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CUSTOMS ADMINISTRATION AMENDMENT REGULATIONS 2005 (NO. 1) (SLI NO 277 OF 2005)
Select Legislative Instrument 2005 No. 277
Issued by the Authority of the Minister for Justice and Customs
Customs Administration Act 1985
Customs Administration Amendment Regulations 2005 (No. 1)
Section 18 of the Customs Administration Act 1985 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Act establishes the Australian Customs Service (Customs) and provides for its administration. Section 16 of the Act deals with the disclosure of protected information, and subsection 16(2) prohibits the disclosure of protected information except in specified circumstances, including where the disclosure is authorised under section 16.
The purpose of the amending Regulations is to update the list of specified circumstances in order to meet Customs’ current operational requirements with respect to the disclosure of information to relevant to agencies of a foreign country.
Subsection 16(3D) of the Act allows the Chief Executive Officer of Customs to authorise the disclosure of protected information to certain foreign countries, instrumentalities or agencies of a foreign country and international organisations under specified circumstances, including if there is an agreement between the Commonwealth or a Commonwealth agency and the country, instrumentality, agency or organisation. However, section 16 sets out further requirements to be fulfilled in relation to disclosures of information containing personal information. In this respect, ‘personal information’ has the same meaning as in the Privacy Act 1988.
To authorise the disclosure of a class of information containing personal information under subsection 16(3D), subsection 16(10) requires that:
− the entity to which the disclosure is to be made must be specified in the regulations; and
− the class of information to be disclosed must be specified in the regulations as a class of information that may be disclosed to the relevant entity.
For the purposes of subsection 16(10) of the Act, Schedule 3 to the Customs Administration Regulations 2000 (the Principal Regulations) sets out the descriptions of seven classes of information. They are documents and information about: surveillance activity or analysis (class A); intelligence activity or analysis (class B), commercial transactions (class C); the movement of vessels and aircraft (class D); passenger and crew detentions and examinations (class E); the arrival and departure of persons to and from Australia (class F) and detection, examination and seizure of goods (class G). The full details of each class are set out in the Attachment. Schedule 2 to the Principal Regulations specifies the entities to which disclosures of a class of information containing personal information may be made.
The amending Regulations amend Schedule 2 to:
− amend the names of three foreign entities;
− specify six new foreign entities to which disclosures of classes of information containing personal information may be made;
− remove one foreign entity, replacing it with a new entity; and
− specify additional classes of information for the four foreign entities that are already listed.
Three entities have changed their names and hence the names of the following three specified entities: Canada Customs and Revenue Agency, Fiji Islands Customs Service and Her Majesty's Customs and Excise (UK) would be amended to Canada Border Services Agency, Fiji Islands Revenue and Customs Authority and (UK) Her Majesty’s Revenue and Customs, respectively.
Customs recently signed memoranda of understanding (MOU) with China, Japan, Papua New Guinea, Thailand, Indonesia and Fiji.
A MOU was signed with Hong Kong in 1992. Further, a MOU with Korea regarding mutual assistance between Customs agencies was signed in 1988.
To facilitate the exchange of information under those MOUs, Customs needs to be able to disclose information of the specified classes containing personal information to: the General Administration of Customs of the People’s Republic of China; Papua New Guinea Internal Revenue Commission; the Thai Customs Department of the Kingdom of Thailand; the National Police Agency of Japan; the Japanese Customs and Tariff Bureau; and the Korean Customs Service. The Principal Regulations are amended to specify these entities.
The amending Regulations also remove the existing item relating to the United States Customs Service and replace it with an item which would allow personal information to be disclosed to the United States Department of Homeland Security, which now undertakes Customs functions.
Further, Customs needs to be able to disclose additional classes of information to the following entities that are already specified in the Principal Regulations: Directorate General of Customs and Excise Indonesia; the Fiji Islands Revenue and Customs Authority; the Hong Kong Customs and Excise Department; and the Japanese Customs and Tariff Bureau. The amending Regulations add the relevant classes of information to the classes of information that already be disclosed to those agencies.
The amending Regulations also correct an incorrect cross reference in regulation 4 of the Principal Regulations.
No consultation was undertaken in relation to the amending Regulations as they are of a minor or machinery nature and do not substantially alter existing arrangements.
The amending Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
Schedule 3 Permitted classes of information
A Documents and information about surveillance activity or analysis
1. This class includes, for a person, information such as identification details, travel documents and details of suspected offending conduct.
2. It also includes documents and information derived from human and electronic surveillance methods, such as reports of observations, perceptions or detections, photographs, videotape recordings, radar, satellite or closed circuit television images or stills and sound recordings.
B Documents and information about intelligence activity or analysis
1. This class includes, for a person, details of convictions, identification details of known associates, past travel details, and details of agencies to whom the person is of interest.
2. It also includes reports, assessments, briefings and other intelligence publications.
C Documents and information about commercial transactions, including the importation or exportation of goods to and from Australia
D Documents and information about the movement of vessels and aircraft
E Documents and information about passenger and crew detentions and examinations
F Documents and information about the arrival and departure of persons to and from Australia
G Documents and information about detection, examination and seizure of goods including postal articles