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CUSTOMS LEGISLATION AMENDMENT ACT (NO. 1) 1999 NO. 137, 1999 - SCHEDULE 2

- Amendment of the Customs Administration Act 1985

1 Subsections 16(1), (2) and (3)

Repeal the subsections, substitute:

Overview

(1)
This section:

(a)
prohibits the unauthorised disclosure and recording of certain information held by the Australian Customs Service (see subsection (2)); and

(b)
provides for a number of exceptions in relation to that prohibition (see subsections (3) to (4)); and

(c)
makes other provisions that relate to each of those exceptions (including, in particular, the provisions on the disclosure of personal information under subsections (7) to (10)).

Definitions

(1A)
In this section:

AQIS means the operating group within the Department of Primary Industries and Energy having responsibility in relation to the administration of the Imported Food Control Act 1992 and the Quarantine Act 1908 .

authorised officer of AQIS means the Secretary to the Department of Primary Industries and Energy or an officer of AQIS appointed by the Secretary under the Imported Food Control Act 1992 to be an authorised officer for the purpose of any provision of that Act.

authorised person means:

(a)
the CEO; or

(b)
a person performing duties in the Australian Customs Service as a person employed or engaged by the Commonwealth, a Commonwealth agency, a State or a State agency; or

(c)
any of the following persons:

(i)
a person engaged to provide goods or services to the Commonwealth through the Australian Customs Service (whether or not under an agreement to which the Commonwealth is a party);
(ii)
if the person mentioned in subparagraph (i) is a body corporate—a director, an employee or an agent, of that body corporate;
(iii)
if the person mentioned in subparagraph (i) is an individual—an employee or an agent of that individual; or
(d)
a person to whom the CEO has delegated a power or function of the CEO under a law of customs or excise or any other law of the Commonwealth; or

(e)
a person authorised by the CEO to exercise a power or function of the CEO under a law of customs or excise or under any other law of the Commonwealth.

Commonwealth agency means any instrumentality or agency of the Crown in right of the Commonwealth, and includes a department of the public service of the Commonwealth and any body corporate in which the Commonwealth holds a controlling interest, but does not include a Minister of the Crown in right of the Commonwealth.

duties , in relation to an authorised person, means the duties of the person in the capacity because of which he or she is an authorised person and only includes such duties that are performed in or in connection with the Australian Customs Service.

Example: In the case of an authorised person who is employed by a State agency, the person's duties, for the purposes of this section, include only those duties performed in or in connection with the Australian Customs Service as such an employee and does not include the person's other duties as an employee of that State agency.

food has the same meaning as in the Imported Food Control Act 1992 .

international organisation means:

(a)
an international organisation within the meaning of the Diplomatic Privileges and Immunities Act 1967 ; and

(b)
any other international organisation prescribed by the regulations for the purposes of this paragraph.

personal information has the same meaning as in the Privacy Act 1988 .

principal officer , in relation to a Commonwealth agency or a State agency, means:

(a)
if the agency is constituted by one person—that person; and

(b)
if the agency is constituted by more than one person—the person who is entitled to preside at any meeting of the agency at which he or she is present; and

(c)
in any other case—the person holding, or performing the duties of, the office of the head of that agency.

protected information means information that directly or indirectly comes to the knowledge of, or into the possession of, an authorised person while the authorised person is performing his or her duties (whether the information is related to those duties or not).

State includes the Northern Territory and the Australian Capital Territory.

State agency means any instrumentality or agency of the Crown in right of a State, and includes a department of the public service of the State and any body corporate in which the State holds a controlling interest, but does not include a Minister of the Crown in right of the State, a municipal corporation or any other local government body.

Prohibition against disclosure etc. of protected information

(2)
A person who is or has been an authorised person must not directly or indirectly:

(a)
make a record of any protected information; or

(b)
disclose to any person any protected information;

except:

(c)
as authorised by this section; or

(d)
as required or authorised by any other law; or

(e)
in the course of performing the person's duties.

Penalty: Imprisonment for 2 years.

Authorised disclosure under this section

(3)
Subject to subsections (7), (8) and (10), a person is authorised by this section to carry out an act referred to in paragraph (2)(a) or (b) if it is carried out:

(a)
in accordance with an authorisation by the CEO that is referred to in subsection (3A), (3B), (3C) or (3D); or

(b)
as provided in subsection (3F) or (4).

CEO's authorisation—Commonwealth agency

(3A)
Subject to subsections (3E), (7), (8) and (10), if the CEO is satisfied that:

(a)
information or a class of information held by the Australian Customs Service will be used by a Commonwealth agency for the purposes of that agency's functions; and

(b)
the Commonwealth agency has undertaken not to use or further disclose such information or class of information except for the purpose referred to in paragraph (d) or otherwise as required or authorised by law;

the CEO may in writing:

(c)
authorise the disclosure by an authorised person of the information or the class of information to the principal officer of, or a person authorised to act on behalf of, that agency; and

(d)
specify the purpose for which the disclosure is authorised to be made and the manner in which, or the conditions under which, the disclosure is to be made (including the form in which the information is to be presented and the mode of transmitting that information).

CEO's authorisation—State agency for Commonwealth purposes

(3B)
Subject to subsections (3E), (7), (8) and (10), if the CEO is satisfied that:

(a)
information or a class of information held by the Australian Customs Service will be used by a State agency for purposes relating to the carrying out of a Commonwealth function by that agency; and

(b)
the State agency has undertaken not to use or further disclose such information or class of information except for the purpose referred to in paragraph (d) or otherwise as required or authorised by law;

the CEO may in writing:

(c)
authorise the disclosure by an authorised person of the information or the class of information to the principal officer of, or a person authorised to act on behalf of, that agency; and

(d)
specify the purpose for which the disclosure is authorised to be made and the manner in which, or the conditions under which, the disclosure is to be made (including the form in which the information is to be presented and the mode of transmitting that information).

CEO's authorisation—State agency for State purposes

(3C)
Subject to subsections (3E), (7), (8) and (10), if the CEO is satisfied that:

(a)
information or a class of information held by the Australian Customs Service will be used by a State agency for the purposes of the performance of the functions of the State agency; and

(b)
the State agency has undertaken not to use or further disclose such information or class of information except for the purpose referred to in paragraph (d) or otherwise as required or authorised by law;

the CEO may in writing:

(c)
authorise the disclosure by an authorised person of the information or the class of information to the principal officer of, or a person authorised to act on behalf of, that agency; and

(d)
specify the purpose for which the disclosure is authorised to be made and the manner in which, or the conditions under which, the disclosure is to be made (including the form in which the information is to be presented and the mode of transmitting that information).

CEO's authorisation—certain agreements

(3D)
Subject to subsections (3E), (7), (8) and (10), if the CEO is satisfied that:

(a)
information or a class of information held by the Australian Customs Service will be used in accordance with an agreement that has been entered into by the Commonwealth or a Commonwealth agency and one or more of any of the following:

(i)
a foreign country;
(ii)
an instrumentality or agency of a foreign country;
(iii)
an international organisation; and
(b)
the country, instrumentality, agency or organisation has undertaken not to use or further disclose that information except for the purpose referred to in paragraph (d) or otherwise as required or authorised by law;

the CEO may in writing:

(c)
authorise the disclosure by an authorised person of the information or the class of the information to a person authorised to act on behalf of that country, instrumentality, agency or organisation; and

(d)
specify the purpose for which the disclosure is authorised to be made and the manner in which, or the conditions under which, the disclosure is to be made (including the form in which the information is to be presented and the mode of transmitting that information).

Specified purpose in an authorisation by the CEO

(3E)
The CEO may only specify a purpose for the disclosure of information or a class of information in an authorisation under subsection (3A), (3B), (3C) or
(3D)
that:

(a)
in the case of subsection (3A)—is related to the performance of the functions of the Commonwealth agency concerned; and

(b)
in the case of subsection (3B)—is related to the performance of the Commonwealth function concerned; and

(c)
in the case of subsection (3C)—is related to the performance of the functions of the State agency concerned; and

(d)
in the case of subsection (3D)—is related to the purpose of the agreement concerned.

Note: The obligations under subsection (3E) is affected by paragraph (8)(b) if the information concerned contains personal information.

Authorised disclosure because of threat to health or life

(3F)
A person may carry out an act referred to in paragraph (2)(a) or (b) if there are reasonable grounds for that person to believe that:

(a)
a serious and imminent threat to the health or life of a person or persons exists or might exist; and

(b)
it is necessary to carry out that act in order to avert or reduce that threat.

Note 1: The following heading to subsection 16(4) is inserted " Authorised disclosure of cargo reports etc. ".

Note 2: The following heading to subsection 16(5) is inserted " Prohibition against further disclosure " .

Note 3: The following heading to subsection 16(6) is inserted " Computer access to certain information ".

2 Subsection 16(7)

Repeal the subsection, substitute:

Disclosure of personal information

(7)
If:

(a)
apart from this subsection, a person is authorised by this section to carry out an act referred to in paragraph (2)(a) or (b) because of the operation of subsection (3A), (3B), (3C), (3D) or (4); and

(b)
the act involves the disclosure by that person to another person or to a body of information (including a class of information) that contains personal information;

then, despite the preceding provisions in this section, the person is not to be taken to be authorised by this section to carry out that act unless:

(c)
the disclosure complies with subsection (8); and

(d)
in the case of a disclosure of a class of information pursuant to an authorisation under subsection (3A), (3B), (3C) or (3D)—the disclosure also complies with subsection (10).

Requirements applicable to disclosure of information containing personal information

(8)
This subsection is complied with in relation to the disclosure of information as referred to in subsection (7) if:

(a)
the CEO is satisfied that the disclosure is necessary for a permissible purpose referred to in a paragraph of subsection (9); and

(b)
the purpose is specified as the purpose for which the disclosure is authorised to be made in:

(i)
an authorisation under subsection (3A), (3B), (3C) or (3D) that applies to the disclosure; or
(ii)
in the case of a disclosure under subsection (4)— a written approval of that disclosure made by the CEO under this subsection; and
(c)
the disclosure is made for that purpose.

Permissible purposes

(9)
A purpose specified in any of the following paragraphs is a permissible purpose for the purpose of subsection (8):

(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 or enforcement 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.

Additional requirements concerning classes of information

(10)
This subsection is complied with in relation to a disclosure of a class of information pursuant to an authorisation under subsection (3A), (3B), (3C) or (3D) as referred to in subsection (7) if:

(a)
the disclosure is made to a Commonwealth agency, State agency, a foreign country, an instrumentality or agency of a foreign country or an international organisation, that is specified in the regulations; and

(b)
the class of information specified by the CEO in the authorisation is specified in the regulations as a class of information that may be disclosed to the agency, country, instrumentality or organisation concerned.

3 After section 16

Insert:

16AA Conduct by directors, employees and agents

(1)
This section applies for the purposes of a prosecution for:

(a)
an offence created by a provision in this Act or the regulations; or

(b)
an offence created by section 5, 6, 7 or 7A or subsection 86(1) of the Crimes Act 1914 that relates to an offence referred to in paragraph (a).

(2)
If it is necessary to prove the state of mind of a body corporate in relation to particular conduct, it is enough to show that:

(a)
the conduct was engaged in by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and

(b)
the director, employee or agent had the state of mind.

(3)
If:

(a)
conduct is engaged in on behalf of a body corporate by a director, employee or agent of the body corporate; and

(b)
the conduct is within the scope of his or her actual or apparent authority;

the conduct is taken, for the purposes of the prosecution of an offence against this Act, to have been engaged in also by the body corporate unless the body corporate establishes that it took reasonable precautions and exercised due diligence to avoid the conduct.

(4)
In this section:

director , in relation to a body that:

(a)
is incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory; and

(b)
is constituted by one or more members;

means the member, or any of the members, constituting the body.

engage in conduct includes fail or refuse to engage in conduct.

state of mind , in relation to a person, includes:

(a)
the person's knowledge, intention, opinion, belief or purpose; and

(b)
the person's reasons for the intention, opinion, belief or purpose.


[ Minister's second reading speech made in—
Senate on 25 November 1998
House of Representatives on 21 October 1999 ]
(143/98)


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