Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
1996-97-98
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
EXPLANATORY
MEMORANDUM
(Circulated
by authority of the Minister for Customs and Consumer
Affairs,
The Honourable Warren Truss,
MP)
On 2 November 1997, the Prime Minister announced the
National Illicit Drugs Strategy (NIDS). As part of this Strategy, this Bill
proposes amendments to the Customs Act 1901 and the Customs
Administration Act 1985 which are designed to augment the powers of the
Australian Customs Service (ACS) in relation to the detection of illicit drugs.
The more significant amendments are set out
below.
Amendments to the Customs Act 1901
(Customs Act) to:
1. Extend the frisk
search powers of officers of Customs to allow the search of persons with access
to ships and aircraft. These persons include crew of ships and aircraft and
airport and port employees. This extension is being made within the context of
the current frisk search regime under the Customs Act, thereby ensuring that the
dignity of a person being searched+ is
maintained;
2. Extend the frisk search powers
to allow the frisk search of a person on a ship for concealed weapons when a
ship is boarded by Customs or when a person boards a Customs vessel. This
extension is also being made within the context of the current frisk search
regime and is also designed to protect the safety and welfare of Customs
officers operating at sea in an isolated environment;
3. Insert a new power to allow officers of
Customs to read and copy documents found in baggage and cargo searches. The
concept of “documents” is to be expanded to include paper,
photographs and computer images;
4. Insert a
new power to allow officers of Customs to take into custody firearms which are
on ships and aircraft and which, if imported, would be prohibited imports. This
power only can be exercised if Customs is not satisfied that there is secure
storage for the firearms on board the ship or aircraft. Firearms are to be
returned when the ship or aircraft leaves Australia;
5. Limit the circumstances where reasonable
force can be used in the conduct of the external search under the detention and
search provisions of the Customs Act;
6. Amend
section 59 to extend its operation to foreign ships in the contiguous zone.
Section 59 sets out the circumstances in which a ship or aircraft can be boarded
by Customs. When a ship or aircraft is boarded in accordance with this section,
the powers under section 185 of the Customs Act can be exercised, including the
power to search the ship or aircraft and question persons on board.
7. In the case of foreign ships, the power can
only be exercised when the ship is in the territorial sea of Australia. It is
proposed to extend the operation of section 59 to foreign ships in the
contiguous zone in accordance with international
law;
8. Extend the operation of section 59 in
relation to ships into the waters on the landward side of the territorial sea,
including such waters within the limits of a State or Territory. These waters
can represent quite considerable bodies of water and it is proposed the ACS have
the same powers in respect of ships in these waters as in the territorial sea of
Australia;
9. Amend section 175 to insert new
offences relating to the transfer of goods at sea. Section 175 makes it an
offence, without a Collector’s permission, to transfer goods from a ship
or aircraft engaging in the coasting trade to a ship or aircraft journey to or
from Australia or between places outside Australia. Currently, the offence only
applies to the master or owner of the coasting trade ship or pilot or owner of
the coasting trade aircraft. It is proposed to extend the offence so that it
equally applies to the master or owner of the ship on the international journey
and the pilot or owner of the aircraft on the international journey.
Amendments to the Administration Act to:
10. Facilitate access by other law
enforcement agencies to Customs’ information and intelligence for the
purposes of carrying out mutual law enforcement functions, including:
• Access by State or Territory
authorities and law enforcement task forces as necessary;
and
• Access by foreign government
agencies and international organisations.
The amendments proposed in this Bill have no direct
financial implications.
This clause provides for the Act to be cited as the
Customs Legislation Amendment Act (No. 1) 1998 (Amendment
Act).
This clause provides for the Schedules to the Act to
commence on a day or days to be fixed by Proclamation (subclause (2)) with the
standard “sunset” provision in Acts which are expressed to commence
by Proclamation, to provide that if the Act is not proclaimed within a period of
six months after the Act receives the Royal Assent, then it shall commence on
the first day after that period (subclause (3)
refers).
Subclause (1) provides for the
machinery provisions of the Bill (short title, commencement and Schedules) to
commence upon Royal Assent.
This clause is the formal enabling provision for the
Schedule to the Amendment Act, providing that each Act specified in the Schedule
is amended in accordance with the applicable items of the Schedule. The clause
also provides that the other items of the Schedule have effect according to
their terms. This is a standard enabling clause for transitional, savings and
application items in amending legislation. There are no such items in this
Bill.
Item 1 – Subsection 4(1) (paragraph (b) of
the definition of Australian seabed)
This item repeals and substitutes
paragraph (b) of the definition of Australian seabed. This is a
technical amendment to condense the current definition. The current paragraph
(b) contains three subparagraphs and it is proposed to condense this to two
subparagraphs. The substance of the definition is
unchanged.
Item 2 – Subsection
4(1)
This item amends section 4 by
inserting a new definition of contiguous zone, which is defined as the
contiguous zone within the meaning of the Seas and Submerged Lands Act
1973, which is adjacent to the coast of Australia. This new definition is
being inserted for the purposes of proposed amendments to section 59 of the Act
made by items 20 and 21 below, which will extend some of the powers under
section 59 into the contiguous zone.
This item amends subsection 4(1) of the Act by
introducing the new concept of “designated place” for the purposes
of a new search and seizure power under section 203B and extended frisk search
powers under Division 1B of the Act (see below for further details). Currently,
Customs is only allowed to conduct a frisk search of persons in a place
identified under section 234AA of the Act.
The
term “designated place” is defined to
mean
(i) the places already covered by
paragraphs (a), (b) and (c) of the definition of Customs place in subsection
183UA(1); and
(ii) a place that is the subject
of a section 175 permission (which deals with the movement of goods between
certain crafts); and
(iii) a section 234AA
place that is not in or a part of the preceding places covered in this
definition (section 234AA provides for places to be used for processing
passengers).
This item amends subsection 4(1) by repealing the
definition of “Documents” and substituting a new definition of
“document”. The amendment adopts the definition of
“document” in section 25 of the Acts Interpretation Act 1901
with an additional element in paragraph (c) to include “any paper or other
material on which a photographic image or any other image is
recorded.”
Item 5 - Subsection
4(1) (definition of External search)
This
item amends the definition of “external search” by omitting
“or in the possession of” from the definition. This amendment is
necessary in light of the new subsection 4(19) below which has the effect of
limiting an external search to a search of the body for things carried in or
under the clothing or the clothing itself.
This item amends subsection 4(1) by repealing
paragraph (c) of the definition of “Frisk search” and substituting
it with a new paragraph (c). This amendment is necessary to provide for
the proposed amendments to section 219L to extend the frisk search powers to
persons suspected of carrying prohibited goods in designated places and persons
suspected of carrying any weapon or thing capable of inflicting bodily injury on
a person conducting a search under Division 1 of Part XII of the
Act.
This item amends subsection 4(1) by repealing the
definition of “Goods” and substituting it with a new definition to
clarify that the term “goods” in the Act clearly includes documents.
This amendment reflects the judicial position that the meaning of the term
covers “tangible things which can be physically moved” (see
Vickers v Young (1982) 43 ALR 389 at 401-403) including documents (see
Kanbur Pty Ltd v Adams (1984) 3 FCR 192 where a Certificate of Title
and share certificate were regarded as goods under the Act).
This item amends subsection 4(1) of the Act by
inserting a new definition of the term “section 234AA place” to
refer to a place identified under section 234AA as a place of a kind referred to
in that section. This term is used to identify a designated place (see above
definition of “designated place”) and is referred to mainly in the
proposed amendments to Division 1B of the
Act.
Item 9 – Subsection
4(1)
This item amends section 4 by
inserting a new definition of territorial sea. This is defined, in
relation to Australia, as the area whose outer limits are from time to time
specified in a Proclamation made by the Governor-General for the purposes of
section 7 of the Seas and Submerged Lands Act 1973. Similar to the new
definition of contiguous zone, the definition is being inserted for the
purposes of proposed amendments to section 59, 73 and 175 of the Act detailed
below.
This item repeals subsection 4(19) and substitutes it
with a new provision to deem, for the purposes of Part XII of the Act, a person
to be carrying a thing, including a thing constituting or containing special
forfeited goods or prohibited goods, on his or her body if the thing
constitutes, or is in or under, clothing worn by the
person.
Consequently, the provision would cover
the clothing itself, anything in the clothing (for example a thing could be in
the pockets of a shirt or trousers) or under the clothing (for example, a thing
could be tied or worn around the waist under a
shirt).
New subsection 4(19) is relevant
in demarcating the application of the frisk and external search provisions from
the other search and seizure provisions in sections 203B and 203C of the Act.
Any person deemed to be carrying things under subsection 4(19) is liable to
attract the application of sections 219L, 219Q and
219R.
This item also introduces a new
subsection 4(19A) to clarify that the reference to clothing worn by a person
in new subsection 4(19) includes a reference to any personal accessory or device
that is worn by the person. In frisk and external search situations, Customs
encounters a variety of methods and manner of concealment of special forfeited
or prohibited goods. It is impossible to exhaustively enumerate and cover them
in legislation. Consequently, a wide construction of the word
“clothing” is necessary and new subsection (19A) is intended to
provide an indication of what it may include. The words “personal
accessory and device” would cover, for example, things like belts, shoes,
hats, watches, jewellery, wigs, hairpiece, artificial limbs worn by or attached
to the body of a person.
This item amends paragraph 4(20)(a) to change the age
limit of a person who is in need of protection from 17 years to 18 years. This
amendment is to ensure that the age limit of such a person in the Act is
consistent with the age limit in section 23K of Part 1C of the Crimes Act
1914.
Item 12 – Subsections 5B(1),
(2) and (4) and paragraph (5)(b)
Subsection
5B(1) of the Act currently provides that a person shall not, without the
permission of the Chief Executive Officer of Customs (the CEO), cause an
overseas sea installation to be installed in the coastal area. The coastal area
coincides with the territorial sea and waters on the landward side of the
territorial sea not in a State or Territory. This is a control requirement so
that Customs is aware of the existence of such installations and can exercise
relevant powers under the Act in respect of them. Under section 5C of the Act,
sea installations installed in the coastal area (and presently the adjacent
area) are deemed to be part of Australia. Under section 58A of the Act, direct
journeys to and from a sea installation in the coastal area (and presently the
adjacent area) are controlled.
It is proposed
to amend subsection 5B(1) to extend the permission requirement to sea
installations in the adjacent area, a defined term equating to the area
of waters beyond the territorial sea to the limits of the continental shelf.
This extension will make the treatment of sea installations in the adjacent area
consistent with the other provisions of the Act which apply to these
installations.
The proposed amendments to
subsections (2) and (4) and paragraph 5(b) ensure that the whole operation of
section 5B, for example the power to impose conditions in a permission, is
extended to sea installations in the adjacent area.
This item repeals section 32 of the Act. Section 32
becomes unnecessary in light of the new section 186 (see below) which will be
the primary provision in the Act giving Customs the power to examine goods
subject to Customs control.
Items 14, 15,
16, 17, 18 and 19 – Amendments to section
58A
As discussed in the previous clause
note, section 58A of the Act currently controls the movement of persons and
goods between external places and sea installations installed in the adjacent
area and the coastal area of Australia. In relation to persons, it is an
offence to travel between a sea installation and an external place without the
person being made available for questioning in Australia for the purposes of the
Act (subsections 58A(2) and (4) refer). In relation to goods, it is an offence
to move goods between a sea installation and an external place without the goods
being make available for examination in Australia for the purposes of this Act
(subsections 58A(3) and (5) refer). Under subsection 58A(6), various defences
are available to this offence, including that the action is authorised in
writing by the CEO.
It is considered that the
purpose of the controls over goods and people relating to sea installations set
out above is equally applicable to the movement of persons and goods between a
resources installation and an external place. Therefore, items 15 and 17
propose to amend subsections 58A(2) and (4) to also include travel by a person
between a resources installation attached to the Australian seabed and an
external place. Items 16 and 18 propose to amend subsections 58A(3) and (5) to
include the movement of goods between a resources installation and an external
place.
Items 14 and 19 make technical
amendments to subsections 58A(1), (6) and (8) to remove the word
“sea” from these subsections as a consequence of the above
amendments. The effect of these amendments is that these subsections, one of
which contains the defences to the abovementioned offences, will apply to both
sea and resources installations.
Item 20 and
21– Subsections 59(1) and
59(2)
Section 59 of the Act sets out the
circumstances in which a request can be made to the master of a ship to permit
his ship to be boarded by Customs (subsections 59(2) and (3)) or to the pilot of
an aircraft to land his aircraft for the boarding for the purposes of the Act
(subsection 59(4)). When a ship or aircraft is boarded in accordance with this
section, the powers under section 185 of the Customs Act can be exercised,
including the power to board and search the ship or aircraft and question
persons on board.
In relation to ships,
subsections 59(1) and (2) currently apply to Australian ships and foreign ships.
In the case of foreign ships, the request power can only be exercised when the
ship is in the territorial sea of Australia. In order to strengthen this power,
however, it is proposed to extend the operation of section 59 to foreign ships
in the contiguous zone. In addition, it is also proposed to extend the
operation of subsections 59(1) and (2) in relation to foreign ships into the
waters of the sea on the landward side of the territorial sea, including such
waters within the limits of a State or Territory. These waters can represent
quite considerable bodies of water and it is proposed that Customs have the same
powers in respect of foreign ships in these waters as in the territorial sea of
Australia.
Items 20 and 21 propose to omit the
current wording of paragraph (b) in both subsections 59(1) and (2) and
substitute new wording to implement these proposals. In relation to a foreign
vessel, the request power will be exercisable in relation to any ship that is
within:
(i) the waters of the sea within the
outer limits of the territorial sea of Australia , including such waters within
the limits of a State or a internal
Territory;
(ii) the contiguous zone of
Australia;
(iii) 500 metres of an Australian
resources installation or an Australian sea
installation.
The exercise of this power will
be subject to new subsection 59(5A)¸ which is to be inserted by item
25 below.
Item 22 – Subsection
59(3)
This item contains a technical
amendment only to remove superfluous words from the
subsection.
Item 23 – Subparagraphs
59(4)(b)(ii) and (iia)
This item amends
subsection 59(4) to change the reference to the territorial sea of Australia so
that it is consistent with the references inserted by items 20 and 21 above.
This is a technical amendment only and does not alter the operation of
subsection 59(4).
Item 24 – Subsection
59(5)
This item contains a technical
amendment only to remove superfluous words from the
subsection.
Item 25 – After subsection
59(5)
This item inserts new subsection
59(5A), which qualifies the operation of subsections 59(1) and (2) in relation
to a foreign ship in the contiguous
zone.
International law limits the powers that
Australia can exercise over foreign ships in the contiguous zone. As a
consequence, the power in subsections 59(1) and (2) can only be exercised based
on reasonable cause. New subsection 59(5A) sets out this reasonable cause with
the effect that the request to the master of a ship, other than an Australian
ship, in the contiguous zone can only be made under subsections 59(1) or (2) if
there are reasonable grounds to suspect that the
ship:
(i) has been or is being used, or has
been or is otherwise involved in the commission of an offence against the Act;
or
(ii) is about to be so used or to be
otherwise so involved.
Item 26 –
Subsection 73(1)
Subsection 73(1) prohibits
the breaking of bulk cargo of a ship, except with a Collector’s
permission. This prohibition currently applies only while the ship is in the
territorial sea of Australia. It is now proposed to extend its operation to
ships within the waters of the sea on the landward side of the territorial sea,
including such waters within the limits of the State or Territory. As
previously referred to, these waters within the limits of a State or Territory
can represent large bodies of water and it is considered that the prohibition
should equally apply when a ship is in these
waters.
Item 26 amends subsection 73(1) by
deleting the current spatial limitation on the operation of the subsection,
being the territorial sea. This is to be replaced by a new limitation, being
the waters of the sea within the outer limits of the territorial sea, including
such waters within the limits of a State or an internal Territory.
Item 27 – At the end of paragraph
73(2)(a)
This is a technical amendment only
to insert the word “or” between two
paragraphs.
Item 28 –
Paragraphs 73(2)(b) and (c)
This item
amends paragraphs 73(2)(b) and (c) to change the reference to the territorial
sea of Australia so that it is consistent with the reference inserted in
subsection 73(1) by item 26 above. This is a technical amendment only and does
not alter the operation of paragraphs 73(2)(b) and
(c).
Item 29 – Subsection
175(1)
This item amends subsection 175(1)
by inserting a new definition of Australian aircraft. This is defined as
having the same meaning as in the Civil Aviation Act 1988. This new
definition is for the purposes of the new offences to be inserted in section 175
by item 40 below and is the same definition used the define an Australian
aircraft is section 59 of the Act.
Item 30
– Subsection 175(1)
This item amends
subsection 175(1) by inserting a new definition of Australian ship. This
is defined as having the same meaning as in the Shipping Registration Act
1981. This new definition is also for the purposes of the new offences to
be inserted in section 175 by item 40 below and is the same definition used the
define an Australian ship is section 59 of the
Act..
Item 31 – Subsection
175(1)
This item amends subsection 175(1)
by inserting the definition of coastal aircraft. This definition will
replace the current definition of prescribed aircraft which is to be
deleted by item 33 below.
This new definition
is in substantially the same terms as the definition of prescribed
aircraft and is only intended to clarify the coverage of this definition.
It will not change the intended effect of the original definition. The new term
coastal aircraft is also being inserted to remove the confusion with the
term prescribed flight in section 175.
Item 32 – Subsection
175(1)
This item amends subsection 175(1)
by inserting the definition of coastal ship. This definition will
replace the current definition of prescribed ship which is to be deleted
by item 34 below.
Similar to item 31 above,
this new definition is in substantially the same terms as the definition of
prescribed ship and is only intended to clarify the coverage of this
definition. It will not change the intended effect of the original definition.
The new term coastal ship is also being inserted to remove the confusion
with the term prescribed voyage in section 175.
Item 33 – Subsection
175(1) (definition of prescribed
aircraft)
This item repeals the
definition of prescribed aircraft for the reasons outlined under item 31
above.
Item 34 – Subsection 175(1)
(definition of prescribed ship)
This
item repeals the definition of prescribed ship for the reasons outlined
under item 32 above.
Item 35 –
Subsection 175(1) (definition of prescribed
voyage)
This item repeals the current
definition of prescribed voyage and substitutes a new definition. The
terms of the new definition are only intended to clarify the intended coverage
of the existing definition which provides that a prescribed voyage is one in the
course of which ship travels between places outside Australia and does not call
at a place in Australia. The terms of the new definition will also provide that
a prescribed voyage is one which a ship travels from a place outside Australia
and returns to that same place and does not call at a place in Australia. This
clarification will not change the intended effect of the original
definition.
Item 36 – Subsection
175(2)
This item amends subsection 175(2)
by replacing the current references to ”prescribed ship” with
”coastal ship”. This is a technical amendment as a result of the
amendment to replace the term “prescribed ship” with “coastal
ship” as explained under item 32
above.
Item 37 – Subsection 175(2)
(penalty)
This item converts the penalty
under subsection 175(2), which is currently expressed in dollar terms, into
penalty units. This is a technical amendment
only.
Item 38 – Subsection
175(3)
This item amends subsection 175(3)
by replacing the current references to ”prescribed aircraft” with
”coastal aircraft”. This is a technical amendment as a result of
the amendment to replace the term “prescribed aircraft” with
“coastal aircraft” as explained under item 31
above.
Item 39 – Subsection 175(2)
(penalty)
This item converts the penalty
under subsection 175(3), which is currently expressed in dollar terms, into
penalty units. This is a technical amendment
only.
Item 40 – After
subsection 175(3)
This item inserts new
subsections (3A), (3B) and (3C) into section 175
to insert new offences relating to the transfer of
goods at sea.
Section 175 makes it an offence
to transfer goods from a ship or aircraft engaging in the coasting trade (the
coastal ship or coastal aircraft) to a ship or aircraft on a journey to or from
Australia (an international voyage or flight) or between places outside
Australia (a prescribed voyage or flight). Currently, the offence only applies
to persons on one side of the transfer ie, the master or owner of the coastal
ship or pilot or owner of the coastal aircraft. The defences to this offence
are that the permission of a Collector has been given for the transfer or the
transfer is for the purpose of securing the safety of a ship or aircraft or
saving life.
It is proposed to extend the
offence so that it equally applies the parties on both sides of the transfer.
It will be extended to apply to the master or owner of the ship on an
international voyage or prescribed voyage and the pilot or owner of the aircraft
on the international flight or prescribed flight. New subsection 175(3A)
inserts the new offence as it applies to an Australian ship that is on an
international voyage or prescribed voyage and an Australian aircraft on
international flight or prescribed
flight.
New subsection 175(3B) inserts
the new offence as it applies to a ship that is not an Australian ship that is
on an international voyage or prescribed voyage and an aircraft that is not
Australian aircraft on international flight or prescribed flight. However,
under international law, the breadth of this offence is restricted where the
ship or aircraft is a foreign ship. The offence can only apply where the
transfer takes place in the waters of the sea within the outer limits of the
territorial sea of Australia or within the 500 metre safety zone around
resources and sea installations.
The same
defences as under subsections 175(2) and (3) will also apply to these new
offences.
New subsection 175(3C)
clarifies that, in all cases where the permission of a Collector is referred to
in subsections 175(2), (3), (3A) or (3B), it is a permission that is given to
the master or owner of the coastal ship or the pilot or owner of the coastal
aircraft. It will not be necessary for the master or owner of the ship on an
international voyage or prescribed voyage or the pilot or owner of the aircraft
on the international flight or prescribed flight to also obtain the
Collector’s permission for the
transfer.
Item 41 – Subsection
175(4)
This item amends subsection 175(4)
by inserting cross references to the new subsections 175(3A) and (3B). This is
a technical amendment only.
Item 42
– Subsection 175(7)
This item
converts the penalty under subsection 175(4), which is currently expressed in
dollar terms, into penalty units. This is a technical amendment
only.
This item amends the definition of
“container” in subsection 183UA(1) of the Act by repealing paragraph
(b) of the definition and substituting new paragraphs (b) and (c). The terms of
the existing paragraph (b) are unduly restrictive as they only include baggage
that is or could be used for the enclosure of other baggage. The new
paragraph (b) simply states “any baggage” so that all types of
baggage are covered by the definition.
The
new paragraph (c) covers any other things that is or could be used for
the
carriage of goods whether or not the thing is
designed for that purpose. This would cover, for example, things like lunch
boxes, briefcases and bags carried by employees of airports and
ports.
This item amends the definition of “Customs
place” in subsection 183UA(1) by adding three additional places described
in new paragraphs (g), (h) and (j). Paragraphs (g) and (h) cover a place
that is the subject of a permission given under section 175 whilst paragraph (j)
covers a section 234AA place that is not a place or part of a place already
covered in paragraph (aa), (a), (b), (c), (d), (g) or (h) of the definition.
Paragraph (j) is intended to cover a place identified as a section 234AA place
for processing passengers in remote areas where Customs does not have a
permanent presence.
This item amends subsection 183UA(1) by inserting a
new definition of the term “designated container”. The term means,
“a container referred to in paragraph (c) of the definition of a
container. This definition is necessary to limit the scope of the new search
and seizure power contained in new paragraph 203B(1)(b) (see below) to
designated containers a person at a designated place has in his or her immediate
physical possession.
Item 46 –
Subsection 185(2)
Subsection 185(2)
currently sets out the powers that an officer of Customs can exercise in
relation to, inter alia, a ship the master of which has been requested to permit
the ship to be boarded under subsection 59(1) or (2). Paragraph 185(2)(d) sets
out the power to arrest without warrant any person on the ship in the specified
circumstance.
As set out under items 20 and 21
above, it is proposed to extend the power to request a master of a ship to
permit his ship to be boarded to foreign ships in the contiguous zone. In
accordance with international law, however, the power of arrest in paragraph
185(2)(d) in relation to a person on board a foreign vessel which has been
boarded in the contiguous zone is subject to Australia’s obligations under
international law. In recognition of this, new subsection 185(2A)
provides that the power of arrest referred to in subsection 185(2) in the
contiguous zone in relation to Australia is subject to the obligations of
Australia under international law, including obligations under any treaty or
convention or other agreement between Australia and another country or other
countries.
This item amends section 186 by omitting the words
“open packages and examine weigh mark and seal” and substituting
them with the words “subject to subsections (2) and (3), examine”.
The omitted words are no longer necessary as the new subsections 186(2) and
(3) clarify the scope of the Customs’ examination
power.
The Customs power to examine goods subject to Customs
control is currently contained in sections 32, 186 and 278. This item inserts
new subsections (2) and (3) at the end of section 186 to clarify
Customs’ power to examine goods subject to Customs control. New
subsection (2) provides a broad general description of what a Customs
officer may do in the exercise of the power to examine goods. New subsection
(3) provides examples of what a Customs officer may do under new subsection
(2). The examples include, among other things, the power to read a document
either directly or with the use of an electronic device. The examples are not
exhaustive and do not purport to circumscribe the limits of the examination
power.
This item also introduces new section
186A to give Customs the power to make copies and take extracts of documents
in certain circumstances. This power is accompanied by the requirement that
Customs pays compensation for any destruction, loss or damage caused to the
documents due to insufficient care being exercised in selecting the person to
undertake the copying or being exercised by the person undertaking the copying
(new section 186B).
New subsection
186B(2) provides for the compensation to be made payable out of money
appropriated by the Parliament for that
purpose.
New subsection 186B(3)
clarifies that a reference to the loss or destruction of, or damage to a
document includes a reference to the erasure or addition of electronic data or
corruption of the documents concerned.
This item amends section 197 by adding new
subsections (6) and (7) to create a strict liability offence which carries a
penalty of 45 penalty units if a person in charge of a conveyance leaving a
Customs place refuses to stop that conveyance when required to do so by an
officer of Customs.
Section 203B currently provides Customs with the power
to search and seize, without warrant, special forfeited goods or evidential
material related thereto at a Customs place.
However, as part of NIDS, Customs is to be
given a ‘routine’ power - a power which may be exercised without the
requirement of forming a reasonable suspicion as in the existing section 203B -
in addition to the existing power in this section so that a Customs officer may
search and seize any designated container or goods reasonably suspected of being
special forfeited goods in the immediate physical possession of a person at a
designated place (see above for the definition of “designated place").
For example, this would include airport and port employees at those places.
However, the exercise of this ‘routine’ power is to be subject to
certain limitations (see new paragraph 203B(1)(b) and new subsection
203B(2B)).
Consequently, this item amends
subsection 203B(1) by repealing and substituting it with a new subsection (1).
This new subsection sets out the two circumstances in which the search and
seizure power in this section applies.
The
first circumstance set out in paragraph 203B(1)(a) occurs where an authorised
person suspects on reasonable grounds that there are special forfeited
goods:
(i) at, or in a container at, a Customs
place; or
(ii) in, on, or in a container on, a
conveyance at a Customs place.
However, it
excludes a search and seizure of a designated container found in the immediate
physical possession of a person to whom subparagraph 203B(1)(b)(i)
applies.
The second circumstance is set out in
paragraph 203B(1)(b) and covers a specific situation where a person is at a
Customs place that is also a designated place and has in his immediate physical
possession a “designated container” (defined in new subsection
183UA(1) above) or goods reasonably suspected to be special forfeited goods
at a “designated place” (new definition in subsection 4(1) above).
However, the designated container or special forfeited goods must not be carried
on his or her body within the meaning described in new subsection 4(19) (see
above). As explained above, anything deemed to be carried on the body within
the meaning of new subsection 4(19) comes within the purview of sections 219L,
219Q and 219R of the Act.
It is intended that
designated containers or goods reasonably suspected to be special forfeited
goods are only to be regarded to be in the immediate physical possession of a
person if they are carried by the person as an item held in the hand, slung over
the shoulders, worn on the back (but not carried on the body within the meaning
of subsection 4(19)), simply left standing close to the person so that a person
can pick it up (for example, at the foot of or beside the person), pushed or
pulled by the person with or without the assistance of a trolley or other method
of carriage.
Where the containers or goods are
not in the immediate physical possession of a person at Customs place that is a
designated place, then a Customs officer is required to form a suspicion on
reasonable grounds that there are special forfeited goods in the circumstances
described in new paragraph 203B(1)(a) before he or she could exercise the search
and seizure power under this section.
This item repeals the existing note to subsection
203B(1) and substitutes it with new Note 1, 2 and
3.
Note 1 draws attention to the existence of
special definitions for the terms “container” and “designated
container”.
Note 2 is necessary to make
it clear that the meaning of designated container does not include the baggage
of a passenger, captain or crew of a vessel or aircraft entering or leaving
Australia. This is necessary because the thrust of new paragraph 203B(1)(b) is
focused on persons who are not passengers, captain or
crews.
Note 3 draws attention to the use of
new subsection 4(19) in determining whether a person is carrying on his
or her body a designated container or goods reasonably suspected to be special
forfeited goods.
Item 52 - Subsection
203B(2)
This item effects a technical
amendment to subsection 203B(2) to align the provision with the redrafted
subsection (1).
Item 53 - Paragraphs
203B(2)(a) and (b)
This item effects a
technical amendment to paragraphs 203B(2)(a) and (b) by omitting “the
special forfeited goods” (wherever occurring) and substituting
“special forfeited
goods”.
Item 54 - Subsection
203B(2)
This item amends subsection 203B(2)
to clarify that the goods are seized under this section because there is a
reasonable suspicion that they are special forfeited
goods.
Item 55 - After subsection
203B(2)
This item inserts new subsections
203B(2A), (2B) and (2C).
New subsection
(2A) gives an authorised person who is an officer of Customs acting in the
circumstance set out in new paragraph 203B(1)(b), the power to search, without
warrant, any designated container in the immediate physical possession and to
seize any goods reasonably suspected of being special forfeited goods whether or
not those goods are found as a result of the search.
New subsection (2B) prohibits an
authorised person from exercising the powers under subsection (2A) unless the
person having immediate physical possession of the container to be searched is
present at the time when the container is searched.
New subsection (2C) is a clarifying
provision to state that Customs has the power to seize without warrant any goods
that have been produced or discovered as a result of a frisk, external or
internal search of a person under Division 1B.
Item 56 - Subsection
203B(3)
This item effects a technical
amendment to subsection 203B(3) to make it clear that the power in subsection
203B(3) is only to be exercised in conjunction with a search under subsections
(2) and (2A).
Item 57 - Subsection
203B(4)
This item effects a technical
amendment to subsection 203B(4) to make it clear that the power in subsection
203B(4) is only to be exercised in conjunction with a search under subsections
(2) and (2A).
Item 58 - Subparagraph
203C(1)(a)(ii)
Section 203C gives Customs
the power to seize, without warrant, special forfeited goods that are narcotic
goods at a place other than a Customs
place.
This item amends subsection 203C(1)(a)
by repealing subparagraph (ii) and substitute it with a new subparagraphs (ii)
and (iii). The terms of subparagraph (ii) remain the same except that the word
“or” replaces the word “and” so that subparagraph (iii)
contains a separate alternative circumstance to which section 203C may apply.
Subparagraph (iii) covers the circumstance
where an authorised person suspects on reasonable grounds that there are special
forfeited goods that are narcotic goods in a container in the immediate physical
possession of, but not carried on the body of, a person at a place other than a
Customs place. In such a circumstance and provided paragraph 203C(1)(b) is also
satisfied, an authorised person may, without warrant, search and seize any goods
he or she reasonably suspects are narcotic
goods.
Item 59 - Paragraphs 203C(2)(a) and
(b)
This item provides a technical
amendment to paragraphs 203C(2)(a) and (b) by omitting “the narcotic
goods” (wherever occurring) and substituting “narcotic
goods”.
Item 60 - After paragraph
203C(2)(b)
This item inserts a new
paragraph 203C(2)(c). This provision extends the search and seizure power
to allow an authorised person to search, without warrant, the container in the
immediate physical possession of a person for narcotic
goods.
Item 61 - Subsection
203C(2)
This item provides a technical
amendment to subsection 203C(2) by omitting “the goods” and
substituting “any goods that the authorised person reasonably suspects are
narcotic goods” so that it is clear that the goods referred to in the
subsection are goods reasonably suspected to be narcotic
goods.
Item 62 - After subsection
203C(2)
This item inserts new subsection
203C(2A) to clarify that the seizure power in section 203C extends to seizure of
suspected narcotic goods produced or discovered as a result of a frisk, external
or internal search conducted under Division 1B at a place other than Customs
place.
Item 63 - Subsection
203C(3)
This item provides a technical
amendment to subsection 203C(3) by inserting “under subsection (2)”
after “searching” so that it is clear that the power in subsection
(3) is to be exercised only in the course of a search under subsection
(2).
Item 64 - Subsection
203C(4)
This item effects a technical
amendment to subsection 203C(4) by omitting “the search” and
substituting ”a search conducted under subsection (2)” so that it is
clear that the power in subsection (4) is to be exercised only in relation to a
search under subsection (2).
Item 65 -
Subsection 203D(2)
This item remakes
subsection 203D(2) and also provides for the use of necessary and reasonable
force in the removal of any container or other goods from a person’s
physical possession in the circumstance described in subparagraph
203C(1)(a)(iii).
Item 66 - Subdivision
G (heading)
This item repeals the existing
heading and substitutes a new heading so that subsection 203B(2A) is also
included in the heading.
Item 67 -
Subsections 205(1) and 205B(1), section 205C, subsections 205D(1), 205E(1),
206(1), (2) and (5) and 207(1), section 208D and subsection 208DA(1)
(definition of condemned goods)
This item
effects technical amendments to all the provisions mentioned above by inserting
“(2A)” after “subsection 203B(2)”. These provisions set
out the procedure to be followed once goods are seized and extends the operation
of these sections to seizures under new subsection
203B(2A).
Item 68 - Subparagraph
219A(2)(c)(i)
This item effects a technical
amendment to subparagraph 219A(c)(i) by inserting “or (2A)” after
“203B(2)”.
Item 69 - Subsection
219L(1)
This item effects a technical
amendment to subsection 219L(1) which deals with the power of customs to conduct
a frisk search of a person reasonably suspected of unlawfully carrying
prohibited goods to align the terms of the provision with the new subsection
4(19).
Item 70 - Subsection
219L(1)
This item amends subsection 219L(1)
to extend the detention and frisk search powers to apply to a designated place
(see definition of “designated place” above) by omitting “a
place identified under section 234AA as a place of a kind referred to in that
section” and substituting “a designated
place”.
Item 71 - After subsection
219L(1)
This item amends subsection 219L(1)
by inserting new subsections (1A) and (1B) to extend the detention and frisk
search powers further to cover situations on board a ship, aircraft or
installation.
New subsection (1A) gives
Customs officers conducting a search or exercising a power under section 185 or
187 on board a ship, aircraft or installation the power to detain and frisk
search a person suspected on reasonable grounds to be unlawfully carrying
prohibited goods on his or her body.
New
subsection (1B) gives Customs officers conducting a search or exercising a
power under section 185 on board a ship or aircraft the power to detain and
frisk search a person on board that ship or aircraft or who is about to board a
Customs vessel for a purpose connected with the search or the exercise of such
other power for any weapon or thing that is capable of being used to inflict
bodily injury on an officer. This power may only be exercised if a Customs
officer suspects on reasonable grounds that a person is unlawfully carrying on
his or her body such a weapon or thing.
Item
72 - Subsection 219L(2)
This item effects a
technical amendment to subsection 219L(2) so that subsection (2) applies to new
subsections (1A) and (1B).
Item 73 -
Paragraph 219L(2)(e)
This item repeals
paragraph 219L(2)(e) and substitutes it with a new paragraph (e), (f) and (g).
New paragraph (e) recasts the existing
paragraph (e) so that the appearance of any visible item or baggage of a person
is a basis on which a reasonable suspicion may be
formed.
New paragraphs (f) and (g)
includes the answers or documents given or failure or refusal to answer or
produce documents to a Customs officer as a basis on which a reasonable
suspicion may be formed.
Item 74 -
Subsection 219M(2)
This item amends
subsection 219M(2) so that the requirements as to the provision of personal
privacy contained in the subsection only apply to a person who is detained in a
designated place that is a section 234AA place. This amendment is considered
necessary because Customs may not be able to always comply with those
requirements in a designated place that is not a section 234AA place. However,
Customs will, in such places, endeavour to give the detainee as much privacy as
the circumstances of the search allow (see below).
This item inserts new subsections (3) and (4) to
section 219M.
New subsection (3)
requires a Customs officer conducting a frisk search under section 219L to use
his or her best endeavours to give a person detained at a designated place other
than a section 234AA place as much as personal privacy as the circumstances of
the search allow.
New subsection (4)
introduces certain requirements which must be complied with by a Customs officer
before carrying out a frisk search for weapon or thing that is capable of being
used to inflict bodily injury on an officer under subsection 219L(2B).
An officer must: inform the
detainee:
(a) of the purpose of the detention,
that is, to conduct a search for any weapon or thing capable of being used to
inflict bodily injury on an officer;
(b) that
he must submit to the search and that the officer may take possession of any
weapon or such thing found as a result of the search;
and
(c) that if he fails to submit to the
search or having submitted to the search attempts to prevent an officer taking
possession of any thing found, the officer may use reasonable force to conduct
the search and take possession of that thing.
This item repeals the existing section 219N and
substitutes it with new sections 219N and 219NA.
New section 219N recasts the existing
provision to include express references to a frisk search carried out under new
subsections 219L(1) or (1A) so that an officer carrying out a search under those
subsections may require the production of any thing found as a result of the
search in order to determine whether the thing is or contains prohibited goods
unlawfully carried by the detainee.
New
section 219NA is the empowering provision for a frisk search carried out
under new subsection 219L(1B).
New
subsection (1) gives a Customs officer the power to use reasonable force to
conduct a frisk search of a person detained under subsection 219L(1B) or to take
possession of any weapon or thing found where the detainee refuses to submit to
a frisk search or having submitted, attempts to prevent an officer taking
possession of any weapon or thing found as a result of the
search.
New subsection (2) allows a
Customs officer who has taken possession of a weapon or thing under subsection
(1) to retain it for so long only as is necessary to permit the conduct of the
search or exercise of any other power under section 185 without risk of
injury.
New subsection (3) is a
clarifying provision to state that a Customs officer may, under sections 203,
203C or 203M, whichever is applicable at that time, seize any prohibited goods
coincidentally found as a result of a frisk search under subsection
219(1B).
This item amends section 219P by omitting
“section 219L” and substituting “subsection 219L(1) or
(1A)” in its place. This has the effect of allowing section 219R (which
deals with the power to conduct an external search) to apply to a person
detained under subsections 219L(1) or (1A) but not subsection 219L(1B) in
the circumstances where a detainee refuses to submit to a frisk search or,
having submitted, refuses to produce a thing required under section 219N.
Consequently, a Customs officer may only conduct a frisk search for any weapon
or thing under subsection 291L(1B) without the avenue for an external search. A
frisk search is considered sufficient because new section 219NA already confers
Customs with the power to use reasonable force to conduct the frisk search and
to take possession of any weapon or thing
found.
Item 78 - Subsection
219Q(1)
This item effects a technical
amendment to subsection 219Q(1) so that new subsections 4(19) and (19A) apply so
that a person is taken to be carrying prohibited goods on his or her body if the
prohibited goods constitutes, or are in or under, clothing worn by the person.
Item 79 - paragraph
219R(1)(b)
This item effects a technical
amendment to paragraph 219R(1)(b) to ensure consistency of expression in light
of amendment to subsection 219Q(1)
above.
Item 80 - Paragraph
219R(1)(d)
This item amends paragraph
219R(1)(d) to implement the Commonwealth Ombudsman recommendation that a
detention or police officer must apply to a Justice in the first instance for an
external search order unless a circumstance contained in new subsection 219R(1A)
occurs (see below). In such a case, an application for the order may be made to
an authorised officer instead of a
Justice.
Item 81 - After subsection
219R(1)
This item inserts new subsection
219R(1A). This amendment allows a detention or police officer to apply to an
authorised officer instead of a Justice in either of two
circumstances:
(a) where a detainee has waived
his or her right to have application for an external search order considered by
a Justice; or
(b) where a Justice is not
reasonably available to consider such an application (for example where the
search is to be conducted in a remote place).
Item 82 - paragraph
219R(12)(d)
This item effects a technical
amendment to paragraph 219R(12)(d) to ensure consistency of expression in light
of amendment to subsection 219Q(1)
above.
Item 83 - After subsection
219ZC(2)
This item inserts new subsection
219ZC(2A). This amendment implements the recommendation of the Commonwealth
Ombudsman that reasonable and necessary force may only be used in the conduct of
an external search if:
(a) an external search
order has been made by a Justice and the detainee does not submit to the search;
or
(b) an external search order has been made
by an authorised officer because a Justice was not reasonably
available.
Any force used in the conduct of an
external search in circumstances other than those set out above will not be
regarded as reasonable and necessary.
Item
84 - After paragraph 219ZE(1)(c)
This item
inserts new paragraphs 219ZE(1)(ca) and (cb) to extend the provisions that
provide for the cessation of a detention to the new circumstances under
subsections 219L(1), (1A) or (1B). A detention under those provisions ceases
when no detention officer suspects on reasonable grounds that a detainee is
unlawfully carrying prohibited goods or a weapon or thing capable of being used
to inflict bodily injury.
Item 85 -
Paragraph 219ZE(1)(d)
This item effects a
technical amendment to paragraph 219ZE(1)(d) to ensure consistency of expression
in light of amendment to subsection 219Q(1)
above.
Item 86 - After subsection
219ZL(4)
This item inserts new subsection
219ZL(4A) to provide protection from civil or criminal action for Justices
performing a function connected with making an order under section
219R.
This item inserts a new “Part XIIA –
Special provisions relating to prohibited
weapons”.
New section 227A provides an overview of the
Part. This Part provides a scheme whereby Customs may take into custody certain
weapons on board a ship or an aircraft that is in Australia after arriving in
Australia from a place outside Australia if there is no secure place on board
the ship or aircraft to keep the weapons for the duration of the ship’s or
aircraft’s stay in Australia.
New section 227B provides definitions for the
terms “operator” and “prohibited weapon” so that in this
Part “operator” means the owner, master or pilot of a ship or
aircraft and “prohibited weapon” means “a thing that is a
firearm, firearm accessory, firearm part, firearm magazine or ammunition to
which this Part applies because of section 227D.”
New section 227C sets out the circumstances in
which this Part would apply to a ship or
aircraft.
This Part applies to a ship or an
aircraft if the ship or aircraft is in Australia after undertaking a voyage to
Australia from a place outside Australia and the ship or aircraft is not a ship
or an aircraft that is taken to have been imported into Australia under
subsection 49A(7) (new subsections 227C(1) and
(2)).
This part ceases to apply to a ship
or an aircraft when the ship or aircraft has departed from its last port or
airport in Australia for a place outside Australia or when the ship or aircraft
is taken to have been imported into Australia under subsection 49A(7) (new
subsections 227C(3) and (4)).
New
subsections 227C(5) and (6) are inserted to ensure that this Part applies
afresh to a ship or an aircraft which has departed from its last port or airport
in Australia for a place outside Australia but has returned before completing
its voyage to that place outside Australia.
New subsection 227D provides for the
application of this part to any thing that is a firearm, firearm accessory,
firearm part, firearm magazine or ammunition if
it:
a) is on board a ship or an aircraft to
which this Part applies; and
b) falls within
column 2 of an item in Part 2 of Schedule 6 to Regulation 4F of the Customs
(Prohibited Imports) Regulations (“the Regulations);
and
c) does not meet the requirements that
apply to that thing as specified in column 3 of that item in that Part of that
Schedule of the Regulations; and
d) is, or
should have been, specified in a report given by the operator under section 64AA
as part of the stores, or personal effects of the crew, of the ship or
aircraft.
It should be noted that the firearm,
firearm accessory, firearm part, firearm magazine or ammunition covered by this
part would be prohibited imports under Regulation 4F of the if they were landed
or intended to be landed.
New section 227E covers matters relating to the
approved storage for prohibited weapons.
New
subsection 227E(1) gives an officer of Customs the discretion to approve, in
writing, a place on board a ship or an aircraft to store prohibited weapons
while this part applies to the ship or
aircraft.
An officer must not approve a place
on board a ship or an aircraft to store prohibited weapons unless he or she is
satisfied that only the operator may access the place and the place is otherwise
sufficiently secure for the purposes of preventing persons from removing the
weapon from the place (new subsection 227E
(2)).
New subsection 227E(3) gives
an officer the power to place a fastening, or a lock, mark or seal on an
approved place for the purposes of preventing persons from accessing that
place.
New subsection 227E(4) provides
for an approval given under subsection (1) to continue in force, if not revoked
at an earlier time, until this Part ceases to apply to the ship or aircraft
concerned.
New subsections 227E(5) and
(6) create a strict liability offence carrying a penalty of 45 penalty units
for a person who interferes in any way with any fastening, lock, mark or seal
placed on the approved place by an officer or who remove the weapon from the
approved place.
This section deals with matters relating to the
custody of prohibited weapons under this
Part.
New subsection 227F(1) requires an
officer to take custody of a prohibited weapon where no approval under section
227E is in force while this Part applies to that
weapon.
New subsection 227F(2) requires
an officer to give a written notice, within 48 hours after taking custody of a
prohibited weapon, to the operator of the ship or aircraft from which the weapon
is taken.
New subsections 227F(3) and
(4) requires the notice to be in an approved form and to identify the
prohibited weapon concerned.
New subsection
227F(5) requires the CEO to ensure that a weapon taken into custody be
securely stored and returned to the operator of the ship or aircraft concerned
when it is at its last port or airport of call in Australia and after a section
118 Certificate of Clearance has been given or when this Part ceases to apply to
the ship or aircraft because it is taken to have been imported into Australia
under subsection 49A(7).
New subsection
227F(6) is a clarifying provision to ensure that new subsection 227F(5) does
not affect Customs power to seize or otherwise deal with the weapon under the
Act when this Part ceases to apply to the ship or aircraft
concerned.
New subsection 227F(7)
requires an operator to comply with any conditions specified by the CEO in
relation to the storage of weapons returned to the operator under subsection (5)
before the ship or aircraft leaves Australia.
New section 227G provides for compensation for
the loss, destruction or damage to a prohibited weapon taken into custody by
Customs to be made to the owner where the loss, destruction or damage is caused
by insufficient care being exercised in selecting the persons to undertake an
activity in relation to a prohibited weapon taken into custody or insufficient
care being exercised by such person undertaking that activity. New section 227G
also provides for the compensation to be made payable out of money appropriated
by the Parliament.
This items repeals section 278 as the examination
power is now consolidated in section 186 (see above).
Item 1 – Subsections 16(1), (2) and
(3)
This item repeals the existing
subsections 16(1), (2) and (3) of the Customs Administration Act 1985
(which is “the Act” referred to in the clause notes for this
Schedule) and substitutes new subsections (1), (1A), (2), (3), (3A), (3B), (3C),
(3D), (3E).
Overview
New
subsection (1) is an overview of the section and setting out its purpose
following the insertion of the new provisions.
Definitions
New
subsection (1A) sets out definitions which will apply in section 16.
The existing definitions at Subsection (7) of
“AQIS”, “authorised officer of AQIS” and
“food” are moved to this subsection and a number of new definitions
included.
In relation to the following
definitions inserted under the new subsection (1A):
the term “authorised
person” is intended to identify those persons who under subsection (2)
will be subject to the obligation of secrecy and who may be authorised by the
Chief Executive Officer of Customs (CEO) or his or her delegate to disclose
information or a class or information in accordance with the section. The
definition extends to persons who are engaged to provide goods or services to
the Commonwealth through the Australian Customs Service e.g., contractors and
consultants;
the definition of
“Commonwealth agency” is inserted into the Act. This alters
the current situation in which the term “agency” takes its meaning
from that contained in the Freedom of Information Act 1982. Inserting
this definition eliminates the need to have to look at two Acts to find out what
the term means;
the
“duties” being performed by an “authorised
person” subject to the secrecy provisions are those duties connected
with responsibilities performed on behalf of Customs. The Act’s secrecy
provisions do not apply to other responsibilities of a person, for example where
a State government employee performs some Customs functions, the secrecy
provisions would not extend to those responsibilities concerning the state
government;
an “international
organisation” is defined as one falling within the meaning of the
Diplomatic Privileges & Immunities Act 1967 or as identified as such
within regulations made under the Act. This definition is necessary for the
disclosure provision at subsection (3D);
the
expression “personal information” has the same meaning as
arises in the Privacy Act 1988. Later new provisions specifically address the
disclosure of personal information and it is intended to remain consistent with
that Act in the meaning of that expression.
the definition of “principal
officer” is inserted into the Act. This alters the current situation
in which the term “agency” takes its meaning from that contained in
the Freedom of Information Act 1982. Inserting this definition
eliminates the need to have to look at two Acts to find out what the term means;
the
“protected information”, that is, the information the subject
of the Act’s secrecy provisions is that acquired as a consequence of
performing the duties of an authorised person;
“State” is defined
expressly to include the Northern Territory and the Australian Capital
Territory. The existing s.16(1)(c) defines State to include the Northern
Territory, but makes no provision for the Australian Capital Territory;
“State agency” is a new
definition in similar terms to that of “Commonwealth agency”.
However, as the definition is applicable to the official disclosure provisions
at subsection (3B) and (3C) and it is not intended that those provisions be used
for disclosures to a municipal corporation or any other local government body,
the definition expressly excludes these latter bodies.
Prohibition against disclosure etc. of
protected information
New subsection
(2) is an offence provision, which prohibits a person who is or has been an
authorised person making a record or disclosing protected information except if
authorised by the Section or as required or authorised by another law or in the
course of performing duties. The maximum penalty is imprisonment for two (2)
years.
This provision:
. eliminates the reference in the existing
s.16(2) to producing documents
and refers solely
to making a record or disclosing protected information;
and
. removes
the complexity in the existing s.16(2) arising from the need to
prove the elements of breach of confidence as
part of any prosecution
under the provision.
Authorised disclosures under this
section
New subsection (3) ensures
that disclosures under subsections (3A), (3B), (3C) or (3D) are authorised by
the Section and that acting in accordance with those Subsections would
constitute a lawful exception to the offence provision at subsection (2). (See
paragraph (2)( c)).
. The authorisation is
subject to compliance with particular requirements in
relation to personal information proposed in
subsections (7), (8), (9) and
(10).
CEO’s authorisation –
Commonwealth agency
New subsection
(3A) provides that the CEO may authorise in writing the disclosure of
information or a class of information by an authorised person to a Commonwealth
agency for the purpose of its functions. This provision has a number of
features:
. The disclosure may be made to the
principal officer of that agency or a
person
authorised to act on behalf of that agency. This seeks to correct
the existing anomaly that disclosure to a
Commonwealth agency under
s.16(3)(a)(i) may
only be made to the principal officer.
. The
provision provides for the disclosure of a class of information so as
to allow a single authorisation in writing to
suffice rather than multiple
approvals for
essentially the same kind of material.
.
This would permit computer transfer of a class of information, subject to
conditions which may apply (see also paragraph
((3A)(d)). There is no
provision in the
existing provision for computer transfer of information.
. The CEO must be satisfied that the
Commonwealth agency has
undertaken not to
further use or disclose material to be provided except
for the purpose given in the authorisation. The
material may not
otherwise be disclosed except
as required or authorised by law.
The purpose
must be specified in writing (paragraph (3A)(d))
and the CEO may not specify any purpose that is not related to the
performance of the functions of the recipient
agency concerned
(subsection (3E)((a)).
. The CEO may not authorise a disclosure of
personal information under
subsection (3A)
without complying with the additional requirements set
out at subsections (7), (8) and (10).
CEO’s authorisation – State
agency for Commonwealth purposes
New
subsection (3B) provides that the CEO may authorise the disclosure of
information or a class of information by an authorised person to a State agency
for the carrying out of a Commonwealth function by that agency.
For example in relation to a State government
official performing functions on behalf of Customs in a remote area. This
provision is similar in substance to subsection (3A) including in relation to
the requiring of an undertaking from the agency (Subsection (3B) (b)) and
additional limitations which must be complied with concerning personal
information (Subsections (7), (8) and (10). The existing provisions (s.16(3)) do
not provide for disclosures to a State agency to carry out a Commonwealth
function.
The CEO may not authorise disclosure
for a purpose under this provision other than for a specified purpose relating
to the performance by that State agency of a Commonwealth function (Subsections
(3B) (d) and (3E)(b)).
CEO’s
authorisation – State agency for State purposes
New subsection (3C) provides that
the CEO may authorise the disclosure of information or a class of information by
an authorised person to a State agency for the performance of its own
functions. Similarly to subsections (3A) and (3B) there is a requirement in
relation to the requiring of an undertaking from the State agency (Subsection
(3C) (b)) and additional limitations which must be complied with concerning
personal information (Subsections (7),(8) and
(10).
The existing provisions (s.16(3)((b))
limit disclosure to the State authorities to where the CEO is satisfied that the
information will be used for an investigation whether an offence has been
committed under State law. The new provision recognises that there may be
circumstances where disclosure to a State agency may be necessary for different
purposes including intelligence purposes with law enforcement authorities,
revenue matters and so on.
The CEO may not
authorise disclosure for a purpose for disclosure under this provision other
than for the performance of the functions of the State agency concerned
(Subsections (3C)(d) and (3E)(c)).
CEO’s authorisation – certain
agreements
New subsection (3D)
provides that the CEO may authorise the disclosure of information or a class of
information by an authorised person to a foreign country, an instrumentality or
agency of a foreign country or an international organisation.
It recognises that an agreement may be entered
into by the Commonwealth or a particular Commonwealth agency (including the
Australian Customs Service) which may involve the disclosure of information. For
example an agreement with a foreign Customs service or other law enforcement
body. Where such an agreement exists, the CEO may under subsection (3D)
authorise disclosure subject to an undertaking that the information will not be
used or further disclosed except for the purpose for which the disclosure was
authorised (Subsection (3D)(b) and (d)).
The
existing provision (s.16(3)(c)) provides for disclosure to the government of a
foreign country for the purpose of investigating whether an offence has been
committed against the law of that country or for investigating whether
circumstances exist by reason of which the Minister or CEO may exercise a power
under Commonwealth law. The new provision seeks to address the deficiencies in
the provision by recognising the existence of foreign agencies as such (e.g.,
foreign Customs and law enforcement agencies) as well as international
organisations. While the new provision requires that an agreement exist, the
authority to disclose is based on the subsection and a distinct decision by the
CEO to disclose under the subsection is
required.
The CEO may not authorise a
disclosure under subsection (3D) unless the purpose is related to the purpose of
the agreement concerned (See subsection
(3E)(d)).
The CEO may specify the manner of
disclosure as well as any conditions under which the disclosure is made
(Subsection (3D)(d)). The new provision would permit the disclosure of
information or a class of information by computer system if the CEO so specified
in the authorisation.
The CEO may not disclose
personal information under subsection (3D) unless the additional requirements at
subsections (7), (8) and (10) are complied with.
Specified purpose in an authorisation by
the CEO
New subsection (3E)
limits the CEO from authorising a disclosure of information or a class of
information under subsections (3A), (3B), (3C) or (3D) as discussed above.
Within those disclosure provisions, at
paragraphs (3A)(d), (3B)(d), (3C)(d) or (3D)(d) respectively, the CEO is
required to specify a purpose for which the disclosure is authorised to be made.
This purpose must be within the limits of a purpose set out in subsection (3E)
applicable to that subsection.
Subsection
(3E) applies to the any disclosure of information or a class or information
under those subsections, irrespective of whether or not personal information is
involved
Where personal information is
concerned, the requirements of subsection (3E) must be met as well as
subsections (7) to (10) (discussed below) before the CEO can authorise a
disclosure.
Authorised disclosure because
of threat to health or life
New
Subsection (3F) is inserted in recognition of the fact that there are
emergency circumstances in which making a record or disclosing information must
take place. Where there are reasonable grounds to believe that a serious and
imminent threat to the health or life of a person or persons may exist and it is
necessary to act to avert or reduce that threat, then subsection (3F) permits
the making of a record, or the disclosure of information to another person.
Subsection (3)(b) ensures that subsection (3F)
is considered an authority to make a record or disclose protected information.
Item 2 – Subsection 16(7)
Under this item, subsection 16(7) is
repealed. That provision contained definitions placed within the new subsection
(1A). New subsections (7), (8), (9) and (10) are substituted for subsection
16(7).
Disclosure of personal
information
New subsections (7), (8),
(9) and (10) impose requirements in relation to an authorisation for
disclosure of information which may be or contain personal information. These
apply in addition to any requirements arising in the authorisation
provisions at subsections (3A), (3B), (3C), (3D) or (4).
This reflects a considerable change from the
existing s.16(3), which does not expressly mention personal information, though
disclosure is subject to the requirements of the Privacy Act 1988. These new
requirements are intended to be consistent with that latter Act.
New subsection (7) ensures that where
personal information is concerned the provisions under the section do not
authorise disclosure unless in the case of:
.
particular information: there is compliance with subsection (8); and
. a class of information: there is compliance
with subsections (8) and (10).
The subsection
essentially requires that any authorisation of the CEO for the disclosure of
personal information must meet the terms of subsection (8) and conform with one
or more of the purposes set out in subsection (9) for that disclosure to be
lawful. Where the intended authorisation concerns a class of information, it
must also conform with these requirements together with those set out in
subsection (10) with respect to the regulations.
New subsection (8) applies to any
disclosure of particular information or a class of information that contains
personal information. It requires the CEO to be satisfied that the disclosure
is necessary for one of the purposes at subsection (9) and that the given
purpose must be specified in any written authorisation under subsections (3A) to
(3D) or otherwise a written approval in relation to subsection (4). It also
requires that the actual disclosure be made for that purpose.
New subsection (9) specifies the only
permissible purposes for which information or a class of information containing
personal information may be authorised to be disclosed under the section. They
are:
(a) the administration or enforcement of a
law of the Commonwealth, of a Territory or of another country that relates to:
(i) criminal law;
or
(ii) a law imposing a pecuniary penalty or
providing for the forfeiture of property;
(b)
in relation to a law referred to in paragraph (a), the prevention of crime, or
the detection or analysis of criminal conduct, in respect of that
law;
(c) the administration or enforcement of a
law of a State that relates to:
(i) criminal law;
or
(ii) a law imposing a pecuniary penalty or
providing for the forfeiture of property;
(d)
in relation to a law referred to in paragraph (c), the prevention of crime, or
the detection or analysis of criminal conduct, in respect of that law;
(e) a purpose relating to the protection of
public health, or the prevention or elimination of risks to the life or safety
of an individual or a group of individuals;
(f)
the collection of the public revenue of the Commonwealth, a Territory or another
country;
(g) the collection of the public
revenue of a State;
(h) a purpose relating to a
law of customs or excise;
(i) a purpose
relating to immigration, quarantine or border control between Australia or
another country;
(j) the administration of laws
with respect to commerce:
(i) between a State and
another State; or
(ii) between a State and a
Territory; or
(iii) between a Territory and another
Territory; or
(iv) between Australia and another
country;
(k) the administration or enforcement
of laws with respect to commerce within a State.
New subsection (10) is a requirement in
addition to subsections (7), (8) and (9) that applies to the situation where a
class of information containing personal information may be disclosed. The new
subsection (10) requires that the identity of the:
. Commonwealth agency;
. State agency;
.
instrumentality or agency of a foreign country;
or
. international organisation,
to which a
disclosure is being authorised must first be specified in regulations. It also
requires the regulations to specify the class of information that may be
disclosed to that agency, country, instrumentality or organisation concerned.
These regulations must be in existence before any such authorisation for
disclosure is made.
The purpose of the
particular disclosure of a class of information containing personal information
must be a permissible purpose set out at subsection (9).
Item 3 – After Section 16
New section 16AA is intended to
make provision for the purposes of a prosecution for an offence against the
secrecy provision at the new subsection 16(2) as well as related offences
arising at ss. 5, 6, 7, 7A or 86(1) of the Crimes Act 1914. It provides
a means of proving the state of mind of a body corporate and individuals in
relation to particular conduct as well as to attribute the conduct of a
director, employee or agent of a body corporate to that body corporate where the
conduct was within actual or apparent authority.
This new section is necessary as the offence
provision at subsection 16(2) concerns the conduct of an “authorised
person” which can include a director, employee or an agent of a body
corporate engaged to provide goods or services to the Commonwealth through the
Australian Customs Service (See the definition of “authorised
person” at new subsection 16(1A)).
Under consultancies and contracts for the
provision of services, such parties may gain access to protected information.
Therefore, the same legal responsibility under the new provisions are to apply
to these as to officers or employees of the Australian Customs Service.