Bills Digest No. 154 2003-04
Customs
Legislation Amendment (Airport, Port and Cargo Security) Bill
2004
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Customs Legislation
Amendment (Airport, Port and Cargo Security) Bill
2004
Date Introduced: 27 May 2004
House: House of
Representatives
Portfolio: Justice and Customs
Commencement: The formal provisions (sections 1 to 4) commence on
Royal Assent. Other provisions commence on various dates as set out
in the table contained in clause 2 of the Bill and discussed in
the Main Provisions section of this Digest.
The Bill amends the Customs
Act 1901 (Cwlth) ( the Customs Act ) to permit officers of the
Australian Customs Service ( Customs ) to detain persons for the
purposes of law enforcement cooperation (Schedule
1); to permit Customs officers to question passengers and
persons found in restricted places (Schedule 2);
and to stop a conveyance (defined in section 183UA of the Customs
Act as an aircraft, railway rolling stock, vehicle or vessel of any
kind ) (Schedule 4). The Bill also inserts
reporting requirements in relation to information about persons
departing Australia by ship or aircraft (Schedule
3). Further, it amends the Customs Act to refer to the
Maritime Transport Security Act 2003 ( the Maritime
Transport Security Act ) in relation to the appointment of a port
(Schedule 5) and to insert reporting deadlines in
relation to Customs international trade modernisation program
(Schedule 6).(1)
In large part, the measures contained in the Bill complement or
amend existing provisions in the Customs Act.
Airport, port and cargo security form part of the Government s
platform on national security and border control. The platform
crosses many portfolios, including Attorney-General s, immigration,
customs, defence and foreign affairs. It has been the recent
subject of various pieces of legislation, including the Maritime
Transport Security Act and the Aviation Transport Security Act
2004. While those Acts have a broad-ranging application, the
amendments contained in the present Bill are directed specifically
to Customs border security functions. In this regard, the
Government is mindful of the need to find a suitable balance
between measures which support Australia s border security and the
needs of legitimate travellers and commerce .(2)
On 11 May 2004, referring to the allocation of an extra $107.6
million in the 2004-05 Budget to Customs, the Minister for Justice
and Customs said:
Border protection remains vital in the protection
of Australia against drugs, disease, illegal arrivals and other
threats, and the Government will continue to allocate suitable
resources to this crucial task.(3)
Specifically, the Minister referred to three key operational
areas which are the subject of government funding, namely:
-
illegal fishing activities in the Southern Ocean (funding of
$84.2 million over two years)
-
the ability of Customs officers to board up to 80 per cent of
all vessels at their first port of call in Australia ($2.8 million
in 2004-05), and
-
better border protection through biometrics ($3.1 million in
2004-05).(4)
Such funding is part of the package known as Investing in
Australia s Security (worth $754.5 million over the five years from
2003-04). It supplements funding allocated to Customs in previous
budgets (particularly the package known as A Safer Australia in the
2003-04 Budget).(5)
Notably, the Bill does not appear to deal with the three key
operational areas listed above although measures contained in the
Bill may indirectly affect those areas. The Bill also does not deal
with new air cargo scanning technology (due to be trialled at
Brisbane Airport in early 2005).(6) Further, the Bill
does not deal with border security measures which fall within the
portfolio of other government departments, such as transport
security measures at regional airports which fall within the
bailiwick of the Minister for Transport and Regional
Services.(7)
There has been limited press commentary on the Bill. It was
mentioned in the Australian Associated Press Financial News Wire on
27 May 2004 (the day the Bill was introduced in the House of
Representatives), but the report only summarises the contents of
the Bill and comments made by the Attorney-General in the Second
Reading Speech.(8)
While the ALP has not commented directly on the Bill, it has
recently criticised the level of government funding for Customs. In
a news statement issued on 22 March 2004, Senator Mark Bishop, the
Shadow Minister for Veterans Affairs and the Shadow Minister for
Customs, noted the blowout in expenditure on a computer system and
staff cuts at Customs, saying:
Customs remains crippled and unable to play its
part in the rediscovery of shipping and port security as
fundamental elements in the war against terror.
Customs remains the poor cousin when it comes to
its role in maritime security.(9)
In a news statement issued on 12 May 2004 (following the
announcement of the Budget 2004-05), Senator Bishop again referred
to Customs as the poor cousin in the security network . He referred
to budget measures such as expenditure on facial recognition
technology and increased ship inspections as marginal and having
little effect on the need for improved border security . While
welcoming the new airport scanning equipment, Senator Bishop said
that it is only another piecemeal investment which misses the bulk
of the security risk which is at Australia s sea ports . He went on
to say:
Australia s ports remain wide open to exploitation
by international criminals. Less than 5% of loaded containers are
inspected, and almost a million empties avoid scrutiny
completely.(10)
On 25 May 2004, Senator Bishop issued a further news statement
in which he again drew attention to the cost of Customs new
computer system. He also stated that Customs staff are struggling
to meet their responsibilities , saying:
Inability to meet obligations at airport, for ship
inspections, and freight examination are the source of continuing
complaints from staff.(11)
Neither the Australian Democrats nor the Greens have commented
on the Bill.
Schedule 1 commences on the day after the Act
receives Royal Assent.
Item 1 of Schedule 1 inserts proposed
Division 1BA into Part XII of the Customs Act. Part XII
deals with powers of Customs officers. Proposed Division 1BA deals
with the detention and search of persons for the purposes of law
enforcement co-operation. It comprises nine proposed sections, as
discussed below. Some provisions are similar to the general
detention and search powers currently contained in the Customs Act,
whereas others are different. It is unclear whether the proposed
provisions are intended to cover the field of the detention of
persons by Customs officers for the purposes of law enforcement
co-operation, or whether existing detention and search powers in
the Customs Act will have some effect on the detention of persons
for the purposes of law enforcement too.
Proposed section 219ZJA inserts definitions of
the terms Commonwealth offence , frisk search , ordinary search and
serious Commonwealth offence by cross-reference to definitions of
those terms in the Customs Act (namely Division 1 of Part XII,
particularly section 183UA) and of the Crimes Act 1914
(section 15HB and Part 1C Investigation of Commonwealth offences).
None of the definitions seems controversial.
A frisk search essentially involves running the hands over the
person s outer garments and examining anything worn or carried by
the person that is conveniently and voluntarily removed.
An ordinary search is slightly wider, permitting the officer
conducting the search to require the person to remove
outer garments (coat/jacket, hat, shoes and gloves) for
examination.
Proposed section 219ZJB permits a Customs
officer to detain a person who is in a designated place and whom
the officer suspects on reasonable grounds has committed, or is
committing, a serious Commonwealth offence . Currently, under the
general detention provisions of the Customs Act, only a class of
Customs officers declared by the CEO of Customs may detain a
suspect: section 219ZA.
Under proposed section 219ZJB, the officer must
advise a police officer about the detention as soon as practicable
and deliver the detainee into the custody of the police officer as
soon as practicable . The Customs officer must release the detainee
if the officer ceases to have reasonable grounds to suspect that
the person has committed or was committing the offence.
The term designated place is defined in section 4
of the Customs Act by reference to other provisions in that Act. In
short, it means a port, airport, wharf or boarding station which
the CEO of Customs has appointed and/or delineated and accordingly
to which the Customs Act applies. It includes places used by
officers for holding or questioning passengers and for examining
passengers baggage: subsection 234AA(1).
Proposed section 219ZJC permits a Customs
officer to detain a person who is in a designated place if there is
a warrant for the arrest of the person in relation to a
Commonwealth offence or if the person is on bail for a Commonwealth
offence and the bail is subject to the condition that the person
not leave Australia. The officer must advise a police officer about
the detention as soon as practicable and deliver the detainee into
the custody of the police officer as soon as practicable .
There is no similar provision in the general detention and
search powers of the Customs Act.
Proposed section 219ZJD permits a Customs
officer to conduct a frisk search or an ordinary search of the
person, his or her clothing and any property in the person s
immediate control. The purpose of the search must be to determine
if the person has concealed a weapon or other thing capable of
being used to inflict bodily injury or to assist the person to
escape from detention on his or her person or in the person s
clothing or property. Alternatively, if the person has been
detained under proposed section 219ZJB, the
purpose of the detention must be to prevent the concealment, loss
or destruction of evidence of, or relating to, the offence
concerned . The provision is similar to section 18B of the
Australian Protective Service Act 1987 which permits
protective service officers to stop and search persons.
The provision also stipulates that the search
must be conducted as soon as practicable after the person is
detained and by an officer of the same sex as the detainee. If the
officer seizes an item during the search, the officer must deliver
it to the police officer when delivering the detained person.
Current sections 219L and 219M of the Customs Act
provide for the frisk search and detention of persons suspected of
carrying prohibited goods. Subsection 219M(2) provides that the
detainee has a right to have the frisk search conducted in a place
which provides adequate personal privacy to the detainee.
Proposed section 219ZB does not contain any
similar right.
Sections 219Q and 219R provide for the detention and
external search of a person who refuses to submit to a
frisk search under section 219L or refuses to produce a thing found
in the frisk search. An external search is defined in section 4 of
the Customs Act to mean a search of the body of, and of anything
worn by, the person to determine if the person is carrying any
prohibited goods and to recover any such goods. It does not include
an internal examination of the person s body. In some circumstances
a court order is required to enable the search to occur (such as
where the detainee is a child or a person under a disability). If
required for the protection of the detainee, the detainee s legal
guardian or a person capable of representing the detainee s
interests in relation to the search must be present: subsection
219R(5). There are no such rights or protections in
proposed Division 1BA, but that may be of little
consequence, given that proposed section 219ZJD
permits only a frisk or ordinary search to occur, not an
external search of the body (when the person may be
required to remove all of their clothing).
Further, it is unclear whether existing sections 219Q and 219R
would apply to a person who refuses to submit to a frisk or
ordinary search under proposed section 219ZJD
(that is, the person might be subjected to an external search).
However, the reference in section 219R to the person being
detained under sections 219P and 219L would suggest that it does
not apply to proposed section 219ZJD.
It is also not clear if a Customs officer may use reasonable and
necessary force to frisk search a person who refuses to submit to
the search: see the wording of proposed section
219ZJG(1).
Proposed section 219ZJE permits the CEO of
Customs to give written directions identifying places where an
officer may detain a person under proposed Division
1BA and specifying such other matters relating to the
detention of person under this Division as the CEO considers
appropriate . Such a direction is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act
1901 it must be tabled in both Houses of Parliament within 15
days of the giving of the direction.
Proposed section 219ZJF provides that an
officer must tell the detained person the reason for the detention,
unless the person s own actions make it impracticable for the
officer to inform the person of the reason. The officer must
produce identification if the person requests.
The provision is similar to section 219M, which provides for a
person detained under the general detention provisions to be
informed about the reason for the frisk search. If a person is to
be subjected to an external search, subsection 219R(7) provides
that the person has a right to communicate with another person, but
subsection 219R(8) provides that a Customs officer or a police
officer may stop such communication if the officer believes on
reasonable grounds that it should be stopped in order to safeguard
the processes of law enforcement or protect the life and safety of
any person . Thus, a person has a limited right to contact a lawyer
under section 219R. There is no such right to communicate in
proposed Division 1B, but again that may be of
little consequence given that the person is to be subjected only to
a frisk or ordinary search and not an external [body] search. The
significance of a right to communicate with a lawyer may depend on
the circumstances of any particular case.
The provision is also similar to section 219ZC, which provides
that if a Customs officer or a police officer exercises the general
detention and search powers under Division 1B, then the officer
must produce personal identification of being an officer when
requested by the detainee to do so.
Proposed section 219ZJG provides that in
exercising powers under proposed
Division 1BA, an officer must not use more force, or
subject the person to greater indignity than is reasonable and
necessary. Particularly, the officer may not do an act likely to
cause death or grievous bodily harm to the person unless that act
is necessary to protect life or prevent serious injury to the
officer or another person.
There are similar provisions in the Customs Act about the use of
force: see sections 219NA and 219ZC. However, no existing
provision refers to death or grievous bodily harm.
Proposed section 219ZJH provides that if the
detainee is moved during the period of detention and later
released, the person must be returned free of charge to the place
of first detention. It is almost identical to subsection 219ZE(3),
which relates to detention generally.
Proposed section 219ZJI provides that section
219ZD of the Customs Act applies to detentions under
proposed Division 1BA. Section 219ZD provides that
if the detainee is unable to communicate fluently in English, an
officer must take reasonable steps to ensure that a competent
person is present to act as interpreter.
Schedule 2 commences 28 days after the Act
receives Royal Assent, unless item 1 of Schedule 3
commences first (in which case items 2 and 4 of Schedule
2 will not commence at all) and/or on the same day (in
which case items 3 and 5 of Schedule 2 will not
commence at all).
Item 1 of Schedule 2 inserts proposed
section 195A into the Customs Act. It empowers a Customs
officer to ask a person in a restricted area for the person s name,
the person s reason for being in the area, and evidence of the
person s identity. (A place is a restricted area if it is specified
under section 234AA as a place used by officers for holding or
questioning passengers and for examining passengers baggage; the
place may be signposted.) Proposed section 195A is
not an offence provision, although by virtue of item
4, failing to answer a question or produce a document may
be an offence under proposed subsection 243SA(3).
Section 243SA sets out the offence of failing to answer questions
punishable by up to 30 penalty units (or $3300); section 243SB sets
out the offence of failing to produce documents punishable by up to
30 penalty units. Self-incrimination, however, is a defence to
these offences: section 243SC.
Proposed subsection 243SA(3) also ensures
minimal safeguards against misuse of the offence provisions by
requiring the officer to inform the person of the officer s
authority to ask the question and by requiring the officer to
inform the person that it may be an offence not to answer the
question: item 4 or 5 of Schedule 2 (depending on
whether Schedule 2 or 3 to the Bill commences first).
Proposed section 195A is similar to
section 18A of the Australian Protective Service Act
1987, which empowers protective service officers to question
persons.
Items 2-5 amend existing section 243SA to
include reference to proposed section
195A.(12)
Subclause 4(1) of the Bill provides that the
amendments set out in Schedule 3 do not apply to a
ship or aircraft if that vessel is due to depart within 72 hours
(or less) of the commencement of the amendments (the date is to be
fixed by proclamation).
Item 1 inserts proposed Part VB
Information about persons departing
Australia into the Customs Act. Proposed
sections 106A-106I stipulate that operators of specified
ships or aircraft must provide certain information, including
information about the persons who are expected to depart Australia
on the ship or aircraft. Such reports about departing persons are
not required under the current law. The amendments require certain
information to be provided 48 hours before departure and other
information 4 hours before departure. It is an offence for an
operator not to provide the information sought. The offence is a
strict liability offence, which means that the prosecution need not
prove a fault element (that is, it need not prove intention,
knowledge, recklessness or negligence) although defences are
available to a defendant.
It is not clear what information the operators are to provide,
nor how they are to obtain the information. It is also not clear
how the operators are to use the information, nor how Customs may
use the information. It is therefore not clear if the Bill conforms
with the National Privacy Principles (set out in Schedule 3 to the
Privacy Act 1988 and applicable to the private sector
since 21 December 2001) or the Information Privacy
Principles (which apply to Commonwealth and ACT government
departments and agencies). (See the Concluding
Comments section to this Digest for further
discussion.)
Proposed Part VB specifies how the information
is to be provided to Customs (in the first instance,
electronically). It also permits a Customs officer to question an
operator about the persons on board the vessel and to request the
operator to produce documents relating to those persons
(proposed section 106J).
Item 1 commences on a single day to be fixed by
Proclamation. If that day is more than six months after the Act
receives Royal Assent, then item 1 commences six
months and one day after the date of Royal Assent.
Item 2 amends paragraph 118(4)(a) of the
Customs Act, but subsection 118(4) does not presently appear
in any consolidation of the Customs Act. It is, however, contained
in the item 62 of Schedule 3 of the Customs Legislation
Amendment and Repeal (International Trade Modernisation) Act
2001 ( the Trade Modernisation Act ) and is therefore not due
to commence until 21 July 2004. (13)
Subsection 118(4) provides as follows:
The master and the owner of a ship, or the pilot
and the owner of an aircraft, that is at a port, airport or other
place in Australia must:
(a) severally answer questions asked by an officer
relating to the ship or aircraft and its cargo, crew, passengers,
stores and voyage; and
(b) severally produce documents requested by an
officer that relate to the ship or aircraft and its cargo; and
(c) comply with such requirements (if any) as are
prescribed by the regulations.
Item 2 seeks to remove the words crew,
passengers from paragraph 118(4)(a), because if proposed
Part VB of the Customs Act is enacted, these words will be
redundant (see item 1 of Schedule 3 to the present
Bill).
Similarly, item 3 omits the words crew,
passengers from paragraph 119(1)(b) of the Customs Act, because if
proposed Part VB is enacted, these words will be
redundant. Section 119 deals with the requirements for obtaining a
certificate of clearance. If item 62 of Schedule 3 to the Trade
Modernisation Act commences before, or at the same time as,
item 1 of Schedule 3 to the present Bill (being
proposed sections 106A-106J), then this item will
not commence at all. This is because section 119 has been reworded
in the Trade Modernisation Act to deal with the communication of
outward manifest to Customs and only refers to goods and not
people. (The term outward manifest is not really defined in the
Customs Act. It refers to the notification which ship or aircraft
masters or operators are required to provide to Customs concerning
the export of goods on board the vessel.) Further, proposed
sections 106A-106J contain far more detailed reporting
requirements in relation to passengers and crew than those
currently contained in section 119 (as it currently operates).
Items 4 and 5 of Schedule 3 to the present Bill
amend the offence in subsection 243SA(1) by inserting reference to
proposed section 106J to ensure that it is an
offence for the operator of a ship or aircraft to fail to answer
questions about persons departing Australia on board the vessel or
to produce documents relating to those persons. As mentioned
earlier in the context of items 2 and 3 of Schedule 2 to the Bill,
the proposed amendments are expressed in slightly different ways
depending on the outcome and commencement of other proposed
amendments to the provision. Item 4 operates on
the premise that subsection 243SA(1) appears in its present,
operational form.
Item 6 amends existing section 243SA by
inserting proposed subsection 243SA(3), making it
an offence for operators to fail to answer questions from Customs
officers under proposed section 106J about persons
on board the ship or aircraft. As mentioned earlier,
proposed subsection 243SA(3) also ensures minimal
safeguards against misuse of the offence provisions by requiring
the officer to inform the person of the officer s authority to ask
the question and by requiring the officer to inform the person that
it may be an offence not to answer the question.
Item 6 commences on a single day to be fixed by
Proclamation. If that day is more than six months after the Act
receives Royal Assent, then item 6 commences six
months and one day after the date of Royal Assent. That said,
item 6 only commences if item 4 of
Schedule 2 to the present Bill is not in operation. If
item 6 does not commence, item 7
makes the same amendment to section 243SA, by including reference
to both proposed sections 195A and 106J in
subsection 243SA(3).
Items 1-3 of Schedule 4 amend section 197 of
the Customs Act, which deals with the power to stop a conveyance
about to leave a Customs place. The amendments replace the words
about to leave [the Customs place] with the more expansive
expression in [the Customs place]. It is not, however, clear why
the heading to the section is not the subject of amendment (to
reflect the change from about to leave to in ).
These amendments seem to extend the power of a Customs officer
to stop a conveyance and ask questions. They mean that the officer
may stop a conveyance as it enters the Customs place or remains at
the Customs place. The officer need not wait until the conveyance
is about to leave the Customs place in order to ask questions
and/or inspect documents and goods.
Schedule 4 commences 28 days after the Act
receives Royal Assent.
Subclause 4(2) of the Bill provides that the
amendment made by Schedule 5 does not affect the
validity of any appointment made before the commencement of
Schedule 5. According to the table contained in clause
2 of the Bill, Schedule 5 commences on
the day after this Act receives the Royal Assent .
Item 1 of Schedule 5 amends section 15 of the
Customs Act, which deals with the appointment of ports by the CEO
of Customs. Item 1 inserts proposed
subsection 15(1A) to provide that in deciding whether
to appoint a port under subsection 15(1), the CEO may take into
account whether the port (or part thereof) is a security regulated
port within the meaning of the Maritime Transport Security Act. A
security regulated port comprises an area of a port which the
Secretary of the Department of Transport has, by notice published
in the Gazette, [declared as being] intended for use
either wholly or partly in connection with the movement, loading,
unloading, maintenance or provisioning of security regulated ships
: subsection 13(1) of the Maritime Transport Security Act.
The CEO may also take account of whether the person designated
under that Act as the port operator has a maritime security
plan.
These amendments recognise the complementary, regulatory role
played by the Department of Transport and associated maritime and
shipping industries.
Part 1 of Schedule 6 deals with provisions of
the Customs Act which are of effect pending the operation of the
international trade modernisation program. Currently, ship
operators are required to provide various reports about cargo and
persons on board the ship if the ship is arriving in Australia from
an international port. If the journey from the last port outside
Australia is likely to take more than 48 hours, the report is
required 48 hours before the ship arrives in Australia. If the
journey from the last port outside Australia is likely to take less
than 48 hours, the report is required 24 hours before the ship
arrives in Australia.
Items 1-3 give effect to the Government s
maritime security policy and will require operators to provide the
reports further in advance of the ship s arrival than under the
present arrangements. The time limits will be set by regulation.
They will apply to impending arrival reports relating to cargo
(items 1 and 2); cargo reports (item
3); and passenger reports (item 4).
Part 1 will commences on a single day to be
fixed by proclamation (or 6 months after Royal Assent, whichever
occurs first). Items 1-3 will not commence if item
118 of Schedule 3 to the Trade Modernisation Act commences first,
because item 118 already amends sections 64 and 64AB, thus
rendering the amendments contained in items 1-3
meaningless (or redundant) if section 118 commences first.
Part 2 deals with reporting requirements after
the commencement of the international trade modernisation program.
Part 2 commences at the same time as item
4 of Schedule 6 unless item 118 of Schedule 3 to the
Trade Modernisation Act has not commenced by then. In that case,
Part 2 will not commence until item 118 commences.
Part 2 therefore assumes that sections 64 and 64AB operate as
amended by the Trade Modernisation Act.
The amendments made by Part 2 are not
controversial. They repeal time limits for the doing of certain
acts and permit new time limits to be fixed by regulation. They
also clarify provisions (for example, the amendments make it clear
that a cargo reporter need only provide the requisite reports when
arriving at the first port of call in Australia and not at
subsequent ports in Australia used by the vessel on the same
trip).
The relationship between existing detention and search powers
under the Customs Act and the proposed additional powers may
require further consideration. For example, proposed
section 219ZJD (which deals with the search of persons to
detect a weapon or preserve evidence) seems, at least in part, to
overlap with existing sections 219L and 219M (which deal with the
detention and search of persons suspected of carrying prohibited
goods). It may be important to ascertain which power of detention
and search a Customs officer is exercising the choice of powers may
dictate what occurs if a person refuses to submit to a frisk or
ordinary search. It may also affect the person s right to
communicate with another person, particularly a lawyer.
Proposed section 219ZJD may require amendment
to make it compatible with the right of a person in existing
section 219M to have a frisk search conducted in a place which
affords adequate personal privacy.
Further, proposed section 219ZJG may also
require further consideration. The provision permits a Customs
officer to use reasonable and necessary force in exercising powers
under proposed Division 1BA. Specifically, it permits an officer to
do an act likely to cause death or grievous bodily harm to the
person [the detainee] if the officer believes on reasonable grounds
that doing the act is necessary to protect life or prevent serious
injury to the officer or any other person . It is not a strictly
objective test of whether the use of force is reasonable it is
based on the officer s belief. There is no similar provision in the
Customs Act.
The Explanatory Memorandum to the Bill does not refer to privacy
issues, but they are an important consideration in relation to the
reports which operators are required to provide under Schedule 3 to
the Bill.
Private operators of ships and aircraft must comply with the
National Privacy Principles ( NPPs ) set out in Schedule 3 to the
Privacy Act 1988. Customs and other government bodies that
may collect or possess such information must comply with the
Information Privacy Principles ( IPPs ).
All passengers already provide declarations about themselves to
the Department of Immigration when departing Australia. They must
show appropriate identification and travel documents. The
distinction between that obligation to provide information to the
Department of Immigration and the obligation contained in the
proposed amendment is really the requirement to provide the
information in advance. It may also lie in the fact that a third
party (that is, the ship or aircraft operator) must provide the
information, rather than the travellers themselves.
It is not clear exactly what information the operators of ships
or aircraft are required to report to Customs, nor how the
operators are to collect the information. The operators must
collect personal information only by lawful and fair means and not
in an unreasonably intrusive way (NPP 1.2). The organisation must
not collect personal information unless the information is
necessary for one or more of its functions (NPP 1.1).
Usually, the operator must inform the person about the intended
use or disclosure of the information. For example, the operator
should tell the person that he or she will provide the information
to Customs. That said, however, the operator may disclose the
information to a third party without the consent of the individual
concerned if the organisation reasonably believes that the use or
disclosure is necessary to lessen or prevent serious and imminent
threat to an individual s life, health or safety; or a serious
threat to public health or public safety (NPP 2.1(e)); if the use
or disclosure is required or authorised by or under law (NPP
2.1(g); or if the use or disclosure of the information for the
purposes of law enforcement (including prevention, detection,
prosecution, punishment) is also an exception (NPP 2.1(h)). Any of
these considerations may apply in the case of the information
required by Schedule 3 to the present Bill.
The IPPs applying to Customs are in similar terms. For example,
the collection of the information by Customs must be for a purpose
that is a lawful purpose directly related to a function or activity
of the collector (IPP 1). The IPPs also provide similar exceptions
to the NPPs for the provision of personal information by one
government agency or body to another person, body or agency, or for
the purposes of law enforcement (see IPP 11(1)). For example,
Customs could provide the information to the Australian Federal
Police.
The NPPs and the IPPs stipulate that individuals have the right
to correct personal information, but individuals may not be aware
what information the organisation (or government agency) is
providing to third parties and/or whether it requires correction.
For example, the first opportunity for a person to become aware
that an operator has provided incorrect information to Customs is
when the person is detained under the Customs Act.
A query may be raised as to what constitutes law for the
purposes of exception NPP 2.1(g) and IPP 11(1) the requirement
to provide the information under Schedule 3 will be contained in an
enactment, but the format and method of providing the information
is to be set by the CEO of Customs. A query may also be raised as
to whether the exceptions can be relied on where the operators are
required to provide the information as a matter of routine.
Parliament may wish to consider if the Privacy Commissioner
should be consulted about the proposed arrangements.
The Bill contains a range of measures which complement and
assist the operation of Customs border security functions. The Bill
is perhaps unnecessarily complicated by the fact that some of the
legislation which it is designed to support is not yet operational.
Conceptually, this makes the Bill difficult to compare with
existing reprints of the Customs Act. It also renders specific
provisions of the Bill difficult to comprehend, particularly the
commencement provisions.
-
The international trade modernisation ( ITM ) program is yet to
commence. Largely, it is the subject of the Customs Legislation
Amendment and Repeal (International Trade Modernisation) Act
2001. According to the CCH looseleaf publication
Australian Customs Law and Practice (at 90-000), the
provisions of that Act (which are yet to commence) will
significantly amend the import reporting and entry processes . The
program includes measures such as replacing the lodging of hard
copy documents (such as reports in relation to cargo) with the
requirement that documents be lodged electronically. The
developments have made it necessary for Customs to introduce a new
computer system. That system has been the subject of much recent
press commentary because of delays and cost. For an overview, see
Brendan Bailey, Customs Legislation Amendment (Application of
International Trade Modernisation and Other Measures) Bill 2003 ,
Bills Digest, No. 80, Parliamentary Library, Canberra,
2003-04.
-
Philip Ruddock, Attorney-General, Second reading speech: Customs
Legislation Amendment (Airport, Port and Cargo Security) Bill 2004
, House of Representatives, Debates, 27 May 2004, p.
29 132.
-
Senator Christopher Ellison, Minister for Justice and Customs,
New Customs resources to back up tough border protection policy ,
Media Release, 11 May 2004 (available at http://www.law.gov.au/budget).
-
ibid.
-
Investing in Australia s Security in Budget Paper No. 2
(Budget 2004-05), Part 2: Expense Measures Attorney-General s
Department (available at http://www.budget.gov.au/2004-05/bp2/html/expense-02.htm).
-
Senator Chris Ellison, Minister for Justice and Customs, New
Customs resources to back up tough border protection policy , Media
Release, 11 May 2004 (available at http://www.law.gov.au/budget).
See also Attorney-General s Department, Fact Sheet 1 A Safer
Australia, Budget 2004-05 (available at http://www.ag.gov.au/budget).
-
For examples of security measures funded by the Budget which
fall within the bailiwick of the Minister for Transport and
Regional Services, see Overview: Regional Partnerships for Growth
and Security , Ministerial Statements (Budget 2004-05),
Department of Transport and Regional Services at
http://www.budget.gov.au/2004-05/ministerial/html/transport-01.htm.
-
Australian customs officers powers beefed up under new laws ,
Australian Associated Press Financial News Wire, 27 May
2004 .
-
Senator Mark Bishop, Shadow Minister for Veterans Affairs and
Shadow Minister for Customs, Security Funding Customs Misses Out ,
News Statement, 22 March 2004 (available at: http://www.alp.org.au/media/0304/20007100.html).
-
Senator Mark Bishop, Shadow Minister for Veterans Affairs and
Shadow Minister for Customs, Customs Budget Nothing New , News
Statement, 12 May 2004 (available at: http://www.alp.org.au/media/0504/20007451.html).
-
Senator Mark Bishop, Shadow Minister for Veterans Affairs and
Shadow Minister for Customs, Customs Budget Still in Trouble , News
Statement, 25 May 2004 (available at: http://www.alp.org.au/media/0504/20007568.html).
-
Item 3 seems at face value to be the same as
item 2, but it is different. The amendment
contained in item 2 refers to subsection
243SA(1) as it currently appears and operates. By contrast, the
amendment contained in item 3 refers to subsection
243SA(1) as it will appear when (or if) proposed section
106J commences. (Proposed section 106J is contained in
item 1 of Schedule 3 to the present Bill and deals
with the power of Customs officers to question vessel operators
about departing persons see below). It is intended that
proposed section 106J will also be excluded from
the operation of subsection 243SA(1).
-
Item 2 of Schedule 3 to the present Bill will
not commence until item 62 of Schedule 3 to the Trade Modernisation
Act commences. In the normal course of events, and given no
proclamation has been made, item 62 should have commenced on 21
July 2003. However, by virtue of the passage of the Customs
Legislation Amendment Act (No. 1) 2002, the commencement
date has been postponed until 21 July 2004. See item 65 of Schedule
3 to the Customs Legislation Amendment Act (No. 1) 2002,
which deals with International Trade Modernisation.
Morag Donaldson
16 June 2004
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
© Commonwealth of Australia 2004
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