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 (Comprehensive and Progressive Agreement for Trans-Pacific Partnership 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
The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (the TPP-11) was signed on 8 March 2018 in Santiago in Chile, by the Minister for Trade, Tourism and Investment, the Hon. Steve Ciobo MP for Australia and by representatives for Brunei, Canada, Chile, Japan, Malaysia, Mexico, Peru, New Zealand, Singapore, and Vietnam.
The TPP-11 is a separate treaty that incorporates, by reference, the provisions of the original Trans-Pacific Partnership (the TPP) as signed by Ministers on 4 February 2016 in Auckland, New Zealand (Article 1 of the TPP-11 refers). By way of an example, this means that Chapters 1 and 3 of the TPP are Chapters 1 and 3 of the TPP-11.
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 TPP-11. 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 TPP-11. Goods that satisfy the new rules of origin are referred to as Trans-Pacific Partnership originating goods;
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- impose record keeping obligations on exporters that export goods to a Party to the TPP-11 and who make a claim that the goods exported are originating goods in accordance with the TPP-11; 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 Trans-Pacific Partnership customs officials for the purposes of verifying the claims for origin of goods exported to a Party to the TPP-11. Trans-Pacific Partnership customs official means a person representing a Customs Administration to a Party to the TPP-11.
The amendments contained in this Bill will be operative on the later of, the day on which this Bill receives the Royal Assent, and the day on which the TPP-11 done at Santiago Chile on 8 March 2018, enters into force for Australia.
Complementary amendments will also be made by the Customs Tariff Amendment (Comprehensive and Progressive Agreement for Trans-Pacific Partnership Implementation) Bill 2018, when enacted, to the Customs Tariff Act 1995 to give effect to the preferential treatment of customs duty in accordance with the TPP-11.
Human rights implication
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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 TPP-11, a certification of origin document 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 TPP-11. The key information that must be included in a 'certification of origin' document is detailed in Article 3.20 of, and Annex 3-B to, Chapter 3 of the TPP-11 and includes personal information.
The Bill in part inserts new sections 126AKJ, 126AKK and 126AKL into the Customs Act to enable regulations to prescribe record keeping obligations that apply in relation to originating goods in accordance with the TPP-11 exported from Australia to another Party to the TPP-11.
The obligations imposed reflect those set out in Article 3.27 of Chapter 3 of the TPP-11 in respect of the retention of records and the verification of origin. The new sections allow a Party to the TPP-11 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 'certification of origin' document, for limited purposes. This information may be disclosed to a Trans-Pacific Partnership customs official for the purpose of verifying claim for a preferential tariff in a Party to the TPP-11.
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 TPP-11 and the measure in the Bill is directed at the legitimate purpose of facilitating and supporting Australia's international obligations under the TPP-11. 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.