House of Representatives

Replacement Explanatory Memorandum

(Circulated by authority of the Minister for Communications, the Honourable Michelle Rowland)

GENERAL OUTLINE

1. The purpose of the Australian Postal Corporation and Other Legislation Amendment Bill 2024 (the Bill) is to further strengthen Australia's legislative framework for the screening, and inspection, of incoming international mail at the border, so it continues to operate effectively and ensures the security of postal articles.

2. Part 7B of the Australian Postal Corporation Act 1989 (the Act) prohibits the opening and examination of articles, and the disclosure of information and documents in relation to articles except in specified circumstances. It also provides for the dealing with articles and their contents, including through other legislative regimes contained in the Customs Act 1901, Biosecurity Act 2015 and the Imported Food Control Act 1992.

3. In recent years, a number of deficiencies, including areas of ambiguity, with the operation of Part 7B of the Act have been identified by Australia Post and border agencies. These have been exacerbated by increasing parcel and declining letter volumes, increased use of automation and the increased availability of electronic advanced data for intelligence led and risk-based screening.

4. The Bill seeks to ensure that the security-related elements of the Act are strong and continue to be relevant, and provide for the opportunity to increase the capacity for operational efficiencies and innovation in a changing mail and security environment.

5. Schedule 1 to the Bill amends the Act to address security-related vulnerabilities identified in the mail stream, improves operational flexibility, and provides greater certainty for officials responsible for border control and postal activities at international mail gateways where those activities involve the screening, inspection of, and where warranted, intervention with, international mail. Specifically, these measures will:

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allow Australia Post employees to disclose information or documents to prescribed persons, and particularly officials and officers of Commonwealth, State and Territory bodies, to assist in the performance of their functions or duties;

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extend the operation of secondary disclosure provisions to include new prescribed persons;

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clarify the existing offence provisions to make clear officers of border agencies and members of a police force or service are permitted to open and examine articles where it is authorised under the Act and any other laws; and

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streamline provisions in Part 7B of the Act that deal with articles and their contents by removing burdensome provisions that do not support the operational effectiveness of the legislation, and concepts that have become irrelevant over time.

6. The Act prohibits the disclosure of information and documents about an article except in specified circumstances. These exceptions include that, among other things, the disclosure is required under a law of the Commonwealth, or certain laws establishing commissions to conduct investigations and inquiries, or for the specific purpose of administering a scheme under the Sport Integrity Australia Act 2020. The Act does not allow disclosures to Commonwealth, State and Territory bodies, to assist in the performance of their functions or duties, even if they may involve postal articles or the use of postal services provided by Australia Post. The Bill will also introduce a new exception to permit the disclosure of information or a document about articles to specified persons to assist them to exercise their powers, or perform any of their functions or duties. The new measures will also allow the Secretary of the administering department to prescribe, by legislative instrument, an agency or authority of the Commonwealth, a State or a Territory for this purpose, and include prescribed persons in the secondary disclosure regime under the Act. This change will also allow Australia Post to share aggregated data with prescribed agencies or authorities to assist them to conduct analysis to inform operational and resource planning, and risk profiling.

7. If an employee of Australia Post knows, or has reasonable grounds for suspecting, that the article contains something that is or could be explosive, dangerous or deleterious, the article may be dealt with in accordance with Australia Post's service terms and conditions, as provided for under section 32 of the Act. The Bill includes a measure to incorporate these provisions into the Act, reflecting the serious conditions and risks in dealing with postal articles, which from time to time contain explosive, dangerous and injurious goods.

8. The Bill contains a number of amendments to simplify terminology and legislative processes to provide greater certainty to Australia Post employees, and customs and biosecurity officers responsible for the inspection and examination of mail, and ease the burden of compliance.

9. In particular, the Bill will remove the requirement for Australia Post employees to be appointed by their employer as an 'authorised discloser' in order to use and disclose information or documents.

10. The existing exceptions that permit the use and disclosure of information or documents about an article by Australia Post employees are currently categorised as 'specially protected' or 'not specially protected'. 'Specially protected' means 'information that is clearly visible on, or through, the outside of the covering or packaging of an article'. The Bill will amend the Act to remove the distinction between these categories, so all information about an article is protected and prohibited from disclosure unless permitted by the exceptions.

11. Currently, under the Act, the opening and examination of postal articles is prohibited except in specified circumstances and must be undertaken by a person who is authorised by Australia Post, which may include customs or biosecurity officers. The Bill will remove this requirement and specify in plain terms the persons who are permitted to open and examine mail. The Bill also contains other amendments to enable the same Australia Post employee or customs officer to open an article and to take multiple steps to enable its delivery and confirmation of whether the contents are subject to duties or taxes, and may lawfully be carried.

12. The Bill also makes consequential amendments to the Criminal Code Act 1995 – specifically, to the terminology for postal offences to reflect updated definitions that describe when an article is in the course of post.

13. The measures in the Bill have been developed in consultation with relevant stakeholders over an extended period, to ensure the measures are operationally fit-for-purpose regardless of further advancements in technology – in particular, Australia Post, Australian Border Force, and the Department of Agriculture, Fisheries and Forestry. The Attorney-General's Department and the Office of the Australian Information Commissioner were also consulted on potential privacy impacts.

14. The amendments made to the Act by Schedule 1 to the Bill will commence on a date to be fixed by Proclamation. If a date of Proclamation were to be fixed, it would be intended to allow sufficient time for Australia Post, border agencies and other prescribed persons to put in place appropriate administrative and operational arrangements and procedures for the purposes of the amendments. If no date is fixed by Proclamation, Schedule 1 to the Bill would commence 6 months after the Bill received the Royal Assent.

FINANCIAL IMPACT STATEMENT

15. The Bill is not expected to have any material financial impact on Commonwealth expenditure or revenue, with inspection costs continuing to be met under current arrangements. Australia Post may be subject to other costs associated with goods being examined by a Customs Officer. However, these costs are not expected to be significant.

ABBREVIATIONS

16. The following abbreviations are used in this explanatory memorandum:

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Australian Postal Corporation and Other Legislation Amendment Bill 2024

1. This 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

2. The purpose of the Australian Postal Corporation and Other Legislation Amendment Bill 2024 (the Bill) is to amend the Australian Postal Corporation Act 1989 (the Act) to implement a range of measures to ensure the security of incoming international mail in the context of a changing mail and security environment.

3. The Bill contains a range of measures to enhance the existing legislative framework by improving the operation of disclosure provisions, streamlining administrative arrangements required under the framework, and improving arrangements to better deal with the forfeiture, disposal and destruction of postal articles or their contents.

Human rights implications

4. This Bill engages the right to privacy in Article 17 of the International Covenant on Civil and Political Rights (the ICCPR), and also referred to in Article 16 of the Convention on the Rights of the Child (the CROC), and Article 22 of the Convention on the Rights of Persons with Disabilities (the CRPD).

5. It also engages the right to the presumption of innocence in Article 14 of the ICCPR.

Disclosure of information and documents

Right to protection against arbitrary or unlawful interference with privacy

6. The Bill limits the right to privacy by expanding the range of permissible circumstances for the use and disclosure of information and documents held by Australia Post. This measure is reasonable, necessary and proportionate because it only allows access to information and documents in relation to a mail article where it is required or permitted by law.

7. Today's postal network is now used to facilitate domestic and international commerce and trade, as well as the importation and exportation of goods to and from Australia, driven by a growing eCommerce sector. For this reason, it is critical that Australia Post and border agencies can efficiently and effectively cooperate and share relevant information with other regulators and government agencies during investigative and regulatory activities.

8. The Bill contains measures to introduce a new exception to the existing disclosure regime to better facilitate information sharing with Commonwealth, State and Territory bodies to assist in the performance of their functions or duties. It will also insert new provisions that will permit secondary disclosures of information and documents between government agencies, under strict parameters to assist in the performance of their functions or duties. Existing exceptions to the prohibition on disclosure will continue to apply.

9. The proposed measures in the Bill ensure that any use or disclosure of information received under this exception must be for the permitted purpose, and is limited to law enforcement and emergency services, and Commonwealth, State or Territory government agencies with specific powers and functions that may overlap with postal services. The Bill will insert provisions to authorise the Minister to prescribe other various persons that may be disclosed to under the regime. Where this power is delegated to the Secretary of the administering department, they are to be implemented in a legislative instrument and would be subject to parliamentary scrutiny.

10. Contravention of the permissible exceptions is an offence punishable on conviction by a maximum of 2 years imprisonment. This strikes an appropriate balance between protecting a person's right to privacy and the prevention of threats to security and unlawful conduct, which may have wider implications for the community.

11. The Bill will not change or increase the type of information which can be requested and disclosed through the operation of the provisions. Australia Post and government agencies at all levels are already required to have established protocols to manage and handle any sensitive and personal data and information.

12. The Bill promotes the right to privacy and also contains measures to streamline provisions in the Act to simplify the existing disclosure regime. The proposed amendments will provide greater clarity on the agencies, and purposes for which, Australia Post is able to share information and documents. This will mitigate the risk of inadvertent disclosure and/or use of personal information, but also ensure that where an urgent disclosure is required, the disclosure can be made quickly and without delay or detriment of the health and safety of a person or the community.

13. The proposed measures will remove the irrelevant concept of 'specially protected' information and documents from the disclosure regime to ensure that information and documents held by Australia Post are appropriately handled, consistent with the Australian Privacy Principles outlined in the Privacy Act 1988 (the Privacy Act).

Opening of mail and examination of an article or its contents

Right to protection against arbitrary or unlawful interference with privacy

14. The Act provides for a general prohibition on the opening and examination of mail articles. The Bill limits the right to privacy by expanding the range of permissible circumstances in which a mail article may be opened and examined by Australia Post and border agencies.

15. The Bill contains measures to create a new exception to this prohibited conduct that would apply if the conduct itself is to either be: permitted by another law of the Commonwealth, or a State or Territory; or performed by a member of the Australian Federal Police or other State and Territory police force or service; or a person prescribed by the Minister in a legislative instrument, under strict parameters to assist in the performance of their functions or duties and allow earlier interception of an article.

16. The Bill also engages the right to privacy by inserting new provisions to authorise the Minister to prescribe other various persons that may examine without opening articles, which is permitted to allow articles to be screened without physically interfering with the cover of the article by technology such as X-ray, metal detector or odour detector.

17. These measures are reasonable, necessary and proportionate because it only allows the opening and examination of mail articles where it is required or permitted by law. Where the Minister has powers to prescribe other persons to open and/examine articles, these powers are to be implemented in a legislative instrument and would be subject to parliamentary scrutiny.

18. The Bill enhances the right to privacy through measures to streamline provisions in the Act to simplify the rules for opening and examination of articles. The proposed amendments will provide greater clarity as to the circumstances when articles may be opened and examined, and their contents checked by law enforcement and border agencies.

19. The exceptions or circumstances in which an article may be opened and examined will not change.

Right to a presumption of innocence until the prosecution proves a charge beyond reasonable doubt

20. The Bill engages, but does not limit, the right to a presumption of innocence under Article 14 of the ICCPR.

21. The Bill creates new exceptions to an existing offence under section 90N. The notes for these provisions state a defendant bears an evidential burden in relation to such matters.

22. An evidential burden requires a defendant to provide evidence that suggests a reasonable possibility that the exception or defence is made out. Once the defendant has met the evidential burden, the prosecution must refute the exception or defence and prove all elements of the offence beyond reasonable doubt. However, the evidential burden may amount to a limitation on the presumption of innocence where a defendant fails to establish an absence of fault to discharge an evidentiary burden of proof.

Conclusion

23. The Bill is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. To the extent that it limits some rights, those limitations are reasonable, necessary and proportionate in achieving a legitimate objective.

Notes on Clauses

Clause 1 – Short title

1. This clause provides for the short title of the Act to be the Australian Postal Corporation and Other Legislation Amendment Act 2024.

Clause 2 – Commencement

2. This clause provides for the commencement of provisions in the Bill, as set out in the table within the clause. The effect of items within the table in subclause 2(1) is to enable different parts of the Bill to commence at different times. Each provision of the Bill specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 in the table.

3. Section 1 to 3 of the Act will commence the day after the Act receives the Royal Assent.

4. The amendments made to the Act by the items in Schedule 1 (covering Schedule 1) will commence on a day to be fixed by Proclamation. However, if those provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. This additional time will allow Australia Post and border agencies sufficient time to prepare any operational changes to processes and procedures necessary to implement as a result of the amendments.

Clause 3 – Schedules

5. Subclause 3(1) provides that legislation that is specified in a Schedule to the Bill is amended or repealed as set out in the applicable items in that Schedule, and any other item in a Schedule has effect according to its terms.

GENERAL OUTLINE

6. The Australian Postal Corporation and Other Legislation Amendment Bill 2024 (the Bill) will amend the Australian Postal Corporation Act 1989 (the Act) to implement a range of measures to address security-related vulnerabilities in the international mail stream and clarify and improve information sharing arrangements between Australia Post and relevant agencies and authorities. The amendments also address a number of technical and interpretation issues raised by stakeholders to remove ambiguity and ensure the proposed changes to the Act give greater certainty to Australia Post and border agencies responsible for screening and intervention of high-risk international air mail and cargo.

7. The Bill also makes amendments to the Act to better deal with the forfeiture, disposal and destruction of postal articles or their contents, as well as consequential amendments to the Criminal Code Act 1995 (Criminal Code Act).

Schedule 1––Amendments

Australian Postal Corporation Act 1989

Item 1 – Section 3 (definition of carry by post )

Item 2 – Section 3 (definition of postal article )

8. Item 1 repeals the definition of carry by post within section 3 of the Act, which is currently defined in section 4 to mean an article "carried by or through Australia Post".

9. References to "carry by post" will be removed and replaced with "carried by or through Australia Post" throughout the Act to provide greater clarity and certainty to Australia Post, and border agencies responsible for the screening and intervention of international mail subject to Part 7B of the Act.

10. Item 2 will omit "carry by post" and substitute with "carried by or through Australia Post" as a consequential change to the amendment proposed by Item 1.

Item 3 – Section 4

11. Item 3 will repeal section 4, which currently provides for the interpretation of the phrase "carry by post" to mean an article carried by or through Australia Post. This is a consequential change to the proposed amendment at Item 1.

Item 4 – Paragraph 32(2)(a)

12. Item 4 will omit "carried by post" and substitute with "carried by or through Australia Post" as a consequential change to the amendment proposed by Item 1. This paragraph relates to the terms and conditions that may be determined by the Board of the Australian Postal Corporation (the Board).

Item 5 – Paragraph 43(1)(n)

13. Item 5 will omit "carried by post" and substitute with "carried by or through Australia Post" and represents a consequential change to the amendment proposed by Item 1. This paragraph relates to the matters to be reported in the annual report on Australia Post, specifically the number of times during the annual report period powers under the Act to open and examine were exercised.

Item 6 – Paragraph 43(1)(o)

14. Item 6 repeals and substitutes paragraph 43(1)(o) of the Act to update references to the sections and subsections in which Australia Post must report on in its Annual Report, as consequential change to the proposed amendments at Item 25.

15. Australia Post is required to report on the number of times during the period that information or documents were disclosed in reliance on that subsection and of the persons, authorities or bodies to which information or documents were so disclosed. The proposed amendment will reflect the operation of amendments made to the disclosure regime, and does not substantively change the reporting obligations on Australia Post.

Item 7 – Section 90E

16. Item 7 inserts a new definition, AUSTRAC entrusted person to Part 7B of the Act as referenced in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.

17. This will allow information and documents held by Australia Post about an article to be used for anti-money laundering and counter terrorism activities. The definition is also sufficiently broad so that there are no impediments as to the circumstances in which a person is engaged in these activities by AUSTRAC.

Item 8 – Section 90E (definition of authorised discloser )

Item 9 – Section 90E (definition of authorised examiner )

18. Items 8 and 9 repeal the definitions of authorised discloser and authorised examiner respectively from Part 7B of the Act.

19. Division 2 of the Act currently permits Australia Post employees to make disclosures in accordance with the Act, provided they are appointed in writing by Australia Post to be an "authorised discloser". Similarly, Australia Post employees must be appointed in writing by Australia Post as an "authorised examiner" in order to exercise available powers under Division 3 of Part 7B of the Act. These requirements are cumbersome and impractical to maintain and therefore not always able to be relied on by Australia Post employees in executing their duties and powers in relation to the processing and treatment of international mail in the course of post.

20. These amendments in Item 8 and 9, together with the amendments proposed by Item 16, are intended to streamline these overly prescriptive rules to improve the operation of the disclosure regime by removing the need for Australia Post to appoint particular persons in writing as "authorised disclosers" and "authorised examiners".

Item 10 – Section 90E

21. Item 10 inserts a new definition biosecurity official to section 90E of the Act as referenced in the Biosecurity Act 2015 (Biosecurity Act).

22. This definition is required to support operation of the proposed amendment at Item 51, which will specify biosecurity official as a person who may examine an article or its contents by any means that does not involve unfastening or physically interfering with the cover of the article under section 90P.

23. It will also support the proposed amendment at Item 80, which will protect biosecurity officers from liability for acts done or omitted to be done in good faith in the exercise or performance of a duty or power under section 90P.

Item 11 – Section 90E (definition of employee of Australia Post )

24. Item 11 will omit "when used in this Division (other than section 90FB) or in Division 2, 4 or 5," from the definition of employee of Australia Post in section 90E.

25. The existing definition does not expressly apply to Division 3 of Part 7B of the Act, but is used in the definition of authorised examiner, which will be repealed by the proposed amendments at Item 16.

Item 12 – Section 90E (definition of in the course of post )

26. Item 12 repeals and substitutes the definition of in the course of post that applies to Part 7B of the Act.

27. The proposed amendment to section 90E clarifies that an article is considered to be "in the course of post" if the article:

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has been collected or received by or on behalf of Australia Post from a place in Australia or outside Australia for carriage by post to a place in Australia, but has not been delivered by or through Australia Post; or

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has been collected or received by or on behalf of Australia Post from a place in Australia or outside Australia for carriage by post to a place outside Australia, and has not left Australia.

28. The proposed amendment will make clearer at which point an article is in the custody of Australia Post and therefore where responsibility for an article lies when it is undergoing secondary examination or inspection by agencies or persons other than Australia Post.

Item 13 – Section 90E

29. Item 13 inserts new definitions for member of the staff of Sports Integrity Australia and member of the staff of the ACC as referenced in the Sport Integrity Act 2020 and Australian Crime Commission Act 2002 respectively, in section 90E.

30. Currently, section 90J of the Act restricts the facilitation of information sharing to these bodies. Disclosures can only be made to these bodies if the preconditions within the provisions are met:

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disclosures must be made to the Chief Executive Officer of Sports Integrity Australia; and

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disclosures can only be made to the Australian Crime Commission if it has performed a duty or function, or exercised a power, under a law of a State, and under that law in accordance with section 55A of the Australian Crime Commission Act 2002.

31. This and proposed amendments to section 90JD at Item 25 will improve the facilitation of information sharing with both bodies and provide further clarity on the limited and specified circumstances in which the exceptions apply.

Item 14 – Section 90E (definition of specially protected )

32. Item 14 repeals the definition of specially protected information from Part 7B of the Act, which currently has the meaning given by subsections 90G(2) and (3).

33. The proposed amendments to section 90G at items 17 to 20 will remove the distinction between "specially protected" and not specially protected information and documents. Information or a document is not specially protected if:

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in the case of information—the information is clearly visible on, or through, the outside of the cover of the article; or

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in the case of a document—the document consists of the outside of the cover of the article.

34. This distinction has become less relevant over time as the volume of small packets and parcels being sent in the mail stream has significantly increased, which may clearly display the contents and other information on the exterior of the article. Additionally, the proposed removal of categorising information in this way will ensure that information and documents are handled and treated in a manner consistent with requirements under the Privacy Act 1988 (Privacy Act).

Item 15 – Section 90E

35. Item 15 inserts a new definition taxation officer as referenced in Schedule 1 of the Taxation Administration Act 1953.

36. Currently, section 90K of the Act provides an exception to the disclosure offences in section 90H and 90LB if the disclosure of information and documents is reasonably necessary for the enforcement of laws or protection of public revenue.

37. This amendment and proposed amendments to section 90JD at Item 25 will improve information sharing with taxation authorities by providing further clarity on the limited and specified circumstances in which the exception applies and the class of person who is an authorised recipient.

Item 16 – Sections 90FA and 90FB

38. This item repeals sections 90FA and 90FB which provide for the interpretation and meaning of the definitions authorised disclosure and authorised examiner currently provided in section 90E.

39. Both terms are proposed to be removed from the Act in their entirety, therefore, Item 16 would be a consequential change to the amendments proposed by Items 8 and 9.

Item 17 – Subsection 90G(1)

Item 18 – Subparagraph 90G(1)(b)(i)

Item 19 – After subparagraph 90G(1)(b)(i)

Item 20 – Subsections 90G(2) and (3)

40. The proposed amendments at Items 17 and 18 will amend the existing section 90G to omit "(1)" at the beginning of the existing provision, and amend subparagraph 90G(1)(b)(i) to replace references to "carry by post" with "carried by or through Australia Post" as a technical consequential change to the amendment proposed by Item 1.

41. Item 19 would insert a new subparagraph 90G(1)(b)(ia) to make clear Subdivision A - Use or disclosure by current employees of Australia Post, applies to information and documents in relation to an article that a person expects will become in the course of post. The proposed amendment is designed to strengthen border agencies intervention capabilities by allowing for earlier intervention.

42. Item 20 will repeal subsections 90G(2) and 90G(3) as a consequential change to the amendments proposed by Item 14, which would remove the concept of specially protected information or documents.

Item 21 – Subsection 90H(1)

Item 22 – Paragraph 90H(3)(a)

Item 23 – Paragraph 90H(3)(a)

Item 24 – Paragraph 90H(3)(b)

43. Items 21 and 22 propose amendments to remove references to section 90K and replace with new sections 90JA, 90JB, 90JC, 90JD, 90JE, 90JF, 90JG, 90JH.

44. This change is necessary to support the operation of proposed amendments at Item 25, which will repeal and replace the permitted exceptions to the general prohibition on the use and disclosure of information or documents in relation to an article, its contents, related services or other personal particulars about the sender or recipient.

45. Items 23 and 24 would make minor amendments to address referencing inconsistencies as a consequence of the amendments proposed by Items 21 and 22.

Item 25 – Sections 90J and 90K

46. This item repeals section 90J that currently provides for the exceptions to the disclosure offences in section 90H, whether or not the information or documents are specially protected. It also repeals section 90K, which provides for exceptions to the disclosure offence in section 90H, if the disclosure of information and documents is not specially protected.

47. Sections 90J and 90K are proposed to be substituted with new sections 90JA, 90JB, 90JC, 90JD, 90JE, 90JF, 90JG, and 90JH to provide for similar exceptions than are currently permitted under sections 90J and 90K, for the use and disclosure of information and documents by current employees of Australia Post, but with more specificity in some cases. The proposed amendments address a number of technical and interpretation issues with the disclosure regime that have been raised by Australia Post and Commonwealth, State and Territory stakeholders. Specifically, they will remove ambiguity and ensure the proposed changes to the Act are clear for all stakeholders.

48. Proposed section 90J would permit the use or disclosure of information or documents in the performance of duties as an employee of Australia Post.

49. Proposed section 90JA would permit the use of disclosure as required by or under a warrant issued under a law of the Commonwealth or of a State or Territory.

50. Proposed section 90JB would permit the use of disclosure as a witness summonsed to give evidence, or to produce documents, in a court.

51. Proposed section 90JC would permit the use or disclosure if permitted under a Commonwealth, State or Territory law. Subsection 90JC(2) prescribes specific State and Territory legislation that an exception under section 90JC can be applied. Paragraph 90JC(2)(k) also provides that an exception would apply for any other prescribed law of a State or Territory that establishes a Commission or other body to conduct investigations or inquiries. This is intended to provide operational flexibility and future-proof this exception by enabling commissions or other relevant bodies that are established in the future are within the scope of the regime, and avoid the need to make legislative changes to prescribe them.

52. Proposed subsection 90JC(3) would permit the use or disclosure as required by or under a law of a State if the Australian Crime Commission performs a duty or function, or exercises a power, under that law in accordance with section 55A of the Australian Crime Commission Act 2002.

53. Proposed section 90JD creates a new exception to the disclosure offence in 90H, if the information or document is disclosed to a person prescribed within that section of the Act (referred to as the recipient), and the person making the disclosure is satisfied the information or document will enable or assist the recipient exercise any legislative powers, or perform any of their functions or duties. Subsection 90JD(1) sets out the prescribed persons and the relevant legislation under which their powers, functions or duties would apply.

54. The proposed paragraph 90JD(2) confers power on the Secretary of the Department administering the Act to, for the purposes of proposed paragraph 90JD(1)(r), determine by legislative instrument, an agency or authority of the Commonwealth, a State or a Territory with whom information or documents can be shared, providing a legislative basis to do so. This will also help to minimise duplicative investigation and regulatory responses.

55. The proposed subsection 90JD(3) would authorise the Secretary of the Department administering the Act to impose conditions, by written instrument, to be complied with by the recipient in relation to information or a document disclosed to the recipient acquired or received under subsection 90JD(1).

56. Proposed subsection 90JD(4) provides that this written instrument would not be a legislative instrument if it imposes conditions relating to one particular disclosure identified in the instrument. Proposed subsection 90JD(5) provides that if a written instrument is made to impose conditions in relation to disclosing, for example, a set of data about postal articles, or multiple disclosures about an article or more than one article, that instrument would be a legislative instrument. The ability to impose conditions is intended to allow for other requirements to be stipulated on the disclosure and use of the information or documents. For example, specifying a finite time period that information may be disclosed to a person prescribed in accordance with proposed subsection 90JD(2) or additional requirements for the handling, transfer, return or destruction of the information.

57. Proposed subsection 90JD(6) would permit the use or disclosure to a customs officer if the person is satisfied that the information or document will enable or assist the customs officer to exercise any of their powers, or perform any of their functions or duties.

58. Proposed subsection 90JD(7) would permit the use or disclosure to authorised ASIO officers, if they reasonably suspect that information or document is or may be relevant to security within the meaning of the Australian Security Intelligence Organisation Act 1979 (ASIO Act).

59. Proposed section 90JE would permit the use or disclosure to an officer or employee of a police force or service, fire service, ambulance service or other organisation providing emergency services, if the person reasonably believes that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of a person.

60. Proposed section 90JF would permit the use or disclosure if the person reasonably believes that the disclosure of the information or document is necessary for:

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the enforcement of the criminal law; or

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the enforcement of a law imposing a pecuniary penalty; or

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the protection of the public revenue.

61. Proposed section 90JG would permit the use or disclosure in the circumstances permitted under a Universal Postal Union (UPU) instrument and in accordance with that instrument. This may include disclosures to a postal administration in a foreign country if permitted by the UPU instrument.

62. Proposed subsection 90JH(1) would permit the use of disclosure to an officer or employee of a police force or service, fire service, ambulance service or other organisation providing emergency services if the person reasonably believes that the disclosure is necessary to assist in the notification of the next of kin of a person who is seriously injured or who has died.

63. Proposed subsections 90JH(2) and 90JH(3) provides that an Australia Post employee must take into account the specified persons and their relationship to a person who is seriously injured, including a de facto partner within the meaning of the Acts Interpretation Act 1901, child of the person or the person is a child within the meaning of the Family Law Act 1975.

Item 26 – Section 90L

Item 27 – Section 90L

Item 28 – Paragraph 90L(a)

Item 29 - At the end of section 90L

64. Section 90L currently permits the disclosure of information if the information relates to the affairs or personal particulars (including name or address) of another person (whether or not it is specially protected) if the disclosure:

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is made with the other person's consent given in writing on a form obtained from an office of Australia Post; and

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is made to a person or an organisation covered by the consent; and

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is recorded by Australia Post.

65. Item 27 would omit "(whether or not it is specially protected)" from section 90L as a consequential change to the amendments proposed at Item 14, which will remove the concept of specially protected information from the Act.

66. Item 28 would omit the phrase "consent given in writing on a form obtained from an office of Australia Post" and substitute with the words "written consent". The intention of this amendment is to provide more flexibility in the way written consent may be obtained by Australia Post, noting that a form is likely to now be provided and/or written consent given via email or other digital communications.

67. Item 29 would insert a new subsection 90L(2) to clarify that section 90L does not limit any other provision of Subdivision A of the Act that provides for exceptions to the use or disclosure of information or documents by current Australia Post employees, acquired or received in the course of their employment.

68. Item 26 makes minor editorial amendments to address referencing inconsistencies as a consequence of the amendments proposed by Item 29.

Item 30 – Subsection 90LA(1)

Item 31 – Subparagraph 90LA(1)(b)(i)

Item 32 – After subparagraph 90LA(1)(b)(i)

Item 33 - Subsections 90LA(2) and (3)

69. The proposed amendments at Items 30 and 31 will amend the existing section 90LA to omit "(1)" at the beginning of the existing provision, and amend subparagraph 90LA(1)(b)(i) to replace references to "carried by post" with "carried by or through Australia Post" as a consequential change to the amendment proposed by Item 1.

70. Item 32 inserts a new subparagraph 90LA(1)(b)(ia) to make clear Subdivision B, which provides for exceptions to the use or disclosure by former employees of Australia Post, applies to information and documents in relation to an article that a person expects will become in the course of post. The proposed amendment is intended to strengthen border agencies intervention capabilities by allowing for earlier intervention. A person could reasonably expect an article to become in the course of post, for example, if postage or a parcel service has been purchased for the carriage of an article by Australia Post, but the article has not yet been lodged with Australia Post.

71. Item 33 will repeal subsections 90LA(2) and 90LA(3) as a consequential change to the amendments proposed by Item 14, which will remove the concept of specially protected information from the Act.

Item 34 – Subsection 90LB(1)

Item 35 – Paragraph 90LB(3)(a)

Item 36 – Paragraph 90LB(3)(a)

Item 37 - Paragraph 90LB(3)(b)

72. Items 34 and 35 will omit "or 90LCA" from section 90LB as a consequence to the proposed amendment at Item 42, which repeals section 90LCA.

73. Item 36 will omit "a provision (the authorising provision) of one of those sections" and substitute with "that section (the authorising provision)" from paragraph 90LB(3)(a). Item 37 will omit "the section that contains" from paragraph 90LB(3)(b). The proposed amendments are editorial changes to address referencing inconsistencies as a consequence of the amendments proposed by Items 34 and 35.

Item 38 – Section 90LC (heading)

Item 39 – Subsection 90LC(1)

74. Item 38 will repeal the heading "Permitted use or disclosure whether or not information or document is specially protected" and substitute with "Permitted use or disclosure" within section 90LC. Item 39 would repeal subsection 90LC(1), which currently provides that section 90LC applies to the use or disclosure of the information or document whether or not it is specially protected.

75. The proposed amendments are consequential changes to the amendment proposed at Item 14, which will remove the concept of specially protected information or documents from the Act.

Item 40 – Subsection 90LC(5)

76. Item 40 will repeal subsection 90LC(5) that provides an exception to the offence disclosure at section 90LB if the disclosure is made under certain laws establishing Commissions, and replace with a new subsection 90LC(5).

77. The proposed amendment will retain the laws currently prescribed in this subsection but insert a new provision at paragraph 90LC(5)(k) to permit a disclosure to be made under any other prescribed law of a State or Territory that establishes a Commission or other body to conduct investigations or inquiries. This is intended to future-proof this exception by enabling commissions or other relevant bodies that are established in the future are within the scope of the regime, and avoid the need to make legislative changes to prescribe them.

Item 41 - At the end of section 90LC

78. The proposed amendment at Item 41 will insert a new subsection 90LC(7) at the end of section 90LC.

79. Currently, section 90LCA provides an exception to the disclosure offence in section 90LB, if the disclosure is reasonably necessary for:

(a)

the enforcement of the criminal law; or

(b)

the enforcement of a law imposing a pecuniary penalty.

80. Noting Item 42 proposes to repeal section 90LCA, this exception will be replicated at the end of section 90LC.

Item 42 – Section 90LCA

81. Item 42 would repeal section 90LCA, which currently provides the situations in which use or disclosure by a former Australia Post employee is permitted if the information or document is not specially protected. The proposed amendment is a consequential change to the amendment proposed by Item 14, which removes the concept of specially protected information or documents from the Act.

82. The proposed amendment will also remove the existing exception that permits former Australia Post employees to disclose information or a document to an authorised ASIO officer. It would be expected that Australia Post's processes and procedures set out that Australia Post employees should make voluntary disclosures to ASIO officers at the time a suspicion was raised or they reasonably suspected that the information or document is or may be relevant to security within the meaning of the ASIO Act, and not after the passage of time.

83. This would not necessarily preclude an ASIO employee or affiliate from soliciting information from a former employee of Australia Post. However, the former employee would only be permitted to disclose information if an exception within section 90LC applied.

Item 43 – Subparagraph 90LD(1)(b)(i)

84. The proposed amendments at Item 43 will repeal subparagraph 90LD(1)(b)(i) and substitute it so that references to "carried by post" are replaced with "carried by or through Australia Post" as a consequential change to the amendment proposed by Item 1.

85. Item 43 would also insert a new subparagraph 90LD(1)(b)(ia) to make clear Subdivision C – Secondary use or disclosure by other people, also applies to information and documents in relation to an article that a person expects will become in the course of post. The proposed amendment is intended to enhance and strengthen border agencies intervention capabilities by allowing for earlier intervention.

Item 44 – Section 90LF (heading)

Item 45 – Subsection 90LF(1)

86. Item 44 will repeal the heading "Secondary use or disclosure permitted if for same purpose as original disclosure or use" at section 90LF and substitute with "Circumstances in which secondary use or disclosure permitted".

87. Item 45 will omit "90K, 90LC or 90LCA" and substitute with "90JA, 90JB, 90JC, 90JD, 90JE, 90JF, 90JG, 90JH or 90LC" to reference new sections. This is a consequential change to the amendments proposed by Items 25 and 42, which will repeal sections 90K and 90LCA.

88. The proposed amendments reflect the new provisions to permit secondary use of disclosure of information proposed at Item 46.

Item 46 – At the end of section 90LF

89. Currently, section 90LF allows a person who received information or a document under an exception to the disclosure offences at existing sections 90H and 90LB and 90LE, to disclose that information or document to another person, provided the disclosure is for the same purpose as the purpose for which the original disclosure was made. This has the effect of significantly limiting the circumstances in which secondary disclosures can be made. This means information disclosed to one government agency under an exception provided for in the Act is not necessarily able to be shared with another government agency to support other public interests.

90. To address this limitation, the proposed amendment would insert new provisions to provide guidance and clarity on the circumstances in which secondary use and disclosure of information or documents are permitted, where the person making the disclosure (the original recipient) acquired or received the information and documents as a prescribed person or customs officer under the proposed new subsections 90JD (1) or 90JD(6).

91. Proposed subsection 90LF(3) provides that persons who acquired or received information or documents in accordance with this new subsection, may make a secondary disclosure in the permitted circumstances outlined below: (a) a person prescribed by subsection 90JD(1) or a customs officer if the recipient is satisfied that the information or document will enable or assist the person or officer to exercise any of the powers, or perform any of the functions or duties, of the person or officer; or (b) an authorised ASIO officer if the recipient reasonably suspects that the information or document is or may be relevant to security within the meaning of the ASIO Act.

92. Proposed subsection 90LF(4) would permit the persons who acquired or received the information or documents under an exception permitted in subsection 90LF(3) (the secondary recipient) to use the information or document in the exercise of any of their powers, or the performance of any of their functions or duties, provided they are a person prescribed by subsection 90JD(1) or a customs officer.

93. It is not proposed to change the provisions in Subdivision C of Part 7B of the Act, which provides that the prohibition on secondary disclosures does not apply to a person and to information or a document acquired or received by the person if: (a) the person is an ASIO employee or an ASIO affiliate and the information or document is or may be relevant to security (within the meaning of the ASIO Act); or (b) the person acquired or received the information as a result, whether direct or indirect, of a disclosure of the information or document to a court.

Item 47 – Section 90LG

94. Item 47 will omit the phrase "that has been carried by post or that is in the course of post" and substitute with "that is in the course of post or has been carried by or through Australia Post" in section 90LG.

95. The proposed amendment would clarify that Subdivision D of Part 7B of the Act does not authorise a person to open, or examine the contents of, an article that is in or has been carried by or through Australia Post, and is a consequential change to the amendment proposed by Item 1.

Item 48 – Subsection 90M(1)

Item 49 – Subsection 90M(2)

96. Item 49 would repeal subsection 90M(2) and substitute with a new subsection 90M(2) to clarify that Division 3 of Part 7B of the Act does not limit the following:

•

Part XII of the Customs Act 1901;

•

the Biosecurity Act 2015 or the Regulatory Powers (Standard Provisions) Act 2014, so far as the Regulatory Powers (Standard Provisions) Act 2014 (RP(SP) Act) relates to the Biosecurity Act 2015;

•

the Imported Food Control Act 1992 or the RP(SP) Act, so far as that Act relates to the Imported Food Control Act 1992.

97. The proposed amendment is intended to give biosecurity and customs officers greater certainty that the provisions in the Act do not limit the exercise of their legislative powers or performance of their legislative functions when dealing with articles under their legislative regimes, including the screening and intervention of international mail.

98. Item 48 would omit the words "Subject to subsection (2), this" and substitute with "This" in subsection 90M(1) as an editorial change to the proposed amendments to subsection 90M(2).

Item 50 – Section 90N

99. Item 50 would repeal section 90N and substitute with a new section 90N to provide clarity on the circumstances in which an exception may apply to the offence provision in this section.

100. Currently, section 90N provides a general prohibition on the opening and examination, and examination of the contents, of an article, unless permitted by:

•

the sections 90P to 90U or section 90UB; or

•

section 90Q or 90S and the opening or examination is undertaken at a place that has been determined by the Board.

101. Proposed subsection 90N(1) would provide that a person commits an offence, with a maximum penalty of two years imprisonment, if the person opens the article, or examines the articles or its contents. The penalty is consistent with the existing offence in subsection 90N(2) of the Act, and the penalties for other existing offences in the Act.

102. Proposed subsection 90N(2) would permit the opening or examination of an article, or examination of its contents, if authorised by a provision in the Act, another law of the Commonwealth or a law of a State or Territory.

103. Proposed subsection 90N(3) would permit the opening and examination of an article, or the examination of its contents, if undertaken in the course of a person exercising powers, or performing their functions or duties as:

•

an Australian Federal Police (AFP) appointee (within the meaning of the Australian Federal Police Act 1979); or

•

a member of the police force or police service of a State or Territory; or

•

a person included in a class of persons determined in an instrument by the Minister.

104. The proposed new subsection 90N(4) provides the Minister with the discretion to determine, by legislative instrument, a class of persons for the purposes of proposed paragraph 90N(3)(c).

105. The proposed amendments would also include a clarifying note under subsections 90N(2) and 90N(3) that if a person were to rely on any of the exceptions in the proposed subsections as a defence to the offence, they would bear an evidential burden.

Item 51 – Section 90P

Item 52 – At the end of section 90P

106. Item 51 would omit the words "An authorised examiner" from section 90P and substitute the words "(1) An employee of Australia Post, a customs officer, a biosecurity official or a person included in a class of persons determined in an instrument under subsection (2)," as a consequential change to the proposed amendment at Item 9, which will repeal the definition of authorised examiner.

107. Item 52 would amend section 90P to add a new subsection 90P(2) to provide the Minister discretion to determine, by legislative instrument, a class of persons who can examine articles without opening or physically interfering with the covering. This will provide for operational flexibility to prescribe other classes or persons to carry out a form of examination without opening an article, as resourcing arrangements change over time.

Item 53 – Subsection 90Q(2)

108. Item 53 would omit "authorised examiner may open the article and examine", and substitute with "employee of Australia Post may open the article and an employee of Australia Post may examine the article or" in subsection 90Q(2), and is a consequential change to the amendments proposed by Item 9 to repeal the definition of authorised examiner.

Item 54 – Subsection 90Q(3)

109. Item 54 would omit "Subject to section 90X, after an authorised examiner has opened and examined the article, he or she" and substitute with "Subject to subsection (4) and section 90X, after the examination referred to in subsection (2) of this section, an employee of Australia Post" within subsection 90Q(3).

110. The proposed amendment would be a consequential change to the amendments proposed at Item 9, which will repeal the definition of authorised examiner, and also make editorial changes to address referencing inconsistencies as a consequence of the amendments proposed by Items 53 and 55.

Item 55 – At the end of section 90Q

111. Currently, section 90Q provides that articles may be opened for the purpose of obtaining sufficient information to deliver or return the article to sender if they are inadequately or incorrectly addressed and the return to sender's address is not shown or inadequately or incorrectly addressed. It does not contemplate the scenario that an article could be opened for this purpose and found to contain anything that customs duty is payable, contraband, or quarantine material.

112. Item 55 would address this matter by inserting a new subsection 90Q(4) to provide clarity on the treatment of an article if it is opened by an Australia Post employee, for the purpose of obtaining sufficient information to deliver the article to the intended recipient or return the article to the sender, and found to consist of, or contain:

•

anything covered by proposed paragraph 90S(1)(b), then proposed subsection 90S(5) applies to the article and its contents;

•

any quarantine material, then existing subsection 90U(7) applies in relation to the article and its contents.

Item 56 – Subsection 90R(1)

Item 57 – Subsection 90R(2)

113. Item 56 will omit "authorised examiner may open the article for the purpose of" and substitute with "employee of Australia Post may open the article for the purpose of an employee of Australia Post" within subsection 90R(1).

114. Item 57 would omit the words "authorised examiner has made the repairs (if any) to the article or its contents that he or she thinks appropriate, the authorised examiner" and substitute the words "employee of Australia Post has made the repairs (if any) to the article or its contents that the employee thinks appropriate, an employee of Australia Post" with subsection 90R(2). Both amendments would be consequential changes to the amendments proposed at Item 9 to repeal the definition of authorised examiner.

Item 58 – At the end of section 90R

115. Currently, section 90R provides for articles may be opened for the purpose of repairing it or its contents so that the article may be made safe for carriage by post. It does not contemplate the scenario that an article could be opened for this purpose and found to contain anything that customs duty is payable, contraband, or quarantine material.

116. Item 58 would address this matter by inserting a new subsection 90R(3) to provide clarity on the treatment of an article if it is opened by an Australia Post employee, and found to consists of, or contain:

•

anything covered by proposed paragraph 90S(1)(b), then proposed subsection 90S(5) applies to the article and its contents; or

•

any quarantine material, then existing subsection 90U(7) applies in relation to the article and its contents.

Item 59 – Section 90S (heading)

117. Item 59 will repeal the heading at section 90S and substitute with "Articles on which duties or taxes are payable or that are carried in contravention of law" to make clear the purpose of this section.

Item 60 – Subsections 90S(1) to (5)

118. Item 60 would repeal subsections 90S(1) to (5) and substitute with new subsections 90S(1) to (5) to make clearer the circumstances permitting the opening of an article for the purposes of checking if an article contains or consists of anything on which customs duty is payable or is in contravention of a law of the Commonwealth relating to the importation into, or exportation from, Australia, and how such an article shall be dealt with.

119. Proposed subsection 90S(1) would provide that the exception applies if a customs officer has requested an employee of Australia Post to open the article, or an employee of Australia Post or a customs officer reasonably believes that the article consists of, or contains, any thing specified under proposed paragraph 90S(1)(b).

120. Proposed subsection 90S(2) would permit an article to be opened by an employee of Australia Post in either of the circumstances set out in proposed subsection 90S(1), or a customs officer if they reasonably believe that the article consists of, or contains, any thing specified under proposed paragraph 90S(1)(b).

121. Proposed subsection 90S(3) would permit a customs officer to examine the article or its contents to check whether the article consists of or contains any thing covered by paragraph (1)(b).

122. Proposed subsection 90S(4) would provide that an article be returned to the normal course of carriage if it is opened under proposed section 90S and not found to consist of or contain any thing covered by paragraph 90S(1)(b).

123. Proposed subsection 90S(5) would provide for an article opened under proposed section 90S and found to consist of or contain any thing covered by paragraph 90S(1)(b), to be dealt with in accordance with any law of the Commonwealth relating to customs duty, to GST, to wine tax, to other taxes, duties levies or charges or to imports or exports, as the case may require.

Item 61 – Section 90T

124. Item 61 would repeal section 90T that currently sets out the procedures to be followed if an article is reasonably believed to consist of, or contain, certain drugs or other chemical compounds.

125. Proposed amendments at Item 77 will update the procedures for dealing with articles that may contain drugs and chemical compounds and explosive, dangerous and injurious things and consolidate those procedures within proposed section 90Z.

Item 62 – Subsections 90U(3) and (4)

Item 63 – Subsection 90U(5)

Item 64 – Subsection 90U(6)

126. Items 62 and 64 would omit "authorised examiner" and substitute with "an employee of Australia Post" within subsections 90U(3), (4) and (6) as consequential change to the amendments proposed at Item 9, which will repeal the definition of authorised examiner.

127. Item 63 would omit "to check whether it" and substitute with "or its contents to check whether the article" within subsection 90U(5) to make clear a quarantine inspection officer is permitted to examine the contents of an article under this subsection.

Item 65 – Subsection 90V(2)

Item 66 – Subsection 90V(2A)

Item 67 – Subsection 90V(2A)

Item 68 – Subsection 90V(2A)

128. Section 90V provides that an article that has been opened under a permitted exception and returned to the normal course of carriage must carry a notification that the article has been opened and the purposes for which it was opened.

129. Item 65 would omit "authorised examiner (whether in the presence of a customs officer or a quarantine inspection officer or not)" and substitute with "employee of Australia Post" within subsection 90V(2), as a consequential change to the amendments proposed at Item 9, which will repeal the definition of authorised examiner. This will reflect that an Australia Post employee is required to affix a notice to an article that has been opened before returning to the normal course of carriage.

130. Within subsection 90V(2A), Item 66 would omit "under section 90T" and substitute with "under section 90S", Item 67 would omit "the customs officer" and substitute with "a customs officer", and Item 68 would omit "to section 90T" and substitute with "to section 90S", as editorial changes to reflect that a customs officer will be required to affix a notice to an article that has been opened under proposed section 90S, before returning it to the normal course of carriage.

Item 69 – Subsection 90X(1)

Item 70 – Subsection 90X(1)

131. Item 69 would insert "or its contents" after "the article" first occurs, and Item 70 would omit "after being opened or examined" and substitute with "or its contents after the opening of the article or the examination of the article or its contents" within subsection 90X(1). The proposed amendments will provide for consistency with the offence provision proposed in the substituted section 90N at Item 50.

Item 71 – Subsection 90X(2)

Item 72 – Subsection 90X(2)

Item 73 – Subsection 90X(2)

132. Item 71 would omit "carried by post" and substitute with "that are in the course of post" within subsection 90X(2) as a consequential change to the proposed amendments at Item 1, which will repeal the definition of carried by post.

133. Item 72 would insert "or its contents" after "the article" first occurs, and Item 73 would omit "after being opened or examined" and substitute with "or its contents after the opening of the article or the examination of the article or its contents" within subsection 90X(2). The proposed amendments will provide for consistency with the offence provision proposed in the substituted section 90N at Item 50.

Item 74 – At the end of Division 3 of Part 7B

134. Item 74 would insert a new section 90XA to clarify that if the circumstances permitted by sections 90P, 90Q, 90R or 90S require an employee of Australia Post, or a customs officer, to do two or more things in relation to an article, the same employee of Australia Post, or the same customs officer, may do two or more of those things in relation to the article.

135. The proposed amendment is intended to address interpretive and operational issues as a result of ambiguity in the legislation. At present, Australia Post and border agencies have in place administrative arrangements to ensure there are personnel available to conduct examination without opening of articles, and different personnel to open and check articles for delivery information and carry out repairs to make an article safe for return to the normal course of carriage. The proposed amendment would result, in some instances, in a reduction in the number of customs officers and Australia Post employees required to screen and process articles from three to one.

136. Item 74 will make clear the same employee of Australia Post or customs officer, depending on the particular circumstance, is permitted to conduct the required procedures to deal with articles where multiple scenarios may be relevant, or multiple steps must be taken to deal with an article to return or remove it from the course of post.

Item 75 – Subsection 90Y(1)

Item 76 – Subsection 90Y(2)

137. Item 76 would repeal subsection 90Y(2) which currently provides for when Division 4 of Part 7B applies. This subsection is currently superfluous, noting subsection 90Y(1) stipulates the division applies to an article while it is in the course of post, and the amendments proposed at Item 1 will clarify this meaning.

138. Item 75 would omit "(1) Subject to subsection (2), this" and substitute with "This" at subsection 90Y(1) and is a consequential change to the proposed amendments at Item 76.

Item 77 – Section 90Z

139. Item 77 would repeal section 90Z and substitute with an expanded new section 90Z to deal with explosive, dangerous or injurious things found in an article. Currently, section 90Z provides for articles to be dealt with in accordance with the applicable provisions of the terms and conditions agreed or determined at section 32. The proposed amendments would place these provisions into the Act to strengthen this aspect of the regime, and ensure adequate protections are in place for consumers, noting the possible financial or other detriment to the sender or intended recipient of an article or its contents being destroyed.

140. Proposed subsections 90Z(1) will permit a person to open and/or examine an article if they reasonably suspect the article contains a thing that could be explosive, dangerous or injurious, or could be used as a part for another thing that is explosive, dangerous or injurious. Proposed paragraph 90Z(d) would also authorise the person to arrange for the article to be delivered in the custody of an AFP appointee or a member of the police force or police service of a State or Territory.

141. Proposed subsection 90Z(2) would provide that a permitted person in section 90Z is an employee of Australia Post or a person determined in an instrument under proposed subsection 90Z(5).

142. Proposed subsection 90Z(3) would provide that if an article is opened and/or examined and found not to contain a thing described at subsection 90Z(1), the article must be closed and returned to the normal course of carriage.

143. Proposed subsection 90Z(4) would set out the procedures to be followed to deal with an article if it is opened and/or examined and found to contain any thing described in proposed subsection 90Z(1). A permitted person may do one or more of the following:

•

a permitted person may do anything to the article or any of its contents (including removing the thing) that the permitted person thinks appropriate to make the article and some or all of its contents safe for carriage by post and a permitted person may close up the article and return it to the normal course of carriage;

•

a person included in a class of persons determined in an instrument under subsection (5) may destroy a prohibited thing if that person is satisfied that the destruction is required for the health or safety of the public or for the protection of other property;

•

a permitted person may arrange for either or both of the article and some or all of its contents to be delivered into the custody of an AFP appointee, or a member of the police force or police service of a State or Territory.

144. An example is included at the end of proposed subsection 90Z(4) to demonstrate how an article containing one or more prohibited things might be dealt with under this provision.

145. Proposed subsection 90Z(5) would insert new provisions to allow the Minister discretion to determine, by legislative instrument, a class of persons as permitted persons for the purposes of proposed section 90Z. This flexibility would enable other specialist services to be permitted to inspect and handle any explosive, dangerous or injurious things suspected to be contained or found in an article, and ensure the safety of workers at international mail gateways. For clarity, an Australia Post employee would only be able to destroy a prohibited thing if Australia Post employees formed part of a class of permitted persons determined in a legislative instrument by the Minister under proposed subsection 90Z(5).

146. Proposed subsections 90Z(6) would require Australia Post to ensure that, before a prohibited thing is destroyed, the following information is recorded, to the extent to which it is known by Australia Post:

•

the sender's name and address;

•

the intended recipient's name and address;

•

what the article contains.

147. Proposed subsection 90Z(7) would require Australia Post to, as soon as practicable after a prohibited thing is destroyed, give written notice to the sender, if the sender's name and address has been recorded, advising of the destruction of the thing and the reasons for the destruction; and stating the following information, if it has been recorded:

•

the intended recipient's name and address;

•

what the article contained.

148. Proposed subsection 90Z(8) would require Australia Post to, as soon as practicable after a prohibited thing is destroyed, give written notice to the intended recipient, if the sender's name and address has not been recorded but the intended recipient's name and address has been recorded advising of the destruction of the thing and the reasons for the destruction; and stating what the article contained, if that information has been recorded.

149. Proposed subsection 90Z(9) creates a new exception to the notification obligations at proposed subsections 90Z(7) and (8). Australia Post would be excepted from the notification obligations in the following circumstances:

•

if an AFP appointee, or a member of police force or police service of a State or Territory informs an employee of Australia Post that the subsections 90Z(7) or 90Z(8) should not apply in relation to a prohibited thing that is removed from an article and destroyed; or

•

in the circumstances determined in an instrument under proposed subsection 90Z(10).

150. Proposed subsection 90Z(10) provides the Minister with the discretion to determine, by legislative instrument, additional circumstances for the purposes of proposed subsection 90Z(9). This would provide flexibility in the future for the Minister to prescribe particular sets of circumstances, which would operate as exceptions to the proposed subsections 90Z(7) and (8). For example, circumstances that may be relevant to a particular or ongoing AFP or policing investigation and where it is considered, as a matter of public interest or importance from a policy perspective, to disapply the prohibition under proposed subsection 90Z(7) and (8).

151. Proposed subsection 90Z(11) would provide that the same permitted person may do two or more things under section 90Z in relation to an article, to avoid doubt and provide clarity to Australia Post employees and customs officers responsible for screening and processing of articles.

Item 78 – After section 90ZA

152. Item 78 would insert a new section 90ZAA to provide that the Commonwealth is liable to pay a reasonable amount of compensation to a person, if the acquisition of property from that person was found to be by a court the result of operation of sections 90Z and 90ZA otherwise than on just terms. The proposed amendment is required to support the proper operation of proposed section 90Z, which supports the new provisions relating to the destruction of one or more things found in an article containing a dangerous or injurious thing.

Item 79 – Paragraph 90ZC(2)(a)

153. Item 79 would omit "section 90T" and substitute with "section 90P or 90S" within paragraph 90ZC(2)(a) as a consequential change to the proposed amendments at Items 60 and 61.

154. The proposed amendment will ensure customs officers are not liable for actions in good faith under section 90P when examining an article without opening or physically interfering with the covering, or opening or examining articles under 90S suspected of containing or consisting of anything on which customs duty is payable or that is in contravention of a law of the Commonwealth relating to the importation into, or exportation from, Australia.

Item 80 – After paragraph 90ZC(2)(a)

155. Item 80 would insert new paragraphs 90Z(2)(aa) and (ab) to expand the persons not liable for actions in good faith under Part 7B of the Act. Specifically:

(a)

biosecurity officials in the exercise, or the purported exercise, of a power or duty under section 90P; or

(b)

a person included in a class of persons determined in an instrument under proposed subsections 90P(2) or 90Z(5) in the exercise or performance, or the purported exercise or performance, of a power or duty under sections 90P or 90Z.

156. The proposed changes are consequential to the amendments proposed at Items 10, 51, 52 and 77, and intended to mirror the provisions at section 90Z in relation to the actions of biosecurity officials and other prescribed persons that are authorised to exercise or perform powers under the Act.

Item 81 – At the end of Part 7B

157. Item 81 would insert a new section 92 to make clear that Australia Post is not the owner of goods under subsection 186(1) of the Customs Act 1901 and therefore shall not bear the cost of examination of goods by a customs officer.

Item 82 – Section 101 (heading)

Item 83 – Section 101

158. Item 82 would repeal the heading of section 101 and substitute with "101 Articles carried by or through Australia Post taken to be Australia Post's property".

159. Item 83 would omit the words "carried by post" wherever they occur in section 101 and substitute "carried by or through Australia Post" within section 101. These are consequential changes to the proposed amendments at Item 1, which repeal the definition of carry by post.

Item 84 – Paragraphs 102(c)

160. Item 84 would omit "carried by post" and substitute with "that are in the course of post (within the meaning of section 90E) or that have been carried by or through Australia Post" as a consequence of the proposed amendments at Item 1, which repeal the definition of carry by post.

Item 85 – Paragraphs 102(g)

161. Item 85 would repeal paragraph 102(g) and substitute with the proposed paragraph 102(g), to replace the references to "carried by post" as a consequence of the proposed amendments at Item 1, which will repeal the definition of carry by post.

162. The proposed paragraph 102(g) would enable regulations to be made regarding the forfeiture, disposal or destruction of articles, or the contents of such articles, that are in the course of post or that have been carried by or through Australia Post.

Item 86 – Application and savings provisions

163. Item 86 sets out the application and savings provisions that would apply on commencement of the amendments to the Act made by Schedule 1. In summary:

•

paragraph 43(1)(o), as in force immediately before commencement, would continue to apply on and after that commencement in relation to a reporting period beginning before this item commences.

•

amendments to section 90G would apply in relation to information or a document acquired or received on or after the commencement of this item.

•

amendments to sections 90H, 90LB and 90LC, the repeal of sections 90J, 90K and 90LCA, and the substitution of sections 90J to 90JH would apply in relation to the use or disclosure of information or a document on or after the commencement of this item.

•

amendments to paragraph 90L(a) would apply in relation to a consent given on or after the commencement of this item.

•

amendments to section 90LA would apply in relation to information or a document acquired or received on or after the commencement of this item.

•

amendments to section 90LD would apply in relation to information or a document acquired or received by an employee of Australia Post on or after the commencement of this item.

•

amendments to section 90LF would apply in relation to an original disclosure occurring on or after the commencement of this item.

•

amendments to sections 90M, 90P, 90Q, 90R, 90S and 90U apply on and after the commencement of this item in relation to the following: an article that commences to be in the course of post on or after that commencement, and that is in the course of post immediately before that commencement.

•

substituted section 90N would apply in relation to the opening of an article, or the examination of an article or its contents, on or after the commencement of this item.

•

section 90N as in force immediately before the commencement of Schedule 1, would continue to apply on and after that commencement in relation to the opening of an article, or the examination of an article's contents, before that commencement.

•

section 90T as in force immediately before the commencement of this item, would continue to apply on and after that commencement in relation to an article that commenced to be in the course of post before that commencement.

•

amendments to section 90V apply in relation to an article opened on or after the commencement of this item.

•

subsection 90V(2A) as in force immediately before the commencement of Schedule 1, would continue to apply on and after that commencement in relation to an article opened under section 90T of that Act by a customs officer before, on or after that commencement.

•

amendments to section 90Y and the repeal and substitution of section 90Z, would apply on and after the commencement of this item in relation to the following: an article that commences to be in the course of post on or after that commencement, that is in the course of post immediately before that commencement.

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section 90ZC as in force immediately before the commencement of Schedule 1, would continue to apply on and after that commencement in relation to a customs officer's exercise or performance, or purported exercise or performance, of a power or duty under section 90T of that Act before, on or after that commencement.

Criminal Code Act 1995

Item 87 – Section 470.1 of the Criminal Code

Item 88 – Section 470.1 of the Criminal Code (definition of carry by post )

164. Items 87 and 88 would repeal the definition of carry by post and insert a new definition carried by post at section 470.1, which will be defined to mean carried by or through Australia Post. This is a consequential change to the proposed amendments at Item 1, to repeal the definition of carry by post in the Act.

Item 89 – Subsection 471.10(2) of the Criminal Code

Item 90 – Subsection 471.13(6) of the Criminal Code

Item 91 – Section 471.31 of the Criminal Code (heading)

Item 92 – Section 471.31 of the Criminal Code

165. Items 89 to 92 would make consequential changes to omit "carry by post" and substitute with "carried by post" where referenced in other provisions in the Criminal Code, specifically subsections 471.10(2) and 471.13(6) and section 471.31, consistent with the definition change in the Criminal Code proposed at Items 87 and 88, and in the Act at Item 1.