Explanatory Memorandum
(Circulated by authority of the Minister for Immigration and Border Protection, the Honourable Peter Dutton MP)Schedule 8 - Contingent amendments
Australian Border Force Act 2015
749. The amendments in items 1 to 3 in this Schedule are dependent upon the enactment of the Biosecurity Act. At the time of writing, the Bill for this Act was still before the Parliament and had not been passed. Therefore, in accordance with the commencement provision for the Schedule, the amendments in items 1 to 3 will commence on the later of:
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- immediately after the commencement of the ABF Act; and
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- immediately after the commencement of section 3 of the Biosecurity Act.
750. However, the amendments do will not commence if the Biosecurity Act does not commence.
Item 1 - Paragraph 46(g)
751. Section 46 of the ABF Act sets out permitted purposes for which protected information containing personal information may be disclosed under sections 44 and 45 of the Act.
752. Under paragraph 46(g) of the ABF Act, protected information containing personal information may be disclosed under section 44 and 45 for a purpose relating to matters covered by the Customs Act, the Migration Act, the Maritime Powers Act, the Australian Citizenship Act 2003, the Immigration (Guardianship of Children) Act 1946 or the Education Services for Overseas Students Act 2000 (ESOS Act).
753. This item will amend this paragraph of the ABF Act to omit the reference to "or the Education Services for Overseas Students Act 2000" and substitute with reference to "the Education Services for Overseas Students Act 2000 or the Biosecurity Act 2015".
754. The effect of this amendment is to add the Biosecurity Act as permissible purpose for which protected information containing personal information may be disclosed under section 44 and 45. However this information may only be disclosed under the abovementioned paragraphs if it is for a purpose relating to a matter covered by the Biosecurity Act.
Biosecurity Act 2015
Item 2 - Section 9 (definition of International Mail Centre )
755. The Biosecurity Act provides the primary legislative means and a modern regulatory framework for the Australian Government to manage the risk of pests and diseases entering Australian territory and causing harm to animal, plant and human health, the environment and the economy.
756. The Biosecurity Act provides for circumstances for when a good which is subject to biosecurity control is released from such control. One such circumstance is where the good, being a prescribed good, leaves an international mail centre.
757. Under section 9 of the Biosecurity Act an international mail centre is currently defined to mean a "place approved by the Chief Executive Officer of Customs under paragraph (f) of the definition of Customs place in subsection 183UA(1) of the Customs Act 1901".
758. This item will amend the definition of "international mail centre" to omit the reference to "Chief Executive Officer of Customs" and the reference to "Customs place" and substitute it so that an international mail centre means "a place approved by the Comptroller-General of Customs (within the meaning of the Customs Act 1901) in an instrument under subsection 183UA(2) of that Act".
759. This amendment will align the definition of an "international mail centre" with the definition of that term in the Customs Act.
Item 3 - Paragraph 98(1)(d)
760. Paragraph 98(1)(d) of the Biosecurity Act currently provides that the Director of Human Biosecurity must notify the ACBPS of a traveller movement measure if included in a human biosecurity control order. A human biosecurity control order is the main method of managing risks to human health where an individual has a listed human disease.
761. Due to the abolition of the ACBPS this item will repeal the requirement for the Director of Human Biosecurity to notify the ACBPS if a traveller movement measure is included in a human biosecurity control order.
762. As the Department, which is defined in section 9 to mean "the Department administered by the Minister administering the Migration Act 1958" is included as a person who the Director of Biosecurity must notify under subsection 98(1), there is no need to substitute ACBPS with anything.
Customs Act 1901
763. The commencement of items 4 to 7 of this Schedule is dependent on the commencement of the PSOM Act. At the time of writing, the Bill for this Act was still before the Parliament and had not been passed. Therefore, in accordance with the commencement provision for the Schedule, the amendments in items 4 to 7 will commence on the later:
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- the start of 1 July 2015; and
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- immediately after the commencement of Schedule 1 to the PSOM Act.
764. However, the amendments do will not commence if the PSOM Act does not commence.
Item 4 - Subsection 205EA(2)(b)
765. New section 205EA will insert a new provision into the Customs Act to deal with the treatment of seized psychoactive substances and serious drug alternatives. Certain powers and functions will be conferred on the CEO.
766. This item will omit the reference to the CEO and substitute a reference to the Comptroller-General of Customs.
Item 5 - Paragraph 206(2A)(b)
Item 6 - Subsection 206(2A)
767. Amendments to section 206 confer powers on the CEO in relation to seized psychoactive goods and serious drug alternatives. These items will omit the references to "CEO" in section 206 and substitute with references to the "Comptroller-General of Customs".
Item 7- Transitional provisions-prohibited psychoactive substances and prohibited serious drug alternatives
768. This item will set out transitional provisions in relation to the amendments in items 4 to 6 of this Schedule.
Migration Act 1958
769. The amendments in items 8 and 9 in this Schedule are dependent upon the commencement of item 13 of Schedule 6 of the Foreign Fighters Amendment Act. That item of the Foreign Fighters Amendment Act commences on 1 July 2015.
Item 8 - Subsection 245LB(2)
770. Section 245LB of the Migration Act provides that the Department may collect information (including personal identifiers) provided in a report under Division 12B of the Migration Act. These reports are in relation to passengers and crew of aircraft and ships.
771. Currently subsection 245LB(2) provides that certain provisions under the Migration Act apply to personal information (other than personal identifiers) collected under Division 12B or under subsection 64ACA(11) or 64ACB(8) of the Customs Act, in the same way as they apply to identifying information.
772. Subsections 64ACA(11) and 64ACB(8) are being repealed in Schedule 1 to this Bill and as such the reference to these subsections are redundant and will be repealed by this item.
Item 9 - Subsection 245LB(3)
773. Subsection 245LB(3) currently provides that "As soon as practicable after information is reported under section 245L or 245LA, the Department must disclose the information (including personal identifiers) to the Australian Customs and Border Protection Service". Due to the abolition of ACBPS, this item repeals this paragraph.
Telecommunications (Interception and Access) Act 1979
Item 10 - Paragraph 110A(1)(e)
Item 11 - After subsection 110A(1)11
Item 12 - After section 110A
Item 13 - At the end of subsection 176A(1)
774. The Bill for the Data Retention Amendment Act at the time of writing is still before the Parliament. The Data Retention Amendment Act proposes significant amendments to the TIA Act in relation to the access to and use of telecommunications. However, in the current Bill, the ACBPS retains its status as a "criminal law-enforcement agency", which reflects the important law enforcement role that Customs' undertakes on behalf of the Australian Government. However, the Department loses, on the face of the TIA Act, its status as an "enforcement agency". In order to regain that status without the amendments to the TIA Act proposed in this item, the Secretary would need to apply to the Attorney-General for a declaration that the Department is an enforcement agency.
775. The abolition of the ACBPS and the integration of its functions into Department require that the Department be listed on the face of the TIA Act as a "criminal law-enforcement agency". Item 10 of this Schedule will give effect to this and, under the proposed section 176A of the TIA Act included in the Data Retention Bill, the Department will automatically also be an enforcement agency for the purposes of the TIA Act.
776. The powers that flow from this status, however, are to be appropriately restricted to activities in connection with the investigation of a contravention of provisions of certain Acts. This restriction is set out in proposed subsection 110A(1A) in the Data Retention Amendment Act. The Acts included in this subsection are those currently within the remit of powers exercised by the ACBPS being:
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- the Customs Act; or
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- the Crimes Act; or
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- the Criminal Code; or
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- the Environment Protection and Biodiversity Conservation Act 1999; or
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- Par 6 of the Australian Border Force Act 2015; or
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- an Act prescribed in a legislative instrument made by the Minister for the purposes of this paragraph; or
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- a provision of an Act, being a provision prescribed in a legislative instrument made by the Minister for the purposes of this paragraph.
777. Proposed subsection 110A(1A) includes the facility for the Attorney-General to prescribe additional Acts or certain provisions of the Acts.
778. These amendments will enable the continued operational capability of key activities currently performed by the ACBPS, which will in the future be undertaken within the Department.
779. Proposed new section 110B of the TIA Act, to be inserted by item 12, will enable the Attorney-General to limit the operation of certain sections in either Chapter 3 or Chapter 4 of the TIA Act in relation to the Department. This could be effected by providing that certain provisions of the TIA Act do not apply to the Department at all, in either its capacity as a criminal law enforcement agency or enforcement agency. It could also be effected by providing that certain provisions in these Chapters apply in relation to the Department only to the extent specified.
780. The commencement of items 10 to 13 of this Schedule is dependent on the commencement of the Data Retention Amendment Act. At the time of writing, the Bill for this Act was still before the Parliament and had not been passed. Therefore, in accordance with the commencement provision for the Schedule, the amendments in items 10 to 13 will commence on the later:
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- the start of 1 July 2015; and
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- immediately after the commencement of Schedule 1 to the Data Retention Amendment Act.
781. However, the amendments will not commence if the Data Retention Amendment Act does not commence.