House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Immigration and Border Protection, the Honourable Scott Morrison MP)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

CUSTOMS AMENDMENT BILL 2014

The Customs Amendment Bill 2014 (the Bill) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

The Bill will make a number of technical amendments to the Customs Act 1901 (the Act) to:

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Allow class based authorisations to include future offices or positions that come into existence after the authorisation is given;

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Extend Customs controls to those places at which ships and aircraft arrive in Australia in accordance with section 58 of the Act;

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Provide greater flexibility in relation to the reporting of the arrival of ships and aircraft in Australia and reporting of stores and prohibited goods on such ships and aircraft;

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Improve the application processes for several permissions under the Act. These amendments will also support initiatives to enable online applications for these permissions;

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Extend Customs powers of examination to the baggage of domestic passengers on international flights and voyages, and to domestic cargo that is carried on an international flight or voyage; and

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Enhance the interaction of the infringement notice scheme with the claims process under the Act in relation to prohibited imports.

Human rights implications

The Bill engages the right to the presumption of innocence and the right to protection against arbitrary and unlawful interference with privacy. Presumption of Innocence

Article 14.2 of the International Covenant on Civil and Political Rights (ICCPR) provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. It imposes on the prosecution the burden of proving a criminal charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.

Under international law the term 'criminal offence' includes not only offences or penalties that are classified as a criminal offence under national law, but also other forms of penalties that may be designated as civil penalties under domestic law. The approach under international and comparative human rights law is to consider the substance and effect of the proceedings, rather than the 'label' itself.

The Bill engages the right to the presumption of innocence as it introduces a new strict liability offence in subsection 127(9) of the Act.

Importantly, a strict liability offence will not violate the presumption of innocence if it pursues a legitimate aim and is reasonable, necessary and proportionate to that aim.

Part VII of the Act contains provisions relating to ships' and aircraft's stores. These stores are defined as goods that are for the use of the passengers and crew of a ship or aircraft that is on an international voyage or flight.

Pursuant to subsection 127(1) of the Act it is an offence of strict liability, punishable by 60 penalty units, to unship, unload or use ships' stores or aircraft stores before the departure of the ship or aircraft from its last port of departure in Australia (otherwise than for the use of passengers or crew, or for the service, of the ship or aircraft) unless a Collector has consented to the unshipping, unloading or use.

The Bill amends section 127 of the Act to change the reference from 'consent' to 'approval' and specifies how and in what form an application for approval should be made. It also allows a Collector to impose conditions on an approval if the Collector considers it necessary for the protection of the revenue of Customs or for the purpose of ensuring compliance with the Customs Acts.

The new offence in subsection 127(9) aims to stop people breaching conditions of an approval which are imposed for the protection of the revenue of Customs or for the purpose of ensuring compliance with Customs Acts. Not having to prove fault elements in these circumstances aims to provide a deterrent for those seeking to engage in conduct that undermines the integrity of the Australian border and the collection of revenue. Consistent with the offence in subsection 127(1) and other strict liability offences in Part VII of the Act, this offence will attract a penalty of 60 penalty units.

The strict liability nature of this offence is reasonable and proportionate to achieving its aim as it is regulatory in nature. The standard of proof for all Customs prosecutions under the Customs Act is a criminal standard, that is, beyond reasonable doubt. Therefore, it remains incumbent on the prosecution to prove the physical elements of an offence (including strict liability offences) beyond a reasonable doubt. In addition, defences under the Criminal Code Act 1995, such as honest and reasonable mistake of fact, are available to persons alleged to have committed a strict liability offence.

Conclusion

For these reasons, this measure is compatible with the presumption of innocence set out in Article 14.2 of the ICCPR as it maintains all existing protections contained in Australian law and is reasonable, necessary and proportionate in achieving its intended aim.

The right to protection against arbitrary and unlawful interference with privacy

Article 17 of the ICCPR accords everyone the right to protection against arbitrary or unlawful interference with their privacy, family, home or correspondence. Accordingly, interferences with the right to privacy will be permitted provided they are not arbitrary and are authorised by law. In order for an interference with the right to privacy not to be 'arbitrary', the interference must be for a reason consistent with the ICCPR and be reasonable in the particular circumstances. Reasonableness in this context incorporates notions of proportionality, appropriateness and necessity. In essence, this will require that:

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limitations serve a legitimate objective;

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limitations adopt a means that is rationally connected to that objective; and

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the means adopted are not more restrictive than they need to be to achieve that objective.

The examination of domestic goods (domestic cargo or personal effects/baggage of domestic travellers), including the potential examination of documents, engages the right to privacy contained in Article 17 of the ICCPR.

The amendment only gives examination powers for personal effects/baggage of domestic travellers and domestic cargo on a domestic leg of an international voyage or flight. This is consistent with the potential border risks of intermingling of domestic cargo and imported or exported goods, and international and domestic travellers during embarkation or disembarkation processing, on the aircraft or ship and in-transit lounges. No other domestic goods are affected.

In the exercise of the power to examine goods, an officer may do, or arrange for another officer or other person having the necessary experience to do, whatever is reasonably necessary to permit the examination of the goods. Examples of what may be done to permit the examination of goods include (but are not limited to) the following:

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opening any package in which goods are or may be contained;

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using a device, such as an X-ray machine or ion scanning equipment, on the goods;

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testing or analysing the goods;

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measuring or counting the goods;

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if the goods are a document - reading the document either directly or with the use of an electronic device;

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using dogs to assist in examining the goods.

The examination of domestic goods will be conducted in line with existing procedures for the general powers of examination of goods under section 186 of the Act. The powers will only be used where assessed as necessary to mitigate border risks.

In relation to the potential examination of documents, the collection of personal information is protected under Australian law and this measure does not seek to affect or disapply any of the existing protections.

Conclusion

This measure is compatible with human rights as, although it engages the right to privacy, the instrument maintains all existing protections contained in Australian law and does not seek to limit the right to privacy in any way.