there was first a positive result of a NAAT test or a rapid antigen test for the coronavirus known as COVID‑19 for the person;

(d) a statement to the effect that, on the day the certificate is provided:

(i) it has been at least 7 days since the day mentioned in paragraph (c) of this subsection; and

(ii) if the person had symptoms of the coronavirus known as COVID‑19—the person has not had a fever, or respiratory symptoms of the coronavirus known as COVID‑19, in the last 72 hours.

Emergency medical evacuation flights

(3) For the purposes of subparagraph (1)(d)(ii), the requirement is that the person (or a person accompanying and supporting the person as mentioned in paragraph (1)(e)) is carrying evidence, provided by a medical practitioner, that:

(a) the person has a serious medical condition; and

(b) the person requires emergency management or an effective treatment of the medical condition that:

(i) is available in Australian territory; and

(ii) was not reasonably available, in time to benefit the person, in the country where the relevant international flight commenced; and

(iii) if the person is a connecting traveller—was not reasonably available, in time to benefit the person, in the country where the person’s connecting flight commenced (or, if the person undertook more than one connecting flight, any of the countries where the connecting flights commenced); and

(c) the lack of the management or treatment mentioned in paragraph (b) of this subsection caused an immediate exacerbation of the person’s medical condition and the need for the person to enter Australian territory within 48 hours.

15 Exemptions for individual persons—exceptional circumstances

(1) In exceptional circumstances, a relevant official may grant an exemption from the condition in paragraph 11(1)(a) to a person.

(2) For the purposes of subsection (1), exceptional circumstances are demonstrated by the person providing a compelling reason for not complying with the condition.

(3) An exemption made under subsection (1) must be in writing.

16 Exemptions for classes of persons—testing not available

(1) The Director of Human Biosecurity may grant an exemption from the condition in paragraph 11(1)(a) to a class of persons if no test for the coronavirus known as COVID‑19 is reasonably available to that class of persons.

(2) An exemption made under subsection (1) must be in writing.

16A Exemptions for flights—exceptional circumstances

(2) An exemption under subsection (1) must be in writing.

Part 5—Requirements for aircraft operators

17 Requirement not to land in Australian territory

The operator of an aircraft on a relevant international flight must ensure that the aircraft does not land at a landing place in Australian territory unless the operator took all reasonably practicable steps to ensure that:

(a) each person on the aircraft, not covered by an exemption mentioned in paragraph 6(1)(b) or (c) or (2)(b) or (c) (as applicable), complied with the condition in paragraph 6(1)(a) or (2)(a) (as applicable) for the flight; and

(b) unless the flight is an Australian Government facilitated flight—each passenger on the aircraft, not covered by an exemption mentioned in paragraph 11(1)(b), (c), (d) or (e), had, before boarding the aircraft, provided evidence as mentioned in paragraph 11(1)(a) if requested to do so by a member of the aircraft operator’s staff.

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

Endnote 2—Abbreviation key

ad = added or inserted	o = order(s)
am = amended	Ord = Ordinance
amdt = amendment	orig = original
c = clause(s)	par = paragraph(s)/subparagraph(s)
C[x] = Compilation No. x	/sub‑subparagraph(s)
Ch = Chapter(s)	pres = present
def = definition(s)	prev = previous
Dict = Dictionary	(prev…) = previously
disallowed = disallowed by Parliament	Pt = Part(s)
Div = Division(s)	r = regulation(s)/rule(s)
ed = editorial change	reloc = relocated
exp = expires/expired or ceases/ceased to have	renum = renumbered
effect	rep = repealed
F = Federal Register of Legislation	rs = repealed and substituted
gaz = gazette	s = section(s)/subsection(s)
LA = Legislation Act 2003	Sch = Schedule(s)
LIA = Legislative Instruments Act 2003	Sdiv = Subdivision(s)
(md) = misdescribed amendment can be given	SLI = Select Legislative Instrument
effect	SR = Statutory Rules
(md not incorp) = misdescribed amendment	Sub‑Ch = Sub‑Chapter(s)
cannot be given effect	SubPt = Subpart(s)
mod = modified/modification	underlining = whole or part not
No. = Number(s)	commenced or to be commenced

Endnote 3—Legislation history

Name	Registration	Commencement	Application, saving and transitional provisions
Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Incoming International Flights) Determination 2021	21 Jan 2021 (F2021L00061)	5.19 pm (A.C.T.) 21 Jan 2021 (s 2(1) item 1)
Biosecurity Legislation Amendment (Incoming International Flights) Determination 2021	27 Oct 2021 (F2021L01462)	Sch 1 (items 1–8): 28 Oct 2021 (s 2(1) item 1)	—
Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Incoming International Flights) Amendment (No. 1) Determination 2022	21 Jan 2022 (F2022L00060)	1 am (A.C.T.) 23 Jan 2022 (s 2(1) item 1)	—
Biosecurity Legislation Amendment (Emergency and Entry Requirements) Determination 2022	23 Feb 2022 (F2022L00177)	Sch 1 (item 4): 24 Feb 2022 (s 2(1) item 1)	—

Endnote 4—Amendment history

Provision affected	How affected
Part 1
s 2.....................	rep LA s 48D
s 4.....................	am F2022L00060
Part 3
s 9.....................	am F2021L01462; F2022L00060
s 9A....................	ad F2022L00060
s 9B....................	ad F2022L00060
s 10....................	am F2022L00060
Part 4
s 11....................	am F2021L01462; F2022L00060
s 12....................	am F2021L01462; F2022L00060
s 13....................	am F2022L00060
s 14....................	am F2021L01462; F2022L00060; F2022L00177
s 15....................	am F2022L00060
s 16....................	am F2022L00060
s 16A...................	ad F2022L00060
Part 5
s 17....................	am F2022L00060