Supplementary Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senator the Hon Amanda Vanstone)Financial impact statement
The amendments have no financial impact.
Amendment (1)
1. This amendment adds new subsections (7) and (8) at the end of proposed section 90T of the Australian Postal Corporation Act 1989 (the APCA Act).
2. Proposed section 90T allows officers of Customs to remove articles from the normal course of carriage and open them if the article is in the course of the post between Australia and a place outside Australia and the officer reasonably believes that the article consists, of or contains, drugs or other chemical compounds that are being carried in contravention of a law of the Commonwealth relating to their importation into, or exportation from, Australia. This proposed section allows to be prescribed the procedures for removing articles from the normal course of carriage for the purposes of their examination by a Customs officer and for the return of articles to the normal course of carriage.
3. Proposed subsection 90T(7) requires Customs to establish and maintain a record of all articles that are removed from the normal course of carriage and are opened. The record will have to be established and maintained in the manner prescribed.
4. The record must contain:
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- particulars of the article (proposed paragraph 90T(7)(a) refers);
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- particulars of the nature of the examination of the article and its contents (proposed paragraph 90T(7)(b) refers); and
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- whether following examination the article was dealt with according to law or returned to the normal course of carriage (proposed paragraph 90T(7)(c)).
4. Proposed subsection 90T(8) requires the following to be prescribed:
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- the place or places at which the record is required to be established and maintained (proposed paragraph 90T(8)(a));
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- the manner in which the record is to be kept (proposed paragraph 90T(8)(b)); and
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- the uses that can be made of the information contained in the record (proposed paragraph 90T(8)(c)).
Amendment (2)
5. This amendment omits 180 from item 1 of Schedule 2 to the Bill and substitutes 120.
6. Item 1 of Schedule 2 proposes to increase the period before which things seized as evidential material by an officer of Customs or authorised person must be returned, from 60 days to 180 days in section 203R of the Customs Act 1901 (the Customs Act).
7. This amendment proposes to increase the current time limit (60 days) to 120 days instead of 180 days.
Amendments (3), (4) and (5)
8. These amendments omit 180 from items 2, 3 and 4 of Schedule 2 to the Bill and substitute 120.
9. These amendments are consequential to the amendments proposed in Amendment 2.
Amendment (6)
10. This amendment replaces proposed subsection 219R(11A) of the Customs Act.
11. The effect of this amendment is to remove the power of the person who has ordered an external search to direct that the search be conducted using prescribed equipment. The amendment provides that prescribed equipment will only be used in an external search if the person being searched has consented to the use of the equipment and the requirements in proposed subsection 219RAB have been met.
Amendment (7)
12. This amendment adds new subsection (4) at the end of proposed section 219RAC of the Customs Act.
13. Proposed section 219RAC deals with the procedure that must be followed before equipment intended to be used in external searches can be prescribed. Before the Governor-General can make regulations prescribing the equipment the Minister must obtain from the CEO a statement in relation to the equipment (proposed subsection 219RAC(2) refers). Before that statement can be made, the CEO must consult the Commonwealth authorities (if any) that have expertise or responsibilities relevant to whether the equipment can safely be used to detected prohibited goods, whether the use of the equipment poses a risk to the health of the person being searched and whether a person without professional qualification can operate the equipment.
14. This amendment will require the CEO to lay before both Houses of Parliament a copy of any advice received from those authorities. The CEO will have 7 sitting days of the relevant House after the day on which the statement is given to the Minister to table the advice.
Amendment (8)
15. This amendment adds new subsection (7) at the end of proposed section 219RAF of the Customs Act.
16. The effect of this amendment is to require regulations to be made in relation to the secure storage of videotapes or other electronic records of external searches and of any photographs, images or samples referred to in proposed paragraphs 219RAF(1)(b), (c) or (d) pending the ultimate destruction of those records.
Amendment (9)
17. This amendment replaces paragraph (h) in proposed subsection 233BAB(1) of the Customs Act.
18. The effect of this amendment is to insert a new category of goods, child abuse material, that will constitute tier 2 goods.
Amendment (10)
19. This amendment adds new subsection (3A) in proposed section 233BAB of the Customs Act.
20. Proposed subsection 233BAB(3A) defines which documents and other goods will be taken to be child abuse material for the purposes of proposed subsection 233BAB(1).
21. Documents and other goods will be taken to be child abuse material if they depict a person who is, or appears to be, under 16 years of age and who is a victim of torture, cruelty or physical abuse. The document or other goods must also be likely to cause offence to a reasonable adult.
Amendment (11)
22. This amendment omits item 21 of Schedule 2 to the Bill and replaces it with items 21 and 22. Items 21 and 22 amend subsection 245(2) and (4) of the Customs Act respectively.
23. Item 21 of Schedule 2 to the Bill proposes to repeal subsections 245(2) and (4) of the Customs Act. Subsections 245(2) and (4) constrain certain courts in setting pecuniary penalties for Customs prosecutions by limiting the amount of penalty that may be imposed. For the County Courts, District Courts and the Local Courts of South Australia and the Northern Territory the limit is $20,000. For courts of summary jurisdiction the limit is $5,000.
24. The effect of this amendment is to increase the limit that applies to County Courts, District Courts and the Local Courts of South Australia and the Northern Territory to $40,000 and to increase the limit that applies to courts of summary jurisdiction to $20,000.