Explanatory Memorandum
(Circulated by authority of the Minister for Home Affairs, the Honourable Clare O'Neil MP)Attachment A - Statement of Compatibility with Human Rights [Customs Amendment (Strengthening and Modernising Licensing and Other Measures) Bill 2024]
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Customs Amendment (Strengthening and Modernising Licensing and Other Measures) Bill 2024
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 purpose of the Bill is to modernise customs processes for the return of seized goods and to modernise, streamline and strengthen the customs licensing regime.
The amendments will primarily:
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- Modernise the currently paper-based licensing regime by allowing for forms to be submitted by industry, and notices to be served electronically; and to remove outdated requirements for industry under the Customs Act 1901 (the Act) to return physical licenses when a licence is cancelled or surrendered.
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- Streamline requirements in the licensing regime to allow the Australian Border Force (ABF) to enforce these requirements when a customs broker, depot or warehouse is in breach of their licence conditions and to align depot and warehouse requirements to ensure they are consistent.
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- Strengthen licence fee compliance by aligning licence renewal payment requirements across the licencing regime, including suspension and cancellation provisions when renewal fees are not paid within the required timeframes; and ensuring that licence fees are not refunded once a licence is cancelled as result of breaching the Act.
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- Extend current provisions to the Act to further protect industry by creating a requirement for acquired experience and adequate processes prior to the grant of a licence, ensuring industry is operating within an equal playing field; align the ABF's ability to direct licence holders to secure the place or goods; and extend Fit and Proper Person Assessments to cover other "persons" i.e. labour hire to directly combat the threat of criminal organisation infiltration of the supply chain.
Businesses involved in customs brokerage and managing warehouses and depots will benefit from these proposed amendments. Digitalising applications, reducing regulatory burden and aligning program requirements will allow for streamlined interactions with the ABF and clearer requirements for business. Businesses have strongly supported the modernisation of customs licensing processes based on feedback provided to the then Department of Immigration and Border Protection's 2017 Review of all Customs Licensing Arrangements.
Streamlining processes and aligning requirements between customs licence types will also support businesses to be better equipped in complying with their obligations under customs legislation. The provisions to strengthen existing customs licensing requirements provide an equal playing field for businesses as it ensures that those who comply with their obligations are not being undercut by individuals or entities who seek to circumvent controls.
The reforms also strengthen the ABF's ability to effectively manage and mitigate threats of criminal organisation infiltration in the supply chain and close the compliance gaps.
Human rights implications
This Bill engages the following rights:
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- The right to privacy in Article 17 of the International Covenant on Civil and Political Rights (ICCPR).
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- Criminal process rights in Article 14 of the ICCPR.
Right to privacy
The Bill will make two amendments that engage Article 17 relating to the prohibition on interference with privacy.
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- Firstly, the Bill will amend the AusCheck Act 2007 (AusCheck Act ), to facilitate an arrangement that is already operationally in place under the Act for AusCheck to be able to share information with customs officers regarding an applicant's failed Security Identification Card assessment. The Act has an existing provision to use this information to determine whether an individual is fit and proper. An exception to the secrecy provisions will be added to the AusCheck Act to allow for the disclosure of an applicant's personal information for the purposes of assisting a customs officer to exercise their powers under the Act.
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- Secondly, amendments will be made to the depot and warehouse provisions in the Act to expand the criteria of an authorised officer giving directions to include the ability to give directions in relation to processes, commercial documentation and licensing boundaries that relate to goods under customs control. This amendment will enable authorised officers to access, obtain documents and information regarding the goods under customs control.
However, the use or disclosure of personal information is reasonable, necessary and proportionate to the extent that it may limit human rights in order to achieve the legitimate objective of ensuring supply chain integrity is intact. In the customs licensing regime, personal information is collected by consent and in the context of granting and maintaining a licence, the requirement to provide personal information ensures that the applicant provides the required information including disclosing any criminal offences. In order to hold a licence, an individual, partner of a partnership, company or director of a company must be a fit and proper person and must comply with the conditions in respect of those licences. It is expected that the management or control of the warehouses/depots are conducted within the law and are not used for the purpose of engaging in or facilitating criminal activity. Additionally, the Bill will strengthen the response to risks associated with trusted insiders and organised crime infiltration.
Any personal information collected under the customs licensing scheme is collected by consent and stored, used or disclosed in accordance with the Privacy Act 1988, ensuring there are appropriate safeguards in place for the information.
Criminal process rights
The Bill introduces new offences, including strict liability offences, that engage Article 14(2) of the ICCPR.
Article 14(2) of the ICCPR states that:Everyone charged with criminal offence shall have the right to be presumed innocent until proved guilty according to law.
The presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. Consistency with the presumption of innocence requires that the prosecution prove each element of a criminal offence beyond reasonable doubt.
The application of strict liability to an element of an offence may engage and limit the right to be presumed innocent as it allows for the imposition of criminal liability without the need for the prosecution to prove fault.
The Bill introduces two new offences in new section 87C. New section 87C authorises a Collector to give directions in relation to warehouse or goods subject to customs control. New section 87C(5) provides that a person will commit an offence if they refuse to comply with a direction issued under section 87C(1) or (4). The penalty for this offence is 120 penalty units. New section 87C(6) creates a strict liability offence if a person refuses to comply with a direction under section 87C(1) or (4). The penalty for this offence is 60 penalty units.
It is necessary to have provisions that ensure compliance with directions and maintain the integrity of monitoring goods subject to customs control. New sections 87C(5) and (6) replicate the offence provisions in subsections 77Y(3A) and (4) in relation to depots. In the case of section 87C(6) is it appropriate that the offence be one of strict liability.
Strict liability is appropriate in relation to section 87C(6) as it would be expected that persons were aware of, and comply with, the requirements of the Customs Act, including directions issued to them. It enables prosecution for the failure to comply with a direction in circumstances where it is reasonable to expect that the person the subject of the direction is best placed to produce evidence as to why they did not comply with the direction. This is because the subject matter of directions that can be provided under section 87C(2) relate to matters within the knowledge of the person subject to the direction. It is the least rights restrictive option where prosecution under section 87C(5) would not be viable because evidence pertaining to the person's failure to comply with the direction was within the knowledge of the relevant person. Further, the general defence of mistake of fact is available to a person charged with an offence under section 87C(6). This enables the person to produce evidence that they were under the mistaken, but reasonable, belief about facts that, had they existed, would have meant the conduct would not have constituted an offence.
Making a strict liability offence available operates to deter behaviour that would obstruct the activities of ABF officers and prevent them from obtaining relevant information, including in relation to persons reasonably suspected of unlawful dealings with controlled goods. It is appropriate for the offence not to include a fault element to act as a strong deterrent against engaging in behaviour that hinders or obstructs the exercise of an officer's powers. The ability to exercise their powers is necessary to safeguard against unlawful interference the regulation of the controlled goods and to ensure the integrity of the depot and warehouse licensing scheme.
While strict liability limits the right to presumption of innocence in Article 14(2), this is reasonable, necessary and proportionate to achieve the legitimate objective of ensuring the integrity of the depot and warehouse licencing scheme.
Conclusion
The Bill is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.