Bills Digest No. 111, 2012–13

14 May 2013

Customs and AusCheck Legislation Amendment (Organised Crime and Other Measures) Bill 2013

Cat Barker
Foreign Affairs, Defence and Security Section 

The Bills Digest at a glance

Policy commitment and reform developments

The Bill would implement a range of measures designed to better protect Australia’s cargo supply chain from infiltration by criminal groups and increase the efficacy of the Customs penalty regime. The reforms stem mainly from the findings of Taskforce Polaris, which was established in July 2010 to investigate organised crime on the waterfront in Sydney, and recommendations of the Parliamentary Joint Committee on Law Enforcement’s inquiry into the adequacy of aviation and maritime security measures to combat serious and organised crime.

Key features

The Bill will amend the AusCheck Act 2007 to:

·         allow a person’s Aviation Security Identification Card (ASIC) or Maritime Security Identity Card (MSIC), or their application for such a card, to be suspended if the person has been charged with a ‘serious offence’ and

·         allow background checks to determine whether an individual has been charged with a serious offence, or whether a charge for a serious offence has been resolved in relation to the individual.

It will make several changes to the Customs Act 1901, including:

·         expanding the criteria used to determine whether a person is ‘fit and proper’ for the purposes of Customs licencing and registration schemes

·         imposing new obligations on cargo terminal operators and cargo handlers, similar to those that apply under Customs licencing schemes and

·         inserting new offences for the misuse of restricted Customs information.

The Bill will also amend the eligibility criteria for the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity under the Law Enforcement Integrity Commissioner Act 2006.

Key issues

Enabling a person’s ASIC or MSIC to be suspended on the basis of a serious offence charge is a more transparent and practical measure than an earlier proposal to enable suspension or cancellation on the basis of compelling criminal intelligence. However, in the absence of compelling justification, there appear to still be a number of issues to be worked through to ensure that proposed measure, associated amendments to ‘fit and proper person’ tests, and other amendments proposed in the Bill, appropriately balance the need to secure Australia’s cargo supply chain with the rights of those who work in the industry. Amendments that may remedy some of these issues are suggested in the ‘Key issues and provisions’ section of this Digest.

Date introduced: 20 March 2013

House: House of Representatives

Portfolio: Home Affairs

Commencement: Sections 1 to 3 and Schedules 2 and 3 commence on Royal Assent. Parts 1, 2, 4, 5 and 6 of Schedule 1 commence on a date to be fixed by Proclamation or six months after Royal Assent. Part 3 of Schedule 1 commences the day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose and structure of the Bill

The purpose of the Customs and AusCheck Legislation Amendment (Organised Crime and Other Measures) Bill 2013 (the Bill) is to:

·         amend the Customs Act 1901 (Customs Act) (Schedule 1 of the Bill) to:

–        amend tests used to determine whether a person is ‘fit and proper’ for the purposes of licencing and registration schemes under the Customs Act. The amendments will require consideration of whether the person has had an Aviation Security Identification Card (ASIC) or Maritime Security Identification Card (MSIC) refused, suspended or cancelled in the previous ten years (Part 1)

–        impose a suite of new obligations on cargo terminal operators and cargo handlers, and provide powers (including entry and inspection powers) to monitor and enforce compliance with those obligations (Part 2)

–        insert new offences relating to the misuse of restricted Customs information (Part 3)

–        enable the details of an infringement notice scheme to be set out in the regulations (Part 4)

–        apply strict liability to several existing offences, and increase penalties for a range of existing strict liability offences (Part 5) and

–        make a range of other minor changes to the Customs Act (Part 6)

·         amend the AusCheck Act 2007 (AusCheck Act) (Schedule 2 of the Bill) to:

–        allow a person’s ASIC or MSIC, or their application for such a card, to be suspended if the person has been charged with a ‘serious offence’

–        enable the AusCheck scheme to make provision for background checks to determine whether an individual has been charged with a serious offence, or whether a charge for a serious offence has been resolved in relation to the individual and

·         amend the Law Enforcement Integrity Commissioner Act 2006 (the LEIC Act) to make the Deputy Speaker of the House of Representatives and the Deputy President and Chair of Committees of the Senate eligible for appointment to the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity (PJC-ACLEI) (Schedule 3 of the Bill).

Background

The key reforms in the Bill (amendments to the AusCheck Act and those relating to ‘fit and proper person’ tests, obligations on cargo terminal operators and handlers, and misuse of restricted Customs information) represent the primary legislative component of a suite of measures the Government is pursuing to address the findings of the multi-agency Taskforce Polaris. They also take account of some of the recommendations that came out of the inquiry into the adequacy of aviation and maritime security measures to combat serious and organised crime that the Parliamentary Joint Committee on Law Enforcement (PJC-LE) concluded in 2011.

Taskforce Polaris was established in July 2010 to investigate organised crime on the waterfront in Sydney, and became operational in mid-2011.[1] The Taskforce comprises officers from the Australian Federal Police (AFP), Australian Crime Commission (ACC), Australian Customs and Border Protection Service (Customs), New South Wales Police and the New South Wales Crime Commission. As at 20 March 2013, it had made 36 arrests, laid 171 charges and seized over 12 tonnes of illicit substances and precursor chemicals (which can be used in the manufacture of illicit substances).[2]

The Taskforce provided a classified report to the Government in early 2012 on vulnerabilities it had identified in the waterfront environment. It reportedly detailed infiltration of customs and quarantine services, port management and the private sector supply chain by organised criminal groups, including recruitment by those organisations of senior maritime industry staff, and stated ‘multiple MSIC holders are involved in drug activity and are subject to substantial intelligence holdings detailing their criminal activity and criminal associates.’[3]

These findings are consistent with those of the PJC-LE inquiry, which found, on the basis of evidence provided by the ACC and other law enforcement agencies as well as a series of site visits around the country, that ‘serious and organised criminality in the aviation and maritime sectors poses a very real threat to Australia.’[4]

In its submission to the inquiry, the ACC stated that while much of the criminal activity that occurs across those sectors is opportunistic, a ‘small but high impact proportion’ is attributable to organised criminal groups.[5] According to the ACC, intelligence indicated that vulnerabilities in the sectors were being exploited for activities including importation and domestic distribution of illicit drugs; firearms, firearm parts and weapons movement; smuggling of fauna and flora; tobacco smuggling; and tax or duty evasion. Trusted insiders and internal facilitators could assist criminal groups in a variety of ways such as:

·         deliberately ignoring criminality

·         influencing rostering arrangements to facilitate possible criminal activity

·         providing information or advice on vulnerabilities

·         allowing access to uncleared goods and

·         actively participating in the commission of an offence.[6]

The ACC’s intelligence also indicated that ‘organised criminal groups exploited gaps, weaknesses and inconsistencies in the MSIC and ASIC regimes in order to gain or maintain employment, disguise criminal interests and undermine access controls’.[7]

On 25 May 2012, the Minister for Home Affairs announced a range of measures to combat the threats identified by Taskforce Polaris, including:

·         legislation to enable an MSIC or ASIC to be refused on the basis of compelling criminal intelligence (this measure had already been recommended by the PJC-LE in 2011)

·         expanding the list of offences for which an MSIC or ASIC may be refused (the PJC-LE had recommended a review of the lists of relevant offences in 2011)

·         requiring stevedores to report information and intelligence through enforceable licencing arrangements

·         criminalising provision of information from the Integrated Cargo System (ICS) to aid a criminal organisation

·         further restrictions on access to the ICS and improvements to its auditing capabilities and

·         establishing taskforces modelled on Taskforce Polaris in Melbourne and Brisbane.[8]

The Minister’s second reading speech provides an update on measures being progressed separately to the Bill.[9]

The amendments to the AusCheck Act in Schedule 2 of the Bill respond to recommendation 15 of the PJC-LE’s report on its inquiry into the adequacy of aviation and maritime security measures to combat serious and organised crime. The amendments to ‘fit and proper person’ tests under the Customs Act in Schedule 1 of the Bill respond to recommendation 13 of the same report. As the changes to ‘fit and proper person’ tests build upon the amendments to the AusCheck Act, the latter are discussed first below.

AusCheck amendments: Aviation and Maritime Security Identity Cards

Individuals employed in, or who require regular access to, secure areas of Australia’s air and seaports, are required to hold a valid ASIC or MSIC. The ASIC and MSIC schemes are set out under the Aviation Transport Security Regulations 2005 (Aviation Regulations) and the Maritime Transport and Offshore Facility Security Regulations 2003 (Maritime Regulations) respectively, both of which are administered by the Department of Infrastructure and Transport.[10]

To acquire an ASIC or MSIC, an individual must apply to an issuing body. Background checking of applicants, including criminal history and national security checks, is coordinated by AusCheck on behalf of issuing bodies. AusCheck was established within the Attorney-General’s Department (AGD) in 2007 to provide a centralised government background checking service in response to a recommendation of the 2005 Independent Review of Airport Security and Policing.[11]

Currently, the ASIC and MSIC schemes enable refusal of an application for an ASIC or MSIC, and cancellation of a person’s ASIC or MSIC, on the basis of an ‘adverse criminal record’. The definitions of adverse criminal record under the Aviation and Maritime Regulations differ slightly, but in both cases include where a person has been convicted of, and sentenced to imprisonment for, a relevant offence (an ‘aviation-security-relevant offence’ or a ‘maritime-security-relevant offence’ respectively). Such offences include, for example, terrorism offences and import or export of a controlled substance. [12] The Aviation and Maritime Regulations also provide for suspension of a person’s card if he or she is convicted of a relevant offence, is yet to be sentenced and constitutes a threat to aviation or maritime security.[13]

The PJC-LE examined the ASIC and MSIC schemes as part of its inquiry into the adequacy of aviation and maritime security measures to combat serious and organised crime.[14] The PJC-LE noted that when they were established, the focus of the ASIC and MSIC schemes was on preventing terrorist attacks, and formed the view that changes were needed to better protect aviation and maritime workforces against infiltration by serious and organised criminal networks.[15] To this end, the PJC-LE made nine recommendations in relation to the ASIC and MSIC schemes, including:

… the Attorney-General's Department arrange for a suitable law enforcement agency to be given the power to revoke an Aviation Security Identification Card or Maritime Security Identification Card if it is determined that a cardholder is not a fit and proper person to hold a card on the basis of compelling criminal intelligence.[16]

While some submitters and witnesses to the inquiry were in favour of the use of criminal intelligence in this context, others, including unions, AGD and AFP, raised concerns or potential issues with the proposal.[17] In his second reading speech, the Minister for Home Affairs stated that the model proposed in the Bill was developed as an alternative to the criminal intelligence model, based on AFP concerns about ‘uncertainty around the definition of what should constitute compelling criminal intelligence, what law enforcement should be required to disclose, and how the appeal process would work’.[18]

Schedule 2 of the Bill will amend the AusCheck Act to allow the Secretary of AGD to suspend a person’s ASIC or MSIC, or their application for such a card, if the person has been charged with a ‘serious offence’. Serious offences will be prescribed by regulation and will be a subset of the aviation-security-relevant offences and maritime-security-relevant offences prescribed in the Aviation and Maritime Regulations. The Bill does not provide new powers to cancel an ASIC or MSIC.

Customs amendments: Fit and proper person tests

The PJC-LE also considered the warehouse, depot and broker’s licencing schemes as part of its inquiry. Similar to its recommendation in relation to ASICs and MSICs discussed above, it recommended:

… Customs be given the power to revoke a depot, warehouse or broker’s licence if it determines, on the strength of compelling criminal intelligence, that an individual or individuals are involved or strongly associated with significant criminal activity.[19]

The Government noted that recommendation in its response to the PJC-LE’s report, and stated that it considered a more appropriate step would be to reinforce Customs’ power to scrutinise and monitor companies involved under those licencing regimes.[20]

Part 1 of Schedule 1 (in concert with Schedule 2) of the Bill will respond to the PJC-LE’s recommendation by amending the Customs Act to require the Customs CEO to consider, when determining whether a person is ‘fit and proper’ to hold a warehouse, depot or broker’s licence, whether the person has been refused an ASIC or MSIC, or has had an ASIC or MSIC suspended or cancelled, in the previous ten years. The test is relevant to decisions to grant, renew, suspend and cancel a licence.

Committee consideration

At the time of finalisation of this Bills Digest, the Bill had not been referred to or considered by any Parliamentary committee. As outlined above, some of the amendments respond to recommendations made by the PJC-LE in 2011.

Policy position of non-government parties/independents

As at the time of finalisation of this Bills Digest, non-government parties and independents were yet to make any public statements on the reforms in the Bill. The Coalition is likely to support the measures that respond to recommendations of the PJC-LE.[21]

Position of major interest groups

A number of employee unions raised objections to the suspension or cancellation of a person’s ASIC or MSIC on the basis of criminal intelligence in the context of the PJC-LE inquiry.[22] However, as at the time of finalisation of this Bills Digest, major interest groups had not made any public statements specifically addressing the proposed amendments in this Bill.

Financial implications

The Explanatory Memorandum states that the costs of implementing the amendments to the AusCheck Act in Schedule 2 of the Bill will be recovered through an increase to application fees for ASICs and MSICs, and that the amendments in Schedule 1 will have little or no impact on Government revenue.[23]

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.[24] The Statement of Compatibility specifically addresses the impacts of the Bill in relation to:

·         the right to protection against arbitrary and unlawful interference with privacy (Schedule 1 (Part 2) and Schedule 2 of the Bill)

·         rights to equality and non-discrimination (Schedule 1 (Parts 1 and 2) and Schedule 2)

·         the right to work (Schedule 1 (Part 2) and Schedule 2) and

·         the right to the presumption of innocence (Schedule 1 (Parts 2, 5 and 6)).

The Government considers that the Bill is compatible because to the extent that it may limit human rights, the limitations are reasonable, necessary and proportionate to achieving the intended outcomes.[25]

The Bill has not yet been considered by the Parliamentary Joint Committee on Human Rights.

Key issues and provisions

Schedule 1: Amendments to the Customs Act

Part 1: Fit and proper person tests

The Customs Act requires the CEO to determine whether a person or company is ‘fit and proper’ to perform a particular function before:

·         registering a person, partnership or company as a ‘special reporter’ under section 67EB or as a ‘re-mail reporter’ under section 67G or

·         granting a person, partnership or company a depot licence under section 77K, a warehouse licence under section 81 or a broker’s licence under section 183CC.

Those provisions require the Customs CEO to have regard to certain matters when determining whether a person is a ‘fit and proper person’. The matters to which the CEO must give regard vary across the different sections, but include, for example:

·         any conviction of the person for an offence committed in the last ten years

·         whether the person is an insolvent under administration and

·         any misleading statements made in the relevant application.

Items 2, 3, 4, 8 and 29 (with items 27 and 28) of Schedule 1 will amend sections 67EB, 67H, 77K, 81 and 183CC of the Customs Act respectively to require the Customs CEO to consider, when determining whether someone is a ‘fit and proper person’, whether the person has been refused an ASIC or MSIC, or has had an ASIC or MSIC suspended or cancelled, in the previous ten years.

Sections 77N, 82 and 183CG of the Customs Act set out the conditions of depot, warehouse and broker’s licences, such as notifying the Customs CEO of certain matters within a particular timeframe. Items 5, 10 and 32–37 of Schedule 1 will amend paragraphs 77N(2)(d) and 82(1)(c) and section 183CG respectively to require licence holders to notify the Customs CEO if the holder (or certain others, if not a natural person) has been refused an ASIC or MSIC, or had an ASIC or MSIC suspended or cancelled, since the grant or most recent renewal of the licence, or in the ten years leading up to it.

The key provisions for the suspension and cancellation of those licences are:

·         for a depot licence, sections 77V and 77VC

·         for a warehouse licence, sections 86 and 87 and

·         for a broker’s licence, 183CQ, 183CR and 183CS of the Customs Act.

One of the grounds on which a depot or warehouse licence may be suspended or cancelled is where the Customs CEO is satisfied (in the case of a depot licence) or has reasonable grounds for believing (for a warehouse licence) that the licence holder (or certain others, if not a natural person), is not a ‘fit and proper person’. Items 6 and 19 of Schedule 1 will amend subsections 77V(2) and 86(1A) respectively to require the CEO to have regard to the refusal, suspension or cancellation of an ASIC or MSIC when determining whether the person is ‘fit and proper’, in the context of a possible suspension or cancellation of their licence.

The suspension and cancellation provisions operate differently for broker’s licences. Under section 183CQ of the Customs Act, the Customs CEO may give notice to a customs broker that the question of whether their licence should be suspended, cancelled, or not renewed has been referred for investigation. Item 41 of Schedule 1 will amend subsection 183CQ(1) so that the grounds for such a notice will include where the CEO has reasonable grounds to believe that the broker, being a natural person, has been refused an ASIC or MSIC, or has had an ASIC or MSIC suspended or cancelled, in the previous ten years.

Section 273GA of the Customs Act provides that decisions under the Act relating to refusal, suspension or cancellation of a person’s or a person’s depot, warehouse or broker’s licence , or their registration as a special reporter or re-mail reporter, are reviewable on application to the Administrative Appeals Tribunal. This existing review mechanism will apply to such decisions where they are made on the basis of the refusal, suspension or cancellation of an ASIC or MSIC.

Issue: Utility and appropriateness of the new provisions

The Explanatory Memorandum to the Bill does not explain how the inclusion of consideration of refusal, suspension or cancellation of an ASIC or MSIC will add to the existing factors that must be considered in determining whether a person is ‘fit and proper’, or why it is appropriate. Of particular concern in this context are the potential outcomes of a person being refused a licence, or having their licence cancelled, because they had an ASIC or MSIC suspended in the ten years prior. A person’s ASIC or MSIC may only be suspended:

·         under the current Aviation and Maritime Regulations, if the person has been convicted but not sentenced for a relevant offence, and constitutes a threat to security or

·         if Schedule 2 of the Bill is enacted, if the person has been charged with a serious offence.

In either case, a decision as to whether to reinstate or cancel the ASIC must later be made (following sentencing or the resolution of charges). If a person’s ASIC or MSIC is then reinstated, it is not clear why the initial suspension should be a relevant consideration up to ten years later. If the ASIC or MSIC is cancelled, the cancellation could simply be taken into account. Further, the existing ‘fit and proper’ tests already incorporate considerations relating to conviction for a criminal offence. It therefore appears that suspension of an ASIC or MSIC is either a redundant, or inappropriate and potentially unfair, consideration in determining whether a person is ‘fit and proper’, depending on the outcome of that suspension.

Part 2: Cargo terminal operators

Part 2 of Schedule 1 (item 43) will insert proposed Part VAAA into the Customs Act. The proposed new Part will impose new obligations on cargo terminal operators and cargo handlers, and provide powers (including entry and inspection powers) to monitor and enforce compliance with those obligations.

Proposed section 102B of the Customs Act will provide definitions for the purposes of Part VAAA, including definitions of cargo handler, cargo terminal and cargo terminal operator. Cargo handler will mean a person involved in:

·         the movement of goods subject to Customs control into, within, or out of a cargo terminal and/or

·         the loading, unloading or handling of such goods at the terminal and/or

·         the storage, packing or unpacking of such goods at the terminal.

Cargo terminal will mean a place within the limits of a port, airport, or wharf where goods are located immediately after being unloaded from a ship or aircraft that carried the goods there from outside Australia or where goods are located immediately before being loaded onto a ship or aircraft for exportation. However, it will not include depots or warehouses covered under the licencing schemes outlined in Parts IVA and V of the Customs Act, where the obligations under those schemes will instead continue to apply.[26]

Cargo terminal operator will mean a person who manages a cargo terminal. The Explanatory Memorandum states that the definition is ‘deliberately broad to ensure the full range of persons that may manage a cargo terminal are covered and to ensure that new or varied business models do not create gaps in the control framework’.[27]

Proposed section 102BA of the Customs Act will set out the matters to which the decision-maker must have regard when determining whether a natural person or a company is a fit and proper person for the purposes of Part VAAA. The matters are broadly consistent with those included under other ‘fit and proper’ tests in the Customs Act (as amended by Part 1 of Schedule 1 of the Bill), including those that apply in relation to depot and warehouse licence holders. The matters include certain criminal convictions, refusal, suspension or cancellation of an ASIC or MSIC (for a natural person) and whether the company is under administration (for a company).

Proposed Division 2 of new Part VAAA of the Customs Act will impose a range of obligations on cargo terminal operators. Key obligations include:

·         ensuring adequate physical security of the cargo terminal and adequate security of goods at the terminal (including provision of adequate fencing, a monitored alarm system and controlled or limited entry and exit to the terminal) (proposed section 102CA)

·         notifying Customs as soon as practicable and in writing of certain events (such as unauthorised movement of goods subject to Customs control in or from the terminal and theft, loss or damage of such goods) (proposed section 102CC)

·         notifying Customs in writing of goods not belonging to the operator that remain at the terminal for more than 30 days, no later than 35 days after the goods were received (proposed section 102CD)

·         keeping records of each person who enters the cargo terminal, other than cargo terminal operator employees and government officers or employees, and providing such records to an ‘authorised officer’ on request (proposed section 102CE)[28]

·         taking all reasonable steps to ensure the operator, and if the operator is a body corporate, each executive officer, is a ‘fit and proper person’ (proposed section 102CF) and

·         complying with any written direction given by an authorised officer under proposed section 102EB (proposed section 102CH).

Proposed section 102CJ will allow the Customs CEO to impose additional obligations on cargo terminal operators by legislative instrument, if the CEO considers them necessary or desirable for the protection of revenue, ensuring compliance with Customs and certain other legislation or any other purpose.[29] The Explanatory Memorandum states that ‘any other purpose’ in this provision is limited to the purposes of the Customs Act.[30] This provision is equivalent to sections 77Q and 82A of the Customs Act, which make provision for the Customs CEO to impose additional conditions on depot and warehouse licence holders respectively.

Proposed subsection 102CK(1) will make it an offence for a cargo terminal operator to fail to comply with an obligation or requirement set out in Division 2, or a legislative instrument made under proposed section 102CJ. The maximum penalty will be 60 penalty units.[31] Proposed subsection 102CK(2) will apply strict liability to the offence. This means that no fault elements need to be proved for the offence, but the defence of mistake of fact is available.[32] Both the penalty and the imposition of strict liability are consistent with similar offences in the Customs Act for breach of licence conditions, and appear reasonable.[33]

Proposed Division 3 of new Part VAAA of the Customs Act will impose the following obligations on cargo handlers:

·         the obligations imposed on cargo terminal operators under proposed sections 102CC and 102CF to 102CI—as well as those outlined above, this includes:

–        taking all reasonable steps to educate and train employees about the operator’s responsibilities and obligations in relation to goods subject to Customs control (proposed section 102CG) and

–        providing an authorised officer with all reasonable facilities and assistance for the effective exercise of their powers under a Customs-related law (proposed section 102CI)[34]

·         not allowing goods in a container at a cargo terminal to be unpacked without the written approval of an authorised officer (proposed section 102DA)

·         not facilitating the transhipment or export of goods subject to Customs control without the written approval of an authorised officer (proposed section 102DB) and

·         using his, her or its correct identification code as provided by Customs for the port, airport or wharf, when communicating electronically with Customs about activities undertaken there (proposed section 102DC).

Proposed sections 102DD and 102DE will enable additional obligations to be imposed and provide for a non-compliance offence with respect to cargo handlers in the same ways as proposed sections 102CJ and 102CK will with respect to cargo terminal operators.

Issue: Imposition of obligations outside a licencing or registration scheme

The obligations to be imposed on cargo terminal operators and cargo handlers under proposed Part VAAA are comparable to those that apply under the Customs Act to depot, warehouse and broker’s licence holders and registered special reporters and re-mail reporters. However, they would be imposed in the absence of a licence or registration scheme. The Explanatory Memorandum to the Bill does not explain why a different approach has been taken in relation to cargo terminal operators and cargo handlers. However, as noted above, the new obligations will not apply to depots or warehouses covered under the licencing schemes outlined in Parts IVA and V of the Customs Act (the obligations under those schemes will instead continue to apply). The Explanatory Memorandum states that it would be common at international airports for a cargo terminal operator to hold a licence for the same premises to which the new obligations would apply.[35] A different approach may have been taken to avoid imposing multiple licencing regimes on the same operators in relation to the same premises.

It is also unclear whether other differences between the existing licencing schemes and the proposed new obligations are due to the fact that those obligations will be imposed outside of a licencing or registration scheme. As outlined above, the CEO may impose additional obligations by legislative instrument (under proposed sections 102CJ and 102DD). A cargo terminal operator or cargo handler is not able to apply for review of the decision to impose additional obligations. In contrast, the imposition of additional conditions on licence holders is in writing, and the decision to impose them is reviewable by application to the Administrative Appeals Tribunal under section 273GA.[36]

Proposed Division 4 of new Part VAAA of the Customs Act will provide authorised officers with powers to monitor compliance with obligations relating to cargo terminals, including to:

·         enter a cargo terminal (without consent or a warrant), inspect documents in the terminal and take extracts from or make copies of those documents (proposed subsection 102E(1))

·         access electronic equipment and use storage devices in certain circumstances (proposed subsections 102E(2) and (3))

·         make written requests for cargo terminal operators and cargo handlers to provide certain documents, records and information, including information to support an assessment of whether a person is ‘fit and proper’ (proposed section 102EA) and

·         give directions to cargo terminal operators and cargo handlers, including directions to an operator to carry out remedial work to address security concerns (proposed section 102EB).

Issue: Use of powers without consent or warrant

The Explanatory Memorandum to the Bill notes that one of the limited circumstances in which the Senate Standing Committee for the Scrutiny of Bills has deemed entry and search without consent or a warrant to be acceptable is to ensure compliance with licencing or registration conditions. It then justifies the entry and inspection powers set out in proposed Division 4 on the basis that they will be used to ensure compliance with obligations ‘of a similar nature’ to those imposed on licence holders, including depot and warehouse licence holders.[37] However, the Committee’s acceptance rested on the logic that a licence holder may be taken to accept entry by an inspector as a condition of the licence.[38] As outlined above, that situation does not apply in this instance.

Proposed Division 5 of new Part VAAA of the Customs Act (under proposed subsections 102F(1) and (2)) will enable the Customs CEO to give a written direction to a cargo terminal operator or a cargo handler (or in the case of a body corporate, an executive officer of the operator or handler) that the person ‘may not be involved, either indefinitely or for a specified period, in any way in the loading, unloading, handling or storage of goods subject to Customs control’ in a terminal. Under proposed subsection 102F(3), a direction may only be given if the CEO is satisfied that the relevant person is not a ‘fit and proper person’, or that the direction is necessary to protect the revenue or ensure compliance with Customs legislation.

Issue: appropriateness of CEO directions

A direction under proposed section 102F would appear to have a significant impact on a cargo terminal operator or cargo handler’s ability to operate, potentially akin to suspension of a licence. In the absence of any specific justification in the Explanatory Memorandum to the Bill, it is very difficult to come to any conclusions on the appropriateness or otherwise of this measure.

Section 273GA of the Customs Act enables applications to be made to the Administrative Appeals Tribunal for review of certain decisions made under the Customs Act. Item 44 of Schedule 1 will amend that section to provide that an application may be made for review of a decision of the CEO to give a direction under proposed section 102F.

Proposed subsection 102FA will make it a strict liability offence punishable by up to 100 penalty units to fail to comply with such a direction. The Explanatory Memorandum states that the higher than usual penalty for a strict liability offence is justified ‘given the serious nature of the direction and the possible consequences for security, community safety, and revenue’ (none of which it identifies) for failing to comply.[39] It is not clear how these consequences are greater than those associated with use of a depot while a depot licence is suspended, which is punishable by up to 50 penalty units.[40]

Part 3: Using information held by Customs

Item 45 of Schedule 1 will insert proposed section 233BABAF into the Customs Act to provide for two new offences relating to misuse of restricted information held by Customs. Proposed subsection 233BABAF(4) will define restricted information for the purpose of the section as that which is:

(a)      held in a computer owned, leased or operated by Customs; and

(b)     to which access is restricted by an access control system associated with a function of the computer.

Proposed subsection 233BABAF(1) will provide that a person commits an offence if he or she:

·         intentionally obtains information

·         is reckless as to whether the information is restricted information and

·         intentionally uses the information to commit a Commonwealth, state or territory offence.[41]

Proposed subsection (2) will provide that it is not necessary for the prosecution to prove that the defendant knew that the offence was an offence against a law of the Commonwealth or a state or territory. This is a special liability provision used to relieve the prosecution of the need to prove fault in relation to a jurisdictional element.[42] However, the prosecution will still be required to prove the fault element of intent in relation to the physical element of use of the information in a way that constituted an offence.

Proposed subsection 233BABAF(3) will provide that a person commits an offence if he or she:

·         intentionally obtains information

·         is reckless as to whether the information is restricted information

·         intentionally discloses the information to another person and

·         is reckless as to whether he or she lacked authorisation under the Customs Act or the Customs Administration Act 1985 to make the disclosure.[43]

The maximum penalty for both offences will be imprisonment for two years, 120 penalty units, or both. The penalty appears appropriate and proportionate, and is equivalent to that which applies to the offence of unauthorised access to, or modification of, restricted data under section 478.1 of the Criminal Code (two years imprisonment or, in accordance with section 4B of the Crimes Act 1914, 120 penalty units or both).

Part 5: Strict liability offences

Items that will apply strict liability to existing offences are considered in this part of the ‘Key issues and provisions’ section. Those that increase penalties for existing strict liability offences are covered under the ‘Other provisions’ section below.

Section 60 of the Customs Act contains three offences concerning failure of the master of a ship (subsection (1)) or a pilot of an aircraft (subsections (2) and (3)) to report to a boarding station and permit the ship or aircraft to be boarded. Strict liability currently applies to the entire offence in subsection 60(1) and one of the physical elements of subsection 60(2), but not to the offence in subsection 60(3). Each offence is punishable by up to 100 penalty units. A defence concerning stress of weather or other reasonable excuse applies to the offences in subsections 60(2) and (3) only.

Items 59 and 60 of Schedule 2 will amend section 60 of the Customs Act so that strict liability will apply to all elements of each offence. The penalties and defence will remain unchanged. The Explanatory Memorandum states that the amendments are to ‘ensure consistency across the like offences in section 60’.[44] However, it does not provide justification for extending, as opposed to removing, the application of strict liability from those offences to achieve that aim.

Section 240 of the Customs Act imposes a range of obligations on the owners of goods imported into or exported from Australia, and certain others, in relation to retaining the relevant commercial documentation. Offences for failure to comply with those obligations are set out in subsections 240(1), (1AA), (1A), (1B), (5) and (6A). It is also an offence under section 240(6B) for a person required to keep a commercial document to alter or deface it.

Section 240AB of the Customs Act imposes record keeping obligations on those who make a communication to Customs under the Act, or give someone else information for inclusion in such a communication. Offences for failure to comply with those obligations are set out in subsections 240AB(3), (3A) and (7).

The maximum penalty for each of the offences under sections 240 and 240AB is 30 penalty units. Items 105–113 of Schedule 1 will amend section 240 to apply strict liability to all the offences in that section. Items 114–120 will do the same for section 240AB. This is appropriate for the reasons set out in the Explanatory Memorandum.[45]

Section 243SA of the Customs Act sets out several offences concerning failure to answer questions. Under section 243SB, it is an offence to fail to produce a document when required under certain provisions of the Customs Act. The maximum penalty for each offence is 30 penalty units. Items 121–123 of Schedule 1 will amend sections 243SA and 243SB to apply strict liability to all of the offences they contain. This is appropriate for the reasons set out in the Explanatory Memorandum and given the explicit preservation under section 243SC of the privilege against self-incrimination with respect to sections 243SA and 243SB.[46]

Schedule 2: Amendments to the AusCheck Act

Definitions

Items 1–8 of Schedule 2 to the Bill will amend section 4 of the AusCheck Act to update several existing definitions and insert new definitions, including when an individual is taken to be charged with an offence, when a charge is taken to be resolved and a definition of serious offence in relation to an applicant for, or holder of, an ASIC or an MSIC.

Serious offence will mean an aviation-security-relevant offence (in the case of an applicant for, or holder of an ASIC) or a maritime-security-relevant offence (in the case of an applicant for, or holder of an MSIC) of a kind specified in the regulations. Aviation-security-relevant offence and maritime-security-relevant offence will have the same meanings as in the Aviation Transport Security Regulations 2005 and the Maritime Transport and Offshore Facilities Security Regulations 2003 respectively. The Senate Standing Committee for the Scrutiny of Bills may take issue with an important definition for the Act being reliant on regulations. However, the approach is consistent with the broader regulatory framework that applies to the ASIC and MSIC scheme.

Item 9 of Schedule 2 will amend the definition of background check in section 5 of the AusCheck Act to include an assessment of information relating to whether an individual has been charged with a serious offence, or whether a charge for a serious offence has been resolved in relation to the individual. This will apply only where a background check is required or permitted under a regulation made under subsection 8(3), which will be inserted by item 12.

Background checks in relation to serious offence charges

Section 8 of the AusCheck Act provides for the establishment of the AusCheck scheme, through regulations, to enable the conduct and coordination of background checks of individuals for particular purposes. The purposes include those specified in the Aviation and Maritime Regulations, such as the ASIC and MSIC programs. Items 10–12 of Schedule 2 will amend section 8 to enable the regulations to provide for background checks to be undertaken in relation to charges for serious offences.

Item 10 of Schedule 2 will insert proposed paragraph 8(1)(c) into the AusCheck Act to enable a background check to be conducted on an individual if it is required or permitted under a regulation made under proposed subsection 8(3). Item 12 will insert proposed subsections 8(3) and (4). Proposed subsection 8(3) will enable the regulations to require or permit a background check covering an individual’s identity, criminal history and whether an individual has been charged with a serious offence, or whether a charge for a serious offence has been resolved in relation to the individual if:

·         the Secretary of the Department administering the AusCheck scheme considers on reasonable grounds that the individual has been charged with a serious offence, or that a charge for a serious offence has been resolved in relation to the individual and:

–        the individual is an applicant for, or holder of, an ASIC or MSIC and/or

–        the individual or an issuing body (within the meaning of the Aviation and Maritime Regulations) has applied to the Transport Secretary to set aside the cancellation of the individual’s ASIC or MSIC and/or

–        the individual has a pending application to the Administrative Appeals Tribunal for review of a decision relating to the issue, suspension or cancellation of an ASIC or MSIC.

Proposed subsection 8(4) will provide that the regulations may only require or permit a background check to be conducted for purposes related to determining whether it is appropriate for the individual to enter an area or zone to which access is restricted under the Aviation Transport Security Act 2004 or regulations or the Maritime Transport and Offshore Facilities Security Act 2003 or regulations.

Item 21 of Schedule 2 will insert proposed section 10. Proposed subsection 10(1) will provide that the AusCheck scheme may, for the purposes of background checks required or permitted under a regulation made under proposed subsection 8(3), make provision for and in relation to:

·         the giving to the Secretary of the Department administering the AusCheck scheme of information, relating to an individual in respect of whom a background check is conducted, that is directly necessary for the purpose of conducting the background check

·         the criteria against which a background check is to be assessed

·         the decision or decisions that may be made as a result of a background check and

·         the form of advice to be given to:

–        an individual in respect of whom a background check is conducted and

–        other persons, about the outcome of a background check.

Proposed subsection 10(3) will allow the AusCheck scheme to make provision for and in relation to an individual or an issuing body notifying the Secretary of the Department administering the AusCheck scheme or the Transport Secretary of specified matters if:

·         the individual has been charged with a serious offence, or a charge for a serious offence has been resolved in relation to the individual and:

–        the individual is an applicant for, or holder of, an ASIC or MSIC and/or

–        the individual or an issuing body (within the meaning of the Aviation and Maritime Regulations) has applied to the Transport Secretary to set aside the cancellation of the individual’s ASIC or MSIC and/or

–        the individual has a pending application to the Administrative Appeals Tribunal for review of a decision relating to the issue, suspension or cancellation of an ASIC or MSIC.

This subsection appears to be the provision that would be relied upon for the AusCheck scheme to require applicants and cardholders to self-report when they have been charged with a serious offence and to impose penalties for failing to do so.[47] Such requirements and penalties currently exist in relation to ASIC and MSIC holders self-reporting when they have been convicted and sentenced for an aviation-security-relevant or maritime-security-relevant offence.[48]

Directions in relation to serious offence charges

Section 11 of the AusCheck Act provides that the regulations may empower the Secretary of the Department administering the AusCheck scheme to give particular directions on matters connected to background checks. Item 23 of Schedule 2 will insert new subsections 11(3)–(6) to enable the regulations to provide for directions to suspend a person’s ASIC or MSIC, or application for an ASIC or MSIC, if the person is charged with a serious offence.

Proposed subsection 11(3) will provide that the regulations may empower the Secretary to give certain directions if he or she considers on reasonable grounds that an individual has been charged with a serious offence, in particular:

·         a direction to an issuing body or the Transport Secretary to delay the processing of an application for an ASIC or an MSIC for the individual

·         a direction to an issuing body to suspend an ASIC or MSIC it issued to the individual and

·         a direction to the Transport Secretary to delay consideration of an application to set aside the cancellation of the person’s ASIC or MSIC

until further direction from the Secretary in accordance with proposed subsection 11(4).

Issue: Threshold for issue of direction

The Explanatory Memorandum to the Bill indicates that background checks undertaken in accordance with proposed subsection 8(3) are intended to inform decisions of the Secretary to give directions under proposed subsection 11(3) to suspend an individual’s ASIC or MSIC, or application for an ASIC or MSIC.[49] However, the relevant part of the threshold for the Secretary giving such a direction is the same as that required before such a check can be undertaken—that he or she ‘considers on reasonable grounds that an individual has been charged with a serious offence’.[50] The AusCheck Act as amended by the Bill would impose no obligation for a background check to be undertaken before a direction is given under proposed subsection 11(3). The interaction of these provisions could be clarified, and accountability improved, by providing that the Secretary may only give a direction under subsection 11(3) if a background check undertaken in accordance with subsection 8(3) determines that an individual has been charged with a serious offence.

Issue: Impact on employment

The Maritime Union of Australia made the point in hearings for the 2011 PJC-LE inquiry that it considers that MSICs have become a ‘right-to-work’ card for its members:

… in that if we cannot have an MSIC, our members—about 12,000—unlike truck drivers, rail workers and some port workers, we cannot go to another area of work. That takes away our ability to earn money and have a job. So we have labelled it a right-to-work card.[51]

The extent to which the measures in Schedule 2 may limit a person’s ability to work is recognised in the Statement of Compatibility, which states, in relation to a direction to delay processing of an application for an ASIC or MSIC:

If the person’s prospective employer or contractor cannot deploy the person to a position that does not require them to hold a valid card, the employer or contractor may refuse to engage the person.[52]

and in relation to a direction to suspend a person’s ASIC or MSIC:

Similarly, in cases where a person’s card has been suspended, the person’s employer or contractor may also choose to deploy the person to a position that does not require them to hold a valid card.  Where that is not possible, an employer or head contractor may decide to suspend a person’s employment or contract for services, pending the outcome of any criminal trial, or to terminate that employment or contract.[53]

The Statement of Compatibility also recognises that under international human rights law ‘limitations on the right to work must be proportional to the end to be achieved and the least restrictive where several alternatives are available’.[54]

Under regulation 5 of the Australian Federal Police Regulations 1979, the Commissioner may suspend an AFP appointee with or without remuneration if:

(a) the appointee is charged with having committed a summary or indictable offence against a law of the Commonwealth, a State, a Territory or another country; and

(b) the Commissioner believes that, because of the nature of the offence, the appointee should not continue to perform his or her duties until the charge has been determined.[55]

Under regulation 3.10 of the Public Service Regulations 1999, the head of an agency may suspend an employee with or without remuneration if he or she believes on reasonable grounds that:

(a) the employee has, or may have, breached the Code of Conduct; and

(b) the employee’s suspension is in the public, or the Agency’s, interest.[56]

Enabling suspension of the ASIC or MSIC of someone working in the private sector (which may in practice amount to suspending or terminating that person’s employment) on the basis of an unproven charge is a more significant step. It would be somewhat easier to make an argument that the measure is proportionate if the issue concerning automatic suspension outlined below were to be addressed.

Issue: Automatic suspension

The Explanatory Memorandum to the Bill indicates that the new power to suspend a person’s ASIC or MSIC will build upon existing powers under the Aviation and Maritime Regulations for the Transport Secretary to suspend a person’s card if he or she has been convicted of an aviation- or maritime-security-relevant offence but not yet sentenced.[57] However, under those existing powers, an additional test applies before action can be taken—that the cardholder constitutes a threat to aviation or maritime security (whichever is relevant). Regulation 6.42A of the Aviation Regulations provides that in deciding whether cardholder constitutes a threat to aviation security, the Transport Secretary must consider, along with any other relevant matter:

·         the type of offence and the circumstances in which it was committed

·         the effect the suspension may have on the holder’s employment

·         the location of the secure area where the holder is employed and

·         whether the holder is employed in a landside security zone or airside area.

Regulation 6.08LE of the Maritime Regulations contains an equivalent requirement.

The Explanatory Memorandum states, ‘The Government decided that suspension of an application or card should be automatic following a charge for a serious offence’[58], but does not provide adequate justification as to why. Consideration of the type of offence may not be relevant to the new suspension power in proposed subsection 11(3), as that power will apply only to a narrower class of serious offences. However, the remaining matters, and perhaps others, would be relevant to determining whether a person charged with a serious offence constitutes a security or organised crime risk, and inclusion of an equivalent additional test should be considered.

Issue: Review of decision to suspend an ASIC or MSIC

The Bill does not include any explicit provision for a person to seek review of a direction to suspend that person’s ASIC or MSIC, or their application for such a card, under proposed subsection 11(3), and the issue is not addressed in the Explanatory Memorandum to the Bill . However, references to an individual who has applied to the Administrative Appeals Tribunal for review of a decision of the Secretary relating to suspension of an ASIC or MSIC (see for example proposed subparagraph 8(3)(a)(v)) suggest an intention that the decision be reviewable. This is because the Secretary does not currently have decision making powers in relation to suspension of an ASIC or MSIC. Applications for review could be enabled under the AusCheck Regulations 2007.[59]

Proposed subsection 11(4) will require the Secretary to issue a further direction to the relevant person as soon as practicable after he or she considers that all charges for serious offences have been resolved in relation to the individual and that a background check covering the individual’s criminal history has been conducted following the resolution of the charges. However, it does not set out the kinds of directions that may be given. This could prove problematic because unlike the other subsections, proposed subsection 11(4) would impose a direct obligation on the Secretary instead of enabling the AusCheck scheme to do so. The Explanatory Memorandum indicates that where a cardholder is no longer eligible on the basis of new criminal history, it is intended that the Secretary would direct the issuing body to cancel the ASIC or MSIC under the existing Aviation and Maritime Regulations.[60]

Proposed subsection 11(5) will provide that where an ASIC or MSIC is suspended as referred to above, any other card issued to the individual under the Aviation or Maritime Regulations is taken to also be suspended.

Proposed subsection 11(6) will provide that the regulations may make provision for matters connected with the giving of a direction under proposed subsection 11(3), including, but not limited to, those set out in the subsection.

Issue: Delegation of powers

Section 12 of the AusCheck Act allows the Secretary of the Department administering the AusCheck scheme to delegate any or all of his or her functions and powers under the scheme to an SES employee or acting SES employee, or an APS employee who holds or is acting in an Executive Level 2 or equivalent position in the Department. The Bill would not amend this section. Consideration should be given to whether such a broad delegation power is appropriate with respect to suspension of a person’s ASIC or MSIC based on a serious offence charge.

Other provisions

Schedule 1: Amendments to the Customs Act

Part 4: Infringement notices

Division 5 of Part XIII of the Customs Act provides for infringement notices to be issued for particular offences under the Act as an alternative to prosecution. Part 4 of Schedule 1 to the Bill will repeal and replace the Division to enable most of the detail of the infringement notice scheme (INS) to instead be set out under the regulations. The Explanatory Memorandum states that the amendments are in part a response to an Australian National Audit Office (ANAO) recommendation that proposed a review of, and possible changes to, the INS to improve its usefulness as a mechanism for improving compliance and discouraging non-compliance.[61] The ANAO made that recommendation after examining the INS and comparing it to similar regimes in other countries, and finding that it was used relatively infrequently, partly because officers found it difficult, time-consuming and cumbersome.[62]

Item 57 of Schedule 1 will repeal and replace existing Division 5, Part XIII of the Customs Act. Proposed section 243X will allow the regulations to make provision for an INS that may apply to Customs Act offences to which strict or absolute liability applies. Proposed subsection 243X(2) will set a limit on the penalty amount that may be specified in an infringement notice issued under the scheme, providing that it may not exceed either:

(a)              one-quarter of the maximum fine that a court could impose on the person as a penalty for that offence; or

(b)              subject to subsection (3), whichever of the following applies:

              (i)              15 penalty units if the person is an individual;

              (ii) 75 penalty units if the person is a body corporate.[63]

The penalty limits that currently apply under subsection 243Z(4) are one-fifth of the maximum fine a court could impose for the offence, or 10 penalty units for an individual and 50 penalty units for a body corporate.[64] The new penalty limits are somewhat higher than those recommended in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers of one-fifth of the maximum fine a court could impose for the offence, up to a maximum of 12 penalty units for an individual and 60 for a body corporate.[65] The Explanatory Memorandum addresses this difference only in general terms, stating it is ‘to increase the deterrence effect’ of the INS and ‘encourage greater compliance’.[66]

Proposed section 243Y provides for forfeiture of prohibited goods where a person has paid a penalty under the INS for an offence of importing prohibited goods. Proposed section 243Z provides a right to compensation for goods disposed of or destroyed under proposed section 243Y in certain circumstances. These provisions are substantively the same as current subsection 243ZK(5) and section 243ZN of the Customs Act, which will be repealed by item 57.

Part 5: Strict liability offences

Items 61–104 and item 125 of Schedule 1 will increase the penalties that apply to a range of strict liability offences in the Customs Act, as tabled in the Appendix.

Under section 243T of the Customs Act, the owner of goods commits an offence if a person makes a false or misleading statement in relation to those goods that would result in loss of duty to Customs. Currently the penalty for the offence is an amount ‘not more than the excess’, that is, the duty avoided by making such a statement. Item 124 of Schedule 1 will repeal and replace subsection 243T to amend the penalty to a fine not exceeding the greater of 60 penalty units or the amount of the excess.

The clarity of many of the offences to be amended by Part 5 of Schedule 1 could be improved by more modern language and drafting style. It is not clear why the opportunity has not been taken to make such changes under this Bill.

Part 6: Other amendments to the Customs Act

Section 100 of the Customs Act allows that where goods have been entered for warehousing, they may, without actually being warehoused, be further entered in accordance with section 99 (entry of warehoused goods) and dealt with as if they had been warehoused. Item 129 of Schedule 1 will repeal and replace section 100 to allow such action only with the prior permission of Customs. Under proposed new subsection 100(7) it will be a strict liability offence, with a maximum penalty of 60 penalty units, not to then provide details of the new entry to the licence holder for the warehouse as soon as practicable. The fact that the penalty for this offence is six times that which applies to the equivalent offence in current subsection 100(3) is not addressed in the Explanatory Memorandum. However, an argument could be made that the seriousness of the offence is similar to that of warehouse licence holders failing to notify Customs of certain matters under section 102A, for which the maximum penalty is 60 penalty units.

Section 183CG of the Customs Act sets out the general conditions to which a broker’s licence are subject and allows the CEO to specify additional conditions where necessary or desirable to achieve certain purposes. Item 132 of Schedule 1 will insert proposed sections 183CGA and 183CGB to enable the CEO to impose additional conditions or vary existing conditions at any time, with appropriate notice. It will also insert proposed section 183CGC, a strict liability offence for breaching a condition to which the licence is subject, including as varied. The maximum penalty for the offence will be 60 penalty units. The proposed provisions are equivalent to those that currently apply to the depot and warehouse licencing regimes (under sections 77Q and 77R, and 82A to 82C respectively). Items 133 and 134 will make consequential amendments to section 183CJ.

Section 234 of the Customs Act contains a range of customs offences. Items 135 and 136 of Schedule 1 will increase the penalties that may be imposed for intentionally providing information, reckless as to whether it was false or misleading in a material particular. The Explanatory Memorandum does not explain the need for the substantial penalty increases, which are from 100 to 250 penalty units and 50 to 100 penalty units respectively, simply stating that they are intended to ‘improve the deterrent effect’.[67]

As noted above, section 240AB of the Customs Act imposes record keeping obligations on those who make a communication to Customs under the Act, or give someone else information for inclusion in such a communication. Items 137 and 138 of Schedule 1 will increase the period of time for which certain records must be retained from one year to five years.

As noted above, under section 243T of the Customs Act, the owner of goods commits an offence if a person makes a false or misleading statement in relation to those goods that would result in loss of duty to Customs. Items 139–142 of Schedule 1 will amend section 243T so that the offence applies instead to whoever provides the false or misleading information.

Schedule 2: Amendments to the AusCheck Act

Section 9 of the AusCheck Act sets out the matters that the Auscheck scheme may make provision for and in relation to, such as the making of applications for a background check, the criteria against which an application is assessed and the decisions that may be made as a result of an application. Items 13–15 and 17–19 of Schedule 2 will amend this section so that it continues to apply only to background checks required or permitted under legislation other than the AusCheck Act or regulations. Item 21 will insert an equivalent section for background checks required or permitted under a regulation made under proposed subsection 8(3) (see the ‘Key issues and provisions’ section above). Item 16 will repeal paragraph 9(1)(i), which provides that the AusCheck scheme may make provision for matters relating to the establishment and provision of an online verification service. This provision will be reinserted substantively unchanged by item 21, as proposed section 10A.

Division 1, Part 3 of the AusCheck Act sets parameters around the collection, retention, use and disclosure of personal information and identity verification information about individuals for the purposes of the AusCheck scheme. Items 24–29 of Schedule 2 would amend provisions in this Division to support the new background checking functions associated with charges for serious offences outlined in the key issues and provisions section of this Digest, and make other minor changes.

Section 18 of the AusCheck Act provides that the regulations may provide for the imposition of penalties of up to 50 penalty units for a contravention of the regulations. Item 30 of Schedule 2 will increase the maximum penalty that may be imposed under the regulations from 50 to 100 penalty units. The Explanatory Memorandum states that this is to provide scope for appropriate penalties to be imposed under the regulations for proposed offences such as failure to report a charge for a serious offence.[68] As a general rule, serious criminal offences and penalties should be contained in primary legislation to enable full Parliamentary scrutiny, and the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers recommends that regulations should not authorise penalties of more than 50 penalty units for an individual.[69] However, the Aviation and Maritime Regulations both impose penalties of 100 penalty units on issuing bodies for failing to notify the Secretary of AGD if an ASIC or MSIC holder self-reports a conviction for an aviation- or maritime-security-relevant offence. This amendment would enable the AusCheck Regulations to impose the same penalty on an issuing body for failing to provide notification of a serious offence charge.

Schedule 3: Amendments to the LEIC Act

Items 1 and 2 of Schedule 3 will amend section 213 of the LEIC Act to remove the current bar on the Deputy Speaker of the House of Representatives and the Deputy President and Chair of Committees of the Senate being appointed to the PJC-ACLEI. The Explanatory Memorandum states that this would bring membership eligibility into line with committees with similar functions.[70]

Concluding comments

The Bill would implement a range of measures designed to better protect Australia’s cargo supply chain from infiltration by criminal groups and increase the efficacy of the Customs penalty regime.

The process of developing the legislation has taken some time, given the PJC-LE’s report was released in June 2011 and the reforms were announced around a year ago. Consultation with industry and unions, flagged when the reforms were announced, may have added time to the development process, and legitimately so. Despite a lengthy development process, the Bill appears to have been brought forward without full consideration of some of the practical implications of the measures it contains.

Enabling a person’s ASIC or MSIC to be suspended on the basis of a serious offence charge is a more transparent and practical measure than enabling it to be suspended or cancelled on the basis of compelling criminal intelligence. However, in the absence of compelling justification, there appear to still be a number of issues to be worked through to ensure that proposed measure, associated amendments to ‘fit and proper person’ tests, and other amendments proposed in the Bill, appropriately balance the need to secure Australia’s cargo supply chain with the rights of those who work in the industry.

Appendix: Penalty increases to strict liability offences under the Customs Act 1901

The offences for which penalties are to be increased by Items 61–104 and item 125 have been grouped in the table below on the following basis:

·         lowest to highest current penalty and then

·         lowest to highest proposed penalty.

This is to enable a comparison of offences with equivalent current and proposed penalties and facilitate an assessment of consistency of penalties for like offences.

Item

Provision

Offence

Current penalty (units)

Proposed penalty (units)

64

64AE(1)

Failure to answer questions or produce documents

5

30

65

64AE(2)

Failure to answer questions or produce documents

5

30

90

123(1)

Failure to bring a ship departing from a port to a boarding station and facilitate boarding

Departure from a port with an officer on board without that officer’s consent

5

30

91

123(2)

Failure to bring an aircraft departing from an airport to a boarding station and facilitate boarding

Departure from a port or airport with an officer on board without that officer’s consent

5

30

97

188(1)

Failure to provide appropriate accommodation and sufficient food for an officer stationed on board a ship, aircraft or installation

5

30

67

64A(2)

Failure to answer questions

10

30

68

64A(3)

Failure to produce documents

10

30

79

90(1)

Failure to comply with an obligation of holding a warehouse licence

10

30

82

101(1)

Failure to deliver warehousing authority or permission as required

10

30

83

102(1)

Failure of warehouse licence holder to notify Customs of certain matters

10

30

84

102(2)

Failure of warehouse licence holder to notify Customs of certain matters

10

30

88

114B(7)

Failure to comply with a condition to which a grant confirming exporter status is subject

10

30

92

126C(1)

Export of goods subject to the control of Customs on a ship below minimum size

10

30

96

181(5)

A person doing something in relation to goods, or representing that he or she is able to do, or arrange something to be done, in relation to goods, where he or she is not the owner of the goods or an authorised agent of the owner

10

30

100

195(2)

Failure to answer questions

10

30

104

234AB(3)

Failure to comply with a direction not to use certain devices while baggage is being examined

10

30

74

71AAAQ(1)

Giving of a further self-assessed clearance declaration while there is an existing self-assessed clearance for goods

15

60

75

71G(1)

Communication of a further import declaration or RCR, or a warehouse declaration, while there is an existing import declaration or RCR

15

60

66

64A(1)

Failure to make a required report in specified timeframe or form

20

60

93

127(1)

Unshipping or unloading of ship’s or aircraft’s stores or use of such stores before departure other than in specified circumstances

20

60

94

129(3)(a)

Failure to comply with a requirement specified in an approval to take stores on board an aircraft or ship

20

60

95

130B(3)

Failure to comply with a direction in relation to give particulars of stores or give a Collector a return in relation to stores

20

60

101

197(6)

Failure to stop conveyance in a Customs place when required to do so

45

60

102

227E(5)

Interference with a fastening, lock, mark or seal placed on a prohibited item

45

60

61

61(1)

Failure to facilitate boarding of ship, aircraft or installation by an authorised person after permitting boarding

50

60

62

62(1)

Failure to bring a boarded ship to a proper place of mooring or proper appointed wharf

50

60

63

63(1)

Removal of a ship or aircraft from a proper place of mooring, proper appointed wharf or airport before discharging cargo intended to be discharged there

50

60

69

65(1)

Failure to report lost or wrecked ship and cargo

50

60

70

65(2)

Failure to report lost or wrecked aircraft and cargo

50

60

71

67EI(1)

Breach of a condition of registration as a special reporter

50

60

72

69(10)

Failure to comply with a condition to which permission to deliver goods is subject

50

60

73

70(7)

Failure to comply with a condition to which permission to deliver goods is subject

50

60

76

77R(1)

Breach of a condition of a depot licence

50

60

77

77Y(4)

Failure to comply with a direction in relation to goods in a depot that are subject to the control of Customs

50

60

78

82C(1)

Breach of a condition of a warehouse licence

50

60

80

96A(11)

Failure to comply with a condition to which permission for delivery and export of goods sold in outwards duty free shop is subject

50

60

81

96B(11)

Failure to comply with a condition to which permission for delivery and taking of goods sold in an inwards duty free shop is subject

50

60

85

105C(2)

Failure of legal owner of excise-equivalent goods to give Customs a return and pay duties

50

60

86

112D(2)

Failure to comply with a direction in relation to particular goods that are subject to the control of Customs

50

60

87

113(1)

Failure of the owner of goods intended for export to comply with certain obligations

50

60

89

116(2)

Failure of the owner of goods to withdraw or amend an entry for export following revocation of a relevant authority

50

60

98

191(1)

Opening, altering, breaking or erasing a fastening, lock, mark or seal without authority

50

60

99

192(1)

Opening, altering, breaking or erasing a fastening, lock, mark or seal without authority

50

60

103

234A(1)

Unauthorised entry to a place on a ship, aircraft or wharf while baggage is being examined

50

60

125

243U(3)

Making a false or misleading statement (other than in a cargo or outturn report) that would not result in a loss of duty

50

60

125

243V(3)

Making a false or misleading statement in a cargo or outturn report

50

60

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ISSN 1328-8091

[1].              J Clare (Minister for Home Affairs), Federal Government announces the next stage of crack down on organised crime on the waterfront, media release, 25 May 2012, viewed 19 April 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F1659189%22; T Negus (Australian Federal Police (AFP) Commissioner) in J Clare (Minister for Home Affairs), Press conference, media release, 25 May 2012, viewed 19 April 2013, http://www.ministerhomeaffairs.gov.au/Transcripts/Pages/2012/Second%20Quarter/25-May-2012-Press-conference.aspx

[2].              J Clare, ‘Second reading speech: Customs and AusCheck Legislation Amendment (Organised Crime and Other Measures) Bill 2013’, House of Representatives, Debates, 20 March 2013, pp. 2731–2735, viewed 19 April 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F8143f75e-7f37-4128-8d3b-e62455d99a32%2F0078%22. Over 11 tonnes of the precursor hypophosphorous acid (used in the domestic manufacture of methylamphetamine) was seized under a single operation (Operation Polaris–Whitesea): AFP, Annual report 2011–12, Commonwealth of Australia, 2012, p. 3, viewed 19 April 2013, http://www.afp.gov.au/media-centre/publications/~/media/afp/pdf/a/afp-annual-report-2011-2012.ashx

[3].              The Taskforce Polaris report is not publicly available. These details and the quote from the report are as reported in N McKenzie and R Baker, ‘Report blows lid on graft at ports: crime infects waterfront’, The Canberra Times, 25 May 2012, p. 1, viewed 19 April 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressclp%2F1657759%22

[4].              Parliamentary Joint Committee on Law Enforcement (PJC-LE), Inquiry into the adequacy of aviation and maritime security measures to combat serious and organised crime, June 2011, Canberra, p. 5, viewed 4 April 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=le_ctte/completed_inquiries/2010-13/aviation_maritime/report/index.htm

[5].              Australian Crime Commission (ACC), Submission to the Parliamentary Joint Committee on the Australian Crime Commission (now the PJC-LE), Inquiry into the adequacy of aviation and maritime security measures to combat serious and organised crime, 2009, p. 11, viewed 4 April 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=le_ctte/completed_inquiries/2010-13/aviation_maritime/submissions.htm. The ACC’s submission draws on intelligence gathered under its
2005–2008 Crime in the Transport Sector Determination, 2006–2008 Illegal Maritime Importation and Movement Methodologies Determination and Aviation Criminal Assessment Team (formed in 2006).

[6].              Ibid., pp. 6– 11. The submission also provides a number of informative case studies.

[7].              Ibid., p. 13.

[8].              J Clare, Federal Government announces the nest stage of crack down on organised crime on the waterfront, op. cit.

[9].              This includes legislative amendments to expand the list of offences for which an MSIC or ASIC may be refused, which are being led by the Department of Infrastructure and Transport. See: J Clare, ‘Second reading speech: Customs and AusCheck Legislation Amendment (Organised Crime and Other Measures) Bill 2013’, op. cit. Those amendments respond to recommendation 14 of the PJC-LE report—see: PJC-LE, Adequacy of aviation and security measures, op. cit., pp. 91–93.

[10].              The Aviation Regulations are available at: http://www.comlaw.gov.au/Details/F2012C00899. The Maritime Regulations are available at: http://www.comlaw.gov.au/Details/F2013C00068

[11].              For further background on the establishment and operation of AusCheck see: P Ruddock, ‘Second reading speech: AusCheck Bill 2006’, House of Representatives, Debates, 7 December 2006, pp. 11–12, viewed 7 May 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F2006-12-07%2F0059%22 and ‘AusCheck’ and sub-pages, Attorney-General’s Department (AGD) website, http://www.ag.gov.au/NationalSecurity/Auscheck/Pages/default.aspx. The report on the Independent Review, sometimes referred to as the Wheeler Review is available at: http://www.customs.gov.au/webdata/resources/files/SecurityPolicingReview.pdf

[12].              See regulation 6.01 of the Aviation Regulations and Schedule 1 of the Maritime Regulations for the complete lists.

[13].              See Regulation 6.42A of the Aviation Regulations and Regulation 6.08LE of the Maritime Regulations.

[14].              The Committee also took account of an August 2009 report by GHD on the assessment of MSIC criteria, available at: http://www.theage.com.au/ed_docs/MSIC_Eligibility_Criteria_Part1.pdf and a May 2011 report by the Australian National Audit Office on the management of the ASIC and MSIC schemes, available at: http://www.anao.gov.au/Publications/Audit-Reports/2010-2011/Management-of-the-Aviation-and-Maritime-Security-Identification-Card-Schemes

[15].              PJC-LE, Inquiry into the adequacy of aviation and maritime security measures, op. cit., pp. 83–114.

[16].              Ibid., p. 99 (recommendation 15).

[17].              Ibid., pp. 94–97; Attorney-General’s Department, ‘Answers to Questions on notice’, PJC-LE inquiry into the adequacy of aviation and maritime security measures to combat serious and organised crime, 17 February 2011, Question 3, viewed 4 April 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=le_ctte/completed_inquiries/2010-13/aviation_maritime/submissions.htm

[18].              J Clare, ‘Second reading speech: Customs and AusCheck Legislation Amendment (Organised Crime and Other Measures) Bill 2013’, op. cit., p. 2733. The AFP also noted in hearings the issue of a potential security gap with respect to the time between a person being charged and convicted of an offence, and suggested that a suspension mechanism may be an appropriate solution: PJC-LE, Adequacy of aviation and security measures, op. cit., p. 99.

[19].              PJC-LE, Adequacy of aviation and security measures, op. cit., p. 82 (recommendation 13).

[20].              Australian Government, Government response to the report of the Parliamentary Joint Committee on Law Enforcement: inquiry into the adequacy of aviation and maritime security measures to combat serious and organised crime, September 2011, p. 11, viewed 4 April 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=le_ctte/completed_inquiries/2010-13/aviation_maritime/index.htm

[21].              The recommendations had the support of all members of the PJC-LE, including several Liberal Party representatives. The Shadow Minister for Justice, Customs and Border Protection and Senator Parry spoke in support of the report and its recommendations in Parliament: M Keenan, ‘Committees: Law Enforcement Committee Report’, House of Representatives, Debates, 20 June 2011, p. 6508, viewed 29 April 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2Fe7b1b8b1-ac51-46c6-81bb-2c145051e8ce%2F0088%22; S Parry, ‘Committees: Law Enforcement Committee Report’, Senate, Debates, 16 June 2011, p. 3071, viewed 29 April 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansards%2Ff5354d10-da5f-4c44-a0fd-46553620fcfd%2F0103%22

[22].              Maritime Union of Australia, Australian Workers Union, Rail, Tram and Bus Union, Australian Maritime Officers Union and the International Transport Workers Federation, Joint submission to the Parliamentary Joint Committee on Law Enforcement, Inquiry into the adequacy of aviation and maritime security measures to combat serious and organised crime, undated, p. 8, viewed 29 April 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=le_ctte/completed_inquiries/2010-13/aviation_maritime/submissions.htm; Transport Workers Union of Australia, Submission to the Parliamentary Joint Committee on Law Enforcement, Inquiry into the adequacy of aviation and maritime security measures to combat serious and organised crime, November 2009, pp. 7–9, viewed 29 April 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=le_ctte/completed_inquiries/2010-13/aviation_maritime/submissions.htm

[23].              Explanatory Memorandum, p. 3.

[24].              The Statement of Compatibility with Human Rights can be found at page five of the Explanatory Memorandum to the Bill.

[25].              Explanatory Memorandum, p. 14.

[26].              Explanatory Memorandum, p. 21.

[27].              Ibid.

[28].              Section 4 of the Customs Act provides that ‘authorised officer, in relation to a section of this Act, means an officer of Customs authorised in writing by the CEO to exercise the powers or perform the functions of an authorised officer under that section’.

[29].              The Legislative Instruments Act 2003 is available at: http://www.comlaw.gov.au/Details/C2013C00162

[30].              Explanatory Memorandum, p. 23.

[31].              Section 4D of the Crimes Act 1914 provides that a penalty specified for a Commonwealth offence is to be taken as the maximum penalty unless the contrary intention appears. The Crimes Act is available at: http://www.comlaw.gov.au/Details/C2013C00031

[32].              The effect of strict liability is set out in section 6.1 of the Criminal Code Act 1995, which is available at: http://www.comlaw.gov.au/Details/C2013C00120

[33].              See for example sections 77R (Breach of conditions of depot licence) and 82C (Breach of conditions of a warehouse licence). The penalty for each of these offences will be increased from 50 to 60 penalty units by Part 5 of Schedule 1.

[34].              Proposed section 102D of the Customs Act.

[35].              Explanatory Memorandum, p. 21.

[36].              See for example section 77Q and paragraph 273GA(1)(aat) in relation to depot licences.

[37].              Explanatory Memorandum, p. 25.

[38].              This is explicitly the case in relation to depot licence holders, where under section 77N of the Customs Act it is a condition of the licence that the licence holder must, when requested to do so, allow an authorised officer to enter and remain in the depot to examine certain goods.

[39].              Explanatory Memorandum, p. 26.

[40].              See subsection 77VA(1). The depot offence is also not subject to strict liability.

[41].              Standard fault elements apply to the physical elements of the offences in accordance with section 5.6 of the Criminal Code Act 1995.

[42].              See the definition of special liability provision in the dictionary of the Criminal Code Act 1995 and AGD and Australian Institute of Judicial Administration, The Commonwealth Criminal Code: a guide for practitioners, AGD, March 2002, pp. 245–247, viewed 7 May 2013, http://www.ag.gov.au/Publications/Documents/GuideforPractitioners.pdf

[43].              Standard fault elements apply to the physical elements of the offences in accordance with section 5.6 of the Criminal Code Act 1995.

[44].              Explanatory Memorandum, p. 30.

[45].              See page 31.

[46].              See page 31. The Explanatory Memorandum notes the application of section 243SC to section 243SA only; however it also applies to section 243SB.

[47].              The Explanatory Memorandum states that Schedule 2 and regulations made under the AusCheck Act would provide for this, but does not identify a particular provision: Explanatory Memorandum, p. 36.

[48].              See regulation 6.41 of the Aviation Regulations and regulation 6.08LB of the Maritime Regulations.

[49].              Explanatory Memorandum, pp. 39– 40.

[50].              This lack of clarity may in part be due to the AusCheck Act enabling the AusCheck scheme, through regulations, to make provision for particular matters, rather than providing directly for those matters. However, given the detail included in the proposed new provisions in the Bill, it would be desirable that this matter be resolved in the Act.

[51].              D Summers (Maritime Union of Australia), PJC-LE, Adequacy of aviation and maritime security measures to combat serious and organised crime, 18 February 2011, p. J-LE-2, viewed 23 April 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22committees%2Fcommjnt%2F13415%2F0001%22

[52].              Explanatory Memorandum, p. 10.

[53].              Ibid.

[54].              Ibid.

[55].              The Australian Federal Police Regulations 1979 are available at: http://www.comlaw.gov.au/Details/F2012C00211

[56].              The Public Service Regulations 1999 are available at: http://www.comlaw.gov.au/Details/F2011C00638

[57].              Explanatory Memorandum, p. 36.

[58].              Explanatory Memorandum, p. 11.

[59].              The AusCheck Regulations 2007 are available at: http://www.comlaw.gov.au/Details/F2012C00618

[60].              Explanatory Memorandum, p. 41.

[61].              Explanatory Memorandum, p. 28.

[62].              Australian National Audit Office (ANAO), Risk management in the processing of sea and air cargo imports, ANAO audit report no. 15, 2011–12, Commonwealth of Australia, 30 November 2011, pp. 98–105, viewed 11 April 2013, http://www.anao.gov.au/Publications/Audit-Reports/2011-2012/Risk-Management-in-the-Processing-of-Sea-and-Air-Cargo-Imports

[63].              Proposed subsection 243X(3) provides for instances where a penalty may be determined on the basis of an amount of duty or the value of goods, where it is possible to determine that value.

[64].              A separate penalty for a body corporate is not currently specified. However, it would be five times that which may be imposed on an individual in accordance with subsection 4B(3) of the Crimes Act.

[65].              Attorney-General’s Department (AGD), A guide to framing Commonwealth offences, infringement notices and enforcement powers, AGD, September 2011, p. 59, viewed 4 April 2013, http://www.ag.gov.au/Publications/Documents/GuidetoFramingCommonwealthOffencesInfringementNoticesandEnforcementPowers/A%20Guide%20to%20Framing%20Cth%20Offences.pdf

[66].              Explanatory Memorandum, pp. 28–29.

[67].              Explanatory Memorandum, p. 34.

[68].              Explanatory Memorandum, p. 46.

[69].              AGD, Guide to framing Commonwealth offences, op. cit., pp. 44–45.

[70].              Explanatory Memorandum, p. 48.