EXPLANATORY STATEMENT
Select Legislative Instrument 2013 No. 208
Issued by the Authority of the Minister for Home Affairs
Customs Administration Act 1985
Customs Administration Amendment (Permitted Entities) Regulation 2013
Section 18 of the Customs Administration Act 1985 (the Act) provides that the Governor‑General may make regulations, not inconsistent with the Act, prescribing matters required or permitted to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Subsection 16(2) of the Act prohibits the disclosure of protected information by the Australian Customs and Border Protection Service (ACBPS) except in specified circumstances, including where the disclosure is authorised under section 16.
Subsection 16(3D) of the Act allows the Chief Executive Officer of Customs (the CEO) to authorise the disclosure of protected information to foreign and international entities under specified circumstances.
To authorise the disclosure of a class of information containing personal information under subsection 16(3D), subsection 16(10) requires that the entity to which the disclosure is to be made must be specified in the regulations and the class of information to be disclosed must be specified in the regulations as a class of information that may be disclosed to the relevant entity.
For the purposes of subsection 16(10) of the Act, Part 10 of Schedule 2 to the Customs Administration Regulations 2000 (the Principal Regulations) specifies the foreign and international entities to which disclosures of a class of information containing personal information may be made, and the class or classes of information that may be disclosed to each specified entity.
The purpose of the amending Regulation is to add a new entity to the list of permitted entities in the Principal Regulations to which disclosures of classes of protected information containing personal information may be authorised under section 16 by the ACBPS.
The amending Regulation amends Part 10 of Schedule 2 by adding a reference to Centre Régional Opérationnel de Surveillance et de Sauvetage, La Réunion. The class of information that can be disclosed is Class D, which relates to the movement of vessels and aircraft.
This amendment enablse the ACBPS to give effect to Australia’s information sharing obligations under the Treaty with the Government of the French Republic on Cooperation in the maritime areas adjacent to the French Southern and Antarctic Territories (TAAF), Heard Island and the McDonald Islands (the Co-operation Treaty).
The Co-operation Treaty was established to create a framework for cooperation between Australia and France to tackle illegal, unreported and unregulated fishing activity within the Australian and French waters of the Southern Ocean. Article 5(5) of the Co-operation Treaty requires that each party identify its competent authorities. Under the Treaty, the competent authorities of each country will be sharing information for the purposes of the Co-operation Treaty.
France has nominated the Centre Régional Opérationnel de Surveillance et de Sauvetage (CROSS), La Réunion as its competent authority. The ACBPS is Australia’s competent authority for the purposes of the Co-operation Treaty.
The CROSS are a network of marine stations whose missions include search and rescue, monitoring of pollution and monitoring of fishing operations. These stations are located in mainland France as well as French overseas departments and territories. La Réunion is an overseas department of France and is an island located in the Indian Ocean approximately 2,000 kilometres southeast of Africa.
CROSS La Réunion and the ACBPS conduct joint patrols of French and Australian Southern Ocean Exclusive Economic Zones to detect and deter illegal fishing activities and enhance the protection of sovereign interests. Therefore, classes of personal information relevant to Class D can be disclosed by the ACBPS to CROSS La Réunion.
The amending Regulation also updates the name of a Commonwealth agency that is already listed in Schedule 2 to the Principal Regulations. The Australian Wine and Brandy Corporation was listed as a prescribed entity in Part 1 of Schedule 2. The amending Regulation replaces this name with the body’s new name, Wine Australia Corporation.
As the amending Regulation is of a minor or machinery nature, no consultation was undertaken in relation to the Regulation.
The amending Regulation commences on the day after it is registered on the Federal Register of Legislative Instruments.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Customs Administration Amendment (Permitted Entities) Regulation 2013
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The Customs Administration Amendment (Permitted Entities) Regulation 2013 (the Regulation) amends the Customs Administration Regulations 2000 to add the Centre Régional Opérationnel de Surveillance et de Sauvetage, La Réunion to the list of permitted entities in Part 10 of Schedule 2 for the purposes of section 16 of the Customs Administration Act 1985 (the Act). As a consequence of this amendment, a class of personal information that relates to the movement of vessels and aircraft may be disclosed by the Australian Customs and Border Protection Service (the Service) to the Centre Régional Opérationnel de Surveillance et de Sauvetage, La Réunion.
This gives effect to Australia’s information sharing obligations under the Treaty with the Government of the French Republic on Cooperation in the maritime areas adjacent to the French Southern and Antarctic Territories (TAAF), Heard Island and the McDonald Islands (the Co-operation Treaty).
Under the Act, personal information may be disclosed by the Service to a foreign or international entity if the requirements of subsection 16(3D) are satisfied. However, if a class of personal information is to be disclosed, the entity to which it will be disclosed and the class of information to be disclosed must be specified in regulations. The amendments set out in the Regulation satisfy these requirements.
Human Rights Implications
Right to Privacy
The Regulation engages the right to privacy contained in Article 17 of the International Covenant on Civil and Political Rights.
The Regulation allows the disclosure of a class of personal information. In section 16 of the Act, ‘personal information’ has the same meaning as in the Privacy Act 1988, which is defined as:
‘information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.’
The ability to disclose personal information gives effect to Australia’s information sharing obligations under the Co-operation Treaty. The Co-operation Treaty was established to create a framework for cooperation between Australia and France to tackle illegal, unreported and unregulated fishing activity within the Australian and French waters of the Southern Ocean. Under the Co-operation Treaty, the competent authorities of each country will be sharing information for the purposes of the Co-operation Treaty. This law is also precise as it clearly states what type of information, and to whom the information, can be disclosed. For both of these reasons, the law is reasonable in these circumstances.
In addition, the disclosure of personal information is authorised by law under section 16 of Act. The disclosure also complies with Information Privacy Principle 11 of the Privacy Act 1988 which places limits on the disclosure of personal information. Under that Principle, personal information shall not be disclosed unless, amongst other things, the disclosure is authorised by law.
Conclusion
This legislative instrument is compatible with human rights as the disclosure of personal information is authorised by law and is reasonable in the circumstances.
Minister for Home Affairs