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2002
THE PARLIAMENT OF THE COMMONWEALTH
OF AUSTRALIA
HOUSE OF REPRESENTATIVES
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the Minister for Justice and Customs,
Senator the Honourable
Christopher Martin Ellison)
BORDER SECURITY LEGISLATION AMENDMENT BILL 2002
OUTLINE
The purpose of this Bill is to amend the Customs
Act 1901 (the Customs Act) and the Customs Administration Act 1985
(the Customs Administration Act), the Fisheries Management Act 1991 (the
Fisheries Management Act), the Migration Act 1958 (the Migration Act) and
the Evidence Act 1995 (the Evidence Act)
to:
• increase Customs powers at airports by allowing Customs
officers to patrol airports, increasing the restricted areas in which
unauthorised entry is prohibited and by allowing officers to remove people from
those restricted areas (Schedules 1 and 3);
• require employers of
people who work in restricted areas of the airport to provide information about
those people to Customs (Schedule 2);
• require the issuers of
security identification cards (which are issued to most people who work at
airports) to provide information about the people to whom they have issued
security identification cards (Schedule 2);
• require goods that are in
transit through Australia to be reported to Customs (Schedule
4);
• allow in transit goods to be examined and certain in transit
goods to be seized (Schedule 4);
• require mail to be electronically
reported to Customs as part of a cargo report (Schedule 5);
• require
certain airlines and shipping operators to report passengers and crew to Customs
and the Department of Immigration and Multicultural and Indigenous Affairs
electronically (Schedule 6);
• require certain airlines to provide
Customs with access to their computer reservation systems (Schedule
7);
• allow the Australian Fisheries Management Authority to disclose
vessel monitoring system data to Customs under the Fisheries Management Act
(Schedule 8);
• allow the Chief Executive Officer of Customs to
authorise a person to perform the functions of a Customs officer by reference to
their position or office even if that position or office does not exist at the
time of making the authorisation (Schedule 9);
• tighten provisions
allowing the Chief Executive Officer of Customs to authorise the carriage of
approved firearms and personal defence equipment by Customs officers for the
safe exercise of powers conferred under the Customs Act and other Acts (Schedule
10);
• restore the power to arrest persons who assault, resist,
molest, obstruct or intimidate a Customs officer in the course of his or her
duties, which was inadvertently removed by the Criminal Code Amendment
(Theft, Fraud, Bribery and Related Offences) Act 2000 (Schedule 11);
• include the Australian Bureau of Criminal Intelligence as a
Commonwealth agency for the purposes of section 16 of the Customs Administration
Act (Schedule 12); and
• provide that certain undeclared dutiable goods
found in the unaccompanied personal and household effects of a person are
forfeited goods (Schedule 13).
FINANCIAL IMPACT STATEMENT
It is
estimated that the costs to Customs for the upgrade of systems to accept and
process in-transit goods reports will be no more than $0.1m for both current and
future automation systems. Some reporters may be required to amend processes
and practices in order to report in-transit goods. It is anticipated that the
costs of this additional reporting will be marginal.
The changes to
passengers and crew reporting are not expected to have a significant impact on
Commonwealth expenditure or revenue.
There is a cost for the ongoing
service fees associated with access to airline passenger information computer
systems, namely; purchase of system infrastructure and connection devices, and
Customs staff and associated supplier expenses required to develop and operate
the systems and analyse passenger data. The issue of supplementation is under
consideration.
The other amendments in this Bill have no financial
impact.
REGULATION IMPACT STATEMENT
PROPOSAL TO AMEND THE
CUSTOMS ACT 1901 TO ACCESS INFORMATION ON ARRIVING AND DEPARTING
PASSENGERS
1. Issue
1.1 The limitations of the passenger
report
Subsection 64AC(2A) of the Customs Act 1901
(“the Act”) requires that the pilot or owner of an aircraft that is
on a voyage to Australia provide Customs with the number of passengers and the
full name and date of birth of each crew member who were or will be on board the
aircraft at the time of the aircraft’s arrival at the airport. The
information must be provided at the time of arrival of the aircraft if provided
electronically, or if the information is to be provided by document, not later
than 3 hours after the arrival of the aircraft.
This basic information
enables Customs to plan and allocate sufficient resources to clear the
passengers on arrival. However such information is insufficient for Customs to
be able to determine whether to examine the passenger or the passenger’s
baggage in order to establish whether the passenger represents a risk to the
border.
1.2 Acquiring additional passenger information from the
airline
Under section 64AE of the Act a Customs officer has the
power to request the airline to produce additional information about the
passenger. The Customs officer will request such information from the airline
to establish the veracity of the declaration and to assist the Customs officer
to make a decision as to whether the passenger or the passenger’s baggage
should be examined.
The information that the airline primarily provides
is referred to as the Passenger Name Record (PNR). The PNR is derived from the
airline’s Computerised Reservation System (CRS). This system records the
passenger’s booking and flight arrangements with an airline. All
International air carriers operating scheduled passenger flights into and out of
Australia use a Computerised Reservation System.
1.2.1 The
significance of PNR information
The PNR is significant to a Customs
officer because it contains information that assists the officer in making a
correct risk assessment of the passenger. This
information includes:
- Booking and itinerary details,
- Seating and
baggage details;
- Form of ticket payment.
Such information can,
together with the information on the passenger’s declaration form, assist
to either allay or confirm the suspicion of a Customs officer as to whether a
passenger represents a risk to border integrity.
PNR information is also
valuable in identifying passengers who may present a security, quarantine,
health or immigration risk. The PNR information would show for example, that a
passenger had spent time in a country that has a foot and mouth outbreak. The
PNR may also show credit card details which may reveal links between the
passenger and, for example, a known terrorist. Evaluation of both the PNR and
the passenger’s answers to questions would then enable a decision to be
made regarding further examination.
1.2.2 When does Customs request
PNR information?
Customs requests that airlines produce PNR
information prior to the arrival of the aircraft. Pre-arrival screening enables
Customs to target high risk travellers and expedite the clearance of the
remaining passengers.
1.2.3 The effect of late receipt of PNR
information
The late receipt of PNR information means that
preliminary screening of passengers against profiles cannot be undertaken before
their arrival. The result may be a delay in the Customs clearance process as
the risk evaluation procedure then commences when the
passenger presents to a Customs officer for clearance.
If PNR
information is not available and evaluated before the arrival of the passenger,
a Customs Officer may form a suspicion based on incomplete information, that the
passenger may be carrying prohibited goods and consequently direct
unnecessarily, a personal or baggage search.
1.2.4 The move to
electronic ticketing
Developments in recent years have seen
the major airlines move towards the use of electronic global on-line ticketing
systems and the phasing out of “printed” tickets. Information on
printed tickets is derived from the PNR for each passenger and stored within the
airline’s CRS.
These CRSs have the capacity to create a PNR up to
12 months in advance of the date of travel. PNR information is usually removed
from the system within 48 hours of the completion of the travel. Under the
proposed amendments Customs would have access to a PNR as soon as it is created,
however, Customs interest is focused on those individuals who actually undertake
the travel. In practice, this means looking at flights once they have closed
off and are en-route to Australia.
Having PNR information on-line and
available for a Customs officer to risk assess prior to arrival, can reduce the
time to clear a passenger arriving in Australia. It enables a Customs officer
to electronically screen the passenger information against electronic Customs
profiles prior to arrival of the aircraft. This process eliminates the onerous
task placed upon an airline of providing PNR information on passengers on
arrival at the border. It alerts Customs to possible
high risk passengers enabling Customs officers to prepare for their arrival.
Further, it provides for a consistency in high risk passenger identification
allowing much reduced intervention in the movement of legitimate low risk
passengers.
1.2.5 Industry agreement to provide PNR
information
The international airline industry is generally prepared
to provide PNR information to border authorities on the basis that there is an
advantage to their operations or customers or where their passengers can obtain
some advantage (usually related to service standard). In recognition of the
benefits to the airlines and in the context of supporting Customs community
protection objectives, a number of airlines have already agreed to provide PNR
information on a voluntary basis. These include both Australian and overseas
airlines.
1.3 Compliance with privacy legislation
1.3.1 Domestic privacy issues
While airlines provide
Customs with access to PNR information, consideration needs to be given to
compliance with the Privacy Act 1988. The Privacy Amendment (Private Sector)
Bill 2000 inserted section 273GAB in the Act. This provision enables an
airline in Australia to provide PNR information to Customs.
Customs is
obliged to handle personal information in accordance with The Privacy Act
1988. Section 16 of the Customs Administration Act 1985 also limits
the recording and disclosure of information disclosed to an
officer.
1.3.2 International privacy issues
However in
some overseas States privacy legislation is making some airlines apprehensive
about providing border authorities with PNR information. This applies
particularly to airlines carrying passengers who come under the jurisdiction of
the European Union.
Such airlines are required to comply with European
Council Directive 95/46/EC. The central tenet of this Directive is the belief
that data processing systems must respect the fundamental rights and freedoms of
natural persons, notably the right to privacy. Article 7 allows personal
information to be processed, if processing is necessary for compliance with a
legal obligation.
1.4 Deficiency in Customs powers - gaining
access to PNR information
Section 64AE of the Act requires the
master or owner of an aircraft to answer questions about a passenger report.
Under the provision there is a requirement for the airline to produce documents
related to the report. However it is arguable whether this provision extends to
providing Customs with the power to gain electronic access to the
airline’s PNR.
1.5 Application to departing
passengers
For the same reasons, a Customs officer requires the
power to access PNR information of an airline for passengers departing from
Australia. The provision of PNR information prior to departure and subsequent
screening against alerts allow Customs to identify passengers of interest to
police and other related agencies. This is particularly useful, for example in
child abduction matters, when advance warning as to an individual’s
movement is crucial.
2. Specification of desired
objectives
2.1 Objective
The primary objective
is to enable Customs to identify high risk passengers while, at the same time,
processing and clearing arriving and departing low risk passengers
expeditiously.
3. Identification of options
It is proposed
to amend the Customs Act to require certain operators to permit Customs to
access their computerised reservation systems. Customs may access the
computerised reservation systems for the purposes of the Customs Act or any
other law of the Commonwealth. The requirement is to apply to an operator who
operates international passenger flights on scheduled routes into and out of
Australia.
Under the proposal it will be an offence for an operator to
refuse Customs access, with each refusal of access constituting an offence. The
defence of a reasonable excuse is to be available. For example, where power
disruptions prevent Customs from accessing the systems would constitute a
reasonable excuse.
Airlines carrying passengers who fall within the
jurisdiction of European Union Privacy legislation are concerned that they could
be in breach of European Council Directive 95/46/EC relating to a person’s
right to privacy by providing Customs with access to PNR information.
The
only way the airlines’ concern can be overcome is by inserting a statutory
requirement in the Act to require airlines to provide Customs with access to
such information.
4. Assessment of impact
4.1 Impact
on airlines
4.1.1 Cost of providing electronic access to PNR
information
To enable Customs to gain electronic access to PNR
information requires the airlines to allow their CRS to recognise Customs as a
systems “user”. For those airlines that have already agreed to
provide access, Customs has agreed to cover the costs to the airline of
providing this access. For those airlines required to allow access to their
CRS as a result of this proposal, Customs will also cover the cost of providing
access. This cost is not significant, possibly less than $5,000 per
airline.
4.1.2 Improved passenger clearance service
The
smooth and expeditious clearance of passengers is a major objective of the
airline industry.
Access to electronic PNR information enables Customs to
make a more accurate assessment of the risk a particular passenger represents
prior to arrival at the border. With the major part of the assessment task
already completed at the time the passenger presents to a Customs officer, the
passenger experiences an expedited clearance process.
Access to airline
PNR information on a voluntary basis has already significantly contributed to
border integrity. Customs has used this information for the identification of
narcotics couriers, Immigration turnarounds (more than 70 instances), quarantine
goods, illegal currency movements, revenue offences and other prohibited goods
offences.
In some cases the assessment made as a result of the PNR
information will eliminate the need to conduct a search of a passenger who may
otherwise be considered to be a suspect.
4.2 Impact on
Customs
4.2.1 Cost of gaining electronic access to PNR
information
There is a cost for the ongoing service fees associated
with access to airline passenger information computer systems. The issue of
supplementation is under
consideration.
5. Consultation
5.1 Consultation with
Airlines
The proposal has been presented to the following airline
organisations:
• Board of Airline Representatives of
Australia
• QANTAS Airways Limited
• United Airlines
Inc.
• Air New Zealand
BARA and the airlines gave ‘in
principle” support to the proposal. The voluntary participation to date
is indicative of the airlines’ view of the enhanced border protection
offered by the proposal. They also appreciate that mandating the provision of
PNR information, affords the airlines legal protection particularly in countries
other than Australia.
5.2 Consultation with Government
Agencies
Discussions have been held with the
Attorney-General’s Department. It saw no impediment to the
proposal.
6. Conclusion and Recommendations
Access to PNR
information is important to enable Customs to more effectively assess arriving
and departing passengers, particularly in relation to high risk passengers and
the carriage of prohibited goods, especially illicit drugs. It is equally
important to airlines that Customs has access to such information in order that
Customs can expeditiously clear passengers and to meet other objectives of the
airlines.
The concerns of airlines about giving Customs access to PNR
information on passengers who fall under the European Union Privacy Directive,
can be resolved by amending the Act to require airlines to provide Customs with
electronic access to such information.
7. Implementation and
review
Customs currently has access to PNR information for a number
of major airlines through Memoranda of Understanding. Other airlines will be
gradually brought on stream as deemed necessary.
An implementation
review will be conducted 12 months after implementation to provide industry with
an opportunity to ensure access to PNR information is being conducted in a
manner that fulfils its obligations under the European Union’s privacy
requirements.
While there has been good co-operation received to date
from the airline industry in providing Customs with access to PNR information,
it is proposed to insert penal provisions for non-compliance as part of the
amendment.
To maintain border integrity and assist Customs in
fulfilling its border responsibilities, the penalty needs to be significant.
The proposal incorporates a penalty of $5500 for each flight for which PNR
information was not available.
BORDER SECURITY LEGISLATION AMENDMENT BILL 2002
NOTES ON CLAUSES
Clause 1 – Short
title
This clause provides for the Bill, when enacted, to be cited as
the Border Security Legislation Amendment Act 2002.
Clause 2 -
Commencement
Subclause (1) provides that each provision of this Act
specified in column 1 of the table in that subclause commences, or is taken to
have commenced, on the day or at the time specified in column 2 of the
table.
Item 1 of the table provides that sections 1, 2 and 3 and anything
not elsewhere covered by this table commence on the day on which the Act
receives the Royal Assent.
Item 2 provides that Schedules 1 and 2
commence on a single day to be fixed by Proclamation subsection to subclause
(3). Schedule 1 permits the creation of restricted areas of airports. Schedule
2 requires certain employers and security identification card issuers to provide
Customs with certain information about people who work at international
airports.
Item 3 provides that Schedule 3 commences on the day on which
this Act receives the Royal Assent. This Schedule allows Customs officers to
patrol airports.
Item 4 provides that Part 1 of Schedule 4 commences on a
single day fixed by Proclamation, subject to subclause (3). This Part relates
to the reporting of goods that are in transit through Australia. It is presumed
that these amendments will commence before the relevant provisions of the
Customs Legislation Amendment (International Trade Modernisation) Act
2001 (“the ITM Act”).
Item 5 provides that Part 2 of
Schedule 4 commences immediately after item 118 of Schedule 3 to the ITM Act
commences. This part also relates to the reporting of goods that are in transit
through Australia.
Item 6 provides that Schedule 5 commences on a single
day to be fixed by Proclamation subject to subclause (3). Schedule 5 relates to
the electronic reporting of mail to Customs.
Item 7 provides that Part 1
of Schedule 6 commences on a single day to be fixed by Proclamation subject to
subclause (3). Part 1 relates to the reporting of passengers and
crew.
Item 8 provides that items 10 to 15 of Schedule 6 commence
immediately before item 122 of Schedule 3 to the ITM Act commences. These items
are consequential amendments to the ITM Act.
Item 9 provides that items
16 to 18 of Schedule 6 commence at the same time as items 1 to 8 of Schedule 10.
These items are consequential amendments to the Evidence Act
1995.
Item 10 provides that Schedule 7 commences on the
28th day after the day on which the Act receives the Royal Assent.
This Schedule relates to Customs access to airline passenger information held
electronically.
Item11 provides that Schedule 8 commences on a day to be
fixed by Proclamation, subject to subclause (3). This Schedule contains
amendments to the Fisheries Management Act 1991.
Item 12 provides
that Schedules 9 commences on the day on which this Act receives the Royal
Assent. Schedule 9 relates to the power of the Chief Executive Officer to
authorise persons to perform the functions of an Officer of Customs.
Item 13 provides that Schedule 10 commences on the 28th day
after the day on which the Act receives the Royal Assent. The amendments in
Schedule 10 relate to the issuing of approved firearms and items of personal
defence equipment to officers of Customs. The 28 day delay in commencement will
enable the necessary authorisations under these amendments to be
prepared.
Item 14 provides that Schedule 11 and 12 commence on the day on
which the Act receives the Royal Assent. These schedules amend the arrest
powers in Customs Act and amend section 16 of the Customs Administration
Act.
Item 15 provides that Schedule 13 commences on the day on which the
Act receives the Royal Assent. Schedule 13 makes certain undeclared
unaccompanied personal and household effects forfeited to the
Crown.
Subclause (2) provides that column 3 of the table is for
additional information that is not part of the Act. This information may be
included in any published version of the Act.
Subclause (3) provides that
if a provision covered by item 2, 4, 6, 7 or 11 of the table does not commence
within the period 6 months of the day beginning on the day on which the Act
receives the Royal Assent, it commences on the first day after the end of that
period. This is the standard provision that applies to commencement by
Proclamation.
Clause 3 - Schedules
This clause is the
formal enabling provision for the Schedule to the Bill, providing that each Act
specified in a Schedule is amended in accordance with the applicable items of
the Schedule. In this Bill the Acts being amended are the Customs Act 1901
and the Customs Administration Act 1985, the Fisheries Management
Act 1991, the Migration Act 1958 and the Evidence Act
1995.
The clause also provides that the other items of the Schedules
have effect according to their terms. This is a standard enabling clause for
transitional, savings and application items in amending legislation.
SCHEDULE 1 – RESTRICTED
AREAS
Customs Act 1901
The amendments
contained in this Schedule recognise the role of Customs in contributing to
border security and enhance the capacity of Customs officers to more effectively
monitor and enforce security requirements at our borders.
Item 1
– Subsection 234AA(1)
Section 234AA of the Customs Act provides
that a Collector may cause signs to be displayed at or near certain places
(section 234AA places) that identify the place and state that entry into it by
unauthorised persons is prohibited. The places are those used by officers for
questioning passengers; for examining personal baggage of such passengers; and
as a holding place for such passengers.
This item inserts into subsection
234AA(1) of the Customs Act a new place (new paragraph 234AA(1)(b)), being a
place covered by a notice made by the CEO under new subsection 234AA(3), in
which entry by unauthorised persons will be prohibited.
Item 2 -
Subsection 234AA(2)
Currently, the Collector can cause signs to be
displayed at or near section 234AA places which state that the use of cameras or
sound recorders at the place by unauthorised persons is prohibited.
This
item extends those provisions so that signs can be displayed that state that the
unauthorised use of mobile phones or other electronic forms of communication by
unauthorised persons is prohibited (new paragraph 234AA(2)(b)). This amendment
recognises changes in technology that have occurred since this provision was
inserted.
Item 3 - At the end of section 234AA
This item
inserts new subsections 234AA(3) and (4) into the Act.
New subsection
234AA(3) provides that the CEO may publish a notice in the Gazette specifying
that certain areas (between the Customs outward control point /baggage
examination area and the aircraft) are areas to which section 234AA applies.
This area must be an area of an airport appointed under section 15 of
the Customs Act (new subsection 234AA(3)) and must comprise one or more of the
areas in new subsections 234AA(4)(a), (b) and (c). Paragraph (a) will cover
those areas of the airport between the aircraft and a place where Customs
processing is completed. Paragraph (b) will cover those areas between where
passengers pass through the first point at which they are normally subject to
processing by Customs officers and the aircraft. Paragraph (c) will cover any
areas that are in the vicinity of the areas covered by paragraphs (a) and (b).
For example, this could cover the area where passengers leaving Australia wait
before they are processed by Customs officers.
It is proposed that these
areas should be restricted because arriving passengers and crew in those areas
are in ‘border quarantine’ until such time as they have cleared
immigration and Customs processing. They should not have any contact with a
person ‘in Australia’ until they have completed this process and
have left the ‘sterile area’. In the case of departing passengers
and crew, once they have been cleared for departure they are not permitted to
make contact with unauthorised persons on the other side of the
‘border’.
Item 4 - Subsection 234A(1)
Currently
subsection 234A(1) provides that persons other than passengers disembarking
from, or embarking on, a ship or aircraft shall not, except by authority enter
section 234AA places or enter a ship, aircraft or certain wharfs.
This item
removes the reference to passengers as it is proposed to insert new provisions
into subsection 234A(2) which will exempt passengers and certain other persons
from these provisions.
Item 5 - Subsection 234A(1)
(penalty)
This item increases the penalty for entering into a section
234AA place or entering a ship, aircraft or certain wharfs from $1,000 to 50
penalty units, that is, $5,500.
Item 6 - After paragraph
234A(1A)(a)
Certain people who work in airports are issued with
security identification cards. These people need to be able to enter section
234A places for the purposes of their employment. This item will make it clear
that subsection 234A(1) does not prohibit a person who is a holder of a security
identification card from entering into or being in a section 234A place for the
purposes of his or her employment. The term security identification card is
defined in section 213A of the Customs Act.
Item 7 - At the end of
subsection 234A(1A)
This item will make it clear that subsection
234A(1) does not prohibit crew, passengers and persons who are included in a
class of persons whom the CEO determines to be exempt from section 234A from
entering 234AA places, ships, aircraft and certain wharves.
The
determination by the CEO must be in writing.
Item 8 - Paragraph
234AB(1)(a)
This item contains a consequential amendment to paragraph
234AB(1)(a) as a result of the amendments that will be made to subsection
234AA(2) relating to mobile phones and other electronic forms of
communication.
These amendments will allow an officer to direct a person
not to use a mobile phone or other electronic form of
communication.
Item 9 - Subsection 234AB(4)
This item
repeals and substitutes subsection 234AB(4) to make a consequential amendment as
a result of the amendments relating to mobile phones and other electronic forms
of communication. New subsection 234AB(4) will ensure that if in any
proceedings for the prosecution of a person for an offence of failing to comply
with a direction, evidence that a sign stating that the use of mobile phones or
other electronic forms of communication at a 234AA place is prohibited was
displayed at or near that place, is prima facie evidence that the sign was so
displayed in accordance with subsection 234AA(2).
Item 10 - After
section 234AB
This item will insert a new section 234ABA into the
Customs Act which will allow a Customs officer to direct a person to leave a
234AA place if the officer reasonably believes that the person is in that place
in contravention of section 234A (new subsection 234ABA(1) refers).
New
subsection 234ABA(2) provides that a Customs officer may, by themselves or with
the assistance of other officers or a protective service officer (as defined by
the Australian Protective Service Act 1987 (see new subsection
234ABA(4)), use reasonable force to remove the person from the 234AA place if
the person refuses to leave when so directed.
However, where an officer
removes a person under new subsection 234ABA(2) the officer and the persons
assisting must not use more force, or subject the person to greater indignity,
than is necessary or reasonable.
SCHEDULE 2 -
INFORMATION ABOUT PEOPLE WORKING IN RESTRICTED AREAS OR ISSUED WITH
IDENTIFICATION CARDS
Customs Act
1901
Item 1 - After Subdivision H of Division 1 of Part
XII
This item inserts new subdivision HA into the Customs Act. This
subdivision relates to information about people working in restricted areas or
issued with security identification cards.
Employees at international
airports include:
• airport employees (for example, airport management
and cleaners); and
• airline employees (for example, baggage handlers
and maintenance staff); and
• employees of retail businesses that
operate in the airport (for example, duty free stores and other retail outlets)
and
• government employees (for example, Customs, quarantine and
migration officers).
Most people working at international airports in
Australia with access to restricted areas require a security clearance and wear
a card indicating they have been security cleared. These cards are known as
Aviation Security Identification Cards (ASIC). However currently, not all
employees of retail businesses located in places covered by a notice made under
subsection 234AA(3) (“restricted areas”), within an international
airport, are required to have an ASIC.
The presence of these people in
the “restricted area” can potentially pose a threat to the integrity
and security of the border, depending on whether they are of good character.
Such workers have previously been detected acting in concert with passengers to
smuggle and import prohibited goods into Australia.
New section 213A
relates to people who work in restricted areas (restricted area employees). New
subsection 213A(7) defines the term restricted area employee to mean a person
whose duties include working in an area covered by a notice under subsection
234AA(3), but does not include a person who is issued with a security
identification card. A security identification card is a card of a kind
prescribed in the regulations. Information about the holders of security
identification cards will be dealt with in new section 213B.
New
subsection 213A(1) provides that a person who employs or engages a restricted
area employee must, within 7 days after doing so, provide to an authorised
officer the required identity information in respect of the employee.
Subsection 213A(7) defines required identity information, in relation to a
person, as the following:
• the name and address of the
person;
• the person’s date and place of birth;
• any
other information prescribed by the regulations.
New subsection 213A(1)
only applies where a person is employed or engaged after the commencement of
these provisions.
New subsection 213A(2) contains the same reporting
requirements in respect of a person employed or engaged after the commencement
of this section who later becomes a restricted area employee. This would cover,
for example, a person who is employed by a duty free business (after the
commencement of these provisions) which has shops within the restricted area and
elsewhere. If the employee commenced work at a shop that was not in the
restricted area but some time after employment or engagement moved to the shop
within the restricted area, the employer would have to provide required identity
information about that employee within 7 days of that employee commencing to
work in the restricted area.
New subsection 213A(3) allows an authorised
officer to request the employer of a restricted area employee (who was employed
or engaged before the commencement of these provisions) to provide required
identity information about that employee. That request can only be made if the
authorised officer suspects on reasonable grounds that the employee has
committed, or is likely to commit, an offence against a law of the Commonwealth.
That request must be made in writing and the information must be supplied within
7 days of the employer receiving the request. The employer must comply with the
request.
The employer must provide the information in writing or in such
other form as the CEO determines in writing (new subsection 213A(4)
refers).
New subsections 213A(5) and (6) make it a strict liability
offence for a person to fail to comply with new subsections 213A(1), (2) or (3).
The offence is punishable on conviction by a maximum penalty of 30 penalty
units.
New subsection 213B relates to persons who are issued or reissued
with a security identification card (known as an ASIC).
As explained
above most people working at international airports in Australia with access to
restricted areas require a security clearance and wear a card indicating they
have been security cleared. Under the Air Navigation Regulations employers are
authorised to issue such cards to their employees.
Each person who
applies for an ASIC must provide basic personal information – name,
address, place and date of birth - as well as consent to have a Police Record
Check conducted.
New subsection 231B will require the issuers of ASICs
to provide certain information to Customs.
If a person issues or
reissues a security identification card to another person (the card holder) in
respect of an airport appointed under section 15 of the Customs Act, that person
must provide to an authorised officer the required identity information about
the ASIC holder. That information must be provided within 7 days after the card
was issued (new subsection 213B(1) refers). This provision is not limited to
those persons who are employed within the restricted area.
Required
identity information and security identification card have the same meanings as
given by new section 213A (new subsection 213B(4) refers).
New subsection
213B(2) provides that if a card holder was issued with an ASIC prior to the
commencement of these provisions and an authorised officer suspects on
reasonable grounds that the card holder has committed, or is likely to commit,
an offence against a law of the Commonwealth, the authorised officer may request
the person who issued the card to provide required identity information in
respect of the card holder. The information must be supplied within 7 days of
the card issuer receiving the request and the issuer must comply with the
request.
The issuer must provide the information in writing or in such
other form as the CEO determines in writing (new subsection 213B(3)
refers).
SCHEDULE 3 - POWER TO PATROL
AIRPORTS
Customs Act 1901
Item 1 -
Section 193
Section 193 of the Customs Act enables an officer of
Customs to patrol ‘...any part of the coast or any railway...any port bay
harbour...’. As this is an original provision of the Customs Act, and
aircraft had not been invented, the concept of an airport forming part of the
border was not a consideration. This provision has not been amended since the
Act commenced.
Under section 58 of the Customs Act, an aircraft on an
international flight must land at an airport appointed under section 15 of the
Customs Act. As with ships on an international voyage berthed at an appointed
port, Customs should be able to patrol not only ports but also airports to
ensure the integrity of the border.
This item amends section 193 to
enable airports to be patrolled by an officer of
Customs.
SCHEDULE 4 - GOODS IN TRANSIT THROUGH
AUSTRALIA
Goods in transit through Australia (that is, goods
not being unshipped in Australia) are currently not reported to Customs under
section 64AB of the Customs Act. Since those goods are not imported into
Australia, they are not required to be entered. Customs therefore has no
information about those goods thereby undermining the effectiveness of border
controls.
In addition, if Customs becomes aware of dangerous or harmful
goods in transit through Australia, Customs has limited powers to deal with
those goods. For example, the Hazardous Waste (Regulation of Exports and
Imports) Act 1989, the Psychotropic Substances Act 1976 and the
Narcotic Drugs Act 1976 allow Customs officers to exercise certain powers
in respect of transit goods.
Under section 52A of the Hazardous Waste
(Regulation of Exports and Imports) Act 1989 an officer of Customs may
require a person to produce a transit permit authorising the carrying out of a
transit proposal (being a proposal to bring waste into Australia (whether or not
by way of import) and to take the waste out of Australia within 30 days as long
as it is not proposed to dispose of the waste in Australia).
Under
section 9 of the Psychotropic Substances Act 1976 and section 22 of
the Narcotic Drugs Act 1976 where a psychotropic substance or narcotic
drug is passing through Australia, a Collector (certain officers of Customs)
may, whether or not the substance or preparation is unloaded from the vessel or
aircraft, require the person having possession or control of the substance or
preparation to produce to him or her an export authorisation from another
country. If the person does not produce an authorisation the Collector may
seize the substance or preparation.
Section 31 of the Customs Act
provides that goods that are on board any ship or aircraft from a place outside
Australia are subject to the control of the Customs whilst the ship or aircraft
is within the limits of any port or airport in Australia. This includes goods
that are in transit through Australia. Under section 186 of the Customs Act an
officer of Customs can examine those goods while they remain under Customs
control.
The amendments contained in this Schedule will enhance these
powers by ensuring that Customs is provided with information about goods that
are in transit through Australia.
Once Customs has received information
about goods that are in transit through Australia, there may be circumstances
where Customs will want to examine those goods. Following examination Customs
may seize those goods, with a warrant, if the Minister has reasonable grounds
for suspecting that the goods are connected, whether directly or indirectly,
with the carrying out of a terrorist act, whether the terrorist act has
occurred, is occurring or is likely to occur. Customs may also seize goods,
with a warrant, if the Minister has reasonable grounds to suspect that the
existence or the shipment of them prejudices, or is likely to prejudice,
Australia’s defence or security or international peace and security.
Those goods can only be seized with a warrant issued by a Federal, State or
Territory Judge. The following provisions also set out how such goods are to be
dealt with once they have been seized.
These provisions operate in
addition to those found in the Mutual Assistance in Criminal Matters Act
1987 and the Proceeds of Crime Act 1987 and they have no effect on
those Acts or any other legislation relating to goods that are in transit
through Australia.
Part 1 - Amendments commencing
first
Customs Act 1901
Items 1 and
2
These items amend section 11 of the Customs Act so that the
Governor-General may make arrangements with the Governors of States and the
Administrator of the Northern Territory for the performance by certain Judges of
the functions of a judicial officer under Subdivision DA of Division 1 of Part
XII of the Customs Act, and under any other provisions in so far as they relate
to that Subdivision. Subdivision DA relates to the seizure with warrant of
certain goods that are in transit through Australia.
Item 3 - After
subsection 64AB(3)
This item inserts into section 64AB of the Customs
Act new provisions which will require the master or pilot or owner of a ship or
aircraft arriving in Australia from overseas to report to Customs any goods on
board the ship or aircraft that are not going to be unshipped in
Australia.
New subsection 64AB(3AA) provides that if a ship is due to
arrive at its first port in Australia since it last called at any port outside
Australia, the master or owner of the ship (as defined by subsection 4(1) of the
Customs Act) must communicate a report of cargo on board the ship that is
intended to be kept on board the ship for shipment on to a place outside
Australia. This report must be provided to Customs not later than 48 hours
before the ship’s arrival at the port if its journey from the last port
outside Australia is likely to take 48 hours or more. If the journey is likely
to take less than 48 hours, the report must be provided not later than 24 hours
before its arrival.
Whilst the master or owner of a ship must report
other types of cargo at each port in Australia, being the port at which the
cargo is going to be unshipped, cargo that is in transit through Australia is
only required to be reported at the first Australian port that the ship arrives
at since it last called at a port overseas.
New subsection 64AB(3AB)
contains a similar provision in respect of cargo in transit through Australia on
board an aircraft. If the report is made by document the report must be made
within 3 hours after the arrival of the aircraft at the first Australian airport
and if it is to be made by computer, it must be made at least 2 hours before the
arrival of the aircraft in Australia.
New subsection 64AB(3AC) provides
that if a person intentionally contravenes subsection (3AA) or (3AB) they commit
an offence punishable, on conviction, by a penalty not exceeding 120 penalty
units. There is currently no monetary penalty for not reporting a cargo report
to Customs in respect of other types of cargo, but if such a report is not made,
the master, pilot or owner will not be given a Collector’s permit which
allows the unloading of the cargo. Since cargo in transit through Australia is
not intended to be unloaded, it is proposed to make it an offence to fail to
provide a report of that cargo.
New subsection 64AB(3AD) provides that if
a person contravenes those same provisions they commit an offence punishable, on
conviction, by a penalty not exceeding 60 penalty units. This offence is an
offence of strict liability (new subsection 64AB(3AE) refers).
Item 4
- Subsection 64AB(3A)
This item inserts references to new subsections
64AB(3AA) and (3AB) into subsection 64AB(3A) of the Customs Act. Subsection
64AB(3A) provides that a cargo report can be made by document or by computer.
Item 5 - Subsection 64AB(4)
This item amends subsection
64AB(4) of the Customs Act to ensure that the requirements that apply to
documentary reports of cargo intended to be unshipped in Australia also apply to
reports of cargo that is intended to be kept on board the ship or
aircraft.
Item 6 - Subsection 64AB(5)
This item amends
subsection 64AB(5) of the Customs Act to ensure that the requirements that apply
to computer reports of cargo intended to be unshipped in Australia also apply to
reports of cargo that is intended to be kept on board the ship or
aircraft.
Item 7 - At the end of subsection 64AB(6)
This
item amends subsection 64AB(6) of the Customs Act to ensure that the Chief
Executive Officer of Customs can approve different types of approved forms and
approved statements in respect of different kinds of cargo. Since Customs will
require different kinds of information in respect of cargo that is in transit
through Australia, this will allow the CEO to approve a different approved form
and approved statement for that type of cargo.
Item 8 - Paragraph
64AB(7)(a)
This item amends paragraph 64AB(7)(a) to ensure that
reports in respect of cargo that is in transit through Australia are treated the
same as reports of cargo intended to be unshipped in Australia. Subsection
64AB(7) provides that if a report of cargo is made later than the relevant time
but otherwise complies with the provisions of subsection (4) or (5) then for the
purposes of sections 64ABB, 64ABC and 64ABD, the report is taken to have been
communicated to Customs in accordance with section 64AB. Sections 64ABB, 64ABC
and 64ABD relate to variations of cargo reports and charges. Subsection 64AB(7)
ensures that a master, pilot or owner is not exempt from other provisions just
because they made their report later than required.
Item 9 -
Subsection 64ABA(1)
This item repeals and substitutes subsection
64ABA(1) of the Customs Act to ensure that cargo reports in respect of cargo
that is in transit through Australia can be varied. The current provisions that
apply to cargo that is going to be unshipped are reproduced in new paragraph
64ABA(1)(a). New paragraphs 64ABA(1)(b) and (c) set out when a cargo report in
respect of transit cargo can be reported to Customs.
New paragraph
64ABA(1)(b) provides that the cargo report in respect of transit cargo can be
varied at any time up until the time the ship leaves its last port in Australia
before calling on a port outside Australia. New paragraph 64ABA(1)(c) contains
a similar provision in respect of aircraft.
Item 10 - Subsection
183UA(1) (at the end of the definition of authorized
person)
This item amends the definition of authorised person for
the purposes of Division 1 of Part XII of the Customs Act. In relation to an
application for, or the execution of, a seizure warrant under new section 203DA,
Customs officers are authorized persons.
Item 11 - Subsection 183UA(1)
(definition of judicial officer)
This item amends the
definition of judicial officer for the purposes of that same Division. In
relation to a search warrant or to a seizure warrant under section 203 the
definition of judicial officer has not changed (paragraph (a) of the definition
refers).
New paragraph (b) provides that in respect of a seizure warrant
under section 203DA ‘judicial officer’ means:
• a Judge of
the Federal Court of Australia or of the Supreme Court of the Australian Capital
Territory in relation to whom a consent under subsection 183UD(1), and a
nomination under subsection 183UD(2), are in force;
• a Judge of the
Supreme Court of a State in respect of whom an appropriate arrangement is in
force under section 11 is applicable; or
• a Judge of the Supreme Court
of the Northern Territory who is not a Judge referred to in subparagraph (i) and
in respect of whom an appropriate arrangement in force under section 11 is
applicable.
Item 12 - Subsection 183UA(1) (definition of seizure
notice)
This item contains a technical amendment to the
definition of seizure notice to ensure that it covers notices of the kind
mentioned in section 209E.
Item 13 - Subsection 183UA(1) (at the end
of the definition of seizure warrant)
This item contains a
technical amendment to the definition of seizure warrant to ensure that it also
covers warrants issued under new section 203DA.
Items 14 and
15
These items define ‘terrorist act’ for the purposes of
Division 1 of Part XII of the Customs Act. Under new section 203DA a judicial
officer will be able to issue a warrant to seize goods if they are satisfied on
oath that the Minister has reasonable grounds for suspecting that, amongst other
things, the goods are connected, whether directly or indirectly, with the
carrying out of a terrorist act, whether the terrorist act has occurred, is
occurring or is likely to occur.
The definition of terrorist act for
the purposes of these provisions (as contained in items 4 and 5) is the same as
in the Financing of Terrorism Bill 2002.
Item 16 - At the end
of Subdivision A of Division 1 of Part XII
This item inserts section
183UD into the Customs Act. Under subsection (1) a Judge of the Federal Court
of Australia or of the Supreme Court of the Australian Capital Territory may
consent to be nominated by the Minister under subsection (2).
Subsection
183UD(2) provides that the Minister may nominate a Judge of the Federal Court of
Australia or of the Supreme Court of the Australian Capital Territory to be a
judicial officer for the purposes paragraph (b) of the definition of judicial
officer in subsection 183UA(1). That nomination can only be made where the
Judge has consented to being nominated.
This means that a Judge of the
Federal Court of Australia or of the Supreme Court of the Australian Capital
Territory can only issue a warrant to seize certain goods in transit through
Australia if they have been nominated by the Minister for that purpose. They
can only be nominated if they consent to being nominated.
Item 17 -
Subsection 185B(8)
This item contains a technical amendment to
section 185B, which allows the disposal of ships, to ensure that that section
applies despite the new disposal provisions contained in Subdivision
GA.
Item 18 - At the end of section 186
This item amends
section 186 to make it clear that goods that are under Customs control because
of the operation of section 31 continue to remain under Customs control even if
they are removed from a ship or aircraft in the course of an examination under
section 186.
Item 19 - Subsection 203A(1)
This item ensures
that the current provisions in the Customs Act which allow the seizure of
forfeited goods are not affected by these new provisions which allow a seizure
warrant to be issued in respect of certain goods that are in transit through
Australia (new section 203DA).
This will ensure that the provisions in
section 203A of the Customs Act only apply to warrants issued under section 203
(and not new section 203DA).
Item 20 - After Subdivision D of Division
1 of Part XII
This item inserts a new subdivision DA into Division 1
of Part XII of the Customs Act. This new subdivision relates to the seizure of
certain goods that are in transit through Australia.
New section 203DA
sets out the circumstances in which seizure warrants can be issued in respect of
goods in transit through Australia.
Subsection 203DA(1) provides that a
judicial officer may issue a warrant to seize goods on or in particular premises
(which under subsection 183UA(1) includes a place, a conveyance or a container)
if the judicial officer is satisfied by information on oath that the Minister
has reasonable grounds for suspecting that:
• the goods are, or
within the next 72 hours will be, on or in the premises;
• the goods
are in transit through Australia; and
• the goods satisfy either or
both of the following:
– the goods are connected, whether directly or
indirectly with the carrying out of a terrorist act, whether the terrorist act
has occurred, is occurring or is likely to occur;
– the existence of
the shipment of the goods prejudices, or is likely to prejudice,
Australia’s defence or security or international peace and
security.
Subsection 203DA(2) sets out those things that a judicial
officer must state in a warrant when it is issued. These are a description of
the goods, a description of the premises, the name of the authorised person (or
other authorised person) who is responsible for executing the warrant, the time
at which the warrant expires and whether the warrant may be executed at any time
or only during particular hours.
Subsection 203DA(3) provides that the
time at which the warrant expires must be a time that is not later than the end
of the seventh day after the day on which the warrant is issued. This means
that if the warrant is issued at 3pm on a Monday, the latest time at which the
warrant can expire is midnight of the following Monday. However, the judicial
officer can state in the warrant that it expires at some earlier
time.
Subsection 203DA(4) provides that the judicial officer must also
state in the warrant that the warrant also authorises the seizure of goods found
on or in the premises that the executing officer or person assisting believes on
reasonable grounds to be ‘special forfeited goods’, that is,
prohibited imports and prohibited exports. There may be circumstances where an
officer is searching a premises under a warrant issued under section 203DA and
the officer finds special forfeited goods. Those goods will be able to be
seized under the warrant (currently Customs can seize special forfeited goods at
a Customs place without a warrant and at any other place with a warrant (except
for narcotic goods that can be seized anywhere without a
warrant)).
Subsection 203DA(5) makes it clear that successive warrants
can be issued in relation to the same premises.
Subsection 203DA(6)
provides that if an application for this type of warrant is made by telephone or
other electronic means the warrant can only be issued if the judicial officer is
satisfied by information on oath that the Minister has reasonable grounds for
suspecting that the goods are, or within 48 hours will be, on or in the relevant
premises. Further the warrant can remain in force for a maximum of 48
hours.
Subsection 203DA(7) makes it clear that a judicial officer of a
particular State or Territory may issue a warrant in respect of the seizure of
goods on or in premises in another State or Territory.
Section 203DB sets
out the things that are authorised by seizure warrants for goods in transit.
These things are the same as are currently authorised by seizure warrants in
respect of forfeited goods (except seizure warrants issued under section 203DA
will not authorise the search of persons at or near the premises).
A
seizure warrant issued under section 203DA authorises the executing officer or
person assisting to do the following:
• enter the warrant
premises;
• search for the relevant goods;
• seize those
goods; and
• seize other goods that the executing officer or person
assisting believes on reasonable grounds to be special forfeited
goods.
Subsections 203DB(2), (3) and (4) make it clear
that:
• if the premises is not a conveyance or a container, the warrant
extends to every conveyance or container on the premises;
• if the
warrant allows the entry and search of a conveyance, the conveyance can be
entered, wherever it is and that the warrant also extends to the containers on
the conveyance; and
• if the warrant allows the entry and search of a
container, the container can be entered, wherever it is, to the extent that it
is of a size permitting entry.
Subsection 203DA(5) provides that if the
warrant states that it may be executed only during particular hours, the warrant
must not be executed outside those hours.
Item 21 - Subsection 203G(5)
(paragraph (a) of the definition of a copy of the
warrant)
This item contains a technical amendment to subsection
203G(5) to ensure that the provisions that apply to search warrants and existing
seizure warrants also apply to seizure warrants issued under section 203DA.
Section 203G requires the executing officer or person assisting to make
available to certain persons a copy of the warrant.
Item 22 -
Subsection 203K(5)
Again this item contains a technical amendment to
ensure that the existing provisions relating to warrants also apply to warrants
issued under section 203DA. Section 203K allows:
• the executing
officer or person assisting to take photographs or video recordings of the
premises or of things on or in the premises (with the occupier’s
consent);
• the executing officer and the persons assisting to complete
the execution of a warrant where they have temporarily ceased its
execution;
• the execution of a warrant to be completed where a court
order has stopped the execution of the warrant and the order is revoked or
reversed; and
• a court to reissue a warrant in certain
circumstances.
Item 23 - Subsection 203M(4)
This item
allows the same form of warrant that would be issued under section 203DA to be
completed and signed by a judicial officer where an application for the warrant
has been made by telephone or other electronic means.
Item 24 - Before
section 203T
This item inserts into Subdivision G new section 203SA
which sets out which goods that subdivision does not apply to. Subdivision G
currently sets out the procedures for dealing with forfeited goods that have
been seized. This item ensures that this subdivision will continue to deal with
those types of goods. New Subdivision GA will apply to goods seized under a
warrant under section 203DA, except for any special forfeited goods seized under
paragraph 203DB(1)(d).
Item 25 - After Subdivision G of Division 1 of
Part XII
This item inserts new Subdivision GA into Division 1 of Part
XII of the Customs Act. Subdivision GA sets out how goods seized under a
section 203DA warrant should be dealt with.
Section 209B provides that
new Subdivision GA applies to goods seized under a seizure warrant issued under
section 203DA, except goods seized under paragraph 203DB(1)(d). That paragraph
allows an officer to seize other goods that are found during the search for
goods the subject of a section 203DA warrant that the executing officer or
person assisting believes on reasonable grounds to be special forfeited
goods.
Section 209C provides that goods to which Subdivision GA applies
which are seized must be taken to a place approved by a Collector as a place for
the storage of goods of that kind.
Subsection 209D(1) provides that once
these types of goods have been seized the officer who seized the goods must
serve a seizure notice on the owner of the goods. This notice must be served
within 7 days of seizure. If the owner cannot be identified after reasonable
inquiry, the notice must be served on the person in whose possession or under
whose control the goods were when they were seized.
Subsection 209D(2)
makes it clear that the seizure notice must be given even if an application for
the goods return has been made (see section 209F).
Subsection 209D(3)
provides that the notice must be in writing and must be served personally or by
post. If the owner or person in possession or in control of the goods cannot be
identified, the notice must be published in a newspaper circulating in the
location in which the goods were seized.
Subsection 209D(4) makes it
clear that a seizure notice can be served on a person who is outside Australia.
In the case of goods that were in transit through Australia, it is probable that
the owner of the goods will not be in Australia.
Section 209E sets out
those matters that must be dealt with in a seizure notice. The notice must
identify the goods, set out the day on which they were seized, set out the
ground (or grounds) on which they were seized and include a statement that, if
an application for the return of the goods has not already been made, and is not
made within 30 days after the day the notice is served, the goods will be taken
to be condemned as forfeited to the Crown.
Subsection 209F(1) provides
that the owner of the goods, whether or not a seizure notice has yet been served
on the owner, may apply to a court for the return of the goods.
Under
subsection 209F(2) that application must be made no later than 30 days after a
seizure notice is issued. If the application is not made, the goods are taken
to be condemned as forfeited to the Crown (see section 209G).
Under
subsection 209F(3) the court must order the return of the goods to the owner if
the court finds that:
• the goods were not goods that are connected
with the carrying out of a terrorist act and are not goods that prejudice or are
likely to prejudice, Australia’s defence or security or international
peace and security;
• the goods were not used or otherwise involved in
the commission of an offence against any law of the Commonwealth, a State or a
Territory; and
• the person is the rightful owner of the
goods.
Subsection 209F(4) makes it clear that the goods that are to be
required to be returned must be returned in a condition as near as practicable
to the condition in which they were seized.
Under subsection 209F(5) if
the court does not order the return of the goods, the goods are condemned as
forfeited to the Crown.
Section 209G provides that if a seizure notice
has been served in respect of goods and no application for their return has been
made (within the 30 day time limit) then the goods are condemned as forfeited to
the Crown.
Subsection 209H(1) provides that if goods are condemned as
forfeited to the Crown because the owner did not make an application for their
return, a person may apply to a court for compensation. This is the case even
if the goods have been destroyed or disposed of.
Subsection 209H(2)
provides that compensation will only be payable if:
• the goods were
not goods that are connected with the carrying out of a terrorist act and are
not goods that prejudice or are likely to prejudice, Australia’s defence
or security or international peace and security;
• the goods were not
used or otherwise involved in the commission of an offence against any law of
the Commonwealth, a State or a Territory; and
• the person establishes,
to the satisfaction of the court that he or she is the rightful owner of the
goods and there were circumstances providing a reasonable excuse for the failure
to apply for the return of the goods within the relevant time
limits.
Subsection 209H(3) provides that the amount of the compensation
should be:
• if the goods have been sold - the proceeds of the
sale
• if the goods have been destroyed or otherwise disposed of - the
goods’ market value at the time of their destruction or
disposal.
Section 209I makes it clear that the title to goods that are
condemned as forfeited to the Crown vests immediately in the Commonwealth. This
is to the exclusion of all other interests in the goods, and the title cannot be
called into question.
Section 209J deals with the situation where goods
that are seized are considered to constitute a danger to public health or
safety. Usually goods seized under a section 203DA warrant cannot be disposed
of until they are condemned as forfeited to the Crown. However, there may be
circumstances where the goods constitute a danger to public health or safety, in
which case they can be dealt with prior to condemnation.
Under subsection
209J(1) once the Chief Executive Officer of Customs or a Regional Director for a
State or Territory is satisfied that the goods constitute a danger to public
health or safety, they can cause the goods to be dealt with in such manner as he
or she considers appropriate (including the destruction of the
goods).
Subsection 209J(2) provides that if the goods are dealt with
under that subsection, the CEO or Regional Director concerned must give or
publish a notice in accordance with subsection (4). That notice must be given
or published not later than 7 days after the goods have been dealt
with.
Under subsection 209J(3) the notice must be in writing and must be
served personally or by post on the owner of the goods, or if they cannot be
identified, on the person in whose possession or under whose control the goods
were when they were seized. If none of those persons can be identified, the
notice must be published in a newspaper circulating in the location in which the
goods were seized.
Subsection 209J(4) sets out those things that must be
in the notice. The notice must:
• identify the goods;
• state
that the goods have been seized under seizure warrant under section 203DA and
give the reason for the seizure;
• state that the goods have been dealt
with under subsection (1) and specify the manner in which they have been so
dealt with and the reason for doing so; and
• set out that the owner
may bring an action against the Commonwealth for recovery of the market value of
the goods.
Subsection 209J(5) provides that if goods are dealt with in
accordance with subsection (1), the owner may bring an action against the
Commonwealth in a court of competent jurisdiction for the recovery of the market
value of the goods at the time that they were dealt with.
Under
subsection 209J(6) that right to recover the market value of the goods exists
if:
• the goods were not goods that are connected with the carrying out
of a terrorist act and are not goods that prejudice or are likely to prejudice,
Australia’s defence or security or international peace and
security;
• the goods were not used or otherwise involved in the
commission of an offence against any law of the Commonwealth, a State or a
Territory; and
• the owner establishes that the circumstances for them
to be dealt with did not exist, that is, they did not constitute a danger to
public health or safety.
Subsection 209J(7) provides that if a person
establishes a right to recover the market value of the goods, the Court must
order the payment by the Commonwealth of an amount equal to that
value.
Section 209K deals with the disposal of seized goods that have
been condemned as forfeited to the Crown. Under subsection (1) these goods must
be dealt with and disposed of in accordance with the directions of the Chief
Executive Officer of Customs.
Subsection 209K(2) makes it clear that the
Chief Executive Officer of Customs may direct that the goods be given to a
relevant authority of a foreign country in order that the goods be used in an
investigation or prosecution under the laws of that country. For example, goods
may have been illegally exported from the country of origin. In those
circumstances the CEO could direct that the goods be given to the Customs
authority in that country for the investigation of the offence in that
country.
Subsection 209K(3) makes it clear that subsection (2) does not
limit the generality of subsection (1).
Section 209L provides that for
the purposes of section 29 of the Acts Interpretation Act 1901 a notice
is taken to be properly addressed if it is posted as a letter addressed to the
person at the last address of that person known to the sender. Section 29 of
the Acts Interpretation Act 1901 provides that unless the contrary
intention appears the service of a document shall be deemed to be effected by
properly addressing, prepaying and posting the document as a letter. Section
209L sets out when a notice is taken to have been properly
addressed.
Items 26 and 27
These items amend paragraph
229(1)(bb) of the Customs Act to ensure that if seized goods are sold (or
otherwise disposed of) in accordance with section 209J or 209K subject to a
condition and that condition is not complied with, the goods will become
forfeited to Crown.
Part 2 - Amendments commencing
second
Many of the provisions of the Customs Act, including
section 64AB, will be repealed and replaced by the Customs Legislation
Amendment and Repeal (International Trade Modernisation) Act 2001
(“the ITM Act”). The amendments in this part will ensure that the
amendments intended to be made to the Customs Act that are set out in Part 1 of
this Schedule are not removed from the Act when the ITM Act commences. All
references to “new” provisions are references to those provisions of
the Customs Act as contained in the ITM Act.
Customs Act
1901
Item 28 - Subsection 4(1) (definition of cargo
report)
This item amends the definition of cargo report that will be
inserted into the Customs Act by the ITM Act to ensure that it also covers those
goods that are intended to be kept on board a ship at a port or on an aircraft
at an airport.
Item 29 - After subsection 64AB(2)
This item
inserts into new section 64AB of the Customs Act new subsection 64AB(2A). New
subsection 64AB(2A) provides that if a ship or aircraft is due to arrive at its
first port, or airport, in Australia since it last called at a port, or departed
from an airport, outside Australia, each cargo reporter must report to Customs
particulars of all goods that the cargo reporter has arranged to be carried on
the ship or aircraft on the voyage or flight and that are intended to be kept on
board the ship or aircraft for shipment on to a place outside Australia. This
requirement does not apply to goods that are accompanied personal or household
effects of a passenger or member of the crew or to ship’s stores or
aircraft’s stores.
New subsection 64AB(2A) ensures that the
requirement to report cargo that is in transit through Australia still has to be
reported once the ITM Act commences.
Item 30 - Paragraph
64AB(5)(a)
New paragraphs 64AB(5)(a) and (b) set out who are the
consignee or consignor of goods for the purposes of making a cargo report.
Since the definition of consignor in paragraph 64AB(5)(a) refers to a
person in Australia, the definition is not relevant to goods that are in transit
through Australia.
This item amends paragraph 64AB(5)(a) to limit its
operation to reports of goods intended to be unloaded in
Australia.
Item 31 - After paragraph 64AB(5)(a)
This item
inserts new paragraph 64AB(5)(aa) into the Customs Act. New paragraph
64AB(5)(aa) sets out who is the consignor in respect of goods that are in
transit through Australia. This is the supplier of such goods located outside
Australia who:
• initiates the sending of goods to a person in a
place outside Australia; or
• complies with a request from a person in
a place outside Australia to send goods to the person.
Item 32 -
Paragraph 64AB(5)(b)
This item amends new paragraph 64AB(5)(b) to
make it clear that the definition of consignee applies to both goods intended to
be unloaded in Australia and goods intended to be kept on board a ship or
aircraft whilst it is in Australia. The definition does not otherwise need to
be amended
SCHEDULE 5 - REPORTING OF
MAIL
Customs Act 1901
Item 1 - Section
63A
This item inserts into section 63A of the Customs Act a
definition of ‘cargo’ for the purposes of Division 3 of Part IV of
that Act. This definition makes it clear that cargo, in relation to a ship or
aircraft, includes any mail carried on the ship or aircraft. Item 2 below
inserts a definition of ‘mail’ into section 63A.
The
insertion of this definition of cargo into section 63A will have the effect of
making it clear that throughout Division 3 of Part IV of the Customs Act all of
the obligations and powers that relate to cargo also apply to mail. This will
clarify, for example, that mail has to be reported to Customs as part of a cargo
report (section 64AB refers) and that Customs has the power to ask questions and
require documents to be produced in respect of mail (section 64AE
refers).
Item 2 - Section 63A
This item inserts into
section 63A a definition of mail, in relation to a ship or aircraft, for the
purposes of Division 3 of Part IV of the Customs Act. This definition includes
two parts. The first provides that any goods that are consigned through the
Post Office that are carried on the ship or aircraft are mail. These goods will
be treated as mail and hence cargo for the purposes of Division 3 of Part IV of
the Customs Act.
The second provides that any correspondence carried on
the ship or aircraft that is not consigned as cargo and that is not accompanied
personal or household effects of a passenger or member of the crew, is also
mail. For example, airlines often carry on board their aircraft their own
correspondence and correspondence for other airlines. This type of
correspondence will also be treated as mail and hence cargo for the purposes of
Division 3 of Part IV of the Customs Act.
Item 3 - After subsection
64AB(3A)
This item inserts a new subsection 64AB(3AAA) into the
Customs Act, which provides that despite subsection 64AB(3A) (which provides
that a cargo report can be made by document or computer), if a cargo report
relates to mail that is intended to be unshipped in Australia, that part of the
report relating to mail must be made to Customs by computer. This provision has
the effect of inserting into the Customs Act a mandatory requirement to report
mail to Customs by computer.
This Bill is also inserting into the Customs
Act a requirement that owners of ships and aircraft report cargo that is
transiting through Australia. Since new subsection 64AB(3AAA) only applies to
mail that is intended to be unshipped in Australia, the requirement to report
mail by computer will not extend to mail that is in transit through Australia.
Whilst transit mail does not have to be reported by computer, it is still
required to be reported (by either document or computer).
Item 4 -
After subsection 64ABA(1)
This item inserts a new subsection
64ABA(1A) into the Customs Act which ensures that any variation of a cargo
report relating to mail that is intended to be unshipped in Australia must be
communicated to Customs by computer. This, in combination with new subsection
64AB(3AAA), will ensure that both those parts of cargo reports relating to mail
and variations relating to mail will have to be reported to Customs by
computer.
SCHEDULE 6 - PASSENGER AND CREW
REPORTS
The amendments contained in this schedule provide for
Customs and the Department of Immigration and Multicultural and Indigenous
Affairs (DIMIA) to receive electronically advance information about air and sea
passengers and crew travelling to Australia before they arrive at the airport or
port. This will significantly enhance the ability of Customs and DIMIA to
assess passengers and crew, prior to their arrival in Australia, for the risk
they may present in relation to a range of Commonwealth laws.
The scheme
that is established by the provisions of this Schedule provides for reports to
be made by the operators of certain aircraft and ships to both Customs and
DIMIA. However, to ensure that aircraft and ship operators do not have to
duplicate their reports there is a new provision in the Customs Act that if an
operator provides information to DIMIA under the Migration Act, that operator
will not be required to provide the same information to Customs. In addition,
DIMIA will be required to provide to Customs any information that it receives
under the advance reporting provisions. Where the operators of aircraft and
ships give information only to Customs (i.e., not to DIMIA) Customs will be
required to give that information to DIMIA.
Customs Act 1901
Item 1 - Subsection
4(1)
This is a technical drafting amendment to include a
cross-reference in the definitions section of the Customs Act (section 4) to
approved statements made under section 4A.
Item 2 - Subsection
4(1)
This item inserts in subsection 4(1) a definition of
‘arrival’ in relation to ships and aircraft. This definition is to
be inserted in the Customs Act by the Customs Legislation Amendment and
Repeal (International Trade Modernisation) Act 2001 (the ITM Act) parts of
which have not yet commenced. There are time limits on the requirement to
report passengers electronically which are determined by the estimated time of
arrival of the ship or aircraft. The inclusion of a definition of
‘arrival’ provides certainty as to when a ship or aircraft can be
said to have arrived in Australia.
Item 3 - Subsection 4(1)
(definition of electronic)
This item repeals and replaces the
definition of ‘electronic’. This new definition is to be inserted
in the Customs Act by the ITM Act parts of which have not yet commenced. The
new definition covers all transmissions of communications by computer and not
simply the transmission of reports by computer.
Item 4 - Subsection
4(1)
This item inserts a definition of ‘operator’ in
relation to a ship or aircraft for a particular flight or voyage. This
definition is to be inserted in the Customs Act by the ITM Act parts of which
have not yet commenced. The obligations to report passengers electronically
are imposed on the operator of the ship or aircraft. This definition makes it
clear who the operator of a ship or aircraft is.
Item 5 - Sections
64AC and 64AD
This item repeals existing sections 64AC and 64AD of
the Customs Act which deal with passenger and crew reports (section 64AC) and
communication with Customs (section 64AD) and inserts new provisions dealing
with passenger reports (new section 64ACA), crew reports (section 64ACB) and
communication of reports (section 64ACE). A separate provision dealing with
offences is also inserted (new section 64ACD).
New section 64ACA imposes
the general obligation on the operators of ships and aircraft that are due to
arrive at a port or airport in Australia from outside Australia to report all
passengers who will be on board the ship or aircraft at the time of its arrival
at the port or airport. The reporting requirements imposed on operators vary
depending on the type of operator (for example, whether a commercial passenger
airline or passenger shipping line or a cargo ship or private plane or
yacht).
New subsection 64ACA(2) requires the operators of all commercial
passenger airlines and prescribed operators of commercial passenger vessels to
report passengers electronically using an approved system.
This section
applies to the operator of a ship if:
• the ship is on a voyage
for transporting people (that is, it is not a cargo ship)
- that is
provided for a fee payable by those using it; and
- the operator is
prescribed in the regulations.
So, the operators of passenger ships (such
as cruise ships) must be prescribed in the regulations before the obligation to
report electronically will apply.
The obligation is imposed on the
operator of an aircraft if:
• the flight is provided as part of an
airline service that is:
- provided for a fee payable by the passengers
using it;
- provided in accordance with fixed schedules to or from fixed
terminals over specific routes; and
- that is available to the general
public on a regular basis.
This definition excludes from the obligation
to report electronically the operators of private planes, charter aircraft and
cargo aircraft which may incidentally carry a small number of passengers. These
operators retain the option of reporting passengers electronically or by
document.
New subsection 64ACA(2) also will involve the CEO approving, in
writing, an electronic system for each of these operators. The instruments of
approval of electronic systems are disallowable instruments (new subsection
64ACA(10)).
New subsection 64ACA(3) sets out how reporting is to occur if
an approved electronic system is not working. In such a case, the operators may
report either by document or electronically.
New subsection 64ACA(4) sets
out the reporting requirements for operators of all other ships and aircraft.
So, this subsection applies to cargo ships and private planes reporting their
passengers to Customs.
New subsections 64ACA(5) and (6) set out the time
limits in which reports must be made. These time limits are the same as those
in the ITM Act.
For ships, the report must be given not later
than:
• if the journey from the last port before Australia is
likely to take not less than 48 hours - 48 hours;
• if the journey
from the last port before Australia is likely to take less than 48 hours - 24
hours;
before the time stated in the impending arrival report (made under
section 64) to be the estimated time of arrival.
For aircraft, the report
must be given not later than:
• if the journey from the last
airport before Australia is likely to take not less than 3 hours - 3
hours;
• if the journey from the last airport before Australia is
likely to take less than 3 hours - one hour;
before the time stated in the
impending arrival report (made under section 64) to be the estimated time of
arrival.
New subsection 64ACA(7) sets out the other requirements for the
making of a documentary report. These requirements are the same as those
currently in the Customs Act (and as in the ITM Act).
New subsection
64ACA(8) sets out the other requirements for making an electronic report. These
requirements are the same as those currently in the Customs Act (and as in the
ITM Act).
New subsection 64ACA(9) makes it clear that the CEO may approve
different forms for documentary reports and different statements for electronic
reports in different circumstances, by different kinds of operators of ships or
aircraft or in respect of different kinds of ships or aircraft. So, for
example, the CEO may approve a different statement for certain types of cruise
ship or for certain types of operators of passenger ships.
Under new
subsection 64ACA(11), Customs must provide to the department administered by the
Minister who administers the Migration Act 1958 (Migration Act) the
information that is reported to Customs under this section (new section 64ACA).
New subsection 64ACA(12) sets out the purposes for which information is
taken to be obtained by Customs under new section 64ACA of the Customs Act and
new section 245L of the Migration Act 1958. It provides that such
information is taken to be obtained for the purposes of the administration of
the Customs Act 1901, the Migration Act 1958, and any other law of
the Commonwealth prescribed by the regulations for the purposes of this
subsection.
New section 64ACB sets out the requirements for the making of
crew reports. These provisions are the same as those in the ITM Act. No
substantive changes have been made to these provisions although this provision
differs from the counterpart provisions in the ITM Act in that under new
subsection 64ACB(8), Customs must provide to the department administered by the
Minister who administers the Migration Act 1958 (Migration Act) the
information that is reported to Customs under this section (new section
64ACB).
New subsection 64ACC(1) provides that, if the same information is
required under new section 64ACA or 64ACB and also under proposed new section
245L of the Migration Act, and the operator of the ship or aircraft concerned
has reported the piece of information in relation to the passengers or crew as
required by section 245L of the Migration Act then the operator is taken not to
be required by section 64ACA or 64ACB of the Customs Act to report the same
information in relation to those passengers and crew.
New subsection
64ACC(2) provides that subsection 64ACC(1) applies only if the report under the
Migration Act relates to the arrival of the ship or aircraft at the same port or
airport for which the Customs Act requires a report.
The purpose of new
section 64ACC is to ensure that where both the Customs Act and the Migration Act
oblige the operators of ships and aircraft to provide the same information in
relation to crew and passengers, the operators are not required to give the same
information on the same passengers and crew under the Customs Act.
New
section 64ACD establishes the offences in relation to passenger and crew
reports. New subsection 64ACD(1) makes it an offence for an operator to
intentionally contravene new section 64ACA (requirement to report passengers) or
to intentionally contravene new section 64ACB (requirement to give a crew
report). So, if an operator is required to report passengers electronically,
intentionally failing to do so will be an offence. Previously, these offences
were contained in the reporting provisions themselves rather than in a stand
alone section. The maximum penalty of 120 penalty units is the same as that
provided for in the ITM Act.
As with the ITM Act, there are strict
liability offences as well as intentional offences. Subsection 64ACD(2) makes
it an offence for an operator to contravene new section 64ACA (requirement to
report passengers) or to contravene new section 64ACB (requirement to give a
crew report). Subsection 64ACD(3) makes it clear that offences against
subsection 64ACD(2) are strict liability offences. As with the ITM Act, the
maximum penalties for strict liability offences are only 60 penalty
units.
New section 64ACE sets out how the various reports made under
Subdivision A of Division 3 of the Customs Act (including passenger reports and
crew reports) are to be communicated to Customs. These provisions are currently
set out in section 64AD (which is repealed by this Act). This amendment is a
technical consequential amendment to include cross-references to the new
reporting provisions to be inserted by this Act. The substance of current
section 64AD as amended by the ITM Act is not being changed.
Item 6 Saving —
regulations
This is a technical amendment which preserves the
operation of regulations made under existing section 64AD of the Customs Act
which provides for the communication of reports to Customs. Section 64AD is
being repealed by this Schedule (and replaced by new section 64ACE). This
amendment is to ensure that the regulations prescribing the manner of
communication for other reports (such as impending arrival reports or
documentary reports of cargo) which are not being amended by this Schedule
continue to have effect as if they had been made under new section
64ACE.
Items 7 and 8
These items
contain technical amendments to section 64AE as result of the insertion of new
reporting requirements.
Migration Act
1958
Item 9
After Division
12A of Part 2
This item inserts new Division 12B into the Migration
Act.
New Division 12B introduces a reporting scheme that requires
operators of aircraft and ships, to which the Division applies, to report on all
passengers and crew who will be on board their aircraft or ship at the time of
its arrival in Australia.
Division 12B Reporting on passengers and
crew of aircraft and ships
Section
245I Definitions
New section 245I inserts a number of
definitions for the purposes of new Division 12B.
Approved
fall-back reporting system is defined to mean a system approved under
new section 245K.
Approved primary reporting system is
defined to mean a system approved under new section 245J.
Approved
primary reporting system for crew is defined to mean, for an aircraft or
ship of a kind to which this Division applies, the system approved under new
section 245J for reporting on crew on an aircraft or ship of that
kind.
Approved primary reporting system for passengers is
defined to mean, for an aircraft or ship of a kind to which this Division
applies, the system approved under new section 245J for reporting on passengers
on an aircraft or ship of that kind.
Arrival is defined to
mean:
• in relation to an aircraft – the aircraft coming to a
stop after landing; or
• in relation to a ship – the securing of
the ship for the loading or unloading of passengers, cargo or ship’s
stores.
Kind of aircraft or ship to which this Division
applies is defined to mean a kind of aircraft or ship specified in the
Migration Regulations 1994 (“the Migration Regulations”) as a
kind of aircraft or ship to which new Division 12B applies.
The note to
this definition refers to new subsection 245I(2). New subsection 245I(2)
defines kind for the purposes of new Division 12B (and or
regulations and approvals made for the purposes of provisions of new Division
12B) to mean a kind of aircraft or ship that may be identified by reference to
matters including all or any of the following:
• the type, size or
capacity of the aircraft or ship;
• the kind of operation or service
the aircraft or ship is engaged in on the flight or voyage to Australia;
• other circumstances related to the aircraft or ship or its use, or
related to the operator of the ship or aircraft.
Operator
of an aircraft or ship for a particular flight or voyage is defined to
mean:
• the airline or shipping line responsible for the operation
of the aircraft or ship for the flight or voyage; or
• if there is no
such airline or shipping line, or no such airline or shipping line that is
represented by a person in Australia – the pilot of the aircraft or the
master of the ship.
Section 245J Approval of primary reporting
system
New section 245J requires the Secretary to approve primary
reporting systems for the purposes of reporting under new Division 12B on
passengers and crew on board aircraft or ships.
Under new subsection
245J(1) the Secretary must approve, in writing, a system for each kind of
aircraft or ship to which new Division 12B applies. This system may be an
electronic system or a system requiring reports to be provided in documentary
form.
A kind of aircraft or ship to which new Division 12B applies will
be specified in the Migration Regulations. Under new subsection 245I(2), a
kind of aircraft or ship may be identified by reference to matters
including all or any of the following:
• the type, size or capacity
of the aircraft or ship;
• the kind of operation or service that the
aircraft or ship is engaged in on the flight or voyage to
Australia;
• other circumstances related to the aircraft or ship or its
use, or related to the operator of the aircraft or ship.
This means that
there may be more than one primary reporting system approved by the Secretary
under new subsection 245J(1).
Note 1 to new subsection 245J(1) makes it
clear that the approval by the Secretary of a primary reporting system can be
varied or revoked under subsection 33(3) of the Acts Interpretation Act
1901.
Under subsection 33(3) of the Acts Interpretation Act
1901, a power to make, grant or issue any instrument is to be construed as
including a power exercisable in the like manner and subject to the like
conditions (if any) to repeal, rescind, revoke or amend, or vary any such
instrument. This is the case unless a contrary intention appears in the Act
that confers the power.
Note 2 to new subsection 245J(1) highlights that
it is likely that documentary systems will be phased out and all approved
primary reporting systems will be electronic systems.
New subsection
245J(2) provides that when approving a primary reporting system under new
subsection 245J(1), the Secretary may, for a kind of aircraft or
ship:
• approve a single system for reporting on both passengers
and crew; or
• approve one system for reporting on passengers, and
another system for reporting on crew.
In effect, this means that there
may also be more than one primary reporting system for a kind of aircraft or
ship to which new Division 12B applies. That is, one primary reporting system
for the purposes of reporting passengers on that kind of aircraft or ship and
another primary reporting system for the purposes of reporting crew on that kind
of aircraft or ship.
New subsection 245J(3) requires the instrument of
approval of a system for reporting on passengers or crew to specify the
information about passengers or crew that is to be reported by that
system.
The kind of information that is likely to be specified in the
instrument of approval is, for example, the names and date of birth of
passengers or crew, their passport number and citizenship.
New subsection
245J(4) classifies an instrument of approval made under new section 245J, or a
variation or revocation of such an instrument, as a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
Section 245K Approval of fall-back reporting
system
New section 245K requires the Secretary to approve fall-back
reporting systems for the purposes of reporting under new Division 12B on
passengers and crew on board aircraft or ships.
Under new subsection
245K(1), the Secretary must, in writing, approve one or more fall-back reporting
systems. A fall-back reporting system may be an electronic system or a system
requiring reports to be provided in documentary form.
The note to new
subsection 245K(1) provides that the Secretary’s approval of a fall-back
reporting system can be varied or revoked under subsection 33(3) of the Acts
Interpretation Act 1901.
New subsection 245K(2) requires the
instrument of approval of a fall-back reporting system to specify the
information about passengers or crew that is to be reported by that
system.
The kind of information that is likely to be specified in the
instrument of approval is, for example, the names and date of birth of
passengers or crew, their passport number and citizenship.
New subsection
245K(3) classifies an instrument of approval made under new section 245K, or a
variation or revocation of such an instrument, as a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
Section 245L Obligation to report on passengers and
crew
New section 245L establishes a reporting scheme for operators of
aircraft or ship obliged to report on passengers and crew who will be on board
their aircraft or ship at the time of its arrival in
Australia.
Aircraft and ships to which section applies
New
subsection 245L(1) provides that new section 245L applies to an aircraft or ship
of a kind to which new Division 12B applies that is due to arrive at an airport
or port in Australia from a place outside Australia.
Broadly speaking,
new subsection 245I(1) provides that a “kind of aircraft or ship to which
this Division applies” is one specified in the Migration Regulations as a
kind of aircraft or ship to which new Division 12B applies.
Obligation
to report on passengers and crew
New subsection 245L(2) imposes an
obligation on the operator of an aircraft or ship to which new Division 12B
applies to:
• report to the Department, using the approved primary
reporting system for passengers, on the passengers who will be on board the
aircraft or ship at the time of its arrival at the airport or port;
and
• report to the Department, using the approved primary reporting
system for crew, on the crew who will be on board the aircraft or ship at the
time of its arrival at the airport or port.
“The Department”
is not a defined term in the Act. However, the Department to which the report
must be made can be worked out with reference to section 19A of the Acts
Interpretation Act 1901.
Note 1 to new subsection 245L(2) makes it
clear that the obligation:
• in new subsection 245L(2) on operators
to report to the Department; and
• in new subsection 245L(6) on the
Department to provide the information to the Australian Customs
Service;
must be complied with even if the information concerned is
personal information (as defined in the Privacy Act 1988).
Note 2
to new subsection 245L(2) refers to new section 245N, which makes it an offence
for an operator to fail to comply with this obligation to report on passengers
and crew.
New subsection 245L(3) provides that a report on passengers and
crew under new subsection 245L(2) must include certain information relating to
those passengers and crew who will be on board the aircraft or ship at the time
of its arrival in Australia. This information is that which is specified in the
instrument of approval in relation to the relevant approved primary reporting
system.
New subsections 245L(4) and 245L(5) set out the deadlines for
operators of aircraft or ships to report on passengers and crew who will be on
board their aircraft or ship at the time of its arrival at the airport or port
in Australia.
Under new subsection 245L(4), a report on passengers or
crew on an aircraft must be given not later than:
• if the flight
from the last airport outside Australia is likely to take not less than 3 hours
– 3 hours before the aircraft’s likely time of arrival at the
airport in Australia; or
• if the flight to Australia from the last
airport outside Australia is likely to take less than 3 hours – one hour
before the aircraft’s likely time of arrival at the airport in
Australia.
Under new subsection 245L(5), a report on passengers or crew
on a ship must be given not later than:
• if the journey from the
last port outside Australia is likely to take not less than 48 hours – 48
hours before the ship’s likely time of arrival at the port in Australia;
or
• if the journey from last port outside Australia is likely to take
less than 48 hours – 24 hours before the ship’s likely time of
arrival at the port in Australia.
New subsection 245L(6) requires the
Department to provide, as soon as practicable, the information in a report under
new section 245L, to the Australian Customs Service.
New subsection
245L(7) sets out the purposes for which information is taken to be obtained by
the Department under new section 245L and subsection 64ACA(11) or 64ACB(8) of
the Customs Act 1901. It provides that such information is taken to be
obtained for the purposes of the administration of the Migration Act
1958, the Customs Act 1901, and any other law of the Commonwealth
prescribed by the regulations for the purposes of this
subsection.
Section 245M Approved fall-back reporting system may be
used in certain circumstances
New section 245M allows an approved
fall-back reporting system to be used in certain circumstances to report on
passengers and crew on board aircraft and ships.
New subsection 245M(1)
provides that an approved fall-back reporting system may be used if the approved
primary reporting system for reporting on passengers or crew on an aircraft or
ship is an electronic system and, either:
• the operator of the
aircraft or ship cannot report on some or all of the passengers or crew (the
relevant passengers or crew) using the approved primary reporting system
because the system is not working; or
• the Secretary permits the
operator of the aircraft or ship to report on some or all of the passenger or
crew (the relevant passenger or crew) using an approved fall-back
reporting system.
New subsection 245M(2) makes it clear that the
reporting scheme set out in new section 245L applies in relation to the relevant
passengers or crew to be reported using the approved fall-back reporting system.
It provides that new section 245L applies as if:
• the reference in
new paragraph 245L(2)(a) or (b) to the approved primary reporting system for
passengers, or the approved primary reporting system for crew, were instead a
reference to an approved fall-back reporting system; and
• the
reference in subsection 245L(3) to the information that is specified as
mentioned in subsection 245J(3), in relation to the relevant approved primary
reporting system were instead a reference to the information that is specified,
as mentioned in subsection 245K(2), in relation to the approved fall-back
reporting system that the operator uses in relation to the relevant passengers
or crew.
Section 245N Offence for failure to comply with reporting
obligations
New section 245N makes it an offence for an operator of
an aircraft or ship to fail to report, using the relevant approved primary
reporting system, on passengers or crew on board their aircraft or ship before
its arrival in Australia.
Under new subsection 245N(1), an operator of an
aircraft or ship who intentionally contravenes new subsection 245L(2)
commits an offence punishable, on conviction, by a penalty not exceeding 120
penalty units.
Under new subsection 245N(2), an operator of an aircraft
or ship who contravenes subsection 245L(2) commits an offence punishable, on
conviction, by a penalty not exceeding 60 penalty units.
New subsection
245N(3) makes it clear that the offence in new subsection 245N(2) is an offence
of strict liability.
The note to new subsection 245N(3) refers to section
6.1 of the Criminal Code. Section 6.1 of the Criminal Code Act
1995 provides that an offence of strict liability is an offence where there
are no fault elements for any of the physical elements of the offence and the
defence of mistake of fact is available.
Customs Legislation Amendment and Repeal (International Trade
Modernisation) Act 2001
Items 10 to 13
These items
are technical amendments which repeal items of the ITM Act which are being
introduced by this Act (and therefore do not need to be repeated in the ITM
Act).
Item 14 - Item 122 of Schedule 3
This item repeals
item 122 of Schedule 3 to the ITM Act which would have inserted new sections
64AC, 64ACA and 64AD into the Customs Act. These new sections as contained in
the ITM Act are no longer necessary because of the amendments that are going to
be made to the Customs Act by this Act.
This item also inserts new items
122 and 122A in Schedule 3 of the ITM Act. Items 122 and 122A make
consequential amendments to section 64ACE (communication of reports) which is
being introduced in the Customs Act by this Act. This is because the ITM Act
will introduce new reporting sections into the Customs Act that are not referred
to in section 64ACE as contained in this Act (for example, new section 64AAA as
contained in the ITM Act will require the operators of ships and aircraft to
report stores and prohibited goods).
Item 15 - Items 124 and 125 of
Schedule 3
This is a consequential amendment required because the
amendments made by this Act are bringing forward certain amendments which were
to be made to the Customs Act by the ITM Act.
Section 64AE imposes
obligations on the master and owner of a ship or aircraft who are required to
provide certain reports to Customs (such as impending arrival report, the
arrival report, the cargo report etc) to answer questions and produce documents
when asked or required by a Collector. Those reports are listed by reference to
the section number that they are contained in. Since this Act makes
consequential amendments to section 64AE, the amendments that have to be made by
the ITM Act are now different.
Evidence Act
1995
Items 16 and 17
These items contain
consequential amendments to the definition of Commonwealth document in the
Dictionary at the end of the Evidence Act 1995 as a result of the
amendments being made by this Act.
Part 1 of that Dictionary defines
‘Commonwealth document’ to include (amongst other things) a report
of the crew and passengers on a ship or aircraft that has been communicated to
the Australian Customs Service under section 64AC of the Customs Act. Under the
amendment contained in this Act crew and passenger reports will no longer be
required under section 64AC of the Customs Act. Passengers will be required to
be reported under section 64ACA and crew under section 64ACB. The amendments to
the definition reflect these changes.
Item 18
This item
inserts a new definition of a “Commonwealth document”. It provides
that a report relating to the passengers or crew on an aircraft of ship that has
been communicated to the Department administered by the Minister who administers
the Migration Act 1958 under Division 12B of Part 2 of that Act is a
“Commonwealth document” for the purposes of the Evidence Act
1995.
SCHEDULE 7 - ACCESS TO AIRLINE PASSENGER
INFORMATION
Customs Act 1901
Item
1 After section 64AE
All airlines maintain computer reservation
systems detailing their passenger’s flight bookings and other information
(including information on how the passenger has paid for the ticket and where
the ticket was booked). Access to this information would assist Customs to
identify persons who may be involved in the importing or exporting of prohibited
goods or who may otherwise be involved in offences against Commonwealth law
(including terrorist activities).
The requirement to provide access will
apply to airlines operating scheduled passenger flights into and out of
Australia.
The access will be preferably be provided on a ‘read
only’ basis. That is, Customs officers will not be able to remove, add to
or vary any of the information contained on an airline’s computerised
reservation systems.
New subsection 64AF(7) defines a number of terms for
the purposes of new section 64AF. The requirement to permit Customs access to
the passenger information (as defined) applies to the operators of commercial
airlines who fly into and out of Australia. In this section these airlines are
called operators of ‘international passenger air services’. An
international passenger air service is defined as a service which provides air
transportation of people:
(a) by means of Australian international
flights (whether or not the operator also operates domestic flights or other
international flights); and
(b) for a fee payable by people using this
service; and
(c) in accordance with fixed schedules to and from fixed
terminals over specific routes; and
(d) that is available to the general
public on a regular basis.
This definition limits who may be requested to
provide access so that charter aircraft operators or private aircraft are not
covered by the obligation nor operators of air cargo services (which may also
incidentally carry a small number of passengers).
Operators must provide
access to the operator’s ‘passenger information’ which it
keeps electronically. This term is defined in subsection 64AF(7) as any
information the operator of the service keeps electronically about its flights
and passengers including for example, payments, passenger details (such as name,
gender and nationality), number of passengers, check-in details, seat
allocation, baggage and passenger itineraries.
The CEO may request an
operator to allow authorised officers ongoing access to the operator’s
passenger information in a particular manner and form. For example, the CEO may
request access from certain locations. Ongoing access will be provided by a
computer link between Customs and the operator’s system. Customs will be
responsible for any costs incurred in establishing this link. New subsection
64AF(1) makes it an offence for an operator to refuse to provide access in that
manner and form.
The term ‘authorised officer’ is defined in
subsection 4(1) and means, in relation to a section of the Customs Act, an
officer authorised in writing by the CEO to exercise the powers of perform the
functions of an authorised officer under that section. So, the CEO must
authorise specific officers of Customs for the purposes of new subsection
64AF(1) in order for those officers to be able to access an operator’s
passenger information.
The maximum penalty for an offence against new
subsection 64AF(1) is 50 penalty units.
The second note to subsection
64AF(1) makes it clear that an operator must comply with the CEO’s request
even if the passenger information is personal information (as defined in the
Privacy Act 1988). The Australian Customs Service is obliged to handle
personal information in accordance with the Privacy Act. In addition, section
16 of the Customs Administration Act 1985 imposes further limitations on
the disclosure of personal information by officers of Customs.
New
subsection 64AF(3) creates a defence for an operator where the operator has
failed to provide access to the operator’s passenger information as
required by subsection 64AF(1). An operator does not commit an offence, if at
the time the operator fails to provide access to an authorised officer, the
operator does not itself have access to the system. Such situations would
include where the operator’s computer system is not working or there is a
general power failure.
Subsection 64AF(4) requires an operator to provide
an authorised officer (to whom access must be granted) with all reasonable
facilities and assistance necessary to obtain information and understand the
information. Subsection 64AF(4) makes it an offence not to provide the
facilities and assistance. This provision is to ensure that an operator is
required to provide authorised officers with the necessary passwords and
operating manuals which explain how the operator’s system works and where
an operator uses particular codes or abbreviations, that these can be understood
by the officer. The maximum penalty for an offence against subsection 64AF(4)
is 50 penalty units.
Subsection 64AF(5) makes it a defence where an
operator fails to provide the reasonable assistance and necessary facilities if
the operator has a reasonable excuse.
Subsection 64AF(6) places limits on
the purposes for which an authorised officer may access an operator’s
passenger information. An authorised officer may only access passenger
information for the purpose of performing his or her function in accordance with
the Customs Act or a law of the Commonwealth which is prescribed in the
regulations. Examples of the laws of the Commonwealth which may be prescribed
are the Migration Act 1958 and the Financial Transactions Reports Act
1988.
SCHEDULE 8 – VESSEL MONITORING
SYSTEMS
Fisheries Management Act
1991
Item 1 – After section 167A
This item
inserts a new section in the Fisheries Management Act to make it clear that the
Australian Fisheries Management Authority (AFMA) may disclose vessel monitoring
system (VMS) information to Customs to assist Customs perform its civil
surveillance functions.
VMS is a system that enables AFMA, through a
transponder fitted to a fishing boat, to monitor the position and movement of a
boat at any time. AFMA requires that the holders of fishing concessions in a
number of fisheries have a VMS transponder fitted to their fishing boats. AFMA
requires the fitting of the transponder by making it a condition on the grant of
the fishing licences and permits. Given the circumstances in which the
transponders are fitted, the amendment seeks to remove any doubt as to the
capacity of AFMA to provide the information obtained from VMS transponders to
Customs.
One of the principal roles of the Australian Customs Service
(Customs) is to facilitate trade and the movement of people across the
Australian border while protecting the community and maintaining appropriate
compliance. As part of this role, Customs is tasked by the Government with
providing a civil maritime surveillance and response service to a range of
government agencies.
Customs access to the VMS data collected by AFMA
will enable it to better manage its surveillance activities. With access to the
data, Customs will have the ability to identify known vessels from potential
illegal vessels and thereby concentrate surveillance activities on unidentified
targets. Surveillance aircraft would thus not be required to close on VMS
reporting vessels in order to achieve positive identification.
The Joint
Committee of Public Accounts and Audit has recommended that Commonwealth
legislation be amended to ensure that VMS data is provided to Customs
(Recommendation No, 5, Report No. 384, Review of Coastwatch).
Proposed
new section 167B will apply to any information relating to a boat which AFMA has
obtained from a vessel monitoring system. The term ‘vessel monitoring
system’ is defined in subsection 167B(4).
Under this section, AFMA
may give Customs any information obtained from a vessel monitoring system if
AFMA, having regard to advice from Customs, considers that it would assist
Customs to perform its civil surveillance functions. In so doing, AFMA must
have regard to the relevance of the information to these functions (proposed new
subsection 167B(2) refers).
New subsection 167B(3) makes it clear that
this provision does not limit any other powers that AFMA may have to provide
information to Customs. So, for example, where AFMA has information about
possible illegal fishing vessels operating in Australian waters, it may pass
this information on to Customs.
New subsection 167B(4) defines
“vessel monitoring system” for the purposes of the section. It
means a system in which boats are fitted with an electronic device that can give
information about the boats’ course, or position, or other such
information.
SCHEDULE 9 - OFFICERS OF
CUSTOMS
Customs Act 1901
Item 1 -
Subsection 4(1) (after paragraph (b) of the definition of Officer of
Customs)
This item inserts a new paragraph into the definition
of ‘Officer of Customs’ in subsection 4(1) of the Customs Act to
ensure that the Chief Executive Officer of Customs (the CEO) can authorise
persons by reference to their office or position and that power to authorise
extends to those offices and positions that do not exist at the time that the
authorisation is made. The amendment also makes it clear that the office or
position does not have to be in or for the Commonwealth. This will allow the
CEO to authorise a class of persons to be Customs officers and if new positions
or offices become part of that class the CEO will not need to remake the
authorisation.
The term ‘Officer of Customs’ is defined to
mean a person employed in the Customs or a person authorised in writing by the
Chief Executive Officer of Customs under the Customs Act to perform all of the
functions of an Officer of Customs.
Item 2 - Subsection 4(1)
(paragraphs (c) and (d) of the definition of Officer of
Customs)
Paragraphs (c) and (d) of the definition of Officer of
Customs make it clear that the CEO can authorise a person to perform the
functions or exercise the powers of an officer of Customs under a certain
provision of a Customs Act. That is, there may be circumstances where a person
will be performing certain functions or exercising the powers of an officer of
Customs under a provision of a Customs Act but not all of the functions or
powers of an officer. Paragraphs (c) and (d) make it clear that the CEO can
make a limited authorisation in respect of the relevant provisions.
This
item amends paragraphs (c) and (d) of the definition of Officer of Customs to
ensure that if the CEO authorises a person in respect of a specific provision of
a Customs Act that he can do so by reference to the person’s office or
position even if that office or position does not exist at the time of the
authorisation.
Item 3 - Saving - existing authorisations remain in
effect
This item ensures that any authorisations made under
paragraphs 4(1)(c) and (d) before the commencement of these provisions continue
to operate as if they were made under new subparagraphs 4(1)(c)(i) and
4(1)(d)(i) respectively.
SCHEDULE 10 – THE ISSUE AND
USE OF FIREARMS AND PERSONAL DEFENCE EQUIPMENT
Customs
Act 1901
Item 1 – Subsection 189A(1)
This
item repeals and substitutes subsection 189A(1) of the Customs
Act.
Subsection 189A(1) of the Customs Act presently enables the
commander of a Customs vessel, subject to any directions from the CEO, to issue
approved firearms and other approved items of personal defence equipment to
Customs officers under his or her command. A firearm can be issued for the
purpose of enabling its use by such officers to board either a foreign or
Australian ship that has been chased in accordance with the Customs Act. A
firearm or item of personal defence equipment can be issued to enable the safe
exercise, by such officers, of powers conferred on them under the Customs Act
including powers related to the suspected or attempted commission of an offence
against another Act.
In addition to section 189A, the CEO of Customs may
direct a Customs officer to carry firearms in accordance with regulation 194 of
the Customs Regulations 1926. The CEO has directed Customs officers to
carry firearms when undertaking patrols in remote areas of Australia where they
may be called upon to exercise powers under a number of Acts including the
Quarantine Act 1908. Such directions are limited so that the officers
can use the firearms only for defence against dangerous animals and for survival
purposes.
Personal defence equipment can be issued to officers of Customs
only in the circumstances described in section 189A of the Customs Act. There
are circumstances in addition to those described in section 189A where it is
considered appropriate for officers to have access to personal defence
equipment.
The purpose of the amendments is to tighten the various
provisions and accommodate the various circumstances where the CEO considers it
appropriate for an officer to be issued with personal defence equipment and
firearms.
It is therefore proposed to amend subsection 189A(1) so that
firearms and personal defence equipment can be issued to Customs officers to
enable the safe exercise of powers conferred on them under the Customs Act and
any other Act. It is proposed that firearms will continue to be issued to
enable the boarding of either a foreign or Australian ship that has been chased
in accordance with the Customs Act.
It is also proposed to amend
subsection 189A(1) to remove the restriction that the commander of a Customs
vessel issues the approved firearms and other approved items of personal defence
equipment to officers under his or her command. New subsection 189A (1) will
enable an authorised arms issuing officer to issue approved firearms and
approved items of personal defence equipment to Customs officers authorised to
carry arms. Both the arms issuing officer and the arms carrying officer must be
authorised by the CEO to carry out these respective functions.
Item 2
– Subsection 189A(5)
This item inserts a new definition of
authorised arms issuing officer into section 189A for the purposes
of new subsection 189A(1). The arms issuing officer is defined as an officer of
Customs authorised, in writing, by the CEO of Customs to exercise the powers or
perform the functions of an authorised arms issuing officer under section
189A.
Item 3 – Subsection 189A(5) (definition of Customs
vessel)
This item repeals the current definition of Customs
vessel in subsection 189A(5). This definition is relevant only for the
purposes of current subsection 189A(1) and is not required for the new
subsection.
Item 4 – Subsection 189A(5)
This item
inserts a new definition of officer authorised to carry arms into
section 189A for the purposes of new subsection 189A(1). This officer is
defined as an officer of Customs who is authorised in writing, by the CEO of
Customs, to use approved firearms and approved items of personal defence
equipment issued by the authorised arms issuing officer for either of the
purposes specified in subparagraphs (1)(a)(i) and (ii) of section
189A.
SCHEDULE 11 – POWERS OF
ARREST
Customs Act 1901
Item 1 –
Subsection 210(1A)
This item amends subsection 210(1A) of the Customs
Act by omitting the words “the offence of assaulting an officer in the
execution of his duties” and substituting “an offence against
section 147.1, 147.2 or 149.1 of the Criminal Code in relation to a
Customs officer”.
Subsection 210(1A) of the Customs Act authorises
a Customs officer or police officer to arrest a person where the officer has
reasonable grounds for believing that a person has committed the offence of
assaulting an officer in the course of the execution of his duties. The
reference to the offence of assaulting a Customs officer was a reference to
paragraph 232A(b) of the Customs Act, which made it an offence to assault,
resist, molest, obstruct or intimidate a Customs officer.
Amendments to
the Customs Act made by the Criminal Code Amendment (Theft, Fraud, Bribery
and Related Offences) Act 2000 mean that paragraph 232A(b) will no longer
prohibit the conduct of assaulting a Customs officer. This conduct will instead
be prohibited by sections 147.1, 147.2 and 149.1 of the Criminal Code
1995. These sections relate to offences of doing harm to a public official,
threatening to do harm to a public official and obstructing, hindering,
intimidating or resisting a public official respectively.
The amendment
to paragraph 232A(b) has had the unintended effect that Customs officers and
police officers no longer have the power under subsection 210(1A) to arrest
persons who are assaulting, resisting, molesting, obstructing or intimidating a
Customs officer.
In order to restore Customs
officers' and police officers’ power of arrest in these circumstances, it
is proposed to amend subsection 210(1A) of the Customs Act to permit the power
of arrest to be exercised when a person commits an offence against section 147.1
or 147.2 or 149.1 of the Criminal Code in relation to a Customs
officer.
SCHEDULE 12 – COMMONWEALTH
AGENCIES
Customs Administration Act
1985
Item 1 – Subsection 16(1A) – (definition of
Commonwealth agency)
This item repeals and substitutes the
definition of Commonwealth agency in subsection 16(1A) of the
Customs Administration Act.
Section 16 of the Customs Administration
Act governs the recording and disclosure of protected information by
Customs officers and people working in and for Customs. It enables the
disclosure of protected information to a number of entities such as Commonwealth
agencies, State agencies, foreign countries or agencies or instrumentalities of
a foreign country and international organisations. Both Commonwealth
agency and State agency are defined as meaning any
instrumentality or agency of the Crown.
The Australian Bureau of Criminal
Intelligence ("ABCI") is an unincorporated organisation established by
inter-governmental agreement between the Commonwealth, the States and the
Northern Territory. Whether an entity is "an agency or instrumentality of the
Crown" depends upon the nature and degree of control exercised over it by the
Crown. As all jurisdictions are represented on the Management Committee of the
ABCI, it may be considered to be controlled by the Crown in each of its
emanations.
While it is possible that the ABCI is both a Commonwealth
agency and a State agency for the purposes of section 16, it is proposed to put
the matter beyond doubt.
It is therefore proposed to amend the present
definition of Commonwealth agency in subsection 16(1A) of the
Customs Administration Act to provide that a Commonwealth agency also includes
the ABCI.
SCHEDULE 13 - UNDECLARED DUTIABLE GOODS IN
UNACCOMPANIED BAGGAGE
Customs Act
1901
Item 1 - Subsection 209(1)
This item amends
subsection 209(1) of the Customs Act to insert a reference to new paragraph
229(1)(qa) that is going to be inserted into the Act by item 2 (see
below).
Section 209 of the Customs Act allows an officer of Customs to
impound certain goods instead of seizing them. The power to impound can only be
exercised in respect of dutiable goods that are forfeited by virtue of paragraph
229(1)(a), (g), (o), (p) or (q) (these paragraphs cover goods on which duty has
been sought to be evaded), except if they are prohibited imports or if the
amount of duty sought to be evaded exceeds $5,000.
If the owner of the
goods pays the amount of duty owing plus a penalty within 21 days after
receiving a notice about the impoundment, the goods will be released to the
owner and they will no longer be forfeited.
Item 2 will insert into
subsection 229(1) a new class of goods that will be forfeited to the Crown being
dutiable goods found in the unaccompanied personal or household effects of a
person, where the person has denied having such goods.
This amendment to
section 209 will allow a Customs officer to impound those undeclared goods
instead of seizing them. This will ensure that this class of forfeited goods is
treated the same as other similar forfeited goods.
Item 2 - After
paragraph 229(1)(q)
This item inserts a new class of goods into
subsection 229(1) of the Customs Act. Subsection 229(1) sets out those goods
which shall be forfeited to the Crown.
Paragraph 229(1)(q) currently
covers “all dutiable goods found in the possession or in the baggage of
any person who has got out of, landed from or gone on board any ship boat or
aircraft and who has denied that he has any dutiable goods in his possession, or
who when questioned by an officer has not fully disclosed that such goods are in
his possession or baggage”.
It is possible for passengers to send
some or all of their baggage to Australia at a different time to when they
travel to Australia. These goods are referred to as ‘unaccompanied
personal or household effects’. Currently if a person denies that they
have dutiable goods in those effects or does not fully disclose that they have
dutiable goods in their unaccompanied effects when questioned by an officer,
those goods are not forfeited.
New paragraph 229(1)(qa) as contained in
this item will ensure that undeclared dutiable goods found in a person’s
unaccompanied personal or household effects shall be forfeited to the Crown.
This will ensure that accompanied and unaccompanied goods are treated
consistently.