Michael Hatton (Blaxland, Australian Labor Party) Share this | Link to this | Hansard source

I had a few minutes yesterday to begin speaking on the Customs Legislation Amendment (Augmenting Offshore Powers and Other Measures) Bill 2006. This bill is quite simple. The three different schedules interleave to protect Australia better and to give better tools to the Australian Customs Service in dealing with a number of different situations with people they need to identify—in some cases people they need to search and, in other cases, where they need to look for weapons or to retain documents for later use. They are sensible changes and they have already been looked at in depth by the Senate Standing Committee on Legal and Constitutional Affairs.

Schedule 1 deals with changes to the powers of search and seizure available to Customs officers in the offshore environment. I will not be dealing with schedule 2, which updates broker licensing provisions and deals with the issue of locum customs brokers. Schedule 3 deals with a related matter, the recovery of customs duty, and the schedule modernises those provisions. I will also leave that aside. That arises from Malika Holdings Pty Ltd v Stretton in 2001, and there is nothing in it that I think needs to be drawn out.

Schedule 4, in respect of electronic statements or declarations about goods, deems those statements or declarations to have been made to a Customs officer. SmartGate technology is new to Australia—indeed, new to the world—and if you present yourself as something other than what you are, you might be in a bit more trouble.

There are two particular aspects that I want to concentrate on. One is the difficulty Customs officers have in boarding vessels offshore. Currently, there are a series of provisions in the act that are deficient compared to what is available in the fisheries act. We know how difficult it is for our people operating against foreign fishing vessels, where they have to board and then seize to carry out their functions. They have been given extra powers to deal with search and seizure of information because of the very remote nature of what they are doing. In fact, Labor is going to look at moving an amendment in the Senate to one particular provision of this bill—that is, there is an extension of the powers here, not just in the maritime area but also relating to aircraft. Labor has looked at it in the legal and constitutional committee. It is of the view that it should not so extend, so it is going to be looking at that further.

The key element here, though, is that, if you are an Australian Customs officer and you are looking at what is dealt with in this bill, it is almost like the dry bones of the problem. When you look through a bill, you try to read it; you try to work out what people are doing and where the changes are made. It does not really tell the story of what the problem is. On the high seas, this is what this bill is about: when there is a fishing vessel off Northern Australia. Customs vessels are not part of an Australian coastguard, which the Australian Labor Party is committed to introducing—because, in a coastguard with powers such as those of the United States Coast Guard, what is involved here in this bill is already done. Our naval people have a capacity to exercise their powers of search and seizure in a way covered by their legislation; Customs do not have that same range.

I said yesterday that I had been privileged to see a demonstration of the detention of a foreign fishing vessel. These are done in large numbers by our defence forces off Northern Australia. It is a difficult and dangerous task, not just according to the current level of the sea and the difficulties in relation to that. One never knows, when our people board a ship, what they going to confront. Where you have heavily armed people from the Australian Navy, and SAS officers, heavily armed, well-prepared and highly trained, going onto a vessel, their experience and expertise dramatically assist them. But our Australian Customs officers are not trained to that high level. They have a particular problem in that, when they go onto a vessel in similar circumstances, at the moment the only way that they can go forward is to detain the ship. If they think that the ship needs to be searched or people need to be searched, they have to formally say, ‘We’re going to detain the ship and then we’re going to drag it into Australia.’ This bill says, ‘Let’s break that part of the process. Let’s just put a search provision in so that a frisk search can be undertaken in specific circumstances where there is a belief that the law has been contravened.’ And there are some deliberate reasons for that.

I am talking about it at length, but I think it is important. If you just look at the dry dust of the writing on the pages of the bill, you cannot really understand what our people out there are confronting. It is a dangerous situation. There is also a situation where part of the provision of this bill is that Customs can do searches and look for weapons—and there is a specific subclause. Item 16 has been knocked out and there is a new item 17. I would like to refer it to the parliamentary secretary and to the minister. In that particular subclause, a new power is given to undertake searches, and the concentration with regard to item 17 is not on the weapons that people might have but in fact on prohibited goods they might have. Given that change, a complete change in emphasis, with the existing item 16 being knocked out, does that mean that the existing power to search for weapons is knocked out or is that provided for elsewhere? If you look at the Bills Digest, that question is raised. It may have been raised at the constitutional committee, but that is material.

In the Bills Digest, the evidence given by the Customs people is potent stuff. It gives you a picture of what they are facing. Officer safety and risk of evidence being destroyed are the main factors. This is why we are here and why we should support the changes. I quote the Bills Digest:

… an incident occurred during a boarding of an Indonesian fishing vessel located inside the Australian Exclusive Economic Zone. The team began to conduct an investigative boarding to determine if there was evidence of any offences. As a decision had not been made to detain the vessel, physical pat down searches were unable to be conducted. During the search of the vessel an Indonesian crew member produced a weapon and physically threatened the boarding team. A tactical withdrawal occurred to avoid physical injury to any Customs officers.

So, to be able to apprehend under threat of physical violence and simply because of not knowing whether at any time our officers could be under threat, we have to make these changes.

In the second part of their evidence, though, Customs go to why we have to have an ability to take documents and keep them for the length of time that might be needed in order to prosecute. This is a very modern reason—it is about a global positioning satellite and a bloke who had that in his pocket, because that provides evidence of where that fishing vessel had been. It provides conclusive evidence that can put them in court, have their vessel destroyed and stop them fishing our waters. I quote again:

During another recent boarding of an Indonesian fishing vessel, the Customs boarding team identified sufficient evidence for the vessel to be detained and escorted to port for further enquiries. Subsequent pat down search of the crew located a concealed Global Positioning Satellite in the trousers of a crew member. There was potential for this piece of evidentiary material to be disposed of from the time of boarding until the search finally took place once the vessel had been detained. If no other evidence of suspected offences had been identified, it would not have been possible to detain the vessel and conduct the searches and the GPS would not have been located.

I commend that to the House and to anyone listening. These are the practical reasons why we have to support our people in the field. If you just looked at the normal explanations we have, you would think, ‘Why are they going to do this?’ So people are saying, ‘Well, people don’t like searches; they don’t like them to be undertaken,’ and so on. People are very wary about it. But you have to imagine yourself as a Customs officer on the high seas in a dangerous and difficult situation, when you are doing your best to prosecute that job. We should not put impediments in front of them, and we should not have a situation, as exists now, where they cannot do the job we have asked them to do. So I entirely support that change and underline it for their experience.

I want to raise another matter, and that is SmartGate, which is a German invention. It is different from what I originally thought with regard to this technology. SmartGate has been developed by the passports office, so the Department of Immigration and Citizenship and a number of other agencies are involved, as well as Customs. There is an implication here that, if SmartGate works—and, in terms of development, initially we are looking at a cost in the order of $60 million to $70 million and even more over a five-year period—we might have fewer Customs officers operating in Australian airports. You might be the Customs officer, Parliamentary Secretary, when I lob up to a customs gate! I have my passport in hand. It is a passport that has a digital photo and a digital signature on it. I might go to the member for Macarthur and lob in. He would not necessarily be officious, but I would identify myself. He would have a look at the photo on the card, have a look at me and see whether there has been any change: have I lost weight—that is unlikely—have I put any more on, do I seem a bit too ruddy or whatever, or do I look like I have had a bad night? Is there any resemblance between that person and the one in this photo? If you get a tick, you are on your way through, if the rest of the information is okay.

Under SmartGate, you do not meet a Customs officer, either charming or otherwise; you meet a little bit of technology which has a simple scanner. You whack the passport onto it, the face image is read and the technology then says, ‘Bang! That’s what we have here. This is what we have in our database. There’s the match.’

If you go to the Customs website, everything is wonderful. It is terrific. There has been a lot of research done in relation to this matter and they are pretty happy. They say that Australian e-passport holders will be able to use it, as will e-passport holders in other countries. SmartGate takes a live image of your face and uses facial recognition technology that matches that with a stored digitised image—so there is a database element—in your e-passport. You are there, although you have changed somewhat. I mentioned this, I think, yesterday. Al Gore wonderfully said, ‘The only thing that can make you look like your passport photo is international air travel.’ They are not the most wonderful representations of people in the world. The only other things like them are drivers licences. You cannot even smile these days on them. They are embarrassing. Now that local clubs are doing the same thing, you just want to hide them rather than use them. But, given that there can be a mismatch, even for humans, there is an argument here about whether this thing will work and work effectively. Customs says:

SmartGate will also undertake immigration and customs checks. If there is a successful match, you are cleared through the Customs control point. If there is not a successful match you will be referred to a Customs officer.

So the member for Macarthur might still have a job at the customs point! He may still have something to do. Maybe he will be released from more mundane things. But—and here is the big but—does it work properly? Roger Clarke, who is a consultant in the area of biometrics, in web information, on this matter, said, ‘Australian government tries to make face-recognition look good’. He has talked to Customs. He has severe doubts in relation to this proposal and about the way in which it has been put through. He says that these technologies have been uniformly unsuccessful. Maybe the Germans have done it, but everybody else has failed. He has accused those who are backing this, including the department, I imagine, of extreme manipulation of data, truth and the media—that is normally the government’s job, not just the department’s. But there is a problem with the German technology: there is nothing open and public about how it has been proven. The methodology of doing it involved a couple of international experts being called in, and they have validated it.

Clarke says that they did not perform the tests, they did not design the tests and that they reported on three reports, only one of which was a technical test. They conducted independent observations. What does that mean? They had a look at it. In addition, they reviewed SmartGate data logs and other, derivative documents which are meaningless without additional information and analysis. There has not been any information provided about the study. The only other information he has seen a little of concerns DSTO—the Defence Science and Technology Organisation. They had had a look at it, and they said it works better than others but, if the others are broke, does this one really work? As an operational facial recognition system, it is not bad. Clarke says, ‘It doesn’t work very well and there have been disasters.’ This is borne out by an answer given by one of the experts: He said:

In one test 100 company employees attempted to impersonate someone other than themselves and eight of them were falsely accepted by the system. That is a very low rate of false accepts. At that “very low” level of force acceptances, every 747-load of people can include 25-30 terrorists; and some (undeclared) number of people will miss the plane because they were false rejections, and they’re still waiting in the queue for interrogation—

probably with the member for Macarthur there, doing his job as a Customs officer! These people will have missed out. We need to have a definitive answer to this because, if it is not going to work comprehensively, I do not want 747s potentially carrying 25 to 30 terrorists rolling up because we depended on the technology, which is not yet proven, rather than on Customs officers who have human eyes to make that determination.

Pat Farmer (Macarthur, Liberal Party, Parliamentary Secretary to the Minister for Education, Science and Training) Share this | Link to this | Hansard source

I thank the member for Blaxland for his enlightening comments and for raising a couple of issues, which I am more than happy to answer as I sum up the Customs Legislation Amendment (Augmenting Offshore Powers and Other Measures) Bill 2006. I also thank members, both government and opposition, who have spoken on the bill.

This is an important bill and, as the member for Blaxland, who is sitting opposite, quite rightly pointed out, it is all about protecting our officers in the field and making sure that we have the best possible security system available in Australia to deal with people who tend to bend the rules a little, whether it involves illegal fishing boats or whether it is an immigration matter, such as someone trying to get into the country by false means.

Can I assure the member opposite, in relation to one of the concerns that he raised about weapons and the availability to search for weapons under the provisions in the bill, that this is covered by the legislation. I will enlighten him a little more on that as I read through the bill. The other point that he made—which is a sensible point—was about whether we were looking at machinery to replace Customs officers. Certainly not. The equipment will speed up the process and make it more convenient for people entering Australia. It will also improve reliability because, as an extra piece of equipment, it will be an extra asset available to Customs officers.

The member for Blaxland also quite rightly asked: ‘If there are problems and discrepancies, will they be subject to further investigation by Customs officers?’ This equipment is all about trying to streamline the system, and anybody who has ever come into this country after being abroad will know and understand how vitally important that is. It is important that Australia leads the world as far as Customs is concerned.

The bill proposes amendments to the Customs Act 1901 in relation to existing powers of search and seizure available to officers in the offshore maritime environment and to limiting circumstances relating to aircraft. The amendment powers will apply to ships being boarded by Customs, such as those suspected of illegal or foreign fishing. Recent escalations in the level of resistance by crews toward Customs officers boarding ships suspected of contraventions of the act or other prescribed acts have threatened the safety of officers and created a situation where evidence of possible offences may be destroyed. As the member opposite mentioned, evidence could easily be thrown overboard or ‘lost’ prior to boarding or during boarding by Customs. The proposed amendments deal with these circumstances, and that is why the amendments are desired.

The Customs Legislation Amendment (Augmenting Offshore Powers and Other Measures) Bill 2006 contains amendments to the Customs Act 1901 and the Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001 that relate to border enforcement powers under the Customs Act, customs brokers’ employment arrangements, duty recovery and payments of duty under protest, and false and misleading statements made under the new SmartGate system.

The bill empowers Customs officers and other Commonwealth officers immediately upon boarding a ship or aircraft for various border enforcement purposes under the Customs Act, the Criminal Code and any relevantly prescribed act to conduct personal searches for, take possession of and retain weapons or items that might be used to assist a person to escape detention and to dispose of evidence of the commission of a relevant offence. The new powers ensure the personal safety of officers in exercising their enforcement functions. They also help to prevent the escape of any person detained as a suspect and help to prevent the disposal of evidence. This bill will also make amendments to other provisions relating to search powers under the Customs Act, which the member opposite referred to earlier.

To recognise the changing employment practices in the customs brokers’ community, the bill will remove the current restrictions in the Customs Act prohibiting individual customs brokers from being employed by more than one customs brokerage at the same time. The bill amends the Customs Act to limit the time for recovery of customs duty to four years in all cases except those of fraud or evasion, where no limit will apply. The proposed new regime is a response to the decision of the High Court in the Malika Holdings Pty Ltd v Stretton (2001) 204 CLRL 290 and is consistent with the existing regime for the recovery of other indirect taxes.

The bill will also clarify the process for making payment of customs duty under protest. Further, the bill will amend the Customs Act to enable the CEO, in certain circumstances, to offset an amount of unpaid duty on goods against any amount of refund or rebate that the owner would be eligible for if the owner were to pay the duty.

Customs will be introducing the electronic SmartGate passenger processing system in early 2007. This will allow eligible airline passengers and crew to use the automated clearance process through the immigration point at the border. This bill will amend the Customs Act to ensure that any false or misleading information provided under the SmartGate system will be covered by the existing offences provision relating to making false or misleading statements to an officer of Customs.

I once again thank all members for speaking on the bill. It is a sensible bill and will improve services and security for all the travelling Australian public. I commend the bill to the House.

Question agreed to.

Bill read a second time.