Senate

Explanatory Memorandum

(Circulated by authority of the Minister for Justice and Customs, Senator the Hon Christopher Martin Ellison)

Chapter 7 - Disclosure of Protected Information

Outline of the Chapter

The Customs Legislation Amendment and Repeal (International Trade Modernisation) Bill 2000 includes amendments to improve Customs capacity to communicate with Commonwealth and State agencies, agencies and instrumentalities of foreign countries, and international organisations. The purpose of the amendments is to address shortcomings in the operation of section 16 of the Customs Administration Act 1985 (the Customs Administration Act), which concerns the recording and disclosure of protected information by Customs officers and people working in and for Customs. To achieve this outcome the Bill amends the Customs Administration Act to:

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enable Customs to disclose personal information to the Australian Bureau of Statistics;

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enable Customs to disclose information to the Norfolk Island Customs Service and other Norfolk Island agencies;

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enable Customs to disclose personal information where the individual concerned has consented to that disclosure;

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resolve certain technical inconsistencies and minor typographical errors;

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delete the parts of section 16 which allow Customs to disclose cargo reports and import declarations to AQIS, and

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delete the part of section 16 which allows Customs to disclose cargo reports to port authorities.

In addition, the Bill amends the Customs Actto allow Customs to disclose cargo reports to port authorities, including privatised port authorities.

Detailed explanation of the New Law

Amendments to section 16 of the Customs Administration Act

Australian Bureau of Statistics

Presently, section 16 of the Customs Administration Act (section 16) does not permit Customs to provide personal information to the Australian Bureau of Statistics - this potentially compromises the Bureaus ability to independently verify data. A paragraph in new subsection 16(9) concerning collection and verification of statistics will allow the CEO to authorise the disclosure of information that includes personal information to the ABS for the purpose of the collection and verification of statistics ( new paragraph 16(9)(ea) ).

Authorised disclosures to Norfolk Island

Section 16 does not presently allow the CEO to authorise the disclosure of information to Norfolk Island agencies and instrumentalities - this prevents Customs from communicating with the Norfolk Island Customs Service in some instances. The definition of State in subsection 16(1A) is repealed and replaced, to include Norfolk Island.

CEOs authorisation - consent

Currently, section 16 does not allow Customs to disclose information in circumstances where the individual or body concerned has consented. This limits the capacity of Customs to communicate effectively with government agencies and others. In the case of personal information, this is inconsistent with what is permitted under the Privacy Act 1988 .

New subsection 16(3G) provides that if the CEO is satisfied that the principal officer of, or a person authorised to act on behalf of, a body corporate has consented to the disclosure of information or a class of information (not including personal information) concerning that body, to a person, then the CEO may authorise, in writing, the disclosure of that information to that person.

On this basis, information may be disclosed to any person where the body corporate that is the subject of the information, has consented.

New subsection 16(3H) provides that if the CEO is satisfied that a Commonwealth agency, State agency, a foreign country, an agency or instrumentality of a foreign country or an international organisation has consented to the disclosure to a person, of information or a class of information (not including personal information) concerning that body, then the CEO may authorise, in writing, the disclosure of that information to that person.

As new subsections 16(3G) and (3H) do not operate in relation to personal information, they are not expressed as being subject to subsections 16(7), (8) and (10).

Paragraph 16(3)(b) will be amended to make reference to these new provisions.

For personal information, subsection 16(7) is to be repealed and substituted in similar terms with the addition of new paragraph 16(7)(c) . The effect of new paragraph 16(7)(c) is to provide that, where the individual concerned has consented to the disclosure of personal information, the disclosure need not comply with subsection 16(8) or (10).

Minor, technical and consequential amendments

Section 16 contains a number of technical inconsistencies and minor typographical errors.

It is proposed to make the following amendments.

Section heading

The present section heading is misleading as section 16 no longer concerns breaches of confidence. It is proposed to substitute a new section heading, which indicates that the section is concerned with the recording and disclosure of protected information.

Subsection 16(1) - Overview

The present Overview is repealed and substituted, to incorporate changes made elsewhere in the section, and to remove cross-references to other parts of the section.

New subsection 16(1) establishes that the section prohibits the unauthorised recording and disclosure of certain information held by the Australian Customs Service, provides for exceptions in relation to that prohibition, and makes particular provision in relation to the authorised disclosure of personal information.

Subsection 16(1A) - Definitions

The present definition of authorised person identifies persons to whom section 16 applies. The definition of authorised person will be deleted and new subsection 16(1AA) will set out the persons to whom section 16 applies.

New subsection 16(1AA) will be substantially similar to the definition of authorised person , save for the following:

paragraph (e) of the definition of authorised person in subsection 16(1) referred to a person authorised by the CEO to exercise a power or function of the CEO . The CEO does not authorise persons to perform his powers or functions - rather, they are powers and functions of officer of Customs, or an authorised officer.

The words of the CEO will not appear in paragraph 16(1AA)(e), to ensure that section 16 applies to persons who have been authorised by the CEO of Customs to exercise powers or perform functions under a law of customs or excise.

The effect of this is that any person appointed as an officer of Customs will be subject to section 16.

References to an authorised person elsewhere in section 16 will be omitted and substituted with references to a person to whom section 16 applies.

Subsection 16(7) - Disclosure of personal information

The reference in paragraph 16(7)(a) to recording information (ie paragraph 16(2)(a)) is a nullity, as none of the mentioned provisions permit the recording of information. The words (a) or in paragraph 16(7)(a) are omitted.

Paragraph 16(7)(b) makes an unnecessary reference to disclosures to a person or to a body . The words or to a body are omitted from that paragraph.

Subsection 16(9) - Permissible purposes

The references in paragraphs 16(9)(f) and (g) to the collection of the public revenue may exclude the disclosure of information for a purpose that, for example, relates to an entitlement to a rebate or a grant. References to collection of the public revenue are replaced with protection of the public revenue. This is consistent with the equivalent provision in the Privacy Act 1988 .

Paragraph 16(9)(i) refers to border control between Australia or another country. This should read and another country. The word or is omitted and the word and is inserted in this paragraph.

Disclosure of information to AQIS and port authorities

Currently, section 16 contains specific exceptions to the general prohibition on the disclosure of protected information, permitting the disclosure of cargo reports and import declarations to the Australian Quarantine and Inspection Service (see generally subsection 16(4)). As such disclosures can now be authorised in writing by the CEO of Customs under subsection 16(3A), it is not necessary for this exception to remain in section 16.

Section 16 also presently allows the disclosure of cargo reports to port authorities (paragraph 16(4)(b)). However, disclosures of personal information under paragraph 16(4)(b) to port authorities cannot be approved where a port authority has been privatised, because there is no relevant permissible purpose under paragraph 16(9) on which the CEO may base his approval. Moreover, a number of port authorities have been or will be privatised. Privatised port authorities may not be covered by the present definition of port authority in subsection 4(1) of the Customs Act.

Provision will be made in the Customs Act to permit such disclosures to port authorities. It is therefore not necessary for this exception to remain in section 16, as the disclosures will be expressly authorised by law.

The definitions of AQIS , authorised officer of AQIS , and food in subsection 16(1A) are deleted, as the parts of section 16 that use these terms are to be deleted.

Subsections 16(4), 16(5) and 16(6) are to be deleted, and references to these provisions are deleted from the other parts of section 16.

Amendments to the Customs Act

The definition of port authority in subsection 4(1) of the Customs Act is repealed and substituted, to reflect the fact that a port authority may not be an agency of a State or Territory. The new definition of port authority extends the definition to include any body that administers the business carried on at a port or ports in a State or Territory.

New section 64ADA of the Customs Act authorises the CEO or a Customs officer to disclose cargo reports to port authorities for the purpose set out in new subsection 64ADA(1) . New subsection 64ADA(2) establishes that it is an offence for the port authority to use the information for other purposes, or to disclose the information to any other person unless it is for the purposes set out in new subsection 64ADA(1) . New subsection 64ADA(3) establishes that disclosure includes providing electronic access to information. New section 64ADA is in substantially similar terms to the relevant parts of repealed subsections 16(4), (5) and (6) of the Customs Administration Act.