Chapter 3 - Key issues
3.1
The submissions and evidence received by the committee addressed a
number of issues surrounding the Bill. Most submissions characterised the
proposed search and seizure powers in Schedule 1 as rationalising and clarifying
existing powers, and endorsed the amendments as necessary and appropriate. A number
of submissions, however, identified problems with the justifications for, and
scope of, the powers.
3.2
In keeping with the accepted approach to the grant of invasive powers to
Commonwealth officers, the committee was concerned that the hearing provide the
opportunity for a sound examination of the proposed powers against the
established principles of consultation, justification, proportionality, and
oversight and review.
3.3
A major issue surrounding the proposed changes to broker licensing arrangements
in Schedule 2 was lack of consultation. The hearing also allowed for
clarification of the intended operation of the relevant provisions in
apportioning liability for mistakes or contraventions of the Customs Act.
Consultation
3.4
The committee supports the practice of extensive consultation between
the agency sponsoring amending legislation and the parties administering or
affected by its parent Act. In relation to the expanded search and seizure powers
in Schedule 1, the Australian Customs Service (Customs) informed the committee
that:
There was considerable consultation with Defence during the
development of the legislation as the Navy exercise these powers when boarding
vessels under the Customs Act. The Attorney-General's Department Office of
International Law and Criminal Justice Divisions were also consulted
extensively during the development of the legislation.[1]
3.5
Customs' submission explained that meetings of the Maritime Legislation
Working Group for the Joint Agencies Maritime Advisory Group provided the
opportunity for a range of agencies to contribute to the development of the Bill.[2]
Mr Peter Whowell from the Australian Federal Police (AFP), confirmed to the
committee that the AFP 'were consulted in the development of this power.'[3]
3.6
Similarly, in relation to the recovery of duty provisions in Schedule 3,
Customs consulted with both government and industry stakeholders. The Law
Council of Australia (LCA) acknowledged that its comments had been taken into
account in the final form of the Bill.[4]
3.7
On the issue of consultation over the changes proposed in Schedule 2,
the submission from the Customs Brokers & Forwarders Council of Australia
(CBFCA) stated that:
As regards the issue of employment arrangements for licensed
individual customs brokers, the CBFCA was not consulted in the development of
Customs policy in relation to these arrangements.[5]
3.8
The CBFCA submission explained that, in August 2006, the CBFCA wrote to
Customs to express its interest in contributing to the development of the
provisions. Customs' response was that it would 'be happy to discuss' the
matter with the CBFCA.[6]
Despite this correspondence, 'the first the CBFCA was aware of any further
activity in relation to the proposed amendments was the tabling of the Bill'.[7]
3.9
A representative of Customs told the committee that the failure to
consult with the CBFCA was due to the substance of the changes, which were
considered uncontroversial because they sought only to 'take account of the
business and employment practices that are already in place in the broker
industry'.[8]
3.10
For example, the proposed changes would remove the need, as a freelance
broker moved between corporate brokerages, to manually change their
identification with a particular corporate brokerage. As the representative
from Customs explained:
[Currently, there] is a manual changeover each time they move
around. This has been an inconvenience for both Customs and the brokers
concerned. These amendments will reduce that inconvenience by allowing locum or
freelance brokers to be identified with several licensed corporate brokerages
at the same time on our records.[9]
3.11
Nevertheless, the Customs representative assured the committee that
Customs was committed to a process of inclusive consultation when developing
legislation:
...the CEO of Customs has given an undertaking to industry
stakeholders that, as a general rule, in the future Customs will seek approval
to issue to affected parties exposure drafts of proposed legislation.[10]
Schedule 1: Search and seizure powers
Justification
Safety of
Customs officers
3.12
The major justification advanced for the proposed changes to search and
seizure powers was that they are required to ensure the safety of Customs
officers and preserve evidence.
3.13
Customs explained that, under the current section 185AA of the Customs
Act, officers may not conduct personal searches until a ship or aircraft has
been detained. The amendments would allow Customs officers, immediately upon
boarding a ship under section 185 of the Customs Act, to conduct personal
searches for, examine, take possession of and retain items that:
- may be a weapon;
- may be used to help a person escape detention; or
- may be evidence of an offence against the specified Acts.[11]
3.14
A number of examples of such situations on ships were provided to the committee.
Customs' submission explained that:
Recent escalations in the level of resistance encountered when
boarding ships suspected of contraventions of the Customs Act or other
prescribed Act, have threatened officer safety and created a situation where
evidence of possible offences may be destroyed.[12]
3.15
An example cited in both the Customs submission and at the hearing
involved an incident in which a crew member of a ship that was boarded, but not
detained, produced a weapon and threatened Customs officers.[13]
In another example, a crucial piece of evidentiary material, a Global
Positioning System device, was located on a crew member only after the ship was
detained. This incident highlighted the opportunity for disposal of evidence
from the time the ship was boarded until the decision was made to detain it.[14]
3.16
No examples of such situations on aircraft were provided to the committee.
In evidence, a representative for Customs told the committee that, despite
there having been no 'specific problems' with aircraft, it 'was sensible to
expand the same provisions to aircraft.'[15]
The Customs submission stated that consistency between the maritime and
aviation environments reflects the 'importance of aviation security in
combating crime and terrorism'.[16]
3.17
Submissions were largely supportive of the intent of the Bill to protect
Customs officers. However, the Queensland Council for Civil Liberties (QCCL),
although 'concerned about the safety of Customs officers', felt that the
justification put forward for the expanded powers was not sufficient.[17]
The QCCL felt that the 'short remarks' in the EM did not amount to a detailed
justification, as is required when an agency or department seeks a grant of
powers that 'constitute a significant violation of an individual's personal
liberty'.[18]
3.18
The QCCL further submitted that the stated justification of the safety
of Customs officers did not encompass the inclusion in the Bill of the powers
enabling Customs officers to search for and seize evidence:
If the legitimate purpose of this legislation is to provide
protection for Customs officers, then it is the Council's submission that
Section 185AA(7) ought to be removed. The existence of this provision expressly
permitting the use of any evidence found in the course of the search raises
questions about the real purpose for giving the powers.[19]
3.19
Similarly, the ACT Director of Public Prosecutions (ACT DPP) argued
that the 'placing of [such] greatly enhanced powers in the hands of Customs
officers...does not easily seem justifiable'.[20]
3.20
The submission of the ACT DPP also expressed concern at the
unconstrained operation of subsection 185AA(7), allowing seized evidence to be
used in prosecuting offences. In failing to accommodate claims of legal
professional privilege, the power went beyond its stated justification and unnecessarily
threatened this important legal right and protection:
Proposed section 185AA(3) does not appear to permit legitimate
claims of legal professional privilege...even though they may apply to documents.[21]
3.21
The ACT DPP noted that it would be fairly simple to accommodate claims
of legal professional privilege:
It would not be difficult for documents in respect of which such
claims are made to be placed in a secure container...only to be opened by consent
or by order of a competent court. This would respect an important right over
which the proposed amendments clearly leave only arguably able to be protected
and, indeed, possibly abrogated.[22]
3.22
In responding to these issues, Customs stated that, in practice, use of
the powers would be restricted to a particular range of environments and
circumstances. It would be usual for the search and seizure powers to be
exercised where there was an element of belief or suspicion that an offence had
occurred:
The amendments in this Bill are to powers available to officers
in the unique circumstances that occur in the offshore environment after making
a request to board a ship under section 184A or to land for boarding an
aircraft under section 184D of the Customs Act. This usually occurs where the
commander of a Commonwealth ship or aircraft has formed a view that there is a
suspected contravention of an offence under the Customs Act, Division 307 of
the Criminal Code or another Act.[23]
3.23
Customs' supplementary submission provided a more complete explanation
of the need for the evidence-related powers:
It is generally not possible to determine whether a specific
individual on that ship or aircraft has a weapon concealed on their person or
has evidence of the suspected offence that caused the ship or aircraft to be
boarded, without conducting the search...[S]afety of officers is under threat
from any point upon a ship or aircraft being boarded until any crew that may
have been involved in the suspected offence, have been searched and the
possibility of concealed weapons has been eliminated.[24]
3.24
In response to the ACT DPP's submission concerning the abrogation of
legal professional privilege, Customs undertook to consider the procedure
suggested in respect of documents the subject of such a claim:
Customs notes the concerns expressed in paragraph 3 regarding
the rights of persons to claim legal professional privilege, or other privileges,
in respect of documents. Procedures such as those suggested will be considered
for inclusion in operating procedures.[25]
Consistency with other grants of
search and seizure powers
3.25
Customs' submission also justified the grant of the augmented search and
seizure powers by reference to similar grants to Commonwealth officers under
other Acts:
These new powers mirror those that are available under the Fisheries
Management Act 1991...[26]
3.26
Although acknowledging that the proposed powers did not 'go as far' as,
for example, allowing Customs officers to perform strip searches, the QCCL expressed
a strong in-principle objection to using as the substantive justification for
the grant of such powers the fact that they have been granted before:
...the fact that similar powers have been granted before is in our
view no justification whatsoever for the granting of the powers. We question
whether they were legitimately granted in other instances. This seems to be an
example of the common bureaucratic strategy of justifying further erosion of
civil liberties by reference to previous equally unjustifiable erosion of civil
liberties.[27]
Proportionality
3.27
The committee investigated at some length the potential circumstances in
which the powers could be used on both ships and aircraft.
3.28
At the hearing, a representative for Customs explained that in practical
terms the use of the powers would be limited by the circumstances in which they
would be applied, because the powers were intended to assist Customs' actions
outside the major or designated Australian ports and airports. Thus the 'focus'
of the amendments was 'on the remote areas'.[28]
The powers would be used when boarding ships or aircraft in cases of, for
example, suspected people-smuggling or illegal fishing, or for the purposes of
properly identifying a ship or aircraft. The representative characterised the
essential change to the powers in the following way:
The main difference that we are seeking is the circumstances in
which we can apply the power rather than the power itself.[29]
3.29
However, as a matter of construction, the proposed provisions do not
strictly limit the use of the powers to remote areas or a particular type of
ship or aircraft. In respect of both ships and aircraft, the powers could
conceivably be used on passenger ships and aircraft. On the question of whether
or not this was appropriate, the Customs representative explained that it would
only be in an 'unusual situation' that this would occur, and that it was
appropriate that the powers be available if certain circumstances arose:
In all probability we would [use the ordinary search powers in
designated areas]. But if it were so serious that we had to make a request to
board, the same issues arise that arise with any other vessel, regardless of
whether it is an Indonesian fishing vessel with four people on board or a large
vessel with a lot of people on board.[30]
3.30
Furthermore, Customs advised that the expanded search and seizure powers
in proposed section 185AA would not apply in section 234AA places such as
designated airports.[31]
3.31
Submissions from the QCCL and the ACT DPP argued that the scope of application
of the proposed powers was too wide, because the circumstances in which they
could be invoked did 'not require that there be any suspicion or belief that
any offence is or may have been committed.'[32]
The QCCL submission argued that:
In effect, the legislation provides that simply being on board
the ship or aircraft will be justification for a personal search.[33]
3.32
In answer to these concerns, the Customs submission acknowledged that
the proposed powers were broader than similar powers exercised under other
Commonwealth legislation, but argued that the scope of the proposed powers was
designed to reflect the unique operating environment of Customs officers:
It is recognised that the proposed personal search powers are
wider in scope than other personal search powers under Commonwealth
legislation. This is due to the remote locations in which offshore patrols are
conducted and the unique circumstances facing officers when conducting personal
searches in confined spaces.[34]
3.33
Using aircraft as an example, Customs argued that the powers were
appropriately pitched to their envisaged use at remote places to deal with
potentially dangerous scenarios:
It is likely that the new powers will be exercised at a number
of regional and remote airports where the level of security and screening may
not be as extensive as that at the 11 designated airports. Indeed, it is likely
that aircraft landing at these regional and remote airports will have arrived
from a similarly small airport, where passengers may not have been subject to
security screening. As such, it is important to ensure that officers are
empowered to undertake searches to ensure their personal safety, and to take
possession of any weapons or evidence discovered during that search.[35]
3.34
Customs provided further detail regarding the circumstances envisaged
for the use of the powers:
In order for officers to board the ship or aircraft, there
firstly needs to be a request to board made under sections 184A (vessels) or
184D (aircraft) of the Customs Act 1901 (Customs Act). In most
circumstances, the request to board is contingent on the commander of a
Commonwealth ship or aircraft forming a reasonable suspicion that the ship or
aircraft has been involved in a contravention of the Customs Act, Division 307
of the Criminal Code 1995 (Criminal Code) or another prescribed Act. The
current personal search power is then enlivened when the ship or aircraft has
been detained. The amendments will allow Customs officers, immediately upon
boarding a ship or aircraft under section 185 of the Customs Act, to conduct the
personal search.[36]
3.35
Customs further stated that the powers would generally not be applied to
situations where there was no element of suspicion or reasonable belief that a
contravention of a relevant Act had occurred:
...Customs would not generally exercise the power to board a ship
or aircraft without any suspicion of a contravention occurring or having
occurred.[37]
Oversight and review
3.36
The committee investigated the issue of oversight and review of the exercise
and ongoing necessity of the proposed search and seizure powers. Customs
outlined a system of oversight beginning with the commander of a Commonwealth
vessel, who determines the appropriate exercise of any powers used to conduct a
boarding.[38]
Activities undertaken and information obtained by a boarding party were subject
to review 'to ensure correct and lawful procedure'.[39]
This was achieved by requiring the commander of a Customs vessel to make a
comprehensive report after every boarding.[40]
3.37
In terms of reviewing the ongoing necessity of the powers, the same
system allowed commanders' reports to be:
...reviewed and used to determine the adequacy of the legislation
for dealing with new and emerging circumstances encountered in the offshore
environment.[41]
3.38
The AFP informed the committee that the Bill did not prescribe any specific
mechanisms for oversight and review of the powers. However, in general terms,
allegations of corruption or instances of misuse of the proposed powers by
Customs officers would be open to investigation under the Crimes Act 1914,
the Public Service Act 1999 and the Ombudsman Act 1976.[42]
Schedule 2: Licensing of customs brokers
3.39
Customs' submission outlined the purpose of the proposed changes to
licensing arrangements for customs brokers:
Schedule 2 of the Bill proposes amendments to the Customs Act to
update the brokers licensing provisions to recognise the changing
nature of employment in the broker community. Currently the legislation only
allows individual customs brokers to be employed full-time by one corporate
customs brokers (being companies or partnerships) at any time. The amendments
will accommodate locum or freelance customs brokers who can then be employed by
a number of different corporate customs brokers at any one time.[43]
3.40
The CBFCA submission acknowledged that 'from a regulatory point of
view...the implications of the amendments would be perceived as being
negligible'.[44]
However the CBFCA expressed concern that, in assessing compliance, licensing
arrangements needed to be sophisticated enough to accurately determine the
respective liabilities of individual brokers and corporate customs brokerages.[45]
3.41
In response, Customs provided the following description of the way in
which Customs will identify the employer of a part-time customs broker:
The nominee licence number is stated on an import declaration.
The digital certificate attached to the message that is sent to Customs when
that import declaration is made will identify the licensed corporate customs
brokerage. Customs will be able to identify both the locum or freelance customs
broker and the licensed corporate customs brokerage the broker may be working
for at the time an import declaration is made. All the circumstances of the
preparation and communication of a declaration will be taken into account by
Customs on a case-by-case basis in identifying the person who may be considered
liable for an offence under the Customs Act.[46]
Schedule 3: Recovery of duty
3.42
Customs' submission outlined the effect of the proposed changes to the
recovery of duty system:
Schedule 3 of the Bill proposes amendments to the Customs Act in
response to the High Court of Australia's decision in Malika Holdings Pty Ltd v
Stretton (2001) 204 CLR 290 (Malika)...The amendments...place a 4-year statutory
time limit on all duty recovery, other than in cases of fraud or evasion.[47]
3.43
Customs' submission noted that the proposed amendments have 'resulted in
much debate about the operation of the current duty recovery provisions'.[48]
Period for the recovery of duty
3.44
The CBFCA, in particular, was concerned that the proposed changes extended
the period available for recovery of duty by Customs in certain cases, and that
this would have negative consequences for customs brokers and other advisers who
'contributed to a situation in which customs duty may have been underpaid'.[49]
3.45
Customs, however, advised that the effect of the amendments was more narrow.
Changes to Customs' approach to recovery of duty had occurred following the Malika[50]
case and the passage of the Customs Legislation Amendment and Repeal
(International Trade Modernisation) Act 2001 in 2005. The effect of these
was that, currently:
Customs applies a 4-year time limit to all duty recovery other
than in cases of fraud...[51]
3.46
To this end, representatives of Customs informed the committee that the
major policy intent and effect of the proposed changes in fact was to 'formalise...[Customs']
current policy and procedure.'[52]
Customs submitted that, as such, the changes would 'provide certainty with
respect to the time available to recover duty'.[53]
Therefore, the new arrangements would work to the advantage of customs brokers.[54]
Definition of
'owner'
3.47
The CBFCA expressed concern over how the new duty recovery provisions
would operate in light of the definition of 'owner' in section 4 of the Customs
Act. The CBFCA submission explained that:
...the definition of owner within Section 4 of the Act is
wider than the commercial understanding of owner and the precedent(s) of
Customs seeking recovery of a debt from other than the owner (as referenced in
the import declaration) remains at issue for the CBFCA and its members.[55]
3.48
The LCA shared these concerns over the potential breadth of application
of the term 'owner' in duty recovery processes. It explained that the broad
definition of 'owner' created 'confusion as to which party is responsible for
various obligations under the Customs Act.[56]
The term, as defined:
...does not specify who is responsible for the payment of customs
duty and leaves a range of people who could be liable.[57]
3.49
On the basis of the concerns outlined, the LCA felt that the term
'owner' should be defined more precisely.[58]
3.50
Customs explained that the operation of the provision 'needs to be broad
enough to recognise all the parties that might be liable to pay duty under the
different types of commercial arrangements...and that fraud or evasion might be committed
by any one or more of those parties.'[59]
Nevertheless, Customs acknowledged the concerns of the LCA and the CBFCA, and
the desirability of a review of the term:
Customs acknowledges that the definition of "owner" in
the Customs Act could benefit from review and it is intended that this will be
included on the legislation program for future consideration.[60]
Committee view
Consultation
3.51
The committee acknowledges Customs' efforts to involve a broad range of
agencies in consultations over the proposed search and seizure powers. A number
of witnesses indicated that they were consulted on the amendments.
3.52
In its 2006 report into entry, search and seizure provisions, the Senate
Standing Committee for the Scrutiny of Bills recommended that the 'high-water
mark' for search powers generally should be those powers available to the AFP
under the Crimes Act 1914.[61]
Consequently, the committee notes with approval that Customs engaged in close
consultation with the AFP over the augmented search and seizure powers. The committee
considers that close consultation with the AFP, as the benchmark agency, is a
critical element in the process of justifying a grant of search and seizure
type powers to Commonwealth officers of other agencies.
3.53
Similarly, the committee received evidence that the changes to recovery
of duty processes proposed in Schedule 3 were the subject of proper consultations
with bodies representing the spectrum of affected interests.
3.54
The consultation in relation to the Schedule 2 amendments updating
licensing arrangements for brokers was less thorough, leading to unnecessary
confusion over their effects.
3.55
The committee notes the importance of consultation between the agency
sponsoring a Bill and the parties to be affected by it. The committee feels that,
even in cases where a Bill seems unremarkable to the sponsoring agency or
purports to merely formalise established practices, affected agencies and
parties must as a matter of routine be kept informed and be provided with the
opportunity to comment on proposed legislation. Legislation which has limited
impact in a regulatory sense may have significant impact on the business
processes of industry stakeholders. The committee is pleased to note Customs'
assurance that in future Customs will seek approval to issue exposure drafts of
proposed legislation to affected parties.
Schedule 1: Search and seizure
powers
Justification
3.56
The committee accepts the validity of the main justification put forward
for the augmented search and seizure powers: that they are required to provide
for the safety of Customs officers conducting boarding operations of ships or
aircraft in remote areas. The submissions and evidence provided to the inquiry
were supportive of this aim.
3.57
However, the committee is concerned by the somewhat cursory analysis of
this justification in the EM. The committee shares the view of the Senate
Standing Committee for the Scrutiny of Bills that, where invasive powers are
proposed:
...analysis and justification for the proposed powers should be
set out in appropriate detail in the explanatory memorandum to the bill, to
assist the Parliament in its consideration of the legislative proposal.[62]
3.58
In this respect, whilst the committee was ultimately able to gather
enough detailed evidence to enable it to assess the need for the proposed
powers, the committee was required to seek a substantial amount of information
via questions on notice.
3.59
The committee notes the reasonable criticism that not all of the
suggested provisions under Schedule 1 were encompassed by the justification of
officer safety. In particular, the powers to seize and use evidence in
prosecuting offences, without an initial suspicion or reasonable belief that an
offence has been committed, were criticised as not pertaining to, or as going
beyond, the strict needs of officer safety.
3.60
However, the committee accepts Customs' evidence that the
evidence-related powers are necessary as an adjunct to the proposed search and
seizure powers, and that the retaining of evidence for use in prosecuting
relevant offences was not likely to occur where no suspicion of the commission
of an offence was present prior to a search being conducted.
3.61
The committee believes that the suite of proposed powers will complement
Customs' existing powers to protect Customs officers, enhance the security of Australia's
borders, and allow the efficient prosecution of offences committed in the
border environment.
3.62
The committee accepts as valid the concerns expressed about the lack of
protection in the evidence provisions for privileged material such as material
protected by legal professional privilege.
3.63
Although the committee notes Customs' undertaking to consider the ACT
DPP's suggested procedure for dealing with documents the subject of a claim for
legal professional privilege, it feels that such an important right should not
be protected solely through procedural means.
3.64
Consequently, the committee feels that the Bill should be amended to
include specific provisions dealing with the protection of legal professional
privilege and any other privileges identified as requiring protection under the
proposed regime of search and seizure powers.[63]
3.65
The committee notes the in-principle opposition of the QCCL to the
justification of grants of invasive powers by reference to earlier grants of
similar powers. These concerns strongly resonate with the views expressed by
the Senate Standing Committee for the Scrutiny of Bills in its 2006 report, Entry,
Search and Seizure Provisions in Commonwealth Legislation, in which it
observed:
There can be a temptation for the Government and its agencies,
in proposing new laws, to reach for an ambit position which may not be
justified, simply by appealing to the existence of a similar, but perhaps
rarely used power, elsewhere.[64]
3.66
The Senate Standing Committee for the Scrutiny of Bills recommended
that:
...all new legislative proposals should be judged on their own
merits, based on a careful assessment of the needs of the agency in the
particular circumstances, balanced against the impact of the proposed powers on
individual rights.[65]
3.67
Whilst the committee agrees that reference to other grants of similar
powers alone cannot be a sufficient justification for the granting of search
and seizure type powers, it observes that such information can inform an
assessment of their appropriateness.
Proportionality
3.68
The committee supports a general approach to powers of this nature that
seeks to limit their operation to the uses for which they are required. The
committee endorses the view expressed by the Scrutiny of Bills Committee in
respect of similar powers that 'no greater power should be conferred than is
necessary to achieve the result required'.[66]
3.69
The committee's investigation revealed that the construction of the search
and seizure provisions does not strictly limit the use of the powers to the
circumstances for which it was claimed they were required. However, the
committee heard evidence that, as a practical and operational matter, their use
would be limited to remote environments and non-designated areas. The committee
accepts Customs' assertion that the potential for broader application is
desirable because it provides consistency across the air and sea enforcement
environments, and enables flexible responses by Customs where extraordinary
circumstances arise.
3.70
Nevertheless, the committee has some misgivings about the potential use
of the powers in circumstances beyond those envisaged. In this, the committee
emphasises the principle that powers should be limited to their intended use.
In particular, the committee is concerned about the potential application of
these powers in relation to aircraft providing regular public transport and
cruise ships. Consequently, the committee believes that the proposed search
and seizure powers should be clarified through Customs publishing procedures in
relation to the use of the powers.
Oversight and review
3.71
The committee observes that the main system of oversight and review of
the powers will be centred on the commander of the Customs vessel involved in a
boarding action undertaken under the provisions in question. The commander
would be responsible for any decision to exercise the powers and would be
required to make a comprehensive report whenever they were used. These reports
would be subject to review.
3.72
The committee also observes that, although any exercise of the powers
would be susceptible to review by the Commonwealth Ombudsman, there is no requirement
for the Ombudsman to undertake such a review. The committee recommends that the
Bill be amended to require, within three years of the proclamation of the Bill,
a review by the Commonwealth Ombudsman of the use of the augmented search and
seizure powers.
Schedule 2: Licensing of customs brokers
3.73
The committee accepts that Customs has sufficient and appropriate
processes and technological means in place to effectively determine liability
for the mistakes or errors of part-time or locum customs brokers. The committee
is assured that Customs will be able to accurately identify the employer of a
customs broker at any given time, as well as the relevant circumstances
surrounding individual cases in which a question of liability for a mistake or
error arises.
Recommendation 1
3.74
The committee recommends that Schedule 1 of the Bill be amended to
include provisions dealing with the maintenance of legal professional privilege
and other privileges identified as requiring protection when these augmented
search and seizure powers are exercised.
Recommendation 2
3.75
The committee recommends that the Australian Customs Service publish
procedures in relation to the exercise of the search and seizure powers in
proposed section 185A.
Recommendation 3
3.76
The committee recommends that Schedule 1 of the Bill be amended to require,
within three years of its proclamation, a review by the Commonwealth Ombudsman
of the use of the augmented search and seizure powers by the Australian Customs
Service and other agencies.
Recommendation 4
3.77
Subject to the preceding recommendations, the committee recommends that the
Senate pass the Bill.
Senator Marise
Payne
Chair
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