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.
Overview
The Customs Amendment (Export Controls and Other Measures) Act 2011 was enacted to address the gap in the Customs Act 1901 relating to the need for Customs officers to perform risk assessments on goods being exported, especially after the almost immediate granting of an authority to deal (ATD) following the lodgement of an export declaration. This often left officers without the opportunity to gather necessary additional information before goods were exported. The Act was introduced by the Australian Parliament to enhance export control measures and ensure thorough risk assessments are performed. As part of this legislative change, CEO Instrument of Approval No. 2 of 2011 was issued to approve the "REQUEST FOR ADDITIONAL INFORMATION EXPORT DECLARATIONS" (No. B961 Nov 2011) as an approved form and an approved statement for use under sections 114A and 114CC of the Customs Act 1901, thereby consolidating the requirements for additional information into a single instrument. This instrument revokes the previous Instruments of Approval Nos 7 and 8 of 2004 and came into effect upon the commencement of the relevant schedules of the 2011 Act.
Scope and Application
CEO Instrument of Approval No. 2 of 2011 under the Customs Act 1901, governs the use of the "REQUEST FOR ADDITIONAL INFORMATION EXPORT DECLARATIONS" form (No. B961 Nov 2011) as an approved form and statement for requesting additional information regarding goods exported from Australia. This legislation applies to officers of Customs who are authorised to request supplementary information for risk assessment purposes concerning exports. The Act's scope extends to the national level and pertains to all goods exported from Australia. It replaces the previous approved forms and statements as outlined in Instruments of Approval Nos 7 and 8 of 2004. The instrument facilitates risk assessments by allowing Customs officers to suspend an authority to deal (ATD) and request additional information even after an ATD has been granted, thereby ensuring that risk assessments are conducted until the goods are actually exported. This measure is intended to enhance the accuracy of export declarations and the overall effectiveness of risk management in the exportation of goods from Australia.
Key Provisions
CEO Instrument of Approval No. 2 of 2011 serves to approve a new form and statement, titled "REQUEST FOR ADDITIONAL INFORMATION EXPORT DECLARATIONS" (No. B961 Nov 2011), for the purposes of communicating requirements for the delivery of documents or information in respect of an export declaration under sections 114A and 114CC of the Customs Act 1901. This new form and statement replace the previous instruments of approval (Nos 7 and 8 of 2004) and streamline the process of requesting additional information for risk assessment purposes before an authority to deal (ATD) has been granted or while an ATD is suspended. The new form and statement can be used by Customs officers to request information either by document or electronically. These instruments of approval are critical for ensuring that Customs officers can adequately perform their risk assessment functions.
The obligations imposed by this legislation on Customs officers and entities subject to the Customs Act 1901 include the requirement to use the approved form and statement when requesting additional information for export declarations. This ensures uniformity and compliance with the legislative requirements for risk assessment. Customs officers must ensure that they follow the prescribed format and procedures outlined in the approved form and statement when making these requests. Entities subject to the Act must respond to these requests in a timely manner and provide the necessary information to facilitate the risk assessment process. This requirement helps in maintaining the integrity of the export control process and ensures that goods exported from Australia comply with relevant regulations.
Breaching the obligations set out in the Customs Act 1901 can result in various consequences. Failure to provide the requested information or providing false or misleading information can be considered an offence under the Act. Such offences may attract penalties, including fines and imprisonment, depending on the severity of the breach. The maximum penalties for these offences are not explicitly stated in the provided text, but they can be severe and are determined by the relevant courts. Additionally, any entity that fails to comply with the requirements for providing information may face civil consequences, such as the suspension or revocation of export licenses. It is important for all parties involved to adhere strictly to the provisions of the Act to avoid these penalties and consequences.