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Tuesday, 7 March 2000
Page: 14063


Mr WILLIAMS (Attorney-General) (8:00 PM) —by leave—I move government amendments Nos 1 to 11:

(1) Schedule 1, item 3, page 4 (after line 18), at the end of section 90T, add:

(7) The Australian Customs Service established under the Customs Administration Act 1985 must establish and maintain, in accordance with regulations made for the purposes of this section, a record setting out, in respect of each article that is removed from the normal course of carriage and opened for the purpose of its examination by a Customs officer:

(a) particulars of the article; and

(b) particulars of the nature of the examination of the article and its contents; and

(c) whether the article and its contents were, following the examination, dealt with according to law or returned to the normal course of carriage.

(8) Regulations made for the purposes of subsection (7) must specify:

(a) the place or places at which the record referred to in that subsection is required to be established and maintained; and

(b) the manner in which the record is to be kept; and

(c) the uses that can be made of information contained in the record.

(2) Schedule 2, item 1, page 6 (line 6), omit “180”, substitute “120”.

(3) Schedule 2, item 2, page 6 (line 8), omit “180”, substitute “120”.

(4) Schedule 2, item 3, page 6 (line 10), omit “180”, substitute “120”.

(5) Schedule 2, item 4, page 6 (line 12), omit “180”, substitute “120”.

(6) Schedule 2, item 9, page 7 (line 33) to page 8, (line 6), omit subsection (11A), substitute:

(11A) Prescribed equipment may be used in carrying out the external search if, and only if, consent to the use of the equipment in carrying out the search has been given by the detainee and the requirements of section 219RAB are met.

Note: Section 219RAC deals with regulations prescribing equipment.

(7) Schedule 2, item 10, page 10 (after line 17), at the end of section 219RAC, add:

(4) If, before making a statement of the kind described in subsection (2), the CEO consults with Commonwealth authorities in accordance with subsection (3), the CEO must lay a copy of any advice received from those authorities in the course of that consultation before each House of the Parliament within 7 sitting days of that House after the day on which the statement is given to the Minister.

(8) Schedule 2, item 10, page 12 (after line 18), at the end of section 219RAF, add:

(7) The regulations must make provision in relation to the secure storage of any videotape or other electronic record of an external search, and of any photograph, image or sample referred to in paragraph (1)(b), (c) or (d) pending its ultimate destruction.

(9) Schedule 2, item 17, page 14 (line 29), omit paragraph (1)(h), substitute:

(h) items of child pornography or of child abuse material; and

(10) Schedule 2, item 17, page 15 (after line 14), after subsection (3), insert:

(3A) For the purposes of subsection (1), an item is taken to be an item of child abuse material if it is a document or other goods:

(a) that depicts a person:

(i) who is, or who appears to be, under 16 years of age; and

(ii)who is a victim of torture, cruelty or physical abuse; and

(b) that is likely to cause offence to a reasonable adult.

(11) Schedule 2, item 21, page 16 (lines 30 and 31), omit the item, substitute:

21 Subsection 245(2)

Omit “$20,000” (wherever occurring), substitute “$40,000”.

22 Subsection 245(4)

Omit “$5,000” (wherever occurring), substitute “$20,000”.

With opposition agreement, the Customs Legislation Amendment (Criminal Sanctions and Other Measures) Bill 1999 was referred to the Senate Legal and Constitutional Legislation Committee for report by 16 February. After the government considered that report, and following discussions with the opposition, the government has agreed to propose a number of amendments to the following aspects of the bill: Customs examination of international postal articles, retention of evidential material, voluntary use of technology in external personal searches, tabling of advice from expert agencies on the use of such technology and storage of records obtained in external personal searches. The government has also decided to remove additional amendments to the bill, broadening the new import-export offence to encompass child abuse material and increasing the jurisdictional limits for customs prosecutions in lower courts. As the government believes that the basis for the new penalty provisions is sound, it does not intend to move any amendments to those parts of the bill dealing with the new criminal penalties for prohibited import-export offences, nor to the increased monetary penalties for narcotic offences.

Amendment 1 relates to the Customs examination of international postal articles. The bill already provides, in subsection 90T(6), for regulations to be made for the purpose of determining the procedure for removing an article from the normal course of postal carriage for the purpose of a customs examination, and for the article's return to the normal course. As the supplementary explanatory memorandum indicates, the proposed amendment will add new subsections (7) and (8) to require Customs to maintain a record, in the manner prescribed, of all articles that are removed from the normal course of carriage and opened for examination. These measures would normally be undertaken as standard operating procedures—but, as evidence of Customs adherence to the need for transparency and accountability in examining postal articles, the amendment makes it clear that the regulations will define the nature and circumstances of records to be kept and the purposes for which they might be used.

The amendment is in response to concerns expressed by the opposition about a perception of potential breaches of accountability in civil liberties when postal articles go beyond Australia Post's control. The government considers that the amendment provides appropriate measures to safeguard the community's rights without breaching the need for security in drug operations.

Amendments 2 to 5 relate to retention of evidential material. The bill proposed to increase the time during which Customs could retain evidential material before returning it to its owner from the current 60 days to 180 days. As indicated in the supplementary explanatory memorandum, the proposed amendment would result in Customs retaining such material for 120 days, not 180 days as proposed in the bill.

The amendment is in response to concerns expressed by the opposition during the committee's consideration of the bill that the pattern of extensions granted under a judicial process might not support the proposed increase. The national average for first extensions granted to Customs over the past four calendar years was 4.5 months—that is 135 days—resulting in average retention periods for extended cases of 195 days. Nevertheless, in response to the opposition's concerns, the government is prepared to concede that 120 days is a manageable extension of the current limit, and this is what the amendment provides for.

In the Senate committee's minority report, the opposition inquired about disposal of goods with a short or immediate market life. Such goods are seized under a seizure warrant and can be the subject of a claim for return made within 30 days of seizure. Perishable goods or live animals may be disposed of immediately if they present a danger to public health or other animals or plants.

Amendment 6 relates to use of technology in external personal searches. The bill currently provides that prescribed technology may be used to conduct external personal searches either with the person's consent or as required by the justice or authorised officer ordering the search. The proposed amendment removes any compulsion to undergo the use of technology—allowing its use only with the consent of the person being searched. This amendment results from a view expressed in the opposition's minority Senate committee report that any order to submit to external search through the use of equipment must be made by a judicial officer. As Customs noted in its submission to the Senate committee, in practice this provision was not expected to be widely used. If a person did not give consent to a search, Customs was likely to seek an order for removal of clothing rather than use of technology to allay suspicion about concealed goods. The power to direct was included to cover the possibility that the available equipment may offer a more effective alternative in the future. The government agrees that consent now be required in all circumstances.

Amendment 7 relates to the tabling of advice from agencies about technology use. The bill provides that, before any technology may be prescribed for use in external personal searches, the Chief Executive Officer of Customs must consult relevant authorities before giving advice to the minister. (Extension of time granted) The amendment will result in the CEO of Customs being required to table advice received from relevant agencies within seven sitting days of the House after the CEO's statement is provided to the minister. This amendment has resulted from the views expressed by the opposition during the Senate committee's consideration of the bill in response to concerns raised by the Australian Radiation Protection and Nuclear Safety Agency. While the bill establishes accountability for the CEO of Customs to take such expert opinion into account in advising the minister, the amendment provides an opportunity for parliament to view that evidence before it considers the necessary regulations to introduce new technology.

Amendment 8 relates to prescription of storage requirements for a taped record of external personal searches. The bill provides procedures for the retention and destruction of videotapes, electronic records, photographs, images and hand samples taken in external searches. The effect of the proposed amendment is that regulations will need to be made in relation to secure storage of such data pending its ultimate destruction. As a matter of course, Customs records are already subject to stringent controls on their storage and use. The amendment will reinforce this strict accountability. The government has proposed this amendment in response to a suggestion from the opposition on the basis of comments by the Australian Radiation Protection and Nuclear Safety Agency. While the government does not accept that passengers coming through Australia's border need have any concerns about the privacy of search records, it is happy to see that concept enshrined in legislation.

Amendments 9 and 10 deal with the new category of child abuse import-export offences. The proposed amendment introduces a new offence under tier 2. This would allow for a maximum penalty of $250,000 and/or 10 years imprisonment. The bill currently provides that child pornography offences, as defined in the bill, should be subject to tier 2 penalties. The amendment would extend the offence to include not just material that depicts someone who is or appears to be under the age of 16 in a sexual pose or activity but also material that depicts someone who is or appears to be below that age who is a victim of torture, cruelty or physical abuse. The government has decided that child abuse material is equally abhorrent to that depicting the sexual exploitation of children.

Amendment 11 deals with the jurisdictional limits for customs penalties. In the second reading speech on the bill I announced the government's intention to remove the current $5,000 and $20,000 limits placed on jurisdictions when customs offences are prosecuted in magistrates' and district or county courts. The government's additional investigations have revealed that removal of the limits from the Customs Act may not necessarily result in the application of jurisdictional limits to such offences. The government has therefore decided that the most effective way of implementing the government's intention is to increase the current limits at this stage from $5,000 to $20,000 for courts of summary jurisdiction and from $20,000 to $40,000 for district and county courts and local courts of South Australia and the Northern Territory. The amount of $20,000 is the lowest current civil penalty limit in a state or territory court. The government considers that a limit set in 1982 is inadequate to the task and has heeded the calls by some judicial officers for increased limits. The government amendments are commended to the House.