Senator BOLKUS (5:57 PM) —My concern is the strict liability aspect of it. In some instances, the offences may precede this act, but I think strict liability with respect to that is over the top. Senator Murray, let us turn, for instance, to amendments Nos 10, 11 and 12. They are all strict liability offences and are all very much the same in substance, applying in different circumstances. Take amendment No. 10, for instance. On page 30, we have a strict liability offence provided in proposed subclause (2):

Proposed subsection (1) is with respect to `False or misleading statements resulting in loss of duty'. It states:

I think there are problems with that; there might be circumstances in which a person may be led to believe that he is filling out the form completely and honestly, relying on the despatched documentation that might be attached to the import—

That is, once again, excessive. What sort of judgment is applied? We are talking about strict liability, we are talking about heavy penalties and we are talking about not just heavy penalties in the first instance but penalties that will attach to a particular business's name into the future. We are saying here that someone is going to make a judgment that some information may, after the event, be deemed to be information without which the form is filled out in a false or misleading matter.

Consider it in the context of importers who rely on documentation provided to them by their suppliers, quite often in different languages. One of the best customs ministers I have come across—and it was quite a while ago, but I have said this consistently since—is Michael Hodgman. He was customs minister in the mid- to late seventies and early eighties. I took cases similar to this to him, where the Australian citizen or company had paid duty, relying on documentation from the exporter. There was one particular case involving tomatoes from Israel. Different rates of duty applied to crushed as opposed to peeled as opposed to non-peeled tomatoes. The Australian company filled out the forms on the basis of the documentation that was made available by the Israeli supplier, and it was wrong. Once Customs opened the boxes, the actual produce was produce that should have been levied at a higher duty.

Thousands of dollars worth of penalty fines were imposed in this case. The company could have gone broke. At the time, Hodgman decided that there was a case on behalf of the importer in Australia and intervened on their behalf. They have probably had a few problems since in similar circumstances, but the minister was able to intervene. I raise this matter because, in similar circumstances, an innocent Australian company will find itself within the ambit of this legislation and will be strictly liable. Amendment (11) is the same—false or misleading statements not resulting in a loss of duty. Strict liability is still there, even though there is no loss of duty. Amendment (12) on page 33 is similar as well. We are saying that we will give this department power to make an assessment after the event—with no guidelines, no direction and no regulations— of what is a material matter which, by its deletion, has produced a false or misleading document. The penalties are huge.

Senator Murray, you should focus on those three amendments. Have a look at their effect. You really are setting up a regime under which innocent Australian operators could find themselves not just incurring a penalty but in a powerless situation with respect to the customs department. We must also protect operators against that. The sense of powerlessness that Australian companies feel in these circumstances is real and material. In most circumstances, they cannot afford to take a challenge to the courts. You might say: `Okay, taking away appeals might help them here. They won't have the choice.' But that shows a black sense of humour. They are powerless already. This tilts the balance even more against them, and it is not fair for them to have strict liability applying, for instance, in respect of those items from which amendments (10), (11) and (12) seek to remove the strict liability regime.