This Act has been repealed and is no longer in force. It is retained for historical reference.
Jurisdiction
Commonwealth
Act Number
38 of 1985
Collection
act
Plain English Summary
6/10 complexity
What this law does (mechanics)
Establishes the Australian Customs and Border Protection Service (re‑named and continued) and creates a Chief Executive Officer of Customs (the CEO) to run it (sections 4, 4AA, 5).
Sets how the CEO is appointed, how long the CEO may serve, conditions of office, remuneration, leave, disclosure of financial interests and grounds and procedure for suspension/removal (sections 5–13, 8, 9, 11, 12).
Gives the Minister the power to give written directions about general policy to the CEO, which the CEO must follow and table in Parliament (section 4A).
Allows the CEO to authorise officers to exercise powers under particular provisions (section 3B), to delegate most CEO functions to officers of Customs (section 14), and to make written orders governing the conduct of Customs workers (CEO’s Orders) which those workers must obey (section 4B(1),(4)).
Defines who counts as a Customs worker (officers of Customs, staff made available from other agencies, consultants/contractors or subcontractors if the CEO so determines) and lets the CEO make written determinations that specific consultants/contractors/subcontractors are Customs workers (sections 3C and definition of Customs worker in section 3) .
Creates a statutory prohibition on unauthorised recording or disclosure of "protected information" learned while performing Customs duties, with limited statutory exceptions and a penalty of imprisonment for up to 2 years (section 16(2), (1AA), (1A)).
Authorises the CEO, subject to conditions, to permit disclosure of Customs information to other Commonwealth agencies, State agencies (for Commonwealth or State purposes), foreign countries, foreign agencies or international organisations, and to specify purposes and conditions for those disclosures (section 16(3A)–(3D), (3E), (10)). Special rules apply where the information contains personal information (sections 16(7)–(10)).
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
Provides that certain internal reporting orders (CEO’s Orders about reporting serious misconduct, corruption or criminal activity by Customs workers) can require information even where it might otherwise be self‑incriminating; the information so given cannot be used in proceedings against the worker except as provided elsewhere (sections 4B(2), 4C(1)–(3), and cross‑reference to section 16G).
Sets out powers for authorised officers to require Customs workers to undergo alcohol screening tests, breath tests, blood tests or prohibited drug tests in specific circumstances (when on duty and suspected of being under the influence, after certain incidents that kill or seriously injure someone, and for those working on Customs vessels), and makes compliance mandatory (sections 16B–16E). Rules about how tests are done, who performs them, sample handling, accreditation and confidentiality are left to regulations (section 16F).
Limits admissibility of test results and materials from these workplace tests in legal proceedings against the worker, except for some employment or compensation proceedings (section 16G).
Gives the CEO power to specify by legislative instrument which drugs count as "prohibited drugs" for the testing provisions (section 16H).
Confirms that Chapter 2 of the Criminal Code (general criminal responsibility) applies to offences under this Act (section 3A), and allows the Governor‑General to make regulations to give effect to the Act (section 18).
Who is affected and who decides
Affected persons: the CEO (officeholder), officers of Customs, other employees or personnel whose services are made available to Customs, and consultants/contractors or their staff who the CEO determines to be Customs workers; also private contractors and bodies that handle Customs information may be affected by disclosure rules (sections 3, 3C, 16(1AA)).
Decision makers: the Minister issues written policy directions (section 4A); the Governor‑General appoints the CEO and may suspend/remove under the Act (sections 5, 12); the CEO issues CEO’s Orders (section 4B), makes determinations about who is a Customs worker (section 3C), authorises disclosures of protected information (section 16(3A)–(3D)), and specifies prohibited drugs by legislative instrument (section 16H). The CEO may delegate many functions to officers of Customs (section 14).
Enforcement and operational discretion: authorised officers (as authorised by the CEO under section 3B) can require workplace testing and give written directions about tests (sections 3B, 16B–16D).
Why it matters (official purpose claims and practical implications)
Officially, the Act structures and equips the agency to carry out customs and border functions by setting leadership, internal discipline and secrecy rules, and workplace safety and integrity measures (see parts establishing the CEO and CEO’s powers (sections 4, 4A, 4B), the restrictions on disclosure (section 16), and the testing regime (sections 16B–16D)).
How the law changes incentives, costs and behaviour (concrete mechanisms)
Internal control and compliance burden: CEO’s Orders are binding on Customs workers (s4B(4)), so workers face an internal regulatory regime that can require reporting of misconduct (s4B(2)) and compliance with testing directions (s16B–16D). The practical compliance burden on those designated as Customs workers can include mandatory reporting duties, testing obligations and adherence to confidentiality rules (s16(2), s4B(4), s16B(2), s16C(3), s16D(6)).
Personnel and contractor risk: the CEO can determine that consultants, contractors or their employees are Customs workers (s3C). Those persons then become subject to the Act’s obligations (testing, confidentiality, CEO’s Orders), which affects the contractual conditions and compliance costs for firms that provide services to Customs (s3C, s16).
Evidence and employment consequences: workplace test results and other material from tests are generally inadmissible in criminal or civil proceedings against the worker but may be used in proceedings about CEO decisions to terminate employment, workers’ compensation proceedings and torts against the Commonwealth (s16G). The CEO may terminate staff for serious misconduct and make a written declaration that removes some Fair Work Act protections for that termination (s15A(2)–(4)), creating a risk that certain dismissals will not attract the standard unfair dismissal or notice protections under the Fair Work Act.
Information flows and external sharing: the CEO may authorise disclosure of protected Customs information to other Commonwealth or State agencies, foreign governments or international organisations subject to conditions and undertakings (s16(3A)–(3D), (3E), (10)). This creates a channel for inter‑agency and international sharing of operational information, but the CEO controls the authorisation and may restrict purpose and conditions (s16(3A)–(3D)).
Criminal exposure and speech limits: persons who are or were within the scope of the section face a criminal penalty for unauthorised recording or disclosure of protected information (imprisonment up to 2 years) (s16(2)). This creates a legal restriction on communication of protected information beyond permitted channels and duties.
Delegation and operational discretion: many practical details — who is authorised to conduct tests, how samples are handled, accreditation, evidentiary form, confidentiality — are left to regulations (s16F) and CEO instruments (s4B, s16(3A)–(3D)), so day‑to‑day operation depends on subordinate instruments and administrative practice. The CEO’s wide ability to issue orders, make determinations about workers and authorise disclosures concentrates significant operational discretion in the office of the CEO (s3C, s4B, s16(3A)–(3D), s14).
Compliance, trade‑offs and implementation risks
Compliance burden is concentrated on Customs workers (including contractors when determined as such): they must obey CEO’s Orders (s4B(4)), comply with testing directions (s16B–16D), and observe the secrecy prohibition (s16(2)).
Trade‑offs: the Act prioritises operational control, confidentiality and an internal integrity regime (CEO’s Orders, secrecy prohibition, testing). The trade‑offs are that affected staff lose some procedural protections in dismissal (s15A) and face criminal penalties for unauthorised disclosure (s16(2)).
Implementation risk: many operative details depend on regulations and CEO instruments (s16F, s4B, s3C, s16(3A)–(3D)), so outcomes will vary with how those subordinate instruments are drafted and applied. The evidentiary limits on test results (s16G) and the interplay between compulsory reporting orders (s4B, s4C) and protections against self‑incrimination (s4C(2) with the exception in s16G) add legal complexity to prosecutions and employment disputes.
Net effect on private enterprise and independence of contractors (source‑grounded)
The Act primarily regulates an agency and its workers. It affects private businesses to the extent they supply services to Customs and may be designated Customs workers by CEO determination (s3C). Those businesses and their employees may face additional compliance costs and restrictions (testing, confidentiality, obedience to CEO’s Orders) if so designated. The Act does not directly regulate prices, competition or ownership in private markets but does impose operational constraints on contractors who enter into service arrangements with Customs (s3C, s16).
Section 3C
Determination of consultants, contractors and subcontractors as Customs workers