Border Security Bill Government Bill Commentary As reported from the Government Administration Committee Recommendation The Government Administration Committee has examined the Border Security Bill and recommends that it be passed, by majority, with the amendments shown. Introduction The Border Security Bill amends the Customs and Excise Act 1996 and the Immigration Act 1987 with the purpose of enhancing the security of New Zealand's borders and its trade. The bill is divided into four major sets of provisions which address travel security, supply chain security, law enforcement and immigration pre-boarding checks. It also deals with the matter of cost recovery for the additional costs of the Customs goods clearance arising from the current security environment. Clause 2---Commencement Most of the amendments made by the bill come into force on the day after the Royal assent. However, to enable time for necessary parallel regulations to be promulgated we recommend clauses 6, 8, 8A and 8B, 10, 20 and 25(1), (3), and (4) come into force on the day that is 3 months after the date on which the bill receives the Royal assent. Part 1---Amendments to Customs and Excise Act Background The amendments to the Customs and Excise Act include: o extending the classes of goods that are subject to the control of the Customs o strengthening provisions concerning advance notification of intended arrival of a craft in New Zealand and the information to be provided on arrival of a craft o providing new powers to the Customs to access travel-related information held by people involved in the commercial international travel business o extending the power of Customs officers to question persons at the border about identity, address, travel and travel movements o extending powers of search in relation to vehicles and goods o examination of goods o detention of persons and goods o creating new offences related to these new powers. We note that the Solicitor-General has considered the bill for consistency with the New Zealand Bill of Rights Act 1990, and in his advice to the Attorney-General considered that all the proposed amendments to the principal Act are consistent. Clause 4---Interpretation (definitions) Widening of Customs officers' powers We recommend two amendments to the definition of `Customs-approved secure exports scheme'. This definition is inserted in section 2(1) of the principal Act by clause 4(1) of the bill. One amendment inserts a reference to Customs officers' powers, under section 146(2), to question certain persons about any cargo destined to be exported from New Zealand. The other amendment makes it clear that the powers under section 151 include, but are not limited to, powers to examine goods subject to the control of the Customs and in a Customs-approved secure package. Definition of New Zealand We recommend the definition of New Zealand in section 2(1) be amended by clause 4(3) to update section references made obsolete by the principal Act. Further, this amendment will ensure that powers in new section 166A of the principal Act (inserted by clause 18) are exercisable in the contiguous zone of New Zealand (as described in section 8A of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977). Definition of risk assessment Given the number of different frameworks used by various Government departments to carry out risk assessments of border security, we considered whether a definition of `risk assessment' should be included in the principal Act to clarify how risk was to be assessed at the border. We noted that the actual term `risk assessment' is not included in the bill or the principal Act. The Customs use the Australian/New Zealand Standard AS/NZS 4360:1999, as adopted by the Government, for risk management. In view of this, we agreed that there was not a need to define the term `risk assessment' in the principal Act. New clauses 4A to 4E---Licensing of areas for storing exports and control of goods for export We recommend new sections 19A to 19H be inserted in the principal Act to enable an area to be licensed on voluntary application as a Customs-approved area for storing exports or CASEs where that area is being used for storing goods to be exported (see clauses 4A to 4E). The form and content of, and the procedure to be followed in making, an application for an area to be licensed as a CASE will be prescribed by regulations (see clause 25). We understand that a number of provisions in the principal Act relating to Customs-controlled areas will also apply to CASEs. The types of areas over which the Customs will have control are off-port sites that are used to temporarily store goods prior to export and facilitate the transitional movement of containers, for example, metroports. The term `metroport' is an industry term, as opposed to a statutory term (or a term used in the principal Act), which is only used in a generic descriptive way. It is not used in new sections 19A to 19H of the principal Act. Goods can be examined by the Customs at the metroports prior to their transport to the port or airport from which they are exported. We note that the Customs intends to use its mobile x-ray facilities at these sites. Another example of an area, which the Customs would license under these new provisions is an area occupied by a consolidator, that is, a person whose business is to pack goods belonging to different persons or companies into a container for export. Further, we intend that the amendments relating to CASEs will ensure that goods to be exported are subject to the control of the Customs from the time the goods are brought to these areas until they are exported to a point outside New Zealand (whether or not the goods are transported to other areas and, if they are so transported, during that transportation). We consider that new sections 19A to 19H, combined with existing provisions, will facilitate the secure passage of export goods. Licensing of areas for imported goods We noted that the principal Act already provides for the licensing of areas for imported goods. We considered whether areas for export goods should be subject to the same control, guidelines and penalties. These existing provisions, however, have only a limited application to narrow classes of goods for export. In view of this, we accept that new sections 19A to 19H are needed to address specifically all exported goods subject to a Customs-approved exports scheme. Private business premises The Human Rights Commission expressed concern about how far this amendment will intrude into private business premises. The commission suggested that if the intent is to create new powers of control, such as to search goods through x-ray and to seize goods, there must be a proven need for such an expansion of intrusive powers. In view of this, we considered what the practical effect of licensing would be, above and beyond the powers the Customs already have in this regard. The new provisions in sections 19A to 19H are designed to enable an area to be licensed on voluntary application as a Customs-approved area where that area is being used for storing goods to be exported. In these circumstances, we understand that the intrusion into private business will be by way of participation in the scheme and to no greater extent than is provided for in these amendments. Clause 5---Goods subject to control of Customs To correct a flaw in respect of section 20(1)(b) and 20(1)(c) of the principal Act we recommend an amendment to clause 5 to repeal paragraphs (b) and (c) of section 20(1) and substitute new paragraphs (ab) to (c). New paragraph (ab) makes clear how goods are subject to the control of the Customs when those goods are in a package to which a Customs seal has been applied. (Customs seals are provided for in new sections 53A and 53B inserted by clause 9). New paragraph (ac) makes clear how goods are subject to the control of the Customs when the goods are to be exported under a Customs-approved secure exports scheme. (Customs-approved secure exports schemes are provided for in new sections 53C to 53J inserted by clause 9). New paragraph (b) corrects a flaw in current section 20(1)(b). This section ensures goods to be exported under drawback `Drawback': The repayment of duties or taxes, previously charged on commodities from which they are relieved on exportation. Peter Spiller, Butterworths New Zealand Law Dictionary, Fifth Edition, Butterworths, 2001, p. 41. are subject to the control of the Customs from the time they are brought to a Customs-controlled area. New paragraph (b) ensures those goods are instead subject to that control from the earlier of the time of the claim for drawback or the time when the goods are brought to a Customs-controlled area. New paragraph (c) amends current section 20(1)(c) to make clear how goods are subject to the control of the Customs if the goods are brought to a CASE. Clause 6---Advice of arrival Form and manner of advance notice of arrival We recommend section 21(1) of the principal Act be amended by clause 6 to provide that the form and manner of advance notice of arrival may be approved in writing by the Customs Chief Executive (either generally or for a particular case or class of case). As introduced, clause 6 proposed that the form and manner of the advance notice was to be prescribed by regulations. We noted that the Customs intends to require that the advance notice of arrival be given in an electronic form and manner. We understand that early advice in electronic form will enable the pre-screening of people and goods with those identified as `being of interest' to the Customs and then being subjected to closer examination upon arrival in New Zealand. We agreed that such a process should facilitate the timely and efficient screening of information about goods, people and craft entering New Zealand. Detail required for cargo reporting and timing We noted the importance to airline operators of the extent of prescribed detail required for cargo reporting and its prescribed timing. We understand that details of the data requirements and timing will be subject to industry consultation prior to the promulgation of regulations prescribing that detail and timing. Notwithstanding the concerns of submitters, we considered it was essential for the Customs to be advised of all cargo entering and leaving New Zealand to enable security screening to take place. In terms of goods, either for discharge in New Zealand or for export, the long-standing requirement to lodge import or export declarations will continue to satisfy these requirements. In terms of the new requirement for in-transit and trans-shipped cargo, the Customs advised us that it intends to accept an `Electronic Cargo Information Report' from freight forwarders in place of a report from an airline. New clause 7A---Certificate of clearance We recommend a new clause 7A to align section 34(a) of the principal Act (which deals with outward reports) with section 26 of the Act (which deals with inward reports) by requiring outward reports to be delivered within such time or times as may be prescribed in regulations made under the principal Act. (Clause 25 amends section 286(1) of the principal Act to empower the making of regulations prescribing the time within which the outward reports must be delivered to the Customs.) New clause 7C---Departure to be from Customs place only We recommend that section 37(1) of the principal Act be amended (by a new clause 7C) to require persons in charge of a craft, once they have obtained a certificate of clearance from the Customs, to depart immediately for a point outside New Zealand. This will address the situations where persons in charge of a craft have obtained a Customs clearance, but have remained within New Zealand for extended periods of time before leaving for a point outside New Zealand. `Immediate' departure We noted the advice of the Human Rights Commission that this amendment is unlikely to raise any issues under the `right to freedom of movement' provided the `immediate' departure translates into a reasonable legislative timeframe requirement. We carefully considered the notion of providing in the principal Act a reasonable interpretation of the term `immediate', but accepted that there can be no deviation from an `immediate' requirement by qualification with a time limit. Anything other than an immediate departure following the issue of a clearance certificate by the Customs is unacceptable from a border security risk perspective. Unless a craft leaves immediately following receipt of a Customs clearance then there is the opportunity for risk persons such as terrorists, criminals, prison escapees, or absconders from justice to illegally board craft where persons have already been emigration cleared for departure by the Customs. In addition, any delay in departure provides an opportunity for prohibited goods to be loaded onto a craft without the Customs knowledge such as illegal weapons, firearms, objectionable material, or protected flora and fauna. It would also allow for high value dutiable goods such as tobacco and alcohol products to find their way into the illicit market. Return of craft We noted that while the Customs requires that craft must leave the Customs place immediately following the issuing of a certificate of clearance, section 37(2) of the principal Act allows for a craft to return to New Zealand where accident, stress of weather, or other necessity compels such a return. Where this occurs, the Customs would issue a new clearance. Clause 8---New Part 3A---Customs access to and use of information about border-crossing goods, persons, and craft Clause 8 of the bill seeks to insert into the principal Act new Part 3A (which includes new sections 38A to 38P). New Part 3A will give Customs officials access to information about goods, persons and craft travelling into or departing from New Zealand that is held by persons concerned in the movement of goods, persons, and craft in certain circumstances. Purpose We recommend new section 38B(c) be amended to ensure that community protection Although `community protection' relates primarily to the New Zealand community in terms of border management, it also covers any person moving through our borders. policy issues that are controlled at the border by public authorities are listed as one of the purposes for accessing information under new Part 3A. As introduced, new section 38B(1)(e) uses the term `public health and safety' as a general term to cover a range of community protection activities undertaken by the Customs at the border, including ensuring the safe processing of in-transit passengers. We considered the meaning of the term `public health and safety' and the definition of `public health' prescribed in section 6(1) of the New Zealand Public Health and Disability Act 2000. We did not, however, consider that this was a suitable concept to be included in the principal Act. We also recommend that the reference in section 38B(1)(e) be amended to refer to `the protection of the health and safety of the public'. An example of this might be the management of any major health crisis, for example, the recent SARS outbreak. Who must give Customs access to information Proposed new section 38C describes persons to whom new section 38D or section 38E apply. Some submitters were concerned that it may be unreasonable to expect, and indeed may not be possible, for an airline employee approached by the Customs to provide access to information, which may be held in an overseas location. These concerns proved to be unfounded. New section 38C(b) requires the Customs Chief Executive to give notice in writing to a person concerned in the movement of goods, person, or craft. New section 38F(2) allows the Chief Executive to exempt a person from complying with the requirement to provide access under specified circumstances. We consider that this provision ensures that the Chief Executive can work with a travel operator to achieve the most effective outcome for both parties. Information to which access must be given about border-crossing persons and craft New sections 38D and 38E specify the information about border-crossing craft and persons to which the Customs must be given access. We recommend these sections be amended to: o limit the open-ended nature of new sections 38D and 38E by ensuring that persons to whom these sections apply are not required to collect information that is not currently collected o ensure that a person involved in the movement of goods, persons or craft is only required to give the Customs access to information that they currently have access to. We were concerned that access by the Customs to the information specified in new sections 38D and 38E was not controlled or regulated sufficiently and that the information specified was too broadly defined. For example, it may have seen the Customs gaining access to information unrelated to person's travel such as purchase information like credit card or bank information, or frequent flyer data, or other personal details. We were advised that the information specified in new section 38E(2) was defined with some generality so that it was consistent with the purpose for which travel operators collect information, that is, to facilitate the travel of border-crossing persons. We understand that travel operators prefer such generality, as it does not require them to filter the information they hold and to which the Customs has access. We also noted the advice of the Solicitor-General that access by the Customs to this breadth of personal information was reasonable during the short period surrounding a person's international travel. Nonetheless, we considered an amendment was needed to overcome the germane nature of the new sections to ensure that citizens' civil rights were not overridden. In particular, we wished to ensure that the specified information to which the Customs must be given access has justified limitations. Access to second and third tier information We considered that it was inappropriate for the Customs to have access to second and third tier information, which is not held by operators specifically for the purpose of travel, for example, personal financial information beyond that held by operators for the purpose of travel by a border-crossing person. We were reassured that such access is limited to the purposes of new section 38D. As introduced, the bill required the Customs to be given access to information only if the travel operator holds the information. The bill, as amended, now enables access to information travel operators hold, or to which they have access. This is limited to information about the facilitation of a person's travel or about border-crossing craft. For information, however, about a border-crossing person there is the following very significant limitation. The information is not accessible to the Customs where the travel operator holds it, or has access to it, for facilitating the border-crossing person's travel to or from New Zealand. New section 38E(2) qualifies both access and travel. The Customs will not have access to databases beyond the airline reservation system. It was the committee's intention that the Customs will not have access to personal information beyond airlines' reservation systems for cross-border travel for the purpose of facilitating travel. Retention of passenger data up to 14 days We noted the concern of those submitters that some provisions appear to envisage retention by airlines of passenger data up to 14 days after carriage, despite the fact that airlines do not retain the information for such a period of time. We were advised that, as stated earlier, while section 38E(1)(b) requires the travel operator to give access to information held by the travel operator or to which the travel operator has access, the new legislation does not require travel operators to hold, or to have access to, information for any period. We are aware of the various data management practices of travel operators. The new legislation will not interfere with those practices, nor require any changes to be made to them. It does, however, give the Customs the authority to access information that is available. Obtaining information without applying for a warrant New sections 38H and 38I will allow the Customs to view information about border-crossing persons without warrant if it is information about travel within the 28-day period (as defined in new section 38H(5)). We were concerned that the new provisions allowed the Customs to obtain searching and viewing information without applying for a warrant, even when the delay of obtaining a warrant would not frustrate an investigation. We understand, however, that the bypassing of procedures in obtaining warrants would strengthen Customs clearance procedures by allowing it online access to traveller information held by travel operators not otherwise required to be supplied under section 21 of the principal Act. The Customs estimated that on average, around three people per flight (166 on average) will be queried. In most cases this will occur as a pre-arrival operational process while the airline is en route to New Zealand. A requirement for a warrant in each case would make such a system unworkable. On balance, we accepted this rationale as clarifying a right already established in existing case law for the benefits of the travelling public. Searching and viewing by Customs of information about border-crossing persons Proposed new sections 38H(4) and 38I(6) deal with the right to search and view without a warrant. We were concerned that these new sections may chip away at civil liberties. However, after careful consideration of the possible mischief in keeping these provisions in the bill we accepted advice that these new sections do not improperly erode civil liberties. We noted that new sections 38H(4) and 38I(6) were included to address a concern shown by a decision of the Court of Appeal (R v Laugalis (1993) 10 CRNZ 350) in which the Court invalidated the warrantless search of an impounded motor vehicle conducted under section 18(2) of the Misuse of Drugs Act 1975. The Court held that the search was invalid as the preconditions for the search were not satisfied, that is, the police did not have, as required by the Misuse of Drugs Act, `reasonable grounds to believe' that certain drugs were contained in the car. The Court also held that, in terms of section 21 of the New Zealand Bill of Rights Act 1990 (unreasonable search and seizure), `the precondition for the very exercise of the [search] power did not exist'. In view of the Court of Appeal decision, the power to act without warrant, which is not restricted in this way by the bill, is exercisable reasonably (in terms of section 21 of the Bill of Rights Act) only if the purpose of the search would be frustrated if a warrant were required to be obtained. Such a restriction is not one intended by new Part 3A, which seeks to delineate in a way not inconsistent with the Bill of Rights Act between the cases in which: o searching and viewing of information without warrant is authorised o a warrant is required for searching and viewing of information. The purpose of new sections 38H(4) and 38I(6) is to guard against and prevent that unintended restriction from being imposed on the exercise of the warrantless powers of viewing and searching in new Part 3A. If the exercise of those warrantless powers is later restricted by the Court of Appeal decision, the balance and integrity of new Part 3A as a whole would be undermined. The warrantless powers (intended to be exercisable routinely) would be usable only in exceptional cases, and the warrant powers (intended for more exceptional cases) would have to be relied on routinely. The resulting delays and expenses would undermine the usefulness of new Part 3A. Search and viewing warrants Proposed new section 38J provides for search and viewing warrants authorising the carrying out of searches and the viewing of information relating to a suspected relevant risk or threat or offence (when those searches and that viewing are not authorised by new sections 38H or 38I). We considered the intent of new section 38J(1)(b), as it had appeared confusing to some submitters. This section is technically complex, but we were advised that it was written this way to meet the compliance requirements of the New Zealand Bill of Rights Act. In essence, new section 38J(1)(b) relates to searches of information relating to travel outside the 28-day period, for information about a past or current or proposed traveller, based on characteristics similar to those of a person who travelled inside the 28-day period. For example, the Customs may be looking for someone who is planning to travel a similar route to that of a recent traveller in whom it has an interest. Authorisation to carry out of warrantless search and viewing Proposed new section 38K authorises the carrying out, without a warrant, of a search, and of viewing, of the kind referred to in new section 38J if the Chief Executive is satisfied that certain conditions have been met. However, if the Chief Executive acts under new section 38K, he or she must within 72 hours apply for a warrant under new section 38J to authorise the search and viewing. We considered whether new section 38K represented an undesirable bypassing of judicial checks and balances and whether it placed too much control in the hands of the Chief Executive. We understand that this new section is for emergency use when timing is at issue in dealing with a risk, for example when it is important to establish whether a person, found to have committed an offence on arrival, is travelling alone. Timing is critical because an accomplice may be in the process of being given clearance. The judicial checks are therefore not bypassed necessarily, but are only delayed for practical reasons. Precedents do exist in other New Zealand statutes for having emergency warrant provisions, for example the Crimes Act 1961, the Misuse of Drugs Act 1975 and section 171 of the principal Act. There are also provisions for taking actions without warrant in situations where delaying those actions until a warrant can be obtained would defeat the purpose of those actions, for example section 18 of the Nuclear-Test Ban Act 1999. We also recommend, as a drafting simplification, that new section 38K(4) and (5) be broken off into a new section 38KA (with a consequential change being made to a cross-reference in new section 38N(3)). The committee was reassured that new section 38KA was added to address specifically situations where the viewing of information is not authorised. In such cases new section 38KA also specifies information to be destroyed immediately to prevent improper use. Information and disclosure An application for a search and viewing warrant under new section 38J(2) will often be supported by various documents. New section 38M(2) is related to that kind of supporting document. In particular, new section 38M(2) affects the test to be applied by a judge deciding: o disputes over whether the document should be produced o whether to order that the document not be produced. We noted that the test is stated as follows in new section 38L(7)---the Judge may order that all or a part of the document not be produced if: o the document or part contains information of the kind specified in new section 38M(1), that is, information that is sensitive for law enforcement or diplomatic reasons o production of that information would involve disclosure of the kind referred to in new section 38M(2), that is disclosure that would be likely to prejudice specified law enforcement or diplomatic interest or to endanger the safety of any person. One submitter suggested that the test for this exemption should be `probable on reasonable grounds', rather than `likely'. We considered, however, that lifting the `would be likely' threshold in new section 38M(2) would prevent a Judge from ordering that a document or part not be produced even though the disclosure of information in the document would be likely to prejudice certain specified law enforcement or diplomatic interests or to endanger the safety of any person. We did not therefore consider that it was necessary or desirable to lift the `would be likely' threshold in new section 38M. We noted that the same threshold is to be found in the following similar existing statutory provisions, both of which define `classified security information', namely section 32(3) of the Terrorism Suppression Act 2002 and section 114B(1) of the Immigration Act 1987. New clause 8A---Entry of goods for export Currently, under section 49(5) of the principal Act, persons who lodge an export entry with the Customs can load their goods onto the transport used for export before that entry has been passed. We recommend this section be amended by new clause 8A to require an export entry to be made and passed before goods can be loaded for shipment. Under this proposed change, until an exporter has obtained a delivery order from the Customs, it will not be able to load goods onto a craft for export. This amendment should ensure that the Customs is able to deliver increased export supply chain security, without additional delays to the processing of goods for export. New clause 8B---Regulations relating to the entry of goods for export In view of the amendment proposed to section 49(5) by new clause 8A, it is also necessary to amend section 50 of the principal Act to empower the making of regulations prescribing the conditions under which an export entry is deemed to have been passed. We therefore recommend that a new clause 8A insert a new section 50(aa) for this purpose. New section 50(aa) mirrors section 40(b) of the principal Act, which relates to imports. New clauses 7B and 8C---Fees and charges relating to granting certificate of clearance and exportation of goods Government members recommend new sections 34A and 50A be inserted into the principal Act (by clauses 7B and 8C) to enable regulations to be made to recover the Customs costs of granting a certificate of clearance to outbound craft and to enable costs to be recovered in respect of exercising functions over exported goods. These regulation-making powers are needed to specify the fees for clearance of outbound craft and/or clearance of export consignments. As these amendments were not included in the bill as introduced, we invited original submitters to the bill and certain industry groups affected by the introduction of these cost recovery proposals to make a submission. We wish to acknowledge the submissions we received and to put on record the contribution that these submissions made to our consideration of this matter. We noted the submissions both in terms of the content and process. The issues raised by submitters that we considered carefully are detailed below. Consultation One of the main criticisms of submitters was that industry groups had not been consulted over the cost recovery proposals. We were advised, however, that consultation with industry groups had taken place. In particular, we note that the Customs has established an Industry Working Group to assist in the formulation of an efficient and fair cost recovery mechanism. A Ministerial subcommittee has also been established to coordinate proposals for cost recovery across border-related processes. We were concerned that submitters viewed our committee's hearing of evidence on this matter as part of the Government's consultation process with them. We informed submitters that our hearing process was not a substitute for any consultation required under the proposed cost recovery amendment to the principal Act. Nonetheless, the concerns of submitters did prompt us to examine carefully the requirement contained in proposed new sections 34A(4) and 50A(3) for the Minister to consult with persons representative of interests likely to be affected by any proposed regulations. We understand that these provisions are standard and mirror those contained in section 40A of the principal Act, which relate to fees and charges for the importation of goods. Government members were therefore satisfied that these new provisions were appropriate. Public good versus private good We considered the views of submitters that further border security enhancements should be funded from general taxation as border security serves the greater public good. Submitters argued that Treasury Guidelines for Setting Charges in the Public Sector had not been accurately applied in this case. We were advised that Treasury guidelines do not aim to be definitive; instead they identify the steps of a process upon which to base a sound analysis. As a result, in this case the differences between the submitters' analysis and the Government's funding proposal indicate a different priority given to policy objectives. We noted advice that being a `public good' is a different concept from whether a good has `public goods' features. These terms can therefore cause confusion as their usage by economists and in the guidelines differs from normal public usage. `Public good' as referred to by some submitters is akin to a claim of national interest in the provision of the good whereas it is a matter for debate whether any good or service provides a national benefit. Even if a good does provide a national benefit, there is a separate debate as to who should pay for the provisions of that good. Most submitters considered that the proposal for cost recovery on goods clearance services amounted to a tax on trade, as the proposed fee will not be directly dependent on the services that are to be provided. As a consequence, submitters argued that this meant New Zealand would be in breach of a number of international organisations and agreements to which it belongs, such as the General Agreement on Tariffs and Trade, the World Trade Organization and the International Civil Aviation Organization. We noted that the determination of whether a cost is a tax or charge depends on whether it meets Treasury guidelines for cost recovery, including whether the total cost is within the costs of the charging agency. Passenger clearance The committee wished to make clear that under new section 34A(2) no fees or charges may be prescribed to recover costs relating to the clearance of passengers. Fee structure We noted the comments of some submitters that the proposal to implement the charge as a flat fee will present inequities between sea and air freight users, as aircraft will be charged the same fee as ships for carrying much lower capacities of freight. Other submitters viewed the proposed flat fee for goods clearance as unfair to those exporters who are already required to comply with existing Government assurance programmes. We note that the principal Act does not contain the actual regulations that would impose a particular fee. We also note that proposed new clauses 7B and 8C do not prescribe the format or the amount of the fees. These will be set in line with Treasury guidelines and examined by the Regulations Review Committee. The Customs are required to consult with the industry regarding the allocation of costs and designing a schedule of fees. We considered it is essential that a fair and correct allocation of costs in relation to the services delivered is essential to making this genuine cost recovery. We were advised that the Customs cost of providing supply chain security (full year costs from 2005/06) is estimated currently to be $19.753 million per annum (inclusive of GST). This will comprise managing the risks around exported goods, trans-shipped and in-transit goods moving across New Zealand's border and imported goods. The marginal costs of the additional staff, technology, accommodation and increases in administrative overheads needed to support supply chain security are also to be recovered. Minority view of the National Party In general terms, the National Party agrees with the amendments proposed in the bill. The National Party, however, strongly opposes the introduction of an estimated $19.753 million extra `tax' on our exporters and importers. The National Party strongly opposes the proposed new clauses 7B and 8C, which permit the introduction of costs through regulation. Advice given to the committee by officials and Treasury clearly indicate that the $19.753 million is an arbitrary figure and not well substantiated. If this bill is enacted, the advice also shows that as much as 70 percent of the cost of the security part of customs will be placed on importers and exporters. This would be much higher than any other part user-pay charge. Comments made by officials indicate that the Government has a desire to substantially shift the cost of security measures at our ports and airports onto importers and exporters. Clause 9---Customs seals and Customs-approved secure exports schemes Customs seal may be applied to goods for export Clause 9 inserts into the principal Act new headings and new sections 53A to 53J relating to Customs seals and to Customs-approved secure exports schemes. We noted that new section 53A empowers the Customs Chief Executive to appoint a Customs officer or other person to apply (including to re-apply) Customs seals to packages of goods for export. A Customs seal (see clause 4) is a seal, approved by the Chief Executive for application to a package of goods as soon as the package is secured to show that, when it was secured, the package contained only the goods, and was secured in an approved way, and to help to identify interference or tampering with the package after it is secured. We noted that a person appointed under new section 53A would be able to apply the seal to any container packed outside a secure exports scheme. We understand that Ministry of Agriculture and Forestry and New Zealand Food Safety Authority personnel supervising the packing of containers will be able to be approved persons under this provision. Notice of appointment to apply Customs seal New section 53A(3) is inserted into the principal Act by clause 9 to require that the notice of appointment of a Customs officer or other person to apply a Customs seal to a package of goods specify that a seal can only be applied if the exporter agrees or incidental to and immediately after a search or examination under the principal Act. However, in clause 9 as introduced, new section 53A(3) does not specify the circumstances in which an authorised officer or other person can `interfere' with a seal once applied. We therefore recommend that clause 9 be amended so that it inserts a new section 53A(3A) into the principal Act to address this matter. Standards and other seals We agreed with submitters that any standards set in regard to seals need to be practical and not duplicate or undermine assurances provided by other agencies' seals, namely the New Zealand Food Safety Authority and Ministry of Agriculture and Forestry ones. Notwithstanding this, a Customs seal must be a tamper indicator one and able to be monitored by remote control. Seals such as the ministry's and authority's ones, which are used for food safety purposes do not, at this point, provide the level of security required of a Customs seal. Ideally, we would like to see a single seal developed that would meet the standards required of a Customs seal and satisfy all the regulatory authorities involved. Warning notice for packages to which seal applied New section 53B of the principal Act (inserted by clause 9) will require a warning notice to be attached to a package of goods if the goods are not goods to be exported under a Customs-approved secure exports scheme and a Customs seal has been applied to the package. The purpose of the notice is primarily to explain that the goods in the package are, for a specified period, subject to the control of the Customs and able to be examined by it. We recommend that new section 53B be amended:--- o by inserting a new paragraph (ba) which ensures that, if a Customs seal is applied to a package, the warning notice attached to the package will explain that certain persons dealing with the package (for example, owners or operators of vehicles carrying the package) may (under new section 146(2), substituted by new clause 13A) be questioned by a Customs officer about any cargo destined to be exported from New Zealand o to make it clear, in new section 53B(c), that the powers under section 151 of the principal Act include, but are not limited to, powers to examine goods subject to the control of the Customs and in a package to which a Customs seal has been applied. Customs-approved secure exports schemes New section 53C of the principal Act (inserted by clause 9) provides for the Chief Executive of the Customs to approve secure exports schemes, and so to make them Customs-approved secure exports schemes. Currently, the principal Act empowers the Customs to examine all export cargo at the time it becomes subject to its control. We understand, however, that factors such as the limited time available and the increasing volume of export cargo impose practical restrictions on the Customs examination process at the border. We noted that the Customs-approved secure exports schemes proposed in the bill are designed to screen out security concerns for large volumes of export cargo before it reaches the border by approving low risk exporters as trusted traders under the scheme. Some submitters were concerned that the schemes may be imposed upon them. Participation in the schemes is, however, voluntary and approval to enter them will be based on a commitment by an exporter to agreed security practices which the Customs advised us will involve security measures relating to personal, premises, product manufacture, information systems and transportation from factory to wharf. Food safety standards will contribute substantially to these security measures, but on their own cannot provide the security assurance required of a Customs-secure export partner. Likewise, Civil Aviation Rule 109 will see security standards regulated under this rule complement the objectives of the secure exports schemes. While the exports schemes will require specific standards of security (detailed in new section 53E), we noted new sections 53C to 53J have been designed to accommodate all types of businesses such as those involved in the horticulture industry. The emphasis is on a business demonstrating to the Customs that it has sufficient security measures in place to attest to the integrity of the goods to be exported. We noted that the actual process for an exporter to be approved by the Chief Executive as a secure export partner is prescribed in the legislation only to the extent provided in new section 53C. New section 53E, however, indicates matters to be taken into account and is flexible enough to allow the approval of security arrangements tailored to particular circumstances. In view of this, we did not consider that the bill required amendment to define further the likely features of an approval process. Appeal rights In view of the discretionary powers to approve a secure exports scheme given to the Chief Executive of Customs by new section 53C, we recommend new section 53C(7) be inserted into the principal Act to provide an applicant with appeal rights. The proposed amendment will enable an applicant who is dissatisfied with a decision of the Chief Executive under new section 53C to appeal to a Customs Appeal Authority against that decision. (The appeal must usually be lodged within 20 working days after the date on which notice of the decision is given.) Clause 10---Customs access to business records New section 95A(3) as introduced, placed an obligation on those to whom section 95A applies to provide access to the business records `at any time'. We agreed with submitters that this was an unreasonable requirement, particularly as it may have meant that an operator had to be available 24 hours a day, 7 days a week, to maintain a computer system in order to satisfy such an access provision. We therefore recommend that new section 95A(3) be amended to include the words `at all reasonable times'. We consider that this will reflect better the intention of this access provision, which we understand was to allow the Customs access to an operator's system at a time when cargo is being cleared for export. New section 95A(2) applies to persons to whom section 95 applies (being licensees, importers and exporters) or persons otherwise involved in the carriage, handling, or transport of goods that are being imported to or exported from New Zealand, but only if those persons have been notified by the Chief Executive that they must comply with new section 95A (see new section 95A(1)(b)). Persons to whom new section 95A applies must, in the case of those to whom section 95 applies, provide the Customs with access to the business records that they are required to keep under that section or, in the case of a person to whom section 95 does not apply, must provide the Customs with access to records of the kind required to be kept under section 95. New clause 10A---Registered user We recommend an amendment to section 132 of the principal Act (inserted by new clause 10A). The amendment substitutes a new section 132(2) into the principal Act, which enables the Chief Executive to require an applicant for registration as a Customs computerised entry processing system user to provide not only any additional information the Chief Executive considers necessary for the purposes of the application (as is the current requirement under section 132(2)), but also evidence of a person's competence in any area the Chief Executive considers relevant to the application. An example of this is evidence of a person's competence in the area of tariff classification. The amendment to section 132(2) addresses concerns raised by the Customs about the lodgement of inaccurate and erroneous entries by operators. The Chief Executive may now require evidence of technical competence in certain areas before registering a person as a licensed user of the Customs computerised entry processing system. New clause 10B---Conditions may be imposed on registered users In addition to new clause 10A, we recommend the principal Act be amended by the insertion of new section 134A to enable the Chief Executive to be able to impose conditions on those persons applying to become registered users or who are already registered users of the system. Conditions will be required to be advised to users in writing and any user dissatisfied with any conditions imposed can appeal to the Customs Appeal Authority. New clause 10C---Cancellation of registration We also recommend that section 135 of the principal Act be amended by the insertion of a new clause 10C into the bill. New clause 10C amends section 135(1) of the principal Act by expanding the grounds on which the Chief Executive may cancel a user's registration. A user's registration may now be cancelled if the user fails to comply with conditions imposed on their registration, is convicted of an offence under the principal Act, Misuse of Drugs Act 1975, or is convicted of a dishonesty offence under the Crimes Act 1961, or fails to comply with any grounds that may be prescribed in regulations. We were advised that cancellation of registration of a registered user would only occur in specified circumstances. We did not therefore consider it necessary that reference needed to be made to `poor performance' in the bill, or a mechanism prescribed for regular reassessment of a registered user's capability. Clause 11---Searching vehicles We recommend section 144 of the principal Act be amended (by clause 11) so that it gives power to search vehicles if a Customs officer has reasonable cause to suspect that they have in or on them goods that are subject to the control of the Customs because they are goods to be exported and that have been brought to a Customs-approved area for storing exports (or CASE). New clause 13A---Questioning employees of airlines, shipping companies, owners or operators of certain vehicles, etc As introduced, the bill provides for detention and search of vehicles that are, or are suspected to be, carrying goods subject to the control of the Customs and in a package to which a Customs seal has been applied or a Customs-approved secure package (used for a Customs-approved secure exports scheme). The bill, however, as introduced, does not address the need to question persons involved with carrying or storing such goods. We therefore recommend that a new clause 13A re-enact existing questioning powers in section 146 of the principal Act and also extend those questioning powers so that they apply: o to owners or operators of vehicles that the Customs have reasonable cause to believe have, or have within the last 72 hours had, in or on them goods subject to the control of the Customs o in a Customs-approved secure package o in a package to which a Customs seal has been applied o to owners or occupiers of premises that the Customs have reasonable cause to suspect have, or have within the past 72 hours had, in or on them goods of that kind. By way of example, the Customs might use the power in new section 146(2) to question a truck driver about damage to a Customs seal applied to a package of goods in accordance with a relevant notice of appointment under new section 53A (inserted by clause 9). Clause 15---Detention of persons We note that clause 15 amends section 148 of the principal Act by adding to the heading the words `questioned about goods or debt' to clarify that it is a person questioned about goods or debts who may be detained under that section. This amendment makes it clear the distinction between sections 148 and new section 148A (which is inserted by clause 16 and allows the detention of a person questioned under new section 145A about their identity, address, travel movements and entitlements, and certain other matters). Clause 16---Detention powers Detention beyond 12 hours As stated above, under new section 148A(1) a Customs officer may detain a person for purposes relating to, and arising from, the questioning of a person under new section 145A. New section 148A(2) provides that a person may be detained under this section only for up to 12 hours. If special circumstances exist, new section 148A(6) provides that the period may be extended for a further reasonable period as defined by new section 148A(8). Given the wide reaching powers provided by new section 148A, we considered carefully whether the ability to detain people beyond the 12 hours needed to be circumscribed by an application to, and consent by, a District Court Judge. However, we agreed that this would be impracticable where persons were detained by the Customs in a `remote location', and where stress of weather or availability of transport prevented removal to a Customs place or a police station in time for such application to be made. This situation would also be problematic where the detention occurred over a weekend and locating and obtaining an approval and consent of a District Court Judge would be difficult to do. We therefore considered that the definitions of `detain' and `further reasonable period' contained in new section 148A(8) provided adequate safeguards for a person detained under these provisions. Reasonable force We noted the concern of some submitters that there was potential under new section 148A(7) for large numbers of people to be detained for long periods of time, that is, beyond the 12 hours, and for them to have `reasonable force' used against them to effect compliance. To address this concern and provide for an element of public accountability, we recommend new section 288A be inserted into the principal Act (by new clause 26A) to require that a Customs officer must report to the Chief Executive within 5 working days the use of reasonable force. Any report must include details about the use of the force and the circumstances within which it was used. New section 148B---Detention of person questioned under section 145A We recommend that new section 148B be inserted into the principal Act (by clause 16) to provide a power for Customs officers and (in certain situations) members of the police to detain persons the officers or members have reasonable grounds to believe will not comply with certain arrival, departure, boarding, or disembarkation requirements in Part III of the principal Act. While it is an offence if a person does not comply with the relevant requirements in Part III, there is currently no power in the principal Act to enable a person to be detained in order to ensure that the person complies with those requirements. The purpose of the detention power is to ensure compliance with the relevant provisions. If, however, during the detention for the purposes of ensuring compliance with the relevant requirements in Part III of the principal Act the detaining officer develops a reasonable cause to suspect that the person would contravene certain other enactments, he or she may further detain the person in order to obtain the attendance of another Customs officer or a person entitled to exercise question, detention, or arrest powers. The addition of this section will therefore: o bridge gaps in the principal Act between obligations placed on people in Part III and Customs officers powers to enforce compliance with those obligations o clarify the Customs ability to detain persons of particular interest pending referral to agencies with primary legislative responsibility o clarify the roles and responsibilities between the principal agency and the Customs as its agent o ensure that any detention has a temporal limit that is reasonable under the circumstances. Extensive powers In recommending the new section 148B amendment to the principal Act, we considered the comments of some submitters and the Human Rights Commission that the Customs already had extensive powers to question and detain people. However, we concluded that they are reasonable and justified. We noted that the Customs existing questioning powers are only `goods centered' `Goods centered' refers to any dutiable, prohibited, uncustomed, or forfeited goods that an individual has in their possession, and the nature, origin, value, ownership or intended destination of those goods. and that there is no compulsion on people to answer any questions that are outside of these powers. Further, a Customs officer must have reasonable cause to suspect an offence against the principal Act has been, is being, or about to be, committed before a person can be detained as a result of questioning. When a person fails, however, to do such acts as present any baggage for examination, the Customs is, at present, powerless to do anything other than prosecute people for failing or neglecting to fulfill that statutory obligation. Similarly, the Customs cannot deal with people if they do not remain at their place of report, or disembark and choose to leave. In the present security environment, we considered this was an unacceptable level of risk and a `gap' in the Customs ability to provide for effective control at New Zealand's border that needed to be addressed by empowering legislation. `About to commit' provision We considered whether the requirement in proposed new section 148B of the principal Act that a person `about to commit' certain offences could be detained was appropriate, particularly given the assumptions that can erroneously be made about a person's behaviour. The `about to commit' an offence appears in 26 other pieces of legislation and an `about to be committed' by a person provision appears in a further 15 instances. Of note, is that of those 15 instances, two already appear in the principal Act. In view of this, we were satisfied that the `about to commit' provision in new section 148B was appropriate. New clauses 16B and 16C---Searching of persons for dangerous items and seizure of items found We recommend new section 149BA be inserted into the principal Act (by new clause 16B) to allow a Customs officer or member of the police to immediately detain and search a person in certain circumstances relating to the carrying of dangerous items. Currently, under the principal Act the Customs can detain a person for the purpose of personal search if various `triggers' are met. Once the decision to detain and search has been made the person has the right to go before a reviewer who can determine whether or not the search may be proceeded with. This can delay dealing immediately with a person who poses an imminent threat to the safety of Customs officers or the surrounding public. The section 149BA power of search may be used only when there are reasonable grounds to believe a person has a dangerous weapon, the item poses an imminent threat, there is a need to act immediately, and the existing search powers would (because of the delay of enabling the person to review the decision) mean there is a greater risk from the threat. Given the removal of access to a reviewer, a Customs officer or member of the police who uses the power under new section 149BA must report its use to the Comptroller of Customs within 3 working days. We also recommend section 149C of the principal Act be amended to provide for the seizure by a Customs officer or member of the police of any dangerous item found when carrying out a search under proposed new section 149BA. We considered that inclusion of these new provisions in the principal Act will both ensure the seizure of dangerous items without delay and protect the safety of Customs officers. Clause 17---Examination of goods subject to control of Customs We recommend that amendments be made to sections 151, 149A(2)(b) and 172(1) of the principal Act to make it clear the Act authorises the use of a standard list of `aids', like those currently described in section 172, while exercising powers of boarding, entry, search, or examination conferred by the Act. We understand that this amendment will make it clear that the principal Act authorises the use of dogs and x-ray equipment, for example, while carrying out an examination of goods subject to the control of the Customs, for example, export consignments. Clause 18---Detention and seizure of goods suspected to be tainted property for the purpose of investigation Seizure of tainted property New section 166A (inserted by clause 18) empowers a Customs officer or authorised person, without warrant, to seize and detain goods if, inter alia, the goods are considered tainted property as defined in section 2(1) of the Proceeds of Crime Act 1991. We considered whether this meant that an aircraft could be seized and detained because it inadvertently carried tainted property. We were advised that this provision would not allow the Customs to seize an aircraft that may have been used to inadvertently carry tainted property under this clause. Notwithstanding this, if an aircraft itself was tainted property, as defined under this provision, then it may be liable to detention for the purpose of investigation. Reasonable force Like proposed new section 148A(7), `reasonable force' may be used to seize and/or detain goods under new section 166A. We noted that where reasonable force is used under this section, new section 288A (inserted by new clause 26A) also applies. A Customs officer must formally report on the use of reasonable force. Interference in business operations We considered the concerns of some submitters that the discretionary nature of the powers proposed by clause 18 have potential for unreasonable interference in business operations. These provisions are, however, designed to deal with the proceeds of crime crossing New Zealand's border and not with legitimate business operations. Clause 18 sets out the triggers for these powers and we note put in place certain protections for people who may be affected by the seizure and detention of property. Further, where perishable property is detained the protection from liability in section 175 of the principal Act does not apply if the Customs has acted without reasonable care in such goods. Clause 20---Offence relating to disclosing whether required to give Customs access to information New section 205B (inserted by clause 20) ensures that a person commits an offence against the principal Act if the person discloses whether the person is required to give Customs access to information under new Part 3A (inserted by clause 8). Some submitters were concerned that, under new section 205B, people involved in the movement of goods, persons, or craft could be liable for a $25,000 fine if they actually disclosed this. While they may sometimes be covered by the `reasonable excuse' provision, we considered whether it was necessary to eliminate all potential for misunderstanding by specifying those to whom new sections 38D and 38E could not be reasonably applied. We were advised that the policy intention of new section 205B is to prevent an operator of a system from informing a client that the Customs has an interest in their transaction or their movement across the border. To specify persons to whom sections 38D and 38E cannot be applied may reduce the effectiveness of new section 205B. We do not, therefore, recommend any change to new section 205B, as introduced. Clause 21---Offences in relation to Customs seals and Customs-approved secure export schemes We recommend new section 210A (inserted by clause 21) be amended by the addition of new section 210A(1)(ab) to provide an appropriate offence provision in relation to interference with, or damage to, Customs seals. Once a Customs seal is applied it is an assurance that the container or package concerned has been examined, the contents can be guaranteed, and are secure. It is therefore necessary to also ensure that once a Customs seal is applied it is not tampered with, or otherwise interfered with, before the container is loaded and departs from New Zealand. We also considered that this section should not include any reference to `imprisonment'. This would ensure consistency between other offence provisions contained in the principal Act. Notwithstanding this, the adequacy of these penalties may need to be reviewed subsequent to the enactment of this bill, given the heightened global security awareness. Clause 24---Disclosure of information overseas and collection, use or disclosure of certain information Processing of international passengers to be done by public authorities We noted the comments of some submitters that new section 281(1)(b) (substituted by clause 24) was drafted too widely and that people such as travel agents could come within the definition of those whose function included `the processing of international passengers'. The intent of this category is not to include private companies or travel operators. To address this matter, we recommend new section 281 be recast to make it clear that the processing of international passengers at the border is that done by public or official authorities. We also recommend related amendments to new section 38B(1) (inserted by clause 8) and new section 282A(2) and (3) (substituted by clause 24). Customs may for certain purposes collect, use, or disclose certain information New section 282A applies to information viewed by the Customs under any of new sections 38G to 38K and to which it is given access under new section 95A. New section 282A(2) states the purposes for which the Customs may collect, use, or disclose such information. New section 282A(3) provides that new section 281 applies, with all necessary modifications, to the disclosure of that information to an overseas agency, body or person whose functions include those specified in new section 282A(3). Given that new section 282A applies to the collection, use or disclosure of personal information, we considered whether it departed from the provisions of the Privacy Act 1993. Privacy principles Undoubtedly, the Privacy Act has provided the basis on which to consider the collection, use, and disclosure of any personal information. However, there are a number of unique factors in the bill that makes it difficult to simply apply the Privacy Act and its information privacy principles. The most significant is the 3-way relationship contemplated by the bill. The 3-way relationship, in the context of the bill, concerns the collection by the Customs from airlines of information that has already been collected, by the airlines, from individuals who are travelling. The 3-way relationship does not sit comfortably with the Privacy Act as it contemplates a more traditional 2-way information exchange. We were advised that, in view of this unique relationship, the decision was made to provide a separate provision in the bill to deal with the collection, use, and disclosure of information in the context of the bill. The aim is that any provision is as analogous to the privacy principles as possible, yet also takes into account the uniqueness of the situation. After careful consideration, we agreed that new section 282A does not represent a complete departure from the privacy principles contained in the Privacy Act and appropriately addresses the unique relationships contemplated by the bill between interested parties. Disclosure of information to other agencies and limitations on the use of that information We sought clarification of the controls that exist in relation to information that the Customs discloses to other agencies, both within New Zealand and overseas. Although the bill departs from the privacy principles, the agencies in New Zealand to whom the Customs discloses personal information still remain subject to the provisions set out in the Privacy Act. This Act applies to all personal information received by New Zealand agencies as a result of a disclosure of personal information by the Customs under new section 282A of the bill. We were satisfied that this means that New Zealand agencies will be subject to the same limitations in relation to personal information disclosed to them under the bill as they are with any other personal information they hold. However, to avoid any doubt, we recommend new section 282A(2A) be inserted to make this clear. Overseas agencies We were, however, concerned about the limitations on the use of information disclosed to overseas agencies. New section 282A will enable the Customs to disclose information viewed by it under new sections 38G to 38K, or to which the Customs is given access under new section 95A, to an overseas agency, body or person whose functions include those specified under new section 282A(3)(a) to (d). We were assured by the provisions of new section 281(3) which detail the conditions under which information should be disclosed to an overseas agency by a body, or person. We were also assured by the fact that overseas agencies, bodies, or persons will be subject to corresponding privacy controls in their respective jurisdictions. Clauses 25 and 26---Regulation-making powers We sought comment from the Regulations Review Committee on aspects of the proposed amendments (relating to regulation-making powers) contained in clauses 25 and 26. We noted and accepted the view of the Regulations Review Committee that the amendments to the regulation-making powers of the principal Act, as proposed by clauses 25 and 26, are administrative in nature and are confined to the level of detail that is appropriate for regulations. However, we recommend several amendments that are consequential on other amendments proposed to: o prescribe the form and content, and the procedure to be followed in making, an application for an area to be licensed as a CASE (see new sections 19C and 286(1)(ba) inserted by clauses 4E and 25(1A) respectively) o prescribe the time within which outward reports required by section 34 of the principal Act must be delivered to the Customs (see clauses 7A and 25(2)) o prescribe, for the purposes of new section 135(1)(d), 1 or more other grounds on which a registered user be considered unfit to continue to be a registered user (see new clauses 10C and 25(5)). Section 288---Chief executive may make rules for certain purposes In addition to these amendments, we recommend section 288(1)(i), which relates to goods exempt from export entry, be amended to allow the Chief Executive to be able to prescribe the time within which such goods are to be reported. This will parallel the time within which export entries are required to be made. Part 2---Amendments to Immigration Act The amendments to the Immigration Act provide for carriers, and persons in charge, of commercial craft to be required to use a specified system to collect certain information from all persons before they board a craft in order to travel to New Zealand. The amendments also give the chief executive of the Department of Labour's New Zealand Immigration Service the authority to make a decision based on the information provided as to whether or not the person may board the craft for the purpose of travelling to New Zealand. The chief executive must notify carriers and persons in charge of commercial craft of a decision made about whether a person may board a craft. Carriers and persons in charge of commercial craft will be required to act in accordance with this notification. The amendments made to the principal Act do not reflect a change in law or policy regarding who is granted permission to enter New Zealand. The purpose of the amendments is to help carriers and persons in charge of commercial craft to determine which passengers do not meet the statutory requirements for travel to New Zealand before they depart for New Zealand. The amendments will also enable the Immigration Service to make immigration decisions in respect of certain passengers in advance of their arrival in New Zealand. The amendments will allow the use of the Advanced Passenger Processing system (or any future system performing the same function) to be made mandatory for specified classes of commercial craft coming to New Zealand. In addition, the amendments to the principal Act will allow the New Zealand Immigration Service to seek further information about passengers who travelled, or intended to travel to New Zealand, and who raise immigration concerns. Clause 28---Residence permit holders temporarily absent from New Zealand We support the amendment of section 18 of the principal Act (inserted by clause 28), as introduced. At present, this section allows holders of New Zealand refugee travel documents to be granted a further residence permit on their arrival in New Zealand on the basis of a previous residence permit. We understand that this provision is inconsistent with the travel requirements of other New Zealand residents who must hold a current returning resident's visa to facilitate travel. The repeal of section 18(b) of the principal Act will require all refugees recognised by New Zealand who have been granted residence, and who are travelling on New Zealand-issued refugee travel documents, to hold a current returning resident's visa when returning to New Zealand. The New Zealand Immigration Service advised that requiring refugees to hold a returning resident's visa would not conflict with New Zealand's obligations to refugees under the 1951 Convention relating to the Status of Refugees. This convention provides that the holders of refugee travel documents returning to New Zealand may be required to comply with such formalities as may be prescribed in regard to exit from or return to a contracting State. The requirement to hold a returning resident's visa would be viewed as a justified formality. Time taken to issue returning resident's visa We were concerned that the requirement for refugees who travelled on New Zealand-issued refugee documents to hold a current returning resident's visa may see these people refused boarding permission where their documentation is not complete, or being delayed while their resident's status is determined. The New Zealand Immigration Service advised us that this is unlikely to happen, as the repeal of section 18(b) of the principal Act will mean that all resident refugees must hold a returning resident's visa before attempting to travel back to New Zealand. However, where a resident refugee does need to obtain the required visa before travelling back to New Zealand then we understand he or she is likely to be able to obtain one within 3 to 4 days. We were advised that when first granted residence, residents are advised of the need to hold a returning resident's visa to facilitate their re-entry and are issued with their first returning resident's visa, which is valid for 2 years. Clause 29---Advance passenger information Clause 29 inserts new sections 125AA to 125AE into the principal Act. These new sections require carriers and persons in charge of commercial craft who are notified of the obligation to acquire passenger information in advance of the person boarding a craft that is to depart for New Zealand. This information is then sent electronically to New Zealand immigration authorities. The provisions of advance passenger information will enable immigration authorities to make immigration decisions in advance of a passenger's arrival in New Zealand and will also allow the immigration authorities a longer time period in which to make enquiries in relation to those passengers in respect of whom they entertain suspicions or doubts about immigration status. The New Zealand Immigration Service has selected the Advance Passenger Processing system as the approved screening system. To allow future technologies to be adopted without legislative change, the amendments do not specify the Advance Passenger Processing system as the one to be used. Advance Passenger Processing system It is intended that the Advance Passenger Processing system will improve border security by allowing the Immigration Service to screen passengers against existing documents or passenger requirements, and provide alerts prior to persons boarding a flight to New Zealand. Travellers who would otherwise be likely to be denied entry on arrival in New Zealand will be identified before boarding a craft that intends to travel to New Zealand and, if necessary, prevented from boarding. The system is already being used by Air New Zealand and other airlines' international flights on a voluntary basis, with a more limited response in respect of boarding passengers. We were advised that coverage is to be extended progressively on a similar basis to cover all airlines flying into New Zealand. Single link We noted that the Customs and the New Zealand Immigration Service propose to implement technology for the information access provisions of the bill so that an airline would be able to use a single system to interface with these agencies, rather than one system with each agency. We understand that the Customs will be the agency with responsibility for such a system, with the Immigration Service requests for information from airlines being made through that system. The bill proposes that the two agencies be able to request and view different sets of information, reflecting their different roles. To ensure that the Customs and Immigration Service access only the information they are empowered to request and view under their respective Acts, systems controls will be established that will be backed by an inter-agency agreement. The concern expressed by some submitters about the need to waive airline requirements and adopt alternative means for advanced processing of passengers if the Advanced Passenger Processing system goes down are addressed by new section 125AA(3). This provision allows the New Zealand Immigration Service to exempt airlines from their Advance Passenger Processing system obligations, either generally or specifically, and could be used when there are systems faults. Application of Advanced Passenger Processing system Current implementation of the Advanced Passenger Processing system extends as far as using it only for scheduled airline flights. However, we noted that coverage could be extended under new section 125AA to one-off flights and sea vessels, including passenger, cargo or fishing vessels. Some submitters requested that sea vessels be exempted specifically from the statutory requirement to provide the New Zealand Immigration Service with advance passenger information. However, we considered this was inappropriate as there is no guarantee that security and immigration risk would not arise from these transport sectors especially as checks on scheduled airline flights are enhanced. We did not support the statutory exemption of any transport sector from potentially being subject to these requirements, as may be appropriate. Status of person travelling We recommend new section 125AA(2)(a)(viii) be inserted to assist the New Zealand Immigration Service in making decisions on whether or not to grant boarding permission. The new section provides that the Immigration Service needs to be advised of a person's status as a traveller, for example, whether he or she is crew, a passenger bound for New Zealand or a transit passenger. Removal of right to seek judicial review Under proposed new section 125AB, the chief executive of the New Zealand Immigration Service may make a decision regarding whether a person may or may not board a craft that is travelling to New Zealand and whether or not any conditions might need to be attached to the person's boarding. Proposed new section 125AB(6) provides that a person who is refused permission to board may not seek judicial review of that decision. We were advised that the provisions of new section 125AB(6) were consistent with the current provisions applying to decisions off-shore to grant visas for travel to New Zealand. Review proceedings are permitted by new section 125AB(7) as a safeguard against the incorrect or improper application of pre-boarding decisions to the holders of New Zealand passports or returning residents visas who are entitled to be in New Zealand. Proposed new sections 125AB(6) and 125AB(7) therefore appear appropriate in the context of border operations. The provision reflects a number of other provisions in the Immigration Act where there is no ability to seek judicial review of an off-shore decision to refuse entry to New Zealand. We considered the concerns expressed by some submitters that the powers given to the chief executive in section 125AB were too broad, gave rise to a lack of transparency, and that the limitations on appeal were too restrictive. Submitters considered that section 125AB(6) was an undesirable attempt to bypass judicial oversight and that it should be deleted. After careful consideration, on balance we did not recommend any change to proposed new section 125AB(6), as introduced. Restriction on need to give reasons for boarding decisions We also considered whether the restrictions on the need to give reasons for boarding decisions found in proposed new sections 125AB(8) and 125AB(9) were justified in the context of a boarding decision that must be made quickly. In most cases, the reasons for refusals will be obvious, especially those made because of insufficient documentation. A person refused boarding who still wishes to travel to New Zealand can obtain reasons for this refusal when they later apply for a visa. In the event of an airline being directed to refuse boarding, it is likely the reason will be conveyed to the passenger through the airline. We were advised that new section 125AB(9) is consistent with the Official Information Act 1982 in that the right of access to reasons for decisions under section 23 of that Act is available only to non-citizens and non-residents who are in New Zealand---this right does not exist off-shore. In view of this, we concluded that the restrictions on the need to give reasons for boarding decisions found in proposed new sections 125AB(8) and 125AB(9) were appropriate and justified. Offences and penalties We noted that new sections 125AA(4), 125AC(3) and 125AE(3) appeared to provide for cumulative penalties and that it was unclear about how these provisions would be applied. We were advised that the offences and penalties set out in these sections relate to separate and distinct aspects of the Advanced Passenger Processing system. A particular failure in respect of each will not be covered by more than one offence, although both the carrier and the person in charge may commit the same offence. This appears to be consistent with existing obligations under the principal Act and the penalties for not meeting these obligations. However, we agreed that the wording of these sections should conform to the wording of the existing section 125(6) to ensure consistency. We therefore recommend that sections 125AA(4), 125AC(3) and 125AE(3), as proposed in clause 29, be amended to conform to the wording of the existing section 125(6). New clause 30A---Police to have powers of immigration officers To correct a technical omission that occurred in the drafting of the Transnational Organised Crime Bill of 2002, we recommend that new clause 30A be added to amend section 139 of the principal Act. This will restore police officers with the powers of immigration officers under section 138A, as was the case prior to 17 June 2002. Appendix Committee process The Border Security Bill was referred to the committee on 1 July 2003. The closing date for submissions on the original bill was 22 August 2003. The closing dates for further submissions on amendments not included in the bill as introduced were 17 November 2003 and 30 January 2004. We received and considered 57 submissions from interested groups and individuals. We heard 12 submissions on the original bill and a further 19 submissions on the cost recovery amendment. Hearing of evidence took 4 hours and 57 minutes and consideration took a further 10 hours and 3 minutes. We received advice from the New Zealand Customs Service on amendments to the Customs and Excise Act 1996 and from the Department of Labour's New Zealand Immigration Service on amendments to the Immigration Act 1987. The Regulations Review Committee reported to the committee on the powers contained in clauses 25 and 26. Committee membership Dianne Yates (Chairperson) Shane Ardern (Deputy Chairperson) Steve Chadwick Hon David Cunliffe Lindsay Tisch Hon Rick Barker Border Security Bill Government Bill Contents 1 Title 2 Commencement Part 1 Amendments to Customs and Excise Act 1996 3 Customs and Excise Act 1996 called principal Act in this Part 4 Interpretation 4A Part II heading amended 4B New heading inserted Customs places 4C New heading inserted Customs controlled areas 4D Customs facilities 4E New heading and sections 19A to 19H inserted Customs-approved areas for storing exports (CASEs) 19A Purpose of sections 19B to 19H 19B Areas that may be licensed as CASE 19C Application for area to be licensed as CASE 19D Licences for CASEs 19E Access of Customs officers to CASEs 19F Examination of goods to be exported and that have been brought to CASE 19G Detaining and searching vehicles for goods to be exported and that have been brought to CASE 19H Customs facilities in CASEs 5 Goods subject to control of Customs 6 Advice of arrival, etc 7 Requirement to answer questions 7A Certificate of clearance 7B New section 34A inserted 34A Fees and charges relating to granting certificate of clearance 7C Departure to be from Customs place only 8 New Part 3A inserted Part 3A Customs access to and use of information about border-crossing goods, persons, and craft Preliminary provisions 38A Interpretation 38B Purpose of this Part Who must give Customs access to information 38C Persons to whom section 38D or section 38E applies Information to which access must be given 38D Information about border-crossing craft 38E Information about border-crossing persons 38F Further provisions about giving Customs access to information under section 38D or section 38E Use of information to which access must be given 38G Controls on use by Customs of information Searching and viewing by Customs of information about border-crossing persons 38H Information about travel within 28-day period 38I Information about other travel may be searched for information relating to travellers within 28-day period 38J Search and viewing warrants 38K Search and viewing without warrant in emergencies 38KA Procedure if viewing of information not authorised 38L Security of applications for warrants 38M Information and disclosure in section 38L(7) Miscellaneous provisions 38N Disposal of information collected by Customs 38O Protection of persons acting under authority of Part 38P Part does not limit other access to or use of information 8A Entry of goods for export 8B Regulations relating to entry of goods for export 8C New section 50A inserted 50A Fees and charges relating to exportation of goods 9 New headings and sections 53A to 53J inserted Customs seals 53A Customs seal may be applied to goods for export 53B Warning notices for packages to which seal applied Customs-approved secure exports schemes 53C Chief Executive may approve secure exports scheme 53D Purpose of secure exports scheme 53E Matters to be specified in secure exports scheme 53F Matters to be acknowledged in secure exports scheme 53G Goods to be exported under Customs-approved secure exports scheme may be exported under drawback 53H Application of Customs seals to goods to be exported under Customs-approved secure exports schemes 53I Exporters may be involved in exportation of goods outside Customs-approved secure exports scheme 53J Review of Customs-approved secure exports scheme 10 New section 95A inserted 95A Giving Customs access to business records 10A Registered users 10B New section 134A inserted 134A Conditions may be imposed on registered users 10C Cancellation of registration of registered user 11 Searching vehicles 12 Questioning persons 13 New section 145A inserted 145A Questioning persons about identity, address, travel movements and entitlement, and other matters 13A New section 146 substituted 146 Questioning employees of airlines, shipping companies, owners or operators of certain vehicles, etc 14 New section 147A inserted 147A Evidence of answers to questions under section 145A 15 Detention of persons 16 New sections 148A and 148B inserted 148A Detention of person questioned under section 145A 148B Detention of persons committing or about to commit certain offences 16A Persons to whom sections 149A and 149B(1) apply 16B New section 149BA inserted 149BA Searching of persons for dangerous items 16C Seizure of items found 17 Examination of goods subject to control of Customs 18 New sections 166A to 166F inserted 166A Detention of goods suspected to be tainted property 166B Return of cash necessary to satisfy essential human needs 166C Further provisions about detention under section 166A 166D Return of goods detained under section 166A 166E Extension of 7-day period in section 166D(1)(a) 166F Custody of certain goods detained under section 166A 19 Failure to produce evidence of identity and entitlement to travel 19A Offences in relation to arrival of craft 19B Offences in relation to manufacture, movement, and storage of goods 20 New sections 205A and 205B inserted 205A Offences relating to failure to give Customs access to information 205B Offence relating to disclosing whether required to give Customs access to information 21 New section 210A inserted 210A Offences in relation to Customs seals and Customs-approved secure exports schemes 22 New section 215A inserted 215A Offences in relation to certain detained goods 23 Goods forfeited 24 New sections 281 to 282A substituted 281 Disclosure of information overseas 282 Information that may be disclosed 282A Customs may for certain purposes collect, use, or disclose certain information 25 Regulations 26 Chief Executive may make rules for certain purposes 26A New section 288A inserted 288A Use of reasonable force must be reported 26B Amendments consequential on enactment of section 11 of Customs and Excise Amendment Act (No 2) 2002 and section 16B of this Act Part 2 Amendments to Immigration Act 1987 27 Immigration Act 1987 called principal Act in this Part 28 Residence permit holders temporarily absent from New Zealand 29 New sections 125AA to 125AE inserted 125AA Responsibilities of carrier, and person in charge, of commercial craft before it departs from another country to travel to New Zealand 125AB Chief executive may make decision about person boarding craft for purpose of travelling to New Zealand 125AC Offences relating to non-compliance with decision made by chief executive under section 125AB 125AD Person to whom section 125AA applies must provide further information if requested, and must provide access to further information 125AE Offence relating to failure to provide information, or failure to provide access to information, under section 125AD 30 Responsibilities of carrier and person in charge of any craft 30A Police to have powers of immigration officers 31 Evidence in proceedings The Parliament of New Zealand enacts as follows: 1 Title This Act is the Border Security Act 2003. 2 Commencement (1) Sections 6, 8, [8A, 8B,] 10, 20, and 25(1), (3), and (4) come into force [on the day that is] 3 months after the date on which this Act receives the Royal assent. (2) The rest of this Act comes into force on the day after the date on which it receives the Royal assent. Part 1 Amendments to Customs and Excise Act 1996 3 Customs and Excise Act 1996 called principal Act in this Part In this Part, the Customs and Excise Act 1996 1996 No 27 is called the principal Act. 4 Interpretation (1) Section 2(1) of the principal Act is amended by inserting, after the definition of Customs Appeal Authority or Authority, the following definitions: New (majority) ----------------------------------------------------------------------- "Customs-approved area for storing exports or CASE means an area--- "(a) that is used for the purpose in section 19B (whether or not it is used for any other purpose); and "(b) that is not required to be, but that is, licensed as a Customs-approved area for storing exports (or CASE) under section 12(1) (as applied by section 19C(2)) ----------------------------------------------------------------------- "Customs-approved secure exports scheme means, in relation to goods that are to be exported (whether under drawback or not), a scheme, approved by the Chief Executive under section 53C,--- "(a) for the packing of the goods, in a Customs-approved secure package, by approved persons, in approved conditions, and subject to approved requirements (including, without limitation, a requirement that a seal or markings in an approved form be applied to the package, as soon as it is secured,--- "(i) to show that, when it was secured, the package contained only the goods, and was secured in an approved way; and "(ii) to help to identify interference or tampering with the package after it is secured); and "(b) for the immediate conveyance (on the completion of the packing of the goods in that way) of the Customs-approved secure package, by approved persons and in an approved manner, to the place of shipment for shipping, or, if it is not in that way immediately conveyed and shipped, to some approved place or places of security en route to the place of shipment; and "(c) for the goods, from the time when they are first secured in a Customs-approved secure package until the exportation of the goods to a point outside New Zealand, to be goods subject to the control of the Customs; and "(d) for the powers of detention and search in section 144(3) to be available in respect of a vehicle in New Zealand if there are suspected to be in or on the vehicle goods that are, or are suspected to be,--- "(i) subject to the control of the Customs; and "(ii) in a Customs-approved secure package; and New (majority) ----------------------------------------------------------------------- "(da) for a Customs officer to be empowered, under section 146(2), to question any or all of the following persons about any cargo destined to be exported from New Zealand: "(i) a person who is the owner or operator of a vehicle that a Customs officer has reasonable cause to suspect has in or on it, or has within the previous 72 hours had in or on it, goods subject to the control of the Customs and in a Customs-approved secure package: "(ii) a person who is the owner or occupier of premises that a Customs officer has reasonable cause to suspect have in or on them, or have within the previous 72 hours had in or on them, goods subject to the control of the Customs and in a Customs-approved secure package: "(iii) a person employed by a person described in subparagraph (i) or (ii); and ----------------------------------------------------------------------- "(e) for the powers {of examination} in section 151 [(which include powers of examination)] to be available in respect of goods that are, or are suspected to be,--- "(i) subject to the control of the Customs; and "(ii) in a Customs-approved secure package "Customs-approved secure package means a package of a kind that is approved by the Chief Executive under section 53C for the purposes of a Customs-approved secure exports scheme". (2) Section 2(1) of the principal Act is amended by inserting, immediately before the definition of Customs value or value, the following definition: "Customs seal, in relation to a package of goods to be exported, means a seal approved by the Chief Executive for application to the package, as soon as it is secured (and in accordance with a notice under section 53A)--- "(a) to show that, when it was secured, the package contained only the goods, and was secured in an approved way; and "(b) to help to identify interference or tampering with the package after it is secured". Struck out (majority) ======================================================================= (3) The definition of New Zealand in section 2(1) of the principal Act is amended--- (a) by omitting from paragraph (b)(iii) the words "section 149(1)(c) and (3)", and substituting the words "sections 149(a) and (b) and 149B(2)"; and (b) by omitting from paragraph (b)(iv) the expression "section 226(2)" and substituting the words "sections 166A and 226(2)". ======================================================================= New (majority) ----------------------------------------------------------------------- (3) The definition of New Zealand in section 2(1) of the principal Act is amended by omitting from paragraph (b)(iv) the expression "section 226(2)", and substituting the expression "sections 166A and 226(2)". ----------------------------------------------------------------------- New (majority) ----------------------------------------------------------------------- 4A Part II heading amended The Part II heading of the principal Act is amended by omitting the words "and Customs Controlled Areas", and substituting the words "Customs controlled areas, and Customs-approved areas for storing exports". ----------------------------------------------------------------------- New (majority) ----------------------------------------------------------------------- 4B New heading inserted The principal Act is amended by inserting, before section 9, the following heading: "Customs places". ----------------------------------------------------------------------- New (majority) ----------------------------------------------------------------------- 4C New heading inserted The principal Act is amended by inserting, before section 10, the following heading: "Customs controlled areas". ----------------------------------------------------------------------- New (majority) ----------------------------------------------------------------------- 4D Customs facilities The heading to section 18 of the principal Act is amended by adding the words "in Customs controlled areas". ----------------------------------------------------------------------- New (majority) ----------------------------------------------------------------------- 4E New heading and sections 19A to 19H inserted The principal Act is amended by inserting, after section 19, the following heading and sections: "Customs-approved areas for storing exports (CASEs) "19A Purpose of sections 19B to 19H The purpose of sections 19B to 19H is to enable an area to be licensed as a CASE so that--- "(a) goods to be exported are (under section 20(1)(b) and (c)), from the time they are brought to the area (whether or not the goods are later transported from that area to another area of any kind, and, if the goods are so transported, during the transportation) until they are exported to a point outside New Zealand, subject to the control of the Customs: "(b) the Customs may, as provided in section 19E, access the area under section 150: "(c) the powers in section 151 (which include powers of examination) are available in respect of goods that are subject to the control of the Customs because they are goods--- "(i) to be exported; and "(ii) that have been brought to a CASE: "(d) the powers of detention and search in section 144(3) are available in respect of a vehicle if there are suspected to be in or on the vehicle goods that are subject to the control of the Customs because they are goods--- "(i) to be exported; and "(ii) that have been brought to a CASE: "(e) the owner or occupier of the area or person operating in the area may be required to provide and maintain operating areas, accommodation, facilities, buildings, equipment, and storage reasonably necessary and suitable for the carrying out the functions and responsibilities of the Customs. "19B Areas that may be licensed as CASE "(1) An area may be licensed as a CASE only if the area is used (whether or not it is used for any other purpose) for the purpose of storing goods for export (temporarily or otherwise) until they are transported (either directly or via another area or areas) to the place of shipment and shipped. "(2) An area used for the purpose of storing goods for export is used for the purpose stated in this section even though the area is also used for the purpose of consolidating, packing, repacking, treating, or otherwise handling those goods. "19C Application for area to be licensed as CASE "(1) An application for an area to be licensed as a CASE--- "(a) may be made by the owner or occupier of, or person operating in, the area; and "(b) must be made in such form, and contain such particulars, as may be prescribed. "(2) The following sections apply to an application under this section as if it were an application for the area concerned to be licensed as a Customs controlled area: "(a) section 11(2) and (3) (which relates to an application for a licence); and "(b) section 12 (except subsections (3)(c), (4), and (5)) (which relates to the grant or refusal of a licence). "19D Licences for CASEs "(1) If a licence for a CASE is granted under section 12(1) (as applied by section 19C(2)) and is subject to terms, conditions, or restrictions, section 13 (variation or revocation of conditions) applies to those terms, conditions, or restrictions as if the licence were a licence for a Customs controlled area. "(2) Section 14 (revocation or suspension of licence) applies to a licence for a CASE that is granted under section 12(1) (as applied by section 19C(2)) as if it were a licence for a Customs controlled area. "(3) However, for the purposes of subsection (2), section 14(1)(b) must be read as if for the words `any of the purposes described in paragraphs (a) to (f) of section 10 of this Act for which the area is licensed' there were substituted the words `the purpose in section 19B (whether or not it is used for any other purpose)'. "19E Access of Customs officers to CASEs Section 150 applies to a CASE as if the area were a Customs controlled area; and section 173 applies accordingly. "19F Examination of goods to be exported and that have been brought to CASE "(1) The powers in section 151 are available in respect of goods that a Customs officer has reasonable cause to suspect are subject to the control of the Customs because they are goods--- "(a) to be exported; and "(b) that have been brought to a CASE. "(2) Nothing in this section limits section 20 or section 151. "19G Detaining and searching vehicles for goods to be exported and that have been brought to CASE "(1) The powers in section 144(3) are available in respect of goods that a Customs officer has reasonable cause to suspect are subject to the control of the Customs because they are goods--- "(a) to be exported; and "(b) that have been brought to a CASE. "(2) Nothing in this section limits section 20 or section 144. "19H Customs facilities in CASEs "(1) The licensee of any CASE licensed under this Act must provide and maintain any operating areas, accommodation, facilities, buildings, equipment, and storage that the Chief Executive determines are reasonably necessary and suitable for the carrying out of the functions and responsibilities of the Customs. "(2) The licensee may levy the Customs such charge or charges as are reasonable for any operating areas, accommodation, facilities, buildings, equipment, and storage provided in accordance with subsection (1). "(3) The licensee of every CASE must store goods subject to the control of the Customs in such manner and in such location as the Chief Executive may direct. "(4) The licensee must be advised by notice in writing of a determination by the Chief Executive under subsection (1) or a direction by the Chief Executive under subsection (3). "(5) A licensee who is dissatisfied with a determination by the Chief Executive under subsection (1) or a direction by the Chief Executive under subsection (3) may, within 20 working days after the date on which notice of the determination or direction is given, appeal to a Customs Appeal Authority against that determination or direction." ----------------------------------------------------------------------- Struck out (majority) ======================================================================= 5 Goods subject to control of Customs (1) Section 20(1) of the principal Act is amended by inserting, after paragraph (aa), the following paragraphs: "(ab) where the goods are to be exported and are in a package to which a Customs seal has been applied (whether or not any other paragraph of this subsection applies to the goods), from the time when a Customs seal is first applied to the package until the exportation of the goods to a point outside New Zealand; or "(ac) where the goods are to be exported (whether under drawback or not) under a Customs-approved secure exports scheme, from the time when the goods are first secured in a Customs-approved secure package until the exportation of the goods to a point outside New Zealand; or". (2) Section 20(1)(b) of the principal Act is amended by omitting the words "under drawback,", and substituting the words "under drawback (but not under a Customs-approved secure exports scheme),". (3) Section 20(1)(c) of the principal Act is amended by omitting the words "under drawback,", and substituting the words "under drawback or under a Customs-approved secure exports scheme,". ======================================================================= New (majority) ----------------------------------------------------------------------- 5 Goods subject to control of Customs Section 20(1) of the principal Act is amended by repealing paragraphs (b) and (c), and substituting the following paragraphs: "(ab) where the goods are to be exported (whether under drawback or not) and are in a package to which a Customs seal has been applied (whether or not any other paragraph of this subsection applies to the goods), from the time when a Customs seal is first applied to the package until the exportation of the goods to a point outside New Zealand; or "(ac) where the goods are to be exported (whether under drawback or not) under a Customs-approved secure exports scheme (whether or not any other paragraph of this subsection applies to the goods), from the time when the goods are first secured in a Customs-approved secure package until the exportation of the goods to a point outside New Zealand; or "(b) where the goods are to be exported under drawback, from whichever is the earlier of the following times until the exportation of the goods to a point outside New Zealand: "(i) the time of the claim for drawback; or "(ii) the time when the goods are brought to a Customs controlled area or to a CASE (whether or not the goods are later transported from that area to another area of any kind, and, if the goods are so transported, during the transportation); or "(c) where the goods are to be exported otherwise than under drawback, from the time when the goods are brought to a Customs controlled area or to a CASE (whether or not the goods are later transported from that area to another area of any kind, and, if the goods are so transported, during the transportation), until their exportation to a point outside New Zealand; or". ----------------------------------------------------------------------- 6 Advice of arrival, etc Section 21(1) of the principal Act is amended by repealing paragraph (a), and substituting the following paragraph: "(a) give to the Customs, in such form and manner {as may be prescribed} (for example, in an electronic form and manner) [as may be approved in writing by the Chief Executive (either generally or for a particular case or class of case)], such advance notice as may be prescribed of any or all of the following matters: "(i) the impending arrival of the craft: "(ii) its voyage: "(iii) its crew: "(iv) its passengers: "(v) its cargo for discharge within New Zealand (whether commercial or non-commercial): "(vi) its commercial cargo not intended for discharge within New Zealand (if any): "(vii) the Customs place at which the craft will arrive; and". 7 Requirement to answer questions (1) Section 22(1) of the principal Act is amended by omitting the words "This section", and substituting the expression "Subsection (2)". (2) Section 22(2) of the principal Act is amended by omitting the word "section", and substituting the word "subsection". (3) Section 22 of the principal Act is amended by adding the following subsection: "(3) A person referred to in section 145A(1) must--- "(a) answer any questions asked by a Customs officer under section 145A; and "(b) produce any documents within his or her possession or control that a Customs officer demands under section 147A." New (majority) ----------------------------------------------------------------------- 7A Certificate of clearance Section 34(a) of the principal Act is amended by inserting, after the word "Customs", the words "within such time or times as may be prescribed". ----------------------------------------------------------------------- New (majority) ----------------------------------------------------------------------- 7B New section 34A inserted The principal Act is amended by inserting, after section 34, the following section: "34A Fees and charges relating to granting certificate of clearance "(1) The Governor-General may, on the recommendation of the Minister, make regulations under section 287(1)(a) prescribing fees or charges, or both, that are payable to the Customs to meet or assist in meeting costs and expenses incurred by the Customs in granting a certificate of clearance (for example, the costs and expenses incurred by the Customs in determining whether a person in charge of a craft that is departing New Zealand has complied with the requirements stated or referred to in or imposed under section 34). "(2) No fees or charges prescribed by regulations of the kind described in subsection (1) may meet or assist in meeting costs or expenses that are--- "(a) incurred by the Customs in granting a certificate of clearance; and "(b) related to clearance of passengers. "(3) The provisions of Part VIII that relate to the collection and recovery of duty apply to fees and charges prescribed by regulations of the kind described in subsection (1), as if those fees and charges were a duty. "(4) Before making a recommendation under subsection (1) in relation to any proposed regulations, the Minister must be satisfied that the persons that the Minister considers are representative of interests likely to be substantially affected by the proposed regulations have been consulted about the proposed regulations to the extent that is reasonably practicable having regard to the circumstances of the case. "(5) For the purposes of subsection (4), the Minister may take into account any relevant consultation undertaken by or on behalf of the Minister before this section comes into force. "(6) A failure to comply with subsection (4) does not affect the validity of any regulations of the kind described in subsection (1). "(7) Subsection (1) does not limit section 287." ----------------------------------------------------------------------- New (majority) ----------------------------------------------------------------------- 7C Departure to be from Customs place only Section 37(1) of the principal Act is amended by repealing paragraph (b), and substituting the following paragraph: "(b) having obtained a certificate of clearance from a Customs place in New Zealand to depart for any point outside New Zealand, cause that craft--- "(i) to not depart immediately from that place; or "(ii) to go to any other place in New Zealand." ----------------------------------------------------------------------- 8 New Part 3A inserted The principal Act is amended by inserting, after section 38, the following Part: "Part 3A "Customs access to and use of information about border-crossing goods, persons, and craft "Preliminary provisions "38A Interpretation In this Part, unless the context otherwise requires,--- "border-crossing goods means goods that are recorded by a person concerned in the movement of goods, persons, or craft--- "(a) as having been imported into, or exported from, New Zealand; or "(b) as being imported into, or exported from, New Zealand; or "(c) as intended to be imported into, or exported from, New Zealand "border-crossing person or craft means a person (for example, a passenger or a member of the crew of a craft) who, or craft that, is recorded by a person concerned in the movement of goods, persons, or craft--- "(a) as having arrived in, or departed from, New Zealand; or "(b) as arriving in, or departing from, New Zealand; or "(c) as intending to arrive in, or depart from, New Zealand "person concerned in the movement of goods, persons, or craft means any of the following: "(a) an owner or an operator of a craft that carries or transports goods or persons, or both, from New Zealand to a point outside New Zealand, or from a point outside New Zealand to New Zealand, for commercial purposes, or the agent of an owner or an operator of that kind: "(b) a travel operator (being a person who organises the carriage, handling, or transportation of goods or persons, or both, from New Zealand to a point outside New Zealand, or from a point outside New Zealand to New Zealand, for commercial purposes) or the agent of a travel operator: "(c) an owner, occupier, or operator of a Customs controlled area used for the purpose specified in section 10(d) or (e): "(d) an operator of a business that handles, packs, stores, or transports goods that are to be transported from New Zealand to a point outside New Zealand: "(e) any persons, or classes of persons, involved in any other way in the carriage, handling, or transportation of goods, or persons, or both, from New Zealand to a point outside New Zealand, or from a point outside New Zealand to New Zealand, for commercial purposes, being persons or classes of persons prescribed for the purposes of this paragraph. "38B Purpose of this Part "(1) The purpose of this Part is to facilitate--- "(a) the exercise or performance of powers, functions, or duties under this Act: "(b) the prevention, detection, investigation, prosecution, and punishment of offences that are, or that if committed in New Zealand would be,--- "(i) customs offences of any kind; or "(ii) other offences punishable by imprisonment: "(c) the processing of international passengers [at the border by public authorities]: "(d) the protection of border security: "(e) the protection of {public} [the] health and safety [of members of the public]. "(2) To that end, this Part--- "(a) requires certain persons concerned in the movement of goods, persons, or craft to give the Customs access to certain information about border-crossing goods, persons, and craft; and "(b) controls the use of that information by the Customs. "Who must give Customs access to information "38C Persons to whom section 38D or section 38E applies Section 38D or section 38E applies to a person only if the person--- "(a) is a person concerned in the movement of goods, persons, or craft; and "(b) has been required by the Chief Executive by notice in writing to comply with that section on and after a date specified in the notice in writing. "Information to which access must be given "38D Information about border-crossing craft "(1) A person to whom this section applies must give the Customs access, on and after the date specified in the notice referred to in section 38C(b), to information--- "(a) that is of the kind specified in subsection (2); and "(b) that the person holds (whether in New Zealand or overseas) [or has access to] about any border-crossing craft. "(2) The information referred to in subsection (1)(a) is information about the [border-crossing] craft, about what it is carrying or transporting, about its journey to or from New Zealand, and about its arrival at, or departure from, New Zealand, whether that journey or arrival or departure has occurred, is occurring, or will occur. "(3) That information {includes} [may include], but is not limited to,{---} [the following information about the border-crossing craft:] "(a) if the craft is carrying or transporting goods,--- "(i) loading and discharge details: "(ii) goods storage details: "(iii) goods records; and "(b) if the craft is carrying or transporting persons,--- "(i) the number of persons on the craft (whether passengers or crew or other persons): "(ii) the seating arrangements or on-board accommodation arrangements: "(iii) baggage storage details; and "(c) if the craft is carrying or transporting goods and persons, the information in paragraphs (a) and (b). "38E Information about border-crossing persons "(1) A person to whom this section applies must give the Customs access, on and after the date specified in the notice referred to in section 38C(b), to information--- "(a) that is of the kind specified in subsection (2); and "(b) that the person holds (whether in New Zealand or overseas) [or has access to] about any border-crossing person. "(2) The information referred to in subsection (1)(a) is information held [by the person, or to which the person has access,] for the purpose of facilitating the [border-crossing] person's travel to, or departure from, New Zealand, whether that travel or departure has occurred, is occurring, or will occur. "(3) That information {includes} [may include], but is not limited to,{---} [the following information about the border-crossing person:] "(a) the person's name, date of birth, place of birth, nationality, sex, and passport details: "(b) the person's contact details (including telephone number, address, and email address): "(c) information identifying the craft on which the person has travelled, is travelling, or intends to travel: "(d) any special conditions or arrangements the person has made regarding his or her travel: "(e) where the person booked his or her travel: "(f) on what date the person booked his or her travel: "(g) whether the person has checked baggage. "38F Further provisions about giving Customs access to information under section 38D or section 38E "(1) A person to whom section 38D or section 38E applies must give the Customs access to the information referred to in the section in the form and manner prescribed (for example, in an electronic form and manner). "(2) The Chief Executive may, by notice in writing, in all or any specified circumstances, exempt a person to whom section 38D or section 38E applies--- "(a) from complying with some or all of the person's obligations under that section; and "(b) from complying with some or all of the person's obligations under subsection (1) of this section. "(3) Nothing in section 38D or section 38E requires a person to whom the section applies to give the Customs access to information the person holds [or has access to] about an employee (for example, about a member of the crew of a craft), unless the information is information of a kind also generally held [by the person, or to which the person generally has access,] in relation to passengers. "Use of information to which access must be given "38G Controls on use by Customs of information "(1) The Customs may without warrant view all information to which access is given under section 38D. "(2) However, the Customs may view information to which access is given under section 38E only as provided in sections 38H to 38K. "(3) Section 282A applies to the collection, use, and disclosure by the Customs of information viewed by the Customs under this section or any of sections 38H to 38K. "Searching and viewing by Customs of information about border-crossing persons "38H Information about travel within 28-day period "(1) Information to which access is given under section 38E may be viewed by the Customs without warrant if it is information about travel within the 28-day period. "(2) The Customs may without warrant search information that it may view under subsection (1) to determine whether that information includes information that is relevant to search criteria specified by the Customs. "(3) However, if information is viewed under subsection (1), the Customs may collect, use, and disclose that information in accordance with section 282A whether or not it came to the attention of the Customs as a result of a search. "(4) Powers under this section of viewing or searching are exercisable in a particular case even though, in the circumstances of that case, the purpose of the viewing or searching would not be, or would not be likely to be, frustrated if the viewing or searching were delayed until a warrant under section 38J could be obtained to authorise it. "(5) For the purposes of this section and section 38I, information about travel within the 28-day period means information that, at any particular time, relates--- "(a) to an arrival in, or departure from, New Zealand that, according to the information,--- "(i) occurred within 14 days before that time; or "(ii) is occurring at that time; or "(iii) will occur within 14 days after that time; or "(b) to travel that, according to the information, occurred, is occurring, or will occur, in connection with an arrival or departure referred to in paragraph (a),--- "(i) whether that travel is travel within New Zealand or overseas; and "(ii) whether that travel is travel that occurred, is occurring, or will occur, before or after the arrival or departure of that kind. "38I Information about other travel may be searched for information relating to travellers within 28-day period "(1) In this section, information about other travel means information--- "(a) to which access is given under section 38E; and "(b) that is not information about travel within the 28-day period. "(2) This section applies to the following situation: "(a) the Customs, in considering information viewed under section 38H, finds information about travel within the 28-day period that relates to an arrival or departure, and to travel, by a person: "(b) the Customs wish--- "(i) to search information about other travel to determine whether it includes information that relates to that person; and "(ii) to view any information that relates to that person and is found as a result of the search. "(3) In that situation, the Customs may without warrant--- "(a) search information about other travel to determine whether it includes information that relates to the person; and "(b) view information in accordance with subsection (5). "(4) However, the search may be conducted only if it can be completed within 14 days after the arrival or departure to which the information about travel within the 28-day period relates (see section 38H(5)(a)). "(5) The Customs must not view information about other travel unless that information relates to the person and is found as a result of the search. "(6) Powers under this section of viewing or searching are exercisable in a particular case even though, in the circumstances of that case, the purpose of the viewing or searching would not be, or would not be likely to be, frustrated if the viewing or searching were delayed until a warrant under section 38J could be obtained to authorise it. "38J Search and viewing warrants "(1) This section applies to the following situation: "(a) the Chief Executive considers, in the light of information of any kind that is available to the Customs, that there are reasonable grounds to suspect that--- "(i) there exists a risk or threat relevant to the purpose stated in section 38B(1); or "(ii) a relevant offence (as defined in subsection (6)) has been, is being, or will be committed: "(b) the Customs wish--- "(i) to search information to which access is given under section 38E to determine whether it includes information that is relevant to search criteria specified by the Customs (being search criteria that are reasonably related to the information available to the Customs that gives rise to the reasonable grounds to suspect required by paragraph (a)); and "(ii) to view any information that is relevant to the search criteria specified by the Customs and is found as a result of the search: "(c) the search cannot be conducted and the viewing done under section 38H or section 38I, or the Customs considers it would be inexpedient for those things to be done under section 38H or section 38I. "(2) In that situation, the Chief Executive may, by application in writing made on oath, apply to a District Court Judge for a search and viewing warrant authorising--- "(a) the carrying out of the search within 14 days after the day on which the warrant is granted (or within any extension of that period granted by a District Court Judge on an application in writing for the purpose made within that period); and "(b) the viewing by the Customs of any information that is relevant to the search criteria specified by the Customs and that is included in information to which access is given under section 38E, but of no other information. "(3) The application must give details of the reasonable grounds to suspect required by subsection (1), of the information available to the Customs that gives rise to those reasonable grounds to suspect, and of the search criteria specified by the Customs, and it must also indicate whether the search is to be of all, or of only a specified part or parts, of the information to which access is given under section 38E. "(4) On an application under subsection (2), a District Court Judge may grant a search and viewing warrant in the prescribed form, but only if he or she is satisfied that--- "(a) the reasonable grounds to suspect required by subsection (1) exist; and "(b) the search criteria specified by the Customs are reasonably related to the information available to the Customs that gives rise to those reasonable grounds to suspect. "(5) The warrant is sufficient authority for the doing of the things specified in subsection (2)(a) and (b). "(6) In this section and section 38K, relevant offence means an offence described in section 38B(1)(b), or relevant to the purpose stated in section 38B(1) (except paragraph (b)). "38K Search and viewing without warrant in emergencies "(1) This section applies to the following situation: "(a) the situation specified in section 38J(1) applies: "(b) the Chief Executive considers that, if he or she were to apply to a District Court Judge for a search and viewing warrant under section 38J, the District Court Judge would grant the warrant: "(c) the Chief Executive also considers that delaying a search and any resulting viewing until a search and viewing warrant can be obtained under section 38J would create a real risk that--- "(i) the countering of the risk or threat referred to in section 38J(1)(a)(i) would be frustrated; or (as the case requires) "(ii) the prevention, detection, investigation, prosecution, or punishment of the relevant offence would be frustrated. "(2) In that situation, the Chief Executive may, with no further authority than this section, have the things specified in section 38J(2)(a) and (b) done as if the doing of those things were authorised by a search and viewing warrant under section 38J(4). "(3) However, if the Chief Executive acts under subsection (2), he or she must within 72 hours apply under section 38J(2) for a search and viewing warrant in relation to the matter. Struck out (majority) ======================================================================= "(4) This subsection applies to both of the following situations: "(a) the 72-hour period referred to in subsection (3) expires and the Chief Executive has not made the application required by that subsection: "(b) the application required by subsection (3) is made but, in response to it, either no warrant is granted under section 38J(4), or a warrant is granted under section 38J(4) authorising the doing of some only of the things done in reliance on subsection (2). "(5) In a situation to which subsection (4) applies,--- "(a) things done in reliance on subsection (2) must, to the extent that the doing of those things is not authorised by a warrant granted under section 38J(4), be treated for the purposes only of the countering of the risk or threat referred to in section 38J(1)(a)(i) or (as the case requires) of the prevention, detection, investigation, prosecution, or punishment of the relevant offence, as if they were done without the authority of this section or of a warrant granted under section 38J(4); and "(b) the Customs must destroy immediately information viewed by it in reliance on subsection (2) and that is collected by it for a purpose specified in section 282A if the viewing of that information is not authorised by a warrant granted under section 38J(4); and "(c) other persons or bodies must destroy immediately information viewed by the Customs in reliance on subsection (2) and disclosed by it to the other persons or bodies for a purpose specified in section 282A(2) and collected by the other persons or bodies if the viewing of that information is not authorised by a warrant granted under section 38J(4). ======================================================================= New (majority) ----------------------------------------------------------------------- "38KA Procedure if viewing of information not authorised "(1) This subsection applies to both of the following situations: "(a) the 72-hour period referred to in section 38K(3) expires and the Chief Executive has not made the application required by that subsection: "(b) the application required by section 38K(3) is made but, in response to it, either no warrant is granted under section 38J(4), or a warrant is granted under section 38J(4) authorising the doing of some only of the things done in reliance on section 38K(2). "(2) In a situation to which subsection (1) applies, things done in reliance on section 38K(2) must, to the extent that the doing of those things is not authorised by a warrant granted under section 38J(4), be treated for the purposes only of the countering of the risk or threat referred to in section 38J(1)(a)(i) or (as the case requires) of the prevention, detection, investigation, prosecution, or punishment of the relevant offence, as if they were done without the authority of section 38K or of a warrant granted under section 38J(4). "(3) In a situation to which subsection (1) applies,--- "(a) the Customs must destroy immediately information viewed by it in reliance on section 38K(2) and that is collected by it for a purpose specified in section 282A if the viewing of that information is not authorised by a warrant granted under section 38J(4); and "(b) other persons or bodies must destroy immediately information viewed by the Customs in reliance on section 38K(2) and disclosed by it to the other persons or bodies for a purpose specified in section 282A(2) and collected by the other persons or bodies if the viewing of that information is not authorised by a warrant granted under section 38J(4). "38L Security of applications for warrants "(1) As soon as an application under section 38J(2) has been determined by the Judge, the Registrar must place all documents relating to the application (except the warrant itself) in a packet, seal the packet, and thereafter keep it in safe custody, except as provided in this section. "(2) Despite any enactment or rule of law or rules of Court entitling a party to proceedings to demand the production of documents, no party of that kind is entitled to demand the production of documents held in safe custody under subsection (1), except in accordance with this section. "(3) Every party of that kind who requires the production of a document held in safe custody under subsection (1) must, except in a case to which subsection (9) or subsection (10) applies, apply in writing to the Registrar, who must promptly notify the Chief Executive. "(4) If, within 3 days after notice is given to the Chief Executive under subsection (3), the Chief Executive gives written notice to the Registrar that he or she intends to oppose the production of the documents, the Registrar must refer the matter to a District Court Judge. "(5) If the Chief Executive does not give the written notice referred to in subsection (4), the Registrar must produce the documents to the party applying for production. "(6) If a matter is referred to a Judge under subsection (4), both the person requesting production of the documents and the Chief Executive opposing production must be given an opportunity to be heard. "(7) The Judge may order that all or a specified part of a document the production of which is in dispute not be produced if he or she is satisfied that--- "(a) the document or part contains information of a kind referred to in section 38M(1); and "(b) production of that information would involve disclosure of a kind referred to in section 38M(2). "(8) Subject to subsection (7), the Judge must order the production of the documents to the party requesting it. "(9) If a request for the production of a document kept in safe custody under subsection (1) is made in the course of proceedings presided over by a District Court Judge and the request is opposed, the Judge must adjudicate upon the matter as if it had been referred to him or her under subsection (4). "(10) If a request of that kind is made in the course of any other proceedings, the presiding judicial officer must promptly refer the matter to a District Court Judge for adjudication of the kind referred to in subsection (9). "(11) Despite anything in this section, every District Court Judge or Judge of the High Court who is presiding over any proceedings in which the issue of a warrant under section 38J is in issue is entitled to inspect any relevant document held under subsection (1). Compare: 1978 No 65 s 20 "38M Information and disclosure in section 38L(7) "(1) Information falls within section 38L(7)(a) if it--- "(a) might lead to the identification of, or provide details of, the source of the information, the nature, content, or scope of the information, or the nature or type of the assistance or operational methods available to the Customs; or "(b) is about particular operations that have been undertaken, or are being or are proposed to be undertaken, in pursuance of any of the functions of the Customs; or "(c) has been provided to the Customs by the government of another country or by an agency of a government of another country or by an international organisation, and is information that cannot be disclosed by the Customs because the government or agency or organisation by which the information has been provided will not consent to the disclosure. "(2) Disclosure of information falls within section 38L(7)(b) if the disclosure would be likely--- "(a) to prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand; or "(b) to prejudice the entrusting of information to the Government of New Zealand on a basis of confidence by the government of another country or any agency of such a government, or by any international organisation; or "(c) to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial; or "(d) to endanger the safety of any person. "(3) In this section,--- "country includes any State, territory, province, or other part of a country "international organisation means any organisation of States or Governments of States, or any organ or agency of any organisation of that kind. "Miscellaneous provisions "38N Disposal of information collected by Customs "(1) This section applies to information--- "(a) viewed under any of sections 38G to 38K; and "(b) collected for a purpose specified in section 282A(2). "(2) The Customs must, at least once every 6 months after this section comes into force, determine whether the retention of the information by the Customs continues to be necessary for that purpose and, if it is not, must dispose of the information promptly. "(3) This section does not limit section {38K(5)(b)} [38KA(3)(a)]. "38O Protection of persons acting under authority of Part Neither the Crown nor the Chief Executive or a Customs officer or an authorised person is liable for anything done or omitted to be done or purporting to be have been done by a person in the exercise of a power conferred by this Part unless the person has not acted in good faith or has acted without reasonable care. "38P Part does not limit other access to or use of information Nothing in this Part--- "(a) prevents a person concerned in the movement of goods, persons, or craft from giving Customs access to information otherwise than as required by or under this Part: "(b) prevents the Customs from using otherwise than as provided in this Part information to which Customs is given access otherwise than as required by or under this Part: "(c) affects any obligation a person may have to give the Customs advance notice of matters under section 21: "(d) affects any obligation a person may have under this Act to make an entry in respect of goods that are imported or that are to be imported: "(e) affects any powers the Customs has to collect and use information under section 279." ----------------------------------------------------------------------- New (majority) ----------------------------------------------------------------------- 8A Entry of goods for export Section 49(5) of the principal Act is amended by inserting, after the word "made", the words "and passed". ----------------------------------------------------------------------- New (majority) ----------------------------------------------------------------------- 8B Regulations relating to entry of goods for export Section 50 of the principal Act is amended by inserting, before paragraph (a), the following paragraph: "(aa) prescribing the conditions under which an entry is deemed to have been passed for the purposes of this Act; and". ----------------------------------------------------------------------- New (majority) ----------------------------------------------------------------------- 8C New section 50A inserted The principal Act is amended by inserting, after section 50, the following section: "50A Fees and charges relating to exportation of goods "(1) The Governor-General may, on the recommendation of the Minister, make regulations under section 287(1)(a) prescribing fees or charges, or both, that are payable to the Customs to meet or assist in meeting costs and expenses incurred by the Customs in exercising functions or powers, or performing duties, or providing services, under this Act that relate to the exportation of goods. "(2) The provisions of Part VIII that relate to the collection and recovery of duty apply to fees and charges prescribed by regulations of the kind described in subsection (1), as if those fees and charges were a duty. "(3) Before making a recommendation under subsection (1) in relation to any proposed regulations, the Minister must be satisfied that the persons that the Minister considers are representative of interests likely to be substantially affected by the proposed regulations have been consulted about the proposed regulations to the extent that is reasonably practicable having regard to the circumstances of the case. "(4) For the purposes of subsection (3), the Minister may take into account any relevant consultation undertaken by or on behalf of the Minister before this section comes into force. "(5) A failure to comply with subsection (3) does not affect the validity of any regulations of the kind described in subsection (1). "(6) Subsection (1) does not limit section 287." ----------------------------------------------------------------------- 9 New headings and sections 53A to 53J inserted The principal Act is amended by inserting, after section 53, the following headings and sections: "Customs seals "53A Customs seal may be applied to goods for export "(1) The Chief Executive may, by notice in writing specifying the date on and after which the appointment takes effect, appoint a Customs officer or other person to apply (including to re-apply) Customs seals to packages of goods to be exported. "(2) The notice must specify the circumstances in which the officer or other person may apply a Customs seal to a package of goods, and must prohibit him or her from applying a Customs seal in all other circumstances. "(3) Without limiting the generality of subsection (2), the notice must specify that the officer or other person may apply a Customs seal to a package of goods to which no Customs seal has earlier been applied only if--- "(a) the exporter concerned (or his or her agent or employee) consents to the seal being applied; or "(b) the seal is applied incidental to, and immediately after, the exercise by any person of a power under this Act to examine or search for goods of any kind. New (majority) ----------------------------------------------------------------------- "(3A) The notice must also specify the circumstances in which the officer or other person may alter, remove, damage, dispose of, or otherwise interfere with a Customs seal applied to a package of goods, and must prohibit him or her from interfering in any way with a Customs seal of that kind in all other circumstances. ----------------------------------------------------------------------- "(4) A notice of appointment under this section may be amended or revoked by the Chief Executive by a further notice in writing given to the officer or other person concerned and specifying the date on or after which the amendment or revocation takes effect. "53B Warning notices for packages to which seal applied A notice of appointment under section 53A must also require the officer or other person concerned, on applying a Customs seal to a package of goods that are not goods to be exported under a Customs-approved secure exports scheme, to ensure that there is attached to the package a warning notice that explains in terms approved by the Chief Executive--- "(a) that the goods in the package are, from the time when a Customs seal is first applied to the package until the exportation of the goods to a point outside New Zealand, goods subject to the control of the Customs: "(b) that the powers of detention and search in section 144(3) are available in respect of a vehicle in New Zealand if there are suspected to be in or on the vehicle goods that are, or are suspected to be,--- "(i) subject to the control of the Customs; and "(ii) in a package to which a Customs seal has been applied: New (majority) ----------------------------------------------------------------------- "(ba) that a Customs officer may, under section 146(2), question any or all of the following persons about any cargo destined to be exported from New Zealand: "(i) a person who is the owner or operator of a vehicle that a Customs officer has reasonable cause to suspect has in or on it, or has within the previous 72 hours had in or on it, goods subject to the control of the Customs and in a package to which a Customs seal has been applied: "(ii) a person who is the owner or occupier of premises that a Customs officer has reasonable cause to suspect have in or on them, or have within the previous 72 hours had in or on them, goods subject to the control of the Customs and in a package to which a Customs seal has been applied: "(iii) a person employed by a person described in subparagraph (i) or (ii): ----------------------------------------------------------------------- "(c) that the powers {of examination} in section 151 [(which include powers of examination)] are available in respect of goods that are, or are suspected to be,--- "(i) subject to the control of the Customs; and "(ii) in a package to which a Customs seal has been applied. "Customs-approved secure exports schemes "53C Chief Executive may approve secure exports scheme "(1) On an application for the purpose in writing by a person involved in the carriage, handling, transportation, or exportation of goods for export (in this section and sections 53F and 53I called an exporter), the Chief Executive may approve a secure exports scheme, and so make it a Customs-approved secure exports scheme. "(2) The Chief Executive must ensure that the exporter concerned is notified promptly and in writing of any decision to give or to decline an approval under this section. "(3) An approval under this section must be in writing, may be given subject to any conditions the Chief Executive specifies in the approval, and takes effect either on the day after the date on which it is given or on any later date specified in the approval. "(4) An approval under this section may be revoked by the Chief Executive by notice in writing given to the exporter concerned and specifying both any conditions to which the revocation is subject and the date on or after which the revocation takes effect. "(5) Subsections (1) to (4) apply (with all necessary modifications) to any amendment to a secure exports scheme. "(6) On an application for the purpose by the exporter concerned, the Chief Executive must revoke an approval under this section of all of a secure exports scheme. However, the revocation must be subject to the condition that goods remain subject to the scheme until exported if, at the time the revocation takes effect, the goods have been secured in a Customs-approved secure package under the scheme but not yet exported. New (majority) ----------------------------------------------------------------------- "(7) An applicant who is dissatisfied with a decision of the Chief Executive under this section may, within 20 working days after the date on which notice of the decision is given, appeal to a Customs Appeal Authority against that decision. ----------------------------------------------------------------------- "53D Purpose of secure exports scheme The purpose of a secure exports scheme is to help to ensure that goods to be exported under the scheme are--- "(a) packaged securely and with no other goods; and "(b) conveyed securely and without interference to the place of shipment and shipped. "53E Matters to be specified in secure exports scheme "(1) A secure exports scheme must specify how the goods to be exported under the scheme are to be packed, including--- "(a) the secure package to be used: "(b) the seal or markings to be applied to the package, as soon as it is secured,--- "(i) to show that, when it was secured, the package contained only the goods, and was secured in an approved way; and "(ii) to help to identify tampering or interference with the package after it is secured. "(2) A secure exports scheme must also specify any conditions required by the Chief Executive as to--- "(a) the persons who are to pack the goods, and the security checks to be applied to those persons: "(b) the conditions in which packing is to occur (for example, the area or areas in which packing is to occur, and the controls on the entry and exit of persons and goods to that area or those areas): "(c) any other requirements relating to how the goods are to be packed. "(3) A secure exports scheme must also specify how, on the completion of the packing of the goods, the goods are to be conveyed to the place of shipment and shipped, including any conditions required by the Chief Executive as to--- "(a) the persons who are to convey the goods, and the security checks to be applied to those persons: "(b) the manner in which the goods are to be conveyed: "(c) any place or places of security en route to the place of shipment in which the goods are to be stored in the course of being conveyed to the place of shipment and shipped. "53F Matters to be acknowledged in secure exports scheme A secure exports scheme must include express acknowledgements by the exporter concerned--- "(a) that the goods to be exported under the scheme are, from the time when they are first secured in a Customs-approved secure package until the exportation of the goods to a point outside New Zealand, goods subject to the control of the Customs: "(b) that the powers of detention and search in section 144(3) are available in respect of a vehicle in New Zealand if there are suspected to be in or on the vehicle goods that are, or are suspected to be,--- "(i) subject to the control of the Customs; and "(ii) in a Customs-approved secure package: New (majority) ----------------------------------------------------------------------- "(ba) that a Customs officer may, under section 146(2), question any or all of the following persons about any cargo destined to be exported from New Zealand: "(i) a person who is the owner or operator of a vehicle that a Customs officer has reasonable cause to suspect has in or on it, or has within the previous 72 hours had in or on it, goods subject to the control of the Customs and in a Customs-approved secure package: "(ii) a person who is the owner or occupier of premises that a Customs officer has reasonable cause to suspect have in or on them, or have within the previous 72 hours had in or on them, goods subject to the control of the Customs and in a Customs-approved secure package: "(iii) a person employed by a person described in subparagraph (i) or (ii): ----------------------------------------------------------------------- "(c) that the powers {of examination} in section 151 [(which include powers of examination)] are available in respect of goods that are, or are suspected to be,--- "(i) subject to the control of the Customs; and "(ii) in a Customs-approved secure package. "53G Goods to be exported under Customs-approved secure exports scheme may be exported under drawback "(1) Goods to be exported under a Customs-approved secure exports scheme may be exported under drawback. "(2) If goods to be exported under a Customs-approved secure exports scheme are exported under drawback, then all conditions (if any) as may be prescribed for allowing drawback of duty must be satisfied, even though satisfying those conditions may involve conveying or handling or storing the goods in a way not specified in the scheme. "53H Application of Customs seals to goods to be exported under Customs-approved secure exports schemes "(1) Nothing in this Act prevents a Customs seal from being applied to a Customs-approved secure package after an approved seal or markings of the kind referred to in section 53E(1)(b) have been applied to the package in accordance with the relevant Customs-approved secure exports scheme. "(2) Goods to be exported under a Customs-approved secure exports scheme must not be regarded as no longer to be exported under the scheme just because 1 or more Customs seals have been applied to the Customs-approved secure package concerned. "53I Exporters may be involved in exportation of goods outside Customs-approved secure exports scheme "(1) This section applies to an exporter involved in the carriage, handling, transportation, or exportation of goods for export under 1 or more Customs-approved secure exports schemes. "(2) Nothing in this Act prevents the exporter from being involved in the carrying, handling, transportation, or exportation of goods for export otherwise than under that scheme or those schemes. "53J Review of Customs-approved secure exports scheme The Chief Executive may, at any time, review the operation of any Customs-approved secure exports scheme." 10 New section 95A inserted The principal Act is amended by inserting, after section 95, the following section: "95A Giving Customs access to business records "(1) This section applies to a person only if the person--- "(a) is a person to whom section 95(1) applies or a person otherwise involved in the carriage, handling, or transportation of goods that are being imported to, or exported from, New Zealand (for example, a person involved in the transportation of goods to a Customs place from which goods for export will proceed to a point outside New Zealand); and "(b) has been required by the Chief Executive by notice in writing to comply with this section on and after a date specified in the notice in writing. "(2) On and after the date specified in the notice in writing a person to whom this section applies must,--- "(a) if the person is a person to whom section 95(1) applies, give the Customs access to the records the person is required to keep under section 95; and "(b) if the person is a person otherwise involved in the carriage, handling, or transportation of goods that are being imported to, or exported from, New Zealand, give the Customs access to any records the person may currently keep of the kind required to be kept under section 95. "(3) A person to whom this section applies must give the Customs that access in the form and manner prescribed (for example, in an electronic form and manner), and must ensure that the Customs has that access at {any time} [all reasonable times]. "(4) The Chief Executive may, by notice in writing, exempt a person to whom this section applies from complying with some or all of the person's obligations under this section in all or any specified circumstances. "(5) To avoid doubt, nothing in this section affects any obligation under section 95 to keep or cause to be kept, make available, provide copies of, or answer questions in respect of, records." New (majority) ----------------------------------------------------------------------- 10A Registered users (1) The principal Act is amended by omitting the heading to section 132, and substituting the following heading: "Application to be registered user". (2) Section 132 of the principal Act is amended by omitting subsection (2), and substituting the following subsection: "(2) The Chief Executive may require an applicant for registration to provide either or both of the following: "(a) any additional information the Chief Executive considers necessary for the purposes of the application: "(b) evidence of his or her competence in any area the Chief Executive considers relevant to the application (for example, tariff classification)." ----------------------------------------------------------------------- New (majority) ----------------------------------------------------------------------- 10B New section 134A inserted The principal Act is amended by inserting, after section 134, the following section: "134A Conditions may be imposed on registered users "(1) The Chief Executive may impose a condition on the registration of either or both of the following: "(a) a specified registered user or class of registered users: "(b) all registered users. "(2) A condition imposed under subsection (1) must be notified in writing to the 1 or more registered users concerned and must, unless the 1 or more registered users concerned appeals under subsection (3), be complied with on or before--- "(a) the 20th working day after the date of notification of the imposition of the condition on the registered user's registration; or "(b) a later date specified by the Chief Executive. "(3) A registered user who is dissatisfied with the imposition of a condition on his or her user registration under subsection (1) may appeal in writing to the Customs Appeal Authority within 20 working days after the date of notification of the imposition of the condition on the registered user's registration. "(4) If the Customs Appeal Authority is of the view that the imposition of the condition under subsection (1) was reasonable in the circumstances the registered user must comply with the condition on or before--- "(a) the 10th working day after the date of notification of the Authority's decision; or "(b) a later date specified by the Customs Appeal Authority." ----------------------------------------------------------------------- New (majority) ----------------------------------------------------------------------- 10C Cancellation of registration of registered user Section 135 of the principal Act is amended by repealing subsection (1), and substituting the following subsection: "(1) The Chief Executive may by written notice to a registered user (which must state grounds for the cancellation) cancel that user's registration if satisfied that the user--- "(a) has failed to comply with a condition imposed by the Chief Executive under section 132(3) or section 133(3); or "(b) has failed to comply with a condition imposed by the Chief Executive under section 134A(1) within the time frame specified in that section; or "(c) has been convicted of--- "(i) an offence against this Act or the Misuse of Drugs Act 1975; or "(ii) a crime involving dishonesty (as defined in section 2 of the Crimes Act 1961); or "(d) is, on 1 or more prescribed grounds, unfit to continue to be a registered user." ----------------------------------------------------------------------- 11 Searching vehicles (1) Section 144(1)(a) of the principal Act is amended by omitting the word "is" in the first place where it occurs, and substituting the word "are". (2) Section 144(2)(a) of the principal Act is amended by omitting the word "is" in the first place where it occurs, and substituting the word "are". Struck out (majority) ======================================================================= (3) Section 144 of the principal Act is amended by adding the following subsection: "(3) A Customs officer who has reasonable cause to suspect that there are in or on a vehicle goods subject to the control of the Customs and in a Customs-approved secure package or in a package to which a Customs seal has been applied--- "(a) may stop the vehicle and search it; and "(b) may detain the vehicle for such period as may be reasonably necessary for that purpose and for exercising powers under section 151 in relation to any goods of that kind." ======================================================================= New (majority) ----------------------------------------------------------------------- (3) Section 144 of the principal Act is amended by adding the following subsections: "(3) A Customs officer who has reasonable cause to suspect that there are in or on a vehicle goods subject to the control of the Customs because they are goods to be exported and that have been brought to a CASE--- "(a) may stop the vehicle and search it; and "(b) may detain the vehicle for such period as may be reasonably necessary for that purpose and for exercising powers under section 151 in relation to any goods of that kind. "(4) A Customs officer who has reasonable cause to suspect that there are in or on a vehicle goods subject to the control of the Customs and in a Customs-approved secure package or in a package to which a Customs seal has been applied--- "(a) may stop the vehicle and search it; and "(b) may detain the vehicle for such period as may be reasonably necessary for that purpose and for exercising powers under section 151 in relation to any goods of that kind." ----------------------------------------------------------------------- 12 Questioning persons Section 145 of the principal Act is amended by adding to the heading the words "about goods and debt". 13 New section 145A inserted The principal Act is amended by inserting, after section 145, the following section: "145A Questioning persons about identity, address, travel movements and entitlement, and other matters "(1) This section and sections 147A and 148A apply to the following persons: "(a) a person who--- "(i) has, or is suspected of having, disembarked from a craft that has arrived in New Zealand; and "(ii) has not, or is suspected of having not, reported to a Customs officer or a police station on his or her arrival, contrary to section 27: "(b) a person who is, or is suspected of, attempting to depart from New Zealand from a place other than from a Customs place, contrary to section 30. "(2) This section and sections 147A and 148A do not apply,--- "(a) in the case of a person referred to in subsection (1)(a), to a person whose actions are authorised by another section of this Act; and "(b) in the case of a person referred to in subsection (1)(b), to a person who is complying with an exemption prescribed by regulations made under this Act or whose actions are authorised by the Customs. "(3) A Customs officer may question a person to whom this section applies as to any 1 or more of the following matters: "(a) the person's identity: "(b) the person's residential address: "(c) the person's travel movements: "(d) the person's entitlement to travel: "(e) any of the matters specified in section 145(2): "(f) the craft--- "(i) from which the person disembarked or is suspected of disembarking; or "(ii) on which the person attempted to depart, or is suspected of attempting to depart, from New Zealand: "(g) any other person who is, or was, involved in the person's arrival, suspected arrival, departure, attempted departure, or suspected departure, whether or not the other person was on the craft--- "(i) from which the person disembarked or is suspected of disembarking; or "(ii) on which the person attempted to depart, or is suspected of attempting to depart, from New Zealand. "(4) A question under subsection (3)(f) may, but need not, relate to the craft's voyage and any persons or goods carried by the craft. "(5) Section 185(3) does not apply in respect of a question asked under this section (and so it is a reasonable excuse for the purposes of section 185(1)(a) if a person fails or refuses to answer the question on the basis that the person's answer would incriminate or tend to incriminate the person)." New (majority) ----------------------------------------------------------------------- 13A New section 146 substituted The principal Act is amended by repealing section 146, and substituting the following section: "146 Questioning employees of airlines, shipping companies, owners or operators of certain vehicles, etc "(1) A Customs officer may question any or all of the following about any international cargo or domestic cargo: "(a) a person who, as an employee of an airline or shipping company, manages or carries out the receipt, handling, custody, or dispatch of international cargo or domestic cargo by that airline or shipping company: "(b) a person employed by the licensee of a Customs controlled area licensed for--- "(i) the temporary holding of imported goods for the purposes of the examination of those goods under section 151 of this Act (including the holding of the goods while they are awaiting examination); or "(ii) the processing of craft arriving in or departing from New Zealand or the loading or unloading of goods onto or from such craft: "(c) a person (not being a person described in paragraph (a) or (b)) who is in a Customs controlled area licensed for a purpose described in paragraph (b)(i) or (ii). "(2) A Customs officer may question any or all of the following about any cargo destined to be exported from New Zealand: "(a) a person who is the owner or operator of a vehicle that a Customs officer has reasonable cause to suspect has in or on it, or has within the previous 72 hours had in or on it, goods subject to the control of the Customs and in a Customs-approved secure package or in a package to which a Customs seal has been applied: "(b) a person who is the owner or occupier of premises that a Customs officer has reasonable cause to suspect have in or on them, or have within the previous 72 hours had in or on them, goods subject to the control of the Customs and in a Customs-approved secure package or in a package to which a Customs seal has been applied: "(c) a person employed by a person described in paragraph (a) or paragraph (b). "(3) A question under subsection (2) about cargo destined to be exported from New Zealand may relate to any or all of the following: "(a) whether, and if so how, goods that are or were some or all of the cargo are or were packed in a package to which a Customs seal was applied or in a Customs-approved secure package to which a seal or marking of the kind referred to in section 53E(1)(b) was applied: "(b) the transportation or storage of packages of the kind referred to in paragraph (a) at any time before they are or were exported: "(c) tampering or interference with a package of the kind referred to in paragraph (a) or with a seal or marking of the kind referred to in that paragraph. "(4) Subsection (3) does not limit subsection (2). "(5) Section 185(3) does not apply in respect of a question asked under this section (and so it is a reasonable excuse for the purposes of section 185(1)(a) if a person fails or refuses to answer the question on the basis that the person's answer would incriminate or tend to incriminate the person). "(6) Nothing in this section limits sections 145 and 145A." ----------------------------------------------------------------------- 14 New section 147A inserted The principal Act is amended by inserting, after section 147, the following section: "147A Evidence of answers to questions under section 145A "(1) A person to whom this section applies in accordance with section 145A must, on demand by a Customs officer, produce documents that--- "(a) are in the person's possession or control; and "(b) relate to the matters the person has been questioned about under section 145A. "(2) When a person produces a document in response to a demand under subsection (1), a Customs officer may do any of the following things: "(a) inspect the document immediately and return it to the person when the officer has finished inspecting it: "(b) inspect the document and retain it for the length of the person's detention under section 148A: "(c) inspect the document and retain it for as long as necessary to ascertain whether or not the Chief Executive wishes to exercise his or her power under section 164 to retain the document: "(d) inspect the document and remove it for the purpose of making a copy under section 165: "(e) inspect the document and retain it under section 166." 15 Detention of persons Section 148 of the principal Act is amended by adding to the heading the words "questioned about goods or debt". 16 New sections 148A and 148B inserted The principal Act is amended by inserting, after section 148, the following sections: "148A Detention of person questioned under section 145A "(1) A Customs officer may detain a person to whom this section applies in accordance with section 145A for 1 or more of the following purposes: "(a) to question him or her under section 145A: "(b) to enable the officer to make the inquiries that are necessary to establish whether an answer to a question asked under section 145A is correct: "(c) to obtain the attendance of, or make inquiries of, another Customs officer or an officer entitled to exercise a power to question, detain, or arrest a person under this Act or the Crimes Act 1961 following the questioning of a person under section 145A. "(2) A Customs officer may detain a person under subsection (1) for up to 12 hours. "(3) The questioning of a person under section 145A must take place as soon as practicable after the person is detained under subsection (1). "(4) A Customs officer must release a person detained under subsection (1) immediately after the person answers the questions asked under section 145A if the officer--- "(a) is satisfied that the person has correctly answered the questions; and "(b) has no reasonable cause to suspect that the person questioned under that section has--- "(i) committed an offence under section 180(1) by not complying with section 27 or section 30; or "(ii) committed an offence under section 98C(1) of the Crimes Act 1961. "(5) A Customs officer may continue to detain a person under subsection (1) after the person is questioned under section 145A if the Customs officer--- "(a) is not satisfied that the person has correctly answered a question asked under section 145A; or "(b) is not satisfied that the person has given an answer to a question asked under section 145A; or "(c) has reasonable cause to suspect that the person questioned under that section has--- "(i) committed an offence under section 180(1) by not complying with section 27 or section 30; or "(ii) committed an offence under section 98C(1) of the Crimes Act 1961. "(6) Despite subsection (2), a person may be detained for a further reasonable period if, and only if, accident, stress of weather, or some other difficulty of transport or special circumstance makes it impossible for a Customs officer to do what is specified in subsection (1) within the 12-hour period specified in subsection (2). "(7) Reasonable force may be used, if it is necessary, to detain a person under subsection (1). "(8) In this section, unless the context otherwise requires,--- "detain, in relation to a person, includes movement of the person to a Customs place or police station where the person may be, or may continue to be, questioned "further reasonable period means a period no longer than is necessary in the circumstances for a Customs officer to do what is specified in subsection (1). New (majority) ----------------------------------------------------------------------- "148B Detention of persons committing or about to commit certain offences "(1) A Customs officer and, in the case of paragraph (b), a member of the police may detain a person who, the Customs officer or, if applicable, the member of the police believes on reasonable grounds is committing, or is about to commit, an offence under section 180 by,--- "(a) if a craft has arrived at a nominated Customs place or a Customs controlled area within that place under section 24, leaving or boarding the craft without the authority of a Customs officer before an inward report is made under section 26 (in contravention of section 24(2)); or "(b) if the person has arrived in New Zealand, not reporting forthwith to a Customs officer or a police station (in contravention of section 27(1)); or "(c) if the person has arrived in New Zealand and reported to a Customs officer or a police station under section 27(1), leaving the Customs officer or police station to which he or she reported, despite a Customs officer or, if applicable, a member of the police requiring the person to remain for a reasonable time in order that the Customs officer or, if applicable, the member of police might exercise a power under this Act in relation to that person (in contravention of section 27(2)); or "(d) if the person is on board a craft that has arrived in Zealand, not complying with any Customs direction concerning disembarkation (in contravention of section 28(1)); or "(e) having disembarked from a craft that has arrived in New Zealand, leaving a Customs controlled area when the Customs requires the person to remain there for such reasonable time as is required to enable a Customs officer to exercise a power under this Act in relation to that person (in contravention of section 28(3)). "(2) A Customs officer or, if applicable, a member of the police may only detain a person under subsection (1) for the purpose of ensuring the person's compliance with 1 or more of the provisions referred to in subsection (1). "(3) However, a Customs officer may also detain a person under subsection (1) for the purpose of obtaining the attendance of, or for the purpose of making inquiries of, another Customs officer or of a person who is entitled to exercise any power to question, detain, or arrest the person if, during the person's detention for the purpose referred to in subsection (2), the Customs officer develops reasonable cause to suspect that the person may have contravened any of the following enactments: "(a) Misuse of Drugs Act 1975: "(b) Health (Quarantine) Regulations 1983: "(c) Trade in Endangered Species Act 1989: "(d) Biosecurity Act 1993. "(4) A Customs officer or, if applicable, a member of the police must release a person detained under subsection (1)--- "(a) immediately after the person has complied with the requirements of the provision in relation to which he or she was detained and any other applicable provision referred to in subsection (1); or "(b) 4 hours after the person is first detained if, once the detention begins, the Customs officer develops reasonable grounds to suspect that the person may have contravened any of the enactments listed in subsection (3). "(5) Reasonable force may be used, if necessary, to detain a person under subsection (1). "(6) A person must not be detained under subsection (1) if a Customs officer or, if applicable, a member of the police believes on reasonable grounds that a person has already committed an offence under section 180 by contravening a provision referred to in subsection (1). "(7) Nothing in this section prevents a person--- "(a) being detained or further detained under another provision of this Act or under any other enactment if there are lawful grounds for that detention; or "(b) being arrested under section 174. "(8) In this section, unless the context otherwise requires, detention includes the delivery of a person to a police station or the custody of a member of the police. ----------------------------------------------------------------------- New (majority) ----------------------------------------------------------------------- 16A Persons to whom sections 149A and 149B(1) apply (1) The heading to section 149 of the principal Act is amended by omitting the expression "and 149B(1)", and substituting the expression ", 149B(1), and 149BA". (2) Section 149 of the principal Act is amended by omitting the words "and 149B(1)", and substituting the words ", 149B(1), and 149BA". ----------------------------------------------------------------------- New (majority) ----------------------------------------------------------------------- 16B New section 149BA inserted The principal Act is amended by inserting, after section 149B, the following section: "149BA Searching of persons for dangerous items "(1) A Customs officer or member of the police may immediately detain and search a person to whom this section applies if, and only if, the Customs officer or member of the police has reasonable grounds to believe that--- "(a) the person has a dangerous item hidden or in clear view on or about his or her person; and "(b) the item poses a threat to the safety of the officer or member, or any other person; and "(c) there is a need to act immediately in order to address that threat; and "(d) a search under section 149A or section 149B(1) would expose the Customs officer or member of the police, or any other person, to greater risk from the threat. "(2) For the purposes of this section and section 149C, dangerous item means--- "(a) any firearm (as defined in section 11(2) of the Aviation Crimes Act 1972); or "(b) any dangerous or offensive weapon or instrument of any kind whatsoever; or "(c) any ammunition; or "(d) any explosive substance or device, or any other injurious substance or device of any kind whatsoever that could be used to endanger a person's safety. "(3) If necessary, reasonable force may be used for either or both of the following purposes: "(a) to detain the person: "(b) to search the person. "(4) To avoid doubt, a search may be conducted under this section whether or not the person has earlier been the subject of a search under section 149A or section 149B(1). "(5) A customs officer or member of the police who undertakes a search under this section must, within 3 working days of the search, give a written report of the search, the circumstances in which it was conducted, and the matters that gave rise to the reasonable grounds to believe required by subsection (1) to,--- "(a) in the case of a customs officer, the Comptroller of Customs; and "(b) in the case of a member of the police, the Commissioner of Police." ----------------------------------------------------------------------- New (majority) ----------------------------------------------------------------------- 16C Seizure of items found Section 149C of the principal Act is amended by repealing subsection (1), and substituting the following subsections: "(1) A Customs officer or member of the police may seize any thing found on or about a person when carrying out a search under section 149B(1), (2), or (3) that the Customs officer or member of the police has reasonable cause to suspect is--- "(a) a thing described in section 149B(1)(a), (b), or (c); or "(b) a dangerous item. "(1A) A Customs officer or member of the police may seize any thing found on or about a person when carrying out a search under section 149BA that the Customs officer or member of the police has reasonable cause to suspect is--- "(a) a dangerous item; or "(b) a thing described in section 149B(1)(a), (b), or (c)." ----------------------------------------------------------------------- 17 Examination of goods subject to control of Customs New (majority) ----------------------------------------------------------------------- (1) Section 151 of the principal Act is amended by repealing subsection (4), and substituting the following subsection: "(4) The examination--- "(a) may include the physical or chemical testing of, or the drilling into, or the dismantling of, the goods; and "(b) may be facilitated by any means whatever (for example, by a dog, a chemical substance, x-ray or imaging equipment, or some other mechanical, electrical, or electronic device)." (2) Section 149A(2)(b) is consequentially amended by omitting the words "or a mechanical, electrical, x-ray, imaging, or electronic device", and substituting the words "or x-ray or imaging equipment, or some other mechanical, electrical, or electronic device". (3) Section 172(1) of the principal Act is consequentially amended by omitting the words "or a", and substituting the words "x-ray or imaging equipment, or some other". ----------------------------------------------------------------------- (4) Section 151 of the principal Act is amended by adding the following subsections: "(7) A Customs officer must, subject to section 173, be allowed free access to all lands, buildings, and places, and to all goods in or on any lands, buildings, or places, for the purpose of exercising powers under this section in respect of goods that are, or are suspected to be,--- "(a) subject to the control of the Customs; and "(b) in a Customs-approved secure package or in a package to which a Customs seal has been applied. "(8) Despite subsection (7), a Customs officer must not enter a private dwelling except with the consent of an occupier or owner of that dwelling or pursuant to a warrant issued under this Act." 18 New sections 166A to 166F inserted The principal Act is amended by inserting, after section 166, the following sections: "166A Detention of goods suspected to be tainted property A Customs officer or authorised person may, without warrant, seize and detain goods if--- "(a) the goods are in New Zealand and he or she is satisfied that they either--- "(i) are being, or are intended to be, exported from New Zealand; or "(ii) are being, or have been, imported into New Zealand; and "(b) the goods came to his or her attention, or into his or her possession, during a {lawful} search, inspection, audit, or examination under--- "(i) this Act; or "(ii) Part V of the Financial Transactions Reporting Act 1996 (which relates to reporting of imports and exports of cash); and "(c) he or she has good cause to suspect that the goods are tainted property (as defined in section 2(1) of the Proceeds of Crime Act 1991). "166B Return of cash necessary to satisfy essential human needs "(1) The power to detain goods under section 166A does not extend to, and the Customs must if practicable return immediately, cash seized under section 166A if the Customs is satisfied that the cash is (or that things for which it might be exchanged are) necessary to satisfy essential human needs--- "(a) of (or of a dependant of) an individual from whom the cash has been seized; and "(b) arising on, or within 7 days after, the date on which detention would otherwise be effected. "(2) Nothing in subsection (1) requires the Customs to return any cash that the Customs is satisfied is not necessary for the purpose specified in that subsection. "(3) If the 7-day period referred to in section 166D(1)(a) is extended under section 166E, subsection (1) of this section applies to the extension, and the reference in subsection (1)(b) of this section to 7 days must be read as a reference to the number of days (not exceeding 21) of that 7-day period as extended. "166C Further provisions about detention under section 166A "(1) Reasonable force may be used if it is necessary for any of the following purposes: "(a) to seize goods under section 166A: "(b) to detain goods under section 166A. "(2) If the person from whom goods have been seized and detained under section 166A is identified but is not present when the seizure and detention occurs (for example, because the goods concerned are in mail or cargo or in unaccompanied baggage), the Customs must make all reasonable efforts to notify that person of the detention and seizure as soon as practicable. "(3) Goods detained under section 166A must be taken to such place of security as a Customs officer or authorised person directs, and there detained, unless section 166F applies. "(4) Nothing in section 166A limits or affects powers under the following enactments: "(a) the rest of this Act (for example, Part XIV): "(b) Financial Transactions Reporting Act 1996: "(c) Mutual Assistance in Criminal Matters Act 1992: "(d) Proceeds of Crime Act 1991: "(e) Terrorism Suppression Act 2002. "166D Return of goods detained under section 166A "(1) In this section, investigation period, in relation to goods seized and detained under section 166A,--- "(a) means the period of 7 days after the date on which the goods were seized and detained; and "(b) includes any extension of that period granted by the High Court under section 166E. "(2) Goods seized and detained under section 166A must be returned to the person from whom they were seized as soon as practicable after whichever of the following occurs first: "(a) the completion of all relevant investigations, if they show that the goods are not tainted property: "(b) the expiry of the investigation period. "(3) However, the Customs need not return the goods as provided in subsection (2), and may continue to detain them until the relevant proceedings or requests (including any resulting applications) are determined if, on or before the expiry of the investigation period,--- "(a) an information is laid in respect of the relevant serious offence (as defined in section 2(1) of the Proceeds of Crime Act 1991); or "(b) a foreign country makes a request to the Attorney-General under any of the following sections of the Mutual Assistance in Criminal Matters Act 1992: "(i) section 55 (which relates to registration of foreign restraining orders): "(ii) section 60 (which relates to the issue in New Zealand of a restraining order). "166E Extension of 7-day period in section 166D(1)(a) "(1) The 7-day period in section 166D(1)(a) may be extended (once only) by order of the High Court for a reasonable period up to a further 14 days if, on an application for the purpose made before the expiry of that 7-day period, that Court is satisfied--- "(a) that the good cause to suspect required by section 166A(c) exists; and "(b) that the extension to be granted is necessary to enable investigations in or outside New Zealand in relation to the goods to be completed. "(2) The application must be made in writing and served on the person from whom the goods were seized (if that person can be identified and located), and must include the following particulars: "(a) a description of the goods detained: "(b) the date on which the detention commenced: "(c) a statement of the facts supporting the good cause to suspect required by section 166A(c): "(d) a statement of reasons why the extension sought is necessary to enable investigations in or outside New Zealand in relation to the goods to be completed. "(3) The person from whom the goods were seized is entitled to appear and be heard on the application. New (majority) ----------------------------------------------------------------------- "(4) The Customs must make all reasonable efforts to notify the person from whom the goods were seized, at least 24 hours before the hearing of the application, of the time and place of that hearing. ----------------------------------------------------------------------- "166F Custody of certain goods detained under section 166A "(1) If goods detained under section 166A are a craft, vehicle, or animal, a Customs officer may leave those goods in the custody of either--- "(a) the person from whom the goods have been seized; or "(b) any other person authorised by the Customs officer and who consents to having such custody. "(2) Every person who has the custody of goods under subsection (1) must, until a final decision is made under section 166D as to whether or not they are to be returned, hold them in safekeeping, without charge to the Crown and in accordance with any reasonable conditions that may be imposed by the Customs. "(3) A person to whom subsection (2) applies must also--- "(a) make the goods available to a Customs officer on request; and "(b) not alter, or dispose of, the goods, or remove them from New Zealand, unless he or she is authorised to do so by a Customs officer; and "(c) return the goods on demand to the custody of the Customs." 19 Failure to produce evidence of identity and entitlement to travel (1) Section 186 of the principal Act is amended by omitting from the heading the words "and entitlement to travel", and substituting the words ", entitlement to travel, or other matters". (2) Section 186(1) of the principal Act is amended by omitting the words "of this Act", and substituting the words "or section 147A". New (majority) ----------------------------------------------------------------------- 19A Offences in relation to arrival of craft Section 191(1)(e) of the principal Act is amended by inserting, after the words "any craft,", the words "or being any other person (other than a Customs officer or authorised person),". ----------------------------------------------------------------------- New (majority) ----------------------------------------------------------------------- 19B Offences in relation to manufacture, movement, and storage of goods Section 200(1) of the principal Act is amended by repealing paragraph (a), and substituting the following paragraphs: "(a) fails to comply with subsection (1) or subsection (4) of section 18 (which relates to Customs facilities in Customs Controlled areas): "(ab) fails to comply with subsection (1) or subsection (3) of section 19H (which relates to Customs facilities in CASEs):". ----------------------------------------------------------------------- 20 New sections 205A and 205B inserted The principal Act is amended by inserting, after section 205, the following sections: "205A Offences relating to failure to give Customs access to information "(1) Every person commits an offence who fails, without reasonable excuse, to give the Customs access to information under any of sections 38D and 38E and 95A. "(2) Every person who commits an offence under subsection (1) is liable on conviction,--- "(a) in the case of an individual, to a fine not exceeding $5,000; or "(b) in the case of a body corporate, to a fine not exceeding $15,000. "(3) Every person commits an offence who fails, without reasonable excuse, to give the Customs access to information under any of sections 38D and 38E and 95A in the form and manner prescribed. "(4) Every person who commits an offence under subsection (3) is liable on conviction,--- "(a) in the case of an individual, to a fine not exceeding $5,000; or "(b) in the case of a body corporate, to a fine not exceeding $15,000. "205B Offence relating to disclosing whether required to give Customs access to information "(1) This section applies to a person if the person is a person concerned in the movement of goods, persons, or craft (as defined in section 38A). "(2) The person must not disclose to another person who is not the Chief Executive, a Customs Officer, an authorised person, or an agent or employee of the person--- "(a) whether the person is a person to whom section 38D or section 38E applies; or "(b) whether the person has been exempted from complying with obligations under that section. "(3) If the person, without reasonable excuse, contravenes subsection (2), the person commits an offence and is liable on conviction to a fine not exceeding,--- "(a) in the case of an individual, $5,000: "(b) in the case of a body corporate, $25,000." 21 New section 210A inserted The principal Act is amended by inserting, after section 210, the following section: "210A Offences in relation to Customs seals and Customs-approved secure exports schemes "(1) Every person commits an offence who, without lawful justification or reasonable excuse,--- "(a) applies a Customs seal to a package of goods otherwise than in accordance with the relevant notice of appointment under section 53A; or New (majority) ----------------------------------------------------------------------- "(ab) alters, removes, damages, disposes of, or otherwise interferes with a Customs seal applied to a package of goods otherwise than in accordance with the relevant notice of appointment under section 53A; or ----------------------------------------------------------------------- "(b) applies an approved seal or markings of the kind referred to in section 53E(1)(b) to a Customs-approved secure package otherwise than in accordance with the relevant Customs-approved secure exports scheme. "(2) {Subsection (3)} [This subsection] applies to a package if the package is--- "(a) a package to which a Customs seal has been lawfully applied; or "(b) a Customs-approved secure package to which a seal or marking of the kind referred to in section 53E(1)(b) has been lawfully applied. "(3) Every person commits an offence who, without lawful justification or reasonable excuse, tampers or interferes with a package to which {this subsection} [subsection (2)] applies by adding other goods to the goods in it when it was secured. "(4) Every person who commits an offence against this section is liable on conviction to a fine not exceeding,--- "(a) in the case of an individual, $5,000: "(b) in the case of a body corporate, $25,000." 22 New section 215A inserted The principal Act is amended by inserting, after section 215, the following section: "215A Offences in relation to certain detained goods "(1) Every person commits an offence who, having custody of goods pursuant to section 166F(1), acts in breach of any requirement of or imposed pursuant to section 166F(2) or (3). "(2) Every person who commits an offence against subsection (1) is liable on conviction to a fine not exceeding $5,000. "(3) Every person commits an offence who, without the permission of the Chief Executive, takes or carries away or otherwise converts to his or her own use goods to which section 166F(2) and (3) applies. "(4) Every person who commits an offence against subsection (3) is liable on conviction to imprisonment for a term not exceeding 12 months, or to a fine not exceeding an amount equal to 3 times the value of the goods to which the offence relates." 23 Goods forfeited Section 225 of the principal Act is amended by adding the following subsection: "(6) Without limiting subsection (5), a craft is also forfeited to the Crown if--- "(a) the craft is one in respect of which an offence under section 191(1)(a) or (d) is committed; and "(b) that offence was committed to facilitate non-compliance with a requirement in any of sections 27 to 29 by a person or persons who arrived in New Zealand having been brought (in that craft or in any other craft) from a point outside New Zealand." 24 New sections 281 to 282A substituted The principal Act is amended by repealing sections 281 and 282, and substituting the following sections: "281 Disclosure of information overseas "(1) The Chief Executive may disclose any information specified in section 282(1) to an overseas agency, body, or person, whose functions include--- "(a) the prevention, detection, investigation, prosecution, or punishment of offences that are, or that if committed in New Zealand would be,--- "(i) customs offences of any kind; or "(ii) other offences punishable by imprisonment; or "(b) the processing of international passengers [at the border by public authorities]; or "(c) border security; or "(d) the enforcement of a law imposing a pecuniary penalty; or "(e) the protection of public revenue. "(2) The disclosure of information under subsection (1) must be--- "(a) in accordance with an agreement between the Chief Executive and the agency, body, or person concerned that complies with subsections (3) and (4); or "(b) in accordance with subsection (8). "(3) The Chief Executive must not enter into an agreement for the purpose of subsection (2)(a) unless satisfied that it is justified to help prevent, identify, or respond to violations of New Zealand law or,--- "(a) in the case of an agreement with an international agency or body, to help prevent, identify, or respond to actions of a kind whose prevention or identification, or responding to which, is among the functions of the agency or body: "(b) in any other case, to help prevent, identify, or respond to violations of the law of the State concerned. "(4) For the purposes of subsection (2)(a), an agreement--- "(a) must be in writing; and "(b) must state criteria for the disclosure of information under it; and "(c) must state, in respect of information to be disclosed,--- "(i) the use that the agency, body, or person may make of it; and "(ii) either--- "(A) that the agency, body, or person must not disclose it to any other agency, body, or person; or "(B) the other agencies, bodies, or persons to which the agency, body, or person may disclose any of it, and the extent to which, and conditions subject to which, the agency, body, or person may do so; and "(d) may state--- "(i) the form in which the information may be disclosed: "(ii) the method by which the information may be disclosed; and "(e) may be varied from time to time. "(5) The Chief Executive--- "(a) must consult the Privacy Commissioner before entering into an agreement under this section, or varying such an agreement; and "(b) if the Privacy Commissioner so requires, must undertake a review of the agreement under this section, and the arrangements for disclosure under it; and "(c) as soon as practicable after conducting a review required to be undertaken under paragraph (b), must report the result to the Privacy Commissioner. "(6) The Privacy Commissioner must not require the Chief Executive to undertake a review of an agreement under subsection (5)(b) within 12 months of last doing so. "(7) This section does not limit the general powers of the Chief Executive to enter into agreements not related to the disclosure of information with any overseas agency, body, or person. "(8) The Chief Executive may disclose information to an overseas agency, body, or person without a written agreement specified in subsection (2)(a) if--- "(a) the functions of the agency, body, or person include the prevention, detection, investigation, prosecution, or punishment of customs offences of any kind or of other offences punishable by imprisonment; and "(b) the information is disclosed subject to conditions stating--- "(i) the use that the agency, body, or person may make of it; and "(ii) either--- "(A) that the agency, body, or person must not disclose it to any other agency, body, or person; or "(B) the other agencies, bodies, or persons to which the agency, body, or person may disclose any of it, and the extent to which, and conditions subject to which, the agency, body, or person may do so; and "(c) the Chief Executive makes and keeps a record of--- "(i) the information that was disclosed; and "(ii) the agency, body, or person to which it was disclosed; and "(iii) the conditions subject to which it was disclosed. "(9) If, before the commencement of this Act, the Government of New Zealand or Chief Executive has entered into any agreement or arrangement with any overseas agency, body, or person and that agreement or arrangement could have been made or entered into under this section, the agreement or arrangement continues and has effect as if it had been made or entered into under this section. This subsection prevails over subsection (4). "(10) The Chief Executive must not disclose any information under subsection (8) unless satisfied that it relates to a suspected violation of New Zealand law or,--- "(a) in the case of disclosure to an international agency or body, to a suspected action of a kind whose prevention or identification, or responding to which, is among the functions of the agency or body: "(b) in any other case, to a suspected violation of the law of the State concerned. "282 Information that may be disclosed "(1) The information that may be disclosed under section 281 is--- "(a) airline passenger and crew lists: "(b) craft movements (which may include passenger and crew lists): "(c) past travel movements of specified people: "(d) previous convictions of specified people: "(e) general history of specified people (which may include associates and networks): "(f) modus operandi of specified people: "(g) known currency and other financial transactions of relevant interest, including involvement in money laundering: "(h) intelligence analysis assessments and reports: "(i) details of mail interceptions: "(j) personal identification details (which may include photographs, distinguishing features, and details of identity or travel documents): "(k) names and details of Customs personnel, freight forwarding and transport personnel, and personnel in the trade and travel business: "(l) details of known or suspected involvement of persons in illicit activities. "(2) Section 281 does not prevent or limit any disclosure of information otherwise than under that section that may be required or authorised by or under law, or any treaty, agreement, or arrangement concluded by the Government of New Zealand. "282A Customs may for certain purposes collect, use, or disclose certain information "(1) This section applies to information viewed by the Customs under any of sections 38G to 38K, and to information to which the Customs is given access under section 95A. "(2) The Customs may collect, use, or disclose the information for any of the following purposes (and, in the case of personal information, despite anything in information privacy principles 2, 3, 10, or 11 of the Privacy Act 1993): "(a) exercising or performing a power, function, or duty under this Act: "(b) the prevention, detection, investigation, prosecution, and punishment of offences that are, or that if committed in New Zealand would be,--- "(i) customs offences of any kind; or "(ii) other offences punishable by imprisonment: "(c) the processing of international passengers [at the border by public authorities]: "(d) the protection of border security: "(e) the protection of {public} [the] health and safety [of members of the public]. New (majority) ----------------------------------------------------------------------- "(2A) To avoid doubt, if the information is personal information and is disclosed by the Customs to an agency, body, or person under subsection (2) and for a purpose specified in that subsection, then the agency, body, or person--- "(a) is authorised by this section to obtain and collect that information for that purpose; but "(b) may keep, use, or disclose that information only in accordance with the Privacy Act 1993. ----------------------------------------------------------------------- "(3) Section 281 applies, with all necessary modifications, to the disclosure of the information to an overseas agency, body, or person whose functions include--- "(a) the prevention, detection, investigation, prosecution, and punishment of offences that are, or that if committed in New Zealand would be,--- "(i) customs offences of any kind; or "(ii) other offences punishable by imprisonment; or "(b) the processing of international passengers [at the border by public authorities]; or "(c) border security; or "(d) the protection of {public} [the] health and safety [of members of the public]. "(4) Nothing in this section limits section 38K(5)(b) or section 38N." 25 Regulations New (majority) ----------------------------------------------------------------------- (1A) Section 286(1) of the principal Act is amended by inserting, after paragraph (b), the following paragraph: "(ba) prescribing the form and content of, and the procedure to be followed in making, an application for an area to be licensed as a CASE:". ----------------------------------------------------------------------- Struck out (majority) ======================================================================= (1) Section 286 of the principal Act is amended by repealing subsection (1)(d), and substituting the following paragraph: "(d) prescribing the content of the notice required to be given to the Customs by the person in charge of a craft under section 21, the period of advance notice required to be given for the purposes of that section, and the form and manner in which the notice must be given:". ======================================================================= (2) Section 286(1) of the principal Act is amended by inserting, after paragraph (g), the following paragraph: "(ga) prescribing the form and content of outward reports required by section 34, and the manner in which[, and time within which,] those reports must be delivered to the Customs:". (3) Section 286(1) of the principal Act is amended by inserting, before paragraph (h), the following paragraphs: "(gb) prescribing, for the purposes of paragraph (e) of the definition of person concerned in the movement of goods, persons, or craft in section 38A, persons, or classes of persons, involved in the carriage, handling, or transportation of goods, or persons, or both, from New Zealand to a point outside New Zealand, or from a point outside New Zealand to New Zealand, for commercial purposes: "(gc) prescribing the form and manner in which the Customs must be given access to information under section 38D or section 38E or both:". (4) Section 286(1) of the principal Act is amended by inserting, after paragraph (p), the following paragraph: "(pa) prescribing the form and manner in which the Customs must be given access to information under section 95A:". New (majority) ----------------------------------------------------------------------- (5) Section 286(1) of the principal Act is amended by inserting, after paragraph (x), the following paragraph: "(xa) prescribing, for the purposes of section 135(1)(d), 1 or more other grounds on which a registered user may be considered unfit to continue to be a registered user:". ----------------------------------------------------------------------- 26 Chief Executive may make rules for certain purposes Section 288(1) of the principal Act is amended--- (a) by adding to paragraph (a) the words "and the manner in which those reports must be delivered to the Customs": (b) by adding to paragraph (b) the words "and the manner in which those reports must be delivered to the Customs": New (majority) ----------------------------------------------------------------------- (c) by inserting in paragraph (i), after the word "which", the words ", and the time within which,". ----------------------------------------------------------------------- New (majority) ----------------------------------------------------------------------- 26A New section 288A inserted The principal Act is amended by inserting, after section 288, the following section: "288A Use of reasonable force must be reported A Customs officer must, within 5 working days of using reasonable force under any provision of this Act, give the Chief Executive a written report on--- "(a) the use of the force; and "(b) the circumstances in which it was used." ----------------------------------------------------------------------- New (majority) ----------------------------------------------------------------------- 26B Amendments consequential on enactment of section 11 of Customs and Excise Amendment Act (No 2) 2002 and section 16B of this Act (1) The definition of New Zealand in section 2(1) of the principal Act is amended, as from the relevant time,--- (a) by omitting from paragraph (b)(ii) the expression "149(1)(a) and (b)", and substituting the expression "149(a) and (b)"; and (b) by omitting from paragraph (b)(iii) the expression "149(1)(c) and (3)", and substituting the expression "149(a) and (b) and 149B(2)". (2) Section 225(1) of the principal Act is amended, as from the relevant time, by omitting paragraph (d), and substituting the following paragraph: "(d) dutiable or prohibited goods found in the course of a search under section 144 or seized under section 149C(1):". (3) Section 225(1) of the principal Act is amended, by inserting after paragraph (d), the following paragraph: "(da) dangerous items seized under section 149C(1A)(a):". (4) Each of the following sections is amended, as from the relevant time, by omitting the expression "149", and substituting the expression "149A, 149B, 149C(1) and (2), 149D,": (a) section 36 of the Misuse of Drugs Act 1975; and (b) section 38A of the Trade in Endangered Species Act 1989; and (c) section 56A of the Wildlife Act 1953. (5) In this section, relevant time means the close of 8 October 2002 (which is the commencement of section 11 of the Customs and Excise Amendment Act (No 2) 2002). ----------------------------------------------------------------------- Part 2 Amendments to Immigration Act 1987 27 Immigration Act 1987 called principal Act in this Part In this Part, the Immigration Act 1987 1987 No 74 is called "the principal Act". 28 Residence permit holders temporarily absent from New Zealand Section 18 of the principal Act is amended by repealing paragraph (b). 29 New sections 125AA to 125AE inserted The principal Act is amended by inserting, before section 125, the following sections: "125AA Responsibilities of carrier, and person in charge, of commercial craft before it departs from another country to travel to New Zealand "(1) This section applies to a carrier, and a person in charge, of a commercial craft if--- "(a) he or she is notified by the chief executive that--- "(i) he or she is a person of a kind who must comply with the responsibilities specified in subsection (2) before a craft in relation to which he or she is the carrier or the person in charge departs from another country to travel to New Zealand; or "(ii) the craft in relation to which he or she is the carrier or the person in charge is a craft of a kind in relation to which he or she must comply with the responsibilities specified in subsection (2) before the craft departs from another country to travel to New Zealand; and "(b) it is proposed that the craft travel to New Zealand from another country (including in the course of a scheduled international service). "(2) A person to whom this section applies must do the following things before the craft in relation to which he or she is the carrier or the person in charge departs from another country to travel to New Zealand: "(a) obtain the following information from every person who intends to board the craft for the purpose of travelling to New Zealand: "(i) name: "(ii) date of birth: "(iii) nationality: "(iv) sex: "(v) passport, or certificate of identity, number (if any): "(vi) passport, or certificate of identity, expiry date (if any): "(vii) the issuer of the certificate of identity, if it is not the person's country of nationality (if any): New (majority) ----------------------------------------------------------------------- "(viii) the person's status as a traveller (including, whether the person is a member of the crew of the craft, a passenger whose destination is New Zealand, or a passenger whose destination is other than New Zealand): ----------------------------------------------------------------------- "(b) provide the following information to the chief executive by means of an approved system: "(i) the information obtained under paragraph (a); and "(ii) if the person to whom this section applies intends to board the craft himself or herself for the purpose of travelling to New Zealand, information about himself or herself of the kind specified in paragraph (a); and "(iii) information identifying the craft and its intended movements; and "(iv) in relation to a person referred to in paragraph (a), the location of information about that person of the kind specified in section 125AD(5) (including, if applicable, the electronic address for the information). "(3) The chief executive may, in writing, exempt a person to whom this section applies from complying with some or all of his or her responsibilities under this section in all or any specified circumstances. "(4) Every {person} [carrier, or person in charge, of a commercial craft] who fails, without reasonable excuse, to comply with any of his or her responsibilities under this section commits an offence and is liable on conviction--- "(a) to imprisonment for a term not exceeding 3 months; and "(b) in the case of a carrier, to a fine not exceeding $20,000; and "(c) in the case of a person in charge, to a fine not exceeding $10,000. "(5) In this section and sections 125AB to 125AD,--- "approved system means a system, including an electronic system, approved by the chief executive for the purpose of--- "(a) providing information to the chief executive under this section; or "(b) notifying a person to whom this section applies of a decision of the chief executive under section 125AB(1) "commercial craft means a craft that travels for a commercial purpose or as part of a commercial operation "scheduled international service means a series of flights or voyages performed by a craft for the transport of passengers, cargo, or mail between New Zealand and 1 or more points in any other country or territory, if the flights or voyages are so regular or frequent as to constitute a systematic service, whether or not in accordance with a published timetable, and that are operated in a manner where each flight or voyage is open to use by members of the public "travelling to New Zealand includes, but is not limited to, travelling to New Zealand from another country in transit to another destination. "125AB Chief executive may make decision about person boarding craft for purpose of travelling to New Zealand "(1) The chief executive may decide that a person in relation to whom information has been received under section 125AA--- "(a) may board a craft for the purpose of travelling to New Zealand; or "(b) may not board a craft for the purpose of travelling to New Zealand; or "(c) may board a craft for the purpose of travelling to New Zealand only if he or she complies with conditions specified by the chief executive. "(2) The chief executive--- "(a) must notify a person to whom section 125AA applies of a decision made under subsection (1); and "(b) may do so in any form he or she thinks appropriate, including, but not limited to, by means of an approved system, which may contain code that represents the outcome of the decision; and "(c) may do so in any manner he or she thinks appropriate, including, but not limited to, by means of an automated electronic response to a decision made under subsection (1). "(3) The chief executive--- "(a) may make any decision under subsection (1) whether or not the person to whom the decision relates--- "(i) holds a visa to travel to New Zealand; or "(ii) is exempt from the requirement to apply for and hold a visa to travel in New Zealand; or "(iii) is exempt from the requirement to hold a permit to be in New Zealand; but "(b) may not make a decision under subsection (1)(b) or (c) if the person to whom the decision relates is--- "(i) a New Zealand citizen who holds a New Zealand passport; or "(ii) a person who holds a returning resident's visa in a passport or certificate of identity, or who has a returning resident's visa electronically entered and retained in the records of the Department of Labour under section 35AB, and who intends to travel to New Zealand during the currency of that visa; or "(iii) a person who--- "(A) has been granted a pre-cleared permit that is entered and retained (either electronically or otherwise) in the records of the Department of Labour under section 35E; and "(B) intends to enter New Zealand during the currency of that pre-cleared permit on a flight designated by the Minister as a pre-clearance flight under section 35C. "(4) To avoid doubt, section 141AA does not apply to the chief executive when he or she is notifying a person to whom section 125AA applies of a decision made under subsection (1). "(5) To avoid doubt, the chief executive may make a decision under subsection (1) by means of an automated electronic system that analyses the information (if any) about a person that is held by the chief executive or to which the chief executive has access, using criteria predetermined by the chief executive. "(6) A person in relation to whom a decision is made under subsection (1) may not--- "(a) appeal the decision to any court, the Tribunal, the Minister, or any other body or person; or "(b) bring review proceedings in relation to the decision. "(7) Despite subsection (6)(b), a person in relation to whom a decision is made under subsection (1) may bring review proceedings, but may only do so on the grounds that he or she is a person in relation to whom that decision should not have been made because he or she is a person to whom subsection (3)(b) applies. "(8) The chief executive is not obliged to give reasons for a decision made under subsection (1) other than that subsection (1) applies. "(9) Section 23 of the Official Information Act 1982 does not apply in respect of a decision made under subsection (1). "125AC Offences relating to {compliance} [non-compliance] with decision made by chief executive under section 125AB "(1) Every {person} [carrier, or person in charge, of a commercial craft] commits an offence who allows a person to travel to New Zealand before a decision has been made by the chief executive under section 125AB(1). "(2) Every {person} [carrier, or person in charge, of a commercial craft] commits an offence who--- "(a) is notified under section 125AB(2) of a decision made by the chief executive under section 125AB(1)(b) or (c); and "(b) without reasonable excuse, fails to ensure that the decision is complied with by the person to whom the decision relates. "(3) Every {person} [carrier, or person in charge, of a commercial craft] who commits an offence against subsection (1) or subsection (2) is liable on conviction--- "(a) to imprisonment for a term not exceeding 3 months; and "(b) in the case of a carrier, to a fine not exceeding $20,000; and "(c) in the case of a person in charge, to a fine not exceeding $10,000. "125AD Person to whom section 125AA applies must provide further information if requested, and must provide access to further information "(1) If the circumstances in subsection (2) exist, a person to whom section 125AA applies must provide the chief executive with information of the kind specified in subsection (5) about a person who intended to board a craft for the purpose of travelling to New Zealand, whether or not he or she did in fact board the craft (including, but not limited to, if he or she did not board the craft as a result of a decision made by the chief executive under section 125AB(1)). "(2) The circumstances are that the chief executive has made the request for the information within 24 hours of the arrival in New Zealand of the craft on which the person to whom the information relates intended to, or did, travel to New Zealand. "(3) A person to whom section 125AA applies must ensure that the chief executive has access to information of the kind specified in subsection (5) about a person who intended to board a craft for the purpose of travelling to New Zealand, whether or not he or she did in fact board the craft (including, but not limited to, if he or she did not board the craft as a result of a decision made by the chief executive under section 125AB(1)). "(4) A person to whom subsection (3) applies must ensure that the chief executive has access to the information--- "(a) in an approved form and manner; and "(b) for 24 hours after the arrival in New Zealand of the craft on which the person to whom the information relates intended to, or did, travel to New Zealand. "(5) The information referred to in subsections (1) and (3) is information held by a person to whom section 125AA applies, or to which a person to whom section 125AA applies has access, about the following matters: "(a) where the person booked the intended travel: "(b) on what date the person booked the intended travel: "(c) with whom, if anyone, the person intended to travel: "(d) with whom a person has previously travelled: "(e) whether or not the person paid for his or her own intended travel, and the manner of payment: "(f) the person's travel movements before the intended travel: "(g) whether the route of the person's previous travel has changed from the way that he or she originally booked the travel and, if so, in what way: "(h) whether the person failed to undertake intended travel on a previous occasion: "(i) whether the person has checked baggage. "(6) Information collected or accessed by the chief executive under subsections (1) and (3) may only be retained by the chief executive if any of the following circumstances apply: "(a) the chief executive decided under section 125AB(1)(b) that the person may not board a craft for the purpose of travelling to New Zealand: "(b) the person has been refused, on arrival, a permit or exemption to be in New Zealand: "(c) the information needs to be retained as part of a record of a particular action having been taken in relation to the person to whom it relates (for example, a record that a person was interviewed on arrival): "(d) the information gives the chief executive good cause to suspect that a risk to border security exists. "(7) In this section, approved form and manner means a form and manner (for example, an electronic form and manner) approved by the chief executive for the purpose of providing him or her with access to information under subsection (3). "125AE Offence relating to failure to provide information, or failure to provide access to information, under section 125AD "(1) Every {person} [carrier, or person in charge, of a commercial craft] commits an offence who fails, without reasonable excuse, to provide the chief executive with information the chief executive requested under section 125AD(1). "(2) Every {person} [carrier, or person in charge, of a commercial craft] commits an offence who fails, without reasonable excuse, to provide the chief executive with access to information under section 125AD(3). "(3) Every {person} [carrier, or person in charge, of a commercial craft] who commits an offence under subsection (1) or subsection (2) is liable on conviction--- "(a) to imprisonment for a term not exceeding 3 months; and "(b) in the case of a carrier, to a fine not exceeding $20,000; and "(c) in the case of a person in charge, to a fine not exceeding $10,000." 30 Responsibilities of carrier and person in charge of any craft Section 125 of the principal Act is amended by adding to the heading the words "en route to New Zealand". New (majority) ----------------------------------------------------------------------- 30A Police to have powers of immigration officers Section 139 of the principal Act is amended by omitting the expression "and 138", and substituting the expression ", 138, and 138A". ----------------------------------------------------------------------- 31 Evidence in proceedings Section 143(1) of the principal Act is amended by inserting, after paragraph (k), the following paragraphs: "(l) the person travelled to New Zealand on a certain commercial craft at a certain time; or "(m) the person travelled to New Zealand before a decision was made by the chief executive under section 125AB(1); or "(n) the person travelled to New Zealand contrary to a decision made by the chief executive under section 125AB(1)(b) [or (c)]; or "(o) the person did not provide information requested by the chief executive under section 125AD(1); or "(p) the person did not provide the chief executive with access to information under section 125AD(3),---". Legislative history 18 June 2003 Introduction (Bill 53-1) 1 July 2003 First reading and referral to Government Administration Committee