Explanatory Memorandum
(Circulated by authority of the Minister for Law Enforcement and Cyber Security, the Honourable Angus Taylor MP)Attachment A - Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Customs Amendment (Pacific Agreement on Closer Economic Relations Plus Implementation) Bill 2018 (the Bill)
The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
On 14 June 2017, in Nuku'alofa, Tonga, representatives of Australia, New Zealand, the Cook Islands, Kiribati, Nauru, Niue, Samoa, Solomon Islands, Tonga and Tuvalu signed the Pacific Agreement on Closer Economic Relations Plus (the Agreement). Vanuatu signed Agreement in Apia, Samoa on 7 September 2017.
The Agreement is a comprehensive World Trade Organisation consistent regional economic integration agreement, which covers goods, services and investment and establishes rules and commitments between the Parties to the Agreement.
The purpose of the Bill is to amend the Customs Act 1901 (the Customs Act) to introduce new rules of origin for goods imported into Australia from a Party to the Agreement. In particular, the Bill will:
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- introduce new rules of origin to determine eligible goods to be subject to preferential treatment of customs duty in accordance with the Agreement. Goods that satisfy the new rules of origin are referred to as Pacific Islands originating goods;
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- impose record keeping obligations on exporters that export goods to a Party to the Agreement and who make a claim that the goods exported are originating goods in accordance with the Agreement; and
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- enable an authorised officer (as defined in subsection 4(1) of the Customs Act) to disclose personal information (including Immigration and Border Protection information within the meaning of the Australia Border Force Act 2015) to a Pacific Islands customs officials for the purposes of verifying the claims for origin of goods exported to a Party to the Agreement. Pacific Islands customs official means a person representing a Customs Administration to a Party to the Agreement.
The amendments contained in this Bill will be operative on the later of the day on which this Act receives the Royal Assent and the day on which the Agreement done at Nuku'alofa on 14 June 2017 enters into force for Australia.
A separate Customs Tariff Amendment (Pacific Agreement on Closer Economic Relations Plus Implementation) Bill 2018 will amend the Customs Tariff Act 1995 to make complementary amendments to set out the preferential rates of customs duty for the importation of Pacific Islands originating goods.
Human rights implications
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- This Bill engages the Right to not be subjected to arbitrary or unlawful interference with privacy in Article 17 of the International Covenant on Civil and Political Rights (ICCPR).
Under Article 15 of Chapter 3 of the Agreement, a Declaration of Origin completed by the exporter or producer or an authorised representative of the exporter or producer shall support a claim that goods are eligible for preferential tariff treatment in accordance with the Agreement. The key information that must be included in a Declaration of Origin is detailed in Annex 3-A to Chapter 3 of the Agreement and includes personal information.
The Bill in part inserts new sections 126AKF, 126AKG and 126AKH into the Customs Act to enable regulations to prescribe record keeping obligations that apply in relation to originating goods in accordance with the Agreement exported from Australia to another Party to the Agreement.
The obligations imposed reflect those set out in Articles 12 and 19 of Chapter 3 of the Agreement in respect of the retention of records and the verification of origin. The new sections allow a Party to the Agreement to which originating goods are exported to verify the origin of such goods. This may include the collection and disclosure of personal information, including those set out in a Declaration of Origin, for limited purposes. This information may be disclosed to a Pacific Islands customs official for the purpose of verifying claim for a preferential tariff in a Party to the Agreement.
To the extent the Bill will allow for the collection and disclosure of information, the Bill engages the right to privacy under Article 17 of the ICCPR. Article 17(1) sets out:
No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
Following the enactment of the Bill, the collection and disclosure of personal information in relation to goods claiming to be originating goods, will be permitted. Further, the collection and disclosure of personal information is authorised under Australian law and the Bill will not alter the existing protections.
The verification of the eligibility for preferential treatment is required under the Agreement and the measure in the Bill is directed at the legitimate purpose of facilitating and supporting Australia's international obligations under the Agreement. This collection and disclosure of personal information will only be permitted for the limited purpose of verifying a claim made by a person for preferential tariff treatment making it a reasonable and proportionate response to a legitimate purpose. As such, the collection and disclosure of personal information in these circumstances will not constitute an unlawful or arbitrary interference with privacy.
Conclusion
The Bill is compatible with human rights because to the extent that it may engage the right to privacy, will not constitute an unlawful or arbitrary interference with privacy.