Chapter 4 - Committee view
4.1
The committee acknowledges concerns raised by the
Law Council in relation to aspects of the proposed regimes in the Bill,
including the apparent absence of broad consultation with interested
stakeholders and the lack of clarity contained in the Bill
with respect to certain of its key elements. The committee is surprised at the
apparent expedited introduction of the Bill and
notes that the Bill's proposals were not revealed
during the committee's inquiry into the Border Compliance Bill which took place
only three months ago. The committee acknowledges the Law Council of
Australia's criticism that inadequate opportunities were provided for
consultation on the Bill, but notes advice from
Customs indicating that consultation did take place with the Passenger
Facilitation Taskforce (which has expressed its satisfaction with the Bill).[99] The committee suggests that, in the
light of the Law Council's criticism, Customs give consideration to developing more
wide-ranging consultation mechanisms prior to introducing future amendments
into Parliament.
4.2
The committee also shares the concerns raised about
uncertainty as to how the proposed arrangements will actually work. The
practical and operational impact of the proposed regimes, including their interrelationship
and possible overlap, is not readily comprehensible from a simple reading of
the Bill and the EM. The Bill
is lengthy and the regimes it seeks to set in place appear complex; yet in some
respects, it comprises a fairly minimalist framework for the regimes by
omitting fundamental details which might have assisted the committee to gain
more readily an understanding of how the regimes will operate.
4.3
As a result, the committee has been obliged to
place a large number of questions on notice to Customs, and to rely on
information provided by Customs in its responses to these questions to 'fill in
the gaps'. Unfortunately, however, time constraints have not allowed the
committee to consider these responses as comprehensively as it would have liked.
While the extensive amounts of information provided by Customs in its answers
have ultimately been of assistance, the committee is of the view that some of
the details provided in these answers would have been more appropriately placed
in the Bill itself or, at the very least, included
as background information in the EM or Second Reading Speech. In this context,
the committee particularly notes the helpful nature of the flow charts which
were provided to the committee as part of the answers.
4.4
The committee also considers that Customs'
communications about the application of the powers in the Bill
were both conflicting and wrong. Customs appears to have provided the committee
with conflicting advice: on the one hand, '(t)he import control measures in the
[Bill] ... will not operate in the commercial air or sea cargo environments'[100] and '(t)he commercial air and sea
cargo environments are excluded from the regime via their omission from the
Bill';[101] yet, on the other hand,
'(t)he post-importation permission arrangements are intended to apply to all
environments'.[102] Clearly both
positions cannot be correct: in future the committee recommends that Customs make
it absolutely clear, at the outset, the environments in which the regimes are
intended to operate and the persons to whom the regimes are intended to apply.
4.5
Having said this, however, the committee concurs
with the broad purposes of the Bill and sees the
merit in streamlining procedures dealing with the importation of low-end prohibited
items to reduce the administrative burden for Customs. In addition, the goods
detention regime that applies across all Customs/trade environments will be of
benefit to industry. Given the more thorough explanations and assurances by
Customs in its answers to questions on notice in relation to the operation,
interaction and implications of the proposed regimes, the committee does not
consider that major amendments to the Bill are
necessary. However, the committee is of the view that certain aspects of the
proposed regimes should be more clearly enunciated. The committee puts forward
a series of recommendations which it considers will aid interpretation of the
proposed regimes by those to whom the committee understands they are intended
to apply, and which aim to improve the application and operation of the regimes
in a practical sense.
Recommendation 1
4.6
The committee recommends that the type of
prohibited imports subject to the surrender regime under new Subdivision GB be
identified prior to the Bill being considered by
Parliament and prior to any implementation of the regime.
Recommendation 2
4.7
The committee recommends that the type of
prohibited imports subject to the post-importation regime under new Subdivision
GC be identified prior to the Bill being considered
by Parliament and prior to any implementation of the regime.
Recommendation 3
4.8
The committee recommends that the guidelines for
serving infringement notices under new section 243ZG of the Bill
be released for comment and consultation prior to implementation of the import
control regime.
4.9
The committee notes Customs' reference to the EM
as a means of explaining the limitation of the section
234ZH infringement notice regime, but instead prefers as a matter of general
principle that such limitation of the power should not be contained in
ancillary aids to interpretation but instead in the actual text of the law (for
which such aids are no substitute). Accordingly:
Recommendation 4
4.10
The committee recommends that the Bill be
amended to contain a specific statement to make absolutely clear that the power
of the CEO to issue an infringement notice under new section 243ZH includes the
power to issue an infringement notice outside a section 234AA place, but that its
application outside a section 234AA place is limited only to a section 234ABA
area, the postal environment and circumstances where baggage is unaccompanied.
Recommendation 5
4.11
The committee recommends that new subparagraph 243ZI(1)(e)(ii),
relating to matters to be included in an infringement notice, be amended to specifically
provide that the phrase 'in any other case' relates only to the postal
environment and circumstances where baggage is unaccompanied.
Recommendation
6
4.12
The committee recommends that a comprehensive
public education campaign, aimed at those to whom the import control regime is
intended to apply, be conducted in relation to the measures proposed in the Bill.
Recommendation SEQ 6B5Rec\# "0"\n 7
4.13
Subject to the preceding recommendations, the
committee recommends that the Senate pass the Bill.
Senator
Marise Payne
Committee Chair
Navigation: Previous Page | Contents | Next Page