Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I rise to speak on the Customs Legislation Amendment (Border Compliance and Other Measures) Bill 2006. This is an omnibus bill which contains a variety of measures. I will briefly take the opportunity to outline the contents of the bill and, in particular, Labor’s analysis of the bill. Schedule 1 of the bill looks to address a gap in the current law. Presently, Customs may dispose of certain perishable items seized under appropriate circumstances; however, it does not have a similar power for explosive materials and certain hazardous chemicals and biological agents, even in cases where it lacks the capacity for safe storage. The bill remedies that inadequacy to allow the disposal, including destruction where necessary, of such goods where their retention would constitute a danger to public health or safety. This is a sensible measure that reduces the risk that Customs officers and members of the travelling public could unnecessarily be exposed to. As such, Labor supports it.

I will look at schedules 2 and 4 of the bill together, as both cover the government’s security identification regimes. Schedule 2 seeks to close gaps in our existing security regime regarding access to designated areas. Examples of these include areas used for the examination of baggage or the questioning of aircraft passengers. The ability of Customs to control access to designated areas is at present overly restricted. In particular, persons who hold either an aviation security identification card or a visitor identification card can have, in effect, unfettered access to these areas even where it is not required for the performance of their duties.

It is really incredible to think that the government is still fiddling around with this basic level of security more than five years after the September 11 attacks. The changes proposed in schedule 2 will enable Customs to issue a written notice to the holder of a security identification card directing restricted access to such areas. I might say, though, while Labor support this amendment, we are interested in ensuring that the actual implementation of this change works as intended.

Schedule 4 also relates to identification cards and aims to make it easier for Customs to keep its database up to date. Following commencement, the authorities that issue cards would be obliged to notify Customs inside seven days when a card expires or has been revoked. Customs will also be able to request relevant information from the issuing authority.

There are important steps in tightening security at airports and related facilities, so on that basis Labor supports them as stopgap measures. However, more broadly we do wonder if the system could not be more pre-emptive in some cases. Where issuing authorities know that a particular card is about to expire on a certain date, they should become a little bit more proactively engaged and not have to wait for the card to expire first before notifying Customs. It seems to me that the card management regime would allow you to know when a card is about to expire so that you can take intended action to ensure that it is renewed or cancelled as the case may be.

The third schedule makes minor and technical amendments to ensure that the act is compliant with the Australia-United States Free Trade Agreement. For example, the schedule includes a change to the definition of persons of the United States so that it is no longer confined to natural persons and a change so that the distinction between US-originating and non-US-originating goods accurately reflects the agreement. Labor supports these amendments as Australia is simply fulfilling its obligations under international agreements and treaties.

Schedule 5—and I might spend a little bit more time on this—activates the long-awaited Accredited Client Program provisions first introduced as part of the international trade modernisation amendment act in 2001. The program is supposed to provide accredited importers with a simplified system for processing consignments. The anticipated benefits for participants in the system, for Customs and for the country as a whole have changed significantly from the original proposals, though. Although they were delayed by the inability of the Minister for Justice and Customs to deliver the Customs cargo management re-engineering project on time, Labor can say it is pleased to now see the government finally dragging itself to some action. But we do have a number of criticisms of the government’s approach in this area, which I will go to shortly.

Schedule 6, in finalising the schedules themselves, will provide Customs officers with necessary protections from a number of drug related offences. The changes will mean that officers who possess or facilitate the trade of narcotic goods under approved circumstances—I should underline ‘under approved circumstances’—will be protected from criminal responsibility. This will ensure that Customs officers and their delegates can assist the Australian Federal Police with investigations and operations relating to the importation of illegal drugs. Labor supports those amendments.

Turning to the Senate Standing Committee on Legal and Constitutional Affairs inquiry and report, I note the report provides a brief overview of the bill and its six schedules. I will move specifically to the committee’s report on the bill itself. In examining the bill, the committee received submissions and testimony from the Customs Brokers and Forwarders Council of Australia, the Australian Customs Service, the Law Council of Australia, the Australian Federation of International Forwarders and the Australian Federal Police. A recurring theme in relation to Customs legislation is the lack of adequate consultation. This bill is no exception. The committee had the following to say about the process and outcome. It said the committee ‘is not satisfied’ that the consultation period ‘has encompassed all interested parties’. It said ‘in more recent times the process appears to have become fractured’.

The report cited ‘the divergence of opinion between some of the industry bodies’ as evidence of this and suggested that anticipated benefits to participants in the Accredited Client Program—the ACP, for short—were based on those that would flow to a single section of the importing community, namely ‘a select group of larger companies’ that formed part of the business partner group, and, as such, alternative models for the ACP that might deliver benefits to a wider cross-section of the diverse importing community had been overlooked.

This was not all, though. There were a variety of other circumstances of concern that the committee raised over the proposed legislation. I will deal briefly with three of those, as time does not permit me to deal with all of them, and then return to them shortly. Firstly, the committee was concerned that the bill did not contain any provisions relating to disputed payments under the ACP. It said the absence of such provisions could easily lead to unnecessary uncertainty for participating companies in the event that such a dispute arose, simply because there were no provisions available for that eventuality. Secondly, the committee noted the absence of security standards. It particularly noted that no criteria were prescribed in the Customs Act or associated regulations against which assessment and compliance could be measured. Thirdly, with regard to the removal of full monthly duty deferral from the ACP model, the committee said that new costings and valuations should be performed to fully elucidate the advantages of the ACP. I flag this issue as I intend to return to it in a moment.

Finally, after considering the bill, the committee made two main recommendations. One was to amend the changes to the unauthorised entry regime in the schedule to limit the issuance of written notice, directing a security card holder not to enter a restricted Customs area, to circumstances where an immediate criminal or security threat or emergency is present. The second was that an independent cost-benefit analysis of the Accredited Client Program be undertaken ‘which takes into account the removal of the duty deferral mechanism’.

In addition to the committee report, Labor senators expressed strong concern that changes to the Accredited Client Program represented a broken promise to industry and a missed opportunity to link enhanced security to facilitated trade. Labor’s chief concern with the bill, then, is the changes to the Accredited Client Program. That should come as no surprise to the government. This program was originally promised years ago, but the endless delays and botched implementation of the Customs cargo management re-engineering system have meant that the government has until now failed to progress the issue. In what can only be described as a half-hearted attempt to progress the Accredited Client Program, we now have this legislation before us.

This bill, insofar as it relates to the ACP, represents another broken promise by the Howard Liberal government. But, make no mistake, it is the means by which Senator Ellison will attempt to weasel his way out of a promise of a full duty deferral for participants in the program. Full duty deferral was supposed to create incentives to encourage importers to participate, primarily through two mechanisms. Firstly, it was meant to dramatically reduce the paperwork required of participating importers by bringing into place a single payment declaration, thereby reducing transaction costs for both the client and Customs. So there would be one transaction, one cost and one payment declaration. Secondly, it was meant to deliver a cash flow benefit by deferring related liabilities until the end of the month. As in any ordinary business, you could put the transaction in and defer related liabilities to the end of the month. Many businesses operate on that basis. Instead, the ACP that we have before us eliminates the cash flow benefit entirely—it has gone completely—and fails to significantly reduce the transaction costs. This is because it is a compromise model. What we found was that the government came back with a compromise model that requires payment for any given month on the 15th day of that month, which means that we now have a messy hybrid of deferred and advance payments. So liabilities incurred over the first 15 days will in effect be deferred, but those expected to be incurred for the second half of the month will be brought forward. If that sounds confusing, you should see how it is written.

When you look at how it will operate, you see it will mean that participants will have to estimate the likely value of what they expect to import. They will have to actually guess in advance what they are likely to import, then in the following month this estimate is reconciled with the actual, and any discrepancy is then settled. So every month you have a process of estimation, reconciliation and then a settlement one way or the other.

If listeners are confused, it is because of the gloss the government has put on the system. I apologise because the government is certainly not going to apologise for it. But at least I have saved listeners from the minister’s diagram. Standing orders prevent me from holding up their diagram about how it is supposed to work, but I encourage anyone to go to the EM and have a look at it, because it is confusing and it remains a very difficult process for those to operate within.

What is the effect of the withdrawal of these benefits? The effect is that only importers with incentive to participate will be left. Those which stood to profit from the alternative cost-recovery scheme—very large companies—may be the only ones. Yet again, the Howard government has failed small to medium sized businesses, while handing 20 or so big companies a trading advantage on a platter through Customs, the monopoly service provider. You have got to put it in context. Customs is a monopoly service provider in this area. There is no-one else. Businesses have to go through this process if they want to operate an importing/exporting business.

Some in industry are hoping against hope that the minister will come around. I think by now it is clear that it is too late. The government’s regulation taskforce made specific recommendations on broadening the appeal and benefits of the ACP in a report released in April last year. Yet again, however, Senator Ellison has failed to deliver. When the government finally responded to recommendation 5.54, all they did was promise to consider the matter further down the track. So here we are with the government going to implement this mishmash of a system and they have promised that they will have a look at it further down the track.

Small businesses in the trade community deserve better than this. The community deserves better than this, because the community was to enjoy the corresponding cost savings resulting from simplified process arrangements. But they too now will not be lower for Customs, which will have to provide guidance to importers in predicting their expected imports for the second half of each month. The biggest benefits behind the ACP were to flow from having trustworthy importers securing their supply chain, thereby both freeing up Customs resources and enabling it to better target the use of them. Although importers already have an incentive to do this out of their own self-interest, the purpose of the duty deferral and simplified clearance process was to provide a reward to those that complied with the higher security standards set by the government. All this is absent in the current legislation. The legislation brings not one security bonus to the community, despite the emerging international best practice of tying trade facilitation to enhanced security. What we have here is simply second rate.

Should anyone have any doubt that this represents another broken promise to the Australian trade community, they should look no further than the explanatory memorandum to the original provisions which lie dormant in the back of the Customs Act 1901. That EM promised full duty deferral. And now we have this dud. Flawed outcomes such as this are quite often the direct result of a flawed process. After all, the abandonment of duty deferral was desired by neither Customs nor the minister, who was keen to pass the buck and point out to the committee during budget estimates hearings on 25 May 2006 that the policy was in the hands not of his own department but of the Treasury. We saw the minister passing the buck to Treasury. So in a sense the only real difference between the minister and Labor on this issue is that only Labor is willing to do the hard work of fighting for the best outcome. The minister has already raised the white flag.

This minister took the original proposal, which included full duty deferral, to Treasury for costings as part of the 2004 budget process. In the absence of the full response from the government—and let me share with the Senate what we learnt about that—according to the national manager of the compliance branch of the Australian Customs Service, Treasury rejected this proposal based on their concerns about the financial impact of the program on the budget bottom line. The size of this impact was calculated to be $89 million over four years. It was explained that this cost was the result of duty payable in the month of June being deferred until July, which of course is in the subsequent financial year. Because of accounting conventions, this movement of payment from one year to the next showed up as a loss in the given year in which the liabilities were incurred. The approximate value of duty pushed from one budget to the next was roughly $20 million, or an expected $89 million over four years. A sensible and practical policy was junked because of, it seems, an estimated accounting loss—not a real loss, mind you, but a paper accounting loss, it appears. In its place Senator Ellison has accepted a more complex scheme that would have, without doubt, added to the administrative costs of both Customs and, more importantly, business.

Governments must have strict and consistent accounting practices. They cannot pick and choose which accounting conventions to abide by. When it comes to setting policy, it is patently absurd to destroy economic value and create unnecessary red tape because of the idiosyncrasies that are inevitable under any accounting regime. There is another dilemma with all of this and it can only be put to rest with the release of the Treasury’s costings, which I have been trying to get for some time but to no avail. If the information is placed in the public arena then we will all be able to look at what Treasury have had to say about it, but it appears as though there are a number of holes in the details of the costings the government have revealed to date. It is incumbent upon the government—not the opposition but the government—to fill in the puzzle and provide the detail. I am happy to extend the opportunity to government to lay all the facts on the table today but, quite frankly, I do not think they will.

Labor wholeheartedly support schedules 1, 4 and 6. The only real issue we have with this bill is schedule 5, which attempts to dud small business in the Australian trade community. (Time expired)

Andrew Murray (WA, Australian Democrats) Share this | Link to 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.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I want to very briefly indicate my support for the Customs Legislation Amendment (Border Compliance and Other Measures) Bill 2006, and I will save the time of the Senate by not indicating the contents of the bill. They are already set out in the minister’s second reading speech, and both previous speakers have broadly indicated the purpose of this bill. I congratulate the Minister for Justice and Customs, who has been very proactive in his administration of customs legislation and particularly border compliance and other measures for this country. Senator Ellison has, over a number of years, demonstrated his very keen understanding of all of the issues and of what needs to be done. I notice Senator Murray indicated that this seemed to be a piecemeal approach to customs legislation and that there were various bills around. I simply point out that this minister has been very proactive and has dealt with issues as they have arrived. Obviously in the fluid situation that our customs arrangements are in at the moment, particularly with heightened terrorism and increasing drug trafficking, improvements are always needed, and it is a credit to the minister and to the government that as these needs are identified they are immediately addressed by legislation as required. My congratulations to the minister on bringing this bill forward and for the other work he does in the customs area, particularly in relation to border compliance.

The provisions of the bill relating to giving protection from criminal responsibility to Customs officers handling narcotic goods in the course of duty is, I think, a very important one. I chair a committee that has just been very closely looking at amphetamines and other synthetic drugs, and the evidence received by that committee presents a very frightening indictment of drug trafficking throughout the world, and of course Australia is no exception to the scourge of drug trafficking. We need to ensure that our Customs officers, who do an absolutely mighty job, are given every resource possible to help them in the fight against the importation of narcotics.

Regrettably, we in Australia, as in many other cases around the world, are losing the fight. As much as we do not like to concede it, regrettably, as I say, each week there are more and more young people and not so young people becoming involved particularly in synthetic drugs. It is something that requires the absolute commitment of the authorities, and I know our Customs officers, our Federal Police and our Crime Commission do a fabulous job in helping wherever they can to address the importation and distribution of drugs in Australia. In this, of course, they are considerably helped by the state police forces, which are really at the front line of this, but it does require a massive effort. It gets massive resources from the federal government, and this provision in this bill, small though it is, will also assist in the ongoing fight against drug trafficking and drug importation into Australia.

In this sort of legislation, as Senator Murray mentioned, there is always some challenge between civil rights and the need for the enforcement authorities to have the powers to do what needs to be done. It is always going to be a difficult call; it is always a marginal call. I think in this instance the minister has the balance correct and, while some may say that there is interference with civil liberties, by and large the bill has the right balance between giving the powers that the officers need and the civil liberties that we all enjoy in this country.

In talking about a bill that deals with border compliance, I again indicate what a fantastic job our Customs officers do. Over the parliamentary break I have been overseas and, seeing the way our Customs officers operate and making comparison with Customs officers elsewhere in the world, we cannot help but be proud of and impressed by the work that the troops on the ground do. There are plenty of them, which is always pleasing to see to travellers entering Australia. They are very courteous and very efficient in the work they do. I suspect that those of us who travel overseas always appreciate Australian Customs officers, but perhaps we do not often enough indicate to them the admiration we have for the work they do. I wanted to take the opportunity this bill presented to put on record my appreciation of the work that those front-line troops do in protecting Australia’s borders.

On the same general area, I want to again congratulate the minister and his officers on the work they are doing in the area of border compliance, particularly the fight against illegal fishing in the north and north-west of our country. Every now and again you will hear the ALP—when they are in need of a cheap shot—making some comment with regard to this issue. Cheap shots from the ALP should always of course be judged against their record in office. I well recall that when the ALP were in government they paid very scant regard to the question of illegal fishing in the north. Illegal fishing was rife in the north back in the days of the Labor government, but there was little attention paid to it because the Labor government at that time did very little about it. In fact, it was a bit of a joke at the time. Illegal immigrants used to land in Darwin and get taxis into town to get their goods. Of course all that has stopped under this government, and the minister in particular has done a mighty job in the fight against illegal fishing in the north.

The Customs marine officers who man the Customs patrol boats are very efficient. They do a mighty job in difficult circumstances, and they deserve the full support of the parliament and the people of Australia. It is always very easy to criticise, as the ALP regularly do and as irresponsible newspapers like the West Australian and irresponsible reporters like Regina Titelius do—people and papers who really have little interest in Australia’s wellbeing. The reality is that these Customs marine officers, and the government generally, are doing a fantastic job in relation to the protection of our borders from all sorts of incursions, particularly the instance I mentioned of illegal fishing. It is an issue which will eventually be won. Enormous amounts of resources are being put into it.

Another great initiative is the one I euphemistically call the prison ship, which has just started work. It is an initiative that has been a long time in coming. I remember when Mr Wilson Tuckey was the minister and he first raised that issue. At that time he was laughed out of court; everyone told him he was crazy. But, at the time, Mr Tuckey thought it was a good idea, and of course events have shown that that idea was a good one. I am pleased to see that, after a long period of introduction, the measure is now in place. Good luck to those who will serve on it. I am sure and confident that that will make another positive difference in our fight against illegal fishing. I will not hold the Senate any longer. I think the bill is sensible. It does bring in some amendments that are needed, and they are being brought in in a timely fashion. I commend the bill to the Senate.

Annette Hurley (SA, Australian Labor Party) Share this | Link to this | Hansard source

It  is interesting that the government seems to be concentrating quite heavily on criticising the Labor Party and the media for our perceived shortcomings. It would perhaps be rather better engaged in getting its regulation and legislation right, and I think the Customs Legislation Amendment (Border Compliance and Other Measures) Bill 2006 that is before the Senate illustrates that particularly well. I refer to the report of the Senate Legal and Constitutional Legislation Committee on the provisions of this bill, in particular the Accredited Client Program. The export business is obviously vital to Australia. Trade in our part of the world and for our small nation is vitally important, and it is important to get it right. It is clear from the report of the committee that there is some confusion and some debate about whether there was sufficient consultation with the businesses involved and whether the bill adequately allows for proper mechanisms to support the Accredited Client Program. Given that we want to encourage and facilitate trade while ensuring that there is proper monitoring of what comes into our country, it is very clear that we need much better consideration of the way this bill implements its supposed priorities and obligations. However, I think the shadow minister has canvassed this issue fairly comprehensively.

I move:

At the end of the motion, add “but the Senate:

(a)

notes the:

(i)

delay in introducing the Accredited Client Program,

(ii)

waste and cost blow-outs in the associated Cargo Management Re-engineering project,

(iii)

broken promise to industry regarding the abandonment of duty-deferral, and

(iv)

absence of any security enhancing measures in the Accredited Client Program and

(b)

calls on the Government to conduct and publish the results of a thorough cost-benefit analysis of the Accredited Client Program, examining both the original duty deferral payment scheme and the revised payment scheme”.

Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

The Customs Legislation Amendment (Border Compliance and Other Measures) Bill 2006 has a number of aspects to it and previous speakers have outlined those. It has a number of schedules dealing with various areas such as the Australia-US Free Trade Agreement, the Accredited Client Program, the tightening up of security in relation to Customs controlled areas and a number of other aspects which need attention. From time to time, Customs legislation is presented in this form and we find that different areas of Customs responsibility are being dealt with. That has happened over time and it will continue to happen.

We have two bills before the Senate—we have this one and one to be debated later in the week. To answer those queries as to the timing of the bills: a decision was made that this bill needed to go before the other customs bill because of the items covered in this bill. The citizenship bill which is to follow was regarded as an important one, and so a decision was made on order of priority, if you like. But I will take on board Senator Murray’s comments in relation to trying to deal with these bills as much as possible in a cognate fashion, and I have discussed this with Customs.

But I have to make this very clear to those listening: security is a work in progress. As Senator Ian Macdonald quite rightly pointed out, we would not be doing our job if we did not address issues as they arose from time to time. And in an area of operational activity like Customs—and you just have to see the Border Security series to realise the wide area of responsibilities that Customs does have—you are going to come up with matters that need addressing in legislative amendments and, as a responsible government, we have to deal with them. As these items arise, we try to package them in a bill and deal with them together.

I appreciate the Senate’s wish to deal with these bills as cognately as possible, and that is something that we are attempting to address. But I totally reject any notion that we are in some way wrong in dealing with these as we go along and that there is some sort of oversight. It is very much the scrutiny that we carry out that has resulted in this legislative amendment. And some of that is demonstrated very clearly in the Customs controlled areas. What we are doing there is giving Customs powers which, we have recognised, need to be given to Customs in this security environment. Senator Macdonald, quite rightly, mentioned the great work that the men and women of the Australian Customs Service are doing. They cannot carry out effective border control for this country unless we, as a responsible parliament, give them the authority to do just that. And so, with this one aspect of the bill which deals with the Customs controlled area—that is, the section 234AA place, as we call it, for want of a better description—we give Customs the ability to deal with situations where people who may be entitled to be in an area because of an aviation security identification card or a visitor identification card are overstepping that boundary.

I will, for the Senate’s benefit, run through that amendment, because it is an important one. This amendment will give Customs greater control over those people who access Customs controlled areas. It is as simple as that. When you go to a port or an airport you will often see a sign on a fence which says, ‘This is a Customs controlled area,’ and various security arrangements apply, and if you breach that you are subject to prosecution—and quite rightly so. This amendment will allow a Customs officer to restrict the access of aviation security identification card holders and visitor identification card holders to Customs controlled places, ships, aircraft and wharves. The Customs Act provides for Customs to define certain places as Customs controlled areas. The act sets out the purposes under which a person may enter these areas, including for the purposes of their employment.

A security identification card does not by itself designate the holder of the card as being entitled to be in the Customs controlled area. I think that is an important point to remember. It is not necessarily a carte blanche entree into that area. An ASIC card merely indicates to Customs that the person holding the card has undergone a security clearance. Questioning of ASIC holders to determine the reason for their presence in the area may be necessary to ensure sterility of the environment. It may well be that that card holder is there for other purposes, quite different from their employment. It could be out-of-hours access which is not appropriate. So this amendment is to give Customs that authority to deal with the controlled areas that I have mentioned.

The written direction is a real-time instrument to ensure the sterility of a Customs controlled area. It can only be issued for reasons stipulated in the Customs legislation, not for purposes of other government agencies present at the airport. The direction will be issued when the Customs officer cannot establish the bona fides of the party who is the subject of the direction, and when that party cannot show legitimate cause—that is, a reason linked to their employment—for their presence in the area. And that, after all, is really common sense.

The direction will be issued by the Collector of Customs as defined in the act—that is, the officer on duty at the time of the incident. In circumstances where a passenger or crew member who has been detained by Customs is in need of assistance that is not otherwise available from Customs staff, such as that of a doctor or translator, Customs requests the provision of such assistance and provides escorted access for that person to the controlled area so that they can carry out their essential task.

The Senate Legal and Constitutional Legislation Committee in its first amendment dealt with this, and it proposed that the amendment be limited to circumstances where an immediate criminal or security threat or emergency is present in a Customs controlled place. This subsection is on the power of a Collector of Customs, as I say, to issue a written notice directing the holder of a security identification card not to enter into or be on a Customs controlled place. Customs responsibilities—at airports, for example—extend well beyond criminality and aviation security. By limiting the power to immediate circumstances of criminal or aviation security threats or emergencies, Customs’ ability to ensure the sterility of the Customs controlled area for purposes of processing, examining and questioning passengers would be directly affected. That is, we need a wider power for Customs. You cannot limit it to something which may be extreme or critical at the time. It may be for the good running of the airport and in an indirect way may well affect security. But to limit it to only something which is of a critical nature or of a present and clear danger is too narrow. Customs needs that ability.

For those reasons, the government is not persuaded by that first recommendation of the Senate Legal and Constitutional Legislation Committee. I want to thank that committee for the work it has done. It does a very good job in the Senate looking at government legislation, and not infrequently we adopt the recommendations of that committee, but in this case we cannot for those operational reasons that I have outlined.

The other aspect which was mentioned by the Senate Legal and Constitutional Legislation Committee is the Accredited Client Program. The recommendation of the committee was that an independent cost-benefit analysis of the Accredited Client Program be undertaken to take into account the removal of the duty deferral mechanism from the proposed program. Other senators have outlined the operation of that duty deferral aspect. The government has looked at this very carefully—I have spoken to stakeholders in industry about this over a period of time—and after careful consideration the government has announced its decision that duty deferral will not comprise part of the Accredited Client Program. The fact that the program will now be less attractive to industry is understood. It is considered a poor use of public money to fund a cost-benefit analysis of the revised Accredited Client Program when the outcome is already known and, on that basis, we reject the recommendation by the Senate legal and constitutional committee.

I will give some background to the Accredited Client Program because I think that in itself does offer benefits to industry. It is an initiative offering streamlined cargo reporting requirements for highly compliant importers and exporters, thereby recognising those that do the right thing and giving them a more streamlined approach in relation to importing and exporting goods. This bill amends the Customs Act to:

... implement 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 ...

Provisions relating to the entry and reporting of imported goods under the Accredited Client Program are already in the Customs Act. This bill inserts the provisions relating to the payment of a duty estimate and import duty on imported goods entered and reported under the program. The amendments also align the payment of processing charges associated with the Accredited Client Program with the payment of import duty. There are a number of benefits to this and it remains an attractive program for industry, notwithstanding that duty deferral has not been included in that. It was a decision government took after careful consideration.

This bill, as I say, has a number of aspects to it. I have singled out those two in particular because they were the subject of recommendations by the Senate Legal and Constitutional Legislation Committee. There are amendments to be addressed in the committee stage, and we will deal with those in turn, but I re-emphasise that security is a work in progress and anyone who says that the government should get it right in one piece of legislation, or that we should rule a line in the sand at a point in time and say, ‘We will do no more; that is enough,’ seriously misunderstands how you deal with risks and the security environment that we find ourselves in.

I dare say, and I say with confidence, that we will have further customs bills and further bills amending all sorts of things to do with security—and so we should. Human affairs never stand still, time does not stand still and, in the area of security, I can assure everyone here that the threats we face are ever present and changing. It is for that very reason that from time to time legislative amendments will be necessary, and the fact that they are is a fact of life. The fact that we respond to them demonstrates our responsibility as a government. I commend this bill to the Senate.

Question put:

That the amendment (Senator Hurley’s) be agreed to.