EXPLANATORY STATEMENT
CEO Instrument of Approval No. 1 of 2011
Customs Act 1901
Subsection 4A(1) of the Customs Act 1901 (the Act) defines an approved form as a form that is approved, by instrument in writing, by the Chief Executive Officer of Customs (the CEO). Subsection 4A(1A) of the Act defines an approved statement as a statement that is approved, by instrument in writing, by the CEO. Subsection 4A(2) of the Act provides that the instrument by which a form or statement is approved is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. Under paragraph 6(d) of the Legislative Instruments Act 2003, approved forms are legislative instruments.
Background
Section 119AA of the Act sets out the circumstances in which permission can be sought and granted to move, alter or interfere with goods for export that have been entered for export and in relation to which an authority to deal is in force. Previously, under this section, such an application could only be made electronically. Instrument of Approval No. 15 of 2004 approved the “APPLICATION FOR PERMISSION TO MOVE, ALTER OR INTERFERE WITH EXPORT GOODS UNDER CUSTOMS CONTROL” No. B961 (AUG 2004)) as an approved statement for the purposes of applying to Customs electronically, for permission to move, alter or interfere with goods in accordance with sections 119AA.
Item 5 of Schedule 1 to the Customs Amendment (Export Controls and Other Measures) Act 2011 amended subsection 119AA(3) to also allow such an application to be made by document. The documentary application must be in an approved form.
The new “APPLICATION FOR PERMISSION TO MOVE, ALTER OR INTERFERE WITH EXPORT GOODS UNDER CUSTOMS CONTROL” B959 (Nov 2011) has been approved as the new documentary and electronic application form and statement under section 119AA.
Item 8 of Schedule 1 to the Customs Amendment (Export Controls and Other Measures) Act 2011 amended the Act to introduce a new permission regime in relation to goods that have been entered for export but are no longer for export. These goods will be subject to Customs control under new paragraph 30(1)(e) of the Act and under new section 119AB, permission can be sought and granted to move, alter or interfere with such goods. Such an application can be made by document or electronically.
The new “APPLICATION FOR PERMISSION TO MOVE, ALTER OR INTERFERE WITH EXPORT GOODS UNDER CUSTOMS CONTROL” B959 (Nov 2011) has been also approved as the new documentary and electronic application form and statement under new section 119AB.
Instrument of Approval
CEO Instrument of Approval No. 1 of 2011 approves the “APPLICATION FOR PERMISSION TO MOVE, ALTER OR INTERFERE WITH EXPORT GOODS UNDER CUSTOMS CONTROL” B959 (Nov 2011) as an approved form and an approved statement for the purposes of applying to Customs, by document and electronically, for permission to move, alter or interfere with goods in accordance with sections 119AA and 119AB of the Act.
Consultation
Further to previous public consultation (refer ACN No. 2011/04) in relation to the Customs Amendment (Export Controls and Other Measures) Act 2011, Customs and Border Protection subsequently sought comments from internal and external stakeholders on the proposed business processes implementing the legislative changes to export controls. These processes include the use of the B959 form and statement.
As part of this consultation process, a letter detailing the legislative changes and a draft Fact Sheet with an overview of the proposed business processes were distributed directly to relevant industry representatives on 6 September 2011. The documents were also posted on the Customs and Border Protection website for public comment by 16 September 2011.
The Fact Sheet specified the purposes and usage of the B959 as approved form and an approved statement for the purposes of applying to Customs, by document and electronically, for permission to move, alter or interfere with goods in accordance with sections 119AA and 119AB of the Act.
No adverse comments were received in relation to the B959.
Commencement
This instrument commences on the commencement of Schedules 1 and 2 to the Customs Amendment (Export Controls and Other Measures) Act 2011. These Schedules will commence by Proclamation.
Overview
The Customs Amendment (Export Controls and Other Measures) Act 2011 was enacted to enhance the regulatory framework surrounding the export of goods from Australia by introducing new permission regimes and refining existing processes. This legislation aims to address the need for greater control and oversight over export goods, particularly those that are no longer intended for export but remain under Customs control. The Act was passed by the Parliament of Australia and seeks to streamline the application process for permissions to move, alter, or interfere with such goods. CEO Instrument of Approval No. 1 of 2011 complements this Act by approving a unified application form, the "APPLICATION FOR PERMISSION TO MOVE, ALTER OR INTERFERE WITH EXPORT GOODS UNDER CUSTOMS CONTROL" B959 (Nov 2011), for both documentary and electronic applications, thereby facilitating compliance with the new legislative requirements.
Scope and Application
The Customs Amendment (Export Controls and Other Measures) Act 2011 and CEO Instrument of Approval No. 1 of 2011 apply to entities and individuals involved in the movement, alteration, or interference with export goods under Customs control. This includes businesses, customs brokers, and other authorised persons seeking permission to handle such goods, whether they are being exported or have been reclassified as no longer intended for export. The geographic reach of this legislation is national, applying across Australia, as it pertains to the Customs Act 1901, which is a Commonwealth Act. The approved form and statement, B959, serve as the primary means for submitting applications either electronically or by document to the Customs and Border Protection for permissions under sections 119AA and 119AB of the Act. The approval of the B959 form and statement by the Chief Executive Officer of Customs ensures that all applications comply with the required legislative standards and processes. No specific exclusions, exemptions, or thresholds are mentioned within the scope of this legislation, but the application process and form approval are subject to the overarching provisions of the Customs Act 1901. The application of the Act can be further refined or extended through subordinate instruments, such as regulations or further approvals by the CEO of Customs.
Key Provisions
The CEO Instrument of Approval No. 1 of 2011 primarily addresses the approval of a new form and statement for applications related to moving, altering, or interfering with export goods under customs control. Section 119AA of the Customs Act 1901 has been amended to permit such applications to be made either by document or electronically, utilising the new “APPLICATION FOR PERMISSION TO MOVE, ALTER OR INTERFERE WITH EXPORT GOODS UNDER CUSTOMS CONTROL” B959 (Nov 2011). This form is approved for use under both sections 119AA and 119AB of the Act. The instrument ensures that the form meets the legal requirements for both documentary and electronic applications, providing a standardised process for seeking permission from Customs.
The obligations imposed by this Act on the parties or entities it governs include the requirement to use the approved form B959 when applying for permission to move, alter, or interfere with export goods. This form must be completed accurately and submitted either electronically or in documentary form, as per the provisions of sections 119AA and 119AB. The approval of the form ensures that all applications are uniformly processed, reducing ambiguity and ensuring compliance with customs regulations. Additionally, the form must be used in conjunction with any other applicable customs documentation, ensuring that all required information is provided to Customs for review.
Failure to comply with the requirements of this Act, including the use of the approved form B959, may result in penalties or other consequences. Although specific penalties are not detailed in the Act, non-compliance with customs regulations generally can lead to fines, detention of goods, or other administrative actions. The seriousness of the breach and the impact on customs operations will be factors in determining the appropriate consequences. It is crucial for all parties to adhere to the approved processes and forms to avoid any adverse outcomes.