Explanatory Memorandum
(Circulated by authority of the Hon Peter Dutton MP, Minister for Home Affairs)Attachment A - Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Customs Amendment (Immediate Destruction of Illicit Tobacco) Bill 2019
This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The Customs Amendment (Immediate Destruction of Illicit Tobacco) Bill 2019 (the Bill) amends section 206 of the Customs Act 1901 (the Customs Act) to allow the Comptroller-General of Customs to cause tobacco products seized as prohibited imports to be dealt in a manner he or she considers appropriate, including immediate destruction of the goods.
Background
The Australian Government announced in the 2018-19 Budget that it would tighten tobacco border controls by introducing a prohibited import control for tobacco products through the Black Economy Package - Combatting Illicit Tobacco.
From 1 July 2019, tobacco products will be prohibited imports under the Customs (Prohibited Imports) Regulations 1956. As such, tobacco products will only be able be imported into Australia with a valid import permit (except for international travellers using duty free allowances, specialty tobacco items such as cigars and smokeless tobacco and tobacco products as approved for importation into Australia by the Minister and listed in a legislative instrument). Tobacco products imported without a valid permit would be a prohibited import and would be able to be seized at the border without warrant.
The Customs Act currently requires seized prohibited imports to be stored for a minimum of 30 days before they can be disposed of. Legislative and administrative requirements for prohibited imports, including requirements to issue seizure notices and records of seizure, also need to be fulfilled. Managing tobacco as a prohibited import may result in a demonstrable increase of work at the border that will impact the Australian Government's ability to effectively regulate tobacco permit conditions and other border operations.
The Bill amends section 206 of the Customs Act to empower the Comptroller-General of Customs to cause tobacco products seized as prohibited imports to be dealt with in a manner he or she considers appropriate, including the immediate destruction of the goods. By permitting immediate destruction of illicit tobacco, the Bill will also allow for the issue of seizure notices combined with a destruction notice, reducing the administrative burden of the Black Economy Package.
Human rights implications
This Bill supports the Government's commitment to improve health outcomes for Australians and combat illicit tobacco. It is consistent with the Tobacco Strategy 2012-2018 (endorsed by all Australian Health Ministers) to reduce the affordability of tobacco products, and with the World Health Organization's Framework Convention on Tobacco Control which commits nations to implement policies to adopt measures for preventing and reducing tobacco consumption, nicotine addiction and exposure to tobacco smoke.
This Bill engages the right to enjoy the highest standard of physical and mental health.
Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) and Article 12 of the International Covenant on Economic, Social and Cultural Rights serve to protect a person's right to the highest standards or physical and mental health.
Trade in illicit tobacco is extremely profitable, particularly as a result of the ongoing excise increases (discussed above). Once illicit tobacco has entered the domestic supply chain, there are few disincentives for those who engage in the illicit tobacco trade due to the difficulties in proving that an offence has been committed under current laws.
Illicit tobacco undermines public health measures to reduce the prevalence and uptake of smoking, bypassing important controls and standards relating to manufacturing, plain packaging and health labelling. Illicit tobacco can be manufactured in sub-standard processes, uses potentially poisonous ingredients, and inherently poses environmental and contamination risks.
Australian Border Force activities have detected poisons such as formaldehyde, and found rat faeces inside illicit tobacco-posing a health and biosecurity risk to Australia.
Transnational serious and organised criminals are actively involved in the illicit tobacco market. We know that these groups consider illicit tobacco ventures to be low risk and high profit activities. They can tolerate routinely losing large amounts of product to law enforcement disruption activities and still make millions of dollars from a single importation.
The Black Economy Taskforce observed that tobacco is, by weight, more valuable than silver-and that smuggling illicit tobacco may yield greater profit than smuggling cocaine or heroin.
By smuggling tobacco into Australia and evading taxes, organised crime is able to channel its illicit profits into other criminal activities. Intelligence indicates these activities include illicit drugs, weapons, violence and intimidation-and in some cases may link to terrorism.
Due to the potential for the immediate destruction of illicit tobacco products seized as prohibited imports, this Bill engages and enhances the right to enjoy the highest standard of physical and mental health.
Further, the measure will improve physical and mental health outcomes, as the amount of illicit tobacco in Australia will be reduced, limiting public exposure to the potential harms associated with illicit tobacco, as well as improving the effectiveness of related health policies, such as tobacco plain packaging requirements
Accordingly, the introduction of a measure that allows for the immediate destruction of illicit tobacco products seized at the border, is reasonable, necessary and proportionate. It will further enhance the public's right to the highest standard of physical and mental health.
Conclusion
The Bill is compatible with applicable 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. To the extent that these measures may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate to improve the effectiveness of illicit tobacco offences and to improve the health and safety standards in Australia.