Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS ADMINISTRATION AMENDMENT REGULATIONS 2004 (NO. 1) 2004 NO. 260

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 by the Act to be prescribed 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.

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 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, Schedule 3 to the Customs Administration Regulations 2000 (the Principal Regulations) sets out the descriptions of seven classes of information, identified by the letters A, B, C, D, E, F and G. 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. Schedule 3 is set out in the Attachment.

The purpose of the amending Regulations is to revise Schedule 2 to the Principal Regulations to meet Customs' current operational requirements with respect to the disclosure of information relevant to other government agencies.

The amending Regulations amend Schedule 2 to specify:

•       additional classes of information E and F as classes of information that may be disclosed to the Health Insurance Commission (the HIC), an entity already specified in Schedule 2;

•       Horticulture Australia Limited (HAL) and the Corruption and Crime Commission of Western Australia (CCCWA) as new entities to which disclosures of a class or classes of information containing personal information may be made;

•       the class of information C as the class of information that may be disclosed to HAL; and

•       the classes of information A, B, C, D, E, F and G as the classes of information that may be disclosed to the CCCWA.

The classes of information E (Documents and information about passenger and crew detentions and examinations) and F (Documents and information about the arrival and departure of persons to and from Australia) were not prescribed as classes of information that may be disclosed to the HIC at the time the HIC was first prescribed as a permitted entity under Schedule 2. Customs' current information exchange arrangements with the HIC require Customs to be able to provide information of classes E and F containing personal information to the HIC.

Further, HAL requires regular information from Customs on certain exports to effectively perform its functions as the industry export control body under the Horticulture Marketing And Research And Development Services Act 2000. To facilitate the provision of such information to HAL, Customs needs to be able to disclose information of class C containing personal information to HAL.

Finally, Customs has recently signed a memorandum of understanding (MOU) with the CCCWA, which provides for the mutual exchange of information relevant to the activities of both agencies. To facilitate the exchange of information under the MOU, Customs needs to be able to disclose information of classes A, B, C, D, E, F and G containing personal information to the CCCWA. The classes of information included are consistent with the classes of information that Customs is permitted to disclose to the other law enforcement agencies listed in Schedule 2.

The amending Regulations commence on the date of their notification in the Gazette.

0404610A

ATTACHMENT

SCHEDULE 3 TO THE CUSTOMS ADMINISTRATION REGULATIONS 2000

Schedule 3 Permitted classes of information

A       Documents and information about surveillance activity or analysis

1.       This class includes, for a person, information such as identification details, travel documents and details of suspected offending conduct.

2.       It also includes documents and information derived from human and electronic surveillance methods, such as reports of observations, perceptions or detections, photographs, videotape recordings, radar, satellite or closed circuit television images or stills and sound recordings.

B       Documents and information about intelligence activity or analysis

1.       This class includes, for a person, details of convictions, identification details of known associates, past travel details, and details of agencies to whom the person is of interest.

2.       It also includes reports, assessments, briefings and other intelligence publications.

C       Documents and information about commercial transactions, including the importation or exportation of goods to and from Australia

D       Documents and information about the movement of vessels and aircraft

E       Documents and information about passenger and crew detentions and examinations

F       Documents and information about the arrival and departure of persons to and from Australia

G       Documents and information about detection, examination and seizure of goods including postal articles