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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