2002

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

BORDER SECURITY LEGISLATION AMENDMENT BILL 2002

EXPLANATORY MEMORANDUM

(Circulated by authority of the Minister for Justice and Customs,
Senator the Honourable Christopher Martin Ellison)

BORDER SECURITY LEGISLATION AMENDMENT BILL 2002

OUTLINE

The purpose of this Bill is to amend the Customs Act 1901 (the Customs Act) and the Customs Administration Act 1985 (the Customs Administration Act), the Fisheries Management Act 1991 (the Fisheries Management Act), the Migration Act 1958 (the Migration Act) and the Evidence Act 1995 (the Evidence Act) to:

•	increase Customs powers at airports by allowing Customs officers to patrol airports, increasing the restricted areas in which unauthorised entry is prohibited and by allowing officers to remove people from those restricted areas (Schedules 1 and 3);
•	require employers of people who work in restricted areas of the airport to provide information about those people to Customs (Schedule 2); 
•	require the issuers of security identification cards (which are issued to most people who work at airports) to provide information about the people to whom they have issued security identification cards (Schedule 2);
•	require goods that are in transit through Australia to be reported to Customs (Schedule 4);
•	allow in transit goods to be examined and certain in transit goods to be seized (Schedule 4);
•	require mail to be electronically reported to Customs as part of a cargo report (Schedule 5);
•	require certain airlines and shipping operators to report passengers and crew to Customs and the Department of Immigration and Multicultural and Indigenous Affairs electronically (Schedule 6);
•	require certain airlines to provide Customs with access to their computer reservation systems (Schedule 7);
•	allow the Australian Fisheries Management Authority to disclose vessel monitoring system data to Customs under the Fisheries Management Act (Schedule 8);
•	allow the Chief Executive Officer of Customs to authorise a person to perform the functions of a Customs officer by reference to their position or office even if that position or office does not exist at the time of making the authorisation (Schedule 9);
•	tighten provisions allowing the Chief Executive Officer of Customs to authorise the carriage of approved firearms and personal defence equipment by Customs officers for the safe exercise of powers conferred under the Customs Act and other Acts (Schedule 10); 
•	restore the power to arrest persons who assault, resist, molest, obstruct or intimidate a Customs officer in the course of his or her duties, which was inadvertently removed by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Schedule 11); 
•	include the Australian Bureau of Criminal Intelligence as a Commonwealth agency for the purposes of section 16 of the Customs Administration Act (Schedule 12); and
•	provide that certain undeclared dutiable goods found in the unaccompanied personal and household effects of a person are forfeited goods (Schedule 13).

FINANCIAL IMPACT STATEMENT

It is estimated that the costs to Customs for the upgrade of systems to accept and process in-transit goods reports will be no more than $0.1m for both current and future automation systems.  Some reporters may be required to amend processes and practices in order to report in-transit goods.  It is anticipated that the costs of this additional reporting will be marginal.

The changes to passengers and crew reporting are not expected to have a significant impact on Commonwealth expenditure or revenue.

There is a cost for the ongoing service fees associated with access to airline passenger information computer systems, namely; purchase of system infrastructure and connection devices, and Customs staff and associated supplier expenses required to develop and operate the systems and analyse passenger data.  The issue of supplementation is under consideration.  

The other amendments in this Bill have no financial impact.
REGULATION IMPACT STATEMENT

PROPOSAL TO AMEND THE CUSTOMS ACT 1901 TO ACCESS INFORMATION ON ARRIVING AND DEPARTING PASSENGERS

1.	Issue 

1.1	The limitations of the passenger report

Subsection 64AC(2A) of the Customs Act 1901 (“the Act”) requires that the pilot or owner of an aircraft that is on a voyage to Australia provide Customs with the number of passengers and the full name and date of birth of each crew member who were or will be on board the aircraft at the time of the aircraft’s arrival at the airport.  The information must be provided at the time of arrival of the aircraft if provided electronically, or if the information is to be provided by document, not later than 3 hours after the arrival of the aircraft.

This basic information enables Customs to plan and allocate sufficient resources to clear the passengers on arrival.  However such information is insufficient for Customs to be able to determine whether to examine the passenger or the passenger’s baggage in order to establish whether the passenger represents a risk to the border. 

1.2	Acquiring additional passenger information from the airline

Under section 64AE of the Act a Customs officer has the power to request the airline to produce additional information about the passenger.  The Customs officer will request such information from the airline to establish the veracity of the declaration and to assist the Customs officer to make a decision as to whether the passenger or the passenger’s baggage should be examined.  

The information that the airline primarily provides is referred to as the Passenger Name Record (PNR).  The PNR is derived from the airline’s Computerised Reservation System (CRS). This system records the passenger’s booking and flight arrangements with an airline.  All International air carriers operating scheduled passenger flights into and out of Australia use a Computerised Reservation System. 

1.2.1	The significance of PNR information

The PNR is significant to a Customs officer because it contains information that assists the officer in making a correct risk assessment of the passenger.  This information includes:

-	Booking and itinerary details,
-	Seating and baggage details;
-	Form of ticket payment. 

Such information can, together with the information on the passenger’s declaration form, assist to either allay or confirm the suspicion of a Customs officer as to whether a passenger represents a risk to border integrity.

PNR information is also valuable in identifying passengers who may present a security, quarantine, health or immigration risk.  The PNR information would show for example, that a passenger had spent time in a country that has a foot and mouth outbreak.  The PNR may also show credit card details which may reveal links between the passenger and, for example, a known terrorist.  Evaluation of both the PNR and the passenger’s answers to questions would then enable a decision to be made regarding further examination.

1.2.2	When does Customs request PNR information?

Customs requests that airlines produce PNR information prior to the arrival of the aircraft.  Pre-arrival screening enables Customs to target high risk travellers and expedite the clearance of the remaining passengers.  

1.2.3	The effect of late receipt of PNR information

The late receipt of PNR information means that preliminary screening of passengers against profiles cannot be undertaken before their arrival.  The result may be  a delay in the Customs clearance process  as the risk evaluation procedure then commences when the passenger presents to a Customs officer for clearance.  

If PNR information is not available and evaluated before the arrival of the passenger, a Customs Officer may form a suspicion based on incomplete information, that the passenger may be carrying prohibited goods and consequently direct unnecessarily, a personal or baggage search.  

1.2.4	The move to electronic ticketing 

Developments in recent years have seen the major airlines move towards the use of electronic global on-line ticketing systems and the phasing out of “printed” tickets.  Information on printed tickets is derived from the PNR for each passenger and stored within the airline’s CRS. 

These CRSs have the capacity to create a PNR up to 12 months in advance of the date of travel.  PNR information is usually removed from the system within 48 hours of the completion of the travel.  Under the proposed amendments Customs would have access to a PNR as soon as it is created, however, Customs interest is focused on those individuals who actually undertake the travel.  In practice, this means looking at flights once they have closed off and are en-route to Australia.

Having PNR information on-line and available for a Customs officer to risk assess prior to arrival, can reduce the time to clear a passenger arriving in Australia.  It enables a Customs officer to electronically screen the passenger information against electronic Customs profiles prior to arrival of the aircraft.  This process eliminates the onerous task placed upon an airline of providing PNR information on passengers on arrival at the border. It alerts Customs to possible high risk passengers enabling Customs officers to prepare for their arrival.  Further, it provides for  a consistency in high risk passenger identification allowing much reduced intervention in the movement of legitimate low risk passengers.

1.2.5	Industry agreement to provide PNR information

The international airline industry is generally prepared to provide PNR information to border authorities  on the basis that there is an advantage to their operations or customers or where their passengers can obtain some advantage (usually related to service standard).  In recognition of the benefits to the airlines and in the context of supporting Customs community protection objectives, a number of airlines have already agreed to provide PNR information on a voluntary basis.  These include both Australian and overseas airlines.

1.3	Compliance with privacy legislation 

1.3.1	Domestic privacy issues

While airlines provide Customs with access to PNR information, consideration needs to be given to compliance with the Privacy Act 1988.  The Privacy Amendment (Private Sector) Bill 2000 inserted section 273GAB in the Act.  This provision enables an airline in Australia to provide PNR information to Customs.

Customs is obliged to handle personal information in accordance with The Privacy Act 1988.  Section 16 of the Customs Administration Act 1985 also limits the recording and disclosure of information disclosed to an officer.

1.3.2	International privacy issues

However in some overseas States privacy legislation is making some airlines apprehensive about providing border authorities with PNR information.  This applies particularly to airlines carrying passengers who come under the jurisdiction of the European Union.  

Such airlines are required to comply with European Council Directive 95/46/EC.  The central tenet of this Directive is the belief that data processing systems must respect the fundamental rights and freedoms of natural persons, notably the right to privacy.  Article 7 allows personal information to be processed, if processing is necessary for compliance with a legal obligation. 

1.4	Deficiency in Customs powers - gaining access to PNR information

Section 64AE of the Act requires the master or owner of an aircraft to answer questions about a passenger report.  Under the provision there is a requirement for the airline to produce documents related to the report.  However it is arguable whether this provision extends to providing Customs with the power to gain electronic access to the airline’s PNR.

1.5	Application to departing passengers

For the same reasons, a Customs officer requires the power to access PNR information of an airline for passengers departing from Australia. The provision of PNR information prior to departure and subsequent screening against alerts allow Customs to identify passengers of interest to police and other related agencies.  This is particularly useful, for example in child abduction matters, when advance warning as to an individual’s movement is crucial. 

2.	Specification of desired objectives

2.1	Objective

The primary objective is to enable Customs to identify high risk passengers while, at the same time, processing and clearing arriving and departing low risk passengers expeditiously. 

3.	Identification of options

It is proposed to amend the Customs Act to require certain operators to permit Customs to access their computerised reservation systems.  Customs may access the computerised reservation systems for the purposes of the Customs Act or any other law of the Commonwealth.  The requirement is to apply to an operator who operates international passenger flights on scheduled routes into and out of Australia.

Under the proposal it will be an offence for an operator to refuse Customs access, with each refusal of access constituting an offence.  The defence of a reasonable excuse is to be available. For example, where power disruptions prevent Customs from accessing the systems would constitute a reasonable excuse.

Airlines carrying passengers who fall within the jurisdiction of European Union Privacy legislation are concerned that they could be in breach of European Council Directive 95/46/EC relating to a person’s right to privacy by providing Customs with access to PNR information.

The only way the airlines’ concern can be overcome is by inserting a statutory requirement in the Act to require airlines to provide Customs with access to such information. 

4.	Assessment of impact

4.1	Impact on airlines

4.1.1	Cost of providing electronic access to PNR information

To enable Customs to gain electronic access to PNR information requires the airlines to allow their CRS to recognise Customs as a systems “user”.   For those airlines that have already agreed to provide access, Customs has agreed to cover the costs to the airline of providing this access.   For those airlines required to allow access to their CRS as a result of this proposal, Customs will also cover the cost of providing access.  This cost is not significant, possibly less than $5,000 per airline.

4.1.2 Improved passenger clearance service

The smooth and expeditious clearance of passengers is a major objective of the airline industry.

Access to electronic PNR information enables Customs to make a more accurate assessment of the risk a particular passenger represents prior to arrival at the border. With the major part of the assessment task already completed at the time the passenger presents to a Customs officer, the passenger experiences an expedited clearance process. 

Access to airline PNR information on a voluntary basis has already significantly contributed to border integrity.  Customs has used this information for the identification of narcotics couriers, Immigration turnarounds (more than 70 instances), quarantine goods, illegal currency movements, revenue offences and other prohibited goods offences.  

In some cases the assessment made as a result of the PNR  information will eliminate the need to conduct a search of a passenger who may otherwise be considered to be a suspect.
 
4.2	Impact on Customs

4.2.1	Cost of gaining electronic access to PNR information

There is a cost for the ongoing service fees associated with access to airline passenger information computer systems.  The issue of supplementation is under consideration.

5.	Consultation

5.1	Consultation with Airlines

The proposal has been presented to the following airline organisations:
•	Board of Airline Representatives of Australia
•	QANTAS Airways Limited
•	United Airlines Inc.
•	Air New Zealand

BARA and the airlines gave ‘in principle” support to the proposal.  The voluntary participation to date is indicative of the airlines’ view of the enhanced border protection offered by the proposal.  They also appreciate that mandating the provision of PNR information, affords the airlines legal protection particularly in countries other than Australia.

5.2	Consultation with Government Agencies

Discussions have been held with the Attorney-General’s Department.  It saw no impediment to the proposal.

6.	Conclusion and Recommendations

Access to PNR information is important to enable Customs to more effectively assess arriving and departing passengers, particularly in relation to high risk passengers and the carriage of prohibited goods, especially illicit drugs.  It is equally important to airlines that Customs has access to such information in order that Customs can expeditiously clear passengers and to meet other objectives of the airlines.

The concerns of airlines about giving Customs access to PNR information on passengers who fall under the European Union Privacy Directive, can be resolved by amending the Act to require airlines to provide Customs with electronic access to such information.

7.	Implementation and review

Customs currently has access to PNR information for a number of major airlines through Memoranda of Understanding.  Other airlines will be gradually brought on stream as deemed necessary.  

An implementation review will be conducted 12 months after implementation to provide industry with an opportunity to ensure access to PNR information is being conducted in a manner that fulfils its obligations under the European Union’s privacy requirements.

While there has been good co-operation received to date from the airline industry in providing Customs with access to PNR information, it is  proposed to insert penal provisions for non-compliance as part of the amendment.  

To maintain border integrity and assist Customs in fulfilling its border responsibilities, the penalty needs to be significant.  The proposal incorporates a penalty of $5500 for each flight for which PNR information was not available.

BORDER SECURITY LEGISLATION AMENDMENT BILL 2002

NOTES ON CLAUSES

Clause 1 – Short title

This clause provides for the Bill, when enacted, to be cited as the Border Security Legislation Amendment Act 2002.

Clause 2 - Commencement

Subclause (1) provides that each provision of this Act specified in column 1 of the table in that subclause commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.

Item 1 of the table provides that sections 1, 2 and 3 and anything not elsewhere covered by this table commence on the day on which the Act receives the Royal Assent.

Item 2 provides that Schedules 1 and 2 commence on a single day to be fixed by Proclamation subsection to subclause (3).  Schedule 1 permits the creation of restricted areas of airports.  Schedule 2 requires certain employers and security identification card issuers to provide Customs with certain information about people who work at international airports.

Item 3 provides that Schedule 3 commences on the day on which this Act receives the Royal Assent.  This Schedule allows Customs officers to patrol airports.

Item 4 provides that Part 1 of Schedule 4 commences on a single day fixed by Proclamation, subject to subclause (3).  This Part relates to the reporting of goods that are in transit through Australia.  It is presumed that these amendments will commence before the relevant provisions of the Customs Legislation Amendment (International Trade Modernisation) Act 2001 (“the ITM Act”).

Item 5 provides that Part 2 of Schedule 4 commences immediately after item 118 of Schedule 3 to the ITM Act commences.  This part also relates to the reporting of goods that are in transit through Australia.

Item 6 provides that Schedule 5 commences on a single day to be fixed by Proclamation subject to subclause (3).  Schedule 5 relates to the electronic reporting of mail to Customs.

Item 7 provides that Part 1 of Schedule 6 commences on a single day to be fixed by Proclamation subject to subclause (3).  Part 1 relates to the reporting of passengers and crew.

Item 8 provides that items 10 to 15 of Schedule 6 commence immediately before item 122 of Schedule 3 to the ITM Act commences.  These items are consequential amendments to the ITM Act.

Item 9 provides that items 16 to 18 of Schedule 6 commence at the same time as items 1 to 8 of Schedule 10.  These items are consequential amendments to the Evidence Act 1995.

Item 10 provides that Schedule 7 commences on the 28th day after the day on which the Act receives the Royal Assent.  This Schedule relates to Customs access to airline passenger information held electronically.

Item11 provides that Schedule 8 commences on a day to be fixed by Proclamation, subject to subclause (3).  This Schedule contains amendments to the Fisheries Management Act 1991.

Item 12 provides that Schedules 9 commences on the day on which this Act receives the Royal Assent.  Schedule 9 relates to the power of the Chief Executive Officer to authorise persons to perform the functions of an Officer of Customs.  

Item 13 provides that Schedule 10 commences on the 28th day after the day on which the Act receives the Royal Assent.  The amendments in Schedule 10 relate to the issuing of approved firearms and items of personal defence equipment to officers of Customs.  The 28 day delay in commencement will enable the necessary authorisations under these amendments to be prepared.

Item 14 provides that Schedule 11 and 12 commence on the day on which the Act receives the Royal Assent.  These schedules amend the arrest powers in Customs Act and amend section 16 of the Customs Administration Act.

Item 15 provides that Schedule 13 commences on the day on which the Act receives the Royal Assent.  Schedule 13 makes certain undeclared unaccompanied personal and household effects forfeited to the Crown.

Subclause (2) provides that column 3 of the table is for additional information that is not part of the Act.  This information may be included in any published version of the Act.

Subclause (3) provides that if a provision covered by item 2, 4, 6, 7 or 11 of the table does not commence within the period 6 months of the day beginning on the day on which the Act receives the Royal Assent, it commences on the first day after the end of that period.  This is the standard provision that applies to commencement by Proclamation. 

Clause 3 - Schedules

This clause is the formal enabling provision for the Schedule to the Bill, providing that each Act specified in a Schedule is amended in accordance with the applicable items of the Schedule.  In this Bill the Acts being amended are the Customs Act 1901 and the Customs Administration Act 1985, the Fisheries Management Act 1991, the Migration Act 1958 and the Evidence Act 1995.

The clause also provides that the other items of the Schedules have effect according to their terms.  This is a standard enabling clause for transitional, savings and application items in amending legislation.  

SCHEDULE 1 – RESTRICTED AREAS

Customs Act 1901

The amendments contained in this Schedule recognise the role of Customs in contributing to border security and enhance the capacity of Customs officers to more effectively monitor and enforce security requirements at our borders.

Item 1 – Subsection 234AA(1)

Section 234AA of the Customs Act provides that a Collector may cause signs to be displayed at or near certain places (section 234AA places) that identify the place and state that entry into it by unauthorised persons is prohibited.  The places are those used by officers for questioning passengers; for examining personal baggage of such passengers; and as a holding place for such passengers.

This item inserts into subsection 234AA(1) of the Customs Act a new place (new paragraph 234AA(1)(b)), being a place covered by a notice made by the CEO under new subsection 234AA(3), in which entry by unauthorised persons will be prohibited.  

Item 2 - Subsection 234AA(2)

Currently, the Collector can cause signs to be displayed at or near section 234AA places which state that the use of cameras or sound recorders at the place by unauthorised persons is prohibited.

This item extends those provisions so that signs can be displayed that state that the unauthorised use of mobile phones or other electronic forms of communication by unauthorised persons is prohibited (new paragraph 234AA(2)(b)).  This amendment recognises changes in technology that have occurred since this provision was inserted.

Item 3 - At the end of section 234AA

This item inserts new subsections 234AA(3) and (4) into the Act.

New subsection 234AA(3) provides that the CEO may publish a notice in the Gazette specifying that certain areas (between the Customs outward control point /baggage examination area and the aircraft) are areas to which section 234AA applies.  

This area must be an area of an airport appointed under section 15 of the Customs Act (new subsection 234AA(3)) and must comprise one or more of the areas in new subsections 234AA(4)(a), (b) and (c).  Paragraph (a) will cover those areas of the airport between the aircraft and a place where Customs processing is completed.  Paragraph (b) will cover those areas between where passengers pass through the first point at which they are normally subject to processing by Customs officers and the aircraft.  Paragraph (c) will cover any areas that are in the vicinity of the areas covered by paragraphs (a) and (b).  For example, this could cover the area where passengers leaving Australia wait before they are processed by Customs officers.

It is proposed that these areas should be restricted because arriving passengers and crew in those areas are in ‘border quarantine’ until such time as they have cleared immigration and Customs processing.  They should not have any contact with a person ‘in Australia’ until they have completed this process and have left the ‘sterile area’.  In the case of departing passengers and crew, once they have been cleared for departure they are not permitted to make contact with unauthorised persons on the other side of the ‘border’.

Item 4 - Subsection 234A(1)

Currently subsection 234A(1) provides that persons other than passengers disembarking from, or embarking on, a ship or aircraft shall not, except by authority enter section 234AA places or enter a ship, aircraft or certain wharfs.
This item removes the reference to passengers as it is proposed to insert new provisions into subsection 234A(2) which will exempt passengers and certain other persons from these provisions.

Item 5 - Subsection 234A(1) (penalty)

This item increases the penalty for entering into a section 234AA place or entering a ship, aircraft or certain wharfs from $1,000 to 50 penalty units, that is, $5,500.

Item 6 - After paragraph 234A(1A)(a)

Certain people who work in airports are issued with security identification cards.  These people need to be able to enter section 234A places for the purposes of their employment.  This item will make it clear that subsection 234A(1) does not prohibit a person who is a holder of a security identification card from entering into or being in a section 234A place for the purposes of his or her employment.  The term security identification card is defined in section 213A of the Customs Act.

Item 7 - At the end of subsection 234A(1A)

This item will make it clear that subsection 234A(1) does not prohibit crew, passengers and persons who are included in a class of persons whom the CEO determines to be exempt from section 234A from entering 234AA places, ships, aircraft and certain wharves.

The determination by the CEO must be in writing.

Item 8 - Paragraph 234AB(1)(a)

This item contains a consequential amendment to paragraph 234AB(1)(a) as a result of the amendments that will be made to subsection 234AA(2) relating to mobile phones and other electronic forms of communication.

These amendments will allow an officer to direct a person not to use a mobile phone or other electronic form of communication.

Item 9 - Subsection 234AB(4)

This item repeals and substitutes subsection 234AB(4) to make a consequential amendment as a result of the amendments relating to mobile phones and other electronic forms of communication.  New subsection 234AB(4) will ensure that if in any proceedings for the prosecution of a person for an offence of failing to comply with a direction, evidence that a sign stating that the use of mobile phones or other electronic forms of communication at a 234AA place is prohibited was displayed at or near that place, is prima facie evidence that the sign was so displayed in accordance with subsection 234AA(2).

Item 10 - After section 234AB

This item will insert a new section 234ABA into the Customs Act which will allow a Customs officer to direct a person to leave a 234AA place if the officer reasonably believes that the person is in that place in contravention of section 234A (new subsection 234ABA(1) refers).

New subsection 234ABA(2) provides that a Customs officer may, by themselves or with the assistance of other officers or a protective service officer (as defined by the Australian Protective Service Act 1987 (see new subsection 234ABA(4)), use reasonable force to remove the person from the 234AA place if the person refuses to leave when so directed.

However, where an officer removes a person under new subsection 234ABA(2) the officer and the persons assisting must not use more force, or subject the person to greater indignity, than is necessary or reasonable.

SCHEDULE 2 - INFORMATION ABOUT PEOPLE WORKING IN RESTRICTED AREAS OR ISSUED WITH IDENTIFICATION CARDS

Customs Act 1901

Item 1 - After Subdivision H of Division 1 of Part XII

This item inserts new subdivision HA into the Customs Act.  This subdivision relates to information about people working in restricted areas or issued with security identification cards.

Employees at international airports include:
•	airport employees (for example, airport management and cleaners); and
•	airline employees (for example, baggage handlers and maintenance staff); and
•	employees of retail businesses that operate in the airport (for example, duty free stores and other retail outlets) and
•	government employees (for example, Customs, quarantine and migration officers).

Most people working at international airports in Australia with access to restricted areas require a security clearance and wear a card indicating they have been security cleared.  These cards are known as Aviation Security Identification Cards (ASIC).  However currently, not all employees of retail businesses located in places covered by a notice made under subsection 234AA(3) (“restricted areas”), within an international airport, are required to have an ASIC.

The presence of these people in the “restricted area” can potentially pose a threat to the integrity and security of the border, depending on whether they are of good character.  Such workers have previously been detected acting in concert with passengers to smuggle and import prohibited goods into Australia.

New section 213A relates to people who work in restricted areas (restricted area employees).  New subsection 213A(7) defines the term restricted area employee to mean a person whose duties include working in an area covered by a notice under subsection 234AA(3), but does not include a person who is issued with a security identification card.  A security identification card is a card of a kind prescribed in the regulations.  Information about the holders of security identification cards will be dealt with in new section 213B.

New subsection 213A(1) provides that a person who employs or engages a restricted area employee must, within 7 days after doing so, provide to an authorised officer the required identity information in respect of the employee.  Subsection 213A(7) defines required identity information, in relation to a person, as the following:
•	the name and address of the person;
•	the person’s date and place of birth;
•	any other information prescribed by the regulations.

New subsection 213A(1) only applies where a person is employed or engaged after the commencement of these provisions.

New subsection 213A(2) contains the same reporting requirements in respect of a person employed or engaged after the commencement of this section who later becomes a restricted area employee. This would cover, for example, a person who is employed by a duty free business (after the commencement of these provisions) which has shops within the restricted area and elsewhere.  If the employee commenced work at a shop that was not in the restricted area but some time after employment or engagement moved to the shop within the restricted area, the employer would have to provide required identity information about that employee within 7 days of that employee commencing to work in the restricted area.

New subsection 213A(3) allows an authorised officer to request the employer of a restricted area employee (who was employed or engaged before the commencement of these provisions) to provide required identity information about that employee.  That request can only be made if the authorised officer suspects on reasonable grounds that the employee has committed, or is likely to commit, an offence against a law of the Commonwealth.  That request must be made in writing and the information must be supplied within 7 days of the employer receiving the request.  The employer must comply with the request.

The employer must provide the information in writing or in such other form as the CEO determines in writing (new subsection 213A(4) refers).

New subsections 213A(5) and (6) make it a strict liability offence for a person to fail to comply with new subsections 213A(1), (2) or (3).  The offence is punishable on conviction by a maximum penalty of 30 penalty units.

New subsection 213B relates to persons who are issued or reissued with a security identification card (known as an ASIC).  

As explained above most people working at international airports in Australia with access to restricted areas require a security clearance and wear a card indicating they have been security cleared.  Under the Air Navigation Regulations employers are authorised to issue such cards to their employees.

Each person who applies for an ASIC must provide basic personal information – name, address, place and date of birth - as well as consent to have a Police Record Check conducted.  

New subsection 231B will require the issuers of ASICs to provide certain information to Customs.  

If a person issues or reissues a security identification card to another person (the card holder) in respect of an airport appointed under section 15 of the Customs Act, that person must provide to an authorised officer the required identity information about the ASIC holder.  That information must be provided within 7 days after the card was issued (new subsection 213B(1) refers).  This provision is not limited to those persons who are employed within the restricted area.

Required identity information and security identification card have the same meanings as given by new section 213A (new subsection 213B(4) refers).

New subsection 213B(2) provides that if a card holder was issued with an ASIC prior to the commencement of these provisions and an authorised officer suspects on reasonable grounds that the card holder has committed, or is likely to commit, an offence against a law of the Commonwealth, the authorised officer may request the person who issued the card to provide required identity information in respect of the card holder.  The information must be supplied within 7 days of the card issuer receiving the request and the issuer must comply with the request.

The issuer must provide the information in writing or in such other form as the CEO determines in writing (new subsection 213B(3) refers).

SCHEDULE 3 - POWER TO PATROL AIRPORTS

Customs Act 1901

Item 1 - Section 193

Section 193 of the Customs Act enables an officer of Customs to patrol ‘…any part of the coast or any railway…any port bay harbour…’.  As this is an original provision of the Customs Act, and aircraft had not been invented, the concept of an airport forming part of the border was not a consideration.  This provision has not been amended since the Act commenced.

Under section 58 of the Customs Act, an aircraft on an international flight must land at an airport appointed under section 15 of the Customs Act.  As with ships on an international voyage berthed at an appointed port, Customs should be able to patrol not only ports but also airports to ensure the integrity of the border.

This item amends section 193 to enable airports to be patrolled by an officer of Customs.

SCHEDULE 4 - GOODS IN TRANSIT THROUGH AUSTRALIA

Goods in transit through Australia (that is, goods not being unshipped in Australia) are currently not reported to Customs under section 64AB of the Customs Act.  Since those goods are not imported into Australia, they are not required to be entered.  Customs therefore has no information about those goods thereby undermining the effectiveness of border controls.

In addition, if Customs becomes aware of dangerous or harmful goods in transit through Australia, Customs has limited powers to deal with those goods.  For example, the Hazardous Waste (Regulation of Exports and Imports) Act 1989, the Psychotropic Substances Act 1976 and the Narcotic Drugs Act 1976 allow Customs officers to exercise certain powers in respect of transit goods.

Under section 52A of the Hazardous Waste (Regulation of Exports and Imports) Act 1989 an officer of Customs may require a person to produce a transit permit authorising the carrying out of a transit proposal (being a proposal to bring waste into Australia (whether or not by way of import) and to take the waste out of Australia within 30 days as long as it is not proposed to dispose of the waste in Australia).

Under section 9 of the Psychotropic Substances Act 1976 and section 22 of the Narcotic Drugs Act 1976 where a psychotropic substance or narcotic drug is passing through Australia, a Collector (certain officers of Customs) may, whether or not the substance or preparation is unloaded from the vessel or aircraft, require the person having possession or control of the substance or preparation to produce to him or her an export authorisation from another country.  If the person does not produce an authorisation the Collector may seize the substance or preparation.

Section 31 of the Customs Act provides that goods that are on board any ship or aircraft from a place outside Australia are subject to the control of the Customs whilst the ship or aircraft is within the limits of any port or airport in Australia.  This includes goods that are in transit through Australia.  Under section 186 of the Customs Act an officer of Customs can examine those goods while they remain under Customs control.

The amendments contained in this Schedule will enhance these powers by ensuring that Customs is provided with information about goods that are in transit through Australia.  

Once Customs has received information about goods that are in transit through Australia, there may be circumstances where Customs will want to examine those goods.  Following examination Customs may seize those goods, with a warrant, if the Minister has reasonable grounds for suspecting that the goods are connected, whether directly or indirectly, with the carrying out of a terrorist act, whether the terrorist act has occurred, is occurring or is likely to occur.  Customs may also seize goods, with a warrant, if the Minister has reasonable grounds to suspect that the existence or the shipment of them prejudices, or is likely to prejudice, Australia’s defence or security or international peace and security.  Those goods can only be seized with a warrant issued by a Federal, State or Territory Judge.  The following provisions also set out how such goods are to be dealt with once they have been seized.

These provisions operate in addition to those found in the Mutual Assistance in Criminal Matters Act 1987 and the Proceeds of Crime Act 1987 and they have no effect on those Acts or any other legislation relating to goods that are in transit through Australia.

Part 1 - Amendments commencing first

Customs Act 1901

Items 1 and 2

These items amend section 11 of the Customs Act so that the Governor-General may make arrangements with the Governors of States and the Administrator of the Northern Territory for the performance by certain Judges of the functions of a judicial officer under Subdivision DA of Division 1 of Part XII of the Customs Act, and under any other provisions in so far as they relate to that Subdivision.  Subdivision DA relates to the seizure with warrant of certain goods that are in transit through Australia.

Item 3 - After subsection 64AB(3)

This item inserts into section 64AB of the Customs Act new provisions which will require the master or pilot or owner of a ship or aircraft arriving in Australia from overseas to report to Customs any goods on board the ship or aircraft that are not going to be unshipped in Australia.

New subsection 64AB(3AA) provides that if a ship is due to arrive at its first port in Australia since it last called at any port outside Australia, the master or owner of the ship (as defined by subsection 4(1) of the Customs Act) must communicate a report of cargo on board the ship that is intended to be kept on board the ship for shipment on to a place outside Australia.  This report must be provided to Customs not later than 48 hours before the ship’s arrival at the port if its journey from the last port outside Australia is likely to take 48 hours or more.  If the journey is likely to take less than 48 hours, the report must be provided not later than 24 hours before its arrival.

Whilst the master or owner of a ship must report other types of cargo at each port in Australia, being the port at which the cargo is going to be unshipped, cargo that is in transit through Australia is only required to be reported at the first Australian port that the ship arrives at since it last called at a port overseas.

New subsection 64AB(3AB) contains a similar provision in respect of cargo in transit through Australia on board an aircraft.  If the report is made by document the report must be made within 3 hours after the arrival of the aircraft at the first Australian airport and if it is to be made by computer, it must be made at least 2 hours before the arrival of the aircraft in Australia.

New subsection 64AB(3AC) provides that if a person intentionally contravenes subsection (3AA) or (3AB) they commit an offence punishable, on conviction, by a penalty not exceeding 120 penalty units.  There is currently no monetary penalty for not reporting a cargo report to Customs in respect of other types of cargo, but if such a report is not made, the master, pilot or owner will not be given a Collector’s permit which allows the unloading of the cargo.  Since cargo in transit through Australia is not intended to be unloaded, it is proposed to make it an offence to fail to provide a report of that cargo.

New subsection 64AB(3AD) provides that if a person contravenes those same provisions they commit an offence punishable, on conviction, by a penalty not exceeding 60 penalty units.  This offence is an offence of strict liability (new subsection 64AB(3AE) refers).

Item 4 - Subsection 64AB(3A)

This item inserts references to new subsections 64AB(3AA) and (3AB) into subsection 64AB(3A) of the Customs Act.  Subsection 64AB(3A) provides that a cargo report can be made by document or by computer. 

Item 5 - Subsection 64AB(4)

This item amends subsection 64AB(4) of the Customs Act to ensure that the requirements that apply to documentary reports of cargo intended to be unshipped in Australia also apply to reports of cargo that is intended to be kept on board the ship or aircraft.

Item 6 - Subsection 64AB(5)

This item amends subsection 64AB(5) of the Customs Act to ensure that the requirements that apply to computer reports of cargo intended to be unshipped in Australia also apply to reports of cargo that is intended to be kept on board the ship or aircraft.

Item 7 - At the end of subsection 64AB(6)

This item amends subsection 64AB(6) of the Customs Act to ensure that the Chief Executive Officer of Customs can approve different types of approved forms and approved statements in respect of different kinds of cargo.  Since Customs will require different kinds of information in respect of cargo that is in transit through Australia, this will allow the CEO to approve a different approved form and approved statement for that type of cargo.

Item 8 - Paragraph 64AB(7)(a)

This item amends paragraph 64AB(7)(a) to ensure that reports in respect of cargo that is in transit through Australia are treated the same as reports of cargo intended to be unshipped in Australia.  Subsection 64AB(7) provides that if a report of cargo is made later than the relevant time but otherwise complies with the provisions of subsection (4) or (5) then for the purposes of sections 64ABB, 64ABC and 64ABD, the report is taken to have been communicated to Customs in accordance with section 64AB.  Sections 64ABB, 64ABC and 64ABD relate to variations of cargo reports and charges.  Subsection 64AB(7) ensures that a master, pilot or owner is not exempt from other provisions just because they made their report later than required.

Item 9 - Subsection 64ABA(1)

This item repeals and substitutes subsection 64ABA(1) of the Customs Act to ensure that cargo reports in respect of cargo that is in transit through Australia can be varied.  The current provisions that apply to cargo that is going to be unshipped are reproduced in new paragraph 64ABA(1)(a).  New paragraphs 64ABA(1)(b) and (c) set out when a cargo report in respect of transit cargo can be reported to Customs. 

New paragraph 64ABA(1)(b) provides that the cargo report in respect of transit cargo can be varied at any time up until the time the ship leaves its last port in Australia before calling on a port outside Australia.  New paragraph 64ABA(1)(c) contains a similar provision in respect of aircraft.

Item 10 - Subsection 183UA(1) (at the end of the definition of authorized person)

This item amends the definition of authorised person for the purposes of Division 1 of Part XII of the Customs Act.  In relation to an application for, or the execution of, a seizure warrant under new section 203DA, Customs officers are authorized persons.

Item 11 - Subsection 183UA(1) (definition of judicial officer)

This item amends the definition of judicial officer for the purposes of that same Division.  In relation to a search warrant or to a seizure warrant under section 203 the definition of judicial officer has not changed (paragraph (a) of the definition refers).

New paragraph (b) provides that in respect of a seizure warrant under section 203DA ‘judicial officer’ means:
•	a Judge of the Federal Court of Australia or of the Supreme Court of the Australian Capital Territory in relation to whom a consent under subsection 183UD(1), and a nomination under subsection 183UD(2), are in force;
•	a Judge of the Supreme Court of a State in respect of whom an appropriate arrangement is in force under section 11 is applicable; or
•	a Judge of the Supreme Court of the Northern Territory who is not a Judge referred to in subparagraph (i) and in respect of whom an appropriate arrangement in force under section 11 is applicable.

Item 12 - Subsection 183UA(1) (definition of seizure notice)

This item contains a technical amendment to the definition of seizure notice to ensure that it covers notices of the kind mentioned in section 209E. 

Item 13 - Subsection 183UA(1) (at the end of the definition of seizure warrant)

This item contains a technical amendment to the definition of seizure warrant to ensure that it also covers warrants issued under new section 203DA.

Items 14 and 15

These items define ‘terrorist act’ for the purposes of Division 1 of Part XII of the Customs Act.  Under new section 203DA a judicial officer will be able to issue a warrant to seize goods if they are satisfied on oath that the Minister has reasonable grounds for suspecting that, amongst other things, the goods are connected, whether directly or indirectly, with the carrying out of a terrorist act, whether the terrorist act has occurred, is occurring or is likely to occur.  

The definition of terrorist act for the purposes of these provisions (as contained in items 4 and 5) is the same as in the Financing of Terrorism Bill 2002.

Item 16 - At the end of Subdivision A of Division 1 of Part XII

This item inserts section 183UD into the Customs Act.  Under subsection (1) a Judge of the Federal Court of Australia or of the Supreme Court of the Australian Capital Territory may consent to be nominated by the Minister under subsection (2).

Subsection 183UD(2) provides that the Minister may nominate a Judge of the Federal Court of Australia or of the Supreme Court of the Australian Capital Territory to be a judicial officer for the purposes paragraph (b) of the definition of judicial officer in subsection 183UA(1).  That nomination can only be made where the Judge has consented to being nominated.

This means that a Judge of the Federal Court of Australia or of the Supreme Court of the Australian Capital Territory can only issue a warrant to seize certain goods in transit through Australia if they have been nominated by the Minister for that purpose.  They can only be nominated if they consent to being nominated.

Item 17 - Subsection 185B(8)

This item contains a technical amendment to section 185B, which allows the disposal of ships, to ensure that that section applies despite the new disposal provisions contained in Subdivision GA.

Item 18 - At the end of section 186

This item amends section 186 to make it clear that goods that are under Customs control because of the operation of section 31 continue to remain under Customs control even if they are removed from a ship or aircraft in the course of an examination under section 186.

Item 19 - Subsection 203A(1)

This item ensures that the current provisions in the Customs Act which allow the seizure of forfeited goods are not affected by these new provisions which allow a seizure warrant to be issued in respect of certain goods that are in transit through Australia (new section 203DA).

This will ensure that the provisions in section 203A of the Customs Act only apply to warrants issued under section 203 (and not new section 203DA).

Item 20 - After Subdivision D of Division 1 of Part XII

This item inserts a new subdivision DA into Division 1 of Part XII of the Customs Act.  This new subdivision relates to the seizure of certain goods that are in transit through Australia.  

New section 203DA sets out the circumstances in which seizure warrants can be issued in respect of goods in transit through Australia.

Subsection 203DA(1) provides that a judicial officer may issue a warrant to seize goods on or in particular premises (which under subsection 183UA(1) includes a place, a conveyance or a container) if the judicial officer is satisfied by information on oath that the Minister has reasonable grounds for suspecting that:

•	the goods are, or within the next 72 hours will be, on or in the premises;
•	the goods are in transit through Australia; and
•	the goods satisfy either or both of the following:
–	the goods are connected, whether directly or indirectly with the carrying out of a terrorist act, whether the terrorist act has occurred, is occurring or is likely to occur;
–	the existence of the shipment of the goods prejudices, or is likely to prejudice, Australia’s defence or security or international peace and security.

Subsection 203DA(2) sets out those things that a judicial officer must state in a warrant when it is issued.  These are a description of the goods, a description of the premises, the name of the authorised person (or other authorised person) who is responsible for executing the warrant, the time at which the warrant expires and whether the warrant may be executed at any time or only during particular hours.

Subsection 203DA(3) provides that the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.  This means that if the warrant is issued at 3pm on a Monday, the latest time at which the warrant can expire is midnight of the following Monday.  However, the judicial officer can state in the warrant that it expires at some earlier time.

Subsection 203DA(4) provides that the judicial officer must also state in the warrant that the warrant also authorises the seizure of goods found on or in the premises that the executing officer or person assisting believes on reasonable grounds to be ‘special forfeited goods’, that is, prohibited imports and prohibited exports.  There may be circumstances where an officer is searching a premises under a warrant issued under section 203DA and the officer finds special forfeited goods.  Those goods will be able to be seized under the warrant (currently Customs can seize special forfeited goods at a Customs place without a warrant and at any other place with a warrant (except for narcotic goods that can be seized anywhere without a warrant)).

Subsection 203DA(5) makes it clear that successive warrants can be issued in relation to the same premises.

Subsection 203DA(6) provides that if an application for this type of warrant is made by telephone or other electronic means the warrant can only be issued if the judicial officer is satisfied by information on oath that the Minister has reasonable grounds for suspecting that the goods are, or within 48 hours will be, on or in the relevant premises.  Further the warrant can remain in force for a maximum of 48 hours.

Subsection 203DA(7) makes it clear that a judicial officer of a particular State or Territory may issue a warrant in respect of the seizure of goods on or in premises in another State or Territory.

Section 203DB sets out the things that are authorised by seizure warrants for goods in transit.  These things are the same as are currently authorised by seizure warrants in respect of forfeited goods (except seizure warrants issued under section 203DA will not authorise the search of persons at or near the premises).

A seizure warrant issued under section 203DA authorises the executing officer or person assisting to do the following:
•	enter the warrant premises;
•	search for the relevant goods;
•	seize those goods; and
•	seize other goods that the executing officer or person assisting believes on reasonable grounds to be special forfeited goods.

Subsections 203DB(2), (3) and (4) make it clear that:
•	if the premises is not a conveyance or a container, the warrant extends to every conveyance or container on the premises;
•	if the warrant allows the entry and search of a conveyance, the conveyance can be entered, wherever it is and that the warrant also extends to the containers on the conveyance; and
•	if the warrant allows the entry and search of a container, the container can be entered, wherever it is, to the extent that it is of a size permitting entry.

Subsection 203DA(5) provides that if the warrant states that it may be executed only during particular hours, the warrant must not be executed outside those hours.

Item 21 - Subsection 203G(5) (paragraph (a) of the definition of a copy of the warrant)

This item contains a technical amendment to subsection 203G(5) to ensure that the provisions that apply to search warrants and existing seizure warrants also apply to seizure warrants issued under section 203DA.  Section 203G requires the executing officer or person assisting to make available to certain persons a copy of the warrant. 

Item 22 - Subsection 203K(5)

Again this item contains a technical amendment to ensure that the existing provisions relating to warrants also apply to warrants issued under section 203DA.  Section 203K allows:
•	the executing officer or person assisting to take photographs or video recordings of the premises or of things on or in the premises (with the occupier’s consent);
•	the executing officer and the persons assisting to complete the execution of a warrant where they have temporarily ceased its execution;
•	the execution of a warrant to be completed where a court order has stopped the execution of the warrant and the order is revoked or reversed; and
•	a court to reissue a warrant in certain circumstances.

Item 23 - Subsection 203M(4)

This item allows the same form of warrant that would be issued under section 203DA to be completed and signed by a judicial officer where an application for the warrant has been made by telephone or other electronic means.

Item 24 - Before section 203T

This item inserts into Subdivision G new section 203SA which sets out which goods that subdivision does not apply to.  Subdivision G currently sets out the procedures for dealing with forfeited goods that have been seized.  This item ensures that this subdivision will continue to deal with those types of goods.  New Subdivision GA will apply to goods seized under a warrant under section 203DA, except for any special forfeited goods seized under paragraph 203DB(1)(d).

Item 25 - After Subdivision G of Division 1 of Part XII

This item inserts new Subdivision GA into Division 1 of Part XII of the Customs Act.  Subdivision GA sets out how goods seized under a section 203DA warrant should be dealt with.

Section 209B provides that new Subdivision GA applies to goods seized under a seizure warrant issued under section 203DA, except goods seized under paragraph 203DB(1)(d).  That paragraph allows an officer to seize other goods that are found during the search for goods the subject of a section 203DA warrant that the executing officer or person assisting believes on reasonable grounds to be special forfeited goods.

Section 209C provides that goods to which Subdivision GA applies which are seized must be taken to a place approved by a Collector as a place for the storage of goods of that kind.

Subsection 209D(1) provides that once these types of goods have been seized the officer who seized the goods must serve a seizure notice on the owner of the goods.  This notice must be served within 7 days of seizure.  If the owner cannot be identified after reasonable inquiry, the notice must be served on the person in whose possession or under whose control the goods were when they were seized.

Subsection 209D(2) makes it clear that the seizure notice must be given even if an application for the goods return has been made (see section 209F).

Subsection 209D(3) provides that the notice must be in writing and must be served personally or by post.  If the owner or person in possession or in control of the goods cannot be identified, the notice must be published in a newspaper circulating in the location in which the goods were seized.

Subsection 209D(4) makes it clear that a seizure notice can be served on a person who is outside Australia.  In the case of goods that were in transit through Australia, it is probable that the owner of the goods will not be in Australia.

Section 209E sets out those matters that must be dealt with in a seizure notice.  The notice must identify the goods, set out the day on which they were seized, set out the ground (or grounds) on which they were seized and include a statement that, if an application for the return of the goods has not already been made, and is not made within 30 days after the day the notice is served, the goods will be taken to be condemned as forfeited to the Crown.

Subsection 209F(1) provides that the owner of the goods, whether or not a seizure notice has yet been served on the owner, may apply to a court for the return of the goods.

Under subsection 209F(2) that application must be made no later than 30 days after a seizure notice is issued.  If the application is not made, the goods are taken to be condemned as forfeited to the Crown (see section 209G).

Under subsection 209F(3) the court must order the return of the goods to the owner if the court finds that:
•	the goods were not goods that are connected with the carrying out of a terrorist act and are not goods that prejudice or are likely to prejudice, Australia’s defence or security or international peace and security;
•	the goods were not used or otherwise involved in the commission of an offence against any law of the Commonwealth, a State or a Territory; and
•	the person is the rightful owner of the goods.

Subsection 209F(4) makes it clear that the goods that are to be required to be returned must be returned in a condition as near as practicable to the condition in which they were seized.

Under subsection 209F(5) if the court does not order the return of the goods, the goods are condemned as forfeited to the Crown.

Section 209G provides that if a seizure notice has been served in respect of goods and no application for their return has been made (within the 30 day time limit) then the goods are condemned as forfeited to the Crown.

Subsection 209H(1) provides that if goods are condemned as forfeited to the Crown because the owner did not make an application for their return, a person may apply to a court for compensation.  This is the case even if the goods have been destroyed or disposed of.

Subsection 209H(2) provides that compensation will only be payable if:
•	the goods were not goods that are connected with the carrying out of a terrorist act and are not goods that prejudice or are likely to prejudice, Australia’s defence or security or international peace and security;
•	the goods were not used or otherwise involved in the commission of an offence against any law of the Commonwealth, a State or a Territory; and
•	the person establishes, to the satisfaction of the court that he or she is the rightful owner of the goods and there were circumstances providing a reasonable excuse for the failure to apply for the return of the goods within the relevant time limits.

Subsection 209H(3) provides that the amount of the compensation should be:
•	 if the goods have been sold - the proceeds of the sale
•	if the goods have been destroyed or otherwise disposed of - the goods’ market value at the time of their destruction or disposal.

Section 209I makes it clear that the title to goods that are condemned as forfeited to the Crown vests immediately in the Commonwealth.  This is to the exclusion of all other interests in the goods, and the title cannot be called into question.

Section 209J deals with the situation where goods that are seized are considered to constitute a danger to public health or safety.  Usually goods seized under a section 203DA warrant cannot be disposed of until they are condemned as forfeited to the Crown.  However, there may be circumstances where the goods constitute a danger to public health or safety, in which case they can be dealt with prior to condemnation.

Under subsection 209J(1) once the Chief Executive Officer of Customs or a Regional Director for a State or Territory is satisfied that the goods constitute a danger to public health or safety, they can cause the goods to be dealt with in such manner as he or she considers appropriate (including the destruction of the goods).

Subsection 209J(2) provides that if the goods are dealt with under that subsection, the CEO or Regional Director concerned must give or publish a notice in accordance with subsection (4).  That notice must be given or published not later than 7 days after the goods have been dealt with.

Under subsection 209J(3) the notice must be in writing and must be served personally or by post on the owner of the goods, or if they cannot be identified, on the person in whose possession or under whose control the goods were when they were seized.  If none of those persons can be identified, the notice must be published in a newspaper circulating in the location in which the goods were seized.

Subsection 209J(4) sets out those things that must be in the notice.  The notice must:
•	identify the goods;
•	state that the goods have been seized under seizure warrant under section 203DA and give the reason for the seizure;
•	state that the goods have been dealt with under subsection (1) and specify the manner in which they have been so dealt with and the reason for doing so; and
•	set out that the owner may bring an action against the Commonwealth for recovery of the market value of the goods.

Subsection 209J(5) provides that if goods are dealt with in accordance with subsection (1), the owner may bring an action against the Commonwealth in a court of competent jurisdiction for the recovery of the market value of the goods at the time that they were dealt with.

Under subsection 209J(6) that right to recover the market value of the goods exists if:
•	the goods were not goods that are connected with the carrying out of a terrorist act and are not goods that prejudice or are likely to prejudice, Australia’s defence or security or international peace and security;
•	the goods were not used or otherwise involved in the commission of an offence against any law of the Commonwealth, a State or a Territory; and
•	the owner establishes that the circumstances for them to be dealt with did not exist, that is, they did not constitute a danger to public health or safety.

Subsection 209J(7) provides that if a person establishes a right to recover the market value of the goods, the Court must order the payment by the Commonwealth of an amount equal to that value.

Section 209K deals with the disposal of seized goods that have been condemned as forfeited to the Crown.  Under subsection (1) these goods must be dealt with and disposed of in accordance with the directions of the Chief Executive Officer of Customs.

Subsection 209K(2) makes it clear that the Chief Executive Officer of Customs may direct that the goods be given to a relevant authority of a foreign country in order that the goods be used in an investigation or prosecution under the laws of that country.  For example, goods may have been illegally exported from the country of origin.  In those circumstances the CEO could direct that the goods be given to the Customs authority in that country for the investigation of the offence in that country.

Subsection 209K(3) makes it clear that subsection (2) does not limit the generality of subsection (1).

Section 209L provides that for the purposes of section 29 of the Acts Interpretation Act 1901 a notice is taken to be properly addressed if it is posted as a letter addressed to the person at the last address of that person known to the sender.  Section 29 of the Acts Interpretation Act 1901 provides that unless the contrary intention appears the service of a document shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter.  Section 209L sets out when a notice is taken to have been properly addressed.

Items 26 and 27

These items amend paragraph 229(1)(bb) of the Customs Act to ensure that if seized goods are sold (or otherwise disposed of) in accordance with section 209J or 209K subject to a condition and that condition is not complied with, the goods will become forfeited to Crown.

Part 2 - Amendments commencing second

Many of the provisions of the Customs Act, including section 64AB, will be repealed and replaced by the Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001 (“the ITM Act”).  The amendments in this part will ensure that the amendments intended to be made to the Customs Act that are set out in Part 1 of this Schedule are not removed from the Act when the ITM Act commences.  All references to “new” provisions are references to those provisions of the Customs Act as contained in the ITM Act.

Customs Act 1901

Item 28 - Subsection 4(1) (definition of cargo report)

This item amends the definition of cargo report that will be inserted into the Customs Act by the ITM Act to ensure that it also covers those goods that are intended to be kept on board a ship at a port or on an aircraft at an airport.

Item 29 - After subsection 64AB(2)

This item inserts into new section 64AB of the Customs Act new subsection 64AB(2A).  New subsection 64AB(2A) provides that if a ship or aircraft is due to arrive at its first port, or airport, in Australia since it last called at a port, or departed from an airport, outside Australia, each cargo reporter must report to Customs particulars of all goods that the cargo reporter has arranged to be carried on the ship or aircraft on the voyage or flight and that are intended to be kept on board the ship or aircraft for shipment on to a place outside Australia.  This requirement does not apply to goods that are accompanied personal or household effects of a passenger or member of the crew or to ship’s stores or aircraft’s stores.  

New subsection 64AB(2A) ensures that the requirement to report cargo that is in transit through Australia still has to be reported once the ITM Act commences.

Item 30 - Paragraph 64AB(5)(a)

New paragraphs 64AB(5)(a) and (b) set out who are the consignee or consignor of goods for the purposes of making a cargo report.  

Since the definition of consignor in paragraph 64AB(5)(a) refers to a person in Australia, the definition is not relevant to goods that are in transit through Australia.

This item amends paragraph 64AB(5)(a) to limit its operation to reports of goods intended to be unloaded in Australia.

Item 31 - After paragraph 64AB(5)(a)

This item inserts new paragraph 64AB(5)(aa) into the Customs Act.  New paragraph 64AB(5)(aa) sets out who is the consignor in respect of goods that are in transit through Australia.  This is the supplier of such goods located outside Australia who:

•	initiates the sending of goods to a person in a place outside Australia; or
•	complies with a request from a person in a place outside Australia to send goods to the person.

Item 32 - Paragraph 64AB(5)(b)

This item amends new paragraph 64AB(5)(b) to make it clear that the definition of consignee applies to both goods intended to be unloaded in Australia and goods intended to be kept on board a ship or aircraft whilst it is in Australia.  The definition does not otherwise need to be amended

SCHEDULE 5 - REPORTING OF MAIL

Customs Act 1901

Item 1 - Section 63A

This item inserts into section 63A of the Customs Act a definition of ‘cargo’ for the purposes of Division 3 of Part IV of that Act.  This definition makes it clear that cargo, in relation to a ship or aircraft, includes any mail carried on the ship or aircraft.  Item 2 below inserts a definition of ‘mail’ into section 63A.

The insertion of this definition of cargo into section 63A will have the effect of making it clear that throughout Division 3 of Part IV of the Customs Act all of the obligations and powers that relate to cargo also apply to mail.  This will clarify, for example, that mail has to be reported to Customs as part of a cargo report (section 64AB refers) and that Customs has the power to ask questions and require documents to be produced in respect of mail (section 64AE refers).

Item 2 - Section 63A

This item inserts into section 63A a definition of mail, in relation to a ship or aircraft, for the purposes of Division 3 of Part IV of the Customs Act.  This definition includes two parts.  The first provides that any goods that are consigned through the Post Office that are carried on the ship or aircraft are mail.  These goods will be treated as mail and hence cargo for the purposes of Division 3 of Part IV of the Customs Act.

The second provides that any correspondence carried on the ship or aircraft that is not consigned as cargo and that is not accompanied personal or household effects of a passenger or member of the crew, is also mail.  For example, airlines often carry on board their aircraft their own correspondence and correspondence for other airlines.  This type of correspondence will also be treated as mail and hence cargo for the purposes of Division 3 of Part IV of the Customs Act.  

Item 3 - After subsection 64AB(3A)

This item inserts a new subsection 64AB(3AAA) into the Customs Act, which provides that despite subsection 64AB(3A) (which provides that a cargo report can be made by document or computer), if a cargo report relates to mail that is intended to be unshipped in Australia, that part of the report relating to mail must be made to Customs by computer.  This provision has the effect of inserting into the Customs Act a mandatory requirement to report mail to Customs by computer.

This Bill is also inserting into the Customs Act a requirement that owners of ships and aircraft report cargo that is transiting through Australia.  Since new subsection 64AB(3AAA) only applies to mail that is intended to be unshipped in Australia, the requirement to report mail by computer will not extend to mail that is in transit through Australia.  Whilst transit mail does not have to be reported by computer, it is still required to be reported (by either document or computer).

Item 4 - After subsection 64ABA(1)

This item inserts a new subsection 64ABA(1A) into the Customs Act which ensures that any variation of a cargo report relating to mail that is intended to be unshipped in Australia must be communicated to Customs by computer.  This, in combination with new subsection 64AB(3AAA), will ensure that both those parts of cargo reports relating to mail and variations relating to mail will have to be reported to Customs by computer.

SCHEDULE 6 - PASSENGER AND CREW REPORTS

The amendments contained in this schedule provide for Customs and the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) to receive electronically advance information about air and sea passengers and crew travelling to Australia before they arrive at the airport or port.  This will significantly enhance the ability of Customs and DIMIA to assess passengers and crew, prior to their arrival in Australia, for the risk they may present in relation to a range of Commonwealth laws.

The scheme that is established by the provisions of this Schedule provides for reports to be made by the operators of certain aircraft and ships to both Customs and DIMIA. However, to ensure that aircraft and ship operators do not have to duplicate their reports there is a new provision in the Customs Act that if an operator provides information to DIMIA under the Migration Act, that operator will not be required to provide the same information to Customs. In addition, DIMIA will be required to provide to Customs any information that it receives under the advance reporting provisions. Where the operators of aircraft and ships give information only to Customs (i.e., not to DIMIA) Customs will be required to give that information to DIMIA.

Part 1 ‑ Main amendments

Customs Act 1901

Item 1 - Subsection 4(1)

This is a technical drafting amendment to include a cross-reference in the definitions section of the Customs Act (section 4) to approved statements made under section 4A.

Item 2 - Subsection 4(1)

This item inserts in subsection 4(1) a definition of ‘arrival’ in relation to ships and aircraft.  This definition is to be inserted in the Customs Act by the Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001 (the ITM Act) parts of which have not yet commenced.  There are time limits on the requirement to report passengers electronically which are determined by the estimated time of arrival of the ship or aircraft.  The inclusion of a definition of ‘arrival’ provides certainty as to when a ship or aircraft can be said to have arrived in Australia.

Item 3 - Subsection 4(1) (definition of electronic)

This item repeals and replaces the definition of ‘electronic’.  This new definition is to be inserted in the Customs Act by the ITM Act parts of which have not yet commenced.   The new definition covers all transmissions of communications by computer and not simply the transmission of reports by computer.

Item 4 - Subsection 4(1)

This item inserts a definition of ‘operator’ in relation to a ship or aircraft for a particular flight or voyage.  This definition is to be inserted in the Customs Act by the ITM Act parts of which have not yet commenced.   The obligations to report passengers electronically are imposed on the operator of the ship or aircraft.  This definition makes it clear who the operator of a ship or aircraft is. 

Item 5 - Sections 64AC and 64AD

This item repeals existing sections 64AC and 64AD of the Customs Act which deal with passenger and crew reports (section 64AC) and communication with Customs (section 64AD) and inserts new provisions dealing with passenger reports (new section 64ACA), crew reports (section 64ACB) and communication of reports (section 64ACE).  A separate provision dealing with offences is also inserted (new section 64ACD).

New section 64ACA imposes the general obligation on the operators of ships and aircraft that are due to arrive at a port or airport in Australia from outside Australia to report all passengers who will be on board the ship or aircraft at the time of its arrival at the port or airport.  The reporting requirements imposed on operators vary depending on the type of operator (for example, whether a commercial passenger airline or passenger shipping line or a cargo ship or private plane or yacht).

New subsection 64ACA(2) requires the operators of all commercial passenger airlines and prescribed operators of commercial passenger vessels to report passengers electronically using an approved system.  

This section applies to the operator of a ship if:

•		the ship is on a voyage for transporting people (that is, it is not a cargo ship)
		-	that is provided for a fee payable by those using it; and
		- 	the operator is prescribed in the regulations.

So, the operators of passenger ships (such as cruise ships) must be prescribed in the regulations before the obligation to report electronically will apply.

The obligation is imposed on the operator of an aircraft if:

•		the flight is provided as part of an airline service that is:
	-	provided for a fee payable by the passengers using it;
	-	provided in accordance with fixed schedules to or from fixed terminals over specific routes; and
	-	that is available to the general public on a regular basis.

This definition excludes from the obligation to report electronically the operators of private planes, charter aircraft and cargo aircraft which may incidentally carry a small number of passengers.  These operators retain the option of reporting passengers electronically or by document.

New subsection 64ACA(2) also will involve the CEO approving, in writing, an electronic system for each of these operators.  The instruments of approval of electronic systems are disallowable instruments (new subsection 64ACA(10)).

New subsection 64ACA(3) sets out how reporting is to occur if an approved electronic system is not working.  In such a case, the operators may report either by document or electronically.

New subsection 64ACA(4) sets out the reporting requirements for operators of all other ships and aircraft.  So, this subsection applies to cargo ships and private planes reporting their passengers to Customs.

New subsections 64ACA(5) and (6) set out the time limits in which reports must be made.  These time limits are the same as those in the ITM Act.  

For ships, the report must be given not later than:

•		if the journey from the last port before Australia is likely to take not less than 48 hours - 48 hours;
•		if the journey from the last port before Australia is likely to take less than 48 hours - 24 hours;
before the time stated in the impending arrival report (made under section 64) to be the estimated time of arrival.

For aircraft, the report must be given not later than:

•		if the journey from the last airport before Australia is likely to take not less than 3 hours - 3 hours;
•		if the journey from the last airport before Australia is likely to take less than 3 hours - one hour;
before the time stated in the impending arrival report (made under section 64) to be the estimated time of arrival.

New subsection 64ACA(7) sets out the other requirements for the making of a documentary report.  These requirements are the same as those currently in the Customs Act (and as in the ITM Act).

New subsection 64ACA(8) sets out the other requirements for making an electronic report.  These requirements are the same as those currently in the Customs Act (and as in the ITM Act).

New subsection 64ACA(9) makes it clear that the CEO may approve different forms for documentary reports and different statements for electronic reports in different circumstances, by different kinds of operators of ships or aircraft or in respect of different kinds of ships or aircraft.  So, for example, the CEO may approve a different statement for certain types of cruise ship or for certain types of operators of passenger ships.

Under new subsection 64ACA(11), Customs must provide to the department administered by the Minister who administers the Migration Act 1958 (Migration Act) the information that is reported to Customs under this section (new section 64ACA). 

New subsection 64ACA(12) sets out the purposes for which information is taken to be obtained by Customs under new section 64ACA of the Customs Act and new section 245L of the Migration Act 1958.  It provides that such information is taken to be obtained for the purposes of the administration of the Customs Act 1901, the Migration Act 1958, and any other law of the Commonwealth prescribed by the regulations for the purposes of this subsection.

New section 64ACB sets out the requirements for the making of crew reports.  These provisions are the same as those in the ITM Act.  No substantive changes have been made to these provisions although this provision differs from the counterpart provisions in the ITM Act in that under new subsection 64ACB(8), Customs must provide to the department administered by the Minister who administers the Migration Act 1958 (Migration Act) the information that is reported to Customs under this section (new section 64ACB).

New subsection 64ACC(1) provides that, if the same information is required under new section 64ACA or 64ACB and also under proposed new section 245L of the Migration Act, and the operator of the ship or aircraft concerned has reported the piece of information in relation to the passengers or crew as required by section 245L of the Migration Act then the operator is taken not to be required by section 64ACA or 64ACB of the Customs Act to report the same information in relation to those passengers and crew. 

New subsection 64ACC(2) provides that subsection 64ACC(1) applies only if the report under the Migration Act relates to the arrival of the ship or aircraft at the same port or airport for which the Customs Act requires a report.

The purpose of new section 64ACC is to ensure that where both the Customs Act and the Migration Act oblige the operators of ships and aircraft to provide the same information in relation to crew and passengers, the operators are not required to give the same information on the same passengers and crew under the Customs Act.

New section 64ACD establishes the offences in relation to passenger and crew reports.  New subsection 64ACD(1) makes it an offence for an operator to intentionally contravene new section 64ACA (requirement to report passengers) or to intentionally contravene new section 64ACB (requirement to give a crew report).   So, if an operator is required to report passengers electronically, intentionally failing to do so will be an offence.  Previously, these offences were contained in the reporting provisions themselves rather than in a stand alone section.  The maximum penalty of 120 penalty units is the same as that provided for in the ITM Act.

As with the ITM Act, there are strict liability offences as well as intentional offences.  Subsection 64ACD(2) makes it an offence for an operator to contravene new section 64ACA (requirement to report passengers) or to contravene new section 64ACB (requirement to give a crew report).  Subsection 64ACD(3) makes it clear that offences against subsection 64ACD(2) are strict liability offences.  As with the ITM Act, the maximum penalties for strict liability offences are only 60 penalty units.

New section 64ACE sets out how the various reports made under Subdivision A of Division 3 of the Customs Act (including passenger reports and crew reports) are to be communicated to Customs.  These provisions are currently set out in section 64AD (which is repealed by this Act).  This amendment is a technical consequential amendment to include cross-references to the new reporting provisions to be inserted by this Act.   The substance of current section 64AD as amended by the ITM Act is not being changed. 

Item 6	Saving — regulations

This is a technical amendment which preserves the operation of regulations made under existing section 64AD of the Customs Act which provides for the communication of reports to Customs.  Section 64AD is being repealed by this Schedule (and replaced by new section 64ACE).  This amendment is to ensure that the regulations prescribing the manner of communication for other reports (such as impending arrival reports or documentary reports of cargo) which are not being amended by this Schedule continue to have effect as if they had been made under new section 64ACE.

Items 7 and 8

These items contain technical amendments to section 64AE as result of the insertion of new reporting requirements.

Migration Act 1958

Item 9

After Division 12A of Part 2

This item inserts new Division 12B into the Migration Act.

New Division 12B introduces a reporting scheme that requires operators of aircraft and ships, to which the Division applies, to report on all passengers and crew who will be on board their aircraft or ship at the time of its arrival in Australia.

Division 12B		Reporting on passengers and crew of aircraft and ships 	
	
Section 245I		Definitions
 		
New section 245I inserts a number of definitions for the purposes of new Division 12B.

Approved fall-back reporting system is defined to mean a system approved under new section 245K.

Approved primary reporting system is defined to mean a system approved under new section 245J.

Approved primary reporting system for crew is defined to mean, for an aircraft or ship of a kind to which this Division applies, the system approved under new section 245J for reporting on crew on an aircraft or ship of that kind.

Approved primary reporting system for passengers is defined to mean, for an aircraft or ship of a kind to which this Division applies, the system approved under new section 245J for reporting on passengers on an aircraft or ship of that kind.

Arrival is defined to mean:

•	in relation to an aircraft – the aircraft coming to a stop after landing; or
•	in relation to a ship – the securing of the ship for the loading or unloading of passengers, cargo or ship’s stores.

Kind of aircraft or ship to which this Division applies is defined to mean a kind of aircraft or ship specified in the Migration Regulations 1994 (“the Migration Regulations”) as a kind of aircraft or ship to which new Division 12B applies.  

The note to this definition refers to new subsection 245I(2).  New subsection 245I(2) defines kind for the purposes of new Division 12B (and or regulations and approvals made for the purposes of provisions of new Division 12B) to mean a kind of aircraft or ship that may be identified by reference to matters including all or any of the following:

•	the type, size or capacity of the aircraft or ship;
•	the kind of operation or service the aircraft or ship is engaged in on the flight or voyage to Australia; 
•	other circumstances related to the aircraft or ship or its use, or related to the operator of the ship or aircraft.

Operator of an aircraft or ship for a particular flight or voyage is defined to mean:

•	the airline or shipping line responsible for the operation of the aircraft or ship for the flight or voyage; or
•	if there is no such airline or shipping line, or no such airline or shipping line that is represented by a person in Australia – the pilot of the aircraft or the master of the ship.

Section 245J		Approval of primary reporting system	

New section 245J requires the Secretary to approve primary reporting systems for the purposes of reporting under new Division 12B on passengers and crew on board aircraft or ships.

Under new subsection 245J(1) the Secretary must approve, in writing, a system for each kind of aircraft or ship to which new Division 12B applies.  This system may be an electronic system or a system requiring reports to be provided in documentary form.

A kind of aircraft or ship to which new Division 12B applies will be specified in the Migration Regulations.  Under new subsection 245I(2), a kind of aircraft or ship may be identified by reference to matters including all or any of the following:

•	the type, size or capacity of the aircraft or ship;
•	the kind of operation or service that the aircraft or ship is engaged in on the flight or voyage to Australia;
•	other circumstances related to the aircraft or ship or its use, or related to the operator of the aircraft or ship.

This means that there may be more than one primary reporting system approved by the Secretary under new subsection 245J(1).

Note 1 to new subsection 245J(1) makes it clear that the approval by the Secretary of a primary reporting system can be varied or revoked under subsection 33(3) of the Acts Interpretation Act 1901.

Under subsection 33(3) of the Acts Interpretation Act 1901, a power to make, grant or issue any instrument is to be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke or amend, or vary any such instrument.  This is the case unless a contrary intention appears in the Act that confers the power.

Note 2 to new subsection 245J(1) highlights that it is likely that documentary systems will be phased out and all approved primary reporting systems will be electronic systems.

New subsection 245J(2) provides that when approving a primary reporting system under new subsection 245J(1), the Secretary may, for a kind of aircraft or ship:

•	approve a single system for reporting on both passengers and crew; or
•	approve one system for reporting on passengers, and another system for reporting on crew.

In effect, this means that there may also be more than one primary reporting system for a kind of aircraft or ship to which new Division 12B applies.   That is, one primary reporting system for the purposes of reporting passengers on that kind of aircraft or ship and another primary reporting system for the purposes of reporting crew on that kind of aircraft or ship.

New subsection 245J(3) requires the instrument of approval of a system for reporting on passengers or crew to specify the information about passengers or crew that is to be reported by that system.

The kind of information that is likely to be specified in the instrument of approval is, for example, the names and date of birth of passengers or crew, their passport number and citizenship.

New subsection 245J(4) classifies an instrument of approval made under new section 245J, or a variation or revocation of such an instrument, as a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Section 245K			Approval of fall-back reporting system

New section 245K requires the Secretary to approve fall-back reporting systems for the purposes of reporting under new Division 12B on passengers and crew on board aircraft or ships.

Under new subsection 245K(1), the Secretary must, in writing, approve one or more fall-back reporting systems.  A fall-back reporting system may be an electronic system or a system requiring reports to be provided in documentary form.

The note to new subsection 245K(1) provides that the Secretary’s approval of a fall-back reporting system can be varied or revoked under subsection 33(3) of the Acts Interpretation Act 1901.

New subsection 245K(2) requires the instrument of approval of a fall-back reporting system to specify the information about passengers or crew that is to be reported by that system.

The kind of information that is likely to be specified in the instrument of approval is, for example, the names and date of birth of passengers or crew, their passport number and citizenship.

New subsection 245K(3) classifies an instrument of approval made under new section 245K, or a variation or revocation of such an instrument, as a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Section 245L		Obligation to report on passengers and crew

New section 245L establishes a reporting scheme for operators of aircraft or ship obliged to report on passengers and crew who will be on board their aircraft or ship at the time of its arrival in Australia.

Aircraft and ships to which section applies

New subsection 245L(1) provides that new section 245L applies to an aircraft or ship of a kind to which new Division 12B applies that is due to arrive at an airport or port in Australia from a place outside Australia.

Broadly speaking, new subsection 245I(1) provides that a “kind of aircraft or ship to which this Division applies” is one specified in the Migration Regulations as a kind of aircraft or ship to which new Division 12B applies.

Obligation to report on passengers and crew

New subsection 245L(2) imposes an obligation on the operator of an aircraft or ship to which new Division 12B applies to:

•	report to the Department, using the approved primary reporting system for passengers, on the passengers who will be on board the aircraft or ship at the time of its arrival at the airport or port; and
•	report to the Department, using the approved primary reporting system for crew, on the crew who will be on board the aircraft or ship at the time of its arrival at the airport or port.

“The Department” is not a defined term in the Act.  However, the Department to which the report must be made can be worked out with reference to section 19A of the Acts Interpretation Act 1901. 

Note 1 to new subsection 245L(2) makes it clear that the obligation:

•	in new subsection 245L(2) on operators to report to the Department; and 
•	in new subsection 245L(6) on the Department to provide the information to the Australian Customs Service;

must be complied with even if the information concerned is personal information (as defined in the Privacy Act 1988).

Note 2 to new subsection 245L(2) refers to new section 245N, which makes it an offence for an operator to fail to comply with this obligation to report on passengers and crew.

New subsection 245L(3) provides that a report on passengers and crew under new subsection 245L(2) must include certain information relating to those passengers and crew who will be on board the aircraft or ship at the time of its arrival in Australia.  This information is that which is specified in the instrument of approval in relation to the relevant approved primary reporting system.

New subsections 245L(4) and 245L(5) set out the deadlines for operators of aircraft or ships to report on passengers and crew who will be on board their aircraft or ship at the time of its arrival at the airport or port in Australia.

Under new subsection 245L(4), a report on passengers or crew on an aircraft must be given not later than:

•	if the flight from the last airport outside Australia is likely to take not less than 3 hours – 3 hours before the aircraft’s likely time of arrival at the airport in Australia; or
•	if the flight to Australia from the last airport outside Australia is likely to take less than 3 hours – one hour before the aircraft’s likely time of arrival at the airport in Australia.

Under new subsection 245L(5), a report on passengers or crew on a ship must be given not later than:

•	if the journey from the last port outside Australia is likely to take not less than 48 hours – 48 hours before the ship’s likely time of arrival at the port in Australia; or 
•	if the journey from last port outside Australia is likely to take less than 48 hours – 24 hours before the ship’s likely time of arrival at the port in Australia.

New subsection 245L(6) requires the Department to provide, as soon as practicable, the information in a report under new section 245L, to the Australian Customs Service.  

New subsection 245L(7) sets out the purposes for which information is taken to be obtained by the Department under new section 245L and subsection 64ACA(11) or 64ACB(8) of the Customs Act 1901.  It provides that such information is taken to be obtained for the purposes of the administration of the Migration Act 1958, the Customs Act 1901, and any other law of the Commonwealth prescribed by the regulations for the purposes of this subsection.

Section 245M	Approved fall-back reporting system may be used in certain circumstances

New section 245M allows an approved fall-back reporting system to be used in certain circumstances to report on passengers and crew on board aircraft and ships.

New subsection 245M(1) provides that an approved fall-back reporting system may be used if the approved primary reporting system for reporting on passengers or crew on an aircraft or ship is an electronic system and, either:

•	the operator of the aircraft or ship cannot report on some or all of the passengers or crew (the relevant passengers or crew) using the approved primary reporting system because the system is not working; or
•	the Secretary permits the operator of the aircraft or ship to report on some or all of the passenger or crew (the relevant passenger or crew) using an approved fall-back reporting system.

New subsection 245M(2) makes it clear that the reporting scheme set out in new section 245L applies in relation to the relevant passengers or crew to be reported using the approved fall-back reporting system.   It provides that new section 245L applies as if:

•	the reference in new paragraph 245L(2)(a) or (b) to the approved primary reporting system for passengers, or the approved primary reporting system for crew, were instead a reference to an approved fall-back reporting system; and
•	the reference in subsection 245L(3) to the information that is specified as mentioned in subsection 245J(3), in relation to the relevant approved primary reporting system were instead a reference to the information that is specified, as mentioned in subsection 245K(2), in relation to the approved fall-back reporting system that the operator uses in relation to the relevant passengers or crew.

Section 245N		Offence for failure to comply with reporting obligations

New section 245N makes it an offence for an operator of an aircraft or ship to fail to report, using the relevant approved primary reporting system, on passengers or crew on board their aircraft or ship before its arrival in Australia.

Under new subsection 245N(1), an operator of an aircraft or ship who intentionally contravenes new subsection 245L(2) commits an offence punishable, on conviction, by a penalty not exceeding 120 penalty units.

Under new subsection 245N(2), an operator of an aircraft or ship who contravenes subsection 245L(2) commits an offence punishable, on conviction, by a penalty not exceeding 60 penalty units.

New subsection 245N(3) makes it clear that the offence in new subsection 245N(2) is an offence of strict liability.

The note to new subsection 245N(3) refers to section 6.1 of the Criminal Code.  Section 6.1 of the Criminal Code Act 1995 provides that an offence of strict liability is an offence where there are no fault elements for any of the physical elements of the offence and the defence of mistake of fact is available.
Part 2 ‑ Related amendments

Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001

Items 10 to 13

These items are technical amendments which repeal items of the ITM Act which are being introduced by this Act (and therefore do not need to be repeated in the ITM Act).

Item 14 - Item 122 of Schedule 3

This item repeals item 122 of Schedule 3 to the ITM Act which would have inserted new sections 64AC, 64ACA and 64AD into the Customs Act.  These new sections as contained in the ITM Act are no longer necessary because of the amendments that are going to be made to the Customs Act by this Act.

This item also inserts new items 122 and 122A in Schedule 3 of the ITM Act.  Items 122 and 122A make consequential amendments to section 64ACE (communication of reports) which is being introduced in the Customs Act by this Act.  This is because the ITM Act will introduce new reporting sections into the Customs Act that are not referred to in section 64ACE as contained in this Act (for example, new section 64AAA as contained in the ITM Act will require the operators of ships and aircraft to report stores and prohibited goods).

Item 15 - Items 124 and 125 of Schedule 3

This is a consequential amendment required because the amendments made by this Act are bringing forward certain amendments which were to be made to the Customs Act by the ITM Act.

Section 64AE imposes obligations on the master and owner of a ship or aircraft who are required to provide certain reports to Customs (such as impending arrival report, the arrival report, the cargo report etc) to answer questions and produce documents when asked or required by a Collector.  Those reports are listed by reference to the section number that they are contained in. Since this Act makes consequential amendments to section 64AE, the amendments that have to be made by the ITM Act are now different.

Evidence Act 1995

Items 16 and 17

These items contain consequential amendments to the definition of Commonwealth document in the Dictionary at the end of the Evidence Act 1995 as a result of the amendments being made by this Act.

Part 1 of that Dictionary defines ‘Commonwealth document’ to include (amongst other things) a report of the crew and passengers on a ship or aircraft that has been communicated to the Australian Customs Service under section 64AC of the Customs Act.  Under the amendment contained in this Act crew and passenger reports will no longer be required under section 64AC of the Customs Act.  Passengers will be required to be reported under section 64ACA and crew under section 64ACB.  The amendments to the definition reflect these changes.

Item 18

This item inserts a new definition of a “Commonwealth document”.  It provides that a report relating to the passengers or crew on an aircraft of ship that has been communicated to the Department administered by the Minister who administers the Migration Act 1958 under Division 12B of Part 2 of that Act is a “Commonwealth document” for the purposes of the Evidence Act 1995.

SCHEDULE 7 - ACCESS TO AIRLINE PASSENGER INFORMATION

Customs Act 1901

Item 1	After section 64AE

All airlines maintain computer reservation systems detailing their passenger’s flight bookings and other information (including information on how the passenger has paid for the ticket and where the ticket was booked).  Access to this information would assist Customs to identify persons who may be involved in the importing or exporting of prohibited goods or who may otherwise be involved in offences against Commonwealth law (including terrorist activities).

The requirement to provide access will apply to airlines operating scheduled passenger flights into and out of Australia.

The access will be preferably be provided on a ‘read only’ basis.  That is, Customs officers will not be able to remove, add to or vary any of the information contained on an airline’s computerised reservation systems.

New subsection 64AF(7) defines a number of terms for the purposes of new section 64AF.  The requirement to permit Customs access to the passenger information (as defined) applies to the operators of commercial airlines who fly into and out of Australia.  In this section these airlines are called operators of ‘international passenger air services’.  An international passenger air service is defined as a service which provides air transportation of people:

(a)	by means of Australian international flights (whether or not the operator also operates domestic flights or other international flights); and
(b)	for a fee payable by people using this service; and
(c)	in accordance with fixed schedules to and from fixed terminals over specific routes; and
(d)	that is available to the general public on a regular basis.

This definition limits who may be requested to provide access so that charter aircraft operators or private aircraft are not covered by the obligation nor operators of air cargo services (which may also incidentally carry a small number of passengers).

Operators must provide access to the operator’s ‘passenger information’ which it keeps electronically.  This term is defined in subsection 64AF(7) as any information the operator of the service keeps electronically about its flights and passengers including for example, payments, passenger details (such as name, gender and nationality), number of passengers, check-in details, seat allocation, baggage and passenger itineraries.

The CEO may request an operator to allow authorised officers ongoing access to the operator’s passenger information in a particular manner and form.  For example, the CEO may request access from certain locations.  Ongoing access will be provided by a computer link between Customs and the operator’s system.  Customs will be responsible for any costs incurred in establishing this link.  New subsection 64AF(1) makes it an offence for an operator to refuse to provide access in that manner and form.

The term ‘authorised officer’ is defined in subsection 4(1) and means, in relation to a section of the Customs Act, an officer authorised in writing by the CEO to exercise the powers of perform the functions of an authorised officer under that section.  So, the CEO must authorise specific officers of Customs for the purposes of new subsection 64AF(1) in order for those officers to be able to access an operator’s passenger information.

The maximum penalty for an offence against new subsection 64AF(1) is 50 penalty units.

The second note to subsection 64AF(1) makes it clear that an operator must comply with the CEO’s request even if the passenger information is personal information (as defined in the Privacy Act 1988).  The Australian Customs Service is obliged to handle personal information in accordance with the Privacy Act.  In addition, section 16 of the Customs Administration Act 1985 imposes further limitations on the disclosure of personal information by officers of Customs.

New subsection 64AF(3) creates a defence for an operator where the operator has failed to provide access to the operator’s passenger information as required by subsection 64AF(1).  An operator does not commit an offence, if at the time the operator fails to provide access to an authorised officer, the operator does not itself have access to the system.  Such situations would include where the operator’s computer system is not working or there is a general power failure.

Subsection 64AF(4) requires an operator to provide an authorised officer (to whom access must be granted) with all reasonable facilities and assistance necessary to obtain information and understand the information.  Subsection 64AF(4) makes it an offence not to provide the facilities and assistance.  This provision is to ensure that an operator is required to provide authorised officers with the necessary passwords and operating manuals which explain how the operator’s system works and where an operator uses particular codes or abbreviations, that these can be understood by the officer.  The maximum penalty for an offence against subsection 64AF(4) is 50 penalty units.

Subsection 64AF(5) makes it a defence where an operator fails to provide the reasonable assistance and necessary facilities if the operator has a reasonable excuse.

Subsection 64AF(6) places limits on the purposes for which an authorised officer may access an operator’s passenger information.  An authorised officer may only access passenger information for the purpose of performing his or her function in accordance with the Customs Act or a law of the Commonwealth which is prescribed in the regulations.  Examples of the laws of the Commonwealth which may be prescribed are the Migration Act 1958 and the Financial Transactions Reports Act 1988.

SCHEDULE 8 – VESSEL MONITORING SYSTEMS

Fisheries Management Act 1991

Item 1 – After section 167A

This item inserts a new section in the Fisheries Management Act to make it clear that the Australian Fisheries Management Authority (AFMA) may disclose vessel monitoring system (VMS) information to Customs to assist Customs perform its civil surveillance functions.

VMS is a system that enables AFMA, through a transponder fitted to a fishing boat, to monitor the position and movement of a boat at any time.  AFMA requires that the holders of fishing concessions in a number of fisheries have a VMS transponder fitted to their fishing boats.  AFMA requires the fitting of the transponder by making it a condition on the grant of the fishing licences and permits.  Given the circumstances in which the transponders are fitted, the amendment seeks to remove any doubt as to the capacity of AFMA to provide the information obtained from VMS transponders to Customs.

One of the principal roles of the Australian Customs Service (Customs) is to facilitate trade and the movement of people across the Australian border while protecting the community and maintaining appropriate compliance.  As part of this role, Customs is tasked by the Government with providing a civil maritime surveillance and response service to a range of government agencies. 

Customs access to the VMS data collected by AFMA will enable it to better manage its surveillance activities.  With access to the data, Customs will have the ability to identify known vessels from potential illegal vessels and thereby concentrate surveillance activities on unidentified targets.  Surveillance aircraft would thus not be required to close on VMS reporting vessels in order to achieve positive identification.

The Joint Committee of Public Accounts and Audit has recommended that Commonwealth legislation be amended to ensure that VMS data is provided to Customs  (Recommendation No, 5, Report No. 384, Review of Coastwatch).

Proposed new section 167B will apply to any information relating to a boat which AFMA has obtained from a vessel monitoring system.  The term ‘vessel monitoring system’ is defined in subsection 167B(4).

Under this section, AFMA may give Customs any information obtained from a vessel monitoring system if AFMA, having regard to advice from Customs, considers that it would assist Customs to perform its civil surveillance functions.  In so doing, AFMA must have regard to the relevance of the information to these functions (proposed new subsection 167B(2) refers).

New subsection 167B(3) makes it clear that this provision does not limit any other powers that AFMA may have to provide information to Customs.  So, for example, where AFMA has information about possible illegal fishing vessels operating in Australian waters, it may pass this information on to Customs.

New subsection 167B(4) defines “vessel monitoring system” for the purposes of the section.  It means a system in which boats are fitted with an electronic device that can give information about the boats’ course, or position, or other such information.

SCHEDULE 9 - OFFICERS OF CUSTOMS

Customs Act 1901

Item 1 - Subsection 4(1) (after paragraph (b) of the definition of Officer of Customs) 

This item inserts a new paragraph into the definition of ‘Officer of Customs’ in subsection 4(1) of the Customs Act to ensure that the Chief Executive Officer of Customs (the CEO) can authorise persons by reference to their office or position and that power to authorise extends to those offices and positions that do not exist at the time that the authorisation is made.  The amendment also makes it clear that the office or position does not have to be in or for the Commonwealth.  This will allow the CEO to authorise a class of persons to be Customs officers and if new positions or offices become part of that class the CEO will not need to remake the authorisation.

The term ‘Officer of Customs’ is defined to mean a person employed in the Customs or a person authorised in writing by the Chief Executive Officer of Customs under the Customs Act to perform all of the functions of an Officer of Customs.

Item 2 - Subsection 4(1) (paragraphs (c) and (d) of the definition of Officer of Customs)

Paragraphs (c) and (d) of the definition of Officer of Customs make it clear that the CEO can authorise a person to perform the functions or exercise the powers of an officer of Customs under a certain provision of a Customs Act.  That is, there may be circumstances where a person will be performing certain functions or exercising the powers of an officer of Customs under a provision of a Customs Act but not all of the functions or powers of an officer.  Paragraphs (c) and (d) make it clear that the CEO can make a limited authorisation in respect of the relevant provisions.

This item amends paragraphs (c) and (d) of the definition of Officer of Customs to ensure that if the CEO authorises a person in respect of a specific provision of a Customs Act that he can do so by reference to the person’s office or position even if that office or position does not exist at the time of the authorisation.

Item 3 - Saving - existing authorisations remain in effect

This item ensures that any authorisations made under paragraphs 4(1)(c) and (d) before the commencement of these provisions continue to operate as if they were made under new subparagraphs 4(1)(c)(i) and 4(1)(d)(i) respectively.

SCHEDULE 10 – THE ISSUE AND USE OF FIREARMS AND PERSONAL DEFENCE EQUIPMENT

Customs Act 1901

Item 1 – Subsection 189A(1)

This item repeals and substitutes subsection 189A(1) of the Customs Act.

Subsection 189A(1) of the Customs Act presently enables the commander of a Customs vessel, subject to any directions from the CEO, to issue approved firearms and other approved items of personal defence equipment to Customs officers under his or her command.  A firearm can be issued for the purpose of enabling its use by such officers to board either a foreign or Australian ship that has been chased in accordance with the Customs Act.  A firearm or item of personal defence equipment can be issued to enable the safe exercise, by such officers, of powers conferred on them under the Customs Act including powers related to the suspected or attempted commission of an offence against another Act.

In addition to section 189A, the CEO of Customs may direct a Customs officer to carry firearms in accordance with regulation 194 of the Customs Regulations 1926.  The CEO has directed Customs officers to carry firearms when undertaking patrols in remote areas of Australia where they may be called upon to exercise powers under a number of Acts including the Quarantine Act 1908.  Such directions are limited so that the officers can use the firearms only for defence against dangerous animals and for survival purposes.

Personal defence equipment can be issued to officers of Customs only in the circumstances described in section 189A of the Customs Act.  There are circumstances in addition to those described in section 189A where it is considered appropriate for officers to have access to personal defence equipment.  

The purpose of the amendments is to tighten the various provisions and accommodate the various circumstances where the CEO considers it appropriate for an officer to be issued with personal defence equipment and firearms.

It is therefore proposed to amend subsection 189A(1) so that firearms and personal defence equipment can be issued to Customs officers to enable the safe exercise of powers conferred on them under the Customs Act and any other Act.  It is proposed that firearms will continue to be issued to enable the boarding of either a foreign or Australian ship that has been chased in accordance with the Customs Act. 

It is also proposed to amend subsection 189A(1) to remove the restriction that the commander of a Customs vessel issues the approved firearms and other approved items of personal defence equipment to officers under his or her command.  New subsection 189A (1) will enable an authorised arms issuing officer to issue approved firearms and approved items of personal defence equipment to Customs officers authorised to carry arms.  Both the arms issuing officer and the arms carrying officer must be authorised by the CEO to carry out these respective functions.

Item 2 – Subsection 189A(5)

This item inserts a new definition of authorised arms issuing officer into section 189A for the purposes of new subsection 189A(1).  The arms issuing officer is defined as an officer of Customs authorised, in writing, by the CEO of Customs to exercise the powers or perform the functions of an authorised arms issuing officer under section 189A.

Item 3 – Subsection 189A(5) (definition of Customs vessel)

This item repeals the current definition of Customs vessel in subsection 189A(5).  This definition is relevant only for the purposes of current subsection 189A(1) and is not required for the new subsection.

Item 4 – Subsection 189A(5)

This item inserts a new definition of officer authorised to carry arms into section 189A for the purposes of new subsection 189A(1).  This officer is defined as an officer of Customs who is authorised in writing, by the CEO of Customs, to use approved firearms and approved items of personal defence equipment issued by the authorised arms issuing officer for either of the purposes specified in subparagraphs (1)(a)(i) and (ii) of section 189A.

SCHEDULE 11 – POWERS OF ARREST

Customs Act 1901

Item 1 – Subsection 210(1A)

This item amends subsection 210(1A) of the Customs Act by omitting the words “the offence of assaulting an officer in the execution of his duties” and substituting “an offence against section 147.1, 147.2 or 149.1 of the Criminal Code in relation to a Customs officer”.

Subsection 210(1A) of the Customs Act authorises a Customs officer or police officer to arrest a person where the officer has reasonable grounds for believing that a person has committed the offence of assaulting an officer in the course of the execution of his duties.  The reference to the offence of assaulting a Customs officer was a reference to paragraph 232A(b) of the Customs Act, which made it an offence to assault, resist, molest, obstruct or intimidate a Customs officer.  

Amendments to the Customs Act made by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 mean that paragraph 232A(b) will no longer prohibit the conduct of assaulting a Customs officer.  This conduct will instead be prohibited by sections 147.1, 147.2 and 149.1 of the Criminal Code 1995.  These sections relate to offences of doing harm to a public official, threatening to do harm to a public official and obstructing, hindering, intimidating or resisting a public official respectively.  

The amendment to paragraph 232A(b) has had the unintended effect that Customs officers and police officers no longer have the power under subsection 210(1A) to arrest persons who are assaulting, resisting, molesting, obstructing or intimidating a Customs officer.  

In order to restore Customs officers' and police officers’ power of arrest in these circumstances, it is proposed to amend subsection 210(1A) of the Customs Act to permit the power of arrest to be exercised when a person commits an offence against section 147.1 or 147.2 or 149.1 of the Criminal Code in relation to a Customs officer.

SCHEDULE 12 – COMMONWEALTH AGENCIES

Customs Administration Act 1985

Item 1 – Subsection 16(1A) – (definition of Commonwealth agency)

This item repeals and substitutes the definition of Commonwealth agency in subsection 16(1A) of the Customs Administration Act.

Section 16 of the Customs Administration Act governs the recording and disclosure of protected information by Customs officers and people working in and for Customs.  It enables the disclosure of protected information to a number of entities such as Commonwealth agencies, State agencies, foreign countries or agencies or instrumentalities of a foreign country and international organisations.  Both Commonwealth agency and State agency are defined as meaning any instrumentality or agency of the Crown.

The Australian Bureau of Criminal Intelligence ("ABCI") is an unincorporated organisation established by inter-governmental agreement between the Commonwealth, the States and the Northern Territory.  Whether an entity is "an agency or instrumentality of the Crown" depends upon the nature and degree of control exercised over it by the Crown.  As all jurisdictions are represented on the Management Committee of the ABCI, it may be considered to be controlled by the Crown in each of its emanations.

While it is possible that the ABCI is both a Commonwealth agency and a State agency for the purposes of section 16, it is proposed to put the matter beyond doubt.  

It is therefore proposed to amend the present definition of Commonwealth agency in subsection 16(1A) of the Customs Administration Act to provide that a Commonwealth agency also includes the ABCI.

SCHEDULE 13 - UNDECLARED DUTIABLE GOODS IN UNACCOMPANIED BAGGAGE

Customs Act 1901

Item 1 - Subsection 209(1)

This item amends subsection 209(1) of the Customs Act to insert a reference to new paragraph 229(1)(qa) that is going to be inserted into the Act by item 2 (see below).

Section 209 of the Customs Act allows an officer of Customs to impound certain goods instead of seizing them.  The power to impound can only be exercised in respect of dutiable goods that are forfeited by virtue of paragraph 229(1)(a), (g), (o), (p) or (q) (these paragraphs cover goods on which duty has been sought to be evaded), except if they are prohibited imports or if the amount of duty sought to be evaded exceeds $5,000.

If the owner of the goods pays the amount of duty owing plus a penalty within 21 days after receiving a notice about the impoundment, the goods will be released to the owner and they will no longer be forfeited.

Item 2 will insert into subsection 229(1) a new class of goods that will be forfeited to the Crown being dutiable goods found in the unaccompanied personal or household effects of a person, where the person has denied having such goods.

This amendment to section 209 will allow a Customs officer to impound those undeclared goods instead of seizing them.  This will ensure that this class of forfeited goods is treated the same as other similar forfeited goods.

Item 2 - After paragraph 229(1)(q)

This item inserts a new class of goods into subsection 229(1) of the Customs Act.  Subsection 229(1) sets out those goods which shall be forfeited to the Crown.

Paragraph 229(1)(q) currently covers “all dutiable goods found in the possession or in the baggage of any person who has got out of, landed from or gone on board any ship boat or aircraft and who has denied that he has any dutiable goods in his possession, or who when questioned by an officer has not fully disclosed that such goods are in his possession or baggage”.

It is possible for passengers to send some or all of their baggage to Australia at a different time to when they travel to Australia.  These goods are referred to as ‘unaccompanied personal or household effects’.  Currently if a person denies that they have dutiable goods in those effects or does not fully disclose that they have dutiable goods in their unaccompanied effects when questioned by an officer, those goods are not forfeited.

New paragraph 229(1)(qa) as contained in this item will ensure that undeclared dutiable goods found in a person’s unaccompanied personal or household effects shall be forfeited to the Crown.  This will ensure that accompanied and unaccompanied goods are treated consistently.