EXPLANATORY STATEMENT
Select Legislative Instrument 2012 No. 71
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs Amendment Regulation 2012 (No. 4)
Subsection 270(1) of the Customs Act 1901 (the Customs Act) provides, in part, that the Governor‑General may make regulations not inconsistent with the Customs Act prescribing all matters which by the Customs Act are required or permitted to be prescribed, or as may be necessary or convenient to be prescribed, for giving effect to the Customs Act.
The purpose of the amending Regulation is to amend the Customs Regulations 1926 (the Principal Regulations) to correct an error in the description of the prescribed equipment that can be used to undertake an internal non-medical scan under section 219SA of the Customs Act.
Section 219SA of the Customs Act allows certain Customs officers to conduct an internal non-medical scan of a person in certain circumstances. Subsection 219SA(1) of the Customs Act provides that an internal non-medical scan may only be conducted using prescribed equipment. Section 219ZAB sets out the conditions for prescribing the body scan technology. Specifically, for an internal non-medical scan, the regulations may only prescribe equipment that can produce an image that indicates a person is or may be internally concealing a suspicious substance.
In Customs Amendment Regulation 2012 (No. 1), the Smiths Detection B-SCAN 16 HD-DV was prescribed as the equipment that may be used to undertake an internal non-medical scan. However, the name of this equipment contained a minor error, and the amending Regulation has corrected this error. The body scanner has not been deployed by Customs and Border Protection and will not be deployed until the error in the name has been corrected.
The amending Regulation repeals and substitutes item 1.1 in the table in regulation 176AA of the Principal Regulations to prescribe the Smiths Detection B-SCAN 16HR-DV body scanner technology for the purposes of section 219SA(1) of the Customs Act.
Section 219ZAB(3) of the Customs Act provides that before the Governor General makes a regulation prescribing equipment for the purposes of subsection 219SA(1), the Minister must obtain from the Chief Executive Officer (CEO) of Customs a statement that:
(a) the equipment can safely be used to detect suspicious substances;
(b) use of the equipment poses no risk, or minimal risk, to the health of a person whom the equipment is used to search; and
(c) a person does not require professional qualifications to operate the equipment.
The Minister obtained a statement in respect of the Smiths Detection Body Scanner from the CEO of Customs in relation to Customs Amendment Regulation 2012 (No. 1). This advice equally applies in relation to the amending Regulation.
Subsection 219ZAB(4) of the Customs Act provides that before the CEO makes the statement to the Minister, he or she must consult with the relevant Commonwealth authorities, if any, that have expertise or responsibilities relevant to the matters addressed by the statement.
In addition, subsection 219ZAB(5) requires that if the CEO does consult any relevant Commonwealth authorities, he or she must provide a copy of any advice received from those authorities before each House of Parliament within seven sitting days of that House after the day on which the statement is given to the Minister.
The CEO of Customs previously consulted the Department of Health and Ageing and the Australian Radiation Protection and Nuclear Safety Agency in relation to Customs Amendment Regulation 2012 (No. 1). The advice from those authorities also equally applies in relation to the amending Regulation. This advice will be laid before each House of Parliament within seven sitting days after the day on which the statement was given to the Minister in relation to the Customs Amendment Regulation 2012 (No. 1).
As the amending Regulation is of a machinery nature, no consultation was undertaken in relation to the amending 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 Amendment Regulation 2012 (No. 4)
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 Regulation
This legislative instrument prescribes the body scanner technology pursuant to section 219ZAB of the Customs Act 1901, for the purposes of section 219SA(1).
The Regulation commences on the day after registration on the Federal Register of Legislative Instruments.
Human Rights implications
This legislative instrument does not engage, impact on or limit in any way, the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights at section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Conclusion
This legislative instrument does not raise any human rights issues.
Minister for Home Affairs