Bills Digest no. 8, 2007-08 - Australian Postal Corporation Amendment (Quarantine Inspection and Other Measures) Bill 2007

Australian Postal Corporation Amendment (Quarantine Inspection and Other Measures) Bill 2007

Date introduced: 20 June 2007

House: Senate

Portfolio: Communications, Information Technology and the Arts

Commencement: Sections 1-3 and Schedule 2 commence on Royal Assent. Schedule 1 commences on Proclamation but not later than six months after Royal Assent.

Links: The relevant links to the Bill, Explanatory Memorandum and second reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/. When Bills have been passed they can be found at ComLaw, which is at http://www.comlaw.gov.au/.

Purpose

To amend the Australian Postal Corporation Act 1989 (the APC Act) to provide for the inspection and examination of postal articles carried by Australia Post for interstate quarantine purposes, with the exception of standard letters.

The Bill also makes other amendments to provide Australia Post with the power to disclose scam mail articles to consumer protection agencies.

Background

At present incoming international mail may be opened in accordance with the powers set out in the Quarantine Act 1908.

However, the APC Act prohibits the opening of interstate postal articles except in specified circumstances. [1] These purposes relate to a suspicion that the article contains drugs [2] or that customs duty is payable. [3]

As the APC Act only applies to Australia Post, all articles that are moved interstate by carriers other than Australia Post are not subject to the same prohibitions against opening. Consequently those articles which are carried by independent carriers can be opened for inspection by the relevant authorities.

The Bill removes the anomaly that Australia Post is not subject to the same inspection regimes as other interstate carriers.

Basis of policy commitment

In 2002 the Senate Environment, Communications, Information Technology and the Arts Committee published its report entitled Turning back the tide the invasive species challenge (the Invasive Species Report). That report recommended, amongst other things, that

The House of Representatives Standing Committee on Agriculture, Fisheries and Forestry conducted an inquiry into the impact on agriculture of pest animals. Its report was published in November 2005 (the Pest Animals Report).[5] As the Senate Committee and the Standing Committee addressed some matters which were common to both, a number of the recommendations in the Pest Animals Report echo the earlier recommendations made in the Invasive Animals Report, despite the differences in their terms of reference. [6]

The Standing Committee received overwhelming evidence supporting the need for more involvement in dealing with the problem of pest animals, at the federal level . [7] Upon considering all of the submissions the Standing Committee recommended a raft of actions. Recommendation 13 was that:

The Australasian Consumer Taskforce (ACTF), established in March 2005, is comprised of 18 Government regulatory agencies and departments who have a remit for consumer protection in relation to frauds and scams. [9]

The purpose of the ACTF is to work together to enhance the Australian and New Zealand Governments enforcement activity against frauds and scams, to create a yearly co-ordinated information campaign for consumers, to share information and to generate a greater interest in research about scams.

Although no specific comment is made in the Explanatory Memorandum, those parts of the Bill which relate to scam mail will, of its nature, complement the operations of the ACTF.

Position of significant interest groups/press commentary

The Bill has been developed in consultation with State and Territory governments and Australia Post. The Explanatory Memorandum states that there is general consensus about the proposal including that the reserved services [10] be exempted from inspection under the scheme because of the low risk of standard letters carrying quarantine material. [11]

The Western Australian Government used to scan interstate mail for quarantine risk material. This practice was stopped, however, due to an inconsistency between Western Australia s Plant Diseases Act 1914 and the Commonwealth APC Act. [12]

At this stage, the Western Australian Government has expressed interest in coming under the scheme, as have the Northern Territory and Tasmania.  [13]

The other jurisdictions have taken the view that they consider the biosecurity risks associated with the interstate mail system to be relatively low. [14]

Financial implications

The Explanatory Memorandum states that the Bill is not expected to have any financial impact on Commonwealth expenditure or revenue. The costs of interstate quarantine inspection will be borne by State and Territory inspection authorities that opt in to the inspection regime provided by the Bill. Australia Post may be subject to costs associated with quarantine inspection guarantees, but they are not expected to be significant. [15]

Main provisions

Postal articles containing quarantine material

The Bill provides that:

Items 1 -12 of Schedule 1 amend section 90E to provide relevant definitions including:

Postal articles containing quarantine material

Proposed section 90U adds an additional circumstance in which the opening of interstate postal articles is permitted, that is, where a quarantine officer of a prescribed State or Territory has reasonable grounds for believing that an article consists of, or contains, quarantine material.

Under proposed subsection 90U(2) the carriage of letters is exempted from the interstate quarantine inspection scheme. This is because it is perceived that the risk of quarantine material in letters is low and the exemption is necessary to ensure that Australia Post s ability to meet its regulated performance standards is not adversely affected. [17]

Where a quarantine inspection officer has decided that there are reasonable grounds for believing that the article consists of, or contains quarantine material, they can ask an authorised examiner to open the article (proposed subsection 90U(3)). The authorised examiner must open the article in the presence of the quarantine inspection officer who will examine the contents to check whether it does, in fact, contain quarantine material (proposed subsections 90U(4) and (5)).

If the article does not to consist of, or contain, quarantine material, the article is to be returned to the normal course of carriage (proposed subsection 90U(6)).

If the article does consist of, or contain quarantine material, it must be dealt with in accordance with the relevant law of the State or Territory or the Commonwealth. In addition, the quarantine inspection officer must notify the intended recipient and the sender (where able to be identified):

Under proposed subsection 90U(9) prescribed persons must establish and maintain records (according to regulation) setting out:

Postal articles containing scam mail

The Explanatory Memorandum notes that scam mail often arrives in Australia in large batches from a single overseas location in substantially similar envelopes. Once one item is identified, the whole batch can be readily removed from the mail stream. [18]

Item 8 inserts a definition of scam mail into section 90E. Mail is scam mail if it is reasonable to suspect that it is one of a batch of mail sent in breach of a consumer protection law. [19]

Proposed section 90UA provides that Australia Post may remove batches of articles from the normal course of carriage where it reasonably suspects that the batch contains scam mail. Once a batch of articles has been removed, Australia Post must notify the ACCC, Australian Securities Investment Commission and/or the consumer protection agency for the State or Territory in which the removal has occurred. Proposed subsection 90J(10) empowers Australia Post to make that disclosure.

In the alternative, proposed subsection 90UA(3) provides that a consumer protection agency may notify Australia Post that articles of a certain kind may be in the course of carriage and that they may contain scam mail. In that circumstance, Australia Post may remove batches of those articles from the course of carriage as long as the consumer protection agency has provided the means of identifying the relevant articles.

Proposed section 90UB is about articles that have been removed from the course of carriage. Under proposed subsection 90UB(2), the consumer protection agency may make arrangements with Australia Post to access the articles, open them and determine whether they are, in fact, scam mail. If the consumer protection agency has not done so within ten business days (or a longer period as may be prescribed in the Australian Postal Corporation Regulations 1996) from the date when the consumer protection agency was notified of the removal of the articles from the normal course of carriage, Australia Post must return the articles to the normal course of carriage.

Proposed section 90UC relates to the actions that must be taken after articles have been opened and examined. Where a consumer protection agency believes that a batch consists of scam mail it must deal with the articles in accordance with the relevant Commonwealth, State or Territory laws. Where one or more articles in a batch have been opened and do not consist of scam mail, the consumer protection agency must close up any opened article and return the batch to Australia Post. Australia Post must then return the batch to the normal course of carriage.

Where an article is returned to the normal course of carriage, the consumer protection agency must, under proposed subsection 90V(2A), endorse the cover of the article or affix a label with a notification explaining that the article was opened and for what purpose.

Other amendments

Not withstanding the proposed new provisions existing section 90X of the APC Act allows that an Australia Post employee can deal with an article which has been removed from the normal course of carriage under section 32 of the APC Act, if the article is found to be, or suspected on reasonable grounds of being, explosive, dangerous or deleterious, or can destroy the article if it is physically offensive.

Australia is a signatory to the Universal Postal Convention (UPC). Article 21.1 of the UPC states that postal administrations are liable for the loss of ordinary parcels. However, article 22.2.5 provides an exception where postal items have been seized under the legislation of the country of destination, as notified by the administration of that country.

Proposed section 91 of the APC Act provides that Australia Post can request information from a compliance agency about articles that have been removed from the normal course of carriage, in order to notify other relevant postal administrations in accordance with the UPC. According to the Explanatory Memorandum, it will also assist Australia Post to respond to requests from members of the public about missing postal articles. [20]

Proposed section 90ZC provides protections for customs officers etc. for actions which are done in good faith in the exercise of their powers under the APC Act.

Conclusion

The Bill appears to be uncontroversial, although the following observations may be of interest during parliamentary debate.

Record keeping

The quarantine inspection regime proposed in the Bill also proposes a record keeping regime. Record keeping in relation to those articles which are removed from the normal course of carriage and the uses which can be made of the information contained in the record, is to be prescribed in regulation, according to proposed subsections 90U(9) and (10). The subsections contain only broad descriptors of the records to be kept and no detail about the manner in which they are to be formatted and kept. When the detail is known, it may (or may not) act as a disincentive for the other states and territories to opt into the scheme.

Performance standards to be met by Australia Post

The existing section 28C of the APC relates to performance standards to be met by Australia Post. At present section 28C(2) sets out the matters which must be the subject of performance standards. Item 1 in Schedule 2 of the Bill proposes to add a new section 28(3) which will allow regulations to be made setting out some additional matters which may be the subject of performance standards. The example given in the Explanatory Memorandum relates to the processes which Australia Post uses to poll communities to gauge community responses to a change in service delivery or access to services. [21] Should Australian Post seek to downgrade its services in any way, this proposed section would allow for the manner in which affected communities are to be consulted to be specified in regulations.