Bill S-2 (Historical)

An Act to amend the Customs Act

This enactment amends the Customs Act to clarify certain provisions and to make technical amendments to others. It also imposes additional requirements in customs controlled areas, amends provisions respecting the determination of value for duty, and modifies the advance commercial reporting requirements. Finally, it provides that regulations may incorporate material by reference.

Customs Act

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Mr. Speaker, I want to thank the member for Eglinton—Lawrence for his question.

Law is symbolized by the scales of justice, which, in their own right, symbolize balance. If I were asked whether the Conservative party is balanced, I would not be the only one to say no; all Canadians now see that it is not. When the Leader of the Government in the Senate, a Conservative, introduces a bill, we always have to be careful. In this case, we have to be careful in considering the size of the areas targeted by this bill, the control areas that could be expanded by the Conservative minister. We need to be careful because this expansion could affect the rights of workers, individuals, passengers and those who use all port and airport areas.

I explained why putting forward such an amendment is so complicated. Amending a bill so that the members can define the boundaries of each port and airport would have been a monumental task. We now need a part of this bill in order to do business with other countries, and that part is valid. But we always have to watch for the poison pill that the Conservatives slip into a bill. They do it every time security or justice is involved. They do not keep the scales balanced.

[Roger Pomerleau, Bloc, Drummond, QC]

Mr. Speaker, I thank my colleague from Argenteuil—Papineau—Mirabel for his speech, which was excellent as usual.

Yesterday, I happened to be taking someone else's place on the Standing Committee on Public Accounts. I was totally amazed to learn in a report from the RCMP representatives who were present at the meeting, that there are 60 cases of people with criminal records or direct links with organized crime working in Canadian airports at this time.

We also learned, in a CBC report two years ago, that customs officers were complaining about being pressured by questionable people to not inspect certain incoming planes. To our utter amazement, when we questioned the people responsible for airports testifying before the committee, we learned that they did not carry out any serious investigations when they hired airport staff. They do a minimal investigation but do not, for instance, go to the extent of asking for police checks. They were entitled to ask the RCMP for these but they cited protection of privacy.

The people who work in airports are thinking at this time about finding a solution to this problem. They want to have job applicants sign a form authorizing the airports to carry out a check, or get one done by the RCMP, as a minimum. Even MPs have to sign an authorization for a background check when they decide to run as candidates, and this is a minimum.

When my colleague calls for vigilance as far as the rights assigned to the minister to further increase the parameters of the law, ought we not also to be asking the minister to be a bit more vigilant about those who already have to enforce the law?

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Mr. Speaker, my colleague is absolutely right. Vigilance, in keeping with principles of justice and equity, must be balanced.

I am well aware of the situation my colleague has referred to with respect to controlled security areas in ports. There are discussions on this going on at the present time among the unions. It is not easy to authorize a security standard. We will have to see the preliminary versions tabled by the government in order to know what kind of investigation it subjected current port employees to. If it were a little less right-wing, this matter would have been settled a long time ago, and an agreement would have been reached. That is, however, not the case as yet.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, I rise today with pride to support the bill on behalf of our caucus and our leader.

The bill before us is Bill S-2, An Act to amend the Customs Act. We are very pleased to support the movement forward of the bill, because we have examined its provisions carefully, and although we have some small concerns, which I will itemize later in my speech, fundamentally it is a sound bill that will do much to both preserve security at our borders and enhance the movement of goods and people through those borders.

The bill really does a number of things. It provides legislative changes that are needed to provide a lawful basis for and allow the full implementation of previously approved key programs. These amendments will strengthen risk assessment, enforcement, trade facilitation and security.

The bill also embraces a number of technical and housekeeping changes that are required to implement the programs that I mentioned earlier, which have been put in place in the past several years.

The bill contains key amendments that provide a concrete response to a number of security concerns noted in the October 2007 report of the Auditor General.

The Canada Border Services Agency employs three fundamental strategies for managing the border. One is pre-approval programs. These programs are to expedite the movement of low-risk goods and people and to allow for strategic focus of resources on people and goods of higher and unknown risk. By focusing on the latter, we can more easily, quickly and with less interruption expedite the flow of the former.

The second strategy is advance information. The bill is intended to help stop threats before they reach our borders and to facilitate border processes for legitimate trade and travel.

The third is to turn information into intelligence. Because the Border Services Agency relies on sophisticated risk assessment systems based primarily on modern technology and techniques and the expertise and experience of employees at home and abroad, we need to ensure that they have the tools and the legal framework to allow them to carry out this important task.

The first major area where the bill improves Canada's border efficiency and security has to do with the new e-manifest system, which is really a commercial information system that will require carriers of goods and people coming into Canada to transmit that information in advance of coming into our country. That will provide our Canada Border Services Agency personnel with the ability to make more informed risk assessments, and conversely, allow through our borders the more free movement of people and goods that do not really present a risk to our country.

The current program, which is being amended by the bill, requires the owner or person in charge of the conveyance of air and marine modes to provide commercial information electronically prior to entering Canada. The regulations that we are proposing address the time, manner and data requirements, to require all links in the import trade chain to provide CBSA with this advance information. In other words, not just the owner or person in charge of the conveyance, but all links in the import trade chain will be required to furnish information in advance.

The rationale for this is that by providing advance electronic data, CBSA will be able to better target high-risk shipments while streamlining the entry of low-risk shipments. Without the amendment, compliance at present is on a voluntary basis.

Electronic reporting would also remain streamlined and timely, reducing the dependency on paper filing, and this is demonstrative of the commitment to sustainable development.

Many of the commercial carriers in our country, customs brokers and importers, would be able to more efficiently move their goods through our country's borders. Because they will be able to file their information electronically, it will be quicker and better for our environment.

I am happy to say that there have been external consultations. The source of focus in the committee's study of this bill was to ensure that the people who would be most affected by this change both understood the changes and that their views and ideas were taken into consideration. I am pleased to say that was done.

Trade chain partners in marine, air, highway, rail, importing, freight associations and brokers involved in various stages of the import chain have all been informed and consulted about this bill. We in the New Democratic Party will work to continue to ensure that the trade community will be consulted throughout the design, development and implementation of this project.

The second major area that this bill pays attention to has to do with the creation of what are called customs controlled areas. The current legislation designates customs controlled areas to be secure areas controlled by CBSA where international uncleared goods or persons may come into contact with domestic goods or persons, such as, for example, in airport lounges or areas on airport tarmacs.

Border officers currently have the authority to only question and search individuals when they are at exit points. In other words, all persons leaving a customs controlled area must report to a border services officer. The proposed amendment in this bill would retain the customs controlled areas and would not expand the powers of the Canada Border Services agents whatsoever.

What it would do is provide officers with the authority to stop, question and potentially search individuals within the customs controlled areas, not just at exit points. People would still be obligated to report to Border Services officers upon request but it would remove the onus on all persons to report upon exiting the area because now the officers would have the clear legal authority to stop people.

The reason we believe this amendment is a positive step is in areas where there are domestic workers, domestic goods or even domestic citizens coming into contact with international passengers or goods, there is the potential for security breaches. If people are entering and exiting these areas many times a day, taking the example of workers going in and out of customs controlled areas, it is simply beyond the resources of CBSA to follow and question those people each and every time they exit the area. It is a more efficient use of resources to grant the power to CBSA officials to stop higher risk or suspicious activity within the area.

This also would liberate people who go in and out of the area frequently from having to stop and report every time. It has a dual advantage, in my view. It both increases the efficiency and effectiveness of our CBSA officials and it is less of a burden on those who need to go into and out of customs controlled areas on a daily basis.

We also think these changes would improve the security at these points because testimony in committee indicated that it was these areas where conspiracies may develop. This is where people can meet within the customs controlled areas and potentially make arrangements that may allow for dangerous goods, services or people to travel in and out of our country. We think this is an important part of our security.

Once again, I want to make clear that there are no additional powers beyond what are currently given to the agents at our borders. It is simply a more effective means of delivering those powers.

This bill also contains other technical and housekeeping amendments, which I will not go through, but I will highlight some of them. There are amendments to valuation provisions that would make the act consistent with the WTO customs valuation agreement that Canada ratified in 1991.

There is a technical amendment to the advance passenger information personal name record program that would help clarify and make existing mandatory obligations for commercial carriers to provide passenger information electronically within prescribed time limits. Currently, there is no time limit on it. Carriers are required to provide that information prior to entering Canada or within a reasonable time of landing. These amendments would require that all information be provided prior to arrival in Canada, which would assist our personnel in processing the information and speeding up the process.

Language inconsistencies will be corrected, particularly with respect to ensuring that the French version of the legislation corresponds better with the English version.

I want to mention some of the concerns with this bill because the bill is not without its areas of concern. First, this bill does not delineate what exactly a customs controlled area is, rather, that is left to the discretion of the minister, which is somewhat concerning. Parliamentarians will need to be vigilant to ensure that the way the minister designates these areas does not go beyond the purpose of the bill. There has been some suggestions that customs controlled areas may include duty-free shops and, as was raised some time ago by my hon. colleague from Burnaby—Douglas, may be extended to parking lots.

We need to be vigilant to ensure that the areas are restricted to the bare minimum in order to attain the object of the bill, which is to control the areas where international and domestic persons and goods intersect at border and customs controlled areas.

Second, another area that is left to the minister's discretion is the minister's ability to exempt certain persons from the requirements to be stopped within customs controlled areas. I asked a question on that at committee to ensure I understood the rationale for that. The answer was that this was for perhaps diplomatic personnel or emergency personnel, like ambulance or medical personnel who are rushing to an emergency, those kinds of things.

However, that is another area where we must be vigilant to ensure is controlled. It does no good to say that people entering the customs controlled areas are subject to search and questioning and then to allow the minister to exempt classes of people. We need to be sure that list is small and carefully justified.

There were other areas of concern that we on the committee and in our party were vigilant to ensure were taken into account in this bill. We received assurances that the Charter of Rights and Freedoms would apply to people in these customs controlled areas so they would not be subjected to unreasonable searches and seizures. We wanted to ensure privilege would be respected. Many times lawyers travel through these areas and many of them have material that relates to their clients' privileged legal interests. We wanted to ensure their privilege was respected and that their material would not be subject to search and seizure.

We wanted to and did inquire into privacy concerns to ensure people's privacy interests were respected. I must say that is an area that is unclear at this point and, as parliamentarians, we must be vigilant to ensure the privacy interests of Canadians are respected in these areas, as they ought to be across our land.

We asked questions and ensured there would be plans to have proper training for all the CBSA officials, who may need to implement these broadened powers, to ensure they would be respectful of the issues that I just mentioned and effectuate their powers in a manner that is responsible and lawful.

We wanted to ensure, and did ask questions, that there would be adequate safeguards around the information or goods that are detained or seized. We wanted to ensure that the length of time the information or goods would be retained would be limited and that there would be restrictions on the disclosure of that information to third parties. We wanted to ensure the information would not be used for purposes beyond that for which it was garnered in the first place. We wanted to ensure information would be carefully controlled and, ultimately, disposed of, returned or destroyed so that it would not get out of the lawful possession of those who had an obligation to guard the privacy interests pertaining to that information.

Last, we wanted to ensure that the workers who had to work in customs controlled areas were informed of their rights and had their rights respected at all times in the implementation of this legislation.

Having said all of that, I want to congratulate the government for bringing forward this bill. We think it is measured and administratively well drafted legislation which, I might add, passed through committee with the unanimous support of all four parties. It is a model of how this Parliament can work when all four parties put aside their partisan differences and work together to try to provide solid, reasonable legislation.

I would like to congratulate all members of the committee from all parties who worked co-operatively and constructively to ensure the legislation was moved forward in an efficient, effective and logical manner.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I thank the member for informing the House about some of the committee considerations.

The points with regard to the charter and privacy issues are very relevant and I hope to make a few comments on those later this day.

My concern, which I raised earlier, and perhaps the member could give his perspective on it, is with the new clause 164.1(1), which states:

A regulation made under this Act may incorporate by reference any material regardless of its source and either as it exists on a particular date or as amended from time to time.

It is a little concerning to me when a regulation incorporates by reference a document that can be changed from time to time. It would make it onerous for any legislator, never mind the public at large, to properly understand what the law says. For example, often the Income Tax Act is incorporated in legislation directly rather than by regulation simply because it is a document that provides substantive guidelines. However, to have matters incorporated by reference in a regulation, which is promulgated by cabinet and never seen by this place, because we do not see the regulations until after the bill has already passed, it leaves, in my view, a grey area in which the intent of the legislation may be stretched or even violated by a matter in a regulation that incorporates some other document, whatever it might be, by reference. It makes the legislation more cumbersome in my view.

I am wondering if the member could share with us whether the committee had some concerns about this and whether he is aware of why matters, which are--

[The Deputy Speaker, Andrew Scheer]

The hon. member for Vancouver Kingsway.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, that is an astute observation. Indeed, there was concern raised by the committee about incorporation by reference and we questioned that.

Incorporation by reference is a legal drafting tool. This tool allows for a regulation to include material contained in another document, without the necessity of reproducing that document word for word within the text of the regulation itself. A specific example, when we questioned the need for that, came up in the customs context.

Under section 13.2 of the reporting of imported goods regulations, the owner or person in charge of a vessel must send certain information to the CBSA by electronic means and it specifies that the information must be sent in accordance with the technical requirements, specifications and procedures for electronic data interchange sent out in the electronic commerce client requirements document. That document is internally produced by CBSA and it provides for technical requirements for electronic data exchange with the CBSA. It is published in both official languages and it is amended from time to time. That is an example where we do not want to have to reproduce that entire document in the text of the legislation.

That was the example used as to why we would want to incorporate by reference and to have that regulatory power in the bill.

We were assured that material which would be incorporated by reference would be reviewed by the Department of Justice in a manner similar to a draft regulation. It would be carefully reviewed for adherence to the law, generally, and, particularly, with the Charter of Rights and Freedoms.

I believe my friend is quite correct in saying that we must be vigilant to ensure and watch how that power is exercised. If it is exercised inappropriately or irresponsibly, we may have to revisit this and remove that power.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Mr. Speaker, I was heartened by the member's comments about how well the committee works together. This is a minority Parliament and that is exactly how these committees should work, unlike in the last Parliament, where there was a lot of acrimony. I think maybe we are moving forward when we can work together as a group and get things done for the people of Canada.

I note that the Auditor General did a report on the Canada Border Service Agency and found that the border services officers did not a have a clear authority to search for or seize counterfeit goods, which is an emerging area and a very large area. She states:

The Agency has established policies and procedures; however, at certain crossings, we noted poor control over the administration and handling of seized goods, such as alcohol and firearms.

Bill S-2 includes requirements pertaining to advanced information and expanded search powers for officers. Would these requirements lead to decreased amounts of dangerous and illicit goods entering Canada through customs controlled areas?

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, I want to take this opportunity to thank the hon. member for Elmwood—Transcona for the wonderful work he does on behalf of his constituents, in particular, he is always concerned about the rights of individuals and consumers in our country.

In short, it appears the bill would not change the powers of CBSA officers to question and search people through these amendments. Their powers would remain exactly the same. The only change would be at what point they would exercise those powers.

Again, at present, anybody exiting a customs controlled area is subject to questioned and searched. All this would do is allow the officers to apply that power within the customs controlled area, which would be a more intelligent and targeted use of that power.

With respect to the very intelligent question about whether this would increase the ability to interdict substances or goods, that remains to be seen. However, it is our hope that these powers will be exercised in a manner that will result in more safety and in the interdiction of goods and people that ought not to be entering our country.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, could the member advise the House what the actual definition of a customs-controlled area is in the Customs Act right now?

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, I do not know what the current definition is. I do know the current act, which incorporates and uses the term customs-controlled areas, does not have a definition. This is an area of concern.

As I mentioned, it is one of the concerns raised by the committee because the definition of that designation is left to the discretion of the minister. It behooves all of us a parliamentarians to keep a close eye on how that designation is used. If it appears it is being expanded in a manner that is inappropriate or irresponsible, which is always a possibility with the government, then we have a parliamentary duty to rein that in and make changes to the legislation if that proves necessary.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Mr. Speaker, I have a follow-up question for the hon. member. Clause 10 of the bill would allow an officer to search any person who would be in or would be leaving a customs-controlled area if the officer suspected, on reasonable grounds, that the person had secreted on or about his or her person anything in respect to which the Customs Act or the regulations would be or might be contravened, or anything that would provide evidence of a contravention of any federal law prohibiting, regulating or controlling importation or exportation.

How does this provision differ from existing provisions in the Customs Act? How will officers determine when a search within a customs-controlled area is warranted? Will the customs officers require additional training or resources to effectively implement this provision?

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, I will start with my hon. colleague's last question first. I think the answer is yes. CBSA officers will require additional training to ensure that they exercise their powers in a manner that is both effective and respectful of the rights of all people who are travelling through customs-controlled areas.

In answer to his first question, the change proposed in the legislation, vis-à-vis the current Customs Act, is the addition of the power to question and search people in the area. This is the important distinction to be made and the important—

[The Deputy Speaker, Andrew Scheer]

Resuming debate, the hon. member for Mississauga South.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I am pleased to offer some thoughts on Bill S-2, which originated in the Senate.

The bill would amend the Customs Act, clarify certain provisions and make technical amendments to others. It would also impose additional requirements in customs' controlled areas, amend provisions respecting the determination of value for duty and modify advanced commercial reporting requirements. The bill provides that regulations may incorporate materials by reference.

It is interesting to see how the debate has gone on. It started off with a member of the official opposition spending a bit of time dealing with the potential implications of border areas on the economy of Canada and a little review of the current economic climate and the financial position of the country right now, which members are concerned about, whether it be with regard to the size of deficits, the level of unemployment, the international difficulties, bailouts and the like.

Having allowed that discussion to take place for some 10 minutes provided a great opportunity to open up the entire debate to talk about the finances of the nation, but the bill is not about that. It is tangentially involved.

There was also an intervention by the parliamentary secretary, who gave us a little lesson about the Canada Border Services Agency. It is helpful for the public to understand that this agency has some responsibilities and they are very serious and onerous.

What caught my attention about the bill is the whole area of the regulatory environment and the expansion of the regulatory reach, which is being enabled by Bill S-2.

I was curious at the outset as to why the bill, which was introduced in the House in the last Parliament, was this time put through the Senate. I will be the first to admit that Senate committees do better work than House of Commons committees for no other reason than their members do not have constituency responsibilities as well as some of the political responsibilities of members of Parliament. Senators are not spread as thin and they can look at bills carefully, and I noted a couple of items senators raised.

The bill passed in the Senate on April 23, about a month ago. It received a quick second reading here and went to committee where it stayed for one day. To me, second reading of bills is an opportunity for a few members to participate in a debate and to talk about their views or about their knowledge, but without having the knowledge of any witnesses or experts to find out exactly what the stakeholders have to say about charter implications or privacy implications. Did the Privacy Commissioner appear? What do airport authorities have to say about this? How do they feel about the changes that are being proposed to the Customs Act?

There is a major implication in Bill S-2 with respect to the way the Customs Act operates and the latitude that people will have. It touches very closely on charter rights, on personal information and electronic documents and on the facilitation of trade activity across our border. Bill S-2 touches on a lot of things, but committee had only one day to discuss it.

The committee met on May 26 and it reported today.

That raises the question about why the committee did not look more carefully at some of the substantive questions that have come up. I do not know why there were not the kinds of witnesses that would be necessary to expose risk areas. The previous speaker was a member of the committee, and I asked him a simple question: What is the definition of a customs controlled area? He was not aware. That definition is in the current Customs Act. I do not happen to have it with me.

There was a speech given earlier this day by a member who mused about whether or not a customs controlled area would include an airport parking lot, or certain other areas as opposed to what we would normally consider to be the customs area, where there are officers and people would be taken to be asked questions. Another question had to do with duty free shops which are customs controlled areas. Duty free shops are in the main part of an airport where the public is going.

This is sloppy. I hate to say it, but this is a sloppy approach to a bill that may have some consequences. When I rose to ask a question earlier, I asked about an area that I spent a lot of time on. It has to do with regulations. I am still not aware of the discussions and I have not had an opportunity to look at the discussions at Senate committee. There is a new section being added to the Customs Act, new section 164.1(1), which states:

A regulation made under this Act may incorporate by reference any material regardless of its source and either as it exists on a particular date or as amended from time to time.

Leaving out the time element, it says very simply that the regulation may incorporate any material regardless of its source. I was astounded when I read that. There are no restrictions. A regulation can incorporate anything. Why would a document be incorporated by reference? Take the example of legislation regarding a tax credit for people who buy tools. There may be an incorporation of the Income Tax Act by reference so that if people wanted to see the kinds of tools that would qualify, they could refer to that document. There is more detail. It is for clarification.

This new section that will go into the Customs Act says “any” document. From a lay perspective, I guess people would say that if there is a piece of legislation called the Customs Act, they can read it and see what the powers are. They can go to the regulations and see those. Members will know that we do not see the regulations on any act until after we have passed the legislation and it has received royal assent. Regulations are made by order-in-council.

This new section goes on to say that those regulations that we do not see until after we have given royal assent to a bill can incorporate by reference any other material. How is a stakeholder or interested party to understand the substantive point of a clause of a bill or an act like the Customs Act without seeing the regulations if they need some clarification? Now it has this other element of incorporation by reference of any other material.

If people are wondering whether or not they are going to be in compliance with the law, they are now almost forced to go to the regulation to see what documents or materials are incorporated by reference and then they are going to have to find those materials to see whether it is in context.

This is a very strange addition. I understand that the matter came up at the Senate committee. There were concerns raised. Here we are at third reading and I have heard a couple of speakers also raise some concerns. There are still outstanding questions about what constitutes a customs controlled area. This problem of the incorporation of any other materials that they want is still a concern. Are there still concerns about privacy? Are there still concerns about charter rights of individuals? Are there concerns about the impact of the authority that is going to be expanded and passed on to customs officers that may have some impact on the flow not only of goods and materials, but also of people? This is part of the economic equation.

Here we are at third reading. We still have questions. The House is not quite sure whether or not a customs controlled area includes the parking lot of an airport. The Greater Toronto Airport Authority has opined on this. It supports the bill. The GTAA supports the bill and feels that it will provide border services officers with the flexibility, and I stress flexibility, to examine goods and question and search people anywhere within customs controlled areas. Under the current Customs Act, the Canada Border Services Agency is only able to exercise this authority at exit points.

It is kind of broad. The Canadian Airports Council also is supportive and indicates that when it was first introduced, trade lawyers expressed concern with parts of the Bill S-2 that it might allow the government to pass regulations regarding what information or advanced data elements would need to be provided by exporters prior to the arrival of goods into Canada without much consultation. The council is concerned also with the extent of the information that will be required and how the requirements to gather and provide the information will affect exporters' trade with Canada.

This is very, very significant. The response of the GTAA and of the Canadian Airports Council about how this is going to impact the flow of people, the flow of goods. The bureaucratic requirement now is almost open-ended. It is almost as if all of a sudden those who have goods or services or other trade matters which come through border areas, or people, may now be exposed to a whole bunch of onerous requirements.

It raises the spectre I have asked businesses on many occasions. What can we do so that they can do more business and be more successful? Time and time again, they want us to reduce the bureaucratic involvement, the paper requirements, the disclosure requirements, the forms, the reporting. All of these things are very important, but the bill opens it wide where advance reporting requirements may bog the system down. It is going to have some implications.

This morning I was at the meeting of the Standing Joint Committee on the Scrutiny of Regulations. It is one of the least known committees in Parliament, but it has an important responsibility.

As I indicated earlier, when a bill comes before us, the House deals with it at second reading. It goes to committee. It comes back, perhaps with report stage amendments. We have third reading debate and a vote. When it passes here, it goes to the Senate and basically goes through the same process.

If a bill indicates that the minister may make regulations in certain areas, and this bill does, members of both houses have debated and discussed all their concerns without seeing the regulations. There is legislation that was given royal assent four years ago which still has not got the regulations in place. Many of the clauses in that particular bill are still not enforced because it is waiting for regulations.

It is so bad that a Senate private member's bill actually passed in this place which says that if a bill does not get royal assent or items are not proclaimed and enacted within 10 years, they will sunset. They will die. It happens; that is the reality.

Now we have a situation in this bill where the regulations are expanding the horizons by permitting incorporation of materials, any material, by reference. It will make it more difficult for people to understand what the law really says. It is the responsibility of the Standing Joint Committee on the Scrutiny of Regulations to be vigilant and to look at the regulations as they are gazetted to make sure that those regulations clarify or provide the additional information so that people understand what the clauses in the bill say.

There can be no regulations that are not enabled by the legislation. The legislation itself must have clauses that say that the minister can make a regulation to amplify or clarify the details. For instance, if there is a tax credit for tools, in the regulations there might be a list of the kinds of tools that would be eligible for a tax credit. That would be an example of a regulation doing what it should.

What has been happening for a long time is something called backdoor legislation. It is in fact putting into regulations intent or activities which have not been specifically enabled in the legislation. It means that the House of Commons and the Senate can do all their work, but once the bill passes and it gets royal assent, it then goes into the hands of cabinet. It is cabinet that does the regulations. Those regulations start to creep and have a broader implication to the bill. If we look at the regulations, our understanding of what the clause in the bill actually says may be different. It should not be. It should be the other way around. There should be no surprises in regulations.

I have some grave concerns about this. I do not think there is anything I can do about it. I will say that the potential implications concern me. It concerns me that the committee seems to have given it fairly short shrift. That is problematic. There are potentially some sweeping implications of this. There have been some assurances given with regard to the charter issues and privacy issues. I would have had a greater comfort level if the representatives from the Office of the Privacy Commissioner had been there to give their view to the committee about the privacy considerations, because if a customs controlled area is much broader than we think it is, the public could be subjected to questions on any matter that someone has a reasonable suspicion to think might affect the Customs Act.