Customs and Excise Bill

It is my view that it is now reasonable to move on to the next theme, which is the debate on powers and obligations, comprising Part 3, Subparts 1, 2, 4, and 8, and schedule 5; Part 4; Part 5, Subparts 4, 7, and 10, and schedule 8; and Part 6, Subpart 1.

Just by way of introduction to theme two, powers and obligations, the committee may want to know that the bill confirms the majority of customs’ existing powers while recognising privacy concerns. Powers are backed up with modern sanctions. Specific thresholds must be met before customs officers can search an electronic device. So for my learned colleague Dr Duncan Webb, this is the part you might want to take a call on.

The bill further goes on to clarify the traveller’s obligation to provide access to an electronic device for such searches. Privileged information will be protected in full searches of electronic devices. Controlled deliveries are highly effective in breaking smuggling networks and will be possible across a wider range of goods such as objectionable publications. There will be a streamlined process for imposing controls on imported and exported goods. Also, the commercial transportation operators may be required to provide the passenger name record information—or PNR—they generate, such as ticketing data and payment information. Limits are prescribed on when the power can be exercised relative to arrival or departure times. PNR is used in the advance risk assessment of passengers. The chief executive must have regard to the recommended practices of the International Civil Aviation Organization in respect of PNR data.

The bill restricts the Customs Service to collecting, using, and disclosing passengers’ biometric information in order to verify passengers’ identity and to establish whether a passenger is subject to travel restrictions imposed by the courts or the Parole Board.

The bill allows customs to set performance standards for users of the Joint Border Management System, and, as a last resort, to suspend or revoke a user’s registration. The bill further introduces a modern, cost-effective infringement notice scheme for minor offending. Regulations will set the infringement offences and fees.

Finally, forfeiture and seizure provisions have been modernised and minor improvements made. But, in substance, the provisions are unchanged from the existing Act.

Can I just make one small comment before I resume my seat. It is an acknowledgment that in this particular part, at the Foreign Affairs, Defence and Trade Committee, Te Rūnanga o Ngāi Tahu submitted that this clause should allow the Minister of Customs to oppose a prohibition with reference to an established iwi interest rather than simply the public interest. I just want to acknowledge the select committee, which accepted that the public interest test is broad enough to consider an established iwi interest. It is in the public interest to consider that the interests of iwi are taken into account.

I have so much more to say. I thought I’d stick to the appropriate theme this time, but I’m sure I’ll be told if I don’t. And I won’t repeat myself—I’m sure the Minister will remember my earlier comments.

Obviously, the powers within the bill are very significant, and one of the really significant and very far-reaching powers I think we need to think very carefully about is the power of seizure. One of the difficulties with seizure is that it can appear quite disproportionate, in the sense that the use, for example, of a craft to smuggle goods can lead to the seizure of that craft and not only the goods, which are forfeit almost without saying. But the fact that assets used for illicit purposes may themselves be subject to seizure suggests that we need to be cautious about that.

There are two clauses of the bill that perhaps push out a bit further these powers, and they are new to the legislation. One is the ability to condemn goods—that is to say, they become property of the Crown if conditions for their release are not met—which is in new clause 166A, proposed through Supplementary Order Paper 12. We can understand why that might happen, particularly if there has been some flagrant disregard, for example, for the placement of a bond or whatever that might be. But in many of these situations, particularly, you’ve got to remember that there may not have been a trial and there may not have been a conviction. In these situations, we’ve got to be very cautious indeed in seizing these goods first. So, whilst the power may exist, I wonder whether there ought not be some very careful discretion not to exercise it in all circumstances.

The other interesting move in this piece of legislation is apparent in a number of places, including clause 169, which is the extension of customs’ powers to the contiguous zone—that is to say, beyond the usual jurisdictional limits of New Zealand, which are the immediate waters outside of New Zealand, but far out beyond that. Now that is consistent with international covenants on the law of the sea, but in terms of extending domestic powers, because customs’ powers are fundamentally domestic powers, well beyond our national borders—that is something that I would invite the Minister to give some consideration to, and perhaps justification for.

Whilst these significant powers are—and that includes power to seize. The power, particularly, to seize illicit imports or exports extends beyond our immediate zone—our legal jurisdiction—out into the contiguous zone, and that is a significant geographical extension of the power of customs. So I’d invite the Minister to just explain how that is perhaps both consistent with good governance and with our international obligations.

Having said that, clearly we need to equip our customs with all those necessary powers and, by and large, the powers are entirely justifiable in the hands of an agency that is subject to law and subject to review. And on that basis, I commend this bill to the House.

CHAIRPERSON (Hon Anne Tolley): I call, Raymond Huo. My apologies, Raymond Huo.

Thank you very much, Madam Chairperson Tolley. It’s a great pleasure—

CHAIRPERSON (Hon Anne Tolley): I’m going to apologise again to the member because the time has come for me to report progress on these bills before the committee tonight.

Progress to be reported.

House resumed.

The Chairperson reported the Food Safety Law Reform Bill with amendment, and progress on the Customs and Excise Bill.

Report adopted.

The House adjourned at 9.56 p.m.