The new Home Affairs Ministry and the wider impact on trade

The new Home Affairs Ministry and the wider impact on trade

19 July 2017

Yesterday (18 July 2017) saw the announcement of the creation of a new ‘Home Affairs’ portfolio with responsibility for Australia’s immigration, border protection and domestic security agencies.

Modelled more on the UK’s ‘Home Office’ concept as opposed to the Department of Homeland Security in the US, the relevant agencies in the new ‘Super Ministry’ will include ASIO, the AFP, the ABF, the Australian Criminal Intelligence Commission, AUSTRAC and the OTS who will retain their own current statutory independence.

According to press reports and Government releases, under the new regime, the agencies will be supported by the new central department which will oversee planning and policy as well as co-ordinate responses of the agencies.

There will be Ministerial changes with ASIO, the AFP and the ABF reporting to the new Home Affairs Minister with a number of oversight bodies being moved into the portfolio of the Attorney-General including the Office of the Commonwealth Ombudsman. The Attorney-General will also continue to be responsible for the issue of warrants under the ASIO Act, Ministerial Authorisations under the Intelligence Services Act and continue to administer the Criminal Code Act 1995 and the Crimes Act 1914

According to the Government release, planning to implement all these changes will be conducted within the Department of PM and Cabinet.

Many in industry will be watching with close interest as to how the changes are implemented, a bare 2 years after the Australian Customs and Border Protection Service (Customs) and the Department of Immigration were merged into the current Department of Immigration and Border Protection (DIBP) which included the ABF, with the ABF essentially conducting the former Customs role in the DIBP. According to the DIBP website ‘the integrated department provides us with the opportunity to leverage our combined experience and capabilities to better tackle the challenges facing Australia’s border‘. It has been widely reported that the merger has been neither easy nor cheap so another tranche of changes which may affect the role of the ABF may create additional legal and procedural complexities.

Given the current regime with the DIBP, a number of preliminary issues arise for those in the supply chain who deal with the border agencies on a daily basis:

  • Although the ABF is a separate statutory agency will it continue as part of the DIBP or will it be ‘separated’ and shifted away from the DIBP, with the DIBP retaining its immigration and trade policy role?
  • As Senator Hon George Brandis explained, the Home Affairs Minister would ‘give 100 per cent of his time and his attention to national security, both domestic, national security and border security’. That suggests that there may be a shift in the role of the ABF towards security and away from its other border roles.
  • With the ‘security’ focus of the Home Office, is there an argument for the revenue collection and related enforcement measures to be shifted away from the ABF to another agency such as the ATO as occurred with Excise matters?
  • The ABF has an increasingly important role in collecting anti-dumping and countervailing duties and enforcing anti-circumvention measures against those trying to avoid trade measures. I am a member of the International Trade Remedies Forum convened by the Anti-Dumping Commission (ADC) and there is significant pressure from Australian industry to direct the ADC and the ABF to take a more active role in the trade remedies arena. That leaves the obvious question that if the ABF is moving towards border security actions alone, who will be left to enforce these trade remedies at a time when much of the world is focussed on such trade remedies issues? If the ABF is moving out of that area then there will be significant pressure on Government to ensure that the trade remedies agenda is preserved and serviced.
  • Regardless of any potential substantive shift of the ABF away from the DIBP, will the implementation of the shift of the ABF to the Home Office have an impact on the trade policy and trade facilitation role of the DIBP which it conducts in conjunction with the ABF? Will that separation jeopardise the trade facilitation agenda where the DIBP relies on the engagement of the ABF as the enforcement agency? After all, the terms of the Trusted Trader and Known Consignor schemes conducted by the DIBP and the OTS include significant input from the ABF.

No doubt many of these issues will be worked out during the time before the new Home Ministry is established. However it does seem that the events of yesterday may have balanced the trade agenda back towards the border security agenda in a way which may overwhelm the trade facilitation agenda

We live in interesting times – and the extent of the winds of change are far from certain so we can only fervently hope that there is sensible advanced engagement which preserves the vital trade facilitation agenda.

Stay tuned – and if pain persists, consult your lawyer!

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