Mr KERR (10:10 AM) —The opposition regards it as appropriate that this loophole be closed through the Customs Amendment Bill (No. 1) 1999 and it will facilitate the government in that regard. It is a matter of some regret that from time to time this parliament has to address issues which one might have thought would have been resolved by the courts in a more commonsense manner. I think the Attorney, in his very gentle way, indicated a similar view that the decision was at least unpredictable.

It may well be that this decision might have been reversed on appeal. Nonetheless, there have been a number of instances where the parliament has acted quickly to deal with such issues. I instance the case some little while ago in which it was alleged that delegations given to junior ministers to carry out the work of portfolio ministers were invalid. In the Federal Court, Mr Justice Spender held that that was not an appropriate and lawful way to operate, save in some restricted circumstances, and held that those restricted circumstances had not been then in effect. Obviously, the consequence would have been extreme. In that instance, we also facilitated legislation to deal with the issue quickly but, in any case, the original decision of Mr Justice Spender was overturned on appeal. In that instance at least the reason which drove the legislation was removed. Nonetheless, we well understood why the government took that course.

Similarly, in this instance we understand why the government is taking this course rather than pursuing potential remedies by way of appeal and the like—notwithstanding that the likelihood of success, I believe, would be high, given the terms of the legislation that the Attorney has referred to. But it does allow us at least to indicate that there is an obligation on the courts to look at the purpose and intent of legislation and to facilitate that.

There has been some backsliding by the courts from a process of examination of legislation from the point of view of giving some regard to the underlying policy intentions of the parliament as expressed through the second reading speeches and the general intention that can be inferred from the framework of the legislation. In this instance, it could hardly have been thought to be intended that the revenue would not be protected because the goods were able to be entered for home consumption without formal entry requirements. We are content to facilitate the closure of the loophole.

When the government introduced this bill into the Senate it asserted that the amendments were intended to ensure that they reached back to goods imported since 1 September 1992, which was the circumstance that they asserted the Commonwealth and importers had always understood to operate. On that basis, I think it is fair to say that this legislation, whilst formally retrospective, in practice operates in a way which imposes no actual retrospectivity other than that which the community at large expect to be in operation. To close a fortuitous loophole does not seem to be anything other than sound housekeeping.

It gives us the opportunity to indicate that the government obviously is looking at these revenue issues—and it would not be expected by the community to do otherwise. It would have opened up the real prospect of large amounts of product being imported under the value of $1,000 through the post or of goods to the value of $250 being consigned otherwise through the post.

Within that range, cigarettes, which carry a high rate of duty, would have been the obvious goods which would have been brought in by that mechanism. Other goods could also have been brought in, but I think that cigarettes and perhaps alcohol and some perfumery would have been the obvious items that would have been the subject of abuse.

However, when we look at this legislation, we can contrast the approach of the government, in quickly moving to address a revenue loophole, with its approach in some of the areas where it seems to be finding it rather more difficult to make the hard decisions that are necessary. One instance is the situation with Coastwatch. The government has announced a number of measures, which includes additional expenditure, but it still has not addressed, or had a substantial review of, the way in which the Commonwealth does business in relation to the management and protection of our coastline.

The surveillance and policing functions of the Commonwealth cover a whole range of agencies, not just Customs. It is also responsible for fisheries, quarantine and a whole range of other important matters. The Heggen and Max Moore-Wilton reviews focused almost exclusively on the issue of illegal immigration—I think to too great an extent. Whilst no-one denies that the problem of people smuggling is one which needs to be addressed and needs to have a much more substantial response given to it than the government has done hitherto, nonetheless, there is a whole range of other issues—including, not the least, the importation of drugs, quarantine issues, protection of fishery resources, economic interests and questions relating to the smuggling of wildlife—all of which were not addressed in any explicit terms by those reviews and which really still stand to be examined.

There is no doubt, at least in the view of the opposition, that there is a widely held view in the community that the arrangements for the protection and surveillance of our coasts are far from adequate. I think a very disappointing feature of the report was that in a single line it dismissed the possibility of a more coordinated strategy, developing something in the nature of a coastguard service, of which many models have been developed in other nations. That opportunity went astray when the government was under pressure to bring down some response in relation to the number of incidences where boats had come undetected down the east coast of Australia. No-one doubts that that issue needed to be responded to, and responded to quickly, but there is another task yet to be undertaken. The government's dismissal of this, on what I thought to be an extremely superficial argument of more structural response, was very disappointing.

Similarly, I think the government's approach to drugs with its Tough on Drugs strategy is an issue which the community is going to examine very closely. There is no doubt that the benchmark for success, that the Minister for Justice and Customs has asserted, of the Tough on Drugs strategy will be measured in terms of positive impacts on supply reduction, demand reduction and harm minimisation. There is very real doubt that the initiative is having the success that was forecast for it.

The Families and Friends for Drug Law Reform recently issued a report card on the Tough on Drugs strategy, and they said what we have been saying ever since the Prime Minister launched this strategy: the government's approach has failed, and will continue to fail, to achieve positive outcomes in any of these areas which the minister has identified. The price of drugs is, if anything, reducing. Certainly, no-one contends that it has increased as a result of supply reduction, and availability is increasing—as, indeed, is purity. Drug use related deaths are rising. The Prime Minister's promised leadership in the area of drug law reform has consisted of using some language which picks up the concept of harm minimisation but which essentially, when you look at it, is evolving along the lines of the approach in the United States. It really is time for the government to admit that a zero tolerance approach to illicit drugs has been, and will continue to be, a dismal failure.

Mr DEPUTY SPEAKER (Mr Nehl) —I am loath to interrupt the member for Denison, but I draw his attention to the fact that most of the things that he has been talking about for the last several minutes are not related to the bill.

Mr KERR —I grant that you are correct, Mr Deputy Speaker, that they do not arise directly from the legislation. I was simply making the point that we seek to be constructive in opposition and to facilitate the passage of this legislation. It is sound legislation. On the other hand, we have a responsibility to draw attention to other areas in the portfolio out of which this legislation arises, where we believe inadequate attention has been given by the government.

More specifically, if I might be critical in relation to customs processing issues—again, you might say, not immediately relevant to the terms of this bill, but nonetheless relating to what customs agents and how Customs itself operates—I ask the Attorney-General to convey to his ministerial counterpart a concern we have heard recently from constituents who are not happy with the way that customs agents are presently operating.

The problem is that customs agents operate on a basis whereby any liability that emerges for duties payable or penalties payable attaches to the importer, and, by law, importers cannot facilitate customs processing on their own. They must use a customs agent. It seems that customs agents are not regularly accessing the Customs database for tracking changes to regulations and keeping up to date. That means that from time to time they are making errors when declaring goods which they are bringing into the country in relation to their importer clients. One of the consequences is that the importer then becomes liable for penalties associated with the errors made by these customs agents.

I am certain this issue has been brought to the attention of the government. It is an important one because, if you are by law obliged to use a customs agent, and then you are attached with the consequences of that customs agent making a mistake in relation to the rapidly changing legal environment, then there is a considerable degree of disquiet. It is a matter that needs attention. Perhaps there needs to be some examination of how agents can be better brought to understand their obligations. There does seem to be a large number of perhaps inadequately trained customs agents processing these matters, particularly as staff of licensed agents. It is not a situation which will do the reputation of the department good, if people find that this issue continues. When you have a system which does not allow people to process their own goods through the customs barrier but, rather, requires them to use the services of others, and if as a result of that they find themselves attached with some liability, you can imagine that this is not something that they feel particularly happy about. The mechanisms for redress are quite limited.

With your indulgence, Mr Deputy Speaker, I appreciate that my comments have been slightly outside the formal terms of the legislation but I think that in an opportunity in the Main Committee there is some flexibility for us to explore some of the issues that need attention. Having made those three brief side points on the legislation at hand, which we are content to assist the passage of, I would be grateful if the Attorney would pass those concerns to the Minister for Justice and Customs. I am certain that those concerns in relation to importers would have already been drawn to her attention, because much of the correspondence that we have received has been copied or directed initially to the minister. But I would appreciate it if the opportunity were taken today as well.

The opposition is quite content to address the issues raised by the Prechelt case to ensure that a loophole which was potentially open, and which would have required the process of an appeal to redress, is closed by legislation. We are content that, in practice, it is not retrospective legislation. We support the Attorney's introduction of this legislation and its passage through the House and we will support it in the Senate.