House of Representatives

Customs and Other Legislation Amendment (Australian Border Force) Bill 2015

Explanatory Memorandum

(Circulated by authority of the Minister for Immigration and Border Protection, the Honourable Peter Dutton MP)

Schedule 2 - Repeal of Customs Administration Act

Part 1 - Repeals

Customs Administration Act 1985

Item 1 - The whole of the Act

254. This item repeals the Customs Administration Act.

255. The Customs Administration Act established the ACBPS as a Statutory Agency and the statutory office of CEO. The Customs Administration Act also contains provisions connected therewith, including the appointment, tenure, remuneration and allowances of the CEO.

256. On and from 1 July 2015, as the functions of the ACBPS are to be moved to the integrated Department and the office of the CEO is no longer required, these provisions will no longer be required. Instead, the ABF will be established within the Department as a single frontline operational border control and enforcement entity, and the office of the ABF Commissioner will be established. The ABF Act will provide the legislative framework for the ABF, and will largely replicate the secrecy, employment and integrity provisions contained in the Customs Administration Act for the integrated Department.

257. The repeal of the Customs Administration Act will effect the abolition of the ACBPS and the statutory office of the CEO.

Part 2 - Consequential amendments

258. This Part makes a number of consequential amendments to the Commerce (Trade Description) Act 1905 (Trade Descriptions Act), the Horticulture Marketing and Research and Development Services Act 2000 (HMRDS Act) and the Quarantine Act 1908 (Quarantine Act) following the repeal of the Customs Administration Act.

Commerce (Trade Descriptions) Act 1905

Items 2 and 3 - Subsection 5(4); and paragraph 5(4)(c)

259. Subsection 5(4) of the Trade Descriptions Act currently allows the CEO to give directions in writing under subsection 4(4) of the Customs Administration Act concerning:

·
the circumstances in which powers under section 5 of the Trade Descriptions Act (relating to the inspection of imports and exports) may be exercised; and
·
the officers of Customs who are entitled to exercise those powers; and
·
the manner and frequency of reporting to the CEO concerning the exercise of those powers.

260. Following the repeal of the Customs Administration Act, these items amend subsection 5(4) and paragraph 5(4)(c) of the Trade Descriptions Act to:

·
omit references to the "Customs Administration Act";
·
substitute references to "CEO" with "Comptroller-General of Customs"; and
·
allow the Comptroller-General of Customs to give directions, in writing, under subsection 5(4) of the Trade Descriptions Act, concerning matters listed in that subsection.

Horticulture Marketing and Research and Development Services Act 2000

Items 4 to 6 - Section 26A; and section 26A (note)

261. Section 26A of the HMRDS Act provides that Horticulture Australia Limited, in its capacity as the industry export control body, is taken to be a Commonwealth agency for the purposes of section 16 of the Customs Administration Act. Section 16 of the Customs Administration Act allows Customs to disclose information to Commonwealth agencies in certain circumstances.

262. Following the repeal of the Customs Administration Act, Part 6 of the ABF Act will deal with secrecy and disclosure of protected information by the integrated Department. The provisions in Part 6 of the ABF Act are similar to those previously provided in section 16 of the Customs Administration Act.

263. As a result, items 4 to 6 amend section 26A of the HMRDS Act to:

·
substitute a redundant reference to "Horticulture Australia Limited" with "Horticulture Innovation Australia Limited"; and
·
provide that Horticulture Innovation Australia Limited, in its capacity as the industry export control body, is taken to be an authority of the Commonwealth for the purposes of Part 6 of the ABF Act (noting that Part 6 of the Act allows certain persons to disclose information to authorities of the Commonwealth in certain circumstances).

Quarantine Act 1908

Item 7 - Subsection 16AC(6)

264. Section 16AC of the Quarantine Act requires a person, or an agent of a person, to give notice of an importation, or proposed importation, of goods into Australia, the Cocos Islands or Christmas Island.

265. Subsection 16AC(6) provides that, if a notice under section 16AC:

·
is given to an officer of Customs; or
·
is given by the lodging of an entry under the Customs Act as mentioned in paragraph (5)(b); or
·
is taken to be given by the doing of something specified in the regulations under subsection (5A);

a person to whom section 16 of the Customs Administration Act applies may, despite that section, give the notice, particulars of the entry, or particulars of the thing the doing of which is taken to constitute the giving of the notice, as the case may be, to a quarantine officer.

266. In practice, this provision allows Customs to share information with quarantine officers regarding the importation of goods into Australia, the Cocos Islands or Christmas Island.

267. Following the repeal of the Customs Administration Act, Part 6 of the ABF Act will deal with secrecy and disclosure of protected information. The provisions in Part 6 of the ABF Act are similar to those previously provided in section 16 of the Customs Administration Act.

268. Item 7 updates the terminology in subsection 16AC(6) to be consistent with the secrecy and disclosure provisions in the ABF Act. This provision will now provide that an entrusted person (within the meaning of the Act) may, despite Part 6 of the ABF, give the notice, particulars of the entry, or particulars of the thing the doing of which is taken to constitute the giving of the notice, as the case may be, to a quarantine officer.

Part 3 - Savings provisions

Item 8 - Savings provisions

Reporting of serious misconduct

269. Subitem 8(1) provides that despite the repeal of the Customs Administration Act made by this Schedule, subsections 4C(2) and (3) of that Act, as in force immediately before the commencement of this item, continue to apply on and after that commencement in relation to information given, an answer given or a document produced before that commencement.

270. Subsection 4C(1) provides that where a Customs worker is required under a CEO's Order referred to in subsection 4B(2) to give information, produce a document or answer a question, the Customs worker is not excused from doing so on the ground that it may tend to incriminate or expose the Customs worker to a penalty. The CEO's Orders under subsection 4B(2) aim to expose serious misconduct, corrupt conduct and criminal activity where it affects, or is likely to affect, the operations and responsibilities of the ACBPS.

271. Under subsections 4C(2) and (3), if a Customs worker has been required to give information, produce a document or answer a question under a CEO's Order referred to in subsection 4B(2) (relating to serious misconduct, corrupt conduct and criminal activity etc) then, subject to section 16G, the information given, the answer or the document produced is not admissible in evidence against the Customs worker in any proceedings.

272. Under section 16G a certificate or other document recording the results of an alcohol or drug test conducted under section 16B, 16C or 16D, or other information, answer to a question or document relevant to conducting such a test can be admitted in evidence against the Customs worker, but only in relation to:

·
proceedings in relation to a decision of the CEO to terminate the employment or engagement of the Customs worker;
·
proceedings under the Safety, Rehabilitation and Compensation Act 1988 (Safety, Rehabilitation and Compensation Act); or
·
proceedings in tort against the Commonwealth that are instituted by the Customs worker.

273. In addition, subitem 8(5) provides that despite the repeal of the Customs Administration Act made by this Schedule, section 16G of that Act, as in force immediately before the commencement of this item, continues to apply on and after that commencement in relation to the following:

·
a certificate or other document recording the results of a test conducted under section 16B, 16C or 16D of that Act;
·
any other information, answer to a question or document relevant to conducting such a test.

274. For the purposes of section 16G of that Act continuing to so apply:

·
the Customs worker concerned is taken to continue to be a Customs worker on and after that commencement; and
·
a reference in paragraph 16G(c) of that Act to the CEO is taken to include a reference to the Secretary of the Department.

275. These savings provisions mean that the protection and exception in subsections 4C(2) and (3), and the protection and exceptions in section 16G of the Customs Administration Act, as in force immediately before the commencement of this item, will continue to apply to information, answers, documents produced or tests performed before the 1 July 2015 despite the repeal of that Act.

276. In effect, this means that:

·
any information given, an answer given or a document produced under subsection 4C(2) before 1 July 2015 of this item cannot be used in evidence against the Customs worker except in accordance with the circumstances specified in section 16G; and
·
under section 16G:

-
a certificate or other document recording the results of an alcohol or drug test conducted under section 16B, 16C or 16D before the commencement of this item; or
-
other information, answer to a question or document relevant to the conduct of such a test before the commencement of this item,

can be admitted in evidence against a Customs worker, but only in relation to:

-
proceedings in relation to a decision of the CEO/Secretary to terminate the employment or engagement of the Customs worker;
-
proceedings under the Safety, Rehabilitation and Compensation Act; or
-
proceedings in tort against the Commonwealth that are instituted by the Customs worker.

Declaration of serious misconduct

277. Subitem 8(2) provides that despite the repeal of the Customs Administration Act made by this Schedule, section 15A of that Act, as in force immediately before the commencement of this item, continues to apply on and after that commencement in relation to a declaration that was made under subsection 15A(2) of that Act before that commencement.

278. Section 15A of the Customs Administration Act allows the CEO to make a declaration in relation to a staff member if the CEO has terminated the employment of a member of the staff referred to in subsection 15(1) and the CEO believes, on reasonable grounds, that the staff member's conduct or behaviour, or any part of it:

·
amounts to serious misconduct by the staff member; and
·
is having, or is likely to have, a damaging effect on:

-
the professional self-respect or morale of some or all of the members of the staff of the ACBPS; or
-
the reputation of the ACBPS with the public, or any section of the public, or with an Australian or overseas government, or with a person or body (however described) to whom the CEO may authorise disclosure of information under section 16.

279. The CEO's power to make the declaration will only apply if the CEO has terminated the employment of a staff member in accordance with section 29 of the Public Service Act (because staff referred to in subsection 15(1) are employed under the Act).

280. The effect of the declaration is to remove the operation of the Fair Work Act (with certain exceptions) in relation to that particular dismissal. The Fair Work Act currently applies to all dismissals of Customs staff employed under the Public Service Act and provides protection where the dismissal was harsh, unjust or unreasonable. The application of the Fair Work Act can impact on the ability of the CEO to quickly and decisively remove a person from the organisation following the serious misconduct of the staff member.

281. This savings provision will mean that despite the repeal of the Customs Administration Act, section 15A as in force immediately before the commencement of this item will continue to apply to declarations which were made under subsection 15A(2) before the commencement of this item, including in relation to the application of the Fair Work Act.

Secrecy

282. Subitem 8(3) provides that despite the repeal of the Customs Administration Act made by this Schedule, section 16 of that Act, as in force immediately before the commencement of this item, continues to apply on and after that commencement in relation to the making of a record, or the disclosure, of protected information before that commencement.

283. Section 16 of the Customs Administration Act prohibits the unauthorised recording and disclosure of protected information held by the ACBPS. It also provides exceptions in relation to the prohibition to allow the making of a record, or the disclosure of protected information in certain circumstances.

284. This savings provision will mean that despite the repeal of the Customs Administration Act, section 16 as in force immediately before the commencement of this item will continue to apply to records and disclosures of protected information which were made before the commencement of this item. That means that any disclosure of protected information that was made before 1 July 2015 will be treated as a contravention of section 16.

Alcohol and drug tests

285. Subitem 8(4) provides that despite the repeal of the Customs Administration Act made by this Schedule, that Act and the regulations under that Act, as in force immediately before the commencement of this item, continue to apply on and after that commencement in relation to the following:

·
a requirement given under subsection 16B(1) of that Act before that commencement;
·
a direction given under subsection 16C(1) of that Act before that commencement;
·
an incident that occurred before that commencement in relation to which paragraphs 16D(1)(a) and (b) of that Act applied or paragraph 16D(2)(a) or (b) of that Act applied;
·
a direction given under subsection 16D(3) or (5) of that Act before that commencement.

286. For the purposes of that Act and those regulations continuing to so apply:

·
the Customs worker concerned is taken to continue to be a Customs worker on and after that commencement; and
·
a person who was an authorised officer under that Act immediately before that commencement is taken to continue to be an authorised officer on and after that commencement.

287. Sections 16B, 16C and 16D of the Customs Administration Act set out the regime under which Customs workers are required to undergo drug and alcohol testing. In accordance with section 16F regulations may make provision for the purposes of sections 16B, 16C and 16D in relation to certain matters including the authorisation of persons, the devices to be used in conducting tests, procedures for handling samples taken and the confidentiality of test results. The Drug and Alcohol Testing Regulation prescribes such matters for the purposes of section 16B, 16C and 16D.

288. This savings provision will mean that despite the repeal of the Customs Administration Act, the Act and the Drug and Alcohol Testing Regulation in force immediately before 1 July 2015 will continue to apply to:

·
a requirement given under subsection 16B(1) of the Customs Administration Act before the commencement of this item;
·
a direction given under subsection 16C(1) of that Act before that commencement;
·
an incident that occurred before that commencement in relation to which paragraphs 16D(1)(a) and (b) of the Customs Administration Act applied or paragraph 16D(2)(a) or (b) of that Act applied;
·
a direction given under subsection 16D(3) or (5) of the Customs Administration Act before that commencement.

Interpretation

289. Subitem 8(6) provides that this item does not limit the operation of section 7 of the Acts Interpretation Act which deals with the effect of repeal or amendment of an Act.


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