Explanatory Memorandum
(Circulated by authority of the Assistant Minister for Customs, Community Safety and Multicultural Affairs, the Honourable Jason Wood MP)Attachment A - Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Customs Amendment (Growing Australian Export Opportunities Across the Asia-Pacific) Bill 2019
The Customs Amendment (Growing Australian Export Opportunities Across the Asia-Pacific) Bill 2019 (the 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 purpose of the Bill is to amend the Customs Act 1901 (the Customs Act) to give effect to:
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- the Peru-Australia Free Trade Agreement (PAFTA) signed on 12 February 2018;
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- the Indonesia-Australia Comprehensive Economic Partnership Agreement (IA-CEPA) signed on 4 March 2019; and
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- the Australia-Hong Kong Free Trade Agreement (A-HKFTA) signed on 26 March 2019.
The amendments implement new rules of origin for goods imported into Australia under one of these agreements. In particular, the Bill will:
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- implement separate rules of origin for each agreement to determine eligible goods to be subject to preferential treatment of customs duty in accordance with each of the agreements. Goods that satisfy the rules of origin under PAFTA are referred to as Peruvian originating goods, goods that satisfy the rules of origin under IA-CEPA are referred to as Indonesian originating goods and goods that satisfy the rules of origin under A-HKFTA are referred to as Hong Kong originating goods;
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- enable regulations to prescribe record keeping obligations on exporters that export goods to a Party to one of the agreements and who make a claim that the goods exported are Australian originating goods in accordance with that agreement;
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- enable regulations to prescribe record keeping obligation on producers that produce goods for export to Peru or Hong Kong, China and who make a claim that the goods exported are originating in accordance with PAFTA or A-HKFTA respectively; and
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- enable an authorised officer (as defined in subsection 4(1) of the Customs Act) to disclose information (including personal information within the meaning of the Privacy Act 1988 (Cth) and Immigration and Border Protection information within the meaning of the Australia Border Force Act 2015 (Cth)) to customs officials of the other Party to the applicable agreement for the purposes of verifying the claims for origin of goods exported to that Party under the relevant agreement. For each agreement customs official means a person representing a Customs Administration of that Party.
Human rights implication
This Bill engages the right to not be subjected to arbitrary or unlawful interference with privacy in Article 17 of the International Covenant on Civil and Political Rights to the extent that the Bill will allow for the collection and disclosure of personal information.
Article 17(1) sets out:
No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
Peru-Australia Free Trade Agreement
Under Article 3.17 of Chapter 3 of PAFTA, a certificate of origin document completed by the exporter or producer or an authorised representative of the exporter or producer shall support a claim that goods are eligible for preferential tariff treatment in accordance with PAFTA. The key information that must be included in a 'certificate of origin' document is detailed in Article 3.17, and Annex 3-A of PAFTA and includes personal information, that is the exporter and/or the producer's name, address, email address and telephone number.
The Bill in part inserts new sections 126AJF, 126AJG and 126AJH into the Customs Act to enable:
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- regulations to prescribe record keeping obligations that apply in relation to goods that are exported to the territory of Peru and are claimed to be Australian originating goods in accordance with PAFTA;
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- an authorised officer to require a person subject to record keeping obligations under the regulations to produce those records;
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- an authorised officer to disclose the records to a Peruvian customs official in order to verify a claim for a preferential tariff;
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- an authorised officer to require an exporter or producer of goods to answer questions in order to verify the origin of the goods; and
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- an authorised officer to disclose the answers to a Peruvian customs official in order to verify a claim for a preferential tariff.
Indonesia-Australia Comprehensive Economic Partnership Agreement
Under Articles 4.17 and 4.20 of Chapter 4 of IA-CEPA, valid documentary evidence of origin presented by the importer shall support a claim that the goods are eligible for preferential tariff treatment in accordance with IA-CEPA. The key information that must be included for a 'certificate of origin' and a 'declaration of origin' are set out in Annex 4-A and Annex 4-B of IA-CEPA respectively, and includes personal information, that is, the exporter's name, address and contact details.
The Bill in part inserts new sections 126ALF, 126ALG and 126ALH into the Customs Act to enable:
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- regulations to prescribe record keeping obligations that apply in relation to goods that are exported to the territory of Indonesia and are claimed to be Australian originating goods in accordance with IA-CEPA;
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- an authorised officer to require a person subject to record keeping obligations under the regulations to produce those records;
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- an authorised officer to disclose the records to an Indonesian customs official in order to verify a claim for a preferential tariff;
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- an authorised officer to require an exporter or producer of goods to answer questions in order to verify the origin of the goods; and
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- an authorised officer to disclose the answers to an Indonesian customs official in order to verify a claim for a preferential tariff.
Australia-Hong Kong Free Trade Agreement
Under Article 3.16 of Chapter 3 of A-HKFTA, a declaration of origin document completed by the exporter, producer or importer, or an authorised representative of the exporter, producer or importer shall support a claim that the goods are eligible for preferential tariff treatment in accordance with A-HKFTA. Key information that must be included for a 'declaration of origin' are set out in Annex 3-A of A-HKFTA and includes personal information, that is, the name, address, email address and telephone number of the Importer, Exporter, Producer or their Authorised Representative.
The Bill in part inserts new sections 126APB, 126APC and 126APD into the Customs Act to enable:
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- regulation to prescribe record keeping obligations that apply in relation to goods that are exported to Hong Kong, China and are claimed to be Australian originating goods in accordance with A-HKFTA;
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- an authorised officer to require a person subject to record keeping obligations under the regulations to produce those records;
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- an authorised officer to disclose the records to a Hong Kong, China customs official in order to verify a claim for a preferential tariff;
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- an authorised officer to require an exporter or producer of goods to answer questions in order to verify the origin of the goods; and
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- an authorised officer to disclose the answers to a Hong Kong customs official in order to verify a claim for a preferential tariff.
Additionally, the record keeping obligations to be prescribed by the regulations will reflect the obligations set out in Article 3.22 of Chapter 3 of PAFTA, Article 4.26 of Chapter 4 of IA-CEPA and Article 3.22 of Chapter 3 of A-HKFTA in respect of the retention of records and the verification of origin.
The new sections allow the other Party to verify the origin of goods exported from Australia that are claimed to be Australian originating goods. For example, this may include the collection and disclosure of personal information set out in a 'certificate of origin' document, for limited purposes including to a customs official from the other Party for the purpose of verifying a claim for a preferential tariff
The verification of the eligibility for preferential treatment is required under PAFTA, IA-CEPA or A-HKFTA and the measures in the Bill are directed at the legitimate purpose of facilitating and supporting Australia's economic and international trade objectives and implementing the international legal obligations under these agreements. The collection and disclosure of personal information is authorised under the Privacy Act 1988 (Cth) and, where applicable, the Australian Border Force Act 2015 (Cth), with the Bill clarifying that authorised officers may require exporters or producers of goods to produce records or answer questions, which records or answers may be disclosed to officials of the other Parties to the agreements for the purpose of verifying a claim for a preferential tariff. The Bill will not alter the existing Australian domestic law protections. The collection, access and disclosure is intended to be permitted for the limited purpose of verifying a claim made by a person for preferential tariff treatment and the records captured by the new sections only to relate to goods that are exported to the relevant Party and are claimed to be Australian originating goods for those purposes. As such, the amendments are a reasonable and proportionate response to the legitimate purpose described above. As such, the collection and disclosure of personal information in these circumstances will not constitute an unlawful or arbitrary interference with privacy.
Conclusion
The Bill is compatible with human rights because to the extent that it may engage the right to privacy, will not constitute an unlawful or arbitrary interference with privacy.