House of Representatives

Explanatory Memorandum

(Circulated by authority of the Assistant Minister for Customs, Community Safety and Multicultural Affairs, the Honourable Jason Wood MP)

Attachment A Statement of Compatibility with Human Rights

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

Customs Amendment (Regional Comprehensive Economic Partnership Agreement Implementation) Bill 2021

The Customs Amendment (Regional Comprehensive Economic Partnership Agreement Implementation) Bill 2021 (the Bill) is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

The purpose of the Bill is to amend the Customs Act 1901 (the Customs Act) to introduce new rules of origin for goods that are imported into Australia from a Party to the Regional Comprehensive Economic Partnership Agreement (the Agreement). 'Party' is defined under Article 1.2 of Chapter 1 of the Agreement.

The amendments to the Customs Act will enable goods that satisfy the rules of origin to enter Australia at preferential rates of customs duty. In particular, the Bill will:

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implement rules of origin to determine goods eligible for preferential tariff treatment in accordance with the Agreement. Goods that satisfy the rules of origin under the Agreement are referred to as 'RCEP originating goods';

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enable regulations to prescribe record keeping obligations on exporters that export goods to a Party to the Agreement and who make a claim that the goods exported are originating goods in accordance with the Agreement, and producers of such goods;

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enable an authorised officer (as defined in subsection 4(1) of the Customs Act) to disclose information (including personal information within the meaning of the Privacy Act 1988 (the Privacy Act) and Immigration and Border Protection information within the meaning of the Australia Border Force Act 2015 (the Australian Border Force Act)) to customs officials of another Party to the Agreement for the purposes of verifying the claims for origin of goods exported to that Party under the Agreement. Customs official means a person representing a customs authority of that Party.

Complementary amendments will also be made to the Custom Tariff Act 1995 (the Customs Tariff Act) by the Customs Tariff Amendment (Regional Comprehensive Economic Partnership Agreement Implementation) Bill 2021.

The amendments contained in the Bill will be operative on the later of the day on which this Act receives the Royal Assent and the day on which the Agreement signed on 15 November 2020 enters into force for Australia.

Human rights implications

This Bill engages the right to not be subjected to arbitrary or unlawful interference with privacy in Article 17 of the International Covenant on Civil and Political Rights to the extent that the Bill will allow for the collection and disclosure of personal information.

Article 17(1) sets out:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

Under Article 3.27 of Chapter 3 of the Agreement, a Proof of Origin document completed by the exporter or producer or an authorised representative of the exporter or producer shall support a claim that goods are eligible for preferential tariff treatment in accordance with the Agreement. The key information that must be included in a 'Proof of Origin' document is detailed in Articles 3.16, 3.17 and 3.18, and Annex 3B, of Chapter 3 of the Agreement and includes personal information, that is the exporter and/or the producer's name, address, email address and telephone number.

The Bill in part inserts new sections 126AQB, 126AQC and 126AQD into the Customs Act to enable:

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regulations to prescribe record keeping obligations that apply in relation to goods that are exported to a Party and are claimed to be originating goods, in accordance with Chapter 3 of the Agreement, for the purpose of obtaining a preferential tariff in the Party;

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an authorised officer to require a person subject to record keeping obligations under the regulations to produce those records;

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an authorised officer to disclose the records to a RCEP customs official in order to verify a claim for a preferential tariff;

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an authorised officer to require an exporter or producer of goods to answer questions in order to verify the origin of the goods; and

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an authorised officer to disclose the answers to a RCEP customs official in order to verify a claim for a preferential tariff.

Additionally, the record keeping obligations to be prescribed by the regulations will reflect the obligations set out in Articles 3.24 and 3.27 of Chapter 3 of the Agreement in respect of the retention of records and the verification of origin.

The new sections allow the other Party to verify the origin of goods exported from Australia that are claimed to be originating goods. For example, this may include the collection and disclosure of personal information set out in a 'Proof of Origin' document, for limited purposes to a customs official from the other Party for the purpose of verifying a claim for a preferential tariff.

The verification of the eligibility for preferential treatment is required under the Agreement and the measures in the Bill are directed at the legitimate purpose of facilitating and supporting Australia's economic and international trade objectives and implementing the international legal obligations under the Agreement. The collection and disclosure of personal information is authorised under the Privacy Act and, where applicable, the Australian Border Force Act, with the Bill clarifying that authorised officers may require exporters or producers of goods to produce records or answer questions, which records or answers may be disclosed to officials of the other Parties to the Agreement for the limited purpose of verifying a claim for a preferential tariff. The Bill will not alter the existing Australian domestic law protections.

This collection and disclosure is intended to be permitted for the limited purpose of verifying a claim made by a person for preferential tariff treatment and the records captured by the new sections only to relate to goods that are exported to the relevant Party and are claimed to be Australian originating goods for those purposes. As such, the amendments are a reasonable and proportionate response to the legitimate purpose described above. The collection and disclosure of personal information in these circumstances will not constitute an unlawful or arbitrary interference with privacy.

Conclusions

The Bill is compatible with human rights because to the extent that it may engage the right to privacy, will not constitute an unlawful or arbitrary interference with privacy.