Purpose of the Bill

The purpose of the Australian Postal Corporation and Other Legislation Amendment Bill 2024 (the APC Bill) is to amend the Australian Postal Corporation Act 1989 to strengthen the regulatory regimes for domestic and international mail screening and inspection. In particular, the Bill will make amendments aimed at improving the operation of the information sharing arrangements between Australia Post and border agencies and the rules for opening and examining of postal articles.

Background

Australian Postal Corporation Act 1989

The Australian Postal Corporation (Australia Post) is a statutory corporation established under the Postal Services Act 1975 (superseded) and continued under the Australian Postal Corporation Act 1989 (the APC Act). Australia Post is wholly owned by the Australian Government represented by 2 Shareholder Ministers, the Minister for Finance and the Minister for Communications.[1]

The APC Act sets out the functions, powers and obligations of Australia Post, and deals with operational matters. The major function of Australia Post is providing postal services within Australia and between Australia and other countries.[2] Australia Post’s subsidiary functions are to carry on businesses or activity relating to postal services.[3]

Australia's postal market is competitive for most services but Australia Post has sole responsibility for the delivery of reserved letters, that is, generally letters less than 250 grams.[4] Australia Post is treated as the owner of a postal article for the duration of time that it is being carried or under the control of Australia Post.[5]

The APC Bill relates specifically to Part 7B of the APC Act. This Part prohibits the opening and examination of postal articles except in specified circumstances, for example, to assist in the delivery of inadequately addressed mail, to repair items so that they are safe for delivery, to enable dangerous postal articles to be dealt with and to determine articles on which customs duty or tax may be payable. Part 7B also includes provisions dealing with the role of various border and law enforcement agencies in domestic and international mail screening and inspection and it provides for the handling of postal articles and their contents, through other legislative regimes contained in the Customs Act 1901, the Biosecurity Act 2015 and the Imported Food Control Act 1992.

There have been recent inquiries and reports dealing with other aspects of Australia Post,[6] however, there does not appear to be any public discussion on the Part 7B functions of Australia Post or the need for the amendments proposed in the APC Bill. While the Explanatory Memorandum states that the Bill is a response to increasing security-related vulnerability of postal articles and has been developed with stakeholders over an extended period, it provides no further detail of particular security incidents involving that vulnerability. Nor has the Government (or previous Governments) publicised any consultation with stakeholders about these deficiencies. Rather the Explanatory Memorandum states:

In recent years, a number of deficiencies, including areas of ambiguity, with the operation of Part 7B of the Act have been identified by Australia Post and border agencies. These have been exacerbated by increasing parcel and declining letter volumes, increased use of automation and the increased availability of electronic advanced data for intelligence led and risk-based screening.

The Bill seeks to ensure that the security-related elements of the Act are strong and continue to be relevant, and provide for the opportunity to increase the capacity for operational efficiencies and innovation in a changing mail and security environment.

Schedule 1 to the Bill amends the Act to address security-related vulnerabilities identified in the mail stream, improves operational flexibility, and provides greater certainty for officials responsible for border control and postal activities at international mail gateways where those activities involve the screening, inspection of, and where warranted, intervention with, international mail.

[…]

The measures in the Bill have been developed in consultation with relevant stakeholders over an extended period, to ensure the measures are operationally fit-for-purpose regardless of further advancements in technology – in particular, Australia Post, Australian Border Force, and the Department of Agriculture, Fisheries and Forestry.[7]

The lack of detail in this regard may be a result of security considerations.

Committee consideration

At the time of writing the Bill has not been referred to a Parliamentary Committee for inquiry.

Senate Standing Committee for the Scrutiny of Bills

At the time of writing the Senate Standing Committee for the Scrutiny of Bills has not commented on the Bill.

Policy position of non-government parties/independents

At the time of writing the views of non-government parties and independents are not known.

Position of major interest groups

At the time of writing there has been minimal media reporting on the Bill and the views of interest groups are not known.

Financial implications

The Explanatory Memorandum states that the Bill is not expected to have any material financial impact on Commonwealth expenditure or revenue, with inspection costs continuing to be met under current arrangements. It notes that while ‘Australia Post may be subject to other costs associated with goods being examined by a Customs Officer ... these costs are not expected to be significant’.[8]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[9]

Parliamentary Joint Committee on Human Rights

The Committee had no comment on the Bill.[10]

Key issues and provisions

Part 7B: Dealing with postal articles and their contents

Schedule 1 of the Bill amends Part 7B (sections 90E-91) of the APC Act. This Part deals with the disclosure of postal information and the opening and examination of postal articles.

Limits on use or disclosure of information and documents

The provisions dealing with the use or disclosure of information or documents by Australia Post employees currently categorise information or documents as ‘specially protected’ or ‘not specially protected’. Under subsection 90G(3) information or a document is not specially protected if:

• in the case of information—the information is clearly visible on, or through, the outside of the cover of the article or
• in the case of a document—the document consists of the outside of the cover of the article.

Information or a document is specially protected if the information or document is, or relates to an article, or some or all of the contents or substance of an article, that has been carried by post or is in the course of post (subsection 90G(2)).

Item 20 repeals these definitions in order to remove the concept of ‘specially protected’ information and documents from the disclosure regime. The Explanatory Memorandum states this is an outdated concept and the repeal is to ‘ensure that information and documents held by Australia Post are appropriately handled, consistent with the Australian Privacy Principles outlined in the Privacy Act 1988’.[11]

Under section 90H it is an offence for an Australia Post employee to use or disclose postal information or documents acquired or received in the course of their employment, unless that use or disclosure is allowed by sections 90J, 90K or 90L.

Section 90J lists the situations in which the use or disclosure of postal information by an Australia Post employee is allowed, whether or not the information is specially protected. These situations include, amongst other things, that a person may disclose the information or documents:

• in the performance of duties as an Australia Post employee
• as a witness summonsed to give evidence or to produce documents in a court
• as required by or under a law of the Commonwealth
• to an officer or employee of a police force, fire service, ambulance service or emergency services organisation if the person believes, on reasonable grounds, that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of a person
• to an authorised ASIO officer if they are an authorised discloser and the information is a reasonable suspicion that an article consists of or contains anything that is or may be relevant to Australia's security
• if they are an authorised discloser and the information is a reasonable suspicion that an article contains anything that is or may be evidence of an offence
• as required by certain laws establishing commissions to conduct investigations and inquiries.

Section 90K provides additional exceptions to the use or disclosure offence in section 90H, in the case of use or disclosure of information and documents that is not specially protected. These exceptions include, amongst others:

• a person may disclose to a customs officer in specified circumstances
• a person may disclose if the disclosure is reasonably necessary for:
  •  the enforcement of the criminal law
  •  the enforcement of a law imposing a pecuniary penalty, or
  •  the protection of the public revenue.

Items 21–25 make amendments to these use and disclosure provisions. Sections 90J and 90K are repealed and replaced by proposed sections 90J, 90JA, 90JB, 90JC, 90JD, 90JE, 90JF, 90JG and 90JH. Under the new provisions the existing exceptions in sections 90J and 90K will continue to apply but are rearranged and in some cases reworded. The distinction between specially protected and not specially protected is removed and the concept of authorised discloser is also removed.[12] The Explanatory Memorandum states these amendments ‘address a number of technical and interpretation issues with the disclosure regime that have been raised by Australia Post and Commonwealth, State and Territory stakeholders. Specifically, they will remove ambiguity and ensure the proposed changes to the Act are clear for all stakeholders.’[13]

In addition to these more minor amendments, proposed section 90JD introduces a new exception which is intended to facilitate broader information sharing by Australia Post with Commonwealth, state and territory bodies to assist in the performance of their functions or duties. Proposed subsection 90JD(1) creates an exception to the disclosure offence in 90H, if the information or document is disclosed to a specified prescribed person (referred to as the recipient), and the person making the disclosure is satisfied the information or document will enable or assist the recipient to exercise any powers, or perform any of their functions or duties. Proposed paragraphs 90JD(1)(a)–(r) set out the prescribed. They include, amongst others:

• an Australian Federal Police (AFP) appointee
• a member of the police force or police service of a state or territory
• the Commonwealth Director of Public Prosecutions or a member of staff
• the Chief Executive Officer of the Australian Crime Commission or a member of staff
• the Secretary of the Department administered by the Minister administering the Migration Act 1958 or an APS employee in that Department
• the Secretary of the Department administered by the Minister administering the Environment Protection and Biodiversity Conservation Act 1999 or an APS employee in that Department
• the Commissioner of Taxation or a taxation officer
• an officer or employee of a consumer protection agency
• an officer or employee of an agency or authority of the Commonwealth, a state or a territory, being an agency or authority determined in an instrument under subsection 90JD(2).

Proposed subsection 90JD(6) would permit disclosure to a customs officer if the person is satisfied that the information or document will enable or assist the customs officer to exercise any of their powers, or perform any of their functions or duties.

Proposed subsection 90JD(7) would permit disclosure to authorised ASIO officers, if the person reasonably suspects that information or document is or may be relevant to security.[14]

Use of legislative instruments to expand information sharing: comment

Under proposed subsection 90JD(2) the Secretary of the Department administering the APC Act may by legislative instrument, determine an agency or authority of the Commonwealth, a state or a territory with whom documents or information can be shared. Such a legislative instrument would be disallowable for the purposes of the Legislation Act 2003, and appropriately subject to parliamentary scrutiny. The use of legislative instruments to expand the information sharing power is intended to help ‘minimise duplicative investigation and regulatory responses’.[15] The Secretary could also impose conditions, by written instrument, to be complied with by the recipient in relation to information or a document disclosed (proposed subsection 90JD(3)). The Explanatory Memorandum states that the ability to impose conditions ‘is intended to allow for other requirements to be stipulated on the disclosure and use of the information or documents. For example, specifying a finite time period that information may be disclosed to a person prescribed in accordance with proposed subsection 90JD(2) or additional requirements for the handling, transfer, return or destruction of the information’.[16] If an instrument under proposed subsection 90JD(3) imposes conditions relating to one specified disclosure, it is not a legislative instrument (proposed subsection 90JD(4)). Otherwise, it will be a legislative instrument and subject to disallowance by the Parliament (proposed subsection 90JD(5)). 

At the time of writing the Scrutiny of Bills Committee has not reported on Bill, however, the Committee’s longstanding position is that provisions authorising delegated legislation to modify the operation of primary legislation may limit parliamentary oversight and subvert the appropriate relationship between Parliament and the Executive.[17] Consequently, the Committee expects a sound justification to be included in the Explanatory Memorandum for the use of any clauses that allow delegated legislation to modify the operation of primary legislation. While it is not possible to pre-empt the Committee’s views on the use of delegated legislation in this Bill, Parliament may wish to examine these provisions to ensure there is sufficient justification and guidance for their use.

Secondary use or disclosure by other people

Item 46 amends section 90LF to broaden the operation of the secondary disclosure provisions.

Currently, section 90LF allows a person who received information or a document under an exception to the disclosure offences to disclose that information or document to another person, provided the disclosure is for the same purpose as the purpose for which the original disclosure was made. The Explanatory Memorandum states this is a significant limitation and means that information disclosed to one government agency under an exception provided for in the Act is not necessarily able to be shared with another government agency to support other public interests.[18]

To address this limitation, item 46 inserts new provisions to expand the circumstances in which secondary use and disclosure of information or documents is permitted. Proposed subsection 90LF(3) provides that if a person (the recipient) acquired or received the information or document as a result of a disclosure under proposed subsection 90JD(1) or (6),[19] the recipient may disclose the information or document to:

• a person covered by subsection 90JD(1), or a customs officer, if the recipient is satisfied that the information or document will enable or assist the person or officer to exercise any of the powers, or perform any of the functions or duties, of the person or officer or
• an authorised ASIO officer if the recipient reasonably suspects that the information or document is or may be relevant to security within the meaning of the ASIO Act.

Proposed subsection 90LF(4) would permit the person who acquired or received the information or documents under an exception permitted in subsection 90LF(3) (the secondary recipient) to use the information or document in the exercise of any their powers, or the performance any of their functions or duties, provided they are a person prescribed by subsection 90JD(1) or a customs officer.

Opening and examination of postal articles

Division 3 of Part 7B of the APC Act deals with the limits placed on opening and examining postal articles. Item 49 would repeal subsection 90M(2) and substitute new subsection 90M(2) to clarify that Division 3 does not limit the operation of Part XII of the Customs Act,[20] the Biosecurity Act, and the Imported Food Control Act. This amendment is intended to give biosecurity and customs officers greater certainty that the APC Act ‘does not limit the exercise of their legislative powers or performance of their legislative functions when dealing with articles under their legislative regimes, including the screening and intervention of international mail’.[21]

Authorised examiners

Currently, under the APC Act, the opening and examination of postal articles is prohibited except in specified circumstances and must be undertaken by a person who is authorised by Australia Post. Central to these provisions are ‘authorised examiners’ who are employees of Australia Post or other persons (such as biosecurity or customs officers) appointed in writing by Australia Post to exercise various powers under Division 3. The definition of the term ‘authorised examiner’ is repealed (items 9 and 16) and all references to the term are removed. The justification for this amendment is that it is cumbersome and impractical to maintain and therefore ‘not always able to be relied on by Australia Post employees in executing their duties and powers in relation to the processing and treatment of international mail in the course of post’.[22]

Section 90N prohibits opening and examining the contents of a postal article except in certain circumstances as provided for in the Act. Those circumstances include, for example, the need for repair; articles on which customs duty may be payable; and articles reasonably believed to contain certain drugs or chemicals. Item 50 repeals and replaces section 90N. The new offence provision imposes the same penalty (a maximum prison sentence of 2 years) but is amended in order to provide clarity and broaden the scope of the circumstances in which the exceptions may apply to an offence. Proposed subsections 90N(2) and (3) provide that opening or examination of a postal article or its contents is permitted:

• if authorised by a provision in the APC Act, another law of the Commonwealth or a law of a state or territory
• if undertaken in the course of a person exercising powers, or performing their functions or duties as:
  • an AFP appointee
  • a member of the police force or police service of a state or territory, or
  • a person included in a class of persons determined in an instrument by the Minister.

The Minister’s power to determine by legislative instrument a class of persons who are exempt from the prohibition on opening and examining postal articles is a new provision.

Existing section 90P allows an authorised examiner to examine an article by any means without opening it (for example by X-ray, metal detector or odour detector). Items 51–52 amend section 90P to specify that an employee of Australia Post, a customs officer, a biosecurity official or a person included in a class of persons determined in a legislative instrument may examine postal articles without opening. The ability to prescribe other classes or persons to carry out examinations without opening an article is to provide ‘operational flexibility … as resourcing arrangements change over time’.[23] As noted above, the Scrutiny of Bills Committee has long‑standing reservations about the use of legislative instruments, and generally does not accept a need for flexibility to justify the inclusion of significant matters in delegated legislation.[24]

Item 60 repeals subsections 90S(1) to (5) and substitutes new subsections 90S(1) to (5) to make clearer the circumstances permitting the opening of an article for the purposes of checking if an article contains or consists of anything on which customs duty is payable or is in contravention of a law of the Commonwealth relating to imports into, or exports from, Australia. Currently the opening of such items is limited to ‘authorised examiners’ which may include customs officers as well Australia Post employees. The new provisions specify in exact terms that Australia Post employees and customs officers are permitted to open and examine postal articles.

Dealing with explosive, dangerous or injurious items

Items 61 and 77 are amendments relating to postal articles that may contain drugs or chemical compounds or explosive, dangerous or injurious items. Existing sections 90T and 90Z are repealed and replaced by new section 90Z which expands and clarifies the procedures regarding opening, examining and dealing with such articles. Existing section 90Z provides that, in cases where a postal article may contain something that is or could be explosive, dangerous or injurious, the article may be dealt with in accordance with the services terms and conditions agreed or determined under section 32.[25] The Explanatory Memorandum states that new  section 90Z places these provisions into the APC Act ‘to strengthen this aspect of the regime, and ensure adequate protections are in place for consumers, noting the possible financial or other detriment to the sender or intended recipient of an article or its contents being destroyed’.[26]

Proposed subsection 90Z(1) would allow a ‘permitted person’ to open and/or examine an article if they reasonably suspect the article contains a prohibited thing (that is, anything that could be explosive, dangerous or injurious or could be used as part of another thing that is or could be explosive, dangerous or injurious). The person could also arrange for the article to be delivered into the custody of an AFP appointee or to a member of the state or territory police.

A ‘permitted person’ is an employee of Australia Post or a person in a class of persons determined in a legislative instrument made by the Minister under proposed subsection 90Z(5) (proposed subsection 90Z(2)).

Proposed subsection 90Z(5) would allow the Minister to determine, by legislative instrument, a class of persons as permitted persons for the purposes of proposed section 90Z. The Explanatory Memorandum explains that this flexibility would ‘enable other specialist services to be permitted to inspect and handle any explosive, dangerous or injurious things suspected to be contained or found in an article, and ensure the safety of workers at international mail gateways’.[27]

Proposed section 90Z also sets out the procedures for what must be done after opening and/or examining such an article:

• if opened and/or examined and found not to contain a prohibited thing the article must be closed and returned to the normal course of carriage (proposed subsection 90Z(3))
• if opened and/or examined and found to contain a prohibited thing one or more of the following procedures may be followed:
  • a permitted person may do anything appropriate to make the article and some or all of its contents safe for carriage by post. The person may then close up the article and return it to the normal course of carriage
  • a prescribed person may destroy a prohibited thing if satisfied that the destruction is required for the health or safety of the public or for the protection of other property. The Explanatory Memorandum clarifies that an Australia Post employee would only be able to destroy a prohibited thing if Australia Post employees formed part of a class of permitted persons determined in a legislative instrument by the Minister under proposed subsection 90Z(5)[28]
  • a permitted person may arrange for either or both of the article and some or all of its contents to be delivered to the AFP or a member of the state or territory police (proposed subsection 90Z(4))
  • before a prohibited thing is destroyed, Australia Post must ensure that details of the sender, the intended recipient and the contents of the article are recorded to the extent which they are known (proposed subsection 90Z(6))
  • after the item is destroyed, Australia Post is required to give written notice to the sender (if known) advising of the destruction and reasons for this. If the sender’s address is not recorded, then Australia Post must give notice to the intended recipient. The AFP or relevant police may request this information not be disclosed in certain circumstances and the Minister may, by legislative instrument, determine circumstances where the information is not to be disclosed (proposed subsections 90Z(7)–90Z(10)).

Other provisions

Definition of ‘carry by post’

The APC Act contains a definition of ‘carry by Post’ to mean ‘carried by or through Australia Post’.[29] This definition is repealed (items 1 and 3) and references to the term are removed throughout the Act and replaced with the phrase ‘carried by or through Australia Post’. This is to provide ‘greater clarity and certainty to Australia Post and border agencies responsible for the screening and intervention of international mail subject to the Part 7B of the Act’.[30]

The Bill also makes consequential amendments to the Criminal Code Act 1995 – specifically, to the terminology for postal offences in Divisions 470 and 471 to reflect the updated definitions in the APC Act that describe when an article is in the course of post.

Concluding comments

The APC Bill makes amendments to Part 7B of the APC Act aimed at improving the operation of the information sharing arrangements between Australia Post and border agencies and the rules for examining and opening postal articles.

The Bill’s introduction into Parliament was not preceded by any public consultation process. Rather, the Bill is said to be a response to increasing security-related vulnerability of postal articles and was developed with stakeholders over a long period of time.

Many of the amendments are minor and technical, intended to provide clarification and remove ambiguities regarding the rules for Australia Post, customs officers and biosecurity officials.

The more important amendments are to facilitate broader information sharing by Australia Post with Commonwealth, state and territory bodies and allow further changes to the rules regarding the opening, examination and destruction of postal articles.

Significantly, the Bill includes a number of provisions that would allow further changes via delegated legislation. In particular, these provisions would allow broader information sharing and enable the extension of rules for opening and examining postal articles via legislative instruments. Given the Scrutiny of Bills Committee’s long-standing reservations about the use of delegated legislation to modify the operation of primary legislation, Parliament may wish to scrutinise these provisions to ensure there is sound justification and guidance for their use.