Andrew Murray (WA, Australian Democrats) Share this | Hansard source

The Customs Legislation Amendment (Border Compliance and Other Measures) Bill 2006 amends the Customs Act 1901 to allow the chief executive officer or a regional director for a state or territory to dispose of goods seized by Customs if the CEO or regional director is satisfied that the retention of the goods would constitute a danger to public health or safety. The bill allows a Customs officer to restrict access by holders of a security identification card to section 234AA places, ships, aircraft and wharves. The bill makes minor technical amendments to provisions implementing the Australia-United States Free Trade Agreement and it allows authorised officers of Customs to request from issuing authorities updated required identity information in relation to security identification cards issued by the issuing authorities.

The bill requires issuing authorities to notify Customs when a SIC issued by the issuing authorities has expired or has been revoked. It implements an Accredited Client Program that would enable importers meeting the accreditation requirements to utilise a streamlined entry, reporting and duty payment procedure for the importation of goods. The bill confers protection from criminal responsibility for the possession, conveyance and facilitation of the conveyance of prohibited imports, prohibited exports and smuggled goods, including narcotics, on officers of Customs who engage in those acts in the course of duty and on persons who engage in those acts on instructions from officers of Customs acting in the course of duty, and it fixes a misdescribed amendment to the Customs Act.

It is unclear to me why the two customs bills which are on the legislative list for this week are not being dealt with at least consecutively and perhaps even cognately. As has been pointed out by several of those who made submissions to the Senate Legal and Constitutional Legislation Committee, there have been ongoing piecemeal amendments to the Customs Act, and this does little for clarity or certainty for those involved in trade. I note that this bill is now quite old and has taken a long time to come before us.

I noted the comments of the opposition shadow spokesman on the bill and the criticisms he made with respect to the government and the minister’s handling of these issues. I will be interested to hear what the minister’s response is to those criticisms in his speech in the second reading debate. For my part, I will restrict my comments on this bill to the sections which impact on the civil liberties of people entering Australia as returning citizens, tourists or migrants.

Schedule 2 raises, in its unauthorised entry coverage, civil liberties issues which are of some concern. A Customs officer, on delegation from the Collector of Customs, can exclude people from prescribed areas without providing reasons, and there is no limit to the time a person can be excluded. So if an airline has concerns about a baggage handler, although he may have a valid security identification card, which can be issued by Customs or another agency, there is the opportunity provided by this amendment to exclude him from his place of work by order of Customs, and there is no legislative provision requiring Customs to supply him with reasons. If a baggage handler is so excluded even though they have a valid SIC then it is obviously impossible for them to do their job, and if they are not given reasons for the exclusion it is impossible for them to appeal the decision. Whilst I recognise that there are circumstances when baggage handlers should be excluded, and that is quite proper in the interests of security, the inability to appeal the decision or have it reviewed should be regarded as a denial of natural justice. We should be aware, of course, that these actions can affect somebody’s ability to get a job in another place.

Another example would be where a person was found to be carrying unauthorised goods and asked for access to a lawyer or translator to assist them with the challenge with respect to those goods—perhaps a lawyer to determine what their rights and defences were or a translator to understand the charge against them. You can see that, if the amendment passes, Customs could override the valid SIC and exclude any lawyer or translator from the area. Also a lawyer who does not have a SIC could be excluded from areas by order of Customs. Those sorts of issues are not covered in the legislation or the EM and it should not be a discretionary matter for Customs officials to make decisions on these matters which are not reviewable. So I agree with the discretion; I disagree with the lack of review.

As the Bills Digest points out, under current law a variety of agencies can issue SICs to employees and visitors. The proposed amendment will tighten the exemption in section 234A(1A) and will give the Customs authorities a stronger influence over who can access certain security sensitive areas. The second layer of control proposed in this amendment is that the discretion given to the Customs officer to issue a written notice directing a person not to be in a particular area is unfettered. Unfettered discretions are discretions to be wary of.

This bill does not restrict the grounds upon which such a notice may be issued nor does it specify limits against whom such a direction may be issued. Therefore, according to the assessment in the Bills Digest, it is at least feasible that a person who ought to have access to places in which persons are held for the purpose of questioning or examination could be subject to such notices—that is, they could be excluded from the area by a Customs official, upon whom there is no requirement to provide reasons for the exclusion.

In reply to questions taken on notice, Customs argued that section 234AA areas are designated sterile areas, only to be accessed by certain people. Where the assistance of union officials or doctors was needed, such persons would be granted temporary escorted access to the area. Such an assurance may apply where you have a person who uses their discretion wisely but could be hollow in certain circumstances because it gives each and every Customs officer discretion as to whether or not they will allow someone into a designated area. It does not require them, obviously, to let the person into the area, and there is no obligation in the legislation requiring them to provide access or to provide reasons for refusing access. Either they are required by law to provide access or they are not. Discretion can be abused in such circumstances. I think that, if Customs are going to take this route, they need to monitor the application of these rules carefully over a period of time to ascertain whether in fact they work effectively and whether people are being treated unfairly in the circumstances.

I note that the Senate Legal and Constitutional Legislation Committee recommended that proposed section 234A(1B) of the bill be amended to limit the exercise of the power of the Collector of Customs to issue a written notice directing the holder of a SIC not to enter or be in or on a section 234AA place or other relevant place to circumstances where an immediate criminal or security threat or emergency is present in the section 234AA or other relevant place. In other words, they are trying to raise the discretion bar. The committee has said that, where a Customs officer perceives or fears there to be an immediate criminal or security threat or emergency, it is appropriate to exercise that discretion. Otherwise discretion should be constrained. I thought that a sound recommendation—it is one which I have included in the amendments to this legislation which I will move at the in committee stage. I hope that the committee will consider these amendments on those grounds.

There is also an argument that proposed section 234(1B) does not require the decision maker to provide reasons for their decision, nor is there a guaranteed right to be heard granted to the person who is subject to the notice. This would appear on the face of it to be an abuse of natural justice, and again I cannot agree to legislation which sets up a situation which excludes the concept of natural justice.

I have noted that Customs argued that these are decisions made ‘in real time’—that is, it is not appropriate that people be provided with reasons on the spot. Given that these provisions enable search and seizure of goods, there does need to be some reasonable natural justice mechanism and occasion for judicial review built into the legislation. Anyone who exercises real-time decisions has to give reasons. A police officer automatically gives reasons when a warrant is presented or when they have to act with regard to somebody.

Schedule 5 relates to the Accredited Client Program. It is designed, according to the Bills Digest, to simplify reporting requirements for Australian importers and exporters to improve the supply chain and to allocate more resources away from known reliable traders or low-risk cargo towards ‘areas of high risk’. The ACP has been identified as essential to secure international trade against the threat of terrorism. This is obviously a laudable and supportable aim and one which I fully support, as does my party. However, we must be very careful and wary of any unintended effects on civil liberties. This particular schedule does not impact on civil liberties; however, there are different sections of the industry, advisers to the industry and government departments that have disagreed about the consultation period and the application of the amendments. Those matters were addressed by the shadow minister.

The Business Partner Group have obviously been involved in a long consultation with government and stated as much in their submission to the inquiry. However, the Customs Brokers and Forwarders Council of Australia indicate that they have been left out in the cold somewhat. They were, therefore, surprised when these amendments were brought in. The area of concern for the Customs Brokers and Forwarders Council of Australia and the Law Council of Australia was deferral payments. The CBFCA submitted to the committee:

The program as foreshadowed ... is unrealistic in efficiency or effectiveness for importers in general, and service providers in particular. From the CBFCA’s perspective, consultation on key issues of the Bill with the CBFCA has been non-existent and ... the programme ... gives little, if any, benefit to the majority of importers and little cognisance of benefits to service providers.

The issues for importers which flow from a regime based on estimates and subsequent account reconciliation will include: the proposed regime does not appear to be based on a true deferral regime; the advance payment of the estimate will affect importers’ cash flow; and importers must put into place mechanisms which allow them to provide accurate estimates. Estimates are likely to be statements to Customs for the purposes of sections 243U and 243T of the Customs Act, which are strict liability offences for making false or misleading statements to Customs, which may or may not lead to a loss of duty.

The proposed regime allows importers and their delegates to join the ACP, and there is a question as to whether this is a sufficient implementation of Australia’s obligations under the World Customs Organisation framework. The Law Council of Australia submission to the committee pointed out:

... the Framework is intended [to] afford benefits to all interested parties in the supply chain (known as Authorised Economic Operators). This would extend to transport companies, customs brokers and freight forwarders. However—

under this proposed amendment—

the ACP is only limited to importers. The benefits of the ACP should be extended to all other interested parties in the supply chain who would otherwise be entitled to preferential or advantageous treatment under the frameworks.

The Law Council also noted that the ACP in its current form appears to have no security element, as is required under the WCO framework, so what the government was trying to achieve with this amendment—that is, to make international trade more secure from the threat of terrorism—does not seem to be actually achieved.

We have concerns on two fronts: firstly, the unbalanced consultation with interested parties; and, secondly, the fact that the amendment does not appear to achieve the objectives required by the WCO framework. The Democrats note that the legal and constitutional committee recommended that an independent cost-benefit analysis of the ACP be undertaken which takes into account the removal of the duty deferral mechanism from the proposed ACP. I suggest that, if that recommendation were taken up, it would be a good opportunity to consult further with interested parties and to ensure that the WCO framework objectives are achieved. I look forward to the committee stage.