EXPLANATORY STATEMENT
CEO Instrument of Approval No. 2 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 114A of the Customs Act allows Customs to require additional information relating to goods being exported. This information is required for risk assessment purposes. Officers of Customs currently have the power to require this additional information by asking questions or providing information in writing in respect to goods being exported to verify the particulars of goods reported in an export declaration, but only before an authority to deal (ATD) has been granted. This request can be made by document or electronically in an approved form or approved statement.
Instruments of Approval Nos 7 and 8 of 2004 approved an approved form and an approved statement respectively for the purposes of communicating a requirement for the delivery of documents or information in respect of an export declaration in accordance with section 114A of the Act.
In the majority of situations, officers will not have the opportunity to make a request for additional information for risk assessment purposes, because an ATD is granted almost immediately after an export declaration is lodged. Accordingly, officer cannot perform an adequate risk assessment. However, the need to perform this risk assessment function still exists up until the time that goods for export are actually exported from Australia
Item 16 of Schedule 1 to the Customs Amendment (Export Controls and Other Measures) Act 2011 has inserted new section 114CA into the Act which will enable an officer of Customs, at any time before goods authorised to be dealt with in accordance with an export entry advice are so dealt with, to suspend the ATD for a specified period in order to verify particulars of the goods shown in an export declaration. In order to verify such particulars, new section 114CC, similar to section 114A, will allow of officer of Customs to require additional information in relation to goods for export where an ATD has been suspended. This request can also be made by document or electronically in an approved form or approved statement.
Therefore, the requests for additional information under both sections 114A and 114CC of the Act have been combined into a single instrument.
Instrument of Approval
CEO Instrument of Approval No. 2 of 2011 approves the “REQUEST FOR ADDITIONAL INFORMATION EXPORT DECLARATIONS” (No. B961 Nov 2011) as an approved form and an approved statement for the purposes of communicating a documentary and an electronic requirement for the delivery of documents or information in respect of an export declaration in accordance with sections 114A and 114CC of the Act.
CEO Instrument of Approval No. 2 of 2011 also revokes Instruments of Approval Nos 7 and 8 of 2004.
Consultation
Further to previous public consultation (refer ACN No. 2011/04) in relation to the Customs Amendment (Export Controls and Other Measures) Bill 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.
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 specifies the purposes and usage of the B961 as approved form and an approved statement to request for additional information export declarations in accordance with sections 114A and 114CC of the Customs Act 1901.
No adverse comments were received in relation to the purposes and usage of the B961 requirements.
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.