Customs Act 1901 Amendment of Guidelines Instrument No. 1 of 2011 (Cth)
COMMONWEALTH OF AUSTRALIA
AMENDMENT OF GUIDELINES INSTRUMENT NO. 1 OF 2011
AMENDMENT OF INFRINGEMENT NOTICE GUIDELINES (2010)
CUSTOMS ACT 1901
I, MICHAEL JOSEPH CARMODY, Chief Executive Officer of Customs, pursuant to subsection 243XA(1) of the Customs Act 1901 and subsection 33(3) of the Acts Interpretation Act 1901 approve the amendments, as set out in Schedule 1 to this instrument, to the “Infringement Notice Guidelines (2010)”.
This instrument commences on the commencement of Schedules 1 and 2 to the Customs Amendment (Export Controls and Other Measures) Act 2011.
Dated: 21 November 2011
MICHAEL JOSEPH CARMODY
Chief Executive Officer of Customs
SCHEDULE 1 – AMENDMENT OF INFRINGEMENT NOTICE GUIDELINES (2010)
Initials: MC
Date: 21/11/11
[1] Heading 1.2
After “Chief Executive Officer” insert “of Customs”
[2] Subheading 1.2.1
After “and 243V” insert “of the Customs Act 1901”
[3] Subheading 1.2.3
Omit “From 14 January 2004, under sections 243U and section 243V (2), where a false statement is made”, substitute “Where a false statement is made”.
[4] Subheading 1.2.3
Delete the paragraph beginning with “The Customs Act as is force before 14 January 2004…”
[5] Subheading 1.2.6
Omit “From 14 January 2004, section 243T”, substitute “Section 243T”
[6] Subheading 1.2.6
Delete the paragraph beginning with “From 14 January 2004, section 243T…” and the paragraph beginning with “The Customs Act as is force before 14 January 2004…”
[7] Subheading 3.1.1 Table
After the row referring to subsection 74(6) insert the following rows
| 77R(1)*** | Breach of conditions of depot licence |
| 77Y(4)*** | Failure to comply with directions |
| 82C(1)*** | Breach of conditions of a warehouse licence |
[8] Subheading 3.1.1 Table
After the row referring to subsection 102A(4) insert the following row
| 112D(2)*** | Failure to comply with directions |
SCHEDULE 1 – AMENDMENT OF INFRINGEMENT NOTICE GUIDELINES (2010)
Initials: MC
Date: 21/11/11
[9] Subheading 3.1.1
Delete reference to footnote “4” in the second sentence of the first paragraph after the words “section 243X”,and the associated footnote.
[10] Subheading 3.1.1 – After Table
Omit the paragraph commencing with “** These offences commenced on 22 November 2009”, substitute “** These offences commenced on 22 November 2009. An administrative moratorium applied to the serving of infringement notices for these offences that occur before 1 July 2010. Refer to Appendix B for further details on the moratorium.”
[11] Subheading 3.1.1 – After Table
After the paragraph commencing with “** These offences commenced on 22 November 2009” insert the following new paragraph:
“*** These offences commenced on 28 November 2011. An administrative moratorium applies to the serving of infringement notices for these offences that occur before 01June 2012. Refer to Appendix B for further details on the moratorium.”
[12] Heading 3.2
Delete the fourth bullet point and its contents
[13] Heading 3.2
After the final bullet point, insert the following:
“Direction given under section 21 of the Aviation Transport Security Act 2004, or a special security direction (Section 77R) (within the meaning of section 9 of that Act).”
[14] Subheading 3.2.4
Delete the subheading and its contents
[15] Subheading 3.2.5
Renumber the subheading as 3.2.4
SCHEDULE 1 – AMENDMENT OF INFRINGEMENT NOTICE GUIDELINES (2010)
Initials: MC
Date: 21/11/11
[16] After renumbered subheading 3.2.4
Insert the following subheading and contents
3.2.5 “Directions given under the Aviation Transport Security Act and special security directions (Section 77R)
A holder of a depot licence may be required to comply with a direction given under section 21 of the Aviation Transport Security Act 2004, or a special security direction (within the meaning of section 9 of that Act) that may be contrary to the conditions of their depot licence.
An offence in section 77R in relation to the holder of a depot licence breaching the conditions of the licence may not apply in certain circumstances where the offence occurred as a result of compliance, or attempted compliance, with special security direction or direction under the Aviation Transport security Act.
Exception applies
When ALL of the following apply:
The holder of the depot licence was subject to a direction that was given under section 21 of the Aviation Transport Security Act 2004, or a special security direction; and
The breach only occurred as a result of the holder’s compliance, or attempted compliance, with the direction.
Exception does not apply
When ANY of the following apply:
· The holder of the depot licence was NOT subject to direction given under section 21 of the Aviation Transport Security Act 2004, or a special security direction; or
· The direction issued was not contrary to any depot licence condition; or
· The holder of the depot licence did not attempt to comply with a direction given under section 21 of the Aviation Transport Security Act 2004, or a special security direction; “
SCHEDULE 1 – AMENDMENT OF INFRINGEMENT NOTICE GUIDELINES (2010)
Initials: MC
Date: 21/11/11
[17] Heading 3.3
In the third paragraph, delete the fifth bullet point and its contents
[18] Subheading 3.3.1
In the fourth and fifth bullet points under Indicators for not serving and infringement notice, omit “less” and substitute “fewer”
[19] Subheading 3.3.2
Delete the paragraph in brackets commencing with “(* For section 234T..”
[20] Subheading 3.3.2
Under Consideration of difficulties beyond a Cargo Reporter’s control, in the first paragraph, omit “Australian Customs Notice 2007/03 (ACN 2007/03) sets out the compliance approach which” and substitute “Customs and Border Protection”
[21] Subheading 3.3.3
In the second and third bullet points omit “oral” and substitute “verbal”
[22] Subheading 3.3.5
Delete the subheading and its contents
[23] Appendix A Subsection 64AB(10) – failure to meet reporting requirements for the report of cargo
Under the heading Exemptions, delete the second paragraph commencing with ‘If a cargo reporter..”.
[24] Appendix A Subsection 64AB(10) – failure to meet reporting requirements for the report of cargo
Delete the heading Moratorium and its contents
SCHEDULE 1 – AMENDMENT OF INFRINGEMENT NOTICE GUIDELINES (2010)
Initials: MC
Date: 21/11/11
[25] Appendix A
Before “Subsection 99(3) – delivery of goods for export” insert the following:
“Subsection 77R(1) Breach of conditions of depot licence
When is an offence committed?
An offence is committed if:
a)the person is a holder of a depot licence; and
b)the depot licence is subject to conditions set out in sections 77N, 77P or imposed or varied under 77Q; and
c)the person breached a condition of their licence.
Who commits the offence?
The depot licence holder
When is an offence not committed?
An offence is not committed if:
a)the holder of a depot licence breaches a condition of their licence, and
b)the breach only occurred because the holder of the licence was complying with a direction given under section 21 of the Aviation Transport Security Act 2004, or a special security direction (within the meaning of section 9 of that Act)
SCHEDULE 1 – AMENDMENT OF INFRINGEMENT NOTICE GUIDELINES (2010)
Initials: MC
Date: 21/11/11
Subsection 77Y(4) Collector may give directions in relation to goods subject to Customs control
When is an offence committed?
An offence is committed if:
a)a Collector gives a written direction under subsection 77Y(1); and
b)the direction was for:
· the protection of the revenue; or
· the purpose of ensuring compliance with the Customs Acts or any other law of the Commonwealth or of a State or Territory prescribed by the regulations; and
c)the direction was given to;
· the holder of a depot licence, or
· a person participating in the management or control of the depot;
in relation to goods in the depot that are subject to the control of Customs; and
d)the person refused or failed to comply with the direction.
An offence is committed if:
a)a Collector gives a direction under subsection 77Y(3) in relation to the controlled goods to any person in the depot; and
b)the direction is for:
· preventing interference with controlled goods in a depot; or
· preventing interference with the exercise of the powers or the performance of the functions of a Collector in respect of a depot or of controlled goods in a depot; and
c) the person refused or failed to comply with the direction.
Who commits the offence?
a)under subsection 77Y(1), the holder of a depot licence, or a person participating in the management or control of the depot;
b)under subsection 77Y(3), any person in the depot.
Note Section 77Y does not limit the directions that a Collector may give under section 112C.
SCHEDULE 1 – AMENDMENT OF INFRINGEMENT NOTICE GUIDELINES (2010)
Initials: MC
Date: 21/11/11
Subsection 82C(1) Breach of conditions of a warehouse licence
When is an offence committed?
An offence is committed if:
a)the person is a holder of a warehouse licence; and
b)the warehouse licence is subject to a condition under section 82 or 82A (including a condition varied under subsection 82(5) or section 82B); and
c)the person breached a condition of their licence.
Who commits the offence?
The warehouse licence holder.”
[26] Appendix A
Before “Subsection 113(1) – failure to enter goods for export and loading/exporting without authority to deal” insert the following:
“Subsection 112D(2) Compliance with a direction given under section 112C
(112C - Collector may give directions in relation to goods for export etc. that are subject to Customs control)
When is an offence committed?
An offence is committed if:
a)a Collector gives a written direction to a person who:
· made the export declaration in relation to the goods; or
· is the owner of the goods; or
· is the person apparently in charge of the place, or part of such a place and if the goods are in a place prescribed for the purposes of section 30(1)(d) or (e); or
· is the person who takes delivery of the goods at a wharf or airport; or
· is the person engaged to load the goods on a ship or aircraft; and
b) the direction is to move or not move, or about the storage of, goods for export that are subject to the control of Customs; and
SCHEDULE 1 – AMENDMENT OF INFRINGEMENT NOTICE GUIDELINES (2010)
Initials: MC
Date: 21/11/11
c) the direction is for the protection of the revenue or the purpose of ensuring compliance with the Customs Acts, any other law of the Commonwealth prescribed by the regulations or a law of a State or Territory prescribed by the regulations; and
d)the person refuses or fails to comply with the direction.
Who commits the offence?
The person who;
a)made an export declaration in relation to the goods or the owner of the goods; or
b)is apparently in charge of the place, or part of such a place (if the goods are in a place prescribed for the purposes of section 30(1)(d) or (e)), or
c)takes delivery of the goods at a wharf or airport, or
d)is engaged to load the goods on a ship or aircraft.
Note Section 112C does not limit the directions that a Collector may give under section 77Y.”
[27] Appendix B
Omit the second paragraph and substitute the following:
“The Customs Amendment (Export Controls and Other Measures) Act 2011 has inserted new strict liability offences that are subject to the INS and has included two existing offences in the INS. Consistent with earlier administrative moratoriums, to allow a smooth introduction of these new offences, an administrative moratorium is also proposed for these new offences.”
[28] Appendix B, Section A
In the paragraph, delete all the words after “1 July 2002” to the end of the paragraph.
[29] Appendix B, Section B
Delete paragraph 2 and the sentence immediately before the heading to Table 2.
[30] Appendix B, Section B
Delete the paragraph and the sentence immediately before the heading to Table 3.
SCHEDULE 1 – AMENDMENT OF INFRINGEMENT NOTICE GUIDELINES (2010)
Initials: MC
Date: 21/11/11
[31] Appendix B, Section B, heading to Table 3
Omit “applies” and substitute “applied”.
[32] Appendix B, Section C
Delete paragraph 2 and the sentence immediately before the heading to Table 4.
[33] Appendix B, Section C, Table 4
After table item 2, insert the following row:
| 64AB(10) | failure to meet regulatory requirements for the report of cargo |
[34] Appendix B, Section C
Delete the paragraph and the sentence immediately before the heading to Table 5.
[35] Appendix B, Section C, heading to Table 5
Omit “applies” and substitute “applied”.
[36] Appendix B, Section D
Delete paragraph D and its contents.
[37] Appendix B, Section E
Omit the indented wording under the first paragraph and substitute the following:
“Infringement notices were NOT to be served and prosecutions NOT to be brought for offences referred to in table 6 that occurred before 1 July 2010.”
[38] Appendix B, Section D,
Delete the sentence immediately before the heading to Table 6.
[39] Appendix B, Section D, heading to Table 6
Omit “applies” and substitute “applied”.
SCHEDULE 1 – AMENDMENT OF INFRINGEMENT NOTICE GUIDELINES (2010)
Initials: MC
Date: 21/11/11
[40] Appendix B, Section E
Renumber as section “D”.
[41] Appendix B
At the end of Appendix B, insert the following:
“E. Provisions subject to the INS from 28 November 2011
The offence provisions listed in tables 7 and 8 commenced on 28 November 2011.
·Infringement notices will NOT be served for offences referred to in table 7 that occur before 1 June 2012.
·Prosecutions MAY be brought for offences referred to in table 7 under existing provisions.
Table 7: Existing offences made subject to the INS with a commencement date of 28 November 2011 and a moratorium applies to the issuing of infringement notices for offences occurring before 1 June 2012.
| Subsection | Description |
| 77R(1) | Breach of conditions of depot licence |
| 77Y(4) | Failure to comply with directions |
Infringement notices will NOT be served and prosecutions will NOT be brought for offences referred to in table 8 that occur before 1 June 2012.
Table 8: Offences that commenced on 28 November 2011 and a moratorium applies to infringement notices and prosecutions for offences occurring before 1 June 2012.
| Subsection | Description |
| 82C(1) | Delivery of goods for export |
| 112D(2) | Compliance with a direction given under section 112C |
SCHEDULE 1 – AMENDMENT OF INFRINGEMENT NOTICE GUIDELINES (2010)
Initials: MC
Date: 21/11/11
[42] Appendix C
At the end of Appendix C, insert the following:
“CUSTOMS ACT 1901
INFRINGEMENT NOTICE
(Section 77R(1) or 82C(1))
Infringement Notice Number
Penalty Record Number
This notice is served on behalf of the Chief Executive Officer of Customs and Border Protection (the CEO).
I, Delegate Name, delegate of the CEO, after having regard to the Infringement Notice Guidelines for Subdivision A of Division 5 of Part XIII of the Customs Act 1901, have reasonable grounds to believe that the person named below has committed the offence(s) detailed below.
…………………………………………………… ………… ………………………
Signature of Delegate Region Dated
| Name | Address Client Address Address of person or persons |
Nature of alleged offence:
This notice is for an alleged offence against offence provision
Details of offence:
Date: Date of the Offence (extract from Penalty details screen Date of Offence)
Time: Time of the Offence (if known) (extract from Penalty details screen Time of Offence)
| Premises Type | Premises Code | Licence Conditions |
| Extract from Offence Provision screen – Premises Type | Extract from Offence Provision screen – Premises Code | Licence Conditions |
Penalty payable under this notice
Penalty amount in words $penalty amount
SCHEDULE 1 – AMENDMENT OF INFRINGEMENT NOTICE GUIDELINES (2010)
Initials: MC
Date: 21/11/11
Reasons for serving infringement notice
Insert delegate reason
If you do not wish this matter to be dealt with by a court, you may pay the penalty amount in this notice to the Chief Executive Officer of Customs and Border Protection within 28 days (excluding Sundays and public holidays) of receiving this notice. If the penalty is paid within 28 days of service of the notice then you cannot be prosecuted for the alleged offence and will not be regarded as having been convicted of the offence.
The penalty amount in this notice is 20% of the maximum amount of $Prosecution Amount that a court could impose if the matter was prosecuted.
You may make written representation to the CEO seeking the withdrawal of this notice.
Further information about your rights and obligations is attached.
What to do if you receive an infringement notice from Customs and Border Protection
Do I have to pay the penalty in the notice?
You are not obliged to pay the penalty amount specified in the notice.
What happens if I do pay?
If:
within 28 days of service of this notice you pay the penalty amount and the notice is not withdrawn,
then
any liability for the offence is discharged;
Customs and Border Protection cannot prosecute you for the offence; and
you are not regarded as being convicted of the offence.
What happens if I don’t pay?
If you do not pay the penalty amount in the notice, Customs and Border Protection can prosecute you for the offence. If convicted, the court could impose the maximum amount for the offence – not just the amount of the infringement penalty.
Can I seek the withdrawal of an infringement notice?
The person named in the notice may write to the Chief Executive Officer seeking the withdrawal of an infringement notice. You must say why the notice should be withdrawn.
SCHEDULE 1 – AMENDMENT OF INFRINGEMENT NOTICE GUIDELINES (2010)
Initials: MC
Date: 21/11/11
Customs and Border Protection will write to you telling you whether the notice has been withdrawn. We will also tell you if the time for payment of the penalty has been extended.
If the notice is not withdrawn, then you may still pay the penalty. You may also refuse to pay the penalty.
If the penalty in this notice is paid and the notice is then withdrawn, the Chief Executive Officer will repay the amount paid.
How can I pay the amount in the infringement notice?
Payment of the penalty notice may be made at the Customs and Border Protection Office – located at (address details here). Payment may be made by cash or cheque (made payable to the Australian Customs and Border Protection Service).
How can I get an extension of time to pay?
Contact Customs and Border Protection – the details are provided below.
Contact details
| If you need more information contact: | Australian Customs and Border Protection Service |
[43] Appendix D, Table
After the row referring to subsection 74(6) insert the following rows:
| 77R(1) | breach of conditions of depot licence | $1100 (10 penalty units) | $5500 (50 penalty units) |
| 77Y(4) | failure to comply with directions | $1100 (10 penalty units) | $5500 (50 penalty units) |
| 82C(1) | breach of conditions of a warehouse licence | $1100 (10 penalty units) | $5500 (50 penalty units) |
[44] Appendix D, Table
After the row referring to subsection 102A(4) insert the following row:
| 112D(2) | failure to comply with directions | $1100 (10 penalty units) | $5500 (50 penalty units) |
END OF SCHEDULE
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