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Quarantine Act 1908
Compliance Agreement (Passengers Program – Disinsection)
Version 1.0
Standard Terms
[Insert name of Other Party]
[select ABN/ACN/ARBN] [insert number]
The Commonwealth of Australia
represented by the Director of Quarantine or his/her delegate
Compliance Agreement
Standard Terms
DATE [Insert date of signing]
PARTIES
[If the party is incorporated under, or is a registered body under, the Corporations Act 2001 (Cth):]
[Insert name of party]
[ABN/ACN/ARBN] [insert number] (the Other Party)
[If the party is a natural person:]
[Insert name of person] of
[insert address] (the Other Party)
The Commonwealth of Australia represented by a Director of Quarantine, or his or her delegate,
of 7 London Circuit, Canberra City ACT 2601 (the Commonwealth)
Purpose
A. Subsection 66B(1) of the Quarantine Act 1908 provides that:
A Director of Quarantine may, on behalf of the Commonwealth, enter into an agreement (a compliance agreement) with a person in connection with:
(a) the application of particular procedures in respect of goods; and
(b) the supervision, monitoring and testing of the person’s compliance with those procedures.
B. Regulation 23 of the Quarantine Regulations 2000 requires arrangements with a Director of Quarantine in relation to aircraft disinsection. Sub-regulation 23(1) provides that:
The commander of an overseas aircraft (or, if the commander is not the operator of the aircraft, the operator of the aircraft) must make arrangements for the disinsection of the aircraft in a manner, and within a time, approved by a Director of Quarantine.
Penalty: 50 penalty units.
C. Regulation 72 of the Quarantine Regulations 2000 sets out the matters that are prescribed for a compliance agreement. Sub-regulation 72(1) provides that:
For subsection 66B (2) of the Act, a compliance agreement must:
(a) describe the records that must be created, and the documents that must be kept, by the other party for:
(i) the procedures for goods mentioned in the agreement; and
(ii) supervising, monitoring, and testing the compliance with, those procedures by the other party; and
(b) describe the examinations or services that are to be conducted by the Commonwealth under the agreement to monitor and test compliance with the agreement by the other party, for which the Commonwealth will charge a fee; and
(c) require the other party:
(i) to keep records and documents mentioned in paragraph (a) at the premises where the procedures authorised by the agreement are conducted; or
(ii) to provide the records and documents to a quarantine officer on request by the officer within such time as is allowed under the agreement, subject to any other conditions set out in the agreement.
D. A compliance agreement assists the protection of Australia from the introduction, establishment or spread of diseases or pests that will or could cause significant damage to human beings, animals or plants, other aspects of the environment or economic activities.
E. This compliance agreement is concerned with the application of disinsection treatments to aircraft travelling to Australia.
F. Contravention of a requirement imposed under a compliance agreement is a serious matter and may constitute a criminal offence.
Note: Subsection 66B (7) of the Act provides:
(7) A party to a compliance agreement other than the Commonwealth is guilty of an offence if that party fails to ensure that any requirements imposed on that party under the agreement are complied with.
Maximum penalty: Imprisonment for 10 years.
G. The particular procedures covered by this agreement are specified in the Schedules to this agreement, which are listed in the Table of Schedules.
Note: (1) Section 66B (4) of the Act provides:
A quarantine officer may notify a party to a compliance agreement other than the Commonwealth in writing of procedures to which the agreement is to extend in addition to those specifically referred to in the agreement and, if such a notification is given, the agreement has effect as if those procedures were referred to in it.
(2) Fees may be payable under the Quarantine Act for services performed by AQIS in respect of or in connection with a compliance agreement.
Operative Provisions
1. SCOPE AND INTERPRETATION OF AGREEMENT
1.1 Scope of Agreement
This compliance agreement (Agreement) is comprised of the following documents as varied from time to time in accordance with this Agreement:
(a) these Standard Terms and any Annexures;
(b) each Schedule; and
(c) any document referred to in a Schedule.
1.2 Definitions
The following definitions apply in this Agreement, unless the contrary intention appears.
Act means the Quarantine Act 1908 (Cth) and includes all instruments made under it.
AQIS means the Australian Quarantine and Inspection Service, an operating division within the Australian Government Department of Agriculture, Fisheries and Forestry.
AQIS/MAFBNZ Schedule of Aircraft Disinsection Procedures means the joint document between AQIS and MAFBNZ for the regulation of disinsection arrangements of aircraft flying into Australia and New Zealand, as amended from time to time.
Director of Quarantine has the same meaning as in the Act and includes a person to whom a Director of Quarantine has delegated powers under section 66B of the Act.
MAFBNZ means the Ministry for Agriculture and Forestry Biosecurity New Zealand.
Notifiable Event means any of the following occurring for any reason:
(a) the commencement of any process of liquidation, winding-up, dissolution or bankruptcy of the Other Party, the commencement of any form of external administration of the Other Party’s affairs, or the making of any form of scheme of arrangement of the Other Party’s affairs;
(b) any assignment or other transfer, or cessation or material reduction, of those operations of the Other Party which include the procedures covered by this Agreement;
(c) any change in ownership or membership of the Other Party such that there is a change in any controlling interest in the Other Party; or
(d) any change in the senior management of the Other Party having responsibility for this Agreement.
Other Party means the non-Commonwealth party to this Agreement.
Pre-embarkation Disinsection Treatment means the disinsection treatment of an aircraft’s internal surfaces with a World Health Organization approved insecticide, undertaken prior to passengers boarding the aircraft. The treatment lasts for the duration of the single flight sector. Pre-embarkation disinsection treatment procedures are detailed in the AQIS/MAFBNZ Schedule of Aircraft Disinsection Procedures.
Quarantine Officer means a quarantine officer appointed under the Act.
Regulations mean the Quarantine Regulations 2000 (Cth).
Residual Disinsection Treatment means the periodic disinsection treatment of an aircraft’s internal surfaces, excluding food preparation areas, with a World Health Organization approved insecticide at intervals of not greater than eight weeks. Residual disinsection treatment procedures are detailed in the AQIS/MAFBNZ Schedule of Aircraft Disinsection Procedures.
Review Date means the date on which a Schedule ceases to operate (subject to earlier suspension or deletion) specified in that Schedule.
Note: Clause 8 of these Standard Terms sets out the effect of suspension, deletion or the Review Date of a Schedule.
Schedule means a schedule to this Agreement, as amended from time to time, that is specified in the Table of Schedules.
Standard Terms means this document.
Table of Schedules means the table set out in Annexure A that lists the Schedules current for the purposes of this Agreement from time to time.
Third Party means an entity other than the Other Party or the Commonwealth who performs Pre-embarkation or Residual Disinsection Treatments on behalf of the Other Party.
1.3 Interpretation
Headings are for convenience only, and do not affect interpretation. The following rules also apply in interpreting this Agreement, except where the context makes it clear that a rule is not intended to apply.
(a) A reference to:
(i) a legislative provision or legislation (including subordinate legislation) is to that provision or legislation as amended, re–enacted or replaced, and includes any subordinate legislation issued under it;
(ii) a document (including this document) or agreement, or a provision of a document (including this document) or agreement, is to that document, agreement or provision as amended, supplemented, replaced or novated;
(iii) a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator or successor in law of the person; and
(iv) anything (including a right, obligation or concept) includes each part of it.
(b) Where a word or phrase has a defined meaning in this Agreement, other grammatical forms of the word or phrase have a corresponding meaning.
(c) Words and phrases with a defined meaning in the Act have the same meaning in this Agreement.
(d) Words in the singular include the plural and words in the plural include the singular.
(e) A word which suggests one gender includes the other genders.
(f) If an example is given of anything (including a right, obligation or concept), such as by saying it includes something else, the example does not limit the scope of that thing.
1.4 Precedence of documents
In the event of inconsistency or ambiguity between:
(a) these Standard Terms and any other document forming part of this Agreement – these Standard Terms prevail; or
(b) a Schedule and any document referred to in a Schedule – the Schedule prevails.
2. OPERATION OF AGREEMENT
2.1 Commencement of Agreement
This Agreement comes into force on execution by both parties and shall operate until it ceases or is suspended or cancelled in accordance with its terms.
Note: Clauses 7 and 8 set out the circumstances in which this Agreement may be cancelled or suspended.
2.2 Agreement ceases if Schedules cease
If all Schedules to this Agreement have ceased to operate, other than due to suspension of a Schedule, this Agreement also ceases.
Note: Clauses 6 and 7 set out the circumstances in which a Schedule may be cancelled or suspended.
2.3 Interaction of Agreement with the Act
(a) This Agreement is made for the purpose of, and is not intended to have any operation other than in accordance with, section 66B of the Act.
(b) This Agreement is subject to the Act, and does not in any way limit the powers of Quarantine Officers or other officers under the Act, or waive or reduce any obligations of the Other Party to comply with requirements under the Act.
Note: The word ‘under’ in ‘under the Act’ has the same meaning as in section 5(1A) of the Act. For example, ‘under the Act’ includes regulations, proclamations, import permits, etc made under the Act.
2.4 Other Party does not have powers of the Commonwealth
Neither the Other Party nor any office-holder, employee, agent or contractor of the Other Party (including, without limitation, a Third Party) shall, by virtue of this Agreement, have any delegation or authority to exercise any statutory power or function or otherwise act on behalf of a Director of Quarantine or any other part of the Commonwealth of Australia.
3. REQUIREMENTS UNDER THIS AGREEMENT
Note: Section 66B (7) of the Act provides:
A party to a compliance agreement other than the Commonwealth is guilty of an offence if that party fails to ensure that any requirements imposed on that party under the agreement are complied with. Maximum penalty: Imprisonment for 10 years.
3.1 Compliance with Schedules
The Other Party must comply with these Standard Terms and the requirements specified in each Schedule.
3.2 Compliance by Other Party
The Other Party is required to ensure that its officers, employees, agents and contractors (including, without limitation, Third Parties) act consistently with, and ensure, the proper performance of the obligations of the Other Party under this Agreement and under the Act.
3.3 Requirement to notify Notifiable Events
(a) The Other Party is required to notify a Director of Quarantine upon the earlier of:
(i) a Notifiable Event occurring; or
(ii) the Other Party becoming aware that a Notifiable Event is proposed or likely to occur.
(b) The notification under clause 3.3(a) must include sufficient details of the Notifiable Event to enable the Commonwealth to understand the nature and scope of the Notifiable Event.
4. ASSIGNMENT AND SUBCONTRACTING
4.1 General prohibition on assignment
The Other Party must not assign any of its rights under this Agreement without obtaining the Commonwealth's prior written consent.
4.2 General prohibition on subcontracting
Except as allowed by this Agreement, the Other Party may not contract to any Third Party the performance of some or all of the requirements imposed under this Agreement.
Note: The Schedules sets out the circumstances in which the Other Party may subcontract under this Agreement.
4.3 Other Party's responsible for subcontractors
The Other Party is not relieved of its responsibility to meet the requirements of this Agreement because of any assignment or contracting by the Other Party of the performance of some or all of the rights or requirements imposed under this Agreement.
5. AUDITING AND MONITORING
5.1 Auditing and Monitoring of compliance with Agreement
The Commonwealth may monitor or audit the Other Party's, or any Third Party's, compliance with this Agreement, as set out in a Schedule.
5.2 Commonwealth monitoring does not relieve Other Party
The Other Party will not be relieved of its responsibility to meet the requirements imposed under this Agreement because of involvement by the Commonwealth or its representatives in monitoring or enforcing the performance of the requirements imposed under this Agreement.
6. VARIATION BY AGREEMENT
Note: Section 66B (3) of the Act provides:
A compliance agreement may provide that, in circumstances stated in the agreement, a Director of Quarantine may, by written notice given to a party to the agreement other than the Commonwealth, cancel or vary the agreement or suspend its operation for a period, or until the happening of an event, stated in the notice.
6.1 Variation of Standard Terms by agreement
The Standard Terms may be varied by agreement in writing between the Other Party and a Director of Quarantine.
6.2 Variation, Deletion or Suspension of a Schedule by agreement
(a) A Schedule may be added to this Agreement, deleted from this Agreement, suspended for a period or until the happening of a specified event, or otherwise varied, by agreement in writing between the Other Party and a Director of Quarantine.
(b) The Table of Schedules may be varied by agreement in writing between the Other Party and a Director of Quarantine.
6.3 When variation by agreement takes effect
(a) A variation under clause 6.1 or 6.2 takes effect from:
(i) the date specified in the written agreement between the Other Party and a Director of Quarantine; or
(ii) if no date is specified, from the date the variation is agreed by the Other Party and a Director of Quarantine.
(b) A suspension of a Schedule under clause 6.2(a) takes effect under clause 6.3(a) for a period or until the happening of a specified event set out in the written variation.
7. VARIATION, SUSPENSION OR CANCELLATION WITHOUT AGREEMENT
Note: Section 66B (3) of the Act provides:
A compliance agreement may provide that, in circumstances stated in the agreement, a Director of Quarantine may, by written notice given to a party to the agreement other than the Commonwealth, cancel or vary the agreement or suspend its operation for a period, or until the happening of an event, stated in the notice.
7.1 Variation of Agreement without agreement
A Director of Quarantine may in any of the circumstances set out in clause 7.3 and by written notice to the Other Party, vary this Agreement by:
(a) varying these Standard Terms, including the Table of Schedules;
(b) adding, deleting or varying a Schedule and making any consequent variation to the Table of Schedules; or
(c) suspending the operation of a Schedule for a period, or until the happening of an event, stated in the notice.
7.2 Suspension or cancellation of Agreement without agreement
A Director of Quarantine may, in any of the circumstances set out in clause 7.3 and by written notice to the Other Party:
(a) suspend the operation of this Agreement for a period, or until the happening of an event, stated in the notice; or
(b) cancel this Agreement from a date specified in the notice.
7.3 Circumstances in which variation, suspension or cancellation without agreement may occur
The powers to vary this Agreement under clause 7.1, or suspend or cancel this Agreement under clause 7.2, arise in any of the following circumstances:
(a) a Director of Quarantine has first provided the Other Party with prior notice and a reasonable opportunity in all the circumstances to consult with a Director of Quarantine on a variation, and a Director of Quarantine has taken into account any matters raised by the Other Party in respect of the variation; or
(b) subject to clause 7.4, a Director of Quarantine is satisfied on reasonable grounds that the Other Party failed to comply, or is likely to fail to comply, with any requirement imposed on the Other Party under this Agreement; or
(c) subject to clause 7.4, a Director of Quarantine is satisfied on reasonable grounds that the Other Party failed to comply, or is likely to fail to comply, with any requirement or obligation under the Act in relation to:
(i) this Agreement;
(ii) the goods or procedures covered by this Agreement; or
(iii) the supervision, monitoring and testing of the Other Party’s compliance with those procedures; or
Note: Section 70CA of the Act provides for offences where false or misleading statements are made in relation to compliance agreements.
(d) the Other Party fails to give consent to the entry of a Quarantine Officer to premises occupied or controlled by the Other Party, where a Director of Quarantine considers that:
(i) the entry is reasonably necessary for the purpose of the Quarantine Officer deciding whether to exercise a power under the Act or finding out whether the Act has been complied with; or
(ii) there are reasonable grounds for suspecting that there is, or may be, evidential material at the premises; or
Note: Division 2 of Part VIA of the Act deals with a Quarantine Officer’s powers to enter premises for the purpose of deciding whether to exercise powers under the Act or finding out whether the Act has been complied with. Division 3 of Part VIA of the Act deals with a Quarantine Officer’s powers to enter premises where there are reasonable grounds for suspecting that there may be evidential material on the premises. Division 6 of Part VIA specifies general rules about a Quarantine Officer’s powers in relation to premises.
(e) a Director of Quarantine is satisfied on reasonable grounds that the Other Party has impeded or prevented the lawful exercise of powers under the Act by a Quarantine Officer in relation to the supervision, monitoring, testing or enforcement of the Other Party’s compliance with this Agreement or the Act.
Note: Section 66AA of the Act specifies the general powers of Quarantine Officers in relation to premises. Other sections of the Act also specify powers of Quarantine Officers.
7.4 Variation, suspension or cancellation where failure capable of remedy or avoidance
If a Director of Quarantine considers that the Other Party can reasonably remedy or avoid a failure or likely failure referred to in clauses 7.3(b) or 7.3(c), a Director of Quarantine must not vary, suspend or cancel this Agreement under clause 7.1 or 7.2 unless:
(a) the Director of Quarantine has first given the Other Party a notice of the Director of Quarantine's intention to vary, suspend or cancel this Agreement unless the failure is remedied or the likely failure is avoided and setting out a timeframe for the Other Party to remedy or avoid the failure or likely failure; and
(b) the Director of Quarantine is not satisfied that the Other Party has remedied or avoided the failure or likely failure within the timeframe in the notice given under clause 7.4(b).
7.5 When variation, suspension or cancellation without agreement takes effect
A variation, suspension or cancellation under this clause 7 takes effect:
(a) on the date specified in the notice given by a Director of Quarantine; or
(b) if the notice does not specify a date, from the date that the notice was received by the Other Party.
Note: Clause 11.4 sets out when a notice will be deemed to have been received.
8. SUSPENSION OR CANCELLATION UPON REQUEST
Note: Section 66B (3) of the Act provides:
A compliance agreement may provide that, in circumstances stated in the agreement, a Director of Quarantine may, by written notice given to a party to the agreement other than the Commonwealth, cancel or vary the agreement or suspend its operation for a period, or until the happening of an event, stated in the notice.
8.1 Suspension upon Other Party's request
Following a notice from the Other Party requesting the suspension of this Agreement, a Director of Quarantine may (but is not obliged to), by written notice to the Other Party suspend the operation of this Agreement for a period, or until the happening of an event, stated in the Director of Quarantine's notice.
8.2 Cancellation upon Other Party's request
Following a notice from the Other Party requesting the cancellation of this Agreement, a Director of Quarantine will by written notice to the Other Party cancel this Agreement from a time specified in the Director of Quarantine's notice.
8.3 When suspension or cancellation by request takes effect
A variation or cancellation under this clause 8 takes effect:
(a) on the date specified in the notice given by a Director of Quarantine; or
(b) if the notice does not specify a date, from the date that the notice was received by the Other Party.
Note: Clause 11.4 sets out when a notice will be deemed to have been received.
9. EFFECT OF SUSPENSION, DELETION OR REVIEW DATE OF A SCHEDULE OR SUSPENSION OR CANCELLATION OF AGREEMENT
9.1 Other Party to cease applying Schedule
The Other Party must cease applying the procedures specified in a Schedule in respect of the goods covered by the Schedule:
(a) if the Schedule has been deleted under clause 6 or 7; or
(b) if the Schedule has been suspended under clause 6 or 7, for the period of suspension; or
(c) following the Review Date of the Schedule, subject to any directions issued under clause 9.2(a), unless the Schedule is renewed; or
(d) if this Agreement has been cancelled under clause 7 or 8; or
(e) if this Agreement has been suspended under clause 7 or 8, for the period of the suspension.
9.2 Other Party to comply with directions
During the following periods:
(a) a period of 14 days, or such other period as a Director of Quarantine specifies, following the Review Date for a Schedule; or
(b) the period between the giving of a notice, or the date of agreement, to:
(i) delete a Schedule under clause 6 or 7; or
(ii) cancel this Agreement under clause 7 or 8,
until the time the notice or agreement takes effect (if specified); or
(c) the period of operation of a notice, or agreement, to suspend:
(i) a Schedule under clause 6 or 7; or
(ii) this Agreement under clause 7 or 8,
the Other Party is required to comply with any written directions a Director of Quarantine notifies to the Other Party in relation to:
(d) the application of procedures in respect of goods under the Act; or
(e) quarantine in respect of goods covered by the affected Schedule; or
(f) the supervision, monitoring and testing of compliance with those procedures.
9.3 When Schedules cease to form part of Agreement
A Schedule ceases to form part of this Agreement upon the expiry of a period specified in clauses 9.2(a) or 9.2(b).
10. ACKNOWLEDGMENT REGARDING DISCLOSURE
(a) The Other Party acknowledges that the Commonwealth may use or disclose or may be required by law to use or disclose:
(i) this Agreement; and
(ii) information and documents created or obtained under this Agreement or the Act relating to this Agreement (which may include business information and/or personal information within the meaning of the Privacy Act 1988),
for lawful purposes directly related to the functions or activities of AQIS, including the enforcement of the Act.
(b) Without limiting clause 10(a), the Commonwealth's use may include disclosure to other Commonwealth agencies and State agencies assisting the Commonwealth to perform quarantine functions, and disclosure to Parliament or to Parliamentary inquiries.
11. NOTICES UNDER THIS AGREEMENT
11.1 Application of clause to notices
This clause applies to any notice to be given or any matter to be agreed between a Director of Quarantine and the Other Party for the purpose of this Agreement, except where the contrary intention appears.
11.2 Notice to be in writing
A notice must be in writing and signed by a Director of Quarantine or a representative of the Other Party authorised to sign the notice on behalf of the Other Party.
11.3 Addresses for notices
A notice must be given to one of the following addresses, or as notified by one of the parties to the other from time to time:
(a) where the notice is to be given to a Director of Quarantine:
Attention:
BSG/AQIS/National Program Manager - Passengers
Postal address:
GPO Box 858
Canberra ACT 2601
Physical address:
7 London Circuit
Canberra City ACT 2601
Telephone
(02) 6272 4143
Facsimile
(02) 6272 3468
(b) where the notice is to be given to the Other Party:
Attention: [insert name or position title]
Postal address: [insert postal address]
Physical address: [insert physical address]
Telephone [insert number]
Facsimile [insert number]
Email [insert address]
11.4 Manner and deemed time of delivering notices
A notice must be given by one of the following methods:
(a) delivered by hand to the physical address of the recipient — and is deemed to be given upon delivery;
(b) sent by pre-paid ordinary post within Australia to the postal address of the recipient — and is deemed to be given upon the expiration of 2 business days after the date on which it was sent;
(c) sent by facsimile message to the facsimile address of the recipient — and is deemed to be given upon receipt by the sender of an acknowledgment that the communication has been properly transmitted to the recipient; or
(d) sent by email to the email address of the recipient — and is deemed to be given:
(i) if it is transmitted by 5.00 pm on a Business Day – on that Business Day; or
(ii) if it is transmitted after 5.00 pm on the Business Day, or on a day that is not a Business Day – on the next Business Day.
11.5 Agreement between the parties
A matter to be agreed between a Director of Quarantine and the Other Party must be agreed in writing signed by a Director of Quarantine and a representative of the Other Party authorised to agree to the matter on behalf of the Other Party, and is taken to have been agreed when signed by a Director of Quarantine and the representative of the Other Party.
Annexure A
TABLE OF SCHEDULES
1. Schedules that apply to this Agreement
1.1 The Schedules that apply to this Agreement are set out in the following Table of Schedules
|
Schedule Version |
Schedule Name |
Period of Operation |
|
|---|---|---|---|
|
Version 1 |
Residual Disinsection Treatment of Aircraft Travelling to Australia |
Start Date: |
|
|
End Date: |
|
||
|
Review Date: |
|
||
|
Version 1 |
Pre-Embarkation Disinsection Treatment of Aircraft Travelling to Australia |
Start Date: |
|
|
End Date: |
|
||
|
Review Date: |
|
||
|
[insert number] |
[insert name] |
Start Date: |
|
|
End Date: |
|
||
|
Review Date: |
|
||
1.2 The parties agree to sign the end of each Schedule listed in the Table of Schedules and acknowledge that the Schedule forms part of this Agreement.
Execution
EXECUTED as a deed.
SIGNED, SEALED and DELIVERED by
Signature ___________________________Date:____________
Name _______________________________________
in his or her capacity as a Director of Quarantine, or his or her delegate under section 66B of the Quarantine Act 1908 on behalf of the Commonwealth of Australia in the presence of:
Signature of witness ___________________Date:____________________
Name of witness _______________________________________
EXECUTED for [insert name of party]
([ABN/ACN and insert number])(Other Party) by a director, manager or senior executive who:
(a) has responsibility for the business operations of the Other Party; and
(b) is authorised to enter into contracts for the Other Party.
Signature of officer ________________________Date:______________
Signature of director/secretary _______________________________________ Name ___________________________Date:____________
Name _______________________________________ Position of officer _______________________________________
12 Aug 2010