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 5 - Amendments of Acts referring to the Customs

Background

325. This Schedule makes a number of consequential amendments to Acts referring to "Customs" in various contexts.

Air Services Act 1995

Item 1 - Subsection 3(1) (Paragraph (b) of the definition of authority of the Commonwealth )

326. The definition of "authority of the Commonwealth" currently includes a reference to Customs. "Customs" in this context means the ACBPS under the Customs Administration Act. Due to the repeal of the Custom Administration Act and the abolition of the ACBPS on 1 July 2015, the paragraph referring to "Customs" will become redundant and is to be repealed.

Items substituting the references to the "control of Customs" with "customs control"

327. These are:

·
Items 2 and 3- Section 7-20 and section 9-75 of A New Tax System (Wine Equalisation Tax) Act 1999
·
Item 27 - Paragraph 135(7)(d) of the Copyright Act 1968
·
Item 39 - Subparagraphs 15J(2)(c)(i) and (ii) of the Crimes Act 1914
·
Item 63 - Paragraph 303GW(3)(c) of the Environment Protection and Biodiversity Conservation Act 1999
·
Items 66 and 67 - Subsection 24(2) and paragraph 24(3)(b) of the Excise Act 1901
·
Items 85, 87 and 88 - Paragraphs 13(4)(b) and (c) and 14(1)(b) and subsections 14(5) and (7) of the Imported Food Control Act 1992
·
Item 92 - Subparagraph 21(6)(b)(ii) of the Industrial Chemicals (Notification and Assessment) Act 1989
·
Item 94 - Subsection 25(1) of the Major Sporting Events (Indicia and Images) Protection Act 2014
·
Item 140 - Paragraph 54(1)(b) of the Olympic Insignia Protection Act 1987
·
Item 171 - Paragraph 50(2)(b) of the Torres Strait Fisheries Act 1984
·
Item 172 - Paragraph 133(1)(b) of the Trade Marks Act 1995

328. These provisions refer to goods which are subject to:

·
"the control of *Customs";
·
"the control of the Customs within the meaning of the Customs Act 1901";
·
"the control of Customs";
·
"the control of the Customs";
·
"Customs control"; or
·
"the control of Customs (within the meaning of the Customs Act 1901)"

329. References to "Customs" in this context means the ACBPS established under the Customs Administration Act. Due to the repeal of that Act and the abolition of the ACBPS on 1 July 2015, these items omit references to terms mentioned above and substitute with references to "customs control" or "customs control under the Customs Act 1901" where necessary.

330. For example, subsection 14(5) of the Imported Food Control Act 1992 (IFC Act) will be amended to provide "[i]f the owner of food identified in an advice as failing food makes an application for the issue of a further imported food inspection advice in respect of a part of the food, the person must, if the food to which the application relates is under customs control, inform the person having possession of the food that he or she had made that application". Section 3(1) of this Act defines "Customs control" in relation to food to mean customs control under the Customs Act

331. Another example is that, subsection 25(1) of the Major Sporting Events (Indicia and Images) Protection Act 2014 (Sporting Events Act) will be amended to provide that "[t]he Comptroller-General of Customs must seize goods that are subject to customs control under the Customs Act 1901 if...".

332. Section 30 of the Customs Act currently sets out goods which are subject to the control of the Customs. As a result of consequential amendments to the Customs Act in Schedule 1 to this Bill, references to goods which are "subject to the control of the Customs" (however described) will be amended to refer to goods which are subject to "customs control". In accordance with existing Customs powers, goods which are subject to Customs control may be examined by an officer of Customs under section 186 of the Customs Act.

333. These amendments are technical consequential changes only and do not expand the controls that the integrated Department will have over goods.

A New Tax System (Wine Equalisation Tax) Act 1999

Item 4 - Section 33-1 (definition of Customs )

334. This section defines "Customs" as the agency continued in existence under subsection 4(1) of the Customs Administration Act. This amendment will delete the definition of "Customs" as a result of the repeal of the Customs Administration Act and the abolition of ACBPS on 1 July 2015. As the reference to "Customs" flows through to references to Customs control, no substitution of terminology is necessary.

Anti-Money Laundering and Counter-Terrorism Financing Act 2006

Item 5 - Section 5 (paragraph (e) of the definition of designated agency )

335. The definition of "designated agency" includes a reference to "Customs". "Customs" in this context means the ACBPS established under the Customs Administration Act. This amendment will delete the reference to "Customs" as a result of the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015.

Item 6 - Savings provision

336. This item provides that despite the amendment of the definition of designated agency in section 5 of the AMLCTF Act made by this Schedule, section 127 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 person who was at any time before that commencement an official of a designated agency that was Customs.

337. Section 127 of the AMLCTF Act restricts what a person, who is an entrusted agency official and is (or was) an official of a designated agency may do with accessed information.

338. This savings provision will mean that despite "Customs" no longer being a designated agency under section 5 of the AMLCTF Act, section 127 of that Act will continue to apply to a person who:

·
was an official of a designated agency that was Customs immediately before the commencement of this item; and
·
who needs to deal with accessed information under that provision that was obtained while that person was an official of the designated agency that was Customs.

Australian Crime Commission Act 2002

Items 7 and 8 - Subsection 4(1); and subparagraph 7A(ca)(iii)

339. Subparagraph 7A(ca)(iii) of the ACC Act lists the functions of the ACC which include, amongst other things, assisting Customs in making applications for integrity authorities as permitted or required for the purposes of Part IAB or IABA of the Crimes Act or any other law of the Commonwealth.

340. "Customs" in this context means the ACBPS under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015 these amendments will:

·
delete the reference to "Customs" in subparagraph 7A(ca)(iii) and substitute a reference to the "Immigration and Border Protection Department"; and
·
insert a definition of "Immigration and Border Protection Department" into subsection 4(1) to mean "the Department administered by the Minister administering the Australian Border Force Act 2015".

341. This will enable the ACC to assist the integrated Department in making applications for integrity authorities as permitted or required under the Crimes Act or any other law of the Commonwealth.

Australian Nuclear Science and Technology Organisation Act 1987

Items 9 and 10 - Subsection 3(1); and subsection 3(1) (paragraph (c) of the definition of law enforcement agency )

342. The definition of "law enforcement agency" includes a reference to Customs. Under this Act, one of the functions of the Australian Nuclear Science and Technology Organisation is to condition, manage and store radioactive materials and radioactive waste at the request of a law enforcement agency. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015 these amendments will:

·
delete the reference to "Customs" in subsection 3(1) and substitute a reference to the "Immigration and Border Protection Department"; and
·
insert a definition of "Immigration and Border Protection Department" into subsection 3(1) to mean "the Department administered by the Minister administering Part XII of the Customs Act 1901".

Australian Postal Corporation Act 1989

Items 11 and 14 - Section 90E (paragraph (a) of the definition of compliance agency ); and section 90E

343. The definition of "compliance agency" in the Australian Postal Corporation Act 1989 (APC Act) includes a reference to "Customs". Under the APC Act, Australia Post may make certain requests of a compliance agency in relation to mail articles. "Customs" in this context means the ACBPS established under the Customs Administration Act. Due to the repeal of this Act and the abolition of the ACBPS on 1 July 2015, these amendments will:

·
delete the reference to "Customs" in paragraph (a) of the definition of compliance agency and substitute a reference to the "Immigration and Border Protection Department"; and
·
insert a definition of "Immigration and Border Protection Department" into section 90E to mean "the Department administered by the Minister administering Part XII of the Customs Act 1901".

344. This means Australia Post may make such a request to the Department.

Item 13 - Subsection 90E (definition of customs officer )

345. This item corrects a technical error in the definition of "customs officer" by omitting the reference to "an Officer of Customs" and substituting it with "an officer of Customs".

346. This will ensure that the terminology is consistent with the definition of "officer of Customs" in the Customs Act.

Items 15, 18 and 20 - Subsections 90T(1) to (5) and (7); sections 90V(2) and (2A); and paragraph 90ZC(2)(a)

347. This item corrects a technical error by omitting references to "Customs officer" (wherever occurring) and substituting "customs officer".

348. This will ensure references to "customs officer" are consistent with the definition contained in section 90E.

Items 12, 16 and 17 - Section 90E; and subsection 90T(8)

349. Section 90T of the APC Act makes provision for articles which are reasonably believed to consist of, or contain, certain drugs or other chemical compounds. Pursuant to subsection 90T(8), Customs must establish and maintain, in accordance with the regulations made for the purposes of this section, a record setting out, in respect of each article that is removed from the normal course of carriage and opened for the purpose of its examination by customs officer:

·
particulars of the article; and
·
particulars of the nature of the examination of the article and its contents; and
·
whether the article and its contents were, following the examination, dealt with according to law or returned to the normal course of carriage.

350. Due to the abolition of the ACBPS, these items will:

·
amend subsection 90T(8) to omit "Customs must" and substitute "The Comptroller-General of Customs must"; and
·
insert a definition of Comptroller-General of Customs into section 90E to mean "the person who is the Comptroller-General of Customs in accordance with subsection 11(3) or 14(2) of the Australian Border Force Act 2015".

Item 19 - Subsection 90V(2A)

351. Subsection 90V(2A) requires a customs officer who opened an article under section 90T to endorse on the cover of the article, or affix a label to its over, a notification that the article has been opened by Customs that briefly explains (by reference to section 90T or otherwise) why the article was opened. Due to the abolition of the ACBPS, this item replaces the reference to "opened by Customs" in this subsection with "opened by a customs officer". "Customs officer" is defined in section 90E to mean an "officer of Customs" within the meaning of the Customs Act.

Item 21 - Transitional provision

352. This item contains a transitional provision in relation to a record established by Customs before the commencement of this item under subsection 90T(8). Any such record established by Customs under this provision immediately before the commencement of this item will be taken to be a record established by the Comptroller-General of Customs on and after the commencement of this item.

Civil Aviation Act 1988

Item 22 - Section 3 (paragraph (b) of the definition of authority of the Commonwealth )

353. The definition of "authority of the Commonwealth" includes a reference to "Customs" under paragraph (b) of this definition.

354. Due to the abolition of the ACBPS, this item repeals paragraph (b) of this definition. This is no need to substitute the reference to "Customs" with anything because the "Immigration and Border Protection Department" is already covered by the definition of "Commonwealth entity" in section 32AN of this Act. Under section 32AO of this Act, a recording is a cockpit voice recording for the purposes of Part IIIB if, amongst other things, at the time when the recording was made, the aircraft was owned or operated by a constitutional corporation or Commonwealth entity.

Item 23 - Transitional provision

355. This item contains a transitional provision in relation to subparagraph 32AO(1)(c)(ii). This subparagraph provides that a recording is a cockpit voice recording for the purposes of Part IIIB if, amongst other things, at the time when the recording was made, the aircraft was owned or operated by a constitutional corporation or Commonwealth entity.


"Commonwealth entity" is defined in section 32AN to include an "authority of the Commonwealth". However, because "Customs" is being repealed from the definition of "authority of the Commonwealth" this transitional provision will mean that a recording on an aircraft owned or operated by Customs before 1 July 2015 will still be a cockpit voice recording for the purposes of Part IIIB of the Act, on and after 1 July 2015.

Commerce (Trade Descriptions) Act 1905

Item 24 - Section 3 (definition of Trade description )

356. The Trade Descriptions Act sets out the requirements for imported and exported goods into and from Australia, in particular the proper and accurate labelling and description of such goods. The definition of "Trade description" includes a reference to a "Customs entry". This item omits the reference to "a Customs entry" and substitutes "an import entry". This amendment will remove the obsolete reference to "Customs" following the abolition of the ACBPS on 1 July 2015.

Item 25 - Subsection 6(1)

357. This subsection requires every person who intends to export any goods of a kind or class that are required to be inspected or examined by an officer to, if required by the regulation, before the goods are shipped, give notice to the Customs of his or her intention to export the goods and of the place where the goods may be inspected.

358. Due to the abolition of the ACBPS on 1 July 2015, this item omits the reference to "the Customs" and substitutes "an officer". "Officer" is defined in section 3 of the Act to mean an officer of Customs and pursuant to section 2, the Act is to be incorporated and read as one with the Customs Act.

Item 26 - Transitional provisions

359. This item contains transitional provisions in relation to:

·
a Customs entry such that any Customs entry relating to goods made before the commencement of this item will be taken to be an import entry relating to the goods on and after the commencement of this item; and
·
a notice given to the Customs under subsection 6(1) before the commencement of this item such that any notice given to the Customs before the commencement of this item will be taken to have been given to an officer on and after commencement of this item.

Crimes Act 1914

>Amendments relating to controlled operations

360. Part 1AB of the Crimes Act sets out the provision governing the authorisation, conduct and monitoring of controlled operations. A controlled operation is an operation that involves the participation of law enforcement officers, that is carried out for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious Commonwealth offence or a serious State offence that has a federal aspect, and that may involve a law enforcement officer or other person in conduct that would, apart from section 15HA, constitute a Commonwealth offence or an offence against a law of a State or Territory.

361. Presently, an officer of Customs may apply for an authority to conduct a controlled operation on behalf of Customs. Officers of Customs can perform other roles under Part 1AB and can be authorised to be involved in a controlled operation. Any officers of Customs involved in a controlled operation are exempt from criminal liability for a Commonwealth offence or offence against a law of a State or Territory in respect of conduct engaged in in the course of, and for the purposes of, the controlled operation.

362. With increasing concerns about organised and transnational crime, it is vitally important that Australia's border protection arrangements continue to be able to operate with relevant powers and protections to conduct operations to counter these threats, including controlled operations. It is therefore proposed to continue to allow officers of Customs who are part of the new integrated Department to be able to perform functions under Part 1AB of the Crimes Act. This will require several amendments to Part 1AB, which are set out below and also in Schedule 6 below.

Item 28 - Section 3(1)

363. This item inserts a new definition of "officer of Customs" into subsection 3(1) of the Crimes Act, which has the meaning given by subsection 4(1) of the Customs Act. This is a technical amendment to define "officer of Customs" which is referred to in the Crimes Act under the definition of "law enforcement officer".

Item 29 - Section 15GC (paragraph (c) of the definition of chief officer )

364. The definition of "chief officer" includes a reference to the chief officer in relation to Customs. This amendment will delete the reference to "Customs" and substitute a reference to "Immigration and Border Protection Department". The substitution of the person who is the "chief officer" will be included in Schedule 6 (see item 51). In Part 1AB, the term "chief officer" is referred to in section 15HG which contains notification requirements about loss or damage to property or personal injury that occurs during the course of a controlled operation. This section will now apply in relation to the chief officer of the "Immigration and Border Protection Department".

Item 30 - Section 15GC (paragraph (c) of the definition of law enforcement agency )

365. The definition of "law enforcement agency" includes a reference to Customs. This amendment will delete the reference to "Customs" and substitute a reference to "the Immigration and Border Protection Department". In Part 1AB, the term "law enforcement agency" is referred to in section 15GH, under which an Australian law enforcement officer of a law enforcement agency may apply for an authority to conduct a controlled operation on behalf of the law enforcement agency.

366. "Australian law enforcement officer" is defined in section 3 of the Crimes Act as a law enforcement officer other than a member of a police force or other law enforcement agency of a foreign country. "Law enforcement officer" is also defined in section 3, and includes an officer of Customs.

367. This amendment means that section 15GC will now apply such that an "officer of Customs" may apply for an authority to conduct a controlled operation on behalf of the Department.

Item 34 - Subparagraphs 15GK(1)(k)(iii) and (v)

368. Section 15GK sets out the matters that must be included in a formal authority to conduct a controlled operation. These two subparagraphs require the place or places at which goods are likely to be dealt with by "Customs" and the time or times when, and the day or days on which, those goods are likely to be dealt with by "Customs". Due to the abolition of the ACBPS, this item replaces the references to "Customs" in these subparagraphs with references to "an officer of Customs".

Item 37 - Paragraph 15HG(5)(b)

369. As mentioned above, section 15HG contains notification requirements about loss or damage to property or personal injury that occurs during the course of a controlled operation. This section will now apply in relation to the chief officer of the Immigration and Border Protection Department. Under subsection 15HG(5), a chief officer may delegate any powers or functions under the section, and presently in respect of Customs, these may be delegated to a Deputy Chief Executive Officer of Customs or a person occupying an equivalent or higher position.

370. The amendment in this item will delete the reference to "Customs" and substitute a reference to the "Immigration and Border Protection Department". The substitution of the persons to whom the chief officer may delegate any powers or functions under this section will be included in Schedule 6 below (see item 52).

Item 38 - Paragraph 15J(1)(b)

Item 39 - Subparagraphs 15J(2)(c)(i) and (ii)

371. Section 15J of the Crimes Act sets out the requirement that applies where the applicant for an authority to conduct a controlled operation believes that illicit goods involved in the operation may be dealt with by Customs. The applicant must notify the CEO or a person nominated by him or her of certain matters, including the place or places at which goods are likely to be dealt with by Customs and the time or times when, and the day or days on which, those goods are likely to be dealt with by Customs.

372. Due to the abolition of the ACBPS, these items replace the references to "Customs" in these subparagraphs with references to "an officer of Customs" and "customs control under the Customs Act 1901" as appropriate.

373. The substitution of the person to whom the notification must be given will be included in Schedule 6 below (see item 53).

Amendments relating to integrity testing

374. In 2012, provisions were introduced to allow for targeted integrity testing for staff members of the AFP, ACC and the ACBPS suspected of corrupt conduct. Integrity tests are operations designed to test whether a public official will respond to a simulated or controlled situation in a manner that is illegal or would contravene an agency's standard of integrity. The introduction of integrity testing was recommended by the Parliamentary Joint Committee on the ACLEI. Integrity testing provisions are set out in Part 1ABA of the Crimes Act.

375. Officers of key law enforcement agencies are expected to maintain the highest standards of professionalism and integrity. Corruption within these agencies can have a significant detrimental effect on their ability to enforce the law. Integrity testing is only be able to be authorised by a senior officer of these agencies, and only where there is a reasonable suspicion that an offence, punishable by at least 12 months' imprisonment has been committed or is likely to be committed. This will ensure that integrity testing is conducted on a targeted basis, rather than on a random or arbitrary basis.

376. The special role the Department plays as an immigration and border protection agency with responsibilities for authorising the movement of travellers and goods across Australia's border, managing the stay in Australia and in some cases departure from Australia of non-citizens is valuable and therefore attracts a heightened integrity risk. While some of these functions will be exclusively undertaken by the part of the Department known as the ABF, others will be delivered or supported by other parts of the Department. Additionally, immigration and border protection workers will, where relevant to the performance of their duties, have access to sensitive information and engage in close working relationships with other law enforcement agencies. The consequences of any corruption in the Department, including in the part of the Department known as the ABF, would pose a significant threat to the integrity of the border and Australia's national security.

377. The ABF Act, therefore, contains a number of integrity provisions to increase resistance to criminal infiltration and corruption and to enhance government and public confidence in IBP workers, as well as the confidence of other partners including intelligence organisations and foreign governments.

378. It is additionally proposed that the existing integrity testing provisions in the Crimes Act be extended to officers of the integrated Department. The extension of integrity testing provides another important tool to enable the detection of corruption and misconduct and, in so doing, ensures the Australian community can have confidence in the integrity of the Australian border. This will require several amendments to Part 1ABA, which are set out below and also in Schedule 6 to this Bill.

Item 31 - Section 15GC (note at the end of the definition of staff member )

Item 32 - Section 15GC (paragraph (c) of the definition of target agency )

Item 33 - Subsection 15GI(1)(note 2)

Item 35 - Subsection 15GQ(1)(note 2)

Item 36 - Subsection 15GV(1)(note 2)

379. The definition of "target agency" sets out the target agencies whose staff members can be the subject of a controlled operation where an integrity testing authority is in effect. These items will omit the reference to "Customs" and substitute a reference to "the Immigration and Border Protection Department" in the definition of target agency and will update the replace the reference to "Customs" in the note to the definition of staff member and in the note to each of subsections 15GI(2), 15GQ(2) and 15GV(2) with "the Immigration and Border Protection Department".

Item 40 - Section 15JA

380. This section sets out the simplified outline for Part 1ABA and refers to the ACBPS as a target agency. This item will omit the reference to "Australian Customs and Border Protection Service" and substitute a reference to "Immigration and Border Protection Department".

Item 41 - Section 15JC (paragraph (d) of the definition of integrity testing agency )

381. This paragraph sets out that ACBPS is an integrity testing agency. Such agencies may conduct integrity testing. This item will omit the reference to "Customs" and substitute a reference to "Immigration and Border Protection Department".

Item 42 - Section 15JC (paragraph (c) of the definition of target agency )

382. This paragraph sets out that ACBPS is target agency. The staff of such agencies may be subjected to integrity testing. This item will omit the reference to "Customs" and substitute a reference to "Immigration and Border Protection Department".

Item 43 - Subsection 15JD (note 1)

Item 44 - Section 15JE (note 1)

383. These sections deal with matters relating to integrity testing. Amendments will update the note to each of subsections which sets out the agencies that are target agencies by omitting the references to "Customs" and replacing them with the "Immigration and Border Protection Department".

Item 45 - Subsection 15JS(5) (paragraph (c) of the definition of chief officer )

384. This section sets out the annual reporting requirements that must be satisfied by the chief officer of an integrity testing agency. Subsection 15JS(5) specifies that, for the ACBPS, the chief officer is the CEO.

385. This amendment will omit the reference to "Customs" and replacing it with the "Immigration and Border Protection Department". The substitution of the person who is chief officer will be included in Schedule 6 below (see item 56).

Amendments relating to assumed identities

386. Part 1AC of the Crimes Act sets out the circumstances in which law enforcement officer of a law enforcement agency may apply to the chief officer mentioned in subsection (2) for an authority for the officer or any other person to do either or both of the following:

·
acquire an assumed identity;
·
use an assumed identity

387. Part 1AC currently exempts officers of Customs from criminal liability for a Commonwealth offence or offence against a law of a State or Territory in respect of a thing done in the course of acquiring or using an assumed identity. Similar to controlled operations, it is vitally important that our new border arrangements continue to be able to operate with relevant powers and protections to conduct operations to counter these threats, including controlled operations. It is therefore proposed to continue to allow officers of Customs who are part of the new integrated Department to be able to acquire and use assumed identities under Part 1AC of the Crimes Act. This will require several amendments to Part 1AC, which are set out below and also in Schedule 6 to this Bill.

Item 46 - Section 15K (subparagraph (c)(ii) of the definition of chief officer )

388. The definition of "chief officer" in section 15K includes a reference to the chief officer in relation to Customs. This amendment will delete the reference to "Customs" and substitute a reference to the "Immigration and Border Protection Department". In Part 1AC, the term "chief officer" is referred to in section 15KA which sets out to whom an application for authority to acquire or use an assumed identity must be made. This section will now apply in relation to the chief officer of the Department. The substitution of the person who is the chief officer will be included in Schedule 6 below (see item 57).

Items 47 and 48 - Section 15K (paragraph (b) of the definition of law enforcement agency and definition of law enforcement officer )

389. The definition of "law enforcement agency" includes a reference to "Customs". This amendment will delete the reference to "Customs" and substitute a reference to "the Immigration and Border Protection Department". In Part 1AB, the term "law enforcement agency" is referred to in section 15KA, under which a law enforcement officer of a law enforcement agency may apply to their chief officer for an authority to acquire or use an assumed identity.

390. The definition of "law enforcement officer" is also defined in section 15K and includes, in relation to Customs, an officer of Customs. This amendment will delete the reference to "Customs" and substitute a reference to the "Immigration and Border Protection Department".

Item 49 - Paragraph 15KB(4)(b)

391. Where an authority in relation to an assumed identity is granted under section 15KB for an authorised civilian, the chief officer must appoint an officer to supervise the acquisition or use of the assumed identity by the authorised civilian. Under paragraph 15KB(4)(b) in relation to the ACBPS, a supervisor must be a person who holds the position, or performs the duties, of a Customs Level 4 officer, or an equivalent or higher position, in Customs.

392. This amendment will omit paragraph 15KB(4)(b) and substitute in the case of the Immigration and Border Protection Department-"an APS employee who holds or performs the duties of an Executive Level 1 position, or an equivalent or higher position, in that Department".

Item 50 - Subsection 15LH(3) (paragraph (b) of the definition of senior officer )

393. Section 15H provides that a chief officer may delegate certain powers or functions under Part 1AC to the senior officer of the law enforcement agency and presently in respect of Customs, these may be delegated to an Senior Executive Service (SES) employee of staff or a person occupying an equivalent or higher position.

394. The amendment in this item will delete the reference to "Customs" and substitute a reference to the "Immigration and Border Protection Department". The reference to "an SES employee" will be changed to "any SES employee in that Department".

Amendments relating to witness protection for operatives

395. Part 1ACA of the Crimes Act sets out the circumstances in which the chief officer of a law enforcement agency may give a witness identity protection certificate for an operative in relation to a proceeding if:

·
the operative is, or may be required, to give evidence in the proceeding; and
·
the chief officer is satisfied on reasonable grounds that the disclosure in the proceeding of the operative's identity or where the operative lives is likely to:

-
endanger the safety of the operative or another person; or
-
prejudice any current or future investigation; or
-
prejudice any current or future activity relating to security.

396. An "operative" means a person who is or was:

·
a participant in a controlled operation authorised under Part IAB; or
·
authorised to acquire and use an assumed identity under Part IAC by the chief officer of a law enforcement agency.

397. As controlled operations and assumed identities regimes are to be extended to officers of Customs in the integrated Department, so is the witness protection regime.

Item 51 - Subsection 15M(1) (paragraph (b) of the definition of chief officer )

398. The definition of "chief officer" includes a reference to the chief officer in relation to Customs. This amendment will delete the reference to "Customs" and substitute a reference to the "Immigration and Border Protection Department". The substitution of the person who is the chief officer will be included in Schedule 6 below (see item 58).

Item 52 - Subsection 15M(1) (paragraph (b) of the definition of law enforcement agency )

399. The definition of "law enforcement agency" includes a reference to "Customs". This amendment will delete the reference to "Customs" and substitute a reference to the "Immigration and Border Protection Department".

Item 53 - Subsection 15MX(3) (paragraph (b) of the definition of senior officer )

400. Section 15MX provides that a chief officer may delegate certain powers or functions under Part 1ACA to the senior officer of the law enforcement agency and presently in respect of the ACBPS, these may be delegated to a Deputy Chief Executive Officer or a person occupying an equivalent or higher position.

401. The amendment in this item will delete the reference to "Customs" and substitute a reference to the "Immigration and Border Protection Department". The reference to an SES employee will be changed as outlined below in Schedule 6 to a SES Band 3 position, or an equivalent employee, in that Department. The substitution of the persons to whom the chief officer may delegate any powers or functions under this section will be included in Schedule 6 below (see item 59).

Item 54 - Section 85ZL (paragraph (ba) of the definition of law enforcement agency )

402. Part VIIC of the Crimes Act deals with pardons, quashed convictions and spent convictions. Under this Part, the ACBPS is currently included in the definition of "law enforcement agency" for this Part. This means that the protection against not having to disclose a spent conviction in Division 3 of that Part does not apply in certain circumstances in relation to law enforcement agencies.

403. This item omits the reference to "Customs" and substitutes a reference to "the Immigration and Border Protection Department".

Item 55 - Transitional provisions

404. This items sets out the transitional provisions for the above amendments to the Crimes Act.

The first transitional provision relates to any instrument in force before 1 July 2015 under the provisions dealing with controlled operations or integrity testing in relation to an integrity testing operation for a staff member of Customs. The effect of this transitional provision is that such an instrument continues in force after 1 July 2015 as if it was in relation to person being a staff member of the Department. For example, an authorisation to conduct an integrity test granted before 1 July 2015 in relation to Joe X who is an APS employee in the Customs will continue in force when Joe X is transferred into the Department and becomes and APS employee in the Department on 1 July 2015.

405. The effect of the second transitional provision is that any authority given to an officer of Customs to acquire and use an assumed identity in force before 1 July 2015 will continue in force on and after 1 July 2015 in relation to that same officer of Customs.

406. The effect of the third transitional provision is that any witness identity protection certificate given to an officer of Customs that is in force before 1 July 2015 will continue in force on and after 1 July 2015 in relation to that same officer of Customs.

407. The fourth transitional provision relates to exceptions to the offences of disclosing information that relates to a controlled operation or an assumed identity. These exceptions apply where the disclosure is in connection with the performance of functions or duties, or the exercise of powers, of a law enforcement agency. The effect of the fourth transitional provision is that these exceptions will continue to apply on and after 1 July 2015 where the disclosure before 1 July 2015 was in connection with the performance of functions or duties, or the exercise of powers, of Customs.

408. The fifth transitional provision relates to an authority to conduct a controlled operation. The effect of the fifth transitional provision is that if an authority granted before 1 July 2015 states the place and time at which goods are likely to be dealt with by Customs, after 1 July 2015 the authority will be taken to state the place and time at which the goods are likely to be dealt with by an officer of Customs.

409. The sixth transitional provision relates to a statutory declaration from an operative under section 15MF of the Crimes Act. An operative must give a statutory declaration of certain matters before a witness identity protection certificate for the operative can be given. The effect of the sixth transitional provision is that the amendments to the Crimes Act set out above do not affect the validity of any statutory declaration given before 1 July 2015.

Crimes (Currency) Act 1981

Items 56, 57 and 58 - Subsection 29(3); subsection 29(8) (definition of Officer of Customs ); and subsection 29(8)

410. The Crimes Currency Act makes provisions with respect to offences connected with counterfeiting of money or of certain kinds of securities and other activities injurious to the Australian currency.

411. The section 29 of the Crimes Currency Act makes provision for the forfeiture and seizure of certain goods. These items correct a technical error by:

·
omitting references to an "Officer of Customs" and substituting "An officer of Customs"; and
·
replacing the definition of "Officer of Customs" to refer to "officer of Customs".

412. This will ensure that references to "an officer of Customs" are consistent with the definition contained in the Customs Act.

Criminal Code Act 1995

Item 59 - Section 146.1 of the Criminal Code (paragraph (e) of the definition of Commonwealth law enforcement officer)

413. The Criminal Code codifies the legislation relating to criminal offences.

414. The definition of "Commonwealth law enforcement officer" includes a person employed in Customs in paragraph (e) of that definition. "Customs" in this context means the ACBPS established under the Customs Administration Act. Due to the repeal of this Act, the abolition of the ACBPS and the standing up of the ABF on 1 July 2015 this amendment will repeal paragraph (e) of the definition and substitute "a person who is an APS employee in the Department administered by the Minister administering the Australian Border Force Act 2015 and who is in the Australian Border Force (within the meaning of that Act)".

Item 60 - Saving provision

415. This item contains a savings provision to the effect that Part 7.8 of the Criminal Code (which deals with causing harm to, impersonating or obstructing Commonwealth public officials) will continue to apply on and after the commencement of this item to a thing done in relation to a person employed in the ACBPS before this item commenced.

416. For example, if on 28 June 2015 a person caused harm to a person employed in the ACBPS, then the provisions in Part 7.8 of the Criminal Code will continue to apply in relation to the harm done to a person employed in Customs on and after 1 July 2015.

Customs Depot Licensing Charges Act 1997

Items 61 and 62 - Section 3 (definition of electronic ); and (definition of line of cargo )

417. The Customs Depot Licensing Charges Act 1997 provides for the imposition of charges in relation to the licensing of depots under the Customs Act. This also includes provisions for the charge amount for depot licence application as well as for the variation of the depot licence.

418. These items amendments will:

·
repeal the definition of electronic in section 3 of the Act; and
·
omit the reference to "an electronic or documentary cargo report" from the definition line of cargo and substitute "a cargo report".

419. These amendments correct a technical error to ensure that cargo is reported consistently with the requirements in the Customs Act. Under the Customs Act, a cargo report can only be reported electronically.

Evidence Act 1995

Item 64 - Part 1 of the Dictionary (subparagraph (b)(i) of the definition of the Commonwealth document )

420. The Evidence Act 1995 (the Evidence Act) is an Act about the law of evidence, and for related purposes. The Evidence Act makes provisions for matters including the adducing of evidence, the admissibility of evidence, proof, as well as procedures and requirements relating to evidence.

421. Subparagraph (b)(i) of the definition of "Commonwealth document" includes a report of the passengers or crew on a ship or aircraft that has been communicated to Customs under section 64ACA or 64ACB of the Customs Act.

422. Due to the abolition of the ACBPS on 1 July 2015, these reports will now be communicated to the Department. As a result, this item omits the reference "to Customs" and substitutes "to the Department administered by the Minister who administers Part XII of the Customs Act 1901".

Item 65 - Transitional provision

423. This item contains a transitional provision to the effect that a report under subparagraph (b)(i) of the definition Commonwealth document in Part 1 of the Dictionary in the Evidence Act will be taken to be communicated to the Department administered by the Minister who administers Part XII of the Customs Act on and after the commencement of this item.

Excise Act 1901

Items 68 and 69 - Subsection 59AA(1); and paragraph 61E(2)(b)

424. The Excise Act 1901 (the Excise Act) imposes excise duty on various goods produced or manufactured in Australia and also sets out the numerous procedures and requirements relating to security, licences, removal of goods, movement of certain goods, amongst other powers and functions.

425. These provisions refer to goods in relation to clearance through Customs. Due to the abolition of the ACBPS on 1 July 2015, these items will omit references to "clearance through Customs" and substitute "clearance under the Customs Act 1901".

Fisheries Management Act 1991

Items 70 to 79 - Subsection 84C(1); subsection 84C(5) and subsection 84C(5) (definition of Customs vessel ); section 167B(2) (heading); subsection 167B(2); and subsection 167B(4)

426. The Fisheries Management Act 1991 (the Fisheries Act) outlines the applicable rights and permits needed to undertake fishing related activities within Commonwealth waters. Requirements for the grant of fishing rights and permits, regulation and prohibition on certain fishing and practices, fishing licences, and other procedures (including monitoring, registration, surveillance and enforcement provisions) are also set out in Fisheries Act.

427. As a consequence of the abolition of the ACBPS and the standing up of the ABF on 1 July 2015, provisions in the Fisheries Act require amendment to reflect necessary changes in terminology. These changes reflect the new organisational arrangements for the integrated Department and the ABF and do not change the scope of functions currently undertaken by Customs.

428. In particular, these items:

·
omit the reference to "a Customs vessel" in subsection 84C(1) and substitute "an Australian Border Force vessel";
·
repeal the definition of "Customs vessel" in subsection 84C(5);
·
insert a definition of "Australian Border Force vessel" into subsection 84C(5) to mean a Commonwealth ship (within the meaning of the Customs Act) that is under the command of an officer of Customs (including an officer of Customs exercising powers as an officer within the meaning of this Act) and flying the flag mentioned in section 14 of the Customs Act;
·
repeal the heading of section 167B "AFMA may give information about boats to Customs" and substitute "AFMA may give information about boats to officers of Customs";
·
omit the reference "to Customs" in subsection 167B(2) and substitute "to an officer of Customs";
·
omit the reference "from Customs" in subsection 167B(2) and substitute "from an officer of Customs";
·
omit the reference "giving Customs" in subsection 167B(2) and substitute "giving an officer of Customs";
·
omit the reference "help Customs" in subsection 167B(2) and substitute "help an officer of Customs";
·
omit the reference to "of Customs" in subsection 167B(2); and
·
insert a definition of officer of Customs in subsection 167B(4) to provide that it has the same meaning given by subsection 4(1) of the Customs Act.

Hazardous Waste (Regulation of Exports and Imports) Act 1989

Item 80 - Subsection 42(3) (note)

429. The Hazardous Waste (Regulation of Exports and Imports) Act 1989 (the HWREI Act) provides for the regulation of the export, import and transit of hazardous waste, and other related purposes. The HWREI Act provides for matters including import permits, export permits and transit permits, Ministerial orders, transportation of waste substance, and administration of the Act, amongst other provisions.

430. Subsection 42(3) of the Hazardous Waste Act refers to persons who are eligible to be appointed by the Minister to be inspectors. Pursuant to paragraph 42(3)(a) this includes officers and employees of the Commonwealth and of authorities of the Commonwealth. A note at the end of subsection 42(3) provides that paragraph (a) includes, for example, staff of Customs and of the AMSA.

431. Due to the abolition of the ACBPS on 1 July 2015, this item will omit the reference "of Customs and" in the note at the end of subsection 42(3).

Imported Food Control Act 1992

Items 81, 82, 84 and 86 - Subsection 3(1) (definition of Customs control ); subsection 3(1); subsections 11(2) and 11(3), and subsection 13(5) (note)

432. The IFC Act provides for the inspection and control of food imported into Australia, and other related purposes. The IFC Act also makes provisions for enforcement, including the power to search, apply for monitoring warrants, and seize evidence (food or other substances).

433. As a consequence of the abolition of the ACBPS and the integration of its functions into the Department on 1 July 2015, provisions in the IFC Act require amendment to reflect necessary changes in terminology. These changes reflect the new organisational arrangements for the integrated Department and do not change the scope of functions currently undertaken by Customs.

434. In particular, these items:

·
replace the definition of "Customs control" in subsection 3(1) to refer to customs control;
·
omit "to Customs" in subsection 11(2) and (3) and substitute "to the Immigration and Border Protection Department";
·
insert a definition of "Immigration and Border Protection Department" into subsection 3(1) to mean the Department administered by the Minister who administers Part XII of the Customs Act; and
·
repeal the note at the end of subsection 13(5) which refers to "Customs control" defined in subsection 3(1).

Item 83 - Subsection 11(2)

435. Subsection 11(2) provides that the regulations may provide that an entry of goods under section 71A of the Customs Act for home consumption or warehousing that is communicated to Customs by computer is to be taken, to the extent that that entry relates to examinable food, to be an application for a food control certificate for the purposes of subsection (1). This amendment will correct a technical error by inserting after "section 71A", "or 71DH". Section 71A of the Customs Act refers to import declarations for goods that are intended to be entered into home consumption and section 71DH of the Customs Act refers to warehouse declarations for goods that are intended to be entered for warehousing.

Independent National Security Legislation Monitor Act 2010

436. The Independent National Security Legislation Monitor Act 2010 (the INSLM Act) establishes the position of the National Security Legislation Monitor, which has as its standing function to review the operation, effectiveness and implications of the counter-terrorism and national security legislation and report any comments, findings and recommendations to the Prime Minister, and in turn Parliament, on an annual basis.

Item 89 - Section 4 (paragraph (c) of the definition of head )

437. Currently section 4 of the INSLM Act which contains the definition for "head" refers to the CEO in relation to Customs in paragraph (c) of this definition. Due to the repeal of the Customs Administration Act, the office of CEO will be abolished. As such, this item will repeal the definition in paragraph (c) of the definition of "head" and also amend the paragraph (c) of the definition of "law enforcement or security agency" to refer to the "Immigration and Border Protection Department". A definition for "Immigration and Border Protection Department" will also be inserted (see below).

Item 90 - Section 4

438. This item will insert a new definition under section 4 of the INSLM Act to insert the "Immigration and Border Protection Department". The "Immigration and Border Protection Department" for the purpose of the INSLM Act means "the Department administered by the Minister administering the Australian Border Force Act 2015.

Item 91 - Section 4 (paragraph (c) of the definition of law enforcement or security agency )

439. Currently section 4 of the INSLM Act defines "Customs" as a law enforcement or security agency under paragraph (c) of this definition.

440. Due to the abolition of the ACBPS, this item repeals this paragraph and replaces it with "the Immigration and Border Protection Department".

Major Sporting Events (Indicia and Images) Protection Act 2014

Item 93 - Section 4

441. The Sporting Events Act provides special protection in relation to the use for commercial purposes of indicia and images connected with certain major sporting events. The major sporting events are identified in the Schedules to the Act. These include the Asian Football Confederation (AFC) Asian Cup 2015, the Cricket World Cup 2015 and the Gold Coast 2018 Commonwealth Games. In accordance with the Sporting Events Act, a person cannot use a major sporting event's protected indicia or images for commercial purposes during the event's protection period, unless the person is an official user for the event.

442. Currently section 4 of the Sporting Events Act provides that goods that are imported into Australia that have had a major sporting event's protected indicia or images applied to them can be seized by Customs and forfeited to the Commonwealth of the designated owner's use of the indicia or images for commercial purposes in relation to the goods would contravene the prohibition in this Act.

443. Due to the abolition of the ACBPS on 1 July 2015, this item omits the reference to "Customs" in section 4 and substitutes "the Comptroller-General of Customs".

Maritime Transport and Offshore Facilities Security Act 2003

Items 95 to 99 - Paragraphs 9(2)(b) and (3)(b); section 10 (definition of customs officer ); section 10; section 10 (note at the end of the definition of maritime industry participant ); section 10 (note at the end of the definition offshore industry participant )

444. The Maritime Transport and Offshore Facilities Security Act 2003 (the MTOFS Act) makes provisions to safeguard against unlawful interference with maritime transport and offshore facilities, which includes provisions relating to maritime security levels and security directions, Maritime security plans, ship security plans and International Ship Security Certificates for regulated Australian ships, amongst others.

445. As a consequence of the abolition of the ACBPS and the integration of its functions into the Department on 1 July 2015, provisions in the MTOFS Act require amendment to reflect necessary changes in terminology. These changes reflect the new organisational arrangements for the integrated Department and do not change the scope of functions currently undertaken by ACBPS.

446. In particular, these items:

·
replace the references to "Customs" in paragraphs 9(2)(b) and (3)(b) with references to "the Immigration and Border Protection Department; or";
·
omit the reference to "an Officer" in the definition of "customs officer" in section 10 and substitute with "an officer of Customs";
·
insert a definition of "Immigration and Border Protection Department" into section 10 to mean the "Department administered by the Minister administering Part XII of the Customs Act 1901";
·
omit the reference to "Customs" from the note at the end of the definition of "maritime industry participant" in section 10 and substitute with "the Immigration and Border Protection Department"; and
·
omit the reference to "Customs" from the note at the end of the definition of "offshore industry participant" in section 10 and substitute with "the Immigration and Border Protection Department".

Migration Act 1958

Item 100 - Subsection 260(3)

447. Section 260 of the Migration Act sets out how vessels are detained pending recovery of a penalty. It provides that the Secretary may, in writing, direct an officer to detain a vessel where, in the Secretary's opinion, the master, owner, agent or character of the vessel has been guilty of an offence against that Act.

448. Under subsection 260(3), for the purposes of the detention and other lawful dealing with the vessel, the officer specified in the direction is entitled to obtain such seizure warrant issued under Division 1 of Part XII of the Customs Act or other aid as may be obtained under the law relating to the Customs with respect to the seizure of vessels or goods.

449. Due to the abolition of the ACBPS on 1 July 2015, this item omits the reference to "the law relating to the Customs" in subsection 260(3) and substitutes with "a law of the Commonwealth".

Item 101 - Subsection 260(5)

450. Subsection 260(5) provides that if, while the vessel is detained under this section, default is made in payment of any penalties imposed in respect of an offence against this Act by the master, owner, agent or character of the vessel, the Secretary may seize the vessel, and the like proceedings shall thereupon be taken for forfeiting and condemning the vessel as in the case of a vessel seized for breach of the law relating to the Customs, and the vessel shall be sold.

451. Due to the abolition of the ACBPS on 1 July 2015, this item omits the reference to "the law relating to the Customs" in subsection 260(5) and substitutes "the Customs Act 1901".

National Health Act 1953

Item 102 to 106 - Subsection 99ZH(1) (definition of Customs documentation purposes ); subsection 99ZH(1); section 99ZM (heading); section 99ZN (heading); and subsection 99ZN(6)

452. The National Health Act 1953 (the Health Act) sets out the provisions relating to pharmaceutical, sickness and hospital benefits, and medical and dental services, amongst other matters.

453. As a consequence of the abolition of the ACBPS and the integration of its functions into the Department on 1 July 2015, provisions in the Health Act require amendment to reflect necessary changes in terminology. These changes reflect the new organisational arrangements for the integrated Department and do not change the scope of functions currently undertaken by ACBPS.

454. In particular, these items:

·
omit the reference to "enabling Customs" in the definition of "Customs documentation purposes" and substitute "enabling the Immigration and Border Protection Department";
·
insert a definition of "Immigration and Border Protection Department" into subsection 99ZH(1) to mean the "Department administered by the Minister administering Part XII of the Customs Act 1901";
·
repeal the heading of section 99ZM "Customs may detain some drug like substances and not others" and substitute with "Detention of some drug like substances and not others";
·
repeal the heading of section 99ZN "Customs treatment of detained substances and retained documents" and substitute with "Treatment of detained substances and retained documents"; and
·
omit "Customs must" from subsection 99ZN(6) and substitute with "the Comptroller-General of Customs must".

Navigation Act 2012

455. The stated objects of the Navigation Act are:

·
to promote the safety of life at sea; and
·
to promote safe navigation; and
·
to prevent pollution of the marine environment; and
·
to ensure that the AMSA has the necessary power to carry out inspections of vessels and enforce national and international standards.

456. In respect of safe navigation, the Navigation Act sets out provisions in relation to a "customs vessel". A customs vessel is a vessel used or for the purposes of ACBPS and is declared by AMSA to be a customs vessel. A customs vessel will be deemed to have complied with certain provisions in the Navigation Act if there is a customs vessel management plan in place for the customs vessel. AMSA will not declare a vessel to be a customs vessel until there is a customs management vessel plan in place.

457. A customs vessel management plan addresses the fact that the requirements of the Navigation Act are not well suited to vessels in the ACBPS fleet. The Act was written for commercial cargo and passenger vessels, and there are a number of tasks performed by customs vessels in their law enforcement role where compliance with Navigation Act requirements is not appropriate. The customs vessel management plan allows for ACBPS to develop alternative risk-based standards where required by the law enforcement nature of customs vessels' operations.

458. As a consequence of the abolition of ACBPS, the terms "customs vessel" and "customs vessel management plan" are to be amended to reflect the new integrated Department and the standing up of the ABF. These changes in terminology reflect the new organisational arrangements for the integrated Department and the standing up of the ABF on 1 July 2015 and do not change the scope of maritime border protection functions currently undertaken by ACBPS.

Item 107 - Section 11 (heading)

459. This item amends the heading to section 11 to omit the reference to customs vessels. The new heading is "Application of Act to certain Australian Border Force vessels".

Items 108 and 109, and 111 - Section 11 and Subparagraphs 11(a)(ii) and (iii)

460. These items omit the references to "a customs vessel" in section 11 and substitute them with references to "an Australian Border Force vessel".

Item 110 - Paragraph 11(a)

461. This item will omit the reference to "customs vessel management plan" and substitute a reference to "Australian Border Force vessel management plan". This will mean that an ABF vessel management plan will need to be developed for an ABF vessel under section 11 after 1 July 2015.

Item 112 - Paragraph 11(b)

462. This item complements the previous two items by omitting the phrase that refers to the customs vessel management plan and substituting a phrase that refers to the ABF vessel management plan. The effect is that an ABF vessel will not have to comply with certain provisions in the Navigation Act if there is an ABF vessel management plan in place for that vessel.

Items 113 and 114 - Subsection 14(1) and Subsection 14(1)(definition of customs vessel )

463. These items repeal the definition of "customs vessel" and insert a new definition of "Australian Border Force vessel" in section 14 of the Navigation Act. The new definition refers to section 17 of the Navigation Act.

Item 115 - Subsection 14(1) (definition of officer of Customs )

464. This item corrects a technical error in the definition of "officer of Customs" by omitting "Officer" and substituting "officer of Customs".

Item 116 - Subsection 15(2)

465. This item amends subsection 15(2) by omitting the reference to "a customs vessel" and substitute it with a reference to "an Australian Border Force vessel". Section 15 sets out the definition of "regulated Australian vessel" for the purposes of the Navigation Act and this will mean that an ABF vessel will become a regulated Australian vessel.

Items 117 to 122- Section 17 (heading); subsection 17(1); paragraph 17(1)(a); paragraph 17(1)(b); subsection 17(1) (note); and subsection 17(2)

466. The combined effect of these items is to amend the definition of "customs vessel' in section 17 of the Navigation Act to substitute with the new inserted definition of "Australian Border Force vessel".

467. A vessel will be an ABF vessel if it used for the purposes of the ABF (within the meaning of the ABF Act) and is declared by AMSA to be an ABF vessel.

468. These items will also repeal the note to subsection 17(1) which refers to the Customs Administration Act which is to be repealed.

Items 123, 124 and 125 - Section 237 (heading); section 237; and subsection 240(4)

469. Parts 2 and 3 of Chapter 7 of the Navigation Act set out powers in relation to wrecks and salvage respectively. Sections 237 and 240 state that powers exercisable under these Parts respectively do not derogate from or interfere with the powers of the ACBPS, the CEO or an officer of Customs conferred by any Act.

470. As a consequence of the abolition of Customs and the office of CEO, these items will amend these provisions to omit the references to Customs and the CEO.

Items 126 to 132 - Subsection 244(3); paragraph 249(1)(a); section 252 (heading); subsection 252(3) (heading); subsection 252(3); subsection 252(4); and subsection 252(6)

471. Chapter 8 of the Navigation Act sets out the enforcement powers for the Act which includes powers that are presently exercisable by ACBPS. Under section 252 of the Navigation Act, ACBPS may detain a vessel in certain circumstances, where an application has been made to clear the vessel under the Customs Act for a voyage from an Australian port.

472. As a result of the abolition of Customs, the combined effect of the amendments in these items is to delete all references to Customs in these provisions and substitute with references to officers of Customs. These amendments do not otherwise affect the operation of these provisions.

Item 133 - Paragraph 253(a)

473. This item corrects an incorrect cross-reference in this section to section 247 of the Navigation Act. The correct cross-reference is to section 248. This is a technical amendment only.

Items 134 and 135 - Paragraph 313(2)(a); and paragraph 313(2)(b)

474. These items correct incorrect cross-references in these paragraphs to section 249 and 251 respectively of the Navigation Act. The correct cross-references are to section 250 and subsection 252(3) respectively. These are technical amendments only.

Item 136 - Transitional provisions

475. This item contains three transitional provisions. First, in relation to the detention of a vessel under section 252 of the Navigation Act by ACBPS. This provision ensures that a vessel detained by Customs immediately before the comment of this item, that is 1 July 2015, will continue to be detained by an officer of Customs after that date.

476. Second, in relation to a declaration made by AMSA under section 17, such declaration in effect under section 17 immediately before the commencement of this item, that is 1 July 2015, that relates to a customs vessel continues in effect under that section on and after 1 July 2015 as if it were a declaration made in relation to an ABF vessel.

477. Third, in relation to a customs vessel management plan, such plan made under section 11 and is in effect immediately before the commencement of this item, that is 1 July 2015, that relates to a vessel or person continues in effect under that section on and after 1 July 2015 as if it were an Australian Border Force vessel management plan that relates to the vessel or person.

Offshore Petroleum and Greenhouse Gas Storage Act 2006

Item 137 - Paragraph 615(1)(d)

478. The Offshore Petroleum and Greenhouse Gas Storage Act 2006 (the OPGGS Act) provides for matters relating to petroleum exploration and recover, the injection and storage of greenhouse gas substances in offshore areas, as well as other purposes.

479. This item corrects a technical error in the definition of authorised person for the purposes of Part 6.6 of Chapter 6 within the OPGGS Act by omitting the reference to "officer of customs" within paragraph 615(1)(d) and substituting it with "officer of Customs".

480. This will ensure that the terminology is consistent with the definition of "officer of Customs" in the Customs Act.

Item 138 - Paragraph 695X(2)(e)

481. Paragraph 695X(2)(e) refers to "Customs" as an agency to which the CEO of the National Offshore Petroleum Safety and Environmental Management Authority may make available offshore information or a thing for the agency to use in the course of the exercise of the agency's powers, or the performance of the agency's functions, under or for the purposes of the law.

482. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015, this amendment will delete the reference to "Customs" and replace it with "the Department administered by the Minister administering Part XII of the Customs Act 1901".

Item 139 - Transitional provision

483. This item contains a provision to set out a transitional provision in relation to offshore information or a thing made available to the ACBPS before 1 July 2015.

484. The effect of this provision is that for offshore information or a thing made available to Customs under subsection 695X(1) of the OPGGS Act, before 1 July 2015, it is taken on or after 1 July 2015 to have been made to the Department administered by the Minster administering Part XII of the Customs Act.

Privacy Act 1988

485. The Privacy Act provides for the protection of the privacy of individuals, and for related purposes such as information privacy, credit reporting, as well as establishing the Privacy codes and the Information Commissioner, amongst other matters.

Item 141 - Subsection 6(1) (paragraph (c) of the definition of enforcement body )

486. Section 6 of the Privacy Act provides the interpretation of certain references used within the Privacy Act. Under this section it includes a definition for the reference enforcement body. Paragraph (c) of this definition refers to "Customs".

487. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS Service on 1 July 2015, this amendment will delete the reference to "Customs".

Item 142 - Transitional provision

488. This item contains a provision to set out a transitional provision in relation to a disclosure of information to ACBPS before 1 July 2015 as mentioned in paragraph 20E(3)(d) and 21G(3)(d).

489. Both paragraph 20E(3)(d) and paragraph 21G(3)(d) refer to disclosure to an enforcement body as permitted disclosures for the purposes of these paragraphs.

490. The effect of this provision is that disclosure of information to ACBPS for the purposes of paragraphs 20E(3)(d) and 21G(3)(d) before 1 July 2015, is taken on or after 1 July 2015 to have been a disclosure to the Immigration Department. Note the Immigration Department is listed as an enforcement body under paragraph (ca) of the definition of enforcement body within section 6 of the Privacy Act.

Proceeds of Crime Act 2002

Item 143 - Subsection 15B(1) (note 1)

491. The Proceeds of Crime Act 2002 (the POC Act) provides for the confiscation of the proceeds of crime, and contains provisions relating to freezing orders, restraining orders, forfeiture orders, penalty orders and other matters.

492. Note 1 to subsection 15B(1) of the POC Act provides that paragraphs (a), (aa), (b) and (c) of the definition of "authorised officer" in section 338 cover certain persons performing functions under the POC Act for certain Commonwealth agencies including "Customs".

493. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015 this amendment will delete the reference to "Customs" and substitute it with "the Immigration and Border Protection Department".

Item 144 - Section 15C (note)

494. The note to section 15C of the POC Act provides that paragraphs (a), (aa), (b) and (c) of the definition of "authorised officer" in section 338 cover certain persons performing functions under the POC Act for certain Commonwealth agencies including "Customs".

495. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015 this amendment will delete the reference to "Customs" and substitute it with "the Immigration and Border Protection Department".

Item 145 - Subsection 15D(1) (note)

496. The note to subsection 15D(1) of the POC Act provides that paragraphs (a), (aa), (b) and (c) of the definition of "authorised officer" in section 338 cover certain persons performing functions under the POC Act for certain Commonwealth agencies including "Customs".

497. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015 this amendment will delete the reference to "Customs" and substitute it with "the Immigration and Border Protection Department".

Item 146 - Subsection 15P(1) (note)

498. The note to subsection 15P(1) of the POC Act provides that paragraphs (a), (aa), (b) and (c) of the definition of "authorised officer" in section 338 cover certain persons performing functions under the POC Act for certain Commonwealth agencies including "Customs".

499. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015 this amendment will delete the reference to "Customs" and substitute it with "the Immigration and Border Protection Department".

Protection of Movable Cultural Heritage Act 1986

500. The Protection of Movable Cultural Heritage Act 1986 (the PMCH Act) provides for the protection of Australia's heritage of movable cultural objects, to support the protection by foreign countries of their heritage of movable cultural objects, and other related purposes. The PMCH Act provides for matters such as the exportation, importation of, and the enforcement regime with respect to, such movable cultural objects.

Item 147 - Subsection 3(1)

501. Subsection 3(1) of the PMCH Act provides for the interpretation of various references used within the PMCH Act.

502. A Customs officer is referred to in the PMCH Act in the context of someone who is able to deliver an object, being a movable cultural object, to an inspector under section 203T of the Customs Act.

503. This item will insert into subsection 3(1) the definition of "officer of Customs", which as a result of Item 148 below, omits and substitutes the reference to "a Customs officer". The new definition will read "officer of Customs has the meaning given by subsection 4(1) of the Customs Act 1901".

Item 148 - Subsection 27(2)

504. This item will omit the reference to "a Customs officer" and substitute it with "an officer of Customs".

505. This will ensure that the terminology is consistent with the definition of "officer of Customs" in the Customs Act.

Surveillance Devices Act 2004

506. The Surveillance Devices Act 2004 (the Surveillance Devices Act) sets out the powers of the Commonwealth law enforcement agencies with respect to surveillance devices and other related purposes, including provisions with respect to warrants, emergency authorisations, and compliance and monitoring, amongst other matters.

Item 149 - Subsection 6(1)

507. Subsection 6(1) of the Surveillance Devices Act provides for the definition of certain references used throughout the Act.

508. This item will insert for the purposes of the Surveillance Devices Act a definition for "Immigration and Border Protection Department" which means "the Department administered by the Minister administering the Australian Border Force Act 2015."

Item 150 - Subsection 6(1) (paragraph (c) of the definition of target agency )

509. Paragraph (c) of the definition of "target agency" in subsection 6(1) of the Surveillance Devices Act refers to "Customs" as being a target agency.

510. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015, this amendment will delete the reference to "Customs" and substitute it with "the Immigration and Border Protection Department".

Item 151 - Transitional provisions

511. This item sets out the transitional provisions in relation to:

·
a surveillance device warrant in force before 1 July 2015, being a warrant issued as a result of an application under subsection 14(3B) of the Surveillance Devices Act in relation to a staff member of Customs; or
·
an application for a warrant under subsection 14(3B) of the Surveillance Devices Act in relation to a staff member of Customs that was pending immediately before 1 July 2015.

512. The effect of this provision is that where a warrant under section 14(3B) is in force or an application for such a warrant is pending prior to 1 July 2015 in relation to a staff member of Customs, that warrant will remain in force or the application will remain in force, with respect to that staff member.

513. This item also provides for a transitional provision so that section 45A of the Surveillance Devices Act, as in force before 1 July 2015 will continue to apply after 1 July 2015.

514. Section 45A of the Surveillance Devices Act provides that protected information may be used, recorded, communicated or published, or may be admitted in evidence, if it is necessary do so for a number of listed purposes related to integrity operations.

515. The effect of this provision is that any protected information related to integrity operations which was used, recorded, communicated or published or admitted in evidence prior to 1 July 2015 may also be used, recorded, communicated or published or admitted in evidence post 1 July 2015 if it is in relation to a person who was a staff member of Customs at any time prior to 1 July 2015 and it is necessary for a purpose listed in relation to integrity operations.

516. The item also provides that the amendments to the Surveillance Devices Act made under this Schedule to this Bill do not affect the validity of a retrieval warrant in force immediately before 1 July 2015.

517. This provision will enable a law enforcement officer to retrieve a surveillance device after 1 July 2015 if a retrieval warrant was in place immediately prior to 1 July 2015.

Taxation Administration Act 1953

Item 152 - Subsection 155-15(1) in Schedule 1 (cell at table item 3, column 2)

518. Column 2 of table item 3 within the table at subsection 155-15(1) in Schedule 1 of the Taxation Administration Act 1953 (the Taxation Administration Act) provides that Customs is a recipient for a document with respect to a self-assessment about the GST payable by a person on a taxable importation.

526. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015, this amendment will delete the reference to "Customs" and substitute it with "the Collector (within the meaning of the Customs Act 1901) or the Department administered by the Minister administering Part XII of that Act".

Item 153 - Paragraph 155-20(1)(a) in Schedule 1

527. Paragraph 155-20(1)(a) in Schedule 1 of the Taxation Administration Act provides that the Commissioner of Taxation is treated as having made an assessment of a taxpayer's GST, Luxury Car Tax, or Wine Equalisation Tax liability payable on a taxable importation, taxable importation of a luxury car or customs dealing if an import declaration is communicated to Customs in respect of the importation or dealing.

528. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015, this amendment will delete the reference to "Customs" and substitute it with "the Department administered by the Minister administering Part XII of the Customs Act 1901".

Item 154 - Paragraph 155-20(1)(b) in Schedule 1

529. Paragraph 155-20(1)(b) in Schedule 1 of the Taxation Administration Act provides that the Commissioner of Taxation is treated as having made an assessment of a taxpayer's GST, Luxury Car Tax, or Wine Equalisation Tax liability payable on a taxable importation, taxable importation of a luxury car or customs dealing if an import declaration is communicated to Customs in respect of the importation or dealing and Customs issues an self-assessed clearance declaration advice to an entity in respect of the importation or dealing.

530. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015, this amendment will delete the second reference to "Customs" and substitute it with "a Collector (within the meaning of the Customs Act 1901)".

Item 155 - Subsection 155-20(1) in Schedule 1 (heading to column 1 in table)

531. The heading to column 1 in the table in subsection 155-20(1) refers to "Customs documents". "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015, this amendment will delete the reference to "Customs" so that the heading just refers to "documents" to be communicated.

Item 156 - Subsection 155-20(2) in Schedule 1

532. Subsection 155-20(2) in Schedule 1 of the Taxation Administration Act provides that the assessment under section 155-5 of the Act is treated as having been made on the day that Customs gives the documented mentioned in subsection 155-20(1)(b) to the entity.

533. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015, this amendment will delete the reference to "Customs" and replace it with "a Collector (within the meaning of the Customs Act 1901)".

Item 157 - Paragraph 155-20(4)(b) in Schedule 1

534. Paragraph 155-20(4)(b) in Schedule 1 includes a reference to "Customs" with respect to Customs giving a document under paragraph 155(1)(b) to the entity.

535. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015, this amendment will delete the reference to "Customs" and replace it with "a Collector (within the meaning of the Customs Act 1901)".

Item 158 - Paragraph 155-40(2)(b) in Schedule 1

536. Paragraph 155-40(2)(b) in Schedule 1 of the Taxation Administration Act provides that a notice of an amended assessment is treated as being given to the taxpayer on the day Customs gives an import declaration advice, or a self-assessed clearance declaration advice, to an entity in respect of the relevant taxable importation, taxable importation of a luxury car or customs dealing as a result of the amendment.

537. "Customs" in this context means the ACBPS established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015, this amendment will delete the reference to "Customs" and replace it with "a Collector (within the meaning of the Customs Act 1901)".

Item 159 - Saving and transitional provisions

538. This item sets out saving and transitional provisions in respect of the amendments to the Taxation Administration Act by the above items.

539. The provisions are such that:

·
section 155-15 in Schedule 1 as in force immediately before 1 July 2015 continues to apply on and after 1 July 2015 in relation to a documents mentioned in column 3 of item 3 of the table in subsection 155-15(1) that was given to Customs before 1 July 2015;
·
section 155-20 in Schedule 1 as in force immediately before 1 July 2015, continues to apply on and after 1 July 2015 in relation to a document mentioned in column 1 of item 1 or 2 of the table in subsection 155-20(1) communicated before 1 July 2015 to Customs in respect of an importation or dealing; and a document mentioned in column 2 of that table item communicated given before 1 July 2015 by Customs to an entity in respect of that importation or dealing;
·
if, before 1 July 2015, a document mentioned in column 1 of item 1 or 2 of the table in subsection 155-20(1) was communicated to Customs in respect of an importation or dealing; but before 1 July 2015, Customs had not given the document mentioned in column 2 of that table item to an entity in respect of that importation or dealing then section 155-20 in that Schedule applies on and after 1 July 2015 as if the document mentioned in column 1 of that table item had been communicated to the Department administered by the Minister administering Part XII of the Customs Act; and
·
section 155-40 in Schedule 1, as in force immediately before 1 July 2015, continues to apply on and after 1 July 2015 in relation to an advice mentioned in paragraph 155-40(2)(b) in that Schedule that was given by Customs to an entity before 1 July 2015.

Telecommunications Act 1997

Item 160 - Paragraph 47(2)(aa) of Schedule 3A

540. The Telecommunications Act 1997 (the Telecommunications Act) makes provisions about telecommunications and other related purposes. These provisions deal with matters including network units, carriers, service providers, industry codes and industry standards, amongst others.

541. Paragraph 47(2) of Schedule 3A of the Telecommunications Act provides for the relevant authorities to whom the ACMA must notify, if they declare a protection zone under clause 4 of Schedule 3A of the Act or vary or revoke a declaration under clause 23 of Schedule 3A of the Act.

542. Paragraph 47(2)(aa) references the "Australian Customs and Border Protection Service" as such an authority to which ACMA must notify.

543. The "Australian Customs and Border Protection Service" in this context means the ACBPS as established under the Customs Administration Act. Following the repeal of the Customs Administration Act and the abolition of the ACBPS on 1 July 2015, this amendment will delete the reference to the "Australian Customs and Border Protection Service" and substitute it with "the Department administered by the Minister administering Part XII of the Customs Act 1901".

Item 161 - Transitional provision

544. This item provides for a transitional provision, such that a notification given under subclause 47(1) of Schedule 3A before 1 July 2015 to the ACBPS is taken on or after 1 July 2015 to have been a notification given to the Department administered by the Minister administering Part XII of the Customs Act.

Telecommunications (Interception and Access) Act 1979

545. The stated general purpose of the TIA Act is to prohibit the interception of, and other access to, telecommunications except where authorised in special circumstances. Interception and access of telecommunications under the Act can be undertaken by certain bodies that come with the definition of "criminal law enforcement agency" and "enforcement agency".

546. ACBPS is currently included in the definition of "criminal law enforcement agency" as it is prescribed in regulations made for the purposes of that definition. The Department is currently not a criminal law enforcement agency, but is an enforcement agency under paragraph (n) of that definition as it is a body that has the function of administering a law imposing a pecuniary penalty. A criminal law enforcement agency is a subset of agencies that are enforcement agencies, being bodies covered by paragraphs (a) to (k) of the definition of "criminal law enforcement agency". The powers available to a criminal law enforcement agency are the same as the powers available to an enforcement agency. The only difference is that a criminal law enforcement agency can seek authority to access prospective telecommunications.

547. It is proposed that the integrated Department will gain the status as a "criminal law enforcement agency". This will enable the continued operation capability of key activities currently performed by the ACBPS, which will in the future be undertaken within the integrated Department.

Item 162 - Subsection 5(1) (after paragraph (d) of the definition of enforcement agency )

548. This item will insert a new paragraph (da) into the definition of "enforcement agency". Therefore, by virtue of the definition of "criminal law enforcement agency", the Department will automatically become a "criminal law enforcement agency".

Item 163 - Subsection 5(1)

549. This item will insert a definition of the "Immigration and Border Protection Department" for the purposes of the TIA Act, which will means the Department administered by the Minister administering Part XII of the Customs Act.

Items 164 to 170 - Subsection 5(1) (definition of permitted purpose ); subsection 5(1) (paragraphs (a) and (aaa) of the definition of permitted purpose ); subsection 6S(1); subsection 6S(1) (table, heading to column 1); subsection 6S(1) (table item 1, column 1, paragraph (d)); subparagraph 68(n)(i); and subparagraphs 68(o)(i) and (ii)

550. Under the TIA Act, lawfully intercepted information and interception warrant information that is obtained by certain agencies can be communicated to persons for use for very limited permitted purposes or in limited circumstances under sections 67 and 68 of the TIA Act respectively. Some of these permitted purposes and circumstances currently relate to the ACBPS and are set out in a table in section 6S of the TIA Act and in section 68 itself respectively.

551. The amendments in these items will ensure that the lawfully intercepted information and interception warrant information can be communicated to persons to instead use for permitted purposes or in circumstances that relate to the integrated Department.

552. The amendments in items 162 to 170 could be affected by other proposed amendments to the TIA Act that are contingent on the enactment of the Data Retention Amendment Act. These proposed amendments are set out in the clause notes for Schedule 8 below(contingent amendments).


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