House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minster for Home Affairs, the Hon Jason Clare MP)

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Customs and Auscheck Legislation Amendment (Organised Crime and Other Measures) Bill 2013

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 .

An overview of measures in the Bill and their human rights implications is below.

Overview of the Bill

The bill will mitigate vulnerabilities in Australia's aviation and maritime sectors that can be exploited by organised crime through measures to strengthen access controls to Customs places, information and systems and secure areas of ports and airports. The Bill is part of the Government's response to the 2012 report of Joint Agency Task Force Polaris, which is investigating serious and organised crime on the Sydney waterfront, and the PJCLE's 2011 Inquiry into the adequacy of aviation and maritime security measures to combat serious and organised crime .

The bill will amend the Customs Act 1901 to strengthen the cargo supply chain against criminal infiltration by:

•

Placing statutory obligations on cargo terminal operators (CTOs) and those that load and unload cargo, which are similar to those that the Customs Act imposes on holders of depot and warehouse licences. These obligations would include mandatory reporting of unlawful activity, ensuring the physical security of relevant premises and cargo, and fit and proper person checks on management at Customs' request. Non-compliance would attract criminal or administrative sanctions.

•

Creating new offences for using information from the Integrated Cargo System (ICS) to aid a criminal organisation.

•

Providing that the CEO of Customs can consider the refusal or cancellation of an ASIC or MSIC when determining whether the person is fit and proper under the Customs Act.

•

Aligning aspects of the customs broker licensing scheme with that of depots and warehouses, including providing the CEO of Customs and Border Protection with the power to impose new licence conditions at any time and making it an offence to breach certain licence conditions.

•

Adjusting other controls and sanctions in the Customs Act, including increasing penalties for certain strict liability offences and the offences in section 234, and improving the utility of the infringement notice scheme by for example increasing the relevant penalties.

The bill will also amend the AusCheck Act 2007 to:

•

enable follow up background checks to be carried out without the consent of the card holder where the individual is reasonably known or suspected to have been convicted of a relevant offence, and

•

enable the Secretary of the Attorney-General's Department to suspend an Aviation or Maritime Security Identity Card where the Secretary has reasonable grounds to consider the holder has been charged with a serious offence.

The bill will also amend the Law Enforcement Integrity Commissioner Act 2006 to remove the prohibition on the Deputy Speaker of the House of Representatives and Deputy President of the Senate being appointed as members of the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity

Human rights implications

The bill affects the following rights:

•

the right to privacy under Article 17 of the International Covenant on Civil and Political Rights (ICCPR)

•

the rights to equality and non-discrimination under Article 26 of the ICCPR and Article 2(2) of the International Convention on Economic, Social and Cultural Rights (ICESCR)

•

the right to work under Article 6 of the ICESCR, and

•

the right to the presumption of innocence under Article 14 of the ICCPR.

Amendments to the Customs Act

The right to protection against arbitrary and unlawful interference with privacy

Article 17 of the ICCPR accords everyone the right to protection against arbitrary or unlawful interference with their privacy, family, home or correspondence. Accordingly, interferences with the right to privacy will be permitted provided they are not arbitrary and are authorised by law. In order for an interference with the right to privacy not to be 'arbitrary', the interference must 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. In essence, this will require that:

•

limitations serve a legitimate objective

•

limitations adopt a means that is rationally connected to that objective, and

•

the means adopted are not more restrictive than they need to be to achieve that objective.

Measures that allow for the collection, use, sharing and disclosure of personal information will engage the right to privacy.

The Bill will limit the right to protection against arbitrary and unlawful interferences with privacy as the new sections 102CE and 102EA will place obligations on CTOs to collect and provide personal information of persons who enter a cargo terminal to authorised Customs officers upon request. The measures in the new section 102E also provide powers to authorised Customs officers to access electronic equipment and take extracts from and make copies of any document at a terminal.

The measures are consistent with current obligations imposed on other entities involved in the cargo supply chain including customs depot and warehouse licence holders. The measures will give Customs and Border Protection greater visibility of persons entering and operating in the cargo terminals that could have access to and interfere with cargo.

The Privacy Act 1988 applies to both public and private sector entities. As such, Customs officers are bound by the Privacy Principles in the Privacy Act when dealing with personal information. The private sector provisions in the Privacy Act are likely to extend to most CTOs. While the private sector provisions in the Privacy Act apply to an individual, a body corporate, a partnership, other unincorporated associations and a trust, certain small businesses are not covered by the Privacy Act. In the context of CTOs, this exemption would need to be considered on a case by case basis. Nonetheless, it is considered that the Privacy Act would extend to most CTOs. Further, the general powers of authorised officers are restricted by the purpose of the powers, that being to determine whether the provisions of any Customs-related law has been, or is being, complied with. This ensures that the powers will be executed on a targeted basis rather than on a random or arbitrary basis.

Placing a higher level of accountability on CTOs is reasonable, necessary and proportionate to the need to eliminate vulnerabilities in the cargo supply chain and maritime and aviation sectors that organised crime may exploit.

The right to equality and non-discrimination

Article 26 of the ICCPR and Article 2(2) of the ICESCR protect the rights of equality and non-discrimination, in that all people have the right to be treated equally. Laws, policies and programs should not discriminate on the basis of grounds such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or 'other status'. The grounds of prohibited discrimination are not closed. The UN Human Rights Committee has not attempted to define 'other status', but has decided it on a case-by-case basis to encompass a clearly definable group of people linked by their common status. Though not binding on Australia, the European Court of Human Rights has also interpreted non-discrimination on the grounds of 'other status' to include non-discrimination on the basis of criminal record. ^[1]

Differential treatment will not constitute discrimination where it is aimed at a legitimate objective and is based on reasonable and objective criteria and is proportionate to the objective to be achieved.

The Bill may limit the right to equality and non-discrimination by the introduction of measures that treat persons whose ASICs or MSICs have been refused, cancelled or suspended differently from others. These measures, contained in Schedule 1, Part 1 and the new section 102BA, require the Chief Executive Officer (CEO) of Customs to have regard to a refusal, cancellation or suspension of an ASIC or MSIC when determining whether the person is fit and proper under the Customs Act.

Currently, the CEO is required to have regard to a number of matters in making a determination of whether a person is fit and proper including whether the person or company has committed certain offences, is insolvent, under administration, or has been wound up or has supplied misleading or false information.

The new measures are limited in a number of ways. First, the CEO is obliged only to have regard to whether a person has received a refusal, cancellation or suspension of an ASIC or MSIC in addition to a range of other matters, as opposed to solely basing his or her decision on the matter, to determine whether that person is fit and proper. Additionally, the measures are restricted to a refusal, cancellation or suspension of an ASIC or MSIC that occurred within the 10 years immediately preceding the relevant decision. This is a reasonable period and is consistent with the requirement to have regard to any conviction of the person committed within the 10 years immediately preceding the relevant decision, which currently exists in the Customs Act. The offences that lead to a refusal, suspension or cancellation of an ASIC or MSIC are largely limited to those directly relating to port and airport security as specified in the Aviation Transport Security Regulations 2005 (Aviation Regulations) and the Maritime Transport and Offshore Facilities Security Regulations 2003 (Maritime Regulations). Further, the matters that lead to a refusal, suspension or cancellation are operationally relevant to those in the management of a CTO, cargo handler, depot, warehouse, broker, special reporter or re-mail reporter who undergo a fit and proper assessment.

Further, the processes undertaken by the Attorney-General's Department and the Department of Infrastructure and Transport in determining whether a person's ASIC or MSIC should be refused, suspended or cancelled are rigorous and incorporate the rules of natural justice.

It is reasonable and necessary to consider conduct connected directly to the duties undertaken by a person in the management of customs controlled places to determine whether they are fit and proper. The measures are proportionate to the need to eliminate vulnerabilities in the cargo supply chain and maritime and aviation sectors that organised crime may exploit.

The right to work

Article 6 of the ICESCR provides for the right to work which includes the right of everyone to the opportunity to gain his or her living by work he or she freely chooses or accepts and the right not to be deprived of work unfairly. Article 7 sets out the rights in work, including the enjoyment of just and favourable conditions of work. Article 4 of the ICESCR provides that countries may subject economic, social and cultural rights only to such limitations 'as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society'. The UN Committee on Economic, Social and Cultural Rights has stated that such limitations must be proportional, and must be the least restrictive alternative where several types of limitations are available.

The measure in new section 102F of Schedule 1, Part2, enabling the CEO to direct that a cargo terminal operator or cargo handler, or where that entity is a body corporate an executive officer of the body corporate, who fails to meet the fit and proper person test not be involved in the loading, unloading, handling or storage of goods subject to Customs control may limit the right to work.

The measure seeks to disrupt the ability of organised criminal groups to use trusted insiders to engage in or facilitate criminal activity by limiting a person who the CEO of Customs has determined is no longer a fit and proper person, having regard to legislatively prescribed matters, from working in and accessing information in relation to the movement of cargo.

The exercise of this power is limited to instances where it necessary for the protection of the revenue or to ensure compliance with Customs Acts or any other law of the Commonwealth or States and Territories prescribed by the regulations. Persons subject to such a direction also have the right to apply to the Administrative Appeals Tribunal for review of the decision. This measure is consistent with other parts of the Customs Act. The Customs Act already enables the CEO of Customs to refuse, suspend or cancel a customs broker, depot and warehouse licence if the applicant or holder of the licence is not a fit and proper person or in some cases, certain employees of that person are not fit and proper.

Although the application of this measure may limit a person's right to work, it is appropriately circumscribed and proportionate to the need to eliminate vulnerabilities in the cargo supply chain and maritime and aviation sectors that organised crime may exploit.

The right to the presumption of innocence

Article 14(2) of the ICCPR provides that persons charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. It imposes on the prosecution the burden of proving a criminal charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. In its first report for 2013, the Parliamentary Joint Committee on Human Rights has stated that the imposition of strict liability offences should be in pursuit of a legitimate objective and constitute a reasonable and proportionate measure in order to achieve that goal. It has also stated that the question of whether there are less restrictive means to achieve the legitimate objective will be relevant to the assessment of reasonableness and proportionality. Factors going towards reasonableness include whether the matter is peculiarly within the knowledge of the defendant, whether the offence is regulatory in nature, and the level of the penalty imposed.

The Bill limits the right to the presumption of innocence as it introduces measures for new strict liability offences in Schedule 1, Part 2 in the new sections 102CK, 102DE and 102FA as well as Part 6, in section 183CGC. The Bill also limits the right by imposing strict liability to existing offences and increasing the penalties for some existing strict liability offences in Schedule 1, Part 5 and Part 6 at items 129, 135 and 136 of the Bill.

These amendments will standardise the penalties for many Customs Act strict liability penalties and significantly enhance the effectiveness of the enforcement regime in deterring conduct that undermines the integrity of the Australian border and the collection of revenue.

The new and existing strict liability offences are regulatory in nature, often occur in high volume and attract relatively minor penalties, the majority of which provide for a maximum of 60 penalty units or less, as recommended in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers . Further, defences contained in the Criminal Code such as mistake of fact are available to persons alleged to have a committed a strict liability offence.

There are several exceptions where the maximum penalty for new strict liability offences exceeds 60 penalty units. To ensure consistency across like offences in section 60 of the Customs Act, strict liability will apply to the offences in subsections 60(2) and (3) and the offences will attract the same maximum penalty of 100 penalty units. An additional defence balances the higher penalty. It is a defence to a prosecution for these strict liability offences where compliance with the provision is prevented due to stress of weather or other reasonable cause. The defendant bears the legal burden in relation to this defence but the matters required to be proved by the defendant are peculiarly within the knowledge of the defendant.

The Bill also introduces an offence for a failure to comply with a direction given by the CEO to a CTO or cargo handler, or where that entity is a body corporate an executive officer of the body corporate. The offence attracts a maximum penalty of 100 penalty units. Although this is a higher penalty than the suggested maximum for a strict liability offence of 60 penalty units contained in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers , it is justified in these circumstances given the serious nature of the direction and the possible consequences for security, community safety, and revenue for failing to comply. As a safeguard, a person subject to such a direction also has the right to apply to the Administrative Appeals Tribunal for review of the direction decision.

The standard of proof for all Customs prosecutions under the Customs Act is that of a criminal standard, including strict liability offences. Therefore, all Customs prosecutions for strict liability offences are required to be proved beyond a reasonable doubt.

The measures are reasonable, necessary and proportionate to the threat to the Australian community and economy posed by non-compliance with cargo control requirements.

Amendments to the AusCheck Act

Right to work

The right to work is contained in Article 6 of the ICESCR. The Article provides that everyone has the right to the opportunity to gain his or her living by work which he or she freely chooses or accepts. The United Nations Committee on Economic, Social and Cultural Rights has indicated that Article 6 also implies the right not to be deprived of work unfairly.

The suspension on charge measure will limit the right to work of those persons who are required to hold a valid Aviation Security Identification Card or Maritime Security Identification Card (card) for their work where the Secretary of the Attorney-General's Department (Secretary) has confirmed that the person has been charged with a serious offence. A person will be required to hold a valid card in order to access secure zones in airports and seaports and to undertake their duties as an employee or contractor. Under the suspension on charge measure, if a person is charged with a serious offence, the person's card will be suspended until the charge has been resolved. The Bill defines 'serious offence' as an aviation-security-relevant or maritime-security-relevant offence that is prescribed in regulations. The Secretary will not have any discretion in this matter.

In cases where a person has applied for a card and has been charged with a serious offence, AusCheck will suspend processing the application. If the person's prospective employer or contractor cannot deploy the person to a position that does not require them to hold a valid card, the employer or contractor may refuse to engage the person.

Similarly, in cases where a person's card has been suspended, the person's employer or contractor may also choose to deploy the person to a position that does not require them to hold a valid card. Where that is not possible, an employer or head contractor may decide to suspend a person's employment or contract for services, pending the outcome of any criminal trial, or to terminate that employment or contract.

Under Article 4 of the ICESCR, States may subject rights under the Covenant to limitations where those limitations are determined by law and are compatible with the nature of the rights under the Covenant and solely for the purpose of promoting the general welfare in a democratic society. Under international human rights law, limitations on the right to work must be proportional to the end to be achieved and the least restrictive where several alternatives are available.

The suspension on charge measure is part of the Government's response to operational law enforcement advice that organised criminals are successfully targeting and exploiting airports, seaports and the cargo supply chain to facilitate their criminal activities. The PJCLE also found that criminal networks have infiltrated Australia's aviation and maritime sectors and supply chain in its June 2011 report on its Inquiry into the Adequacy of Aviation and Maritime Security Measures to Combat Serious and Organised Crime .

Temporarily suspending the access to secure areas of airports and seaports of persons charged with serious offences is designed to enhance the existing aviation and maritime security schemes' capacity to mitigate national security threats, including serious and organised crime.

Currently, a card can only be cancelled or refused when someone has been convicted of, and sentenced to imprisonment for, an aviation- or maritime-security-relevant offence. Persons who pose a security or organised crime risk can access secure areas of airports and seaports, even where they have been charged with serious offences. The amendments in this bill are designed to mitigate this risk. They will ensure that the security of these areas of airports and seaports is not compromised while serious charges remain on foot.

The measures are necessary to disrupt organised criminal groups' infiltration of the maritime and aviation industries and the supply chain. In this way, the measures are necessary to promote the general welfare.

The Government decided that suspension of an application or card should be automatic following a charge for a serious offence. However, the Secretary will only be able to suspend a person's application or card if the person is charged with a serious aviation-security-relevant or maritime-security offence that has been prescribed in regulations. The list of offences prescribed in regulations will be targeted and limited to offences involving conduct demonstrating that they pose a national security threat or may use their access to a secure area to engage in or facilitate serious and organised criminal activity. It will not include minor offences or offences not related to national security or organised crime. The Government has decided it is not appropriate for a person charged with a serious offence to access secure areas where they may continue to pose a security or organised crime risk.

Right to privacy

Article 17 of the ICCPR accords everyone the right to protection against arbitrary or unlawful interference with their privacy, family, home or correspondence. Accordingly, interferences with the right to privacy will be permitted provided they are not arbitrary and are authorised by law. In order for an interference with the right to privacy not to be 'arbitrary', the interference must 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. In essence, this will require that:

•

limitations serve a legitimate objective

•

limitations adopt a means that is rationally connected to that objective, and

•

the means adopted are not more restrictive than they need to be to achieve that objective.

The suspension on charge measure will interact with the right to privacy in that it will require applicants and card holders to notify the Secretary if they are charged with a serious offence. The measure would also authorise law enforcement agencies to notify the Secretary when they charge an applicant or card holder with a serious offence. This will require AusCheck to share personal information about applicants and card holders with law enforcement officers charging card holders with serious offences. AusCheck will also be authorised to notify issuing bodies that they are required to not issue a card (where the person has been found eligible but a card has not yet been issued) or suspend the card of an existing card holder where AusCheck determines that the person had been charged with a serious offence. The measure does not propose that AusCheck would advise issuing bodies of the particulars of the offence or offences with which the person had been charged.

The right to privacy will also be engaged when there is the collection, use, storage and sharing of personal information. While the measure allows for information about a person to be shared between certain Commonwealth, State and Territory agencies and, to a lesser extent, issuing bodies, it is not an arbitrary or unlawful interference with that person's privacy. As set out above, the suspension on charge measure is part of the Government's response to operational law enforcement advice about organised criminal groups' infiltration of airports, seaports and the cargo supply chain. The PJCLE has also made similar findings about organised crime vulnerabilities at the border. The information sharing requirements are necessary to facilitate the prevention and disruption of serious and organised crime at airports, seaports and the supply chain.

The measure would require mandatory self-notification of relevant charges for applicants and card holders, consistent with the existing requirement for card holders to self-report convictions for relevant offences. Offences for a card holder or applicant failing to self-report charge with a serious offence will be contained in the regulations. It is proposed that these offences will attract a monetary penalty.

The measure also allows for information about whether a person who has been charged with a serious offence has applied for or holds a card to be shared between AusCheck, law enforcement agencies and issuing bodies. These mechanisms build on existing arrangements and are necessary for the successful operation of the suspension on charge measure. Without this information, AusCheck would not know when to suspend a person's card and law enforcement would not know when to notify AusCheck of a charge and persons of potential security and criminal concern would be granted or allowed continued access to secure areas.

The measure is also consistent with the existing application process in which AusCheck accesses and assesses each applicant's criminal history in order to determine whether the person is eligible to hold a card or should be refused a card on the basis that the person would pose a security risk if given unescorted access to secure maritime or aviation areas.

Authorising AusCheck to:

•

access and assess information about serious charges laid against applicants and card holders

•

disclose the fact that a person holds a card to relevant law enforcement officers, and

•

disclose to issuing bodies the fact that a card holder or applicant has been charged with a serious offence (but not details of the offence)

is reasonable in achieving the end of preventing and disrupting serious and organised crime at airports, seaports and in the supply chain.

The measure's limitation on the right to privacy is also proportionate to the end of preventing and disrupting serious and organised crime. The personal information AusCheck is to collect and share is either already on the public record (as information about whether or not a person has been charged with an offence is a matter of public record at the time of the charge) or forms part of a Government licensing scheme (in the case of information about whether or not a person holds a card). This information will continue to be protected through existing privacy protections in the AusCheck scheme. These protections include criminal offences for the unlawful disclosure of AusCheck scheme personal information (existing section 15 of the AusCheck Act) and a range of secrecy provisions in Commonwealth, State and Territory legislation that prohibit a person from unlawfully disclosing personal and other information obtained during the course of their duties. Following the resolution of a charge for a serious offence, AusCheck will be authorised to access and assess the person's criminal history for the purposes of determining the person's continued eligibility to hold a card. Where the person is acquitted, the charges have been otherwise discontinued or the person has been found guilty of an offence that is not a serious offence, AusCheck will use the person's criminal history to confirm their continued eligibility to hold a card. Where the person is convicted of a serious offence, AusCheck will consider the person's eligibility or continued eligibility to hold a card in accordance with the existing legislation. This will apply to individuals who applied for and were issued a card both before and after the commencement of these amendments.

In addition, the Bill will authorise AusCheck to conduct a background check of a person's criminal history without the person's consent for that further background check in limited circumstances. This will be confined to individuals who have applied for a card following the commencement of the amendments, and who have been advised by the relevant card issuing body that such additional checks may be undertaken without consent. To ensure all individuals who apply for a card following the commencement of the amendments are aware that they could be subject to a further background check of their criminal history, AusCheck will amend the Privacy Notice provided to all applicants by card issuing bodies before the individual applies. For those individuals, the Transport Secretary will be able to request a background check of a card holder's criminal history on the basis that the Transport Secretary has reasonable grounds to consider the person has been convicted of an aviation or maritime relevant security offence. In these circumstances and if requested by the Transport Secretary, AusCheck will be authorised to undertake the criminal history background check to confirm the card holder's continued eligibility to hold the card. This measure will reduce the risk that an individual who has been convicted of a security-relevant offence can continue to have access to secure aviation and maritime areas. The measure is a reasonable and proportionate means of addressing this risk. It will only apply to persons notified at the time they apply for a card that they could be subject to further background checks of their criminal history for the duration of their card. The measure will not apply to individuals who applied for or were issued a card before the commencement of the amendments. The consent of those individuals will continue to be required before AusCheck can conduct a criminal history check.

Rights to equality and non-discrimination

Articles 26 of the ICCPR and 2(2) of the ICESCR protect a person's right to equality and non-discrimination, providing that all people have the right to be treated equally. Laws, policies and programs should not discriminate on a number of listed grounds, including race, sex, religion and 'other status'. The European Court of Human Rights has interpreted 'other status' to include non-discrimination on the basis of criminal record. ^[2] Because Australia is not a party to the European Convention on Human Rights, the European Court's jurisprudence is not binding on Australia. However, that interpretation provides useful guidance in relation to grounds which may fall within 'other status'.

Accordingly, to the extent that a person's 'other status' may include charge with a criminal offence, the suspension on charge measure will engage the right to equality and non-discrimination. The measure will result in the differential treatment of persons who have been charged with a serious offence in that their application or card will be suspended pending the resolution of the charge.

Differential treatment will not constitute discrimination where it is aimed at a legitimate objective and is based on reasonable and objective criteria and is proportionate to the objective to be achieved.

As set out above, the measure is necessary to mitigate vulnerabilities to organised crime at the border and in the supply chain that operational law enforcement agencies and the PJCLE have identified. It will disrupt organised criminal groups' ability to use trusted insiders to facilitate engage in or facilitate criminal activity by temporarily suspending card holders' access to secure where they have been charged with a serious offence. Not all charges will result in the suspension of a card or processing of an application for a card. It is only on charge with a serious offence that a person's application or card will be suspended. The regulations to be made following this bill will only prescribe as serious offences those offences demonstrating that the person charge poses a national security threat or may use their access to a secure area to engage in or facilitate serious and organised criminal activity. The suspension on charge measure is therefore a proportionate method of addressing the organised crime risks identified by operational law enforcement and a reasonable limitation on the right to equality and non-discrimination.

Conclusion

The Bill is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.