House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Immigration and Border Protection, the Honourable Peter Dutton MP)

Outline

The purpose of this Bill is to:

•

repeal the Customs Administration Act 1985 (Customs Administration Act);

•

amend the Customs Act 1901 (the Customs Act) as a consequence of the repeal of the Customs Administration Act;

•

amend other Acts associated with the administration of Customs matters; and

•

amend several other Commonwealth Acts that refer to the Australian Customs and Border Protection Service (ACBPS) and the Chief Executive Officer of Customs (the CEO);

•

amend the Migration Act 1958 to enable the Australian Border Force Commissioner (the ABF Commissioner) to exercise certain powers under that Act; and

•

make other amendments associated with the standing up of the Australian Border Force (the ABF) in the Department of Immigration and Border Protection (the Department) on 1 July 2015.

On 9 May 2014, the Government announced that, from 1 July 2015, the Department and the ACBPS will be integrated into a single Department of State, and that the ABF, an operational border control and enforcement entity, will be established within the Department. The ABF is to be headed by the ABF Commissioner (a statutory officer holder) and will consist of Immigration and Border Protection workers (IBP workers) who are in the ABF, or whose services are made available to, or who are performing services for, the ABF. The Australian Border Force Bill 2015 (the ABF Bill) will provide the legislative basis for establishing the office of the ABF Commissioner, who is to have the control of the operations of the ABF.

To give effect to these arrangements, this Bill will repeal the Customs Administration Act, thereby abolishing both the ACBPS as a separate statutory authority and the statutory office of the CEO. These changes will take effect from 1 July 2015, the same date that the ABF Bill commences (see Schedule 2).

The ABF Bill provides that the person appointed as the ABF Commissioner shall also be the Comptroller-General of Customs and, in that capacity, will have responsibility for the enforcement of customs laws and collection of border-related revenue. The Bill amends the Customs Act to confer on the Comptroller-General of Customs all of the powers and functions that are currently conferred on the CEO (see Schedule 1).

The Bill also confers on the Comptroller-General of Customs all of the powers and functions related to customs functions that are currently conferred on the CEO under other Commonwealth Acts (see Schedule 6).

The Bill also contains amendments to the Work Health and Safety Act 2011 (the WH&S Act), which acknowledges that IBP workers in the ABF will be engaged in a number of unique and high risk environments that are necessary for Australia's national security and defence. It is critical these workers can be confident they are able to perform the tasks required of them professionally and diligently in what can be demanding environments. In this regard, the Bill extends the assurance currently provided to Australia's National Security agencies and Defence Force to the ABF and its workers, to explicitly enable them to address the unique issues that arise in relation to Australia's border protection.

These amendments to the WH&S Act allow the ABF Commissioner, in consultation with the Secretary of the Immigration and Border Protection Department and with the agreement of the Minister for Employment, to declare by instrument in writing that specified provisions of the WH&S Act do not apply, or apply subject to modifications set out in the declaration. The ABF Commissioner is also required to consult with the Director-General of Security prior to seeking the Minister's approval for a declaration to be made under section 12C, or with the Chief of the Defence Force prior to seeking the Minister's approval for a declaration to be made under section 12D. This consultation provision ensures the Minister may have the benefit of their expert opinion when considering a declaration. Enabling the ABF Commissioner to make a declaration that restricts or modifies the application of specified provisions of the WH&S Act provides further certainty of the existing intent of the WH&S Act that a person is not required to take, or refrain from taking, any action under the Act that would be, or could reasonably be expected to be, prejudicial to Australia's national security or defence.

The Bill also contains amendments to the Law Enforcement Integrity Commissioner Act 2006, the Crimes Act 1914, the Surveillance Devices Act 2004, the Telecommunications (Interception and Access) Act 1979 and the Australian Crime Commission Act 2002 to give effect to the extension of the jurisdiction of the Australian Commission for Law Enforcement Integrity (the ACLEI) to the integrated Department.

The special role the Department plays as an immigration and border protection agency with responsibilities for authorising the movement of travellers and goods across Australia's border, managing the stay in Australia and in some cases departure from Australia of non-citizens is valuable and therefore attracts a heightened integrity risk. While some of these functions will be exclusively undertaken by the part of the Department known as the ABF, others will be delivered or supported by other parts of the Department.

Additionally, immigration and border protection workers will, where relevant to the performance of their duties, have access to sensitive information and engage in close working relationships with other law enforcement agencies. The consequences of any corruption in the Department, including in the part of the department known as the ABF, would pose a significant threat to the integrity of the border and Australia's national security.

It is therefore important to ensure the ACLEI's unhindered ability to investigate suspected law enforcement related corrupt activity across the Department regardless of the role, location or job title of an individual officer. Provisions in this Schedule will extend ACLEI's jurisdiction to the Department, which is considered to be an important step in establishing a robust professional integrity system.

The Bill also amends the Customs Act and other Commonwealth Acts to update terminology to reflect the abolition of the ACBPS.

Financial impact statement

The financial impact of the amendments in this Bill is low.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Customs and Other Legislation Amendment (Australian Border Force) Bill 2015

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.

The Customs and Other Legislation Amendment (Australian Border Force) Bill 2015 will repeal the Customs Administration Act 1985 (Customs Administration Act) and make amendments to the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act), the Work, Health and Safety Act 2011 (WH&S Act) and technical amendments to a range of other Commonwealth Acts that reference the Australian Customs and Border Protection Service (ACBPS), the Chief Executive Officer of Customs (the CEO) and "Customs". The purpose of these amendments is to reflect the new organisational arrangements that follow the Government decision to integrate the ACBPS and the Department of Immigration and Border Protection (the Department) into a single Department of State, including the framework for the Australian Border Force (ABF), a single frontline operational border control and enforcement entity within the Department.

A separate Bill, the Australian Border Force Bill (ABF Bill) will also be introduced to provide the legislative framework for the ABF within the Department from 1 July 2015. Since the Customs and Other Legislation Amendment (Australian Border Force) Bill 2015 repeals the Customs Administration Act, which applies certain measures to workers in the ACBPS, the ABF Bill will establish the office of the ABF Commissioner and apply relevant measures for the management of the workforce in the integrated department. The human rights implications of those measures are addressed in the Statement of Compatibility for the ABF Bill.

Overview of the Bill

The following measures in the Bill engage human rights:

•

Amend the WH&S Act - provisions under section 12C "act not to prejudice national security" to enable the ABF Commissioner, in consultation with the Secretary of the Department and Director-General of Security and with approval of the Minister responsible for the WH&S Act, to make a declaration that specified provisions of the WH&S Act do not apply, or apply subject to modification in relation to an ABF worker.

•

Amend the WH&S Act - provisions under section 12D "act not to prejudice Australia's defence" to enable the ABF Commissioner, in consultation with the Secretary, the Chief of the Defence Force and with approval of the Minister responsible for the WH&S Act, to make a declaration that provisions of the WH&S Act do not apply, or apply subject to modification in regards to an ABF worker in relation to specified operations or a specified operation of the ABF, or a specified ABF worker, or ABF workers included in a specified class of such workers.

•

Prescribe the Department as law enforcement agency under the LEIC Act, allowing the Australian Commission for Law Enforcement Integrity (the ACLEI) to investigate suspected law enforcement related corrupt activity on a whole of agency basis.

•

The human rights implications of these measures are outlined below. The remainder of the measures in this Bill are technical in nature and do not engage human rights.

Human rights implications

Amendments to the WH&S Act

The WH&S Act imposes duties on persons conducting a business or undertaking, and workers, to protect the health and safety of themselves and others. The thresholds imposed by these provisions are that workers should exercise reasonable care.

Section 12C of the WH&S Act already provides that nothing in that Act requires or permits a person to take any action or refrain from taking any action that would be, or could reasonably be expected to be prejudicial to national security.

Similarly, section 12D of the WH&S Act already provides that nothing in that Act requires or permits a person to take any action or refrain from taking any action that would be, or could reasonably be expected to be, prejudicial to Australia's defence.

These are long standing components of work health and safety obligations in Australia, and identical provision existed in the predecessor to the WH&S Act, the Occupational Health and Safety Act 1991.

Currently sections 12C and 12D of the WH&S Act do not provide that the ABF Commissioner is able to make a declaration that specified provisions of the WH&S Act do not apply, or apply subject to modifications or adaptations set out in the declaration, in relation to persons carrying out work for him or her. If this were not to be rectified, it could result in legal uncertainty around the application of sections 12C and 12D and the status of duties and obligations that apply to the ABF workers who will work under the command and control of the ABF Commissioner, once that role is established by the ABF Bill.

Some ABF workers will be required to be deployed in a number of unique and high risk environments that are necessary for Australia's national security and defence. Given this, it is critical these workers can be confident they are able to perform the tasks required of them in the protection of Australia's interests. This includes, for example, work undertaken in the maritime security domain, where ABF workers may, at times, be required to exercise time-critical judgements that potentially place at heightened risk their own safety or the safety of others in order to rescue people from a sinking vessel or the water or board a suspected illegal entry vessel that appears to have prohibited cargo on-board. These types of activities will always be conducted by trained officers and with a primary regard to the safety of ABF workers and others in the work environment. However, there may be circumstances in which the actions required to be taken to maintain Australia's national security and/or Australia's defence are incompatible with full compliance with one or more of the duties and obligations under the WH&S Act.

The amendments to the WH&S Act allow the ABF Commissioner, in consultation with the Secretary of the Immigration and Border Protection Department and with the agreement of the Minister for Employment, to declare by instrument in writing that specified provisions of the WH&S Act do not apply, or apply subject to modifications set out in the declaration. The ABF Commissioner is also required to consult with the Director-General of Security prior to seeking the Minister's approval for a declaration to be made under section 12C, or with the Chief of the Defence Force prior to seeking the Minister's approval for a declaration to be made under section 12D.

These amendments will enable the ABF Commissioner to provide certainty about the way the WH&S Act is to apply in such circumstances. In so doing, the ABF Commissioner will be able to extend to the ABF workforce the same assurance currently provided to certain persons by the Director-General of Security and the Chief of the Defence Force.

This amendment also recognises the broader duties and objectives within the WH&S Act to protect workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work.

The amendments to the WH&S Act contained in the Bill engage Article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 7 of the ICESCR provides that State Parties recognise the right of everyone to the enjoyment of just and favourable conditions at work. This right encompasses a number of elements, including safe and healthy work conditions (see Article 7(b)).

While on its face these amendments may appear to restrict the right to safe and healthy work conditions, the amendments are only intended to provide legal clarification to the operation of existing provisions of the WH&S Act to people who will perform work for the ABF Commissioner.

Any potential for these amendments to engage the ICESCR Article 7(b) right to safe and healthy work conditions are considered to be reasonable, necessary and proportionate to the inherent risks associated with measures that are necessary for Australia's national security and Australia's Defence. In making a declaration under section 12C or 12D, the ABF Commissioner must first obtain the approval of the Minister for Employment and there remains an explicit obligation on the Commissioner to take into account the need to promote the objects of this Act to the greatest extent consistent with the maintenance of Australia's national security and Australia's defence respectively. These requirements mean that a declaration could only be made and be valid where the content of such a declaration is consistent with these requirements in the particular operating context.

Amendments to the LEIC Act

Under the LEIC Act, the ACBPS is currently prescribed as a law enforcement agency. This Bill amends the LEIC Act to extend the jurisdiction of the Law Enforcement Integrity Commissioner to DIBP on a whole of agency basis. This would ensure the Integrity Commissioner's unhindered ability to investigate suspected law enforcement related corrupt activity across the Department regardless of the role, location or job title of an individual officer.

The broad objectives of the LEIC Act are to strengthen the integrity of prescribed Commonwealth law enforcement agencies and to enable the prosecution of corrupt officials and their criminal counterparts. To this end, the Law Enforcement Integrity Commissioner and staff at the ACLEI are empowered to detect and investigate corrupt conduct by using a combination of coercive information gathering and law enforcement powers.

Article 17 of the ICCPR prohibits unlawful or arbitrary interferences with a person's privacy, family, home and correspondence and unlawful attacks on their honour or reputation. The right to privacy may be subject to permissible limitations. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances. Reasonableness, in this context, incorporates notions of proportionality, appropriateness and necessity.

This measure engages the right to privacy because the LEIC Act provides that employees of agencies under ACLEI's jurisdiction, or other individuals with information that is relevant to corruption, can be required to provide information to ACLEI or to answer questions. A failure to provide the information or answer a question is an offence.

As such, this measure impacts the right to privacy of employees as well as other individuals who may have information relevant to corruption matters.

Amendments to the LEIC Act are necessary owing to the special role the Department plays as an immigration and border protection agency with responsibilities for authorising the movement of travellers and goods across Australia's border. Managing the entry into, stay in Australia, and in some cases departure from Australia of non-citizens places officers in a position of trust and therefore attracts a heightened integrity risk. While some of these functions will be exclusively undertaken by the ABF, others will be delivered or supported by other parts of the Department.

IBP workers will, where relevant to the performance of their duties, have access to sensitive information and engage in close working relationships with other law enforcement agencies. The consequences of any corruption in the Department, including the part of the Department known as the ABF, would pose a significant threat to the integrity of the border and Australia's national security. The consequence of any corruption in DIBP, including the ABF, would therefore be very significant.

It is therefore important to ensure the ACLEI's unhindered ability to investigate suspected law enforcement related corrupt activity across DIBP regardless of the role, location or job title of an individual officer is necessary as this would include situations where the involvement of employees in non-operational roles is suspected.

The ability to require an individual to provide information or answer questions is limited to situations where it will be relevant to an investigation of a corruption issue or the conduct of a public inquiry into corruption. The LEIC Act also prescribes how information that is provided by individuals to ACLEI is able to be used and disclosed. Disclosure is generally only permitted for the purposes of investigating a corruption issue or other purposes connected with the exercise of the functions of the Integrity Commissioner.

A person's privacy is also protected by the provision of a 'use' immunity in relation to self-incriminatory evidence given by them at a hearing. This means that self-incriminatory evidence is not admissible in evidence against the person in criminal proceedings. The immunity protection does not apply to a small number of offences including providing false and misleading information or obstruction of a Commonwealth official.

As such, although the right to privacy is limited by this measure, it is appropriate and reasonable in the circumstances and includes protections to limit information from inappropriate use or disclosure. The extension of ACLEI's jurisdiction to the Department is considered an important step in establishing a robust professional integrity system.

Conclusion

This Bill is compatible with human rights because it is consistent with Australia's human rights obligations and to the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate.

Notes on clauses

Background

1. This Bill proposes to make consequential, contingent and other amendments to various laws of the Commonwealth. These amendments support the announcement of the Government on 9 May 2014 to abolish the Australian Customs and Border Protection Service and merge its functions with those administered by the Department of Immigration and Border Protection, abolish the statutory office of the Chief Executive Officer of Customs (the CEO), and provide for the functions and powers of the Australian Border Force Commissioner (including in his or her capacity as the Comptroller-General of Customs).

2. Further details relating to the amendments in this Bill are set out in the Schedules below:

•

Schedule 1 - Amendments of Customs Act 1901;

•

Schedule 2 - Repeal of Customs Administration Act 1985;

•

Schedule 3 - Amendment of the Migration Act 1958;

•

Schedule 4 - Amendment of Work Health and Safety Act 2011;

•

Schedule 5 - Amendments of Acts referring to the Customs;

•

Schedule 6 - Amendments of Acts referring to the CEO;

•

Schedule 7 - Amendments of Acts referring to the Comptroller-General of Customs;

•

Schedule 8 - Contingent amendments; and

•

Schedule 9 - Other application and transitional provisions.

GLOSSARY

Section 1 - Short title

1. This section is a formal provision specifying the short title of the Bill, which when enacted is to be cited as the Customs and Other Legislation Amendment (Australian Border Force) Act 2015.

Section 2 - Commencement

2. This section provides for the commencement of the Bill. Subsection 2(1) provides for each provision of this Bill specified in column 1 of the table, when enacted, commences or is taken to have commenced, in accordance with column 2 of the table, and for any other statement in column 2 to have effect according to its terms.

3. Table item 1 provides that sections 1 to 3 (and anything in this Bill not elsewhere covered by the table) will commence on the day the Bill receives the Royal Assent.

4. Table item 2 provides that Schedules 1 to 7 of the Bill will commence at the same time as the Australian Border Force Act 2015 (the ABF Act). The ABF Act commences on 1 July 2015.

5. The commencement of items 1 to 3 of Schedule 8 of the Bill is dependent on the commencement of section 3 of the Biosecurity Act 2015 (the Biosecurity Act) and is to commence on the later of (see table item 3 under subclause 2(1)):

•

immediately after the commencement of the ABF Act; and

•

immediately after the commencement of section 3 of the Biosecurity Act.

6. The commencement of items 4 to 7 of Schedule 8 of the Bill is dependent on the commencement of amendments in Schedule 1 to the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Act 2015 (PSOM Act) and is to commence on the later of (see table item 4 under subclause 2(1)):

•

the start of 1 July 2015; and

•

immediately after the commencement of item 7 of Schedule 1 to PSOM Act.

7. Table item 5 provides for items 8 and 9 of Schedule 8 of the Bill to commence immediately after the commencement of item 13 of Schedule 6 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Foreign Fighters Amendment Act). That item of the Foreign Fighters Amendment Act commences on 1 July 2015.

8. he commencement of item 10 to 13 of Schedule 8 of the Bill is dependent on the commencement of amendments in Schedule 2 to the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Data Retention Amendment Act) and is to commence on the later of (see table item 6 under subclause 2(1)):

•

the start of 1 July 2015; and

•

immediately after the commencement of Schedule 2 to the Data Retention Amendment Act.

9. Table item 7 provides that Schedule 9 of the Bill is to commence at the same time as the ABF Act. The ABF Act is to commence on 1 July 2015.

10. The note under subsection 2(1) explains that the table only relates to the provisions of this Bill as originally enacted and will not be amended to deal with any later amendments to the Bill, when enacted.

11. Subsection 2(2) provides that any information in column 3 of the table is not part of this Bill but may be inserted in this column, or information in it may be edited, in any published version of this Bill, to assist readers.

Section 3 - Schedules

12. This section provides that legislation that is specified in a Schedule to this Bill is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Bill has effect according to its terms.

Schedule 1 - Amendments of Customs Act

3. This Schedule provides for consequential amendments to the Customs Act resulting from the repeal of the Customs Administration Act and the enactment of the ABF Act.

Part 1 - Amendments

4. This Part amends the Customs Act to omit references to "Customs", "CEO" and related references, and substitute those terms with appropriate equivalent provisions. The substituted references will reflect the abolition of the ACBPS, the statutory office of the CEO, and the establishment of the office of the Comptroller-General of Customs by the ABF Act.

5. Additionally, this Part also makes other minor technical amendments to the Customs Act.

Customs Act 1901

Item 1 - Subsection 4(1)

6. This item inserts the definition of "Australian Border Force Commissioner" into subsection 4(1) of the Customs Act.

7. The definition of "Australian Border Force Commissioner" has the same meaning as the ABF Act and means the Commissioner of the ABF (see subsection 4(1) of the ABF Act). This term is referred to in paragraph (b) of the new definition of "officer of Customs" (see item 14 below).

8. By operation of clause 11(3) of the ABF Act, a person who is appointed as the ABF Commissioner is also the Comptroller-General of Customs and this capacity is to be conferred with many related powers under laws of the Commonwealth.

Item 2 - Subsection 4(1) (definition of authorised officer )

9. This item repeals the current definition of "authorised officer" in subsection 4(1) of the Customs Act and substitutes a new definition. The new definition in relation to a provision of the Customs Act, means as an officer of Customs authorised under new subclause 4(1AA) to exercise the powers and functions or perform the functions of an authorised officer under that provision. A new definition of "officer of Customs" is inserted by item 14 below.

Item 3 - Subsection 4(1) (definition of CEO )

10. This item repeals the definition of "CEO" in subsection 4(1) of the Customs Act.

11. The Customs Administration Act, which establishes the statutory office of the CEO, will be repealed by Schedule 2 below. As a result, the office of the CEO will be abolished. This amendment repeals the redundant definition.

12. All the references to "CEO" referred to throughout the Customs Act will also become redundant and are amended by items mentioned in "Items substituting the reference to CEO with Comptroller-General of Customs" below, which will omit references to the CEO and substitute with "Comptroller-General of Customs". The definition of "Comptroller-General of Customs" is inserted by item 7 below.

Items relating to the Anti-dumping Commissioner

13. Items 5, 6 and 820, collectively, repeal the definitions of "Commissioner" and "Commission staff member" in subsection 4(1) of the Customs Act and insert identical definitions into subsection 269T(1) of the Customs Act.

14. "Commissioner" is defined to mean the Commissioner of the Anti-Dumping Commission continued in existence under section 269SMB.

15. "Commission staff member" is defined to mean a member of the staff assisting the Commissioner as mentioned in subsection 269SMQ(1).

16. Items 80, 90 and 827 to835 amend provisions of the Customs Act in Table 1, to clarify that references to the Commissioner in those provisions mean the Commissioner within the meaning of Part XVB of the Customs Act. Part XVB sets out the anti-dumping and countervailing regimes.

Item 7 - Subsection 4(1)

17. This item inserts the definition of "Comptroller-General of Customs" into subsection 4(1) of the Customs Act.

18. "Comptroller-General of Customs" is defined as the person who is the Comptroller-General of Customs in accordance with subsection 11(3) or 14(2) of the ABF Act. The general functions and powers of the Comptroller-General of Customs are set out in item 26 below.

Items 10 and 11 - Subsection 4(1) (definition of officer )

19. Item 10 repeals the definition of "Officer" in subsection 4(1) of the Customs Act. A similar definition is to be inserted into subsection 4(1) of the Customs Act by item 11 and is defined to mean an "officer of Customs". These are technical amendment to ensure that the terminology for "officer" and "officer of Customs" are consistent. The new definition of "officer of Customs" is inserted by item 14 below.

Items 13 and 14 - Subsection 4(1) (definition of Officer of Customs ); and Subsection 4(1)

20. Item 13 repeals the current definition of "Officer of Customs" in subsection 4(1) of the Customs Act. A new definition of "officer of Customs" is inserted into subsection 4(1) by item 14, and means:

•

the Secretary; or

•

the ABF Commissioner (including in his or her capacity as the Comptroller-General of Customs); or

•

an APS employee in the Department; or

•

a person authorised under new subclause (1B) to exercise all the powers and perform all the functions of an officer of Customs; or

•

a person who from time to time holds, occupies, or performs the duties of an office or position (whether or not in or for the Commonwealth) specified under new subclause (1C), even if the office or position does not come into existence until after it is so specified; or

•

in relation to a provision of a Customs Act:

•

a person authorised under new subclause (1D) to exercise the powers or perform the functions of an officer of Customs for the purposes of that provision; or

•

a person who from time to time holds, occupies, or performs the duties of an office or position (whether or not in or for the Commonwealth) specified under new subclause (1E) in relation to that provision, even if the office or position does not come into existence until after it is so specified.

21. From 1 July 2015, the ACBPS will be abolished and APS employees of the ACBPS will also become employees of the Department. The new definition recognises this and recognises the combined workforce of the Department at paragraph (c).

Item 18 - After subsection 4(1)

22. This item inserts a new clause (1AA) into section 4 of the Customs Act, and enables the Comptroller-General of Customs, by writing, to authorise an "officer of Customs" to exercise the powers or perform the functions of an authorised officer under a specified provision of the Customs Act.

23. This item vests a similar power to that exercised by the CEO in the Comptroller-General of Customs and will allow the Comptroller-General to authorise an officer of Customs to exercise a power or perform a function for the purpose of a provision in the Customs Act. This item supports the new definition of "authorised officer" in section 4 of the Customs Act.

Item 21 - Before subsection 4(2)

24. This item inserts new subclauses (1B), (1C), (1D) and (1E) into section 4 of the Customs Act.

25. New subclause (1B) provides that, for the purposes of a paragraph (d) of the definition of officer of Customs in subsection 4(1), the Comptroller-General of Customs may, by writing, authorise a person to exercise all the powers and perform all the functions of an officer of Customs.

26. New subclause (1C) provides that, for the purposes of paragraph (e) of the definition of officer of Customs in subsection 4(1), the Comptroller-General of Customs may, by writing, specify an office or position (whether or not in or for the Commonwealth).

27. New subclause (1D) provides that, for the purposes of subparagraph (f)(i) of the definition of officer of Customs in subsection 4(1), the Comptroller-General of Customs may, by writing, authorise a person to exercise the powers or perform the functions of an officer of Customs for the purposes of a specified provision of a Customs Act.

28. New subclause (1E) provides that, for the purposes of subparagraph (f)(ii) of the definition of officer of Customs in subsection 4(1), the Comptroller-General of Customs may, by writing, specify an office or position (whether or not in or for the Commonwealth) in relation to a specified provision of a Customs Act.

29. These new clauses vest powers, similar to those exercised by the CEO, in the Comptroller-General of Customs to appoint people as "officers of Customs".

Item 26 - Section 7

30. This item repeals section 7 of the Customs Act and substitutes a new section. New section 7 provides for the Comptroller-General of Customs to have the general administration of Customs Act.

31. This item is necessary to establish the Comptroller-General of Customs as the official who is to be responsible for the administration of the Customs Act under the new single integrated Department. Amendments in items mentioned below under "Items substituting the references to CEO with Comptroller-General of Customs" will allow the Comptroller-General of Customs to exercise powers or perform functions of customs that are currently performed or exercised by the CEO.

Item 28 - Subsection 8(1)

32. This item repeals subsection 8(1) of the Customs Act and substitutes a new subsection. New subsection 8(1) provides, for the purpose of the Customs Act, that a reference to the Collector, or to a Collector, is a reference to:

•

the Comptroller-General of Customs; or

•

any officer doing duty in the matter in relation to which the expression is used.

33. This amendment specifies those persons who are Collectors under the Customs Act. The amendments also remove the redundant reference to "CEO", which is repealed by item 3 above.

Item 29 - Section 8A

34. This item omits the reference to "Customs" in section 8A of the Customs Act and substitutes with "this Act".

35. The reference to "Customs" in this context is a reference to the ACBPS as established by the Customs Administration Act. As this Act is to be repealed by amendments in Schedule 2, the references to "Customs" are redundant.

Items relating to the customs seal and customs flag

36. Item 30 repeals the heading of section 13 of the Customs Act and substitutes a new heading; being "Customs seal".

37. Item 31 repeals subsection 13(1) of the Customs Act and substitutes a new subsection. New subsection 13(1) provides that there is to be a seal, called the customs seal, the design of which must be determined by the Comptroller-General of Customs.

38. Item 32 repeals paragraph 13(2)(b) of the Customs Act and substitutes a new subparagraph. New subparagraph 13(2)(b) provides that the design of the seal as determined by the Comptroller-General of Customs shall include the words "Australia - Comptroller-General of Customs". This will omit the current reference to "Customs and Border Protection" on the seal.

39. Items 33 and 35 omit the words "Customs Seal shall" in subsections 13(3) and (4) of the Customs Act and substitute them with "customs seal must".

40. Items 34 and 36 omit references to "CEO" in subsections 13(3) and (4) of the Customs Act and substitute with "Comptroller-General of Customs".

41. Item 37 repeals subsections 13(5) and (6) of the Customs Act. These subsections currently set out the requirements in relation to the Customs stamp. However, as there is no formal Customs stamp, these subsections are redundant and are repealed.

42. As a consequence of the repeal of the Customs stamp, item 38 omits the reference to "Customs Seal, or of the mark of a Customs stamp," in subsection 13(7) of the Customs Act and substitutes with "customs seal". Item 39 omits the reference to "or mark, as the case may be," in subsection 13(7) of the Customs Act.

43. Item 40 repeals the heading of section 14 of the Customs Act and substitutes a new heading; being "Flag". Item 41 omits the reference to "Customs" in section 14 of the Customs Act and substitutes with "Australian Border Force (within the meaning of the Australian Border Force Act 2015)".

44. The references to "Customs" in this context are references to the ACBPS as established by the Customs Administration Act. As this Act is to be repealed by amendments in Schedule 2, the references to "Customs" are redundant.

Item 43 - Section 17

45. This item repeals section 17 of the Customs Act, which concerns the appointment of sufferance wharfs and provides that the CEO may by Gazette notice; appoint sufferance wharfs in any port. Sufferance wharfs are a redundant concept and are removed.

Items 45 to 47 - Subsections 20(1), (2) and (3); paragraph 20(4)(b); and paragraph 20(5)(a)

46. These items omit references to "Customs officers" in subsections 20(1), (2) and (3), and paragraphs 20(4)(b) and (5)(a) of the Customs Act and substitute a new reference to "officers of Customs". These are technical amendments to ensure that references to "officers of Customs" are consistent in the Customs Act.

Item 49 - Section 27

47. This item repeals section 27 of the Customs Act, which concerns State inspection laws and provides that, if the Governor-General shall so direct by proclamation any State Act relating to the inspection or testing of imported goods may be executed and enforced by the Customs. This section is now redundant and is repealed.

Items 85, 87 and 91 - Section 44 (heading); section 45 (heading); and section 46 (heading)

48. Items 85 and 87 repeal the references to "bond" in the heading of sections 44 and 45 of the Customs Act and substitute with "securities".

49. Item 91 repeals the reference to "sureties" in the heading of section 46 of the Customs Act and substitutes with "securities".

50. These are technical amendments to ensure that the wording in these headings is consistent with other provisions in the Customs Act. For example, the heading of amended section 47 of the Customs Act (with the omission of "Customs") reads "Form of security".

Item 97 - At the end of paragraph 48(2)(a)

51. This item is a technical amendment and inserts the word "or" after paragraph 48(2)(a) of the Customs Act to ensure consistency in subsection 48(2).

Item 126 - Subsection 64ABAA(7)

52. This item is a technical amendment to reflect the amendment made by item 3 above and omits the redundant reference to "CEO" in subsection 64ABAA(7) of the Customs Act.

Items 131 and 136 - Subsection 64ACA(1) (note 1); and section 64ACA(11)

53. Item 136 repeals subsection 64ACA(11) of the Customs Act, which provides that, as soon as practicable after information is reported under this section, Customs must provide the information to the Department administered by the Minister who administers the Migration Act 1958.

54. From 1 July 2015, the ACBPS is to be abolished and its functions will be incorporated into the Department. As a consequence, subsection 64ACA(11) is redundant and is repealed.

55. Consequently, the reference to "(and the obligation in subsection (11))" in note 1 under subsection 64ACA(1) of the Customs Act is also redundant and is omitted (see item 131 of Part 1 of this Schedule).

56. Item 132 will omits the redundant reference "to the Migration Department" in note 2 under subsection 64ACA(1) of the Customs Act and substitutes with "under the Migration Act 1958".

Item 137 - Subsection 64ACA(12)

57. This item repeals subsection 64ACA(12) of the Customs Act and substitutes a new subsection. New subsection 64ACA(12) provides that information obtained by the Department under this section is taken to be obtained by the Department for the purposes of the administration of this Act, the Migration Act 1958, and any other law of the Commonwealth prescribed by regulations for the purposes of this subsection.

58. This amendment is a consequence of the abolition of the ACBPS and the integration of its functions into the Department.

Items 139 and 143 - Subsection 64ACB(1) (note 1) and section 64ACB(8)

59. Item 143 repeals subsection 64ACB(8) of the Customs Act, which provides that, as soon as practicable after information is reported under this section, Customs must provide the information to the Department administered by the Minister who administers the Migration Act.

60. As noted above, the ACBPS will be abolished and its functions will be incorporated into the Department. As a consequence, subsection 64ACB(8) is redundant and is repealed.

61. Consequently, the reference to "(and the obligation is in subsection (8))" under subsection 64ACB(1) of the Customs Act is also redundant and is omitted (see item 139 of Part 1 of this Schedule).

62. Item 140 will omits the redundant reference "to the Migration Department" in note 2 under subsection 64ACB(1) of the Customs Act and substitutes with "under the Migration Act 1958".

Item 144 - Subsection 64ACB(9)

63. This item repeals subsection 64ACB(9) of the Customs Act and substitutes a new subsection. New subsection 64ACB(9) provides that information obtained by the Department under this section is taken to be obtained by the Department for the purposes of the administration of this Act, the Migration Act, and any other law of the Commonwealth prescribed by regulations for the purposes of this subsection.

64. This amendment is a consequence of the abolition of the ACBPS and the integration of its functions into the Department

Item 145 - Section 64ACC (heading)

65. Similar to the amendments made by item 136 above, this amendment reflects the abolition of the ACBPS and incorporates its functions into the Department. This amendment removes the redundant concept relating to the transfer of information to the Department in the heading of section 64ACC and provides a new heading clarifying that information does not have to be reported if it has already been reported under the Migration Act.

Items 153 and 154 - Subsection 65(1) and section 65(2)

66. Item 153 omits the reference to "at the Customs house nearest to the place where the ship was lost or wrecked or at the chief Customs house of the State where the ship was lost or wrecked" in subsection 65(1) of the Customs Act.

67. Item 154 omits the reference to ", as far as it may be possible for him or her to do so, at the Customs House nearest to the place where the aircraft was lost or wrecked", substitutes "so far as it may be possible for him or her to do so" in subsection 65(2) of the Customs Act.

68. Section 65 of the Customs Act concerns an offence relating to reporting of wrecked ships or aircrafts to Customs and relevantly provides that, when any ship is lost or wrecked upon the coast the master or owner shall without any unnecessary delay make report of the ship and cargo by delivering to the Collector a Manifest so far as it may be possible for him or her to do so at the Customs house nearest to the place where the ship was lost or wrecked or at the chief Customs house of the State where the ship was lost or wrecked.

69. Currently, the reference to "Customs house" in section 65 of the Customs Act relates to an office of the ACBPS. The ACBPS will be abolished from 1 July 2015 and its functions are to be incorporate into the Department. These amendments will ensure that relevant Manifests are provided to the Collector.

Item 238 - Subsection 71A(3)

70. This item repeals subsection 71A(3) of the Customs Act and substitutes a new subsection. New subsection 71A(3) provides that a documentary import declaration must be communicated to the Department:

•

by giving or sending it to an officer doing duty in relation to import declarations at the place at which the goods are to be delivered for home consumption; or

•

by leaving it at a place:

-

that has been allocated for lodgement of import declarations by notice published on the Department's website; and

-

that is where the goods are to be delivered for home consumption.

71. The existing subsection requires that import declarations be communicated to Customs, including by leaving it in a Customs Office. The reference to "Customs" in this context is a reference to the ACBPS as established by the Customs Administration Act. As this Act is to be repealed by amendments in Schedule 2, the references to "Customs" are redundant.

72. This amendment will require import declarations be communicated to the Department, including by leaving it at a place published on the Department's website.

Items 243 and 257 - Paragraph 71C(2)(a); and paragraph 71DJ(2)(a)

73. These items omit the reference to "in a Customs office that has been allocated for collection of such advices" in paragraphs 71C(2)(a) and 71DJ(2)(a) of the Customs Act and substitute with "that has been allocated for collection of such advices by notice published on the Department's website".

74. The existing paragraphs require that the import declaration and warehouse declaration advices be made available for collection from a Customs office. The reference to "Customs" in this context is a reference to the ACBPS as established by the Customs Administration Act. As this Act is to be repealed by amendments in Schedule 2, the references to "Customs" are redundant. These amendment will omit the redundant reference to "Customs" and replace it with the more appropriate reference that refers to the "Department's website".

75. These amendments will require that the Department must provide for the advices to be collected at a specified location.

Item 253 - Subsection 71DH(3)

76. This item repeals subsection 71DH(3) of the Customs Act and substitutes a new subsection. New subsection 71DH(3) provides that a documentary warehouse declaration must be communicated to the Department:

•

by giving or sending it to an officer doing duty in relation to warehouse declarations at the place at which the goods are to be delivered for warehousing; or

•

by leaving it at a place:

-

that has been allocated for lodgement of warehouse declarations by notice published on the Department's website ; and

-

that is where the goods are to be delivered for warehousing.

77. The existing subsection requires that the warehouse declaration be communicated to Customs, including by leaving it in a Customs Office. The reference to "Customs" in this is a reference to the ACBPS as established by the Customs Administration Act. As this Act is to be repealed by amendments in Schedule 2, the references to "Customs" are redundant.

78. This amendment will require the warehouse declaration to be communicated to the Department, including by leaving it at a place published on the Department's website.

Items 295, 296 and 638 - Subsection 77F(1) (definition of International Mail Centre ); after subsection 77F(1); and subsection 183UA(2)

79. Item 295 omits the reference to "a place approved in writing by the CEO under this section" in the definition of "International Mail Centre" under subsection 77F(1) of the Customs Act.

80. Item 296 inserts a new subsection (1A) into subsection 77F(1) of the Customs Act. The new subsection 77F(1A) provides that, for the purposes of the definition of "International Mail Centre" in subsection 77F(1), the Comptroller-General of Customs may, by writing, approve a place as a place for the examination of international mail.

81. Item 638 repeals subsection 183UA(2) of the Customs Act and substitutes a new subsection. New subsection 183UA(2) provides that, for the purposes of paragraph (f) of the definition of "Customs place" in subsection 183UA(1), the Comptroller-General of Customs may, by legislative instrument, approve a place as a place for the examination of international mail.

82. The Customs Administration Act, which establishes the statutory office of the CEO, will be repealed by Schedule 2 below. As a result, the office of the CEO will be abolished. These amendments repeal the redundant references to "CEO" and provide for relevant powers to be exercisable by the Comptroller-General of Customs.

Item 318 - Subsection 77LA(5)

83. This item repeals the reference to "officers who regularly perform their functions for Customs would be able conveniently to check" in subsection 77LA(5) of the Customs Act and substitutes with "officers of Customs regularly perform their functions for those officers to be able to conveniently check".

84. Subsection 77LA(5) contains a requirement that the CEO must not grant an application for the substitution of the description of a place not currently described in a depot licence if, in the CEO's opinion, the place would be too remote from the nearest place where officers who regularly perform their functions for Customs would be able conveniently to check whether the Customs Acts are being complied with at the place.

85. The reference to "Customs" in this context is a reference to the ACBPS as established by the Customs Administration Act. As this Act is to be repealed by amendments in Schedule 2, the references to "Customs" are redundant. This amendment omits the redundant reference that refers to "Customs" and replaces it with a more appropriate reference to "officer of Customs".

Item 344 - Subsection 78(2)

86. This item repeals subsection 78(2) of the Customs Act. Subsection 78(2) provides that "CEO" in Part V of the Act shall be read as including a reference to a Regional Director for a State or Territory.

87. The Customs Administration Act, which establishes the statutory office of the CEO, will be repealed by Schedule 2 below. As a result, the office of the CEO will be abolished. This amendment repeals the redundant term. This is a technical amendment to remove the redundant reference to "CEO and redundant references to "Regional Directors".

Items 372, 381, 514, 787 and 807 - Paragraph 83(3)(a); paragraph 83(4)(a); paragraph 126E(1)(c); paragraph 269F(4)(a); and Paragraph 269SB(3)(a)

88. Item 372 repeals paragraph 83(3)(a) of the Customs Act and substitutes a new paragraph. New paragraph 83(3)(a) provides that subject to subsection 83(4), where a warehouse licence has not been renewed and goods remain in the former warehouse, the Comptroller-General of Customs shall by notice, published on the Department's website, inform the owners of goods in the former warehouse.

89. Item 381 repeals paragraph 87(4)(a) of the Customs Act and substitutes a new paragraph. New paragraph 87(4)(a) provides, in effect, that subject to subsection 87(5), if the Comptroller-General of Customs cancels a warehouse licence under this section, he or she must by notice, publish on the Department's website, inform the owners of goods in the place that was the warehouse of certain matters. These two items omit redundant references to Customs Houses and other offices of Customs.

90. Item 514 omits the reference to "website maintained by Customs" in paragraph 126E(1)(c) of the Customs Act and substitutes with "Department's website".

91. Items 787 and 807 omit the references to "at Customs House, Canberra" in paragraphs 269F(4)(a) and 269SB(3)(a) of the Customs Act and substitute with "by notice published on the Department's website". This item omits the redundant reference to Customs House.

92. The reference to "Customs" in is context is a reference to the ACBPS as established by the Customs Administration Act. As this Act is to be repealed by amendments in Schedule 2, the references to "Customs" are redundant. These amendments omit the redundant references to "Customs" and replace it with a more appropriate reference that refers to the "Department's website". The power under these provisions will now be exercisable by the Comptroller-General of Customs.

Item 525 - At the end of Part VIA

93. This item inserts a new clause 126H into Part VIA of the Customs Act. New clause 126H provides the Comptroller-General of Customs with an ability to arrange for the use of computer programs to make decisions.

94. Subclause 126H(1) provides that the Comptroller-General of Customs may arrange for the use, under the control of the Comptroller-General of Customs, of computer programs for any purpose for which the Comptroller-General, a Collector or an officer may or must under the provisions mentioned in subsection 126H(3):

•

make a decision; or

•

exercise any power or comply with any obligation; or

•

do anything else related to making a decision, exercising a power, or complying with an obligations.

95. Subclause 126H(2) provides that the Comptroller-General of Customs, Collector or officer (as the case requires) is taken to have:

•

made a decision; or

•

exercised a power, or complied with an obligation; or

•

done something else related to the making of a decision, the exercise of a power, or the compliance with an obligation;

that was made, exercised, complied with, or done (as the case requires) by the operation of a computer program under an arrangement made under subclause 126H(1).

96. Subclause 126H(3) specifies the provisions to which subclause 126H(1) applies, being Parts IV and VI of the Customs Act and any provisions in the Customs Act or the regulations that the Comptroller-General of Customs determines by a legislative instrument. Parts IV and VI of the Customs Act are primarily concerned with the reporting of goods that are being imported into Australia or are proposed to be exported from Australia respectively. Part IV also deals with the reporting of ships and aircraft that are arriving in Australia. Therefore the types of decisions to which section 126H will apply will mainly be those related to the clearance of goods either into home consumption or for export.

97. For example, under section 71C of the Customs Act, a decision to grant, or refuse to grant, an authority to deal with imported goods that are entered for home consumption on an import declaration will in most instances be an automated decision. These types of decisions have been automated since the early 1990s.

98. The amendments in this item acknowledge that many decisions under the Customs Act are made electronically, without the intervention of a natural person. These amendments will attribute such electronic decisions to a natural person for the purposes of, for example, challenging these decisions.

Item 530 - Subsection 131A(1)

99. Item 530 is a technical amendment and omits the reference to "(1)" in subsection 131A of the Customs Act.

Item 571 - Paragraphs 161G(b) and (f)

100. This item omits the reference to "for Customs purposes" in paragraphs 161B(b) and (f) of the Customs Act and substitutes with "for the purpose of this Act".

101. The reference to "Customs" in this context is a reference to the ACBPS as established by the Customs Administration Act. As this Act is to be repealed by amendments in Schedule 2, the references to "Customs" are redundant. This amendment omits the redundant reference to "Customs" and replaces it with a more appropriate reference to "this Act".

Item 590 - Subsection 167(3)

102. This item is technical amendment to remove a redundant reference to "Subject to subsection (3B), for" in subsection 167(3) of the Customs Act.

Items 594 and 595 - Subsection 180(1) and subsection 180(2)

103. Item 595 omits subsection 180(2) of the Customs Act, which provides that a reference in this Part, other than in subsection 181(2), 183CC(5), 183CJ(1), 183CQ(4), (5) or (7) or 183CR(3) or in section 183CS, 183D, 183DA, 183DC, 183DD or 183S, to the CEO shall be read as including a reference to a Regional Director for a State or Territory.

104. Similar to the amendments made by item 344 above, subsection 180(2) is omitted because it contains references to the redundant terms "CEO" and "Regional Director of a State or Territory".

105. Item 594 which omits the reference to "(1)" in section 180 of the Customs Act, is a technical amendment and is consequential to the amendment by item 595.

Item 611 - Subsection 183CJ(1)

106. This item repeals subsection 183CJ(1) of the Customs Act and substitutes a new subsection. New subsection 183CJ(1) of the Customs Act provides that, if a customs broker, within 2 months before the date on which his or her broker's licence is due to expire, applies in writing to the Comptroller-General of Customs for the renewal of the licence, the Comptroller-General of Customs must, by writing, renew the licence unless:

•

the Comptroller-General of Customs has given an order under paragraph 183CS(1)(d) in relation to the licence; or

•

the customs broker is, because of section 183CK, not entitled to hold a broker's licence.

107. The Customs Administration Act, which establishes the statutory office of the CEO, will be repealed by Schedule 2 below. As a result, the office of the CEO will be abolished. This amendment omits redundant references to the redundant reference to "CEO" and "Regional Director of a State or Territory" and replaces it with a more appropriate reference to "Comptroller-General of Customs". The power under this provision will now be exercisable by the Comptroller-General of Customs.

Item 615 - Section 183CP

108. Item 615 is a technical amendment that omits the reference to "agent" in section 183CP of the Customs Act and substitutes with "broker".

Item 618 - Subsection 183CQ(5)

109. This item repeals subsection 183CQ(5) of the Customs Act and substitutes a new subsection. New subsection 183CQ(5) provides that, if the Comptroller-General of Customs gives notice in accordance with this section to a customs broker, the Comptroller-General of Customs must refer the question whether the Comptroller-General of Customs should take action in relation to the licence under subsection 183CS(1) to the Committee, for investigation and report to the Comptroller-General of Customs.

110. The Customs Administration Act, which establishes the statutory office of the CEO, will be repealed by Schedule 2 below. As a result, the office of the CEO will be abolished. This amendment repeals the redundant term. This amendment omits redundant references to "CEO" and "Regional Director of a State or Territory" and replaces it with a more appropriate reference to "Comptroller-General of Customs". The power under this provision will now be exercisable by the Comptroller-General of Customs.

Item 622 - Subsection 183CR(3)

111. This repeals subsection 183CR(3) in the Customs Act and substitutes a new subsection. New subsection 183CR(3) provides that a suspension of a licence by the Comptroller-General of Customs under subsection (1) has effect until the suspension is revoked by the Comptroller-General of Customs or the Comptroller-General of Customs has dealt with the matter in accordance with section 183CS, whichever occurs first.

112. The Customs Administration Act, which establishes the statutory office of the CEO, will be repealed by Schedule 2 below. As a result, the office of the CEO will be abolished. This amendment repeals the redundant term. This amendment omits redundant references to "CEO" and "Regional Director of a State or Territory" and replaces it with a more appropriate reference to "Comptroller-General of Customs. The power under this provision will now be exercisable by the Comptroller-General of Customs.

Items 634, 635 and 636 - Subsection 183UA(1) (paragraph (aa) of the definition of Customs place ), subsection 183UA(1) (paragraph (f) of the definition of Customs place ) and subsection 183UA(1) (note at the end of the definition of Customs place )

113. Item 634 omits the reference to "Customs" in paragraph (aa) of the definition of "Customs place" under subsection 183UA(1) of the Customs Act and substitutes with "the Commonwealth for use for the purposes of the Customs Act".

114. Item 635 omits the reference to "a place that is approved, in writing by the CEO" in paragraph (f) of the definition of "Customs place" under subsection 183UA(1) of the Customs Act and substitutes with "a place approved in an instrument under subsection (2)".

115. Item 636 omits the note under the definition of "Customs place" under subsection 183UA(1) of the Customs Act.

116. The Customs Administration Act, which establishes the ACBPS and the statutory office of the CEO, will be repealed by Schedule 2 below. As a result, the ACBPS and the office of the CEO. These amendments will omit the redundant references to "Customs" and "CEO" and clarify the intended meaning of "Customs place" under the new construct.

Items 652 to 654 - Subsection 189A(5) (definition of authorised arms issuing officer ); subsection 189(5) (definition of officer authorised to carry arms ); and at the end of section 189A

117. Item 652 repeals the definition of "authorised arms issuing officer" under subsection 189A(5) of the Customs Act and substitutes a new definition. The new term is defined to mean an officer of Customs authorised under subsection 189A(6) to exercise the powers to perform the functions of an authorised arms issuing officer under this section.

118. Item 653 repeals the definition of "officer authorised to carry arms" under subsection 189A(5) and substitutes a new definition. The new definition is defined to mean an officer of Customs authorised under subsection 189A(7) to use approved firearms and approved items of personal defence equipment issued by an authorised arms issuing officer for the purpose specified in paragraph 189A(1)(a).

119. Item 654 inserts a new subclauses (6) and (7) into section 189A of the Customs Act. New subclause 189A(6) provides that the Comptroller-General of Customs may, by writing, authorise an officer of Customs to exercise the powers or perform the functions of an authorised arms issuing officer under this section.

120. New subclause 189A(7) provides that the Comptroller-General of Customs may, by writing, authorise an officer of Customs to use approved firearms and approved items of personal defence equipment issued by an authorised arms issuing officer for the purpose specified in paragraph 189A(1)(a).

121. The Customs Administration Act, which establishes the statutory office of the CEO, will be repealed by Schedule 2 below. As a result, the office of the CEO . This amendment repeals the redundant term. The power under this provision will now be exercisable by the Comptroller-General of Customs.

Item 656 - Subsection 194(1)

122. This item is a technical amendment to remove a reference to "Customs" and omits that reference in subsection 194(1) of the Customs Act and substitutes with "Australian Border Force (within the meaning to the Australian Border Force Act 2015)".

123. The reference to "Customs" in this context is a reference to the ACBPS as established by the Customs Administration Act. As this Act is to be repealed by amendments in Schedule 2, the references to "Customs" are redundant.

124. This amendment will omit the redundant reference to "Customs" and replace it with the reference to the ABF.

Item 661 - Subsection 203T(2)

125. This item is a technical amendment and omits the reference to "Comptroller" in subsection 203T(2) and substitutes with "Comptroller-General of Customs.

Item 703 - Section 217

126. This item is a technical amendment and omits the reference to "Customs business" in section 217 of the Customs Act and substitutes with "Customs Acts".

127. The reference to "Customs" in this context is a reference to the ACBPS as established by the Customs Administration Act. As this Act is to be repealed by amendments in Schedule 2, the references to "Customs" are redundant and are repealed. This amendment omits the reference to "Customs" and replaces it with a more appropriate reference to the Customs Act.

Item 707 - Section 219

128. This item repeals section 219 of the Customs Act. Section 219 concerns the general powers of a Collector and is redundant as a result of the amendments made by item 28 above.

Item 711 - Paragraph 219RAA(1)(a)

129. This item is a technical amendment and omits the reference to ", at the discretion of Customs" in paragraph 219RAA(1)(a) of the Customs Act.

130. The reference to "Customs" in this context is a reference to the ACBPS as established by the Customs Administration Act. As this Act is to be repealed by amendments in Schedule 2, the references to "Customs" are redundant and are repealed.

Item 747 - Subsection 234(2C)

131. This item omits the reference to ", (2BB)" in subsection 234(2C) of the Customs Act. This is a technical amendment made in consequence of the amendments in items 581 and 744, which repeals subsection 234(2BB) of the Customs Act and provides for relevant application communicated by computer under section 162AA(2) to a Collector.

Item 765 - Paragraph 243SA(2)(a)

132. This item omits the reference to "Customs" in paragraph 243SA(2)(a) of the Customs Act and substitutes with "a monitoring officer".

133. The reference to "Customs" in this context is a reference to the ACBPS as established by the Customs Administration Act. As this Act is to be repealed by amendments in Schedule 2, the references to "Customs" are redundant. This amendment will omit the redundant reference to "Customs" and replace it with the more appropriate reference to "a monitoring officer".

Item 836 - Subsection 269ZZYH(1)

134. This item omits the reference to "CEO, or an officer of Customs" in subsection 269ZZYH(1) of the Customs Act and substitutes with "an officer of Customs".

135. The reference to "Customs" in this context is a reference to the ACBPS as established by the Customs Administration Act. As this Act is to be repealed by amendments in Schedule 2, the references to "Customs" are redundant. This amendment will omit the redundant reference to "CEO" and replaces it with a more appropriate reference to "Comptroller-General of Customs". The term "Comptroller-General of Customs" has not been substituted for "CEO" because the Comptroller-General will be an officer of Customs.

Item 837 - Subsection 270(1)

136. This item omits the reference to "or for the conduct of any business relating to the Customs" in subsection 270(1) of the Customs Act.

137. The reference to "Customs" in this context is a reference to the ACBPS as established by the Customs Administration Act. As this Act is to be repealed by amendments in Schedule 2, the references to "Customs" are redundant. This amendment omits the redundant reference to "Customs" in the regulation making power.

Item 853 - Section 273HA

138. This item repeals section 273HA of the Customs Act. This section is redundant.

Item 856 - Subsection 275A(1)

139. This item omits the reference to "the Customs" in subsection 275A(1) of the Customs Act and substitutes with "this Act".

140. The reference to "Customs" in this context is a reference to the ACBPS as established by the Customs Administration Act. As this Act is to be repealed by amendments in Schedule 2, the references to "Customs" are redundant. This amendment omits the redundant reference to "Customs" and replaces it with the more appropriate reference to the Customs Act.

Item 857 - Subsection 275A(4)

141. This item repeals subsection 275A(4) of the Customs Act and substitutes a new subsection. New subsection 275A(4) provides that, if a Collector (not being the Comptroller-General of Customs) gives a direction under subsection 275A(1) not to move a ship or aircraft from a boarding station, the Collector must as soon as practicable notify the Comptroller-General of Customs of the giving of the direction.

142. The reference to "Customs" in this context is a reference to the ACBPS as established by the Customs Administration Act. As this Act is to be repealed by amendments in Schedule 2, the references to "Customs" are redundant. This amendment omits the redundant reference to "CEO" and "Director of a State or Territory" and replaces it with a more appropriate reference to "Collector" and "Comptroller-General of Customs".

Item 859 - Paragraph 275A(5)(b)

143. This item omits the reference to "the Customs" in paragraph 275A(5)(b) of the Customs Act and substitutes with "this Act".

144. The reference to "Customs" in this context is a reference to the ACBPS as established by the Customs Administration Act. As this Act is to be repealed by amendments in Schedule 2, the references to "Customs" are redundant. This amendment omits the redundant reference to "Customs" and replaces it with the more appropriate reference to the Customs Act.

Item 861 - Schedule I

145. This item omits the reference to "the Customs of" in Schedule I of the Customs Act.

146. The reference to "Customs" in the context of this provision Act is a reference to the ACBPS as established by the Customs Administration Act. As this Act is to be repealed by amendments in Schedule 2, the references to "Customs" are redundant. This amendment omits the redundant reference to "Customs".

Items substituting the reference to CEO with Comptroller-General of Customs

147. The items in Table 2 amend the provisions of the Customs Act in Table 3 to omit references to "CEO" and substitute with "Comptroller-General of Customs" or in the person's capacity as the Comptroller-General of Customs.

148. For example:

•

Subsection 4A(1) will be amended to read "In this Act, a reference to an approved form is a reference to a form that is approved, by instrument in writing, by the Comptroller-General of Customs.

•

Subsection 77K(4) will be amended to read "The Comptroller-General of Customs may refuse to grant a depot licence if, in his or her opinion, the place in relation to which the licence is sought would be too remote from the nearest place where officers of Customs regularly perform their functions for the those officers to be able to conveniently check where the Customs Act are be complied with at the place.

•

Subsection 67EB(1) will be amended such that the Comptroller-General must not register as person as a special reporter if the applicant has not satisfied the Comptroller-General of certain matters. At present, Customs must be satisfied of these matters. The amendments to these sections will confer functions currently exercisable by the CEO on the Comptroller-General of Customs which is more appropriate to these circumstances.

149. The Customs Administration Act, which establishes the statutory office of the CEO, will be repealed by Schedule 2 below. As a result, the office of the CEO ceases to exist. These amendments repeal the redundant references to "CEO" and replace them with more appropriate references to "Comptroller-General of Customs". The functions and powers under these provisions are now exercisable by the Comptroller-General of Customs.

150. Relevantly, these amendments support the amendments made at item 26 above, which provides for the Comptroller-General of Customs to administer the Customs Act.

Items substituting the reference to Customs with the Department

151. The items in Table 4 amend the provisions of the Customs Act in Table 5 to omit references to "Customs" and substitute with "the Department".

152. The word "Customs" is frequently referred to in the Customs Act as the entity to which information is to be communicated or given. As the ACBPS will be abolished, these amendments will mean that the information will be required to be communicated to the Department. As the integrated Department will administer the Customs Act where appropriate references to "Customs" are substituted with a reference to "the Department".

153. For example:

•

Subsection 64(2) will be amended to provide that, if the ship or aircraft is due to arrive at a port or airport in Australia (whether the first port or airport or any subsequent port or airport on the same voyage or flight), the operator must report to the Department, in accordance with this section, the impending arrival of the ship or aircraft. Under existing subsection 64(2), such reports must be made to Customs.

154. Other references to "Customs" will be substituted with "Collector", "the Commonwealth", "Comptroller-General of Customs" or "an officer of Customs", where appropriate. These will be further explained below.

Items substituting the reference to Customs with Collector

155. The items in Table 6 amend the provisions of the Customs Act in Table 7 to omit references to "Customs" and substitute with "Collector".

156. In these sections, it is more appropriate to the functions and powers are exercisable by, or relate to, a natural person.

157. For example:

•

Subsection 70(2) will be amended to provide that a person who has imported or proposes to import goods referred to in paragraph 70(1)(a) of the definition of "special clearance goods" may apply to the Collector at any time, in writing, for permission to deliver the goods into home consumption without entering them for that purpose. Under existing subsection 70(2), such an application must be made to Customs.

Items substituting the reference to Customs with Department and Collector

158. Items 4, 242, 256, 433, 463, 507and 511 amend the provisions of the Customs Act in Table 8 to substitute "Customs" with "Department" and "Collector".

159. For example:

•

Subsection 106G(2) will be amended to provide that an operator who reports electronically under paragraph 106G(1)(a)(i) is to taken to have reported to the Department when a Collector sends acknowledgement of the report to the person identified in the report as having made it.

160. The reference to "Customs" in the provisions in the table above conveys both "Customs" as the Statutory Agency that administers the Customs Act and ability to exercise a power under the Act, i.e. give declaration advices. These references to "Customs" will become redundant as a result of the repeal of the Customs Administration Act by Schedule 2 below. These references to "Customs" in the above provisions will be amended to recognise the Department's administration of matters under the Customs Act and the Collector's ability to exercise a power under the Act.

Items substituting the reference to Customs with the Commonwealth

161. The items in Table 9 amend the provisions of the Customs Act in Table 10 to omit references to "Customs" and substitute with "the Commonwealth".

162. In these provisions, it is more appropriate to refer to the Commonwealth.

163. For example:

•

Subsection 42(1) will be amended to provide that the Commonwealth shall have the right to require and take securities for compliance with the Customs Act, for compliance with conditions or requirement to which the importation or exportation of goods is subject and generally for the protection of the revenue of the Commonwealth, and pending the giving of the required security in relation to any goods subject to customs control may refuse to deliver the goods or to give any authority to deal with the goods. Under existing subsection 42(1), Customs has the right to require and take securities.

164. Some of these sections relate to payments that are currently made by Customs, or are required to be made to Customs. Some of these provisions give Customs certain legal rights over goods and also give Customs the right to take securities in certain circumstances. In these circumstances, it is considered appropriate that these provisions should refer to a legal personality, the Commonwealth.

Items substituting the reference to Customs with the Comptroller-General of Customs

165. Items 156, 159, 177, 398, 521, 589 and 854 amend the provisions of the Customs Act in Table 11 to omit references to "Customs" and substitute with "the Comptroller-General of Customs".

166. For example:

•

Section 44 will be amended to provide that, when security is required for any particular purpose, security may by the authority of the Comptroller-General of Customs be accepted to cover all transactions for such time and for such amounts as the Comptroller-General of Customs may approve. Existing section 44 security is taken by the authority of the Customs. These amendments acknowledge that these provisions should refer to a natural person.

Items substituting the reference to Customs with the officer or an officer of Customs

167. The items in Table 12 amend the provisions of the Customs Act in Table 13 to omit references to "Customs" and substitute with "officer" or "officer of Customs".

168. For example:

•

Subsection 67EF(4) will be amended to provide that the special reporter must provide an officer of Customs with online access to the information stored and retained under subsection (1) and with the capacity to download that information, or a part of that information, at any time as required by an officer of Customs. The current provision requires the access to be provided to Customs

•

Paragraph 209N(1)(c) will be amended to provide that an officer of Customs may, instead of seizing goods under section 203B, permit a person to surrender the goods to the officer in a section 234AA place if the person has indicated to the officer, in writing, that he or she intends to surrender the goods. The current provision requires the indication to be given to Customs.

169. In these provisions, it is more appropriate to the functions and powers are exercisable by or relate to a natural person.

Items substituting references to CEO or by a Regional Director of a State or Territory with Comptroller-General of Customs

170. The items in Table 14 amend the provision of the Customs Act in Table 15 to omit references to "CEO or by a Regional Director of a State or Territory" and substitute with "Comptroller-General of Customs".

171. These amendments will omit redundant references to "CEO" and "Regional Director of a State or Territory".

Items substituting references to the control of Customs with customs control

172. The items in Table 16 amend the provisions of the Customs Act in Table 17 to omit references to "the control of Customs" and substitute with "customs control".

173. The expression "the control of Customs" refers to the ACBPS established under the Customs Administration Act. This new terminology will be "customs control". The circumstances in which goods are subject to customs control will still be set out in section 30 of the Customs Act and is these circumstances are unchanged.

174. For example:

•

Subsection 34 will be amended to provide that the Commonwealth shall not be liable to for any loss or damage occasioned to any goods subject to customs control except by the neglect or wilful act of some officer.

Items relating to references to the Customs Administration Act

175. Item 640 omits the reference to "Without limiting the generality of the power conferred on the CEO under subsection 4(4) of the Customs Administration Act 1985, the CEO may, by legislative instrument, give directions under that subsection concerning" in section 183UC of the Customs Act and substitutes with "The Comptroller General of Customs may, by legislative instrument, give directions concerning".

176. Item 650 omits the reference to "Without limiting the matters that may be the subject of directions under subsection 4(4) of the Customs Administration Act 1985 as modified by section 183UC, the CEO may give directions under that modified subsection" in subsection 189A(2) of the Customs Act and substitutes "The Comptroller General of Customs may, by legislative instrument, give directions".

177. Item 658 omits the reference to "law of Customs within the meaning of the Customs Administration Act 1985" in subsection 198(8) of the Customs Act and substitutes with "law of the Commonwealth".

178. Item 726 omits the reference to "Without limiting subsection 4(4) of the Customs Administration Act 1985, the CEO must, by legislative instrument, give directions under that subsection" in section 219ZJE and substitute with "The Comptroller General of Customs must, by legislative instrument, give directions".

179. Item 735 omits the reference to "law of Customs within the meaning of the Customs Administration Act 1985" in subparagraph 233BABAF(3)(d)(ii) of the Customs Act and substitutes with "Australian Border Force Act 2015".

180. Item 799 omits the reference to "section 16 of the Customs Administration Act 1985" in subsection 269M(6) and substitutes with "Part 6 of the Australian Border Force Act 2015".

181. Item 849 omits "section 16 of the Customs Administration Act 1985" in subsection 273GAB(1)(note) and substitutes with "Part 6 of the Australian Border Force Act 2015".

182. These amendments are necessary to reflect the amendments in this Part and those in Schedule 2, which will repeal the Customs Administration Act.

Items relating to other references to Customs

183. The items in Table 18 amend the provisions of the Customs Act in Table 19 to omit the reference to the redundant term "Customs" or phrases containing "Customs".

184. In these instances, it is not necessary to include any substituted terms. For example, in section 244, Customs prosecutions are described as proceedings by the Customs for the recovery of penalties under the Customs Act. The amendment to this section will remove the phrase "by the Customs" and it is not necessary to include any substitute phrase.

Part 2 - Saving and transitional provisions

185. This Part provides for saving and transitional provisions apply to provisions of the Customs Act as amended by Part 1 of this Schedule.

186. These saving provisions and transitional provisions will ensure that relevant authorisations, licences, permissions, delegations, requests, approvals, proceedings initiated, and other matters by the CEO continue in force and have effect as if they were done by the Comptroller-General of Customs.

187. Items 871 to 964 contain saving provisions for all the amendments made by Part 1 of this Schedule to ensure that, despite amendments made by Part 1, the ongoing operation of various matters under the Customs Act, including notices, permissions, licences, approvals, given, granted by the CEO is not affected.

188. Below are some examples of the operation of saving provisions and transitional provision that are made for the amendments in Part 1.

189. For example:

Transitional provisions relating to officers of Customs

190. Item 2 in Part 1 of this Schedule repeals the definition of "authorised officer" and substitutes a new definition. The new definition in effect replicates the existing definition and the only change in the definition is that the authorisation will be done under new subsection 4(1AA) which is to be inserted by item 18 of Schedule 1.

191. Items 862 to 870 contain transitional provisions for this amendment.

192. Item 862 preserves authorisations that were given before the commencement of this item by the CEO under the definition of "authorised officer" to a named person covered by paragraph (a) of the definition of "Officer of Customs" in relation to a section of the Customs Act and was in force immediately before the commencement, as if it were authorisations given by the Comptroller-General of Customs under subsection 4(1AA) to a named person covered by paragraph (c) of the new definition of "officer of Customs" in relation to the section of the Act in which the authorisation was originally given for.

193. Item 863 preserves authorisations that were given before the commencement of this item by the CEO under the definition of "authorised officer" to a named person covered by paragraph (b) or (ba) of the definition of "Officer of Customs" in relation to a section of the Customs Act and was in force immediately before the commencement, as if it were authorisations given by the Comptroller-General of Customs under subsection 4(1AA) to a named person covered by paragraph (d) or (e) of the new definition of "officer of Customs" in relation to the section of the Act in which the authorisation was originally given for.

194. Item 864 preserves authorisations that were given before the commencement of this item by the CEO in relation to a person mentioned in paragraph (b) of the definition of "Officer of Customs" and was in force immediately before the commencement, as if it were authorisations given by the Comptroller-General of Customs under subsection 4(1B) to a person covered by paragraph (c) of the new definition of "officer of Customs".

195. Item 865 applies to a delegation that was in force under section 14 of the Customs Administration Act immediately before the commencement of this item in relation to a person covered by paragraph (b) of the definition of "Officer of Customs" and provides for the delegation to continue to be in force on and after the commencement as if it were a delegation in force under subsection 54(1) of the ABF Act in relation to paragraph (b) of the new definition of IBP worker.

196. Item 866 applies to an instrument that was made before the commencement of this item by the CEO as mentioned in paragraph (ba) of the definition of "Officer of Customs" that was in force immediately before the commencement of this item and provides for the instrument to continue to be in force on and after the commencement as if it were an instrument made by the Comptroller-General of Customs under new subsection 4(1C) of the Customs Act.

197. Item 867 applies to a delegation that was in force under section 14 of the Customs Administration Act immediately before the commencement of this item in relation to a person covered by paragraph (ba) of the definition of "Officer of Customs" and provides for the delegation to continue to be in force on and after the commencement as if it were a delegation in force under subsection 54(1) of the ABF Act in relation to paragraph (b) of the new definition of IBP worker.

198. Item 868 preserves authorisations that were given before the commencement of this item by the CEO to a person mentioned in subparagraph (c)(i) of the definition of "Officer of Customs" in relation to a section of the Customs Act and was in force immediately before the commencement, as if it were authorisations given by the Comptroller-General of Customs under subsection 4(1D) of the Act.

199. Item 869 applies to an instrument that was given before the commencement of this item by the CEO to a person mentioned in subparagraph (c)(ii) of the definition of "Officer of Customs", in relation to a provision of the Customs Act and was in force immediately before the commencement of this item, and provides for the instrument to continue to be in force on and after the commencement as if it were an instrument made by the Comptroller-General of Customs under new subsection 4(1E) of the Customs Act in relation to the provision of the Act in which the instrument was given for.

200. In effect, items 862 to 869 ensure that authorisations, instruments, and delegations given by the CEO to either employees of the ACBPS by name, or by name to people who are not employees of the ACBPS, that were in force on 1 July 2015 continue in force on and after 1 July 2015.

201. Item 870 contains a transitional provision that provides that a reference to "APS employee in the Department" in paragraph (c) of the new definition of "officer of Customs" refers to all APS employees in the Department, whether they became an employee before, on or after the commencement of this item.

Saving provisions

202. Items in Part 1 of this Schedule amend provisions of the Customs Act to substitute:

•

references to "CEO" with "Comptroller-General of Customs";

•

references to "Customs" with "the Department", "a Collector", "the Commonwealth", "officer of Customs"; and

•

references to "control of Customs" with "customs control".

203. The references to "Customs" are redundant as a result of the repeal of the Customs Administration Act by amendments made at Schedule 2.

Item 871 - Approved forms and approved statements

204. Item 22 in Part 1 of this Schedule substitutes references to "CEO" in section 4A of the Customs Act with "Comptroller-General of Customs". Section 4A allows the CEO to approve forms and statements by an instrument in writing.

205. This item contains a saving provision for the amendments made by item 22, such that forms and statements, approved by the CEO under section 4A, immediately before the commencement of this item, have effect and continues to be inforce on and after the commencement as if they were made by the made by the Comptroller-General of Customs. This ensures that the amendment made by item 22 does not affect the ongoing effect of the forms and statements approved by the CEO under section 4A of the Customs Act.

Item 872 - Attachment of overseas resources installations

206. Item 24 in Part 1 of this Schedule substitutes references to "CEO" in section 5A of the Customs Act with "Comptroller-General of Customs". Section 5A concerns the offence and penalties that would apply to a person who causes an overseas resources installation to be attached to the Australian seabed, and allows the CEO to give permissions by way of a notice (and impose conditions on permissions so given) to a person who applies for permission to cause the relevant attachment so that the offence under this section does not apply to the relevant person. The term "overseas resources installation" is defined in subsection 4(1) of the Customs Act.

207. This item contains a saving provision for the amendments made by item 24, such that permissions given under section 5A, immediately before the commencement of this item, has effect (and conditions imposed on permissions continue in force) on and after the commencement as if they were given (or conditions imposed) by the Comptroller-General of Customs. This ensures that amendments made by item 24 do not affect the ongoing effect of permissions given by the CEO under section 5A of the Customs Act.

Item 873 - Installation of overseas sea installations

208. Item 25 in Part 1 of this Schedule substitutes references to "CEO" in section 5B of the Customs Act with "Comptroller-General of Customs". Section 5B concerns the offence and penalties that would apply to a person who causes an overseas installation to be installed in an adjacent area or coastal area, and allows the CEO to give permissions by way of a notice (and impose conditions on permissions so given) to a person who applies for permission to cause the relevant installation so that the offence under this section does not apply to the relevant person.

209. This item contains a saving provision for the amendments made by item 25, such that permissions given under section 5B, immediately before the commencement of this item, has effect (and conditions imposed on permissions continue in force) on and after the commencement as if they were given (or conditions imposed) by the Comptroller-General of Customs. This ensures that amendments made by item 25 do not affect the ongoing effect of permissions given by the CEO under section 5B of the Customs Act.

Item 880 - Securities

210. Items 76, 77, 79, 81, 83 and 84 in Part 1 of this Schedule substitute references to "the Customs" in section 42 of the Customs Act with "the Commonwealth". Section 42 provides the statutory right to require and take securities for compliance with the Customs Act, for compliance with conditions or requirements to which the importation or exportation of goods is subject and generally for the protection of the revenue of the Customs, and pending the giving of the required security in relation to any goods subject to the control of the Customs may refuse to deliver the goods or to give any authority to deal with the goods.

211. The reference to "Customs" in this context is a reference to the ACBPS as the Statutory Agency. The reference to "Customs" in this context is redundant because the Customs Administration Act, which relevantly provides for the establishment of the ACBPS as Statutory Agency, will be repealed by Schedule 2 below.

212. Subitem 880(1) contains a saving provision for the amendments mentioned, such that a security taken by the Customs under section 42 of the Customs Act, before the commencement of this item and in effect immediately before the commencement, has effect on and after the commencement as if it were a security taken by the Commonwealth under this section. This ensures that amendments to section 42 do not affect the ongoing validity of any securities taken before 1 July 2015.

213. Item 86 in Part 1 of this Schedule substitute reoccurring references to "CEO" in section 44 of the Customs Act with "Comptroller-General of Customs. Section 44 provides that, when security is required for any particular purpose, security may by the authority of the CEO be accepted to cover all transaction for such time and for such amounts as the CEO may approve.

214. Subitems 880(2) and (3) contains saving provisions, such that:

•

an authority given under section 44 of the Customs Act, before the commencement of this item, has effect on and after the commencement as if it were an authority given an authority of the Comptroller-General under this section; and

•

an approval given under section 44 of the Customs Act, before the commencement of this item, has effect on and after that commencement as if it were an approval given by the Comptroller-General under this section.

215. The provisions in item 880 ensures that amendments made by item 86 do not affect the ongoing effect of the authority given by the CEO, or his or her approval of the transactions for such time and for such amounts under section 44 of the Customs Act.

Item 912 - Depot licences

216. The Customs Administration Act, which establishes the office of the CEO, will be repealed by Schedule 2 below. As a result, the definition of "CEO" and references referring to that term will become redundant.

217. Items 297, 311, 312, 313, 314, 316, 317, and 319 in Part 1 of this Schedule substitute references to "CEO" in subsections 77G(1), 77LA(1), 77LA(3), 77LA(4), 77LA(5), 77LA(6) and 77LA(7) of the Customs Act with "Comptroller-General of Customs" and, as a result, vest in the Comptroller General relevant functions and powers relating to depot licences that are currently performed or exercised by the CEO.

218. This item contains saving provisions and transitional provisions that apply to the amendments made by the items mentioned to ensure that, despite the amendments in Part 1 in relation to depot licences, all depot licences and associated matters are not affected.

219. For example, subitems 912(1), (3), (4) and (6) contain savings provisions and transitional provisions that apply to depot licences that are granted by the CEO.

•

Subitem 912(1) contains a saving provision, such that a licence in force under Part IVA of the Customs Act immediately before the commencement of this item (including one varied under section 77LA of that Act) continues in force on and after that commencement as if it had been granted by the Comptroller-General of Customs.

•

Subitem 912(3) clarifies that subitem 912(1) is taken to apply to a licence that was suspended immediately before the commencement of this item and that subitem 912(3) does not affect the period of suspension of the licence.

•

Subitem 912(4) contains a transitional provision, such that an application for a licence under Part IVA of the Customs Act that was made to the CEO before the commencement of this item and that had not been decided before that commencement is taken on and after that commencement to have been an application made to the Comptroller-General of Customs.

•

Subitem 912(6) contains a transitional provision, such that an application under section 77LA of the Customs Act that was made to the CEO before the commencement of this item and that had not been decided before that commencement is taken on and after that commencement to have been an application made to the Comptroller-General of Customs under that section as amended by this Schedule.

220. In effect, subitems 912(1), (3), (4) and (6) will operate to preserve a depot licence that is granted by the CEO as if it was a licence granted by the Comptroller-General of Customs and applications for depot licences to CEO that were not decided at the commencement of item 912 will be deemed as applications that are made to, and to be decided by, the Comptroller-General.

221. Another example is the operation of subitem 912(2) which ensures that conditions that depot licences granted by the CEO were subject to, continues to be in force on an after the commencement of item 912. This ensures that the amendments made by the related items in Part 1 of this Schedule do not affect conditions imposed on licences by the CEO.

Item 913 - Warehouse licences

222. Items 345, 353, 354, 355, 357, 358, 360 and 375 in Part 1 of this Schedule substitute references to "CEO" in sections 79, 81B and 84 of the Customs Act with "Comptroller-General of Customs" and as a result vest in the Comptroller-General, relevant functions and powers relating to warehouse licences that are currently performed or exercised by the CEO.

223. As above, the references to "CEO" in the provisions mentioned are redundant and are replaced with a more appropriate reference (see Part 1 above).

224. This item contains saving provisions and transitional provisions that apply to the amendments made by the items mentioned to ensure that, despite the amendments in Part 1 in relation to warehouse licences, all warehouse licences and associated matters are not affected.

225. For example, subitems 913(1), (3), (4) and (6) contain savings provisions and transitional provisions that apply to warehouse licences that are granted by the CEO.

•

Subitem 913(1) contains a saving provision, such that a licence in force under Part V of the Customs Act immediately before the commencement of this item (including one varied under section 81B of that Act) continues in force on and after that commencement as if it had been granted by the Comptroller-General of Customs.

•

Subitem 913(3) clarifies that subitem 913(1) is taken to apply to a licence that was suspended immediately before the commencement of this item and that subitem 913(3) does not affect the period of suspension of the licence.

•

Subitem 913(4) contains a transitional provision, such that an application for a licence under Part V of the Customs Act that was made to the CEO before the commencement of this item and that had not been decided before that commencement is taken on and after that commencement to have been an application made to the Comptroller-General of Customs.

•

Subitem 913(6) contains a transitional provision, such that an application under section 81B or subsection 82(5) or 84(1) of the Customs Act that was made to the CEO before the commencement of this item and that had not been decided before that commencement is taken on and after that commencement to have been an application made to the Comptroller-General of Customs under that section or subsection as amended by this Schedule.

226. In effect, subitems 913(1), (3), (4) and (6) will operate to preserve a warehouse licence that is granted by the CEO as if it was a licence granted by the Comptroller-General of Customs and applications for warehouse licences to CEO that were not decided at the commencement of item 913 will be deemed as applications that are made to, and to be decided by, the Comptroller-General.

227. Another example is the operation of subitem 913(2) which ensures that conditions that warehouse licences granted by the CEO were subject to, continues to be in force on an after the commencement of item 913. This ensures that the amendments made by the related items in Part 1 of this Schedule do not affect conditions imposed on licences by the CEO.

Item 936 - Payment and recovery of deposits, refund and unpaid duty

228. Item 585 in Part 1, substitutes the reference to CEO in subsection 165(3) of the Customs Act with "Comptroller-General of Customs".

229. Section 165(3) allows the CEO to demand, in writing, for the payment of unpaid debt due to the Commonwealth payable by the owner of goods, or a person who was overpaid a drawback, refund, or rebate.

230. Subitem 936(4) contains a saving provision, such that a demand made by the CEO under subsection 165(3) of the Customs Act before the commencement of this item is taken on and after the commencement to have been a demand made by the Comptroller-General of Customs under the subsection. This ensures the amendment made by item 585 do not affect the validity of a demand in writing by the CEO for the purpose of subsection 165(3) of the Customs Act.

Item 937 - Disputes as to duty

231. Item 591 in Part 1 of this Schedule substitute references to "Customs" in paragraphs 167(3)(a) and (b) of the Customs Act with "the Collector". Subsection 167(3), in effect, provides that for the purpose of section 167, a payment is taken to be made under protest if, and only if:

•

the owner of the goods or the agent of the owner gives Customs notice in accordance with subsection (3A), by document or electronically, that the payment is made under protest; and

•

Customs receives the notice no later than 7 days after the day the payment is made.

232. The reference to "Customs" in this context is a reference to the ACBPS as the Statutory Agency that administers the Customs Act and related laws. The reference to "Customs" in this context is redundant because the Customs Administration Act, which relevantly provides for the establishment of the ACBPS as Statutory Agency, will be repealed by Schedule 2 below.

233. This item contains a saving provision, such that a notice given to Customs before the commencement of this item under subsection 167(3) of the Customs Act is taken on and after the commencement to have been a notice given to the Collector under the subsection. This ensures the amendments made by item 591 do not affect the validity of the notice given to Customs for the purpose of subsection 167(3) of the Customs Act.

Item 939 - Agents and customs brokers

234. Items 596 to 610, 612 to 614, and 616 to 631, in effect, substitute references to "CEO" in sections 181, 183C, 183CA, 183CB, 183CC, 183CE, 183CF, 183CG, 183CGA, 183CGB, 183CK, 183CM, 183CP, 183CQ, 183CR, 183CS, 183D, 183DA, 183DC and 183DD of the Customs Act with "Comptroller-General of Customs" and as a result vest in the Comptroller-General, relevant functions and powers relating to broker licences that are currently performed or exercised by the CEO.

235. As above, the references to "the CEO" in the provisions mentioned are redundant and are replaced with a more appropriate reference (see Part 1 above).

236. This item contains saving provisions and transitional provisions that apply to the amendments made by the items mentioned to ensure that, despite the amendments in Part 1 in relation to broker licences, all broker licences and associated matters are not affected.

237. For example, subitems 939(3) and (6) contain savings provisions and transitional provisions that apply to warehouse licences that are granted by the CEO.

•

Subitem 939(3) contains a saving provision, such that a licence in force under Division 3 of Part XI of the Customs Act immediately before the commencement of this item (including one varied under section 183CF of that Act), continues in force on and after that commencement as if it had been granted by the Comptroller-General of Customs.

•

An application for a licence under Division 3 of Part XI of the Customs Act that was made to the CEO before the commencement of this item and that had not been decided before that commencement is taken on and after that commencement to have been an application made to the Comptroller-General of Customs.

238. In effect, subitems 939(3) and (6) will operate to preserve a broker licence that is granted by the CEO as if it was a licence granted by the Comptroller-General of Customs and applications for broker licences to CEO that were not decided at the commencement of item 913 will be deemed as applications that are made to, and to be decided by, the Comptroller-General.

239. Another example is the operation of subitem 939(4) which ensures that conditions that broker licences granted by the CEO were subject to, continues to be in force on an after the commencement of item 939. This ensures that the amendments made by the related items in Part 1 of this Schedule do not affect conditions imposed on licences by the CEO.

Item 949 - Evidence of analyst

240. Item 737 in Part 1 of this Schedule substitutes the reference to "CEO" in subsection 233BA(1) of the Customs Act with "Comptroller-General of Customs". Subsection 233BA(1) allows the CEO to appoint a person to be an analyst for the purpose of the Customs Act, or Part 9.1 of the Criminal Code.

241. This item contains a saving provision, such that an appointment in force under subsection 233BA(1) of the Customs Act, immediately before the commencement of this item has effect on and after the commencement as if it were an appointment in force by the Comptroller-General under the subsection. This ensures the amendment made by the item 737 does not affect the validity of the appointments by the CEO.

Item 958 - Customs prosecutions

242. Items 768 to 778 in Part 1 of this Schedule amend the provisions in Part XIV of the Customs Act to:

•

omit a reference to "Customs";

•

substitute the reference to "CEO in the name of the office of the CEO" with "Comptroller-General of Customs";

•

substitute references to "CEO" with "Comptroller-General of Customs"; and

•

substitute the reference to "the Customs" with "the Commonwealth".

243. The reference to "Customs" in this context is a reference to the ACBPS as the Statutory Agency that administers the Customs Act and related laws. The reference to "Customs" in this context is redundant because the Customs Administration Act, which relevantly provides for the establishment of the ACBPS as Statutory Agency, will be repealed by Schedule 2 below. Additionally, the repeal of the Customs Administration Act will also abolish the office of the CEO and as a result the term "CEO" will also be redundant.

244. Part XIV of the Customs Act concerns proceedings by Customs for the recovery of penalties under the Act (other than pecuniary penalties referred to in section 243B), or for the condemnation of ships, aircrafts or goods seized as forfeited. This Part allows the CEO to institute proceedings in a court and pursue the recovery of penalties. This Part also allows the CEO to certify true copies of, or extract from, proclamation, gazette notices or regulations, and direct the apportionment all penalties and forfeitures recovered under the Customs Act.

245. This item contain transitional provisions to ensure that amendments made by the items mentioned to do not affect the validity of proceedings initiated by the CEO and savings provisions to ensure that certifications and directions by the CEO continue in effect.

Item 960 - Tariff concession orders

246. Items 784, 785, 788 to 798 and 800 to 805 in Part 1 of this Schedule amend sections 269D, 269F, 269G, 269H, 269HA, 269J, 269K, 269L, 269M, 269N, 269P, 269Q, 269R, 269SA and 269SB of the Customs Act to substitute references to "CEO" with Comptroller-General of Customs and, as a result, vest in the Comptroller-General relevant functions and powers relating to Tariff Concession Orders that are currently performed or exercised by the CEO.

247. As above, the references to "the CEO" in the provisions mentioned are redundant and are replaced with a more appropriate reference (see Part 1 above).

248. This item contains saving provisions and transitional provisions that apply to the amendments made by the items mentioned to ensure that, despite the amendments in Part 1 in relation to Tariff concession orders, all concession orders and associated matters are not affected.

249. For example, subitem 960(10) contain a savings provisions, such that A tariff concession order made under section 269P or 269Q of the Customs Act, or taken to be made under that section because of the operation of section 269SC of that Act, and that was in force immediately before the commencement of this item is taken on and after that commencement to have been a tariff concession order made under section 269P or 269Q of that Act as amended by this Schedule (as the case requires). In effect, this ensures that Tariff Concession Orders made by the CEO continue in force after the commencement of item 960.

250. Another example is the operation of subitem 960(2) which contains a saving provision for application made under subsection 269F(1) or 269SH(1) of the Customs Act to the CEO before the commencement of item 960 to have effect on or after the commencement as if it were made to the Comptroller-General under the relevant subsections as amended by this Schedule. This ensures that the vesting of relevant powers in the Comptroller-General of Customs do not affect applications made but not decided by the CEO before the commencement of item 960.

Item 963 - By-laws and determinations

251. Items 840 to 842 in Part 1 of this Schedule omit references to "CEO" in the sections 271, 273 and 273A of the Customs Act with "Comptroller-General of Customs". These sections empower the CEO to make by-laws and determinations.

252. This item contains a saving provision, such that a by-law or determination that was in force immediately before the commencement of this item under Part XVI of the Customs Act is taken on and after the commencement to be a by law or determination in force under the relevant Part. This ensures that amendments made by items mentioned do not affect the ongoing operation and effects of by-laws and determinations by the CEO.

Item 965 - Part does not limit operation of section 7 of the Acts Interpretation Act 1901

253. This item explains that amendments in this Part do not limit the operation of section 7 of the Acts Interpretation Act. Section 7 contains provisions that apply when an Act, or part of an Act, is repealed.

Schedule 2 - Repeal of Customs Administration Act

Part 1 - Repeals

Customs Administration Act 1985

Item 1 - The whole of the Act

254. This item repeals the Customs Administration Act.

255. The Customs Administration Act established the ACBPS as a Statutory Agency and the statutory office of CEO. The Customs Administration Act also contains provisions connected therewith, including the appointment, tenure, remuneration and allowances of the CEO.

256. On and from 1 July 2015, as the functions of the ACBPS are to be moved to the integrated Department and the office of the CEO is no longer required, these provisions will no longer be required. Instead, the ABF will be established within the Department as a single frontline operational border control and enforcement entity, and the office of the ABF Commissioner will be established. The ABF Act will provide the legislative framework for the ABF, and will largely replicate the secrecy, employment and integrity provisions contained in the Customs Administration Act for the integrated Department.

257. The repeal of the Customs Administration Act will effect the abolition of the ACBPS and the statutory office of the CEO.

Part 2 - Consequential amendments

258. This Part makes a number of consequential amendments to the Commerce (Trade Description) Act 1905 (Trade Descriptions Act), the Horticulture Marketing and Research and Development Services Act 2000 (HMRDS Act) and the Quarantine Act 1908 (Quarantine Act) following the repeal of the Customs Administration Act.

Commerce (Trade Descriptions) Act 1905

Items 2 and 3 - Subsection 5(4); and paragraph 5(4)(c)

259. Subsection 5(4) of the Trade Descriptions Act currently allows the CEO to give directions in writing under subsection 4(4) of the Customs Administration Act concerning:

•

the circumstances in which powers under section 5 of the Trade Descriptions Act (relating to the inspection of imports and exports) may be exercised; and

•

the officers of Customs who are entitled to exercise those powers; and

•

the manner and frequency of reporting to the CEO concerning the exercise of those powers.

260. Following the repeal of the Customs Administration Act, these items amend subsection 5(4) and paragraph 5(4)(c) of the Trade Descriptions Act to:

•

omit references to the "Customs Administration Act";

•

substitute references to "CEO" with "Comptroller-General of Customs"; and

•

allow the Comptroller-General of Customs to give directions, in writing, under subsection 5(4) of the Trade Descriptions Act, concerning matters listed in that subsection.

Horticulture Marketing and Research and Development Services Act 2000

Items 4 to 6 - Section 26A; and section 26A (note)

261. Section 26A of the HMRDS Act provides that Horticulture Australia Limited, in its capacity as the industry export control body, is taken to be a Commonwealth agency for the purposes of section 16 of the Customs Administration Act. Section 16 of the Customs Administration Act allows Customs to disclose information to Commonwealth agencies in certain circumstances.

262. Following the repeal of the Customs Administration Act, Part 6 of the ABF Act will deal with secrecy and disclosure of protected information by the integrated Department. The provisions in Part 6 of the ABF Act are similar to those previously provided in section 16 of the Customs Administration Act.

263. As a result, items 4 to 6 amend section 26A of the HMRDS Act to:

•

substitute a redundant reference to "Horticulture Australia Limited" with "Horticulture Innovation Australia Limited"; and

•

provide that Horticulture Innovation Australia Limited, in its capacity as the industry export control body, is taken to be an authority of the Commonwealth for the purposes of Part 6 of the ABF Act (noting that Part 6 of the Act allows certain persons to disclose information to authorities of the Commonwealth in certain circumstances).

Quarantine Act 1908

Item 7 - Subsection 16AC(6)

264. Section 16AC of the Quarantine Act requires a person, or an agent of a person, to give notice of an importation, or proposed importation, of goods into Australia, the Cocos Islands or Christmas Island.

265. Subsection 16AC(6) provides that, if a notice under section 16AC:

•

is given to an officer of Customs; or

•

is given by the lodging of an entry under the Customs Act as mentioned in paragraph (5)(b); or

•

is taken to be given by the doing of something specified in the regulations under subsection (5A);

a person to whom section 16 of the Customs Administration Act applies may, despite that section, give the notice, particulars of the entry, or particulars of the thing the doing of which is taken to constitute the giving of the notice, as the case may be, to a quarantine officer.

266. In practice, this provision allows Customs to share information with quarantine officers regarding the importation of goods into Australia, the Cocos Islands or Christmas Island.

267. Following the repeal of the Customs Administration Act, Part 6 of the ABF Act will deal with secrecy and disclosure of protected information. The provisions in Part 6 of the ABF Act are similar to those previously provided in section 16 of the Customs Administration Act.

268. Item 7 updates the terminology in subsection 16AC(6) to be consistent with the secrecy and disclosure provisions in the ABF Act. This provision will now provide that an entrusted person (within the meaning of the Act) may, despite Part 6 of the ABF, give the notice, particulars of the entry, or particulars of the thing the doing of which is taken to constitute the giving of the notice, as the case may be, to a quarantine officer.

Part 3 - Savings provisions

Item 8 - Savings provisions

Reporting of serious misconduct

269. Subitem 8(1) provides that despite the repeal of the Customs Administration Act made by this Schedule, subsections 4C(2) and (3) of that Act, as in force immediately before the commencement of this item, continue to apply on and after that commencement in relation to information given, an answer given or a document produced before that commencement.

270. Subsection 4C(1) provides that where a Customs worker is required under a CEO's Order referred to in subsection 4B(2) to give information, produce a document or answer a question, the Customs worker is not excused from doing so on the ground that it may tend to incriminate or expose the Customs worker to a penalty. The CEO's Orders under subsection 4B(2) aim to expose serious misconduct, corrupt conduct and criminal activity where it affects, or is likely to affect, the operations and responsibilities of the ACBPS.

271. Under subsections 4C(2) and (3), if a Customs worker has been required to give information, produce a document or answer a question under a CEO's Order referred to in subsection 4B(2) (relating to serious misconduct, corrupt conduct and criminal activity etc) then, subject to section 16G, the information given, the answer or the document produced is not admissible in evidence against the Customs worker in any proceedings.

272. Under section 16G a certificate or other document recording the results of an alcohol or drug test conducted under section 16B, 16C or 16D, or other information, answer to a question or document relevant to conducting such a test can be admitted in evidence against the Customs worker, but only in relation to:

•

proceedings in relation to a decision of the CEO to terminate the employment or engagement of the Customs worker;

•

proceedings under the Safety, Rehabilitation and Compensation Act 1988 (Safety, Rehabilitation and Compensation Act); or

•

proceedings in tort against the Commonwealth that are instituted by the Customs worker.

273. In addition, subitem 8(5) provides that despite the repeal of the Customs Administration Act made by this Schedule, section 16G of that Act, as in force immediately before the commencement of this item, continues to apply on and after that commencement in relation to the following:

•

a certificate or other document recording the results of a test conducted under section 16B, 16C or 16D of that Act;

•

any other information, answer to a question or document relevant to conducting such a test.

274. For the purposes of section 16G of that Act continuing to so apply:

•

the Customs worker concerned is taken to continue to be a Customs worker on and after that commencement; and

•

a reference in paragraph 16G(c) of that Act to the CEO is taken to include a reference to the Secretary of the Department.

275. These savings provisions mean that the protection and exception in subsections 4C(2) and (3), and the protection and exceptions in section 16G of the Customs Administration Act, as in force immediately before the commencement of this item, will continue to apply to information, answers, documents produced or tests performed before the 1 July 2015 despite the repeal of that Act.

276. In effect, this means that:

•

any information given, an answer given or a document produced under subsection 4C(2) before 1 July 2015 of this item cannot be used in evidence against the Customs worker except in accordance with the circumstances specified in section 16G; and

•

under section 16G:

-

a certificate or other document recording the results of an alcohol or drug test conducted under section 16B, 16C or 16D before the commencement of this item; or

-

other information, answer to a question or document relevant to the conduct of such a test before the commencement of this item,

can be admitted in evidence against a Customs worker, but only in relation to:

-

proceedings in relation to a decision of the CEO/Secretary to terminate the employment or engagement of the Customs worker;

-

proceedings under the Safety, Rehabilitation and Compensation Act; or

-

proceedings in tort against the Commonwealth that are instituted by the Customs worker.

Declaration of serious misconduct

277. Subitem 8(2) provides that despite the repeal of the Customs Administration Act made by this Schedule, section 15A of that Act, as in force immediately before the commencement of this item, continues to apply on and after that commencement in relation to a declaration that was made under subsection 15A(2) of that Act before that commencement.

278. Section 15A of the Customs Administration Act allows the CEO to make a declaration in relation to a staff member if the CEO has terminated the employment of a member of the staff referred to in subsection 15(1) and the CEO believes, on reasonable grounds, that the staff member's conduct or behaviour, or any part of it:

•

amounts to serious misconduct by the staff member; and

•

is having, or is likely to have, a damaging effect on:

-

the professional self-respect or morale of some or all of the members of the staff of the ACBPS; or

-

the reputation of the ACBPS with the public, or any section of the public, or with an Australian or overseas government, or with a person or body (however described) to whom the CEO may authorise disclosure of information under section 16.

279. The CEO's power to make the declaration will only apply if the CEO has terminated the employment of a staff member in accordance with section 29 of the Public Service Act (because staff referred to in subsection 15(1) are employed under the Act).

280. The effect of the declaration is to remove the operation of the Fair Work Act (with certain exceptions) in relation to that particular dismissal. The Fair Work Act currently applies to all dismissals of Customs staff employed under the Public Service Act and provides protection where the dismissal was harsh, unjust or unreasonable. The application of the Fair Work Act can impact on the ability of the CEO to quickly and decisively remove a person from the organisation following the serious misconduct of the staff member.

281. This savings provision will mean that despite the repeal of the Customs Administration Act, section 15A as in force immediately before the commencement of this item will continue to apply to declarations which were made under subsection 15A(2) before the commencement of this item, including in relation to the application of the Fair Work Act.

Secrecy

282. Subitem 8(3) provides that despite the repeal of the Customs Administration Act made by this Schedule, section 16 of that Act, as in force immediately before the commencement of this item, continues to apply on and after that commencement in relation to the making of a record, or the disclosure, of protected information before that commencement.

283. Section 16 of the Customs Administration Act prohibits the unauthorised recording and disclosure of protected information held by the ACBPS. It also provides exceptions in relation to the prohibition to allow the making of a record, or the disclosure of protected information in certain circumstances.

284. This savings provision will mean that despite the repeal of the Customs Administration Act, section 16 as in force immediately before the commencement of this item will continue to apply to records and disclosures of protected information which were made before the commencement of this item. That means that any disclosure of protected information that was made before 1 July 2015 will be treated as a contravention of section 16.

Alcohol and drug tests

285. Subitem 8(4) provides that despite the repeal of the Customs Administration Act made by this Schedule, that Act and the regulations under that Act, as in force immediately before the commencement of this item, continue to apply on and after that commencement in relation to the following:

•

a requirement given under subsection 16B(1) of that Act before that commencement;

•

a direction given under subsection 16C(1) of that Act before that commencement;

•

an incident that occurred before that commencement in relation to which paragraphs 16D(1)(a) and (b) of that Act applied or paragraph 16D(2)(a) or (b) of that Act applied;

•

a direction given under subsection 16D(3) or (5) of that Act before that commencement.

286. For the purposes of that Act and those regulations continuing to so apply:

•

the Customs worker concerned is taken to continue to be a Customs worker on and after that commencement; and

•

a person who was an authorised officer under that Act immediately before that commencement is taken to continue to be an authorised officer on and after that commencement.

287. Sections 16B, 16C and 16D of the Customs Administration Act set out the regime under which Customs workers are required to undergo drug and alcohol testing. In accordance with section 16F regulations may make provision for the purposes of sections 16B, 16C and 16D in relation to certain matters including the authorisation of persons, the devices to be used in conducting tests, procedures for handling samples taken and the confidentiality of test results. The Drug and Alcohol Testing Regulation prescribes such matters for the purposes of section 16B, 16C and 16D.

288. This savings provision will mean that despite the repeal of the Customs Administration Act, the Act and the Drug and Alcohol Testing Regulation in force immediately before 1 July 2015 will continue to apply to:

•

a requirement given under subsection 16B(1) of the Customs Administration Act before the commencement of this item;

•

a direction given under subsection 16C(1) of that Act before that commencement;

•

an incident that occurred before that commencement in relation to which paragraphs 16D(1)(a) and (b) of the Customs Administration Act applied or paragraph 16D(2)(a) or (b) of that Act applied;

•

a direction given under subsection 16D(3) or (5) of the Customs Administration Act before that commencement.

Interpretation

289. Subitem 8(6) provides that this item does not limit the operation of section 7 of the Acts Interpretation Act which deals with the effect of repeal or amendment of an Act.

Schedule 3 - Amendment of the Migration Act

290. The ABF Act establishes the statutory office of the ABF Commissioner, who has under the Minister, the control of the operations of the ABF.

291. This Schedule amends various provisions of the Migration Act to confer on the ABF Commissioner the relevant functions and powers to facilitate his or her control of relevant operations of the ABF.

Migration Act 1958

Item 1 - Subsection 5(1)

292. This item inserts the definition of "Australian Border Force Commissioner" into subsection 5(1) of the Migration Act, which has the same meaning as in the ABF Act.

Items 2 to 72

293. These items amend various provisions of the Migration Act to insert a reference to the "Australian Border Force Commissioner".

294. These amendments will provide the ABF Commissioner with the ability to exercise functions and powers under the various Parts of the Migration Act that are currently exercised by the Secretary, which include:

•

Part 1:

-

Subdivision G (Cancellation of business visas) in Division 3

-

Subdivision F (Inspector powers) in Division 3A;

-

Division 13 (Examination, search and detention);

-

Division 13AA (Identification of immigration detainees);

•

Part 2:

-

Division 14 (Recovery of costs from certain persons);

•

Part 4A:

-

Division 2 (Assessing identifying information);

-

Division 3 (Disclosing identifying information);

•

Part 8: Division 2 (Jurisdiction and procedure of courts);

•

Part 8E:

-

Division 2 (Requiring persons to give information or produce documents);

-

Division 3 (Search warrants); and

•

Part 9: Division 1 (Bogus documents).

295. The ability to exercise a power and perform a function under the provisions mentioned is consistent with an operational responsibility of the ABF Commissioner.

296. For example:

•

Item 2 omits the reference to "or the Secretary" in the definition of "authorised officer" under subsection 5(1) of the Migration Act and substitutes with ", the Secretary or the Australian Border Force Commissioner". This amendment provides the ABF Commissioner with the ability to authorise an officer to exercise a power or perform a function as set out in a provision of the Migration Act.

•

Item 23 inserts "or Australian Border Force Commissioner" after the words "or Secretary" in subsections 253(8) and (9) of the Migration Act. This amendment provides the ABF Commissioner with the ability to direct that a deportee be kept in, or order the release from, immigration detention.

Item 73 - Saving provisions

297. As provided above, items 2 and 23 amend the definition of "authorised officer" under subsection 5(1) and subsections 253(8) and (9) of the Migration Act to provide the ABF Commissioner with relevant powers.

298. This item contain saving provisions, such that:

•

the amendment of the definition of authorised officer in subsection 5(1) of the Migration Act made by this Schedule does not affect the validity of an authorisation that is in force immediately before the commencement of this item; and

•

the amendments of subsections 253(8) and (9) of the Migration Act made by this Schedule do not affect the validity of a direction under subsection 253(8) of that Act, or an order under subsection 253(9) of that Act, that is in force immediately before the commencement of this item.

299. This item ensures that amendments made by items 2 and 23 do not affect the validity of relevant authorisations and directions under subsections 5(1), 253(8) and 253(9) of the Migration Act.

Schedule 4 - Amendment of WH&S Act

Work Health and Safety Act 2011

Background

300. This Schedule contains amendments to the WH&S Act.

301. The WH&S Act imposes duties on persons conducting a business or undertaking, officers and workers to ensure the health and safety of themselves and others. The thresholds imposed by these provisions are that:

•

a person conducting a business or undertaking must ensure health and safety as far as is reasonably practicable of workers and other persons;

•

officers must exercise due diligence to ensure the person conducting the business or undertaking complies with their duties; and

•

workers must take reasonable care to ensure the health and safety of themselves and others.

302. The standards imposed by the WH&S Act are flexible and reflect the wide range of workplaces that the Act can apply to. In addition, the Act expressly provides that nothing in the Act requires or permits a person to take action, or to refrain from taking any action which would be, or could reasonably be expected to be, prejudicial to Australia's national security or defence. These provisions make clear that the standards of care contained in the Act are sensitive to national security and defence considerations, and that the duties should not be interpreted as requiring approaches to ensuring health and safety which would compromise Australia's national security or defence.

303. The ABF will be responsible for coordinating and controlling maritime border operations to protect Australia's national interests against maritime security threats. These operations will be important in ensuring Australia's national security and defence. These operations may involve factors that create risks to the health and safety of ABF workers and others, such as dangerous seas, constrained ability to conduct advanced surveillance, remote locations, unseaworthiness of vessels and the requirement to act in emergencies. Because of the national security or defence implications of these operations, the ability of the ABF, its officers and its workers to implement every possible precaution may be limited in a time critical or operationally sensitive environment.

304. The WH&S Act will be amended so that the existing provisions in relation to Australia's national security and defence will apply to the operations of the ABF. The existing powers of the Chief of Defence and the Director-General of Security to modify the operation of the Act in relation to particular workers or operations will be extended to the ABF Commissioner.

305. These amendments provide the ABF Commissioner the ability to provide assurance, where warranted to do so, to ABF officers who are performing enforcement activity under the ABF Commissioner's direction, while also recognising the broader duties and objectives within the WH&S Act to protect workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work.

306. Reflecting the Government's commitment to work health and safety, the amendments will include a provision expressly requiring the ABF Commissioner to take into account the need to promote the objects of the WH&S Act to the greatest extent consistent with national security and defence. This reflects the intention that the declaration making power will only be used in very limited circumstances and only where necessitated by the need to ensure Australia's national security and defence.

Item 1 - Section 4

307. This item inserts 4 new definitions into section 4 of the WH&S Act, for the purposes of the amendments to sections 12C and 12D of the Act.

308. The definitions of "Australian Border Force" and "Australian Border Force Commissioner" have the same meaning as in the ABF Act (see subsection 4(1) of the ABF Act).

309. The definition of "Australian Border Force worker" means:

•

a person who is covered by covered by paragraph (a) of the definition of IBP worker in subsection 4(1) of the ABF Act and who is in the ABF or whose services are made available to the ABF. This paragraph essentially covers all APS employees in the Department who are either in the ABF or who are not in the ABF but whose services are made available to the ABF (such as intelligence or computer specialists);

•

a person who is covered by paragraph (b), (c), (d), (e) or (f) of that definition and whose services are made available to, or who is performing services for, the ABF. This paragraph essentially covers all other people other than APS employees in the Department whose services are made available to, or who is performing services for, the ABF. Examples are APS employees from other Commonwealth agencies, employees from State of Territory agencies and external contractors or consultants.

310. The term "Immigration and Border Protection Secretary" means the Secretary of the Department administered by the Minister administering the ABF Act. At the time of writing, this is the Secretary to the Department.

Items 2 to 4 - After subsection 12C(2A); subsection 12C(3); and at the end of section 12C

311. Item 2 inserts new provisions into section 12C of the WH&S Act. Subsection 12C(1) provides that nothing in WH&S Act requires or permits a person to take any action, or to refrain from taking any action, that would be, or could reasonably be expected to be, prejudicial to Australia's national security. In addition to this general provision, subsection 12C(2) enables the Director-General of Security to issue a declaration clarifying how the provisions within the WH&S Act apply or are modified in relating to a person carrying out work for the Director-General. This section applies without limiting the generality of subsection (1).

312. New subsection 12C(2B) is in similar terms to subsection (2) and provides that, without limiting the generality of subsection (1), the ABF Commissioner may, by instrument in writing, declare that specified provisions of this Act do not apply, or apply subject to modifications set out in the declaration, in relation to an ABF worker.

313. New subsection 12C(2B) requires that the ABF Commissioner must consult the Secretary of the Immigration and Border Protection Department and the Director-General of Security before making such an instrument.

314. Item 3 makes technical amendments to subsection 12C(3) of the WH&S Act due to new subsection 12C(2A).

315. Item 4 inserts new subsection 12C(6) which qualifies the new subsection 12C(2B). Subsection 12C(6) provides that in controlling the operations of the ABF and in the exercise of the power under subsection (2B), the ABF Commissioner must take into account the need to promote the objects of this Act to the greatest extent consistent with the maintenance of Australia's national security. This obligation is similar to the obligation in subsection 12C(4) which qualifies the Director-General of Security's power under subsection 12C(2).

Item 5 to 7 - After subsection 12D(2); subsection 12D(3); and at the end of section 12D

316. Item 5 inserts new provisions into section 12D of the WH&S Act. Subsection 12D(1) provides that nothing in WH&S Act requires or permits a person to take any action, or to refrain from taking any action, that would be, or could reasonably be expected to be, prejudicial to Australia's defence. In addition to this general provision, subsection 12D(2) enables the Chief of the Defence Force to issue a declaration clarifying how the provisions within the WH&S Act apply or are modified in relating to:

•

a specified activity; or

•

a specified member of the Defence Force; or

•

members of the Defence Force included in a specified class of such members.

317. This section applies without limiting the generality of subsection (1).

318. New subsection 12D(2A) is in similar terms to subsection (2) and provides that, without limiting the generality of subsection (1), the ABF Commissioner may, by instrument in writing, declare that specified provisions of this Act do not apply, or apply subject to modifications set out in the declaration, in relation to:

•

a specified operation of the ABF; or

•

a specified ABF worker; or

•

ABF workers included in a specified class of such workers.

319. New subsection 12C(2A) requires that the ABF Commissioner must consult the Secretary of the Immigration and Border Protection Department and the Chief of the Defence Force before making such an instrument.

320. Item 6 makes technical amendments to subsection 12D(3) due to new subsection 12C(2A).

321. Item 7 inserts new subsection 12D(5) which qualifies new subsection 12D(2A). Subsection 12C(5) provides that in the exercise of the power under subsection (2A), the ABF Commissioner must take into account the need to promote the objects of this Act to the greatest extent consistent with the maintenance of Australia's defence. This obligation is similar to the obligation in subsection 12D(4) which qualifies the Chief of the Defence Force's power under subsection 12D(2).

Item 8 and 9 - Paragraph 273B(1)(b); and paragraph 273B(2)(a)

322. Section 273 sets out the circumstances in which various matters done under the WH&S Act in writing are, or are not, legislative instruments for the purposes of the Legislative Instruments Act.

323. Item 8 amends paragraph 273B(1)(b) to insert a reference to new subsection 12D(2A). This will mean that a declaration under this subsection will be a legislative instrument. This is the same treatment as a declaration made under subsection 12D(2) by the Chief of the Defence Force.

324. Item 9 amends paragraph 273B(2)(a) to insert a reference to new subsection 12C(2B). This will mean that a declaration under this subsection will not be a legislative instrument. This is the same treatment as a declaration made under subsection 12C(2) by the Director-General of Security.

Schedule 5 - Amendments of Acts referring to the Customs

Background

325. This Schedule makes a number of consequential amendments to Acts referring to "Customs" in various contexts.

Air Services Act 1995

Item 1 - Subsection 3(1) (Paragraph (b) of the definition of authority of the Commonwealth )

326. The definition of "authority of the Commonwealth" currently includes a reference to Customs. "Customs" in this context means the ACBPS under the Customs Administration Act. Due to the repeal of the Custom Administration Act and the abolition of the ACBPS on 1 July 2015, the paragraph referring to "Customs" will become redundant and is to be repealed.

Items substituting the references to the "control of Customs" with "customs control"

327. These are:

•

Items 2 and 3- Section 7-20 and section 9-75 of A New Tax System (Wine Equalisation Tax) Act 1999

•

Item 27 - Paragraph 135(7)(d) of the Copyright Act 1968

•

Item 39 - Subparagraphs 15J(2)(c)(i) and (ii) of the Crimes Act 1914

•

Item 63 - Paragraph 303GW(3)(c) of the Environment Protection and Biodiversity Conservation Act 1999

•

Items 66 and 67 - Subsection 24(2) and paragraph 24(3)(b) of the Excise Act 1901

•

Items 85, 87 and 88 - Paragraphs 13(4)(b) and (c) and 14(1)(b) and subsections 14(5) and (7) of the Imported Food Control Act 1992

•

Item 92 - Subparagraph 21(6)(b)(ii) of the Industrial Chemicals (Notification and Assessment) Act 1989

•

Item 94 - Subsection 25(1) of the Major Sporting Events (Indicia and Images) Protection Act 2014

•

Item 140 - Paragraph 54(1)(b) of the Olympic Insignia Protection Act 1987

•

Item 171 - Paragraph 50(2)(b) of the Torres Strait Fisheries Act 1984

•

Item 172 - Paragraph 133(1)(b) of the Trade Marks Act 1995

328. These provisions refer to goods which are subject to:

•

"the control of *Customs";

•

"the control of the Customs within the meaning of the Customs Act 1901";

•

"the control of Customs";

•

"the control of the Customs";

•

"Customs control"; or

•

"the control of Customs (within the meaning of the Customs Act 1901)"

329. References to "Customs" in this context means the ACBPS established under the Customs Administration Act. Due to the repeal of that Act and the abolition of the ACBPS on 1 July 2015, these items omit references to terms mentioned above and substitute with references to "customs control" or "customs control under the Customs Act 1901" where necessary.

330. For example, subsection 14(5) of the Imported Food Control Act 1992 (IFC Act) will be amended to provide "[i]f the owner of food identified in an advice as failing food makes an application for the issue of a further imported food inspection advice in respect of a part of the food, the person must, if the food to which the application relates is under customs control, inform the person having possession of the food that he or she had made that application". Section 3(1) of this Act defines "Customs control" in relation to food to mean customs control under the Customs Act

331. Another example is that, subsection 25(1) of the Major Sporting Events (Indicia and Images) Protection Act 2014 (Sporting Events Act) will be amended to provide that "[t]he Comptroller-General of Customs must seize goods that are subject to customs control under the Customs Act 1901 if...".

332. Section 30 of the Customs Act currently sets out goods which are subject to the control of the Customs. As a result of consequential amendments to the Customs Act in Schedule 1 to this Bill, references to goods which are "subject to the control of the Customs" (however described) will be amended to refer to goods which are subject to "customs control". In accordance with existing Customs powers, goods which are subject to Customs control may be examined by an officer of Customs under section 186 of the Customs Act.

333. These amendments are technical consequential changes only and do not expand the controls that the integrated Department will have over goods.

A New Tax System (Wine Equalisation Tax) Act 1999

Item 4 - Section 33-1 (definition of Customs )

334. This section defines "Customs" as the agency continued in existence under subsection 4(1) of the Customs Administration Act. This amendment will delete the definition of "Customs" as a result of the repeal of the Customs Administration Act and the abolition of ACBPS on 1 July 2015. As the reference to "Customs" flows through to references to Customs control, no substitution of terminology is necessary.

Anti-Money Laundering and Counter-Terrorism Financing Act 2006

Item 5 - Section 5 (paragraph (e) of the definition of designated agency )

335. The definition of "designated agency" includes a reference to "Customs". "Customs" in this context means the ACBPS established under the Customs Administration Act. This amendment will delete the reference to "Customs" as a result of the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015.

Item 6 - Savings provision

336. This item provides that despite the amendment of the definition of designated agency in section 5 of the AMLCTF Act made by this Schedule, section 127 of that Act, as in force immediately before the commencement of this item, continues to apply on and after that commencement in relation to a person who was at any time before that commencement an official of a designated agency that was Customs.

337. Section 127 of the AMLCTF Act restricts what a person, who is an entrusted agency official and is (or was) an official of a designated agency may do with accessed information.

338. This savings provision will mean that despite "Customs" no longer being a designated agency under section 5 of the AMLCTF Act, section 127 of that Act will continue to apply to a person who:

•

was an official of a designated agency that was Customs immediately before the commencement of this item; and

•

who needs to deal with accessed information under that provision that was obtained while that person was an official of the designated agency that was Customs.

Australian Crime Commission Act 2002

Items 7 and 8 - Subsection 4(1); and subparagraph 7A(ca)(iii)

339. Subparagraph 7A(ca)(iii) of the ACC Act lists the functions of the ACC which include, amongst other things, assisting Customs in making applications for integrity authorities as permitted or required for the purposes of Part IAB or IABA of the Crimes Act or any other law of the Commonwealth.

340. "Customs" in this context means the ACBPS under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015 these amendments will:

•

delete the reference to "Customs" in subparagraph 7A(ca)(iii) and substitute a reference to the "Immigration and Border Protection Department"; and

•

insert a definition of "Immigration and Border Protection Department" into subsection 4(1) to mean "the Department administered by the Minister administering the Australian Border Force Act 2015".

341. This will enable the ACC to assist the integrated Department in making applications for integrity authorities as permitted or required under the Crimes Act or any other law of the Commonwealth.

Australian Nuclear Science and Technology Organisation Act 1987

Items 9 and 10 - Subsection 3(1); and subsection 3(1) (paragraph (c) of the definition of law enforcement agency )

342. The definition of "law enforcement agency" includes a reference to Customs. Under this Act, one of the functions of the Australian Nuclear Science and Technology Organisation is to condition, manage and store radioactive materials and radioactive waste at the request of a law enforcement agency. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015 these amendments will:

•

delete the reference to "Customs" in subsection 3(1) and substitute a reference to the "Immigration and Border Protection Department"; and

•

insert a definition of "Immigration and Border Protection Department" into subsection 3(1) to mean "the Department administered by the Minister administering Part XII of the Customs Act 1901".

Australian Postal Corporation Act 1989

Items 11 and 14 - Section 90E (paragraph (a) of the definition of compliance agency ); and section 90E

343. The definition of "compliance agency" in the Australian Postal Corporation Act 1989 (APC Act) includes a reference to "Customs". Under the APC Act, Australia Post may make certain requests of a compliance agency in relation to mail articles. "Customs" in this context means the ACBPS established under the Customs Administration Act. Due to the repeal of this Act and the abolition of the ACBPS on 1 July 2015, these amendments will:

•

delete the reference to "Customs" in paragraph (a) of the definition of compliance agency and substitute a reference to the "Immigration and Border Protection Department"; and

•

insert a definition of "Immigration and Border Protection Department" into section 90E to mean "the Department administered by the Minister administering Part XII of the Customs Act 1901".

344. This means Australia Post may make such a request to the Department.

Item 13 - Subsection 90E (definition of customs officer )

345. This item corrects a technical error in the definition of "customs officer" by omitting the reference to "an Officer of Customs" and substituting it with "an officer of Customs".

346. This will ensure that the terminology is consistent with the definition of "officer of Customs" in the Customs Act.

Items 15, 18 and 20 - Subsections 90T(1) to (5) and (7); sections 90V(2) and (2A); and paragraph 90ZC(2)(a)

347. This item corrects a technical error by omitting references to "Customs officer" (wherever occurring) and substituting "customs officer".

348. This will ensure references to "customs officer" are consistent with the definition contained in section 90E.

Items 12, 16 and 17 - Section 90E; and subsection 90T(8)

349. Section 90T of the APC Act makes provision for articles which are reasonably believed to consist of, or contain, certain drugs or other chemical compounds. Pursuant to subsection 90T(8), Customs must establish and maintain, in accordance with the regulations made for the purposes of this section, a record setting out, in respect of each article that is removed from the normal course of carriage and opened for the purpose of its examination by customs officer:

•

particulars of the article; and

•

particulars of the nature of the examination of the article and its contents; and

•

whether the article and its contents were, following the examination, dealt with according to law or returned to the normal course of carriage.

350. Due to the abolition of the ACBPS, these items will:

•

amend subsection 90T(8) to omit "Customs must" and substitute "The Comptroller-General of Customs must"; and

•

insert a definition of Comptroller-General of Customs into section 90E to mean "the person who is the Comptroller-General of Customs in accordance with subsection 11(3) or 14(2) of the Australian Border Force Act 2015".

Item 19 - Subsection 90V(2A)

351. Subsection 90V(2A) requires a customs officer who opened an article under section 90T to endorse on the cover of the article, or affix a label to its over, a notification that the article has been opened by Customs that briefly explains (by reference to section 90T or otherwise) why the article was opened. Due to the abolition of the ACBPS, this item replaces the reference to "opened by Customs" in this subsection with "opened by a customs officer". "Customs officer" is defined in section 90E to mean an "officer of Customs" within the meaning of the Customs Act.

Item 21 - Transitional provision

352. This item contains a transitional provision in relation to a record established by Customs before the commencement of this item under subsection 90T(8). Any such record established by Customs under this provision immediately before the commencement of this item will be taken to be a record established by the Comptroller-General of Customs on and after the commencement of this item.

Civil Aviation Act 1988

Item 22 - Section 3 (paragraph (b) of the definition of authority of the Commonwealth )

353. The definition of "authority of the Commonwealth" includes a reference to "Customs" under paragraph (b) of this definition.

354. Due to the abolition of the ACBPS, this item repeals paragraph (b) of this definition. This is no need to substitute the reference to "Customs" with anything because the "Immigration and Border Protection Department" is already covered by the definition of "Commonwealth entity" in section 32AN of this Act. Under section 32AO of this Act, a recording is a cockpit voice recording for the purposes of Part IIIB if, amongst other things, at the time when the recording was made, the aircraft was owned or operated by a constitutional corporation or Commonwealth entity.

Item 23 - Transitional provision

355. This item contains a transitional provision in relation to subparagraph 32AO(1)(c)(ii). This subparagraph provides that a recording is a cockpit voice recording for the purposes of Part IIIB if, amongst other things, at the time when the recording was made, the aircraft was owned or operated by a constitutional corporation or Commonwealth entity.

"Commonwealth entity" is defined in section 32AN to include an "authority of the Commonwealth". However, because "Customs" is being repealed from the definition of "authority of the Commonwealth" this transitional provision will mean that a recording on an aircraft owned or operated by Customs before 1 July 2015 will still be a cockpit voice recording for the purposes of Part IIIB of the Act, on and after 1 July 2015.

Commerce (Trade Descriptions) Act 1905

Item 24 - Section 3 (definition of Trade description )

356. The Trade Descriptions Act sets out the requirements for imported and exported goods into and from Australia, in particular the proper and accurate labelling and description of such goods. The definition of "Trade description" includes a reference to a "Customs entry". This item omits the reference to "a Customs entry" and substitutes "an import entry". This amendment will remove the obsolete reference to "Customs" following the abolition of the ACBPS on 1 July 2015.

Item 25 - Subsection 6(1)

357. This subsection requires every person who intends to export any goods of a kind or class that are required to be inspected or examined by an officer to, if required by the regulation, before the goods are shipped, give notice to the Customs of his or her intention to export the goods and of the place where the goods may be inspected.

358. Due to the abolition of the ACBPS on 1 July 2015, this item omits the reference to "the Customs" and substitutes "an officer". "Officer" is defined in section 3 of the Act to mean an officer of Customs and pursuant to section 2, the Act is to be incorporated and read as one with the Customs Act.

Item 26 - Transitional provisions

359. This item contains transitional provisions in relation to:

•

a Customs entry such that any Customs entry relating to goods made before the commencement of this item will be taken to be an import entry relating to the goods on and after the commencement of this item; and

•

a notice given to the Customs under subsection 6(1) before the commencement of this item such that any notice given to the Customs before the commencement of this item will be taken to have been given to an officer on and after commencement of this item.

Crimes Act 1914

>Amendments relating to controlled operations

360. Part 1AB of the Crimes Act sets out the provision governing the authorisation, conduct and monitoring of controlled operations. A controlled operation is an operation that involves the participation of law enforcement officers, that is carried out for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious Commonwealth offence or a serious State offence that has a federal aspect, and that may involve a law enforcement officer or other person in conduct that would, apart from section 15HA, constitute a Commonwealth offence or an offence against a law of a State or Territory.

361. Presently, an officer of Customs may apply for an authority to conduct a controlled operation on behalf of Customs. Officers of Customs can perform other roles under Part 1AB and can be authorised to be involved in a controlled operation. Any officers of Customs involved in a controlled operation are exempt from criminal liability for a Commonwealth offence or offence against a law of a State or Territory in respect of conduct engaged in in the course of, and for the purposes of, the controlled operation.

362. With increasing concerns about organised and transnational crime, it is vitally important that Australia's border protection arrangements continue to be able to operate with relevant powers and protections to conduct operations to counter these threats, including controlled operations. It is therefore proposed to continue to allow officers of Customs who are part of the new integrated Department to be able to perform functions under Part 1AB of the Crimes Act. This will require several amendments to Part 1AB, which are set out below and also in Schedule 6 below.

Item 28 - Section 3(1)

363. This item inserts a new definition of "officer of Customs" into subsection 3(1) of the Crimes Act, which has the meaning given by subsection 4(1) of the Customs Act. This is a technical amendment to define "officer of Customs" which is referred to in the Crimes Act under the definition of "law enforcement officer".

Item 29 - Section 15GC (paragraph (c) of the definition of chief officer )

364. The definition of "chief officer" includes a reference to the chief officer in relation to Customs. This amendment will delete the reference to "Customs" and substitute a reference to "Immigration and Border Protection Department". The substitution of the person who is the "chief officer" will be included in Schedule 6 (see item 51). In Part 1AB, the term "chief officer" is referred to in section 15HG which contains notification requirements about loss or damage to property or personal injury that occurs during the course of a controlled operation. This section will now apply in relation to the chief officer of the "Immigration and Border Protection Department".

Item 30 - Section 15GC (paragraph (c) of the definition of law enforcement agency )

365. The definition of "law enforcement agency" includes a reference to Customs. This amendment will delete the reference to "Customs" and substitute a reference to "the Immigration and Border Protection Department". In Part 1AB, the term "law enforcement agency" is referred to in section 15GH, under which an Australian law enforcement officer of a law enforcement agency may apply for an authority to conduct a controlled operation on behalf of the law enforcement agency.

366. "Australian law enforcement officer" is defined in section 3 of the Crimes Act as a law enforcement officer other than a member of a police force or other law enforcement agency of a foreign country. "Law enforcement officer" is also defined in section 3, and includes an officer of Customs.

367. This amendment means that section 15GC will now apply such that an "officer of Customs" may apply for an authority to conduct a controlled operation on behalf of the Department.

Item 34 - Subparagraphs 15GK(1)(k)(iii) and (v)

368. Section 15GK sets out the matters that must be included in a formal authority to conduct a controlled operation. These two subparagraphs require the place or places at which goods are likely to be dealt with by "Customs" and the time or times when, and the day or days on which, those goods are likely to be dealt with by "Customs". Due to the abolition of the ACBPS, this item replaces the references to "Customs" in these subparagraphs with references to "an officer of Customs".

Item 37 - Paragraph 15HG(5)(b)

369. As mentioned above, section 15HG contains notification requirements about loss or damage to property or personal injury that occurs during the course of a controlled operation. This section will now apply in relation to the chief officer of the Immigration and Border Protection Department. Under subsection 15HG(5), a chief officer may delegate any powers or functions under the section, and presently in respect of Customs, these may be delegated to a Deputy Chief Executive Officer of Customs or a person occupying an equivalent or higher position.

370. The amendment in this item will delete the reference to "Customs" and substitute a reference to the "Immigration and Border Protection Department". The substitution of the persons to whom the chief officer may delegate any powers or functions under this section will be included in Schedule 6 below (see item 52).

Item 38 - Paragraph 15J(1)(b)

Item 39 - Subparagraphs 15J(2)(c)(i) and (ii)

371. Section 15J of the Crimes Act sets out the requirement that applies where the applicant for an authority to conduct a controlled operation believes that illicit goods involved in the operation may be dealt with by Customs. The applicant must notify the CEO or a person nominated by him or her of certain matters, including the place or places at which goods are likely to be dealt with by Customs and the time or times when, and the day or days on which, those goods are likely to be dealt with by Customs.

372. Due to the abolition of the ACBPS, these items replace the references to "Customs" in these subparagraphs with references to "an officer of Customs" and "customs control under the Customs Act 1901" as appropriate.

373. The substitution of the person to whom the notification must be given will be included in Schedule 6 below (see item 53).

Amendments relating to integrity testing

374. In 2012, provisions were introduced to allow for targeted integrity testing for staff members of the AFP, ACC and the ACBPS suspected of corrupt conduct. Integrity tests are operations designed to test whether a public official will respond to a simulated or controlled situation in a manner that is illegal or would contravene an agency's standard of integrity. The introduction of integrity testing was recommended by the Parliamentary Joint Committee on the ACLEI. Integrity testing provisions are set out in Part 1ABA of the Crimes Act.

375. Officers of key law enforcement agencies are expected to maintain the highest standards of professionalism and integrity. Corruption within these agencies can have a significant detrimental effect on their ability to enforce the law. Integrity testing is only be able to be authorised by a senior officer of these agencies, and only where there is a reasonable suspicion that an offence, punishable by at least 12 months' imprisonment has been committed or is likely to be committed. This will ensure that integrity testing is conducted on a targeted basis, rather than on a random or arbitrary basis.

376. The special role the Department plays as an immigration and border protection agency with responsibilities for authorising the movement of travellers and goods across Australia's border, managing the stay in Australia and in some cases departure from Australia of non-citizens is valuable and therefore attracts a heightened integrity risk. While some of these functions will be exclusively undertaken by the part of the Department known as the ABF, others will be delivered or supported by other parts of the Department. Additionally, immigration and border protection workers will, where relevant to the performance of their duties, have access to sensitive information and engage in close working relationships with other law enforcement agencies. The consequences of any corruption in the Department, including in the part of the Department known as the ABF, would pose a significant threat to the integrity of the border and Australia's national security.

377. The ABF Act, therefore, contains a number of integrity provisions to increase resistance to criminal infiltration and corruption and to enhance government and public confidence in IBP workers, as well as the confidence of other partners including intelligence organisations and foreign governments.

378. It is additionally proposed that the existing integrity testing provisions in the Crimes Act be extended to officers of the integrated Department. The extension of integrity testing provides another important tool to enable the detection of corruption and misconduct and, in so doing, ensures the Australian community can have confidence in the integrity of the Australian border. This will require several amendments to Part 1ABA, which are set out below and also in Schedule 6 to this Bill.

Item 31 - Section 15GC (note at the end of the definition of staff member )

Item 32 - Section 15GC (paragraph (c) of the definition of target agency )

Item 33 - Subsection 15GI(1)(note 2)

Item 35 - Subsection 15GQ(1)(note 2)

Item 36 - Subsection 15GV(1)(note 2)

379. The definition of "target agency" sets out the target agencies whose staff members can be the subject of a controlled operation where an integrity testing authority is in effect. These items will omit the reference to "Customs" and substitute a reference to "the Immigration and Border Protection Department" in the definition of target agency and will update the replace the reference to "Customs" in the note to the definition of staff member and in the note to each of subsections 15GI(2), 15GQ(2) and 15GV(2) with "the Immigration and Border Protection Department".

Item 40 - Section 15JA

380. This section sets out the simplified outline for Part 1ABA and refers to the ACBPS as a target agency. This item will omit the reference to "Australian Customs and Border Protection Service" and substitute a reference to "Immigration and Border Protection Department".

Item 41 - Section 15JC (paragraph (d) of the definition of integrity testing agency )

381. This paragraph sets out that ACBPS is an integrity testing agency. Such agencies may conduct integrity testing. This item will omit the reference to "Customs" and substitute a reference to "Immigration and Border Protection Department".

Item 42 - Section 15JC (paragraph (c) of the definition of target agency )

382. This paragraph sets out that ACBPS is target agency. The staff of such agencies may be subjected to integrity testing. This item will omit the reference to "Customs" and substitute a reference to "Immigration and Border Protection Department".

Item 43 - Subsection 15JD (note 1)

Item 44 - Section 15JE (note 1)

383. These sections deal with matters relating to integrity testing. Amendments will update the note to each of subsections which sets out the agencies that are target agencies by omitting the references to "Customs" and replacing them with the "Immigration and Border Protection Department".

Item 45 - Subsection 15JS(5) (paragraph (c) of the definition of chief officer )

384. This section sets out the annual reporting requirements that must be satisfied by the chief officer of an integrity testing agency. Subsection 15JS(5) specifies that, for the ACBPS, the chief officer is the CEO.

385. This amendment will omit the reference to "Customs" and replacing it with the "Immigration and Border Protection Department". The substitution of the person who is chief officer will be included in Schedule 6 below (see item 56).

Amendments relating to assumed identities

386. Part 1AC of the Crimes Act sets out the circumstances in which law enforcement officer of a law enforcement agency may apply to the chief officer mentioned in subsection (2) for an authority for the officer or any other person to do either or both of the following:

•

acquire an assumed identity;

•

use an assumed identity

387. Part 1AC currently exempts officers of Customs from criminal liability for a Commonwealth offence or offence against a law of a State or Territory in respect of a thing done in the course of acquiring or using an assumed identity. Similar to controlled operations, it is vitally important that our new border arrangements continue to be able to operate with relevant powers and protections to conduct operations to counter these threats, including controlled operations. It is therefore proposed to continue to allow officers of Customs who are part of the new integrated Department to be able to acquire and use assumed identities under Part 1AC of the Crimes Act. This will require several amendments to Part 1AC, which are set out below and also in Schedule 6 to this Bill.

Item 46 - Section 15K (subparagraph (c)(ii) of the definition of chief officer )

388. The definition of "chief officer" in section 15K includes a reference to the chief officer in relation to Customs. This amendment will delete the reference to "Customs" and substitute a reference to the "Immigration and Border Protection Department". In Part 1AC, the term "chief officer" is referred to in section 15KA which sets out to whom an application for authority to acquire or use an assumed identity must be made. This section will now apply in relation to the chief officer of the Department. The substitution of the person who is the chief officer will be included in Schedule 6 below (see item 57).

Items 47 and 48 - Section 15K (paragraph (b) of the definition of law enforcement agency and definition of law enforcement officer )

389. The definition of "law enforcement agency" includes a reference to "Customs". This amendment will delete the reference to "Customs" and substitute a reference to "the Immigration and Border Protection Department". In Part 1AB, the term "law enforcement agency" is referred to in section 15KA, under which a law enforcement officer of a law enforcement agency may apply to their chief officer for an authority to acquire or use an assumed identity.

390. The definition of "law enforcement officer" is also defined in section 15K and includes, in relation to Customs, an officer of Customs. This amendment will delete the reference to "Customs" and substitute a reference to the "Immigration and Border Protection Department".

Item 49 - Paragraph 15KB(4)(b)

391. Where an authority in relation to an assumed identity is granted under section 15KB for an authorised civilian, the chief officer must appoint an officer to supervise the acquisition or use of the assumed identity by the authorised civilian. Under paragraph 15KB(4)(b) in relation to the ACBPS, a supervisor must be a person who holds the position, or performs the duties, of a Customs Level 4 officer, or an equivalent or higher position, in Customs.

392. This amendment will omit paragraph 15KB(4)(b) and substitute in the case of the Immigration and Border Protection Department-"an APS employee who holds or performs the duties of an Executive Level 1 position, or an equivalent or higher position, in that Department".

Item 50 - Subsection 15LH(3) (paragraph (b) of the definition of senior officer )

393. Section 15H provides that a chief officer may delegate certain powers or functions under Part 1AC to the senior officer of the law enforcement agency and presently in respect of Customs, these may be delegated to an Senior Executive Service (SES) employee of staff or a person occupying an equivalent or higher position.

394. The amendment in this item will delete the reference to "Customs" and substitute a reference to the "Immigration and Border Protection Department". The reference to "an SES employee" will be changed to "any SES employee in that Department".

Amendments relating to witness protection for operatives

395. Part 1ACA of the Crimes Act sets out the circumstances in which the chief officer of a law enforcement agency may give a witness identity protection certificate for an operative in relation to a proceeding if:

•

the operative is, or may be required, to give evidence in the proceeding; and

•

the chief officer is satisfied on reasonable grounds that the disclosure in the proceeding of the operative's identity or where the operative lives is likely to:

-

endanger the safety of the operative or another person; or

-

prejudice any current or future investigation; or

-

prejudice any current or future activity relating to security.

396. An "operative" means a person who is or was:

•

a participant in a controlled operation authorised under Part IAB; or

•

authorised to acquire and use an assumed identity under Part IAC by the chief officer of a law enforcement agency.

397. As controlled operations and assumed identities regimes are to be extended to officers of Customs in the integrated Department, so is the witness protection regime.

Item 51 - Subsection 15M(1) (paragraph (b) of the definition of chief officer )

398. The definition of "chief officer" includes a reference to the chief officer in relation to Customs. This amendment will delete the reference to "Customs" and substitute a reference to the "Immigration and Border Protection Department". The substitution of the person who is the chief officer will be included in Schedule 6 below (see item 58).

Item 52 - Subsection 15M(1) (paragraph (b) of the definition of law enforcement agency )

399. The definition of "law enforcement agency" includes a reference to "Customs". This amendment will delete the reference to "Customs" and substitute a reference to the "Immigration and Border Protection Department".

Item 53 - Subsection 15MX(3) (paragraph (b) of the definition of senior officer )

400. Section 15MX provides that a chief officer may delegate certain powers or functions under Part 1ACA to the senior officer of the law enforcement agency and presently in respect of the ACBPS, these may be delegated to a Deputy Chief Executive Officer or a person occupying an equivalent or higher position.

401. The amendment in this item will delete the reference to "Customs" and substitute a reference to the "Immigration and Border Protection Department". The reference to an SES employee will be changed as outlined below in Schedule 6 to a SES Band 3 position, or an equivalent employee, in that Department. The substitution of the persons to whom the chief officer may delegate any powers or functions under this section will be included in Schedule 6 below (see item 59).

Item 54 - Section 85ZL (paragraph (ba) of the definition of law enforcement agency )

402. Part VIIC of the Crimes Act deals with pardons, quashed convictions and spent convictions. Under this Part, the ACBPS is currently included in the definition of "law enforcement agency" for this Part. This means that the protection against not having to disclose a spent conviction in Division 3 of that Part does not apply in certain circumstances in relation to law enforcement agencies.

403. This item omits the reference to "Customs" and substitutes a reference to "the Immigration and Border Protection Department".

Item 55 - Transitional provisions

404. This items sets out the transitional provisions for the above amendments to the Crimes Act.

The first transitional provision relates to any instrument in force before 1 July 2015 under the provisions dealing with controlled operations or integrity testing in relation to an integrity testing operation for a staff member of Customs. The effect of this transitional provision is that such an instrument continues in force after 1 July 2015 as if it was in relation to person being a staff member of the Department. For example, an authorisation to conduct an integrity test granted before 1 July 2015 in relation to Joe X who is an APS employee in the Customs will continue in force when Joe X is transferred into the Department and becomes and APS employee in the Department on 1 July 2015.

405. The effect of the second transitional provision is that any authority given to an officer of Customs to acquire and use an assumed identity in force before 1 July 2015 will continue in force on and after 1 July 2015 in relation to that same officer of Customs.

406. The effect of the third transitional provision is that any witness identity protection certificate given to an officer of Customs that is in force before 1 July 2015 will continue in force on and after 1 July 2015 in relation to that same officer of Customs.

407. The fourth transitional provision relates to exceptions to the offences of disclosing information that relates to a controlled operation or an assumed identity. These exceptions apply where the disclosure is in connection with the performance of functions or duties, or the exercise of powers, of a law enforcement agency. The effect of the fourth transitional provision is that these exceptions will continue to apply on and after 1 July 2015 where the disclosure before 1 July 2015 was in connection with the performance of functions or duties, or the exercise of powers, of Customs.

408. The fifth transitional provision relates to an authority to conduct a controlled operation. The effect of the fifth transitional provision is that if an authority granted before 1 July 2015 states the place and time at which goods are likely to be dealt with by Customs, after 1 July 2015 the authority will be taken to state the place and time at which the goods are likely to be dealt with by an officer of Customs.

409. The sixth transitional provision relates to a statutory declaration from an operative under section 15MF of the Crimes Act. An operative must give a statutory declaration of certain matters before a witness identity protection certificate for the operative can be given. The effect of the sixth transitional provision is that the amendments to the Crimes Act set out above do not affect the validity of any statutory declaration given before 1 July 2015.

Crimes (Currency) Act 1981

Items 56, 57 and 58 - Subsection 29(3); subsection 29(8) (definition of Officer of Customs ); and subsection 29(8)

410. The Crimes Currency Act makes provisions with respect to offences connected with counterfeiting of money or of certain kinds of securities and other activities injurious to the Australian currency.

411. The section 29 of the Crimes Currency Act makes provision for the forfeiture and seizure of certain goods. These items correct a technical error by:

•

omitting references to an "Officer of Customs" and substituting "An officer of Customs"; and

•

replacing the definition of "Officer of Customs" to refer to "officer of Customs".

412. This will ensure that references to "an officer of Customs" are consistent with the definition contained in the Customs Act.

Criminal Code Act 1995

Item 59 - Section 146.1 of the Criminal Code (paragraph (e) of the definition of Commonwealth law enforcement officer)

413. The Criminal Code codifies the legislation relating to criminal offences.

414. The definition of "Commonwealth law enforcement officer" includes a person employed in Customs in paragraph (e) of that definition. "Customs" in this context means the ACBPS established under the Customs Administration Act. Due to the repeal of this Act, the abolition of the ACBPS and the standing up of the ABF on 1 July 2015 this amendment will repeal paragraph (e) of the definition and substitute "a person who is an APS employee in the Department administered by the Minister administering the Australian Border Force Act 2015 and who is in the Australian Border Force (within the meaning of that Act)".

Item 60 - Saving provision

415. This item contains a savings provision to the effect that Part 7.8 of the Criminal Code (which deals with causing harm to, impersonating or obstructing Commonwealth public officials) will continue to apply on and after the commencement of this item to a thing done in relation to a person employed in the ACBPS before this item commenced.

416. For example, if on 28 June 2015 a person caused harm to a person employed in the ACBPS, then the provisions in Part 7.8 of the Criminal Code will continue to apply in relation to the harm done to a person employed in Customs on and after 1 July 2015.

Customs Depot Licensing Charges Act 1997

Items 61 and 62 - Section 3 (definition of electronic ); and (definition of line of cargo )

417. The Customs Depot Licensing Charges Act 1997 provides for the imposition of charges in relation to the licensing of depots under the Customs Act. This also includes provisions for the charge amount for depot licence application as well as for the variation of the depot licence.

418. These items amendments will:

•

repeal the definition of electronic in section 3 of the Act; and

•

omit the reference to "an electronic or documentary cargo report" from the definition line of cargo and substitute "a cargo report".

419. These amendments correct a technical error to ensure that cargo is reported consistently with the requirements in the Customs Act. Under the Customs Act, a cargo report can only be reported electronically.

Evidence Act 1995

Item 64 - Part 1 of the Dictionary (subparagraph (b)(i) of the definition of the Commonwealth document )

420. The Evidence Act 1995 (the Evidence Act) is an Act about the law of evidence, and for related purposes. The Evidence Act makes provisions for matters including the adducing of evidence, the admissibility of evidence, proof, as well as procedures and requirements relating to evidence.

421. Subparagraph (b)(i) of the definition of "Commonwealth document" includes a report of the passengers or crew on a ship or aircraft that has been communicated to Customs under section 64ACA or 64ACB of the Customs Act.

422. Due to the abolition of the ACBPS on 1 July 2015, these reports will now be communicated to the Department. As a result, this item omits the reference "to Customs" and substitutes "to the Department administered by the Minister who administers Part XII of the Customs Act 1901".

Item 65 - Transitional provision

423. This item contains a transitional provision to the effect that a report under subparagraph (b)(i) of the definition Commonwealth document in Part 1 of the Dictionary in the Evidence Act will be taken to be communicated to the Department administered by the Minister who administers Part XII of the Customs Act on and after the commencement of this item.

Excise Act 1901

Items 68 and 69 - Subsection 59AA(1); and paragraph 61E(2)(b)

424. The Excise Act 1901 (the Excise Act) imposes excise duty on various goods produced or manufactured in Australia and also sets out the numerous procedures and requirements relating to security, licences, removal of goods, movement of certain goods, amongst other powers and functions.

425. These provisions refer to goods in relation to clearance through Customs. Due to the abolition of the ACBPS on 1 July 2015, these items will omit references to "clearance through Customs" and substitute "clearance under the Customs Act 1901".

Fisheries Management Act 1991

Items 70 to 79 - Subsection 84C(1); subsection 84C(5) and subsection 84C(5) (definition of Customs vessel ); section 167B(2) (heading); subsection 167B(2); and subsection 167B(4)

426. The Fisheries Management Act 1991 (the Fisheries Act) outlines the applicable rights and permits needed to undertake fishing related activities within Commonwealth waters. Requirements for the grant of fishing rights and permits, regulation and prohibition on certain fishing and practices, fishing licences, and other procedures (including monitoring, registration, surveillance and enforcement provisions) are also set out in Fisheries Act.

427. As a consequence of the abolition of the ACBPS and the standing up of the ABF on 1 July 2015, provisions in the Fisheries Act require amendment to reflect necessary changes in terminology. These changes reflect the new organisational arrangements for the integrated Department and the ABF and do not change the scope of functions currently undertaken by Customs.

428. In particular, these items:

•

omit the reference to "a Customs vessel" in subsection 84C(1) and substitute "an Australian Border Force vessel";

•

repeal the definition of "Customs vessel" in subsection 84C(5);

•

insert a definition of "Australian Border Force vessel" into subsection 84C(5) to mean a Commonwealth ship (within the meaning of the Customs Act) that is under the command of an officer of Customs (including an officer of Customs exercising powers as an officer within the meaning of this Act) and flying the flag mentioned in section 14 of the Customs Act;

•

repeal the heading of section 167B "AFMA may give information about boats to Customs" and substitute "AFMA may give information about boats to officers of Customs";

•

omit the reference "to Customs" in subsection 167B(2) and substitute "to an officer of Customs";

•

omit the reference "from Customs" in subsection 167B(2) and substitute "from an officer of Customs";

•

omit the reference "giving Customs" in subsection 167B(2) and substitute "giving an officer of Customs";

•

omit the reference "help Customs" in subsection 167B(2) and substitute "help an officer of Customs";

•

omit the reference to "of Customs" in subsection 167B(2); and

•

insert a definition of officer of Customs in subsection 167B(4) to provide that it has the same meaning given by subsection 4(1) of the Customs Act.

Hazardous Waste (Regulation of Exports and Imports) Act 1989

Item 80 - Subsection 42(3) (note)

429. The Hazardous Waste (Regulation of Exports and Imports) Act 1989 (the HWREI Act) provides for the regulation of the export, import and transit of hazardous waste, and other related purposes. The HWREI Act provides for matters including import permits, export permits and transit permits, Ministerial orders, transportation of waste substance, and administration of the Act, amongst other provisions.

430. Subsection 42(3) of the Hazardous Waste Act refers to persons who are eligible to be appointed by the Minister to be inspectors. Pursuant to paragraph 42(3)(a) this includes officers and employees of the Commonwealth and of authorities of the Commonwealth. A note at the end of subsection 42(3) provides that paragraph (a) includes, for example, staff of Customs and of the AMSA.

431. Due to the abolition of the ACBPS on 1 July 2015, this item will omit the reference "of Customs and" in the note at the end of subsection 42(3).

Imported Food Control Act 1992

Items 81, 82, 84 and 86 - Subsection 3(1) (definition of Customs control ); subsection 3(1); subsections 11(2) and 11(3), and subsection 13(5) (note)

432. The IFC Act provides for the inspection and control of food imported into Australia, and other related purposes. The IFC Act also makes provisions for enforcement, including the power to search, apply for monitoring warrants, and seize evidence (food or other substances).

433. As a consequence of the abolition of the ACBPS and the integration of its functions into the Department on 1 July 2015, provisions in the IFC Act require amendment to reflect necessary changes in terminology. These changes reflect the new organisational arrangements for the integrated Department and do not change the scope of functions currently undertaken by Customs.

434. In particular, these items:

•

replace the definition of "Customs control" in subsection 3(1) to refer to customs control;

•

omit "to Customs" in subsection 11(2) and (3) and substitute "to the Immigration and Border Protection Department";

•

insert a definition of "Immigration and Border Protection Department" into subsection 3(1) to mean the Department administered by the Minister who administers Part XII of the Customs Act; and

•

repeal the note at the end of subsection 13(5) which refers to "Customs control" defined in subsection 3(1).

Item 83 - Subsection 11(2)

435. Subsection 11(2) provides that the regulations may provide that an entry of goods under section 71A of the Customs Act for home consumption or warehousing that is communicated to Customs by computer is to be taken, to the extent that that entry relates to examinable food, to be an application for a food control certificate for the purposes of subsection (1). This amendment will correct a technical error by inserting after "section 71A", "or 71DH". Section 71A of the Customs Act refers to import declarations for goods that are intended to be entered into home consumption and section 71DH of the Customs Act refers to warehouse declarations for goods that are intended to be entered for warehousing.

Independent National Security Legislation Monitor Act 2010

436. The Independent National Security Legislation Monitor Act 2010 (the INSLM Act) establishes the position of the National Security Legislation Monitor, which has as its standing function to review the operation, effectiveness and implications of the counter-terrorism and national security legislation and report any comments, findings and recommendations to the Prime Minister, and in turn Parliament, on an annual basis.

Item 89 - Section 4 (paragraph (c) of the definition of head )

437. Currently section 4 of the INSLM Act which contains the definition for "head" refers to the CEO in relation to Customs in paragraph (c) of this definition. Due to the repeal of the Customs Administration Act, the office of CEO will be abolished. As such, this item will repeal the definition in paragraph (c) of the definition of "head" and also amend the paragraph (c) of the definition of "law enforcement or security agency" to refer to the "Immigration and Border Protection Department". A definition for "Immigration and Border Protection Department" will also be inserted (see below).

Item 90 - Section 4

438. This item will insert a new definition under section 4 of the INSLM Act to insert the "Immigration and Border Protection Department". The "Immigration and Border Protection Department" for the purpose of the INSLM Act means "the Department administered by the Minister administering the Australian Border Force Act 2015.

Item 91 - Section 4 (paragraph (c) of the definition of law enforcement or security agency )

439. Currently section 4 of the INSLM Act defines "Customs" as a law enforcement or security agency under paragraph (c) of this definition.

440. Due to the abolition of the ACBPS, this item repeals this paragraph and replaces it with "the Immigration and Border Protection Department".

Major Sporting Events (Indicia and Images) Protection Act 2014

Item 93 - Section 4

441. The Sporting Events Act provides special protection in relation to the use for commercial purposes of indicia and images connected with certain major sporting events. The major sporting events are identified in the Schedules to the Act. These include the Asian Football Confederation (AFC) Asian Cup 2015, the Cricket World Cup 2015 and the Gold Coast 2018 Commonwealth Games. In accordance with the Sporting Events Act, a person cannot use a major sporting event's protected indicia or images for commercial purposes during the event's protection period, unless the person is an official user for the event.

442. Currently section 4 of the Sporting Events Act provides that goods that are imported into Australia that have had a major sporting event's protected indicia or images applied to them can be seized by Customs and forfeited to the Commonwealth of the designated owner's use of the indicia or images for commercial purposes in relation to the goods would contravene the prohibition in this Act.

443. Due to the abolition of the ACBPS on 1 July 2015, this item omits the reference to "Customs" in section 4 and substitutes "the Comptroller-General of Customs".

Maritime Transport and Offshore Facilities Security Act 2003

Items 95 to 99 - Paragraphs 9(2)(b) and (3)(b); section 10 (definition of customs officer ); section 10; section 10 (note at the end of the definition of maritime industry participant ); section 10 (note at the end of the definition offshore industry participant )

444. The Maritime Transport and Offshore Facilities Security Act 2003 (the MTOFS Act) makes provisions to safeguard against unlawful interference with maritime transport and offshore facilities, which includes provisions relating to maritime security levels and security directions, Maritime security plans, ship security plans and International Ship Security Certificates for regulated Australian ships, amongst others.

445. As a consequence of the abolition of the ACBPS and the integration of its functions into the Department on 1 July 2015, provisions in the MTOFS Act require amendment to reflect necessary changes in terminology. These changes reflect the new organisational arrangements for the integrated Department and do not change the scope of functions currently undertaken by ACBPS.

446. In particular, these items:

•

replace the references to "Customs" in paragraphs 9(2)(b) and (3)(b) with references to "the Immigration and Border Protection Department; or";

•

omit the reference to "an Officer" in the definition of "customs officer" in section 10 and substitute with "an officer of Customs";

•

insert a definition of "Immigration and Border Protection Department" into section 10 to mean the "Department administered by the Minister administering Part XII of the Customs Act 1901";

•

omit the reference to "Customs" from the note at the end of the definition of "maritime industry participant" in section 10 and substitute with "the Immigration and Border Protection Department"; and

•

omit the reference to "Customs" from the note at the end of the definition of "offshore industry participant" in section 10 and substitute with "the Immigration and Border Protection Department".

Migration Act 1958

Item 100 - Subsection 260(3)

447. Section 260 of the Migration Act sets out how vessels are detained pending recovery of a penalty. It provides that the Secretary may, in writing, direct an officer to detain a vessel where, in the Secretary's opinion, the master, owner, agent or character of the vessel has been guilty of an offence against that Act.

448. Under subsection 260(3), for the purposes of the detention and other lawful dealing with the vessel, the officer specified in the direction is entitled to obtain such seizure warrant issued under Division 1 of Part XII of the Customs Act or other aid as may be obtained under the law relating to the Customs with respect to the seizure of vessels or goods.

449. Due to the abolition of the ACBPS on 1 July 2015, this item omits the reference to "the law relating to the Customs" in subsection 260(3) and substitutes with "a law of the Commonwealth".

Item 101 - Subsection 260(5)

450. Subsection 260(5) provides that if, while the vessel is detained under this section, default is made in payment of any penalties imposed in respect of an offence against this Act by the master, owner, agent or character of the vessel, the Secretary may seize the vessel, and the like proceedings shall thereupon be taken for forfeiting and condemning the vessel as in the case of a vessel seized for breach of the law relating to the Customs, and the vessel shall be sold.

451. Due to the abolition of the ACBPS on 1 July 2015, this item omits the reference to "the law relating to the Customs" in subsection 260(5) and substitutes "the Customs Act 1901".

National Health Act 1953

Item 102 to 106 - Subsection 99ZH(1) (definition of Customs documentation purposes ); subsection 99ZH(1); section 99ZM (heading); section 99ZN (heading); and subsection 99ZN(6)

452. The National Health Act 1953 (the Health Act) sets out the provisions relating to pharmaceutical, sickness and hospital benefits, and medical and dental services, amongst other matters.

453. As a consequence of the abolition of the ACBPS and the integration of its functions into the Department on 1 July 2015, provisions in the Health Act require amendment to reflect necessary changes in terminology. These changes reflect the new organisational arrangements for the integrated Department and do not change the scope of functions currently undertaken by ACBPS.

454. In particular, these items:

•

omit the reference to "enabling Customs" in the definition of "Customs documentation purposes" and substitute "enabling the Immigration and Border Protection Department";

•

insert a definition of "Immigration and Border Protection Department" into subsection 99ZH(1) to mean the "Department administered by the Minister administering Part XII of the Customs Act 1901";

•

repeal the heading of section 99ZM "Customs may detain some drug like substances and not others" and substitute with "Detention of some drug like substances and not others";

•

repeal the heading of section 99ZN "Customs treatment of detained substances and retained documents" and substitute with "Treatment of detained substances and retained documents"; and

•

omit "Customs must" from subsection 99ZN(6) and substitute with "the Comptroller-General of Customs must".

Navigation Act 2012

455. The stated objects of the Navigation Act are:

•

to promote the safety of life at sea; and

•

to promote safe navigation; and

•

to prevent pollution of the marine environment; and

•

to ensure that the AMSA has the necessary power to carry out inspections of vessels and enforce national and international standards.

456. In respect of safe navigation, the Navigation Act sets out provisions in relation to a "customs vessel". A customs vessel is a vessel used or for the purposes of ACBPS and is declared by AMSA to be a customs vessel. A customs vessel will be deemed to have complied with certain provisions in the Navigation Act if there is a customs vessel management plan in place for the customs vessel. AMSA will not declare a vessel to be a customs vessel until there is a customs management vessel plan in place.

457. A customs vessel management plan addresses the fact that the requirements of the Navigation Act are not well suited to vessels in the ACBPS fleet. The Act was written for commercial cargo and passenger vessels, and there are a number of tasks performed by customs vessels in their law enforcement role where compliance with Navigation Act requirements is not appropriate. The customs vessel management plan allows for ACBPS to develop alternative risk-based standards where required by the law enforcement nature of customs vessels' operations.

458. As a consequence of the abolition of ACBPS, the terms "customs vessel" and "customs vessel management plan" are to be amended to reflect the new integrated Department and the standing up of the ABF. These changes in terminology reflect the new organisational arrangements for the integrated Department and the standing up of the ABF on 1 July 2015 and do not change the scope of maritime border protection functions currently undertaken by ACBPS.

Item 107 - Section 11 (heading)

459. This item amends the heading to section 11 to omit the reference to customs vessels. The new heading is "Application of Act to certain Australian Border Force vessels".

Items 108 and 109, and 111 - Section 11 and Subparagraphs 11(a)(ii) and (iii)

460. These items omit the references to "a customs vessel" in section 11 and substitute them with references to "an Australian Border Force vessel".

Item 110 - Paragraph 11(a)

461. This item will omit the reference to "customs vessel management plan" and substitute a reference to "Australian Border Force vessel management plan". This will mean that an ABF vessel management plan will need to be developed for an ABF vessel under section 11 after 1 July 2015.

Item 112 - Paragraph 11(b)

462. This item complements the previous two items by omitting the phrase that refers to the customs vessel management plan and substituting a phrase that refers to the ABF vessel management plan. The effect is that an ABF vessel will not have to comply with certain provisions in the Navigation Act if there is an ABF vessel management plan in place for that vessel.

Items 113 and 114 - Subsection 14(1) and Subsection 14(1)(definition of customs vessel )

463. These items repeal the definition of "customs vessel" and insert a new definition of "Australian Border Force vessel" in section 14 of the Navigation Act. The new definition refers to section 17 of the Navigation Act.

Item 115 - Subsection 14(1) (definition of officer of Customs )

464. This item corrects a technical error in the definition of "officer of Customs" by omitting "Officer" and substituting "officer of Customs".

Item 116 - Subsection 15(2)

465. This item amends subsection 15(2) by omitting the reference to "a customs vessel" and substitute it with a reference to "an Australian Border Force vessel". Section 15 sets out the definition of "regulated Australian vessel" for the purposes of the Navigation Act and this will mean that an ABF vessel will become a regulated Australian vessel.

Items 117 to 122- Section 17 (heading); subsection 17(1); paragraph 17(1)(a); paragraph 17(1)(b); subsection 17(1) (note); and subsection 17(2)

466. The combined effect of these items is to amend the definition of "customs vessel' in section 17 of the Navigation Act to substitute with the new inserted definition of "Australian Border Force vessel".

467. A vessel will be an ABF vessel if it used for the purposes of the ABF (within the meaning of the ABF Act) and is declared by AMSA to be an ABF vessel.

468. These items will also repeal the note to subsection 17(1) which refers to the Customs Administration Act which is to be repealed.

Items 123, 124 and 125 - Section 237 (heading); section 237; and subsection 240(4)

469. Parts 2 and 3 of Chapter 7 of the Navigation Act set out powers in relation to wrecks and salvage respectively. Sections 237 and 240 state that powers exercisable under these Parts respectively do not derogate from or interfere with the powers of the ACBPS, the CEO or an officer of Customs conferred by any Act.

470. As a consequence of the abolition of Customs and the office of CEO, these items will amend these provisions to omit the references to Customs and the CEO.

Items 126 to 132 - Subsection 244(3); paragraph 249(1)(a); section 252 (heading); subsection 252(3) (heading); subsection 252(3); subsection 252(4); and subsection 252(6)

471. Chapter 8 of the Navigation Act sets out the enforcement powers for the Act which includes powers that are presently exercisable by ACBPS. Under section 252 of the Navigation Act, ACBPS may detain a vessel in certain circumstances, where an application has been made to clear the vessel under the Customs Act for a voyage from an Australian port.

472. As a result of the abolition of Customs, the combined effect of the amendments in these items is to delete all references to Customs in these provisions and substitute with references to officers of Customs. These amendments do not otherwise affect the operation of these provisions.

Item 133 - Paragraph 253(a)

473. This item corrects an incorrect cross-reference in this section to section 247 of the Navigation Act. The correct cross-reference is to section 248. This is a technical amendment only.

Items 134 and 135 - Paragraph 313(2)(a); and paragraph 313(2)(b)

474. These items correct incorrect cross-references in these paragraphs to section 249 and 251 respectively of the Navigation Act. The correct cross-references are to section 250 and subsection 252(3) respectively. These are technical amendments only.

Item 136 - Transitional provisions

475. This item contains three transitional provisions. First, in relation to the detention of a vessel under section 252 of the Navigation Act by ACBPS. This provision ensures that a vessel detained by Customs immediately before the comment of this item, that is 1 July 2015, will continue to be detained by an officer of Customs after that date.

476. Second, in relation to a declaration made by AMSA under section 17, such declaration in effect under section 17 immediately before the commencement of this item, that is 1 July 2015, that relates to a customs vessel continues in effect under that section on and after 1 July 2015 as if it were a declaration made in relation to an ABF vessel.

477. Third, in relation to a customs vessel management plan, such plan made under section 11 and is in effect immediately before the commencement of this item, that is 1 July 2015, that relates to a vessel or person continues in effect under that section on and after 1 July 2015 as if it were an Australian Border Force vessel management plan that relates to the vessel or person.

Offshore Petroleum and Greenhouse Gas Storage Act 2006

Item 137 - Paragraph 615(1)(d)

478. The Offshore Petroleum and Greenhouse Gas Storage Act 2006 (the OPGGS Act) provides for matters relating to petroleum exploration and recover, the injection and storage of greenhouse gas substances in offshore areas, as well as other purposes.

479. This item corrects a technical error in the definition of authorised person for the purposes of Part 6.6 of Chapter 6 within the OPGGS Act by omitting the reference to "officer of customs" within paragraph 615(1)(d) and substituting it with "officer of Customs".

480. This will ensure that the terminology is consistent with the definition of "officer of Customs" in the Customs Act.

Item 138 - Paragraph 695X(2)(e)

481. Paragraph 695X(2)(e) refers to "Customs" as an agency to which the CEO of the National Offshore Petroleum Safety and Environmental Management Authority may make available offshore information or a thing for the agency to use in the course of the exercise of the agency's powers, or the performance of the agency's functions, under or for the purposes of the law.

482. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015, this amendment will delete the reference to "Customs" and replace it with "the Department administered by the Minister administering Part XII of the Customs Act 1901".

Item 139 - Transitional provision

483. This item contains a provision to set out a transitional provision in relation to offshore information or a thing made available to the ACBPS before 1 July 2015.

484. The effect of this provision is that for offshore information or a thing made available to Customs under subsection 695X(1) of the OPGGS Act, before 1 July 2015, it is taken on or after 1 July 2015 to have been made to the Department administered by the Minster administering Part XII of the Customs Act.

Privacy Act 1988

485. The Privacy Act provides for the protection of the privacy of individuals, and for related purposes such as information privacy, credit reporting, as well as establishing the Privacy codes and the Information Commissioner, amongst other matters.

Item 141 - Subsection 6(1) (paragraph (c) of the definition of enforcement body )

486. Section 6 of the Privacy Act provides the interpretation of certain references used within the Privacy Act. Under this section it includes a definition for the reference enforcement body. Paragraph (c) of this definition refers to "Customs".

487. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS Service on 1 July 2015, this amendment will delete the reference to "Customs".

Item 142 - Transitional provision

488. This item contains a provision to set out a transitional provision in relation to a disclosure of information to ACBPS before 1 July 2015 as mentioned in paragraph 20E(3)(d) and 21G(3)(d).

489. Both paragraph 20E(3)(d) and paragraph 21G(3)(d) refer to disclosure to an enforcement body as permitted disclosures for the purposes of these paragraphs.

490. The effect of this provision is that disclosure of information to ACBPS for the purposes of paragraphs 20E(3)(d) and 21G(3)(d) before 1 July 2015, is taken on or after 1 July 2015 to have been a disclosure to the Immigration Department. Note the Immigration Department is listed as an enforcement body under paragraph (ca) of the definition of enforcement body within section 6 of the Privacy Act.

Proceeds of Crime Act 2002

Item 143 - Subsection 15B(1) (note 1)

491. The Proceeds of Crime Act 2002 (the POC Act) provides for the confiscation of the proceeds of crime, and contains provisions relating to freezing orders, restraining orders, forfeiture orders, penalty orders and other matters.

492. Note 1 to subsection 15B(1) of the POC Act provides that paragraphs (a), (aa), (b) and (c) of the definition of "authorised officer" in section 338 cover certain persons performing functions under the POC Act for certain Commonwealth agencies including "Customs".

493. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015 this amendment will delete the reference to "Customs" and substitute it with "the Immigration and Border Protection Department".

Item 144 - Section 15C (note)

494. The note to section 15C of the POC Act provides that paragraphs (a), (aa), (b) and (c) of the definition of "authorised officer" in section 338 cover certain persons performing functions under the POC Act for certain Commonwealth agencies including "Customs".

495. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015 this amendment will delete the reference to "Customs" and substitute it with "the Immigration and Border Protection Department".

Item 145 - Subsection 15D(1) (note)

496. The note to subsection 15D(1) of the POC Act provides that paragraphs (a), (aa), (b) and (c) of the definition of "authorised officer" in section 338 cover certain persons performing functions under the POC Act for certain Commonwealth agencies including "Customs".

497. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015 this amendment will delete the reference to "Customs" and substitute it with "the Immigration and Border Protection Department".

Item 146 - Subsection 15P(1) (note)

498. The note to subsection 15P(1) of the POC Act provides that paragraphs (a), (aa), (b) and (c) of the definition of "authorised officer" in section 338 cover certain persons performing functions under the POC Act for certain Commonwealth agencies including "Customs".

499. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015 this amendment will delete the reference to "Customs" and substitute it with "the Immigration and Border Protection Department".

Protection of Movable Cultural Heritage Act 1986

500. The Protection of Movable Cultural Heritage Act 1986 (the PMCH Act) provides for the protection of Australia's heritage of movable cultural objects, to support the protection by foreign countries of their heritage of movable cultural objects, and other related purposes. The PMCH Act provides for matters such as the exportation, importation of, and the enforcement regime with respect to, such movable cultural objects.

Item 147 - Subsection 3(1)

501. Subsection 3(1) of the PMCH Act provides for the interpretation of various references used within the PMCH Act.

502. A Customs officer is referred to in the PMCH Act in the context of someone who is able to deliver an object, being a movable cultural object, to an inspector under section 203T of the Customs Act.

503. This item will insert into subsection 3(1) the definition of "officer of Customs", which as a result of Item 148 below, omits and substitutes the reference to "a Customs officer". The new definition will read "officer of Customs has the meaning given by subsection 4(1) of the Customs Act 1901".

Item 148 - Subsection 27(2)

504. This item will omit the reference to "a Customs officer" and substitute it with "an officer of Customs".

505. This will ensure that the terminology is consistent with the definition of "officer of Customs" in the Customs Act.

Surveillance Devices Act 2004

506. The Surveillance Devices Act 2004 (the Surveillance Devices Act) sets out the powers of the Commonwealth law enforcement agencies with respect to surveillance devices and other related purposes, including provisions with respect to warrants, emergency authorisations, and compliance and monitoring, amongst other matters.

Item 149 - Subsection 6(1)

507. Subsection 6(1) of the Surveillance Devices Act provides for the definition of certain references used throughout the Act.

508. This item will insert for the purposes of the Surveillance Devices Act a definition for "Immigration and Border Protection Department" which means "the Department administered by the Minister administering the Australian Border Force Act 2015."

Item 150 - Subsection 6(1) (paragraph (c) of the definition of target agency )

509. Paragraph (c) of the definition of "target agency" in subsection 6(1) of the Surveillance Devices Act refers to "Customs" as being a target agency.

510. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015, this amendment will delete the reference to "Customs" and substitute it with "the Immigration and Border Protection Department".

Item 151 - Transitional provisions

511. This item sets out the transitional provisions in relation to:

•

a surveillance device warrant in force before 1 July 2015, being a warrant issued as a result of an application under subsection 14(3B) of the Surveillance Devices Act in relation to a staff member of Customs; or

•

an application for a warrant under subsection 14(3B) of the Surveillance Devices Act in relation to a staff member of Customs that was pending immediately before 1 July 2015.

512. The effect of this provision is that where a warrant under section 14(3B) is in force or an application for such a warrant is pending prior to 1 July 2015 in relation to a staff member of Customs, that warrant will remain in force or the application will remain in force, with respect to that staff member.

513. This item also provides for a transitional provision so that section 45A of the Surveillance Devices Act, as in force before 1 July 2015 will continue to apply after 1 July 2015.

514. Section 45A of the Surveillance Devices Act provides that protected information may be used, recorded, communicated or published, or may be admitted in evidence, if it is necessary do so for a number of listed purposes related to integrity operations.

515. The effect of this provision is that any protected information related to integrity operations which was used, recorded, communicated or published or admitted in evidence prior to 1 July 2015 may also be used, recorded, communicated or published or admitted in evidence post 1 July 2015 if it is in relation to a person who was a staff member of Customs at any time prior to 1 July 2015 and it is necessary for a purpose listed in relation to integrity operations.

516. The item also provides that the amendments to the Surveillance Devices Act made under this Schedule to this Bill do not affect the validity of a retrieval warrant in force immediately before 1 July 2015.

517. This provision will enable a law enforcement officer to retrieve a surveillance device after 1 July 2015 if a retrieval warrant was in place immediately prior to 1 July 2015.

Taxation Administration Act 1953

Item 152 - Subsection 155-15(1) in Schedule 1 (cell at table item 3, column 2)

518. Column 2 of table item 3 within the table at subsection 155-15(1) in Schedule 1 of the Taxation Administration Act 1953 (the Taxation Administration Act) provides that Customs is a recipient for a document with respect to a self-assessment about the GST payable by a person on a taxable importation.

526. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015, this amendment will delete the reference to "Customs" and substitute it with "the Collector (within the meaning of the Customs Act 1901) or the Department administered by the Minister administering Part XII of that Act".

Item 153 - Paragraph 155-20(1)(a) in Schedule 1

527. Paragraph 155-20(1)(a) in Schedule 1 of the Taxation Administration Act provides that the Commissioner of Taxation is treated as having made an assessment of a taxpayer's GST, Luxury Car Tax, or Wine Equalisation Tax liability payable on a taxable importation, taxable importation of a luxury car or customs dealing if an import declaration is communicated to Customs in respect of the importation or dealing.

528. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015, this amendment will delete the reference to "Customs" and substitute it with "the Department administered by the Minister administering Part XII of the Customs Act 1901".

Item 154 - Paragraph 155-20(1)(b) in Schedule 1

529. Paragraph 155-20(1)(b) in Schedule 1 of the Taxation Administration Act provides that the Commissioner of Taxation is treated as having made an assessment of a taxpayer's GST, Luxury Car Tax, or Wine Equalisation Tax liability payable on a taxable importation, taxable importation of a luxury car or customs dealing if an import declaration is communicated to Customs in respect of the importation or dealing and Customs issues an self-assessed clearance declaration advice to an entity in respect of the importation or dealing.

530. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015, this amendment will delete the second reference to "Customs" and substitute it with "a Collector (within the meaning of the Customs Act 1901)".

Item 155 - Subsection 155-20(1) in Schedule 1 (heading to column 1 in table)

531. The heading to column 1 in the table in subsection 155-20(1) refers to "Customs documents". "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015, this amendment will delete the reference to "Customs" so that the heading just refers to "documents" to be communicated.

Item 156 - Subsection 155-20(2) in Schedule 1

532. Subsection 155-20(2) in Schedule 1 of the Taxation Administration Act provides that the assessment under section 155-5 of the Act is treated as having been made on the day that Customs gives the documented mentioned in subsection 155-20(1)(b) to the entity.

533. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015, this amendment will delete the reference to "Customs" and replace it with "a Collector (within the meaning of the Customs Act 1901)".

Item 157 - Paragraph 155-20(4)(b) in Schedule 1

534. Paragraph 155-20(4)(b) in Schedule 1 includes a reference to "Customs" with respect to Customs giving a document under paragraph 155(1)(b) to the entity.

535. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015, this amendment will delete the reference to "Customs" and replace it with "a Collector (within the meaning of the Customs Act 1901)".

Item 158 - Paragraph 155-40(2)(b) in Schedule 1

536. Paragraph 155-40(2)(b) in Schedule 1 of the Taxation Administration Act provides that a notice of an amended assessment is treated as being given to the taxpayer on the day Customs gives an import declaration advice, or a self-assessed clearance declaration advice, to an entity in respect of the relevant taxable importation, taxable importation of a luxury car or customs dealing as a result of the amendment.

537. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015, this amendment will delete the reference to "Customs" and replace it with "a Collector (within the meaning of the Customs Act 1901)".

Item 159 - Saving and transitional provisions

538. This item sets out saving and transitional provisions in respect of the amendments to the Taxation Administration Act by the above items.

539. The provisions are such that:

•

section 155-15 in Schedule 1 as in force immediately before 1 July 2015 continues to apply on and after 1 July 2015 in relation to a documents mentioned in column 3 of item 3 of the table in subsection 155-15(1) that was given to Customs before 1 July 2015;

•

section 155-20 in Schedule 1 as in force immediately before 1 July 2015, continues to apply on and after 1 July 2015 in relation to a document mentioned in column 1 of item 1 or 2 of the table in subsection 155-20(1) communicated before 1 July 2015 to Customs in respect of an importation or dealing; and a document mentioned in column 2 of that table item communicated given before 1 July 2015 by Customs to an entity in respect of that importation or dealing;

•

if, before 1 July 2015, a document mentioned in column 1 of item 1 or 2 of the table in subsection 155-20(1) was communicated to Customs in respect of an importation or dealing; but before 1 July 2015, Customs had not given the document mentioned in column 2 of that table item to an entity in respect of that importation or dealing then section 155-20 in that Schedule applies on and after 1 July 2015 as if the document mentioned in column 1 of that table item had been communicated to the Department administered by the Minister administering Part XII of the Customs Act; and

•

section 155-40 in Schedule 1, as in force immediately before 1 July 2015, continues to apply on and after 1 July 2015 in relation to an advice mentioned in paragraph 155-40(2)(b) in that Schedule that was given by Customs to an entity before 1 July 2015.

Telecommunications Act 1997

Item 160 - Paragraph 47(2)(aa) of Schedule 3A

540. The Telecommunications Act 1997 (the Telecommunications Act) makes provisions about telecommunications and other related purposes. These provisions deal with matters including network units, carriers, service providers, industry codes and industry standards, amongst others.

541. Paragraph 47(2) of Schedule 3A of the Telecommunications Act provides for the relevant authorities to whom the ACMA must notify, if they declare a protection zone under clause 4 of Schedule 3A of the Act or vary or revoke a declaration under clause 23 of Schedule 3A of the Act.

542. Paragraph 47(2)(aa) references the "Australian Customs and Border Protection Service" as such an authority to which ACMA must notify.

543. The "Australian Customs and Border Protection Service" in this context means the ACBPS as established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015, this amendment will delete the reference to the "Australian Customs and Border Protection Service" and substitute it with "the Department administered by the Minister administering Part XII of the Customs Act 1901".

Item 161 - Transitional provision

544. This item provides for a transitional provision, such that a notification given under subclause 47(1) of Schedule 3A before 1 July 2015 to the ACBPS is taken on or after 1 July 2015 to have been a notification given to the Department administered by the Minister administering Part XII of the Customs Act.

Telecommunications (Interception and Access) Act 1979

545. The stated general purpose of the TIA Act is to prohibit the interception of, and other access to, telecommunications except where authorised in special circumstances. Interception and access of telecommunications under the Act can be undertaken by certain bodies that come with the definition of "criminal law enforcement agency" and "enforcement agency".

546. ACBPS is currently included in the definition of "criminal law enforcement agency" as it is prescribed in regulations made for the purposes of that definition. The Department is currently not a criminal law enforcement agency, but is an enforcement agency under paragraph (n) of that definition as it is a body that has the function of administering a law imposing a pecuniary penalty. A criminal law enforcement agency is a subset of agencies that are enforcement agencies, being bodies covered by paragraphs (a) to (k) of the definition of "criminal law enforcement agency". The powers available to a criminal law enforcement agency are the same as the powers available to an enforcement agency. The only difference is that a criminal law enforcement agency can seek authority to access prospective telecommunications.

547. It is proposed that the integrated Department will gain the status as a "criminal law enforcement agency". This will enable the continued operation capability of key activities currently performed by the ACBPS, which will in the future be undertaken within the integrated Department.

Item 162 - Subsection 5(1) (after paragraph (d) of the definition of enforcement agency )

548. This item will insert a new paragraph (da) into the definition of "enforcement agency". Therefore, by virtue of the definition of "criminal law enforcement agency", the Department will automatically become a "criminal law enforcement agency".

Item 163 - Subsection 5(1)

549. This item will insert a definition of the "Immigration and Border Protection Department" for the purposes of the TIA Act, which will means the Department administered by the Minister administering Part XII of the Customs Act.

Items 164 to 170 - Subsection 5(1) (definition of permitted purpose ); subsection 5(1) (paragraphs (a) and (aaa) of the definition of permitted purpose ); subsection 6S(1); subsection 6S(1) (table, heading to column 1); subsection 6S(1) (table item 1, column 1, paragraph (d)); subparagraph 68(n)(i); and subparagraphs 68(o)(i) and (ii)

550. Under the TIA Act, lawfully intercepted information and interception warrant information that is obtained by certain agencies can be communicated to persons for use for very limited permitted purposes or in limited circumstances under sections 67 and 68 of the TIA Act respectively. Some of these permitted purposes and circumstances currently relate to the ACBPS and are set out in a table in section 6S of the TIA Act and in section 68 itself respectively.

551. The amendments in these items will ensure that the lawfully intercepted information and interception warrant information can be communicated to persons to instead use for permitted purposes or in circumstances that relate to the integrated Department.

552. The amendments in items 162 to 170 could be affected by other proposed amendments to the TIA Act that are contingent on the enactment of the Data Retention Amendment Act. These proposed amendments are set out in the clause notes for Schedule 8 below(contingent amendments).

Schedule 6-Amendments of Acts referring to the CEO of Customs

553. Schedule 6 to this Bill contains amendments to various laws of the Commonwealth. This Schedule makes contingent and consequential amendments addressing the abolition of the office of the CEO as a result of the repeal of the Customs Administration Act.

A New Tax System (Goods and Services Tax) Act 1999

Items 1 to 2 - Paragraph 117-5(1)(a); transitional provision

554. The A New Tax System (Goods and Services Tax) Act 1999 (the GST Act) imposes GST, including on goods imported into Australia (a taxable importation).

555. Under paragraph 117-5(1)(a) of the GST Act, the CEO currently has the power to determine the cost of materials, labour and other charges involved in the repair or renovation of goods that are exported from Australia for repair or renovation. This cost is used in determining the value of the taxable importation into Australia of such goods.

556. Item 1 will amend this paragraph of the GST Act to omit the reference to the "Chief Executive Officer of Customs" and substitute with the reference to the "Comptroller-General of Customs". This will mean that this determination will now be made by the Comptroller-General of Customs.

557. Item 2 contains a transitional provision for this amendment, such that determinations made under paragraph 117-5(1)(a) of the GST Act by the CEO before the commencement of the item has effect on or after commencement as if it had been made by the Comptroller-General of Customs.

Anti-Money Laundering and Counter-Terrorism Financing Act 2006

558. The stated objects of the AMLCTF Act include fulfilling Australia's international obligations, and to address matters of international concern, including in relation combating money laundering; and the financing of terrorism.

559. The objects of this Act are achieved by (among other things) requiring information to be given to the Australian Transaction Reports and Analysis Centre (AUSTRAC) CEO and by allowing certain other agencies to access information collected by the AUSTRAC CEO.

560. Presently, the CEO has certain powers under the AMLCTF Act. To maintain, continuity upon repeal of the Customs Administration Act, it is proposed that the powers conferred on the CEO be instead conferred on the Comptroller-General of Customs.

Item 3 - Section 5

561. This item will insert a new definition of Comptroller-General of Customs. This will mean the person who is the Comptroller-General of Customs in accordance with the relevant provisions of the Australian Border Force Act 2015 (either the substantive Comptroller-General of the Acting Comptroller-General).

Item 4 - Section 5 (definition of customs officer )

562. This item will repeal the definition of "customs officer" and substitute a new definition. This will mean "an officer of Customs within in the meaning of the Customs Act 1901" (as amended by Part 1 of Schedule 1 to this Bill).

Item 5 - Section 5 (paragraph (c) of the definition of investigating officer )

563. This item will omit the reference to ""Chief Executive Officer of Customs"" in this definition and substitute a reference to the Comptroller-General of Customs. All customs officers (other than the CEO) are investigating officers under the AMLCTF Act.

Item 6 - Paragraph 49(1)(e)

564. This item will omit the reference to the ""Chief Executive Officer of Customs"" in this section and substitute a reference to the "Comptroller-General of Customs".

565. Under section 49, where a reporting entity (which includes banks, credit unions and building societies) report certain information to the AUSTRAC CEO (including transactions involving the transfer of $10,000 or more), the CEO or an investigating officer may require the reporting entity to give further information or produce certain documents.

566. The amendment in this item, in combination with the new definition of "customs officer", will enable the Comptroller-General of Customs and customs officers in the integrated Department to make such requests. It is expected that only customs officers who are in the ABF or who are performing intelligence functions in the integrated Department will be exercising the powers under section 49.

Item 7 - Subsection 61(4)

567. This item will omit the reference to the ""Chief Executive Officer of Customs"" in this subsection and substitute a reference to the "Comptroller-General of Customs".

568. Section 61 enables a customs officer to affix a notice to any part of a ship or aircraft or other place in the rules that relates to reporting obligations in relation to cross-border movements of physical currency and bearer negotiable instruments. It is an offence to interfere, remove or deface the notice, except where such conduct is authorised by the CEO. This amendment means such conduct will now be able to be authorised by the Comptroller-General of Customs.

Item 8 - Paragraphs 122(1)(h) and (3)(h)

569. This item will omit the references to the ""Chief Executive Officer of Customs"" in these paragraphs and substitute with references to the "Comptroller-General of Customs".

570. Section 122 contains restrictions on what a person who is or was a person listed in this section may do with section 49 information. Several exemptions are also included in this section. These amendments will mean that the Comptroller-General of Customs will now be subject to the restrictions, and to the exemptions.

Item 9 - Subparagraph 212(2)(a)(v)

571. This item will omit the reference to the ""Chief Executive Officer of Customs"" in this subparagraph and substitute with a reference to the "Comptroller-General of Customs".

572. This section sets out the functions of the AUSTRAC CEO and provides that in performing these functions, the AUSTRAC CEO must consult with, amongst other people, the CEO. This amendment will mean that the AUSTRAC CEO will now be required to consult with the Comptroller-General of Customs.

Item 10 - Saving and transitional provisions

573. This item contains saving and transitional provisions for these amendments.

574. First, a thing done by, or in relation to, a customs officer, being the CEO, under the AMLCTF Act before the commencement of this item has effect on and after that commencement as if it had been done by, or in relation to, a customs officer, being the Comptroller-General of Customs.

575. Second, a notice given by the CEO before the commencement of this item under subsection 49(1) of the AMLCTF Act has effect on and after that commencement as if it had been given under that subsection by the Comptroller-General of Customs.

576. Third, an authorisation given by the CEO before the commencement of this item under subsection 61(4) of the AMLCTF Act has effect on and after that commencement as if it had been given under that subsection by the Comptroller-General of Customs.

577. Fourth, despite the amendments of section 122 of the AMLCTF Act made by this Schedule, that section, as in force immediately before the commencement of this item, continues to apply on and after that commencement in relation to a person who was at any time before that commencement the CEO.

Australian Crime Commission Act 2002

Items 11 to 13 - Subsection 4(1); section 4(1) (paragraph (c) of the definition of eligible Commonwealth Board member); and paragraph 7B(2)(c)

578. The ACC Act sets out the operational, investigative, and coercive powers which the ACC is able to exercise. The ACC Board determines the priorities and strategic direction of the ACC.

579. Currently, the CEO is a member of the ACC Board under section 7B of the ACC Act and is also included in the definition of "eligible Commonwealth Board member".

580. Item 11 will amend subsection 4(1) of the ACC Act to insert a new definition of "Comptroller-General of Customs". Items 12 and 13 will amend subsection 4(1) and paragraph 7B(2)(c) respectively to omit the references to the "Chief Executive Officer of Customs" and substitute with the references to the "Comptroller-General of Customs". This will mean that the Comptroller-General will be an eligible Commonwealth Board member and will be a member of the ACC Board.

Australian Jobs Act 2013

Items 14 and 15 - Paragraph 107(1)(n); and saving provision

581. The Australian Jobs Act 2013 (the Jobs Act) requires major projects, both private and public, with a capital expenditure of $500 million or more to develop an Australian Industry Participation plan, which enables local Australian business to bid for, supply, or otherwise participate in such projects.

582. Currently, under section 107 of the Jobs Act, certain information, including protected information, may be disclosed to agencies, bodies or persons if such information will enable or assist in the performance or exercise of functions or powers of that agency, body or person. The CEO is included in the list of agencies, bodies and persons to which or whom such information may be disclosed in paragraph 107(1)(n).

583. Item 14 repeals paragraph 107(1)(n) and substitutes a new paragraph (n) referring to the "Comptroller-General of Customs (within the meaning of the Customs Act 1901)". This will mean that such information, including protected information, may be disclosed to the Comptroller-General of Customs, who may then use that information to perform or exercise his or her functions or powers.

584. Item 15 contains a saving provision for this amendment, whereby subsection 107(4) as in force immediately before the commencement of this item, continues to apply on or after commencement in relation to a person who was at any time before that commencement the CEO. This will mean that subsection 107(4) applies to a person occupying the position of the CEO prior to the commencement of this item where there is a breach of a condition imposed by the Authority in subsection 107(3), even if such position no longer exists.

Clean Energy Regulator Act 2011

Items 16 and 17 - Paragraph 49(1)(u); and saving provision

585. The Clean Energy Regulator Act 2011 (the Regulator Act) establishes the Clean Energy Regulator, which is responsible for administering the functions and powers relating to the carbon pricing mechanism and other aspects of the climate change plan.

586. Currently, section 49 of the Regulator Act, certain information, including protected information, may be disclosed to agencies, bodies or persons if such information will enable or assist in the performance or exercise of functions or powers of the agency, body or person. The CEO is included in the list of agencies, bodies and persons to which such information may be disclosed in paragraph 49(1)(u).

587. Item 16 omits the reference to "Chief Executive Officer of Customs" in paragraph 49(1)(u) and substitutes it with a reference to the "Comptroller-General of Customs (within the meaning of the Customs Act 1901)". This will mean that such information, including protected information, may be disclosed to the Comptroller-General of Customs, who may then use that information to perform or exercise his or her functions or powers.

588. Item 17 contains a saving provision for this amendment, whereby subsection 49(4) as in force immediately before the commencement of this item, continues to apply on or after commencement in relation to a person who was at any time before that commencement the CEO. This will mean that subsection 49(4) applies to a person occupying the position of the CEO prior to the commencement of this item where there is a breach of a condition imposed in subsection 49(3), even if such position no longer exists.

Commerce (Trade Descriptions) Act 1905

Items 18 to 22 - Section 1A; section 3 (definition of CEO ); section 3; subsections 7(3), 10(3), 11(3), 13(3) and 15(1); transitional provisions

589. The Trade Descriptions Act sets out the requirements for imported and exported goods into and from Australia, in particular the proper and accurate labelling and description of such goods.

590. Item 18 will amend section 1A of the Trade Descriptions Act to omit the reference to the "Chief Executive Officer of Customs" and substitute with the reference to the "Comptroller-General of Customs". This will mean that the Comptroller-General of Customs will have the general administration of the Trade Descriptions Act.

591. Items 19 and 20 will repeal the definition of "CEO" and insert a new definition for the "Comptroller-General of Customs". Consequently, item 21 will amend subsection 7(3), subsection 10(3), subsection 11(3), subsection 13(3), and subsection 15(1) to omit all references to "CEO" in those provisions and substitute with references to the "Comptroller-General of Customs".

592. Currently, if the CEO is satisfied that the owner, importer, or exporter (as the case may be) did not intentionally or recklessly contravene the regulation, falsely describe the goods, export goods not bearing the prescribed trade description, or export falsely marked goods, the CEO may by notice require the owner, importer, or exporter to address or otherwise correct the issue. These amendments will mean that such notices will now be given by the Comptroller-General of Customs. Additionally, a decision of the Comptroller-General of Customs may be subject to a review by the Administrative Appeals Tribunal.

593. Item 22 contains two transitional provisions for these amendments. First, a notice given by the CEO before the commencement of this item under paragraph 7(3)(a), paragraph 10(3)(a), paragraph 11(3)(a), or paragraph 13(3)(a) of the Trade Descriptions Act has effect on and after that commencement as if it had been given under that paragraph by the Comptroller-General of Customs. Second, an application made under subsection 15(1) of the Trade Descriptions Act before the commencement of this item for a review of a decision of the CEO had not been decided by the Administrative Appeals Tribunal before that commencement, then the application has effect on and after that commencement as if it had been made under that subsection for a review of a decision of the Comptroller-General of Customs.

Copyright Act 1968

Items 23 to 49

594. The Copyright Act 1968 (the Copyright Act) sets out the rights and protections in relation to creative and artistic works. Copyright covers the exclusive rights that are given to a creator to publish, print, perform or copy their own original work.

595. Presently, the CEO exercises several powers and functions under the Copyright Act. For example, under section 135, the CEO can be given a notice by the copyright owner objecting to the importation into Australia of the copyright material. If goods covered by the notice are imported into Australia for the purposes of trade, the CEO may seize the goods. The CEO then has several functions and powers in relation to the seized goods.

596. Items 25 to 47 will amend the relevant sections of the Copyright Act to omit all references to the "CEO" and substitute with references to the "Comptroller-General of Customs". This will mean that these functions and powers are exercisable by the Comptroller-General of Customs.

597. Items 23, 24 and 48 will, in effect, introduce a definition of "Comptroller-General of Customs" into the Copyright Act and repeal the definition of "CEO".

598. Item 49 contains a transitional provision for these amendments, such that anything done by, or in relation to the CEO under the relevant provisions of the Copyright Act before the commencement of the item has effect on or after commencement as if it had been done by, or in relation to, the Comptroller-General of Customs.

Crimes Act 1914

Amendments relating to controlled operations

599. Schedule 5 sets out the background to the proposed amendments to Part 1AB of the Crimes Act in relation to the provisions governing the authorisation, conduct and monitoring of controlled operations. The following items set out the remaining amendments to the relevant provisions in Part 1AB.

Item 50 - Subsection 3(1)

600. This item inserts a new term of "Immigration and Border Protection Department" into subsection 3(1) of the Crimes Act. The new term is defined as the "Department administered by the Minister administering the Australian Border Force Act 2015". This is a technical amendment to facilitate the meaning of other terms in subsection 3(1).

Item 51 - Section 15GC (paragraph (c) of the definition of chief officer )

601. The definition of "chief officer" includes a reference to the CEO. This amendment will substitute the person who is the chief officer which will be the Secretary of the Immigration and Border Protection Department.

Item 52 - Paragraph 15HG(5)(b)

602. As explained in the clause notes for Schedule 5, section 15HG contains notification requirements about loss or damage to property or personal injury that occurs during the course of a controlled operation. This section will now apply in relation to the chief officer of the Immigration and Border Protection Department. Under subsection 15HG(5), a chief officer may delegate any powers or functions under the section, and presently in respect of Customs, these may be delegated to a Deputy Chief Executive Officer of Customs or a person occupying an equivalent or higher position.

603. This item will amend section 15HG such that references to a Deputy Chief Executive Officer will be omitted and the amended provision will provide that the chief officer may only delegate any powers or functions under section 15HG to a person who holds or performs the duties of an SES Band 3 position, or an equivalent or higher position, in the Immigration and Border Protection Department.

Item 53 - Section 15J(heading)

604. As explained in the clause notes for Schedule 5, section 15J of the Crimes Act sets out the requirement that applies where the applicant for an authority to conduct a controlled operation believes that illicit goods involved in the operation may be dealt with by Customs. The applicant must notify the CEO or a person nominated by him or her of certain matters, including the place or places at which goods are likely to be dealt with by Customs and the time or times when, and the day or days on which, those goods are likely to be dealt with by Customs.

605. Under this item, the reference to the CEO will be omitted and the person to whom the notification must be given will be amended to refer to the Secretary of the Immigration and Border Protection Department.

Amendments relating to integrity testing

606. Schedule 5 sets out the background to the proposed amendments to Part 1ABA of the Crimes Act in relation to the integrity testing of staff members of the integrated Department of Immigration and Border Protection. The following items set out the remaining amendments to the relevant provisions in Part 1AB.

Item 54 - Subsection 15J(2)

607. This item omits the reference to "Chief Executive Officer of Customs" in subsection 15J(2) of the Crimes Act and substitutes with "Secretary of the Immigration and Border Protection Department". This is a technical amendment to reflect the abolition of the ACBPS and the office of the CEO as a result of the repeal of the Customs Administration Act in Schedule 2 above.

Item 55 - Subsection 15JE(1)(table item 3)

608. Section 15JE sets out the circumstances in which an application for an integrity testing operation can be made, who may make the application and from whom. This amendment will omit the circumstance that applies in relation to an integrity testing operation concerned with a staff member of Custom and replace it with a reference to a staff member of the Immigration and Border Protection Department. In that circumstance, a staff member of the Department may apply for an authority for an integrity testing operation from either the Secretary to the Department or an SES employee in the Department.

Item 56 - Subsection 15JS (paragraph (c) of the definition of chief officer )

609. Section 15JS of the Crimes Act sets out the annual reporting requirements that must be satisfied by the chief officer of an integrity testing agency. Subsection 15JS(5) specifies that, for Customs, the chief officer is the CEO.

610. This item will amend section 15JS to omit the reference to the CEO and to provide that the chief officer for the Department is the Secretary of the Department.

Amendments relating to assumed identities

611. Schedule 5 sets out the background to the proposed amendments to Part 1AC of the Crimes Act in relation to the regime governing the acquisition and use of an assumed identity.

Item 57 - Section 15K (subparagraph (c)(ii) of the definition of chief officer )

612. In Part 1AC, the term "chief officer" is referred to in section 15KA which sets out to whom an application for authority to acquire or use an assumed identity must be made. This item will amend the definition of chief officer in section 15K to omit the reference to the CEO and to provide that the chief officer for the Department is the Secretary of the Department.

Amendments relating to witness protection for operatives

613. Schedule 5 sets out the background to the proposed amendments to Part 1ACA of the Crimes Act in relation to the regime governing witness identity protection certificate for an operative.

Item 58 - Subsection 15M(1) (paragraph (b) of the definition of chief officer )

614. Under Part 1ACA, the chief officer of a law enforcement agency may give a witness identity protection certificate for an operative in certain circumstances. This item will amend the definition of chief officer in section 15M to omit the reference to the CEO and to provide that the chief officer for the Department is the Secretary of the Department.

Item 59 - Subsection 15MX(3) (paragraph (b) of the definition of senior officer )

615. Section 15MX provides that a chief officer may delegate certain powers or functions under Part 1ACA to the senior officer of the law enforcement agency and presently in respect of Customs, these may be delegated to a Deputy Chief Executive Officer or a person occupying an equivalent or higher position.

616. This item will amend section 15MX such that references to a Deputy Chief Executive Officer will be omitted and the amended provision will provide that the chief officer may only delegate any powers or functions under section 15MX to a person who holds or performs the duties of an SES Band 3 position, or an equivalent or higher position, in the Immigration and Border Protection Department.

Item 60 - Saving and transitional provisions

617. This item sets out the saving and transitional provisions for the amendments to Parts IAB, IABA, IAC and IACA of the Crimes Act set out above.

618. The effect of the first transitional provision is that anything done by, or in relation to, the CEO, under these Parts of the Crimes Act before the commencement of the item, that is 1 July 2015, has effect on and after 1 July 2015 as if it had been done by, or in relation to, the Secretary of the Department. For example, if under section 15J a notification has been given to the CEO about an impending controlled operation and the goods have not been dealt with by Customs by 1 July 2015, the notification will be taken to have been given to the Secretary. Another example is where the CEO of Customs has granted authority to acquire an assumed identity under section 15KB before 1 July 2015, after 1 July, that authority will continue in existence as if it had been granted by the Secretary.

619. The effect of the second transitional provision is that an application made by the CEO as mentioned in section 15KG of the Crimes Act before 1 July 2015 has effect on and after 1 July as if it had been made by the Secretary. Section 15KG sets out the circumstances in which a chief officer may apply to the Supreme Court of a State or Territory for an order that an entry in relation to an assumed identity be made in the register of births, deaths or marriages.

620. The effect of the third transitional provision is that the various protections from criminal liability, and the indemnities for liabilities, that were in force on 1 July 2015 under sections 15KN, 15KO, 15KQ, 15KR and 15KS of the Crimes Act in relation to the operation of the assumed identities regime in Part 1AC of the Crimes Act continue in effect in relation to a person who was the CEO or an officer of Customs at any time before 1 July 2015. For example, if the person who is the CEO is the beneficiary of a protection from criminal liability under section 15KN on 30 June 2015, that protection will continue on and after 1 July 2015 even though that person is no longer the CEO.

621. The effect of the fourth transitional provision is that where the CEO has made a request under section 15KX of the Crimes Act before 1 July 2015 which is still outstanding, the request has effect on and after 1 July 2015 as if it had been made by the Secretary. This section allows the chief officer to make a request to another jurisdiction for evidence in relation to an assumed identity in certain circumstances.

Criminal Code Act 1995

Item 61 - Section 146.1 of the Criminal Code (paragraph (d) of the definition of the Commonwealth law enforcement officer )

622. The Criminal Code codifies the legislation relating to criminal offences.

623. The CEO is currently included in the definition of the "Commonwealth law enforcement officer". There are specified penalties for the offences of causing harm and threatening to cause harm to a Commonwealth law enforcement officer under paragraph 147.1(1)(f) and paragraph 147.2(1)(e).

624. Item 61 will amend the definition of "Commonwealth law enforcement officer" in section 146.1 of the Criminal Code to omit the reference to the CEO and substitute with reference to the "Australian Border Force Commissioner (within the meaning of the Australian Border Force Act 2015)". This will mean that the relevant penalty in paragraph 147.1(1)(f) and paragraph 147.2(1)(e) will be applied if an offence within the scope of those paragraphs has been committed against the ABF Commissioner.

625. Item 62 contains a saving provision for this amendment, whereby Part 7.8 of the Criminal Code as in force immediately before the commencement of this item, continues to apply on and after that commencement in relation to a thing done in relation to the CEO before that commencement. This means that the penalty for an offence committed against the CEO under sections 147.1 and 147.2 will apply, even if such position no longer exists.

Customs Securities (Penalties) Act 1981

Item 63 - Section 2A

626. The Customs Securities (Penalties) Act 1981 (the Securities Act) provides for the penalties for refusal or failure to give certain securities with respect to the importation of goods into Australia.

627. Item 63 will amend section 2A of the Securities Act to omit the reference to the CEO and substitute with the reference to the "Comptroller-General of Customs (within the meaning of the Customs Act 1901)". This will mean that the Comptroller-General of Customs will have the general administration of the Securities Act.

Customs Tariff Act 1995

Items 64 to 69

628. The Customs Tariff Act 1995 (the Tariff Act) imposes a duty on goods that are imported into Australia and sets out the rate of duty that is applicable to particular goods being imported. The CEO has various powers or functions to make a determination with respect to the value of a part, component or ingredient of any goods, set the replacement duty rate for particular goods and to publish a notice regarding that replacement rate, and make a determination of the applicable percentage of the cost of materials, labour and other charges involved in the repair or renovation of particular goods.

629. Item 64 will amend subsection 3(1) of the Tariff Act to insert a new definition of "Comptroller-General of Customs". Items 65 to 68 will amend the relevant provisions of the Tariff Act to omit all references to the CEO and substitute with references to the "Comptroller-General of Customs". This will mean that these functions and powers are exercisable by the Comptroller-General of Customs.

630. Item 69 contains a transitional provision for these amendments, such that a determination made before the commencement of this item by the CEO under item 20 of Schedule 4 to the Tariff Act has effect on and after that commencement as if it had been made by the Comptroller-General of Customs.

Customs Undertakings (Penalties) Act 1981

Item 70 - Section 2A

631. The Customs Undertakings (Penalties) Act 1981 (the Undertakings Act) provides for penalties for breaches of undertakings with respect to the importation of goods into Australia.

632. Item 70 will amend section 2A of the Undertakings Act to omit the reference to the CEO and substitute with the reference to the "Comptroller-General of Customs (within the meaning of the Customs Act 1901)". This will mean that the Comptroller-General will have the general administration of the Undertakings Act.

Excise Act 1901

Item 71 - Subsection 61E(1) (definition of officer of Customs )

633. The Excise Act 1901 (the Excise Act ) imposes excise duty on goods produced or manufactured in Australia and also sets out the numerous procedures and requirements relating to security, licences, removal of goods, movement of certain goods, amongst other powers and functions.

634. Under section 61E of the Excise Act, the CEO may currently authorise a person to be an officer of Customs under the Customs Act and for that person to perform all the functions of an officer of Customs. Officers of Customs exercise certain powers under the Excise Act. Item 71 will amend subsection 61E(1) to repeal and substitute the definition of "officer of Customs". This amendment will remove the reference to CEO in that definition.

Financial Transaction Reports Act 1988

Items 72 to 76 - Subsection 3(1); subsection 3(1) (definition of customs officer ); subsection 16(6) (paragraph (c) of the definition of investigating officer ); subsection 16(6) (paragraph (d) of the definition of relevant authority ); and transitional provisions

635. The Financial Transaction Reports Act 1988 (the Reports Act) provides for the reporting of certain transactions and transfers and to impose certain obligations in relation to accounts, amongst other requirements.

636. Item 72 will amend subsection 3(1) of the Reports Act to insert a new definition of "Comptroller-General of Customs". Item 73 will amend that subsection to repeal and substitute the definition of customs officer. These amendments will remove the references to CEO in that definition.

637. Items 74 and 75 will amend paragraph 16(6)(c) and paragraph 16(6)(d) to omit the references to the CEO in the definition of "investigating officer" and the definition of "relevant authority" respectively and substitute with references to the "Comptroller-General of Customs". These amendments will mean that whilst the Comptroller-General of Customs will not be an investigating officer, he or she will be a relevant authority for the purposes of this Act.

638. Item 76 contains two transitional provisions for these amendments. First, where a thing done by or in relation to a customs officer, being the CEO under a provision of that Act, before the commencement of this item has effect on and after that commencement as if it had been done by, or in relation to a customs officer, being the Comptroller-General of Customs. Second, where a request was made before the commencement of this item by the CEO under subsection 16(4) of that Act that had not been complied with before the commencement of this item will have effect on and after that commencement as if it had been made under that subsection by the Comptroller-General of Customs.

Fisheries Management Act 1991

Items 77 to 81 - Subsection 84C(1); subsection 84C(2); paragraph 84C(3)(d); subsection 84C(5); and transitional provision

639. The Fisheries Act outlines the applicable rights and permits needed to undertake fishing related activities within Commonwealth waters. Requirements for the grant of fishing rights and permits, regulation and prohibition on certain fishing and practices, fishing licences, and other procedures (including monitoring, registration, surveillance and enforcement provisions) are also set out in Fisheries Act.

640. Under section 84C, the CEO may give directions with respect to the issue of approved firearms and other approved items of personal defence equipment to officers of Customs, the reasonable steps to ensure that such firearms and equipment are kept in secure storage when not being used, and the deployment of such firearms and equipment.

641. Items 77 to 79 will amend the relevant sections of the Fisheries Act to omit all references to the CEO and substitute with references to the "Comptroller-General of Customs". This will mean that such directions will be given by the Comptroller-General of Customs.

642. Item 80 will amend subsection 84C(5) and insert a new definition of "Comptroller-General of Customs".

643. Item 81 contains a transitional provision for these amendments, such that a direction of the CEO as mentioned in subsection 84C(1) or paragraph 84C(3)(d) of the Fisheries Act that was in force immediately before the commencement of this item continues in force on and after that commencement as if it had been given by the Comptroller-General of Customs.

Illegal Logging Prohibition Act 2012

Items 82 to 83 - Paragraph 11(b); and transitional provision

644. The Illegal Logging Prohibition Act 2012 (the Logging Act) provides powers to combat illegal logging, including requirements for importing logged timber, due diligence, processing of raw logs, and provides powers of monitoring, investigation and enforcement, amongst other powers and functions.

645. Currently, if the importation of goods is an offence under section 8 or section 9 of the Logging Act and the Secretary notifies the CEO that the Secretary wishes to apply the Customs Act to that importation, then such goods will be described as forfeited to the Crown under section 229 of the Customs Act because they were prohibited imports within the meaning of the Customs Act.

646. Item 82 will amend paragraph 11(b) to omit the reference to the CEO and substitute with the reference to the "Comptroller-General of Customs (within the meaning of the Customs Act 1901)". On commencement of this item, this will mean that the Secretary will need to notify the Comptroller-General of his or her wish to apply the Customs Act, in order to invoke forfeiture power on the basis that the goods were prohibited imports.

647. Item 83 contains a transitional provision for this amendment, such that a notification given to the CEO before the commencement of this item as mentioned in paragraph 11(b) of that Act has effect on and after that commencement as if it had been given to the Comptroller-General of Customs.

Law Enforcement Integrity Commissioner Act 2006

648. Under the LEIC Act, the ACBPS is currently listed as a law enforcement agency and is therefore subject to the jurisdiction of the ACLEI.

649. The broad objectives of the LEIC Act are to strengthen the integrity of prescribed Commonwealth law enforcement agencies and to enable the prosecution of corrupt officials and their criminal counterparts. To this end, the Law Enforcement Integrity Commissioner and staff at the ACLEI are empowered to detect and investigate corrupt conduct by using a combination of coercive information gathering and law enforcement powers.

650. The Commission for Law Enforcement Integrity focusses on serious and systemic corruption risks, such as criminal compromise, infiltration and other corruption. The Department plays a critical role in protecting Australia's sovereignty and managing the movement, each year, of millions of people and goods across the border. In fulfilling this role, immigration and border protection workers have access to secure environments, protected systems and sensitive information. Officers are also entrusted with powers to authorise or prevent the movement of people and goods across the border and also the power to grant permissions associated with the stay of non-citizens in Australia. The Australian community expect these workers to demonstrate the highest level of integrity and professionalism in the exercise of such powers and in the protection of sensitive information.

651. As a Department charged with responsibilities that are so integral to strong national security and a strong economy, however, it is only appropriate that there are strong controls in place to detect and investigate corrupt behaviour and to ensure any workers who act corruptly are prosecuted to the full extent of the law.

652. It is therefore important to ensure the ACLEI's unhindered ability to investigate suspected law enforcement related corrupt activity across the Department regardless of the role, location or job title of an individual officer. Provisions in this Schedule will extend ACLEI's jurisdiction to the Department, which is considered to be an important step in establishing a robust professional integrity system.

Item 84 - Subsection 5(1)

653. This item will insert a definition of "Australian Border Force Commissioner" into the LEIC Act. It will have the same meaning as in the ABF Bill.

Item 85 - Subsection 5(1) (paragraph (ba) of the definition of head )

654. This definition sets out various heads of government agencies for the purposes of the LEIC Act. For Customs, the head of the agency is the CEO.

655. This item will omit paragraph (ba) in the definition of "head in subsection 5(1) and substitute a new agency with a new head, being the Immigration and Border Protection Department and the Secretary of the Immigration and Border Protection Department.

656. This will mean that the Secretary must, in combination with the amendment in item 86 below, under section 19 of the LEIC Act, as soon as practicable after he or she becomes aware of an allegation, or information, that raises a corruption issue that relates to the agency, notify the Law Enforcement Integrity Commissioner in writing of the corruption issue. This notification must a description of the corruption issue and the allegation or information giving rise to the corruption issue. The Law Enforcement Integrity Commissioner may then deal with the corruption issue in accordance with the LEIC Act.

Item 86 - Subsection 5(1)

657. This item will insert a new definition of "Immigration and Border Protection Department" for the purposes of new paragraph (ba) of the definition of "head" set out above.

Item 87 - Subsection 5(1) (paragraph (ba) of the definition of law enforcement agency )

658. This definition sets out various law enforcement agencies for the purposes of the LEIC Act. Customs is currently listed as a law enforcement agency.

659. This item will omit paragraph (ba) in the definition of "law enforcement agency" and substitute a new agency, being the Immigration and Border Protection Department.

Item 88 - Subsection 10(2A)

660. Section 10 of the LEIC Act sets out the list of various agencies' staff members for the purposes of the LEIC Act. Subsection 10(2A) currently sets out the staff members of Customs.

661. This item will repeal this subsection and substitute a new subsection (2A) which will set out a new list of staff members of the Immigration and Border Protection staff members, being:

a)

the Secretary of the Immigration and Border Protection Department;

b)

the ABF Commissioner (including in his or her capacity as the Comptroller-General of Customs);

c)

an APS employee in the Immigration and Border Protection Department;

d)

a person covered by paragraph (d), (e) or (f) of the definition of "officer of Customs" in subsection 4(1) of the Customs Act; and

e)

a person covered by paragraph (f) or (g) of the definition of "officer" in subsection 5(1) of the Migration Act.

Item 89 - Paragraph 10(5)(ba)

662. Section 10 of the LEIC Act also sets out the list of persons who are secondees to various agencies for the purposes of the LEIC Act. Paragraph 10(5)(ba) currently sets out the secondees for Customs.

663. This item will repeal this paragraph and substitute a new paragraph (ba) which will set out a new secondees to the Immigration and Border Protection staff members, being persons referred to in paragraph (2A)(d) or (e) (to be inserted by item 88 above).

Item 90 - Savings provisions

664. This item sets out savings provisions in respect of the amendments to the LEIC Act by the above items.

665. The effect of the savings provision is that the unamended LEIC Act will continue to apply to conduct engaged in by a staff member of Customs, even after a staff member of Customs becomes a staff member of the Department or is no longer a staff member of Customs or the Department. The provision also makes it clear that any process begun and not concluded under the unamended LEIC Act before the commencement of the amendments will be completed under the unamended Act.

666. In those circumstances, the reference to the law enforcement agency and the reference to the head of that agency in the unamended LEIC Act are taken to be the Immigration and Border Protection Department and the Secretary of the Department, respectively.

Major Sporting Events (Indicia and Images Act) Protection Act 2014

Items 91 to 128

667. The Sporting Events Act provides special protection in relation to the use for commercial purposes of indicia and images connected with certain major sporting events. The major sporting events are identified in the Schedules to this Act. These include the AFC Asian Cup 2015 and the Cricket World Cup 2015. In accordance with the Sporting Events Act, a person cannot use a major sporting event's protected indicia or images for commercial purposes during the event's protection period, unless the person is an official user for the event.

668. Presently, the CEO exercises several powers and functions under the Sporting Events Act. For example, under section 23, the CEO can be given a notice by an official user for a sporting event objecting to the importation into Australia of copyright material. If goods covered by the notice are imported into Australia, the CEO may seize the goods under section 25. The CEO then has several functions and powers in relation to the seized goods.

669. These items will amend the relevant sections of the Sporting Events Act to omit all references to the "Customs CEO" and substitute with references to the "Comptroller-General of Customs". This will mean that these powers are exercisable by the Comptroller-General of Customs.

670. Items 91 and 92 will also introduce a definition of "Comptroller-General of Customs" into the Sporting Events Act and repeal the definition of "CEO".

671. Item 125 will amend section 41, under which both the CEO and an officer of Customs can exercise the power to determine whether a person is an owner of goods for the purposes of the definition of "designated owner". This power will now be exercisable by an officer of Customs only.

672. Item 128 contains a transitional provision for these amendments, such that anything done by, or in relation to the CEO under the relevant provisions of the Sporting Events Act before the commencement of the item has effect on or after commencement as if it had been done by, or in relation to, the Comptroller-General of Customs. This item also contains a transitional provision whereby a determination under section 41 that was in force before the commencement of the item continues in force as it were done under the amended section 41.

Maritime Powers Act 2013

Items 129 to 130 - Paragraph 114(3)(a); and transitional provision

673. The Maritime Powers Act provides for the administration and enforcement of Australian laws in maritime areas, including provisions relating to the authorising of the exercise of maritime powers, exercising such powers, and scope of maritime powers, amongst others.

674. Section 114 of the Maritime Powers Act provides that where a person owes a debt to the Commonwealth, this debt may be recovered by action in a court of competent jurisdiction. This right to recover the whole or part of the amount owing to the Commonwealth may be waived by the CEO.

675. Item 129 will amend paragraph 114(3)(a) to omit the reference to the CEO and substitute with the reference to the "Comptroller-General of Customs (within the meaning of the Customs Act 1901)". This means that the Comptroller-General of Customs will be able to waive the right to recover a debt owed to the Commonwealth.

676. Item 130 contains a transitional provision for this amendment, such that a waiver made by the CEO before the commencement of this item as mentioned in paragraph 114(3)(a) of the Maritime Powers Act has effect on and after that commencement as if it had been made by the Comptroller-General of Customs.

Narcotic Drugs Act 1967

Items 131 to 140 - Section 3; subsection 4(1) (definition of CEO ); subsection 4(1); section 6; subsection 12(1); subsection 14A(1); paragraph 14A(1)(d); subsection 22(3); subsection 24(2); transitional provisions

677. The Narcotics Drugs Act 1967 (the Narcotics Act) regulates the manufacture of, and to make other provisions with respect to, narcotic drugs in accordance with the Single Convention on Narcotic Drugs, 1961. Other provisions include the licensing of manufacturers, offences in relation to drugs, movement of drugs through Australia, and inspection of premises.

678. Item 131 will amend section 3 of the Narcotic Act to omit the reference to the CEO and substitute with the reference to the "Comptroller-General of Customs". This will mean that the Comptroller-General of Customs will have the general administration of certain provisions specified in section 3 of the Act.

679. Items 132 and 133 will amend subsection 4(1) of the Narcotics Act to repeal the definition of "CEO" and insert a new definition for "Comptroller-General of Customs".

680. Items 134 and 135 will amend section 6 and subsection 12(1) to omit all references to the CEO and substitute with references to the "Comptroller-General of Customs". This will mean that these functions or powers are vested in or exercisable by the Comptroller-General of Customs.

681. Items 136 and 137 will amend subsection 14A(1) and paragraph 14A(1)(d) to omit the bullet point numbering "(1)" and also omit the reference to the CEO and substitute with the reference to the "Comptroller-General of Customs" respectively. This means that a direction given by the Comptroller-General of Customs under section 12 of the Narcotics Act is a reviewable decision by the Administrative Appeals Tribunal.

682. Items 138 and 139 will amend subsection 22(3) and subsection 24(2) to omit all references to the CEO and substitute with the references to the "Comptroller-General of Customs". This means that such functions and powers will be exercisable by the Comptroller-General of Customs.

683. Item 140 contains three transitional provisions for these amendments. First, a direction given by the CEO before the commencement of this item under section 12 of the Narcotics Act has effect on and after that commencement as if it had been given under that section by the Comptroller-General of Customs. Second, directions given by the CEO before the commencement of this item under subsection 22(3) of the Narcotics Act have effect on and after that commencement as if they had been given under that subsection by the Comptroller-General of Customs. Third, an appointment made by the CEO before the commencement of this item as mentioned in subsection 24(2) of the Narcotics Act has effect on and after that commencement as if it had been made by the Comptroller-General of Customs.

National Health Act 1953

Items 141 to 147 - Subsection 99ZH(1) (definition of CEO of Customs ); subsection 99ZH(1); subsection 99ZN(1); paragraph 99ZN(2)(d); paragraph 99ZN(3)(b); subsections 99ZS(1) and (3); transitional provisions

684. The Health Act sets out the provisions relating to pharmaceutical, sickness and hospital benefits, and medical and dental services.

685. In particular, the CEO is subject to certain provisions relating to the manner of dealing with documents, and copies of documents, their retention, and other detained substances (see section 99ZN). The CEO also has a power to issue guidelines for the performance of functions and duties, and for the exercise of powers, by Customs officers in relation to a number of matters including the examination and inspection of items of baggage and other articles to be exported, and the detention of, dealing with and disposal of substances (see section 99ZS).

686. Items 141 and 142 will amend subsection 99ZH(1) to repeal the definition of "CEO of Customs" and insert a new definition for "Comptroller-General of Customs", respectively.

687. Items 143 to 146 will amend the relevant sections of the Health Act to omit all references to the CEO and substitute with references to the "Comptroller-General of Customs". This will mean that the guidelines and other functions or powers, will be issued, or otherwise performed or exercised, by the Comptroller-General of Customs.

688. Item 147 contains two transitional provisions for these amendments. First, a place specified by the CEO before the commencement of this item as mentioned in subsection 99ZN(1) or paragraph 99ZN(2)(d) or paragraph 99ZN(3)(b) of the Health Act has effect on and after that commencement as if it had been specified by the Comptroller-General of Customs. Second, guidelines issued by the CEO before the commencement of this item under section 99ZS of the Health Act and that were in force immediately before that commencement, such guidelines will continue to be in force on and after that commencement as if they had been issued under that section by the Comptroller-General of Customs.

Olympic Insignia Protection Act 1987

Items 148 to 165

689. The Olympic Insignia Protection Act 1987 (the Olympic Act) protects the Olympic insignia by making the Australian Olympic Committee (the AOC) the owner of copyright in the Olympic symbol and making the AOC the owner of certain Olympic designs. The Olympic Act also prohibits the commercial use of certain Olympic expressions unless the user holds a licence granted by the AOC.

690. Presently, the CEO exercises several powers and functions under the Olympic Act. For example, under section 52, the CEO can be given a notice by the AOC objecting to the importation into Australia of copyright material. If goods covered by the notice are imported into Australia, the CEO may seize the goods under section 54. The CEO then has several functions and powers in relation to the seized goods.

691. These items will amend the relevant sections of the Olympic Act to omit all references to the "Customs CEO" and substitute with references to the "Comptroller-General of Customs". This will mean that these powers are now exercisable by the Comptroller-General of Customs.

692. Item 148 and 149 will also introduce a definition of "Comptroller-General of Customs" into the Olympic Act and repeal the definition of "CEO".

693. Item 150 will amend section 50, under which both the CEO and an officer of Customs can exercise the power to determine whether a person is an owner of goods for the purposes of the definition of "designated owner". This power will be exercisable by an officer of Customs only.

694. Item 165 contains a transitional provision for these amendments, such that anything done by, or in relation to the CEO under the relevant provisions of the Olympic Act before the commencement of the item has effect on or after commencement as if it had been done by, or in relation to, the Comptroller-General of Customs. This item also contains a transitional provision whereby a determination under section 50 that was in force before the commencement of the item continues in force as if it was done under the amended section 50.

Passenger Movement Charge Collection Act 1978

Items 166 to 174

695. The Passenger Movement Charge Collection Act 1978 (the PMCC Act) provides the administration regime for a charge imposed in respect of the persons departing from Australia under the Passenger Movement Charge Act 1978.

696. Presently, the CEO has a power to authorise a person to be an authorised officer for the purposes of the PMCC Act. An authorised officer has a number of functions or powers, which includes requiring departing persons to answer questions or produce documents in order to ascertain whether a movement charge has been or will be paid, or direct that a refund be made to a departing person.

697. Items 166 and 167 will amend section 3 to omit the reference to CEO in the definition of "authorised officer" and substitute with the reference "Comptroller-General of Customs", and also insert a new definition for "Comptroller-General of Customs".

698. Items 168 and 169 will amend subsection 7(2) to omit the bullet point numbering "(2)", and also omit all references to "authorized officer" and substitute with the references "authorised officer".

699. Item 170 will amend subsection 8(1) to omit the reference to "subsection 7(2)" and substitute with the reference "section 7".

700. Items 171 to 173 will amend the relevant subsections of the PMCC Act to omit all references to "authorized officer(s)" and substitute with the references "authorised officer(s)".

701. Item 174 contains a transitional provision for these amendments, such that an authorisation given by the CEO before the commencement of this item as mentioned in paragraph (b) of the definition of "authorised officer" in section 3 of the PMCC Act has effect on and after that commencement as if it had been given by the Comptroller-General of Customs.

Proceeds of Crime Act 2002

Items 175 to 181

702. The POC Act provides for the confiscation of the proceeds of crime, and contains provisions relating to freezing orders, restraining orders, forfeiture orders, penalty orders and other matters.

703. The CEO, as the head of an enforcement agency, has a number of powers and functions under the POC Act, including giving notices to financial institutions (see section 213), disclosing the existence or operation of a monitoring order (see section 223), and having responsibility for things that have been seized under a provision of that Act (see section 254).

704. Item 175 will amend paragraph 213(3)(g) to omit the reference to the CEO and substitute with the reference to the "Comptroller-General of Customs". This will mean that the notice will now be given by the Comptroller-General of Customs.

705. Item 176 will insert a new subsection (5) at the end of section 223. This will mean that a person may be able to disclose the existence or operation of a monitoring order to the Comptroller-General of Customs, as the head of the enforcement agency.

706. Item 177 will insert a new subsection (3) at the end of section 254. This will mean the Comptroller-General of Customs, as the head of the enforcement agency, will be required to arrange for the thing that has been seized to be dealt with in accordance with the relevant provision of the POC Act, and to ensure that all reasonable steps are taken to preserve the said thing until it has been dealt with.

707. Items 178 to 180 will amend section 338 to repeal paragraph (c) of the definition of "authorised officer" and substitute with a new paragraph (c), such that an authorised officer will no longer include an officer of Customs but will instead include a person who is an APS employee in the Immigration and Border Protection Department and who is authorised by the Comptroller-General of Customs. These items will also insert a new definition for the "Comptroller-General of Customs" and a new definition for "Immigration and Border Protection Department" respectively.

708. Item 181 contains a number of transitional provisions for these amendments. First, a notice mentioned in paragraph 15Q(2)(b) or subsection 15R(2) of the POC Act that was given before the commencement of this item is taken, on and after that commencement, to have been given to the Immigration and Border Protection Department. These notices relate to an application for a freezing order.

709. Second, if a freezing order under POC Act is made before, on or after the commencement of this item and the order is made because of an application made by an authorised officer described in paragraph (c) of the definition of "authorised officer" in section 338 of the POC Act as in force immediately before that commencement, then in relation to the said order on and after that commencement, the enforcement agency is taken to be the Immigration and Border Protection Department.

710. Third, an application referred to in subsection 202(3), subsection 219(4) or subsection 225(3) of the POC Act that was made before the commencement of this item by an authorised officer described in paragraph (c) of the definition of "authorised officer" in section 338 of that Act, and which was pending immediately before that commencement, is taken on and after that commencement to be an application made by an authorised officer described in paragraph (c) of that definition as amended by this Schedule. These provisions of the POC Act relate to production order, monitoring orders and search warrants.

711. Fourth, a notice given by the CEO before the commencement of this item under subsection 213(1) of the POC Act is taken, on and after that commencement, to have been given under that subsection by the Comptroller-General of Customs. This notice relates to financial institutions being required to give information or documents to an authorised officer.

712. Fifth, a monitoring order in force immediately before the commencement of this item that, under paragraph 220(1)(d) of that Act, specifies the enforcement agency to which the information is to be provided is taken, on and after commencement, to specify the Immigration and Border Protection Department as the relevant enforcement agency.

713. Sixth, if, immediately before the commencement of this item, the CEO was the responsible custodian of a thing under section 254 of the POC Act, then on and after that commencement, the Comptroller-General of Customs is taken to be the responsible custodian of that thing. Section 254 relates to the responsibility for seized things.

Psychotropic Substances Act 1976

Items 182 to 185 - Section 2A; section 3; subsection 9(3); and transitional

711. The Psychotropic Substances Act 1976 (the Substances Act) provides approval of the ratification of the Convention on Psychotropic Substances and to give effect to that Convention with respect to certain psychotropic substances and psychotropic preparations that enter Australia in the course of consignment from one place outside Australia to another place outside Australia.

712. Items 182 and 184 will amend section 2A and subsection 9(3) to omit the references to the CEO and substitute with the references to "Comptroller-General of Customs". This will mean that the Comptroller-General of Customs will have the general administration of the Substances Act, and has the power to give directions in relation to the disposal of a psychotropic substance or a psychotropic preparation seized and deemed to be forfeited to the Commonwealth under a provision of the Act.

713. Item 183 will amend section 3 to insert a new definition of "Comptroller-General of Customs".

714. Item 185 contains a transitional provision for these amendments, such that directions given by the CEO before the commencement of this item under subsection 9(3) of the Substances Act have effect on and after that commencement as if they had been given by the Comptroller-General of Customs.

Taxation Administration Act 1953

715. Under section 355-25 of the Taxation Administration Act, it is an offence for a taxation officer to make a record of or disclose protected information. Section 355-65 sets out various exceptions to this offence, including where the record is made for or the disclosure is to the CEO and the record or disclosure is for the purposes of administering a law of Customs within the meaning of the Customs Administration Act.

Item 186 - Subsection 355-65(8) in Schedule 1 (table item 2)

716. This item will omit the existing exception that relates to Customs and substitute a new exception. Under the new exception, information can be disclosed to the Comptroller-General of Customs for the purpose of administering any Act to the extent to which the Comptroller-General of Customs has the general administration of the Act or any instrument under such an Act. This will maintain, and not extend, the existing customs-related disclosures.

717. Migration related disclosures under subsection 355-65(8) of the Taxation Administration Act will not be amended.

Item 187 - Application and transitional provisions

718. This item sets out the application and savings provisions in respect of the amendments to the Tax Administration Act by the above item.

719. The effect of the first provision is that the new disclosure circumstance will apply in relation to records or disclosures made on or after 1 July 2015, whether the information was acquired by the taxation officer before, on or after 1 July 2015.

720. The effect of the second provision is that any record or disclosure made before 1 July 2015 under the previous exception will be taken on or after 1 July 2015 to have been recorded or disclosed under the new exception.

721. Under section 355-25 of the Taxation Administration Act, it is an offence for a taxation officer to make a record of or disclose protected information. Section 355-65 sets out various exceptions to this offence, including where the record is made or the disclosure is to the CEO and the record or disclosure is for the purposes of administering a law of Customs within the meaning of the Customs Administration Act.

Telecommunications (Interception and Access) Act 1979

Item 188 - Paragraph 68(o)

722. The stated general purpose of the TIA Act is to prohibit the interception of, and other access to, telecommunications except where authorised in special circumstances. Interception and access of telecommunications under the Act can be undertaken by certain bodies that come with the definition of "criminal law-enforcement agency" and "enforcement agency".

723. Under the TIA Act, lawfully intercepted information and interception warrant information that is obtained by certain agencies can be communicated to persons for use in limited circumstances under section 68. One of these circumstances currently allows information to be communicated to the CEO in specified circumstances that relate to the ACBPS.

724. This amendment, in combination with amendments in Schedule 5, will ensure that the lawfully intercepted information and interception warrant information can be communicated instead to the Secretary in specified circumstances that relate to the integrated Department.

725. The amendment in items 188 could be affected by proposed amendments to the TIA Act that are contingent on the enactment of the Data Retention Amendment Act. These proposed amendments are set out in the clause notes for Schedule 8 of the Bill (contingent amendments).

Item 189 - Transitional provision

726. This effect of the transitional provision is that information communicated to the CEO before the commencement of this item as mentioned in paragraph 68(o) of the TIA Act is taken on and after that commencement to have been information communicated to the Secretary of the Immigration and Border Protection Department.

Therapeutic Goods Act 1989

Items 190 to 197

727. The Therapeutic Goods Act 1989 (Therapeutic Goods Act) sets out the legal requirements for the import, export, manufacture and supply of therapeutic goods in Australia, including the listing or registering of medicines, medical devices and biological products, as well as advertising, labelling and product appearance of such goods in Australia.

728. Item 190 will amend subsection 3(1) of the Therapeutic Goods Act to insert a new definition of "Comptroller-General of Customs".

729. Items 191 to 196 will amend the relevant provisions of the Therapeutic Goods Act to omit all references to the CEO and substitute with the references to the "Comptroller-General of Customs". This will mean that the Secretary will need to notify the Comptroller-General of Customs of his or her wish to apply the Customs Act, in order to invoke forfeiture power on the goods being imported or exported on the basis that such goods are prohibited.

730. Item 197 contains a transitional provision for these amendments, whereby a notification given to the CEO before the commencement of this item as mentioned in paragraph 14B(b), 19B(7)(b), 19D(5)(b), 41MD(b) or 41MJ(b) or subsection 42F(1) or (2) of the Therapeutic Goods Act has effect on and after that commencement as if the notification had been given to the Comptroller-General of Customs.

Trade Marks Act 1995

Items 198 to 232

731. The Trade Marks Act 1995 (Trade Marks Act) protects a registered trade mark. The owner of a registered trade mark has exclusive right in Australia to control the use of their trade mark by identifying and promoting the goods and services for which it is registered only.

732. Presently, the CEO of Customs exercises several powers and functions under the Trade Marks Act.

733. For example, under section 132, the CEO can be given a notice by the registered owner of a trade mark objecting to the importation into Australia of goods that infringe the trade mark. If goods covered by the notice are imported into Australia, the CEO may seize the goods under section 133. The CEO then has several functions and powers in relation to the seized goods.

734. These items will amend the relevant sections of the Trade Marks Act to omit all references to the "Customs CEO" and substitute with references to the "Comptroller-General of Customs". This will mean that these powers are exercisable by the Comptroller-General of Customs.

735. Items 200 and 201 will also introduce a definition of "Comptroller-General of Customs" into the Trade Marks Act and repeal the definition of "Customs CEO".

736. Item 208 will amend section 133A, under which both the CEO and an officer of Customs can exercise the power to determine whether a person is an owner of goods for the purposes of the definition of "designated owner". This power will now be exercisable by an officer of Customs only.

737. Item 232 contains a transitional provision for these amendments, such that anything done by, or in relation to the CEO under the relevant provisions of the Trade Marks Act before the commencement of the item has effect on or after commencement as if it had been done by, or in relation to, the Comptroller-General of Customs. This item also contains a transitional provision whereby a determination under section 133A that was in force before the commencement of the item continues in force as if it were done under the amended section 133A in this Schedule.

Schedule 7 - Amendments of Acts referring to the Comptroller-General of Customs

Agricultural and Veterinary Chemicals (Administration) Act 1992

Item 1 - Paragraph 69B(4)(b)

744. Subclause 15(3) of the ABF Bill provides that the person who holds office as the ABF Commissioner is also the Comptroller-General of Customs. A definition of "Comptroller-General of Customs" will be included in the Customs Act by Part 1 of Schedule 1 to this Bill.

745. Paragraph 69B(4)(b) of the Agricultural and Veterinary Chemicals (Administration) Act 1992 (the AGVET Act) presently contains a reference to the Comptroller-General of Customs, as the person to whom notification must be given of the prohibited importation of certain substances under the AGVET Act.

746. This item inserts into section 69B of the AGVET Act a cross-reference to the definition of "Comptroller-General of Customs" as set out in the Customs Act.

Remuneration and Allowances Act 1990

Item 2 - Part 3 of Schedule 2 (table item dealing with the Comptroller-General of Customs)

747. Prior to 1995, when the official position of Comptroller-General of Customs was replaced with CEO, the remuneration and allowances of the Comptroller-General of Customs were determined under the Remuneration and Allowances Act 1990.

748. This item removes the long redundant reference to the Comptroller-General of Customs in this Act and the amount of salary for that position.

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:

•

immediately after the commencement of the ABF Act; and

•

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:

•

the start of 1 July 2015; and

•

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:

•

the Customs Act; or

•

the Crimes Act; or

•

the Criminal Code; or

•

the Environment Protection and Biodiversity Conservation Act 1999; or

•

Par 6 of the Australian Border Force Act 2015; or

•

an Act prescribed in a legislative instrument made by the Minister for the purposes of this paragraph; or

•

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:

•

the start of 1 July 2015; and

•

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.

Schedule 9 - Other transitional provisions

782. This Schedule sets out the remaining application and transitional provisions for the Bill.

Item 1 - References to APS employee in Australian Border Force Act

783. This item will put beyond doubt the meaning of the term "APS employee in the Department" in the ABF Bill. Under this provision, it will not matter at what time a person became an APS employee in the Department, such that the ABF Bill will apply to people who were already APS employees in the Department on the day that this item commences i.e. 1 July 2015, which is also the same day time that the ABF Bill commences.

Item 2 - Immigration and Border Protection workers-former Customs workers

784. This item contains provisions to transition people who are Customs workers, within the meaning in the Customs Administration Act, to become Immigration and Border Protection workers within the meaning of the ABF Bill.

785. Under the first provision, any person who is a Customs worker under paragraph (b) of that definition will be taken to be an Immigration and Border Protection worker under paragraph (d) of that definition on and after 1 July 2015. For example, if a person from the Department of Agriculture is seconded to the ACBPS on 30 June 2015, they are a Customs worker as they are covered by paragraph (b) of that definition. On 1 July, they will automatically become by definition an IBP worker as they will be covered by paragraph (d) of that definition. This will mean that all of the provisions of the ABF Bill that apply in relation to an IBP worker (to the extent that they apply to a person covered by paragraph (d)) will apply to that secondee person on and from 1 July 2015.

786. Under the second provision, any person who is a Customs worker under paragraph (c) of that definition will be taken to be an Immigration and Border Protection worker under paragraph (e) of that definition on and after 1 July 2015. For example, if X Company has been engaged and is performing services for the ACBPS on 30 June 2015, they are a Customs worker as they are covered by paragraph (c) of that definition. On 1 July, they will automatically become by definition an IBP worker as they will be covered by paragraph (e) of that definition. This will mean that all of the provisions of the ABF Bill that apply in relation to an IBP worker (to the extent that they apply to a person covered by paragraph (e)) will apply to that person on and from 1 July 2015.

787. Under the third provision, any person who is a Customs worker under paragraph (d) of that definition will be taken to be an Immigration and Border Protection worker under paragraph (f) of that definition on and after 1 July 2015. For example, if X Company has employed John Smith to assist in the contract before 30 June 2015, John Smith is a Customs worker as he is covered by paragraph (d) of that definition. On 1 July, he will automatically become by definition an IBP worker as he will be covered by paragraph (f) of that definition. This will mean that all of the provisions of the ABF Bill that apply in relation to an IBP worker (to the extent that they apply to a person covered by paragraph (f)) will apply to that him on and from 1 July 2015.

Item 3 - Immigration and Border Protection workers-Departmental workers

788. This item complements items 1 and 2 contains provisions to set out transitional provisions in relation to persons who are associated (by particular means) with the Department before 1 July 2015.

789. The effect of the first provision is that a reference in paragraph (d) of the definition of Immigration and Border Protection worker in the ABF Bill to a person whose services are made available to the Department is a reference to a person whose services were made available before, and on or after 1 July. For example, if a person from the Attorney-General's Department is seconded to the Department before 1 July 2015 and they are still in the Department on 1 July 2015, they will automatically become by definition an Immigration and Border Protection worker. This will mean that all of the provisions of the ABF Bill that apply in relation to an Immigration and Border Protection (to the extent that they apply to a person covered by paragraph (d)) will apply to that person on and from 1 July 2015.

790. The effect of the second provision is that a reference to "an engagement" in paragraph (e) of the definition of Immigration and Border Protection worker in the ABF Bill is a reference to an engagement before on or after 1 July 2015. For example, For example, if Y Company has been engaged by the Department before 30 June 2015 and the contract is still in effect on and after 1 July, they will automatically become by definition IBP worker as they will be covered by paragraph (e) of that definition. This will mean that all of the provisions of the ABF Bill that apply in relation to an IBP worker (to the extent that they apply to a person covered by paragraph (e)) will apply to that person on and from 1 July 2015.

791. The effect of the third provision is that a reference to "an engagement or an employment" in paragraph (f) of the definition of Immigration and Border Protection worker in the ABF Bill is a reference to an engagement or employment before on or after 1 July 2015. For example, if Y Company has employed Jane Smith to assist in the contract before 30 June 2015 and he is still so employed on 1 July, he will automatically become by definition IBP worker as she will be covered by paragraph (f) of that definition. This will mean that all of the provisions of the ABF Bill that apply in relation to an IBP worker (to the extent that they apply to a person covered by paragraph (f)) will apply to her on and from 1 July 2015.

Item 4 - Prohibited drugs

792. This item applies in relation to the instrument currently in force under section 16H of the Customs Administration Act. This instrument was made by the CEO for the purposes of the definition of "prohibited drug" in section 3 of the Customs Administration Act. This definition is for the purposes of the drug and alcohol testing regime in the Customs Administration Act, which is to be replicated in Part 5 of the ABF Bill. The instrument specified benzodiazepines and performance and image enhancing drugs (PIEDS) as prohibited drugs.

793. The effect of this item will be that the instrument in force under section 16H will become an instrument in force under section 4(3) of the ABF Bill as if made by the Secretary. The power in this section replicates the power in section 16H. This means that these drugs will be prohibited drugs for the purposes of the new drug and alcohol testing regime in Part 5 of the ABF Bill.

Item 5 - Secrecy - protected information

794. Part 6 of the ABF Bill will include the offence of making a record of or disclosing protected information. Part 6 in effect replicates current section 16 of the Customs Administration Act (section 16), which only applies in relation to the ACBPS. New Part 6 will apply across the integrated Department.

795. The first part of this transitional provision is that Part 6 of the ABF Bill will apply in relation to the making of a record or the disclosure of information on or after 1 July 2015, regardless of whether the information was obtained before, on or after 1 July 2015. Therefore, an APS employee in the current Department who obtains protected information in June 2015 and discloses it otherwise than in accordance with Part 6 on or after 1 July 2015 will be covered by this new offence.

796. The effect of the second part of this transitional provision is that a person who was a person to whom section 16 applied will be taken to be an entrusted person for the purposes of Part 6 of the ABF Bill. For example, this means that a person who was employed in the ACBPS prior to 1 July 2015 and who transfers to the integrated Department on 1 July 2015 will need to comply with Part 6 (and not section 16) on and after 1 July in relation to information they obtained before they became an APS employee in the Department.

797. To complement this provision, the effect of the third part of this transitional provision is that any information that was protected information for the purposes of section 16 before 1 July 2015 is taken on and after 1 July 2015 to be protected information for the purposes of the ABF Bill. This means, for example that this information that was obtained by an ACBPS employee in that capacity must be dealt with in accordance with Part 6 of the ABF Bill and not section 16 on and after 1 July 2015.

Item 6 - Secrecy - agreements

798. Under Part 6 of the ABF Bill, disclosures of protected information may be made to a foreign country, an agency or authority of a foreign country, or a public international organisation, if the Secretary is satisfied that the information will be used in accordance with an agreement with that foreign country, that agency or authority of a foreign country, or that public international organisation (subclause 45(1) of the ABF Bill). This item provides that subsection 45(4) (which specifies the agreements relevant to section 45) applies in relation to agreements entered into before, on or after the commencement of the item i.e. 1 July 2015.

799. Section 45 of the ABF Bill largely replicates subsection 16(3D) of the Customs Administration Act, which currently allows for the disclosure of protected information that will be used in accordance with an agreement entered into by the Commonwealth with a foreign country, an agency or authority of a foreign country, or an international organisation. This item also provides that such agreements in force immediately before the commencement of this item i.e. 1 July 2015, are taken on and after 1 July 2015 to have been an agreement entered into by the Commonwealth and to be an agreement to which subsection 45(4) of the ABF Bill applies.

800. Therefore, the effect of the provisions in this item is that agreements in force on 1 July 2015 can be used to ground the disclosure of protected information to foreign countries or bodies on and after 1 July 2015, and that it will not be necessary to enter into new agreements after 1 July for this purpose.

Item 7 - Officer of Customs

801. The effect of this item is that anything done under a law of the Commonwealth by an officer of Customs under the current definition of that term in the Customs Act before 1 July 2015 is taken to have been done by an officer of Customs under the new definition in the Customs Act. The current definition will be repealed and substituted by Schedule 1 to this Bill and this provision will ensure that anything done by an officer of Customs before the repeal and substitution is not affected by it.

Item 8 - Transitional - legal proceedings involving the CEO

802. The effect of this item is that where the CEO was a party to any proceedings pending in a court or Tribunal immediately before 1 July 2015, the Comptroller-General of Customs will be substituted as a party on and after 1 July. Therefore, any such proceedings are unaffected by the abolition of the statutory office of CEO.

Item 9 - Transitional rules

803. This item inserts a head of power for the Minister to make rules prescribing matters of a transitional matter relating to amendments to, or repeals of, Acts made by the Bill or the enactment of this Bill or the ABF Bill. This is the standard transitional rules provision.