EXPLANATORY STATEMENT
Comptroller‑General of Customs Declaration of Places No. 1 of 2015
Customs Act 1901
Subsection 181(2) of the Customs Act 1901 (the Customs Act) allows the Comptroller‑General of Customs to declare a place specified in a notice published in the Gazette as a place to which this subsection applies.
Background
Subsection 181(1) of the Customs Act allows an owner of goods to authorise a person to be his or her agent for the purposes of the Customs Acts at a place or places specified by the owner and also allows the owner to comply with relevant requirements under that Act at those places through that agent (see subsections 181(1) and (3)). The term Customs Acts is defined under section 4 of the Customs Act.
However, subsection 181(2) of the Customs Act provides that, where the Comptroller‑General of Customs, by notice published in the Gazette, declares that a place specified in the notice is a place to which this subsection applies, an owner of goods shall not authorize a person to be his or her agent for the purposes of the Customs Acts at that place unless that person is a natural person who is an employee of the owner and is not an employee of any other person or a customs broker at that place.
The previous Instrument, titled “Declaration of Places No. 1 of 2005” (the previous Instrument), declared that all places in Australia are places to which subsection 181(2) of the Customs Act applies.
Previously, the declaration was made by the Chief Executive Officer of Customs who was the agency head of the Australian Customs and Border Protection Service (the ACBPS). With the disestablishment of the ACBPS and the integration of its functions into the Department of Immigration and Border Protection, relevant provisions were amended by the Customs and Other Legislation (Australian Border Force) Act 2015 (the COLA Act) so that the relevant declaration is now made by the Comptroller‑General of Customs.
By operation of section 52 of the Legislative Instruments Act 2003 (the Legislative Instruments Act, the previous Instrument sunsetted on 1 October 2015 and ceased to have any effect from that date. As a result, the New Instrument is necessary to maintain the collection of relevant information in accordance with relevant provision of the Customs Act.
Instrument
The new Instrument, titled the “Comptroller‑General of Customs Declaration of Places No. 1 of 2015” (the New Instrument), also declares that all places in Australia are places to which subsection 181(2) of the Customs Act applies.
The purpose of this instrument is to address the effect of the sunsetting of the previous Instrument and to maintain the places to which subsection 181(2) of the Customs Act applies. The New Instrument does not change the scope of the relevant requirements under the Customs Act at the specified places and applies to any person authorised by the owner of goods under subsection 181(1) of that Act.
A Statement of Compatibility with Human Rights has been completed for the New Instrument in accordance with the requirement in paragraph 26(f) of the Legislative Instruments Act, and is at Attachment A.
Consultation
No consultation was undertaken under section 17 of the Legislative Instruments Act before this instrument was made as it is of a minor or machinery nature and does not substantially alter existing arrangements.
Commencement
The instrument commences on 1 October 2015.
ATTACHMENT A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human
Rights (Parliamentary Scrutiny) Act 2011
Comptroller‑General of Customs Declaration of Places No. 1 of 2015
This legislative instrument is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
This Legislative Instrument, titled the “Comptroller‑General of Customs Declaration of Places No. 1 of 2015” (the New Instrument), declares that all places in Australia are places to which subsection 181(2) of the Customs Act 1901 (the Customs Act) apply.
Subsection 181(1) of the Customs Act allows an owner of goods to authorise a person to be his or her agent for the purposes of the Customs Acts at a place or places specified by the owner and also allows the owner to comply with relevant requirements under that Act at those places through that agent (see subsections 181(1) and (3)). The term Customs Acts is defined under section 4 of the Customs Act.
However, subsection 181(2) of the Customs Act provides that, where the Comptroller‑General of Customs, by notice published in the Gazette, declares that a place specified in the notice is a place to which this subsection applies, an owner of goods shall not authorize a person to be his or her agent for the purposes of the Customs Acts at that place unless that person is a natural person who is an employee of the owner and is not an employee of any other person or a customs broker at that place.
The New Instrument maintains all the places specified in the previous Instrument and is necessary to ensure that agents of the owner of goods in those places continue to be a person mentioned in subsection 181(2) of the Customs Act.
The New Instrument does not change the scope of the relevant requirements under the Customs Act at the specified places and applies to any person authorised by the owner of goods under subsection 181(1) of that Act.
Human Rights Implications
The New Instrument engages Article 17 of the International Covenant on Civil and Political Rights (the ICCPR).
Article 17 of the ICCPR prohibits unlawful or arbitrary interferences with a person’s privacy. It also prohibits unlawful attacks on a person’s honour or reputation. It provides that persons have the right to protection of the law against such interference or attacks. An interference with privacy will not be arbitrary if it is authorised by law or consistent with the provisions, aims and objectives of the ICCPR and reasonable in the circumstances. Reasonableness, in this context, incorporates notions of proportionality, appropriateness and necessity. In essence, this will require that limitations:
- serve a legitimate objective
- adopt a means that is rationally connected to that objective, and
- the means adopted are not more restrictive than they need to be to achieve that objective.
Article 17 of the ICCPR is engaged by the New Instrument because it maintains the limitation on the owner of goods to prevent him or her from authorising any entities that do not fall within the scope of subsection 181(2) of the Customs Act for the purposes of that Act.
The declaration of places is authorised by law and does not seek to affect or negate any of the existing protections under Australian laws. As such, the declaration is lawful and does not cause arbitrary interference.
Conclusion
This New Instrument is compatible with human rights as, although it engages the right to privacy, it maintains all existing protections contained in Australian law and does not seek to limit the right to privacy in anyway.
Roman Quaedvlieg
Comptroller‑General of Customs