EXPLANATORY STATEMENT

Select Legislative Instrument 2009 No. 78

 

Issued by the Authority of the Minister for Home Affairs

Customs Administration Act 1985

Customs Administration Amendment Regulations 2009 (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 to be prescribed by the Act, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Section 16 of the Act relates to the prohibition on the disclosure of protected information by the Australian Customs Service (Customs). Subsection 16(2) of the Act 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 permitted entities to which disclosures of classes of protected information containing personal information may be authorised under section 16 of the Act by Customs.

Subsections 16(3A), (3B), (3C) and (3D) of the Act allow the Chief Executive Officer of Customs (the CEO) to authorise the disclosure of protected information to certain Commonwealth and State government agencies and international entities under specified circumstances.

To authorise the disclosure of a class of information containing personal information under subsections 16(3A), (3B), (3C) or (3D) of the Act, 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 2 to the Customs Administration Regulations 2000 (the Principal Regulations) specifies the entities to which disclosure of a class of information containing personal information may be made, and the class or classes of information, as described and identified in Schedule 3, that may be disclosed to each specified entity. Schedule 3 sets out the descriptions of seven classes of information that may be disclosed. Schedule 3 is included in Attachment A.

An overview of the amending Regulations is at Attachment B.

 

No consultation was undertaken specifically 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.

0907952A

 

ATTACHMENT A

CUSTOMS ADMINISTRATION REGULATIONS 2000

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

 

ATTACHMENT B

DETAILS OF THE CUSTOMS ADMINISTRATION AMENDMENT REGULATIONS 2009 (No. 1)

Regulation 1 - Name of Regulations

This regulation provides that the title of the Regulations is the Customs Administration Amendment Regulations 2009 (No. 1).

Regulation 2 - Commencement

This regulation provides that the Regulations commence on the date after they are registered on the Federal Register of Legislative Instruments.

Regulation 3 - Amendment of Customs Administration Regulations 2000

This regulation provides that the Customs Administration Regulations 2000 (the Principal Regulations) are amended as set out in Schedule 1 to the Regulations.

SCHEDULE 1 - AMENDMENT

Item [1]

Item 1 replaces Schedule 2 to the Principal Regulations with a new Schedule 2. New Schedule 2 updates the list of entities to reflect the name change of a number of entities since Schedule 2 was last amended in May 2008. The amendments also incorporate a number of new entities and new classes of information for existing entities, following a review by Customs of the listed entities.

Part 1 of new Schedule 2 re-arranges into alphabetical order the existing list of Commonwealth entities to which disclosures may be made and:

·        inserts the Australian Commission for Law Enforcement Integrity as a permitted entity to which the classes of information B, C and G may be disclosed;

·        inserts the Australian Institute of Criminology, the Australian Prudential Regulation Authority, Centrelink, the Commonwealth Director of Public Prosecutions, CrimTrac, the National Measurement Institute, the Reserve Bank of Australia, the Department of Broadband, Communications and the Digital Economy and the Department of Finance and Deregulation as permitted entities to which the classes of information A, B, C, D, E, F and G may be disclosed;

·        inserts the Australian Safeguards and Non-Proliferation Office as a permitted entity to which the classes of information A, B and C may be disclosed;

·        inserts Food Standards Australia New Zealand and the Department of Climate Change as permitted entities to which the class of information C may be disclosed;

·        inserts IP Australia as a permitted entity to which the classes of information C and G may be disclosed;

·        adds the classes of information E and F for the Australian Maritime Safety Authority, the Australian Taxation Office, the Department of Innovation, Industry, Science and Research and the Department of Resources, Energy and Tourism;

·        adds the classes of information A, B, D, E and F for the Department of Agriculture, Fisheries and Forestry;

·        adds the class of information C for the Department of Immigration and Citizenship;

·        adds the classes of information B and D for the Therapeutic Goods Administration;

·        adds the classes of information B and G for the Australian Competition and Consumer Commission;

·        adds the classes of information A, C, D, E, F and G for the Australian Securities and Investments Commission;

·        replaces the reference to the Australian Quarantine Inspection Service with the Australian Quarantine and Inspection Service and the reference to the Export Wheat Commission with Wheat Export Authority;

·        replaces the reference to the Director of National Parks and Wildlife with the Director of National Parks and add the classes of information A, B, C, D and F;

·        replaces the reference to Norfolk Island Customs with Norfolk Island Customs & Immigration Service and add the classes of information A, E and G; and

·        deletes the Department of Human Services as an entity to which disclosures may be made.

Parts 2 to 9 of new Schedule 2 re-arrange, into a separate Part for each State and Territory, the existing list of State and Territory entities to which disclosures may be made and:

·        adds the State Debt Recovery Office, New South Wales, as a permitted entity to which the classes of information A, B, C, D, E, F and G may be disclosed;

·        adds the class of information E for the Department of Corrective Services, New South Wales;

·        deletes the Office of Fair Trading, New South Wales, as an entity to which disclosures may be made;

·        adds the Victoria Consumer Affairs as a permitted entity to which the classes of information A, B, C, D, E, F and G may be disclosed;

·        replaces the reference to the Queensland Crimes and Misconduct Commission with Crime and Misconduct Commission;

·        adds the Department of Justice and Attorney-General, Queensland, as a permitted entity to which the classes of information A, B, C, D, E, F and G may be disclosed;

·        adds for the Environmental Protection Agency, Queensland, the class of information C;

·        adds for the Department of Mines and Energy, Queensland, the classes of information A, E and F;

·        adds for the Department of Fisheries, Western Australia, the class of information E;

·        adds for the Department of Environment and Heritage, South Australia, the class of information C;

·        inserts the Office of Consumer and Business Affairs, South Australia, as a permitted entity to which the classes of information A, B, C, D, E, F and G may be disclosed;

·        adds for Safework SA, the classes of information A, B, D, E and F;

·        deletes the Australian Capital Territory Corrective Services as an entity to which disclosures may be made;

·        deletes Environment ACT as an entity to which disclosures may be made;

·        deletes Office of the Occupational Health and Safety Commissioner, Australian Capital Territory, as an entity to which disclosures may be made; and

·        adds the Department of Natural Resources, Environment, the Arts and Sports, Northern Territory, as a permitted entity to which the classes of information A, B, C, D, E, F and G may be disclosed.

Part 10 of new Schedule 2 re-arranges into alphabetical order the existing list of Foreign and International entities to which disclosures may be made and:

·        deletes the Aruba Customs Service, the Caribbean Customs Law Enforcement Council, the Combined Agency Border Intelligence Network, the Ministry of Defence, New Zealand, the National Criminal Intelligence Service (UK), the New Zealand Defence Force, the United States Coast Guard, the United States Fish and Wildlife Service and the United States Food and Drug Administration as entities to which disclosures may be made;

·        inserts the Bureau of Revenue, Customs and Taxation, Division of Customs, Republic of Palau, the Federal Ministry of Finance of the Republic of Austria, the French Customs, French West Indies Directorate, the French Polynesian Customs Service, the Marshall Islands Customs, Revenue and Taxation, the New Zealand National Marine Command Centre, the Republic of Singapore Navy and the Solomon Islands Customs and Excise as permitted entities to which the classes of information A, B, C, D, E, F and G may be disclosed;

·        adds the classes of information C, E, F and G for the Cook Island Customs, the Customs Service of the United States Commonwealth of the Northern Marina Islands, the Guam Customs and Quarantine Agency, the Ministry of Finances, Directorate of Taxes and Customs, Republic of Trinidad and Tobago and the Service des Douanes de Nouvelle‑Calédonie;

·        replaces the reference to Customs Department of the Kingdom of Thailand with The Thai Customs Department of the Kingdom of Thailand and the reference to the Korean Office of Customs Administration with Korea Office of Customs Administration;

·        replaces the reference to Indian Customs with The Central Board of Excise and Customs of the Republic of India and add the classes of information C, E and G; and

·        replaces the reference to Japanese Customs and Tariff Bureau with the Customs Administration of Japan and add the class of information G.