EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No.5
Issued by the Authority of the Minister for Justice and Customs
Customs Administration Act 1985
Customs Administration Amendment Regulations 2006 (No. 1)
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 by the Act or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Section 16 of the Act relates to the prohibition on the disclosure of protected information. Subsection 16(2) of the Act prohibits the disclosure of protected information except in specified circumstances, including where the disclosure is authorised under section 16.
The purpose of the amending regulations is to allow the disclosure of protected information, containing personal information, to the Australian Securities and Investments Commission (ASIC). In particular, ASIC has requested that information pertaining to convictions for any offences, successfully prosecuted by Customs, involving dishonesty and punishable for imprisonment for at least 3 months be made available.
Subsections 16(3A), (3B), (3C) and (3D) of the Act allow the Chief Executive Officer of Customs (the CEO) to authorise the disclosure of protected information to certain government agencies and international entities under specified circumstances. However, section 16 sets out further requirements to be fulfilled in relation to disclosures of information containing personal information. In this respect, ‘personal information’ has the same meaning as in the Privacy Act 1988.
To authorise the disclosure of a class of information containing personal information under subsections 16(3A), (3B), (3C) or (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 as a class of information that may be disclosed to the relevant entity.
For the purposes of subsection 16(10) of the Act, Schedule 3 to the Principal Regulations sets out the descriptions of seven classes of information. Further, Schedule 2 to the Principal Regulations specifies the entities to which disclosures of a class of information containing personal information may be made, and the class or classes of information, as described and identified in Schedule 3, that may be disclosed to each specified entity.
The amending Regulations amend Schedule 2 to specify:
• ASIC as a new entity to which disclosures of a class of information containing personal information may be made; and
• class B information, which is described in Schedule 3 to the Principal Regulations as details of convictions, identification details of known associates, past travel details and details of agencies to whom the person is of interest, as the class of information that may be disclosed to ASIC.
No consultation was undertaken in relation to the amending Regulations as they are of a minor or machinery nature and do not substantially alter existing arrangements.
The amending Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
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Overview
The Customs Administration Amendment Regulations 2006 (No. 1) were introduced to address the need for facilitating the disclosure of specific protected information from the Customs Administration Act 1985 to the Australian Securities and Investments Commission (ASIC). This legislation was enacted to enable the sharing of conviction information related to offences involving dishonesty and punishable by imprisonment for at least three months, which Customs successfully prosecutes. The regulations were authorised by the Minister for Justice and Customs and were designed to align with the existing framework under the Customs Administration Act, ensuring that the disclosure of personal information adheres to the provisions of the Privacy Act 1988. The amendments were made without substantial consultation as they pertained to minor regulatory changes that did not significantly alter existing arrangements.
These regulations were issued under the authority of the Governor-General and commenced on the day after they were registered on the Federal Register of Legislative Instruments, thus providing a formal mechanism for the authorised disclosure of specific protected information to ASIC as requested.
Scope and Application
The Customs Administration Amendment Regulations 2006 (No. 1) amends the Customs Administration Act 1985 to allow for the disclosure of protected information, including personal information, to the Australian Securities and Investments Commission (ASIC). This amendment is made in response to a request from ASIC for information on convictions for offences involving dishonesty, which are successfully prosecuted by Customs and carry a penalty of at least three months' imprisonment. The Act applies to any person or entity involved in the administration of customs, including officers, entities, and industries subject to customs regulations, as well as any conduct or transactions pertaining to the import and export of goods. The jurisdiction of the Act extends to the Commonwealth of Australia, and it includes provisions for the application of subordinate instruments to further extend or restrict its application. The Act prohibits the disclosure of protected information except in specified circumstances, including where the disclosure is authorised under section 16. However, this regulation allows for the disclosure of class B information, as defined in the Principal Regulations, to ASIC. The regulation is of a minor or machinery nature and does not substantially alter existing arrangements, and therefore, no consultation was undertaken.
Key Provisions
The Customs Administration Amendment Regulations 2006 (No. 1) primarily serve to amend the existing regulations under the Customs Administration Act 1985, particularly focusing on the disclosure of protected information to certain entities. Section 18 of the Act allows for the making of regulations that are necessary or convenient to carry out or give effect to the Act, and these amending regulations operate under this provision. Specifically, the regulations amend Schedule 2 of the Principal Regulations to include the Australian Securities and Investments Commission (ASIC) as a new entity to which class B information can be disclosed. Class B information, as described in Schedule 3, includes details of convictions, identification details of known associates, past travel details, and details of agencies to whom the person is of interest.
These amending regulations impose certain obligations on the parties involved. The Chief Executive Officer (CEO) of Customs is required to ensure that any disclosure of protected information to ASIC adheres to the conditions specified in the Act and the amended regulations. This includes verifying that the information to be disclosed falls within the specified class of information (class B) and confirming that ASIC is indeed an authorised entity under the amended regulations. The CEO must also ensure that all disclosures are made in accordance with the provisions of the Privacy Act 1988, as 'personal information' is defined consistently across both Acts.
Breaches of the obligations or requirements set forth in the Customs Administration Act 1985 and its regulations can lead to significant consequences. Section 16 of the Act, which governs the disclosure of protected information, includes provisions for penalties in the event of non-compliance. Subsection 16(2) prohibits the unauthorised disclosure of protected information, and unauthorised disclosures can result in civil or criminal penalties. For instance, under subsection 16(4), a person who contravenes the disclosure provisions may be subject to a penalty of up to $21,000 for a corporation and up to $4,200 for an individual, as stipulated in the Act. These penalties reflect the seriousness with which the Act treats the protection of sensitive information and the importance of compliance with its provisions.