Comptroller-General of Customs Instrument of Approval No. 10 of 2015

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Legislation au F2015L01513 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

ComptrollerGeneral of Customs Instrument of Approval No. 10 of 2015

 

Customs Act 1901

 

Section 4A of the Customs Act 1901 (the Customs Act), in part, allows the ComptrollerGeneral of Customs to approve a statement in writing for a purpose under that Act and provides for a statement so approved to be a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 (see subsections 4A(1A) and (2)).  A disallowable instrument approved under section 4A(2) of the Customs Act is declared to be a legislative instrument by operation of subparagraph 6(d)(i) of the Legislative Instruments Act 2003 (the Legislative Instruments Act).

 

The Instrument, titled the “ComptrollerGeneral of Customs Instrument of Approval No. 10 of 2015 (the New Instrument), is a legislative instrument made under subsection 4A(1A) of the Customs Act and sets the information to be collected in accordance with subparagraph 64ABAA(5)(c)(i) of that Act.

 

Background

 

Section 64ABAA of the Customs Act, in part, provides that when cargo is unloaded from an aircraft at an airport, the depot operator whose particulars have been communicated to the Department by the operator of the aircraft, under section 64AAC of the Customs Act, must communicate electronically to the Department an outturn report in respect of the cargo (see subsection 64ABAA(1)).

 

In addition, when cargo unloaded from an aircraft or ship has been moved, under a permission given under section 71E of the Customs Act, to a Customs place other than a warehouse, the person in charge of the Customs place must communicate electronically to the Department an outturn report in respect of the cargo (see subsection 64ABAA(4)).  The term Customs place is defined under subsection 183UA(1) of the Customs Act.  Section 71E of the Customs Act concerns the application for movement permission.

 

The cargo report may be disclosed by an officer to a stevedore, a depot operator or a person in charge of a Customs place (other than a warehouse) for the purpose of enabling the stevedore, operator or person to communicate to the Department an outturn report in respect of the cargo (see subsection 64ABAA(7)).

 

A person who contravenes section 64ABAA of the Customs Act commits a strict liability offence punishable, on conviction, by a penalty not exceeding 60 penalty units (see subsections 64ABAA(9) and (10)).  However, where a person intentionally contravenes this section, that person commits an offence punishable, on conviction, by a penalty not exceeding 120 penalty units (see subsection 64ABAA(8)).

 

Where the outturn report that is communicated to the Department is made under subsection 64ABAA(1) or (4) of the Customs Act, that report must amongst satisfying other requirements, be made in accordance with an approved statement.

 

The communication of the approved statement is made electronically through the Integrated Cargo System.

 

The previous Instrument, titled “CEO Instrument of Approval No. 59 of 2005” (the previous Instrument), approved a statement under subsection 4A(1A) of the Customs Act for the purpose of communicating electronically an outturn report in respect of cargo that has been unloaded from an aircraft at an airport in Australia and an outturn report in respect of cargo that was unloaded from an aircraft and has been moved, under a permission given under section 71E of that Act, to a Customs place other than a warehouse.

 

Previously, this information was required to be communicated to 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 (the Department), relevant provisions were amended by the Customs and Other Legislation (Australian Border Force) Act 2015 so that relevant information is now required to be communicated to the Department.

 

The previous Instrument sunsetted on 1 October 2015 by operation of section 50 of the Legislative Instruments Act and ceased to have any effect on that date.  As a result, the New Instrument is necessary to maintain the collection of relevant information in accordance with subparagraph 64ABAA(5)(c)(i) of the Customs Act.

 

Instrument

 

The New Instrument approves the new OUTTURN REPORT (SUBSECTIONS 64ABAA(1) AND (4))  AIR” statement as an approved statement for the purposes of communicating electronically to the Department:

 

(a)  an outturn report in respect of cargo that has been unloaded from an aircraft at an airport in Australia; and

(b)  an outturn report in respect of cargo that was unloaded from an aircraft and has been moved, under a permission given under section 71E of the Customs Act, to a Customs place other than a warehouse.

 

The purpose of this instrument is to address the effect of sunsetting under section 50 of the Legislative Instruments Act and to maintain the collection of information in accordance with a requirement under subparagraph 64ABAA(5)(c)(i) of the Customs Act.  The New Instrument does not change the scope of information collected for the purpose of the relevant provision.

 

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

 

ComptrollerGeneral of Customs Instrument of Approval No. 10 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 (the New Instrument) replaces the previous “CEO Instrument of Approval No. 59 of 2005 (the previous Instrument) and is made under subsection 4A(1A) of the Customs Act 1901 (the Customs Act).

 

The New Instrument sets out information that was specified in the previous Instrument, and maintains the collection of commercial and personal information in accordance with subparagraph 64ABAA(5)(c)(i) of the Customs Act.

 

The information collected relates to a requirement in section 64ABAA of the Customs Act, which in part, provides that when cargo is unloaded from an aircraft at an airport, the depot operator whose particulars have been communicated to the Department by the operator of the aircraft, under section 64AAC of the Customs Act, must communicate electronically to the Department an outturn report in respect of the cargo (see subsection 64ABAA(1)).

 

In addition, when cargo unloaded from an aircraft or ship has been moved, under a permission given under section 71E of the Customs Act, to a Customs place other than a warehouse, the person in charge of the Customs place must communicate electronically to the Department an outturn report in respect of the cargo (see subsection 64ABAA(4)).  The term Customs place is defined under subsection 183UA(1) of the Customs Act.  Section 71E of the Customs Act concerns the application for movement permission.

 

The cargo report may be disclosed by an officer to a stevedore, a depot operator or a person in charge of a Customs place (other than a warehouse) for the purpose of enabling the stevedore, operator or person to communicate to the Department an outturn report in respect of the cargo (see subsection 64ABAA(7)).

 

A person who contravenes section 64ABAA of the Customs Act commits a strict liability offence punishable, on conviction, by a penalty not exceeding 60 penalty units (see subsections 64ABAA(9) and (10)).  However, where a person intentionally contravenes this section, that person commits an offence punishable, on conviction, by a penalty not exceeding 120 penalty units (see subsection 64ABAA(8)).

 

Where the outturn report that is communicated to the Department is made under subsection 64ABAA(1) or (4) of the Customs Act, that report must amongst satisfying other requirements, be made in accordance with an approved statement.

 

The communication of the approved statement is made electronically through the Integrated Cargo System.

 

The New Instrument is necessary to maintain the collection of information in accordance with relevant provisions of the Customs Act because the previous Instrument had sunsetted on 1 October 2015 by operation of section 50 of the Legislative Instruments Act 2003 and ceased to have effect on that date.

 

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 collection of commercial and personal information in respect of cargo unloaded from an aircraft (including cargo that has been unloaded from an aircraft and moved in accordance with a permission given under section 71E of the Customs Act).  The information collected is used to administer Australian laws (including customs laws) and its collection is authorised by law.  The New Instrument does not seek to affect or negate any of the existing protections under Australian laws.  Where relevant, information collected may be disclosed to other agencies to enable their administration of their legislation.

 

As the collection of information is authorised by Australian laws, and the New Instrument does not seek to affect or negate any of the existing protections, the collection of information 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

ComptrollerGeneral of Customs

Overview

The Customs Act 1901 was enacted to regulate the collection of duties, taxes, and other charges on imported and exported goods, as well as to ensure the enforcement of customs laws and regulations. The Comptroller-General of Customs Instrument of Approval No. 10 of 2015, issued under the authority of the Customs Act, addresses the need to maintain the collection of specific information related to the unloading and movement of cargo from aircraft in Australia. This legislative instrument was necessary due to the sunsetting of the previous instrument, CEO Instrument of Approval No. 59 of 2005, which had ceased to have effect on 1 October 2015. The New Instrument approves the "OUTTURN REPORT (SUBSECTIONS 64ABAA(1) AND (4)) – AIR" statement for communicating electronically to the Department of Immigration and Border Protection outturn reports for cargo unloaded from aircraft at Australian airports and for cargo moved under a permission given under section 71E of the Customs Act to a Customs place other than a warehouse. The policy objective of the New Instrument is to ensure the continued collection of relevant information in accordance with the Customs Act, without altering the scope of the information collected.

Scope and Application

The Comptroller-General of Customs Instrument of Approval No. 10 of 2015 pertains to the Customs Act 1901 and specifically deals with the approval of statements for the purpose of electronically communicating outturn reports regarding cargo unloaded from aircraft. The Instrument applies to depot operators and persons in charge of customs places other than warehouses who must report the movement of cargo. These reports must be made in accordance with the approved statement, which is communicated electronically through the Integrated Cargo System to the Department of Immigration and Border Protection. The geographic scope of this legislation is limited to cargo unloaded at Australian airports and subsequently moved to customs places other than warehouses within Australia. The Instrument does not introduce any exclusions or exemptions but rather maintains the collection of information as previously required. The New Instrument does not alter the scope of information collected, ensuring continuity in compliance with the Customs Act. Additionally, the Instrument does not undergo consultation as it is deemed minor and does not substantially change existing arrangements. The commencement date of the Instrument is 1 October 2015, replacing the previous CEO Instrument of Approval No. 59 of 2005, which had sunsetted under the Legislative Instruments Act 2003.

Key Provisions

The main operative sections of the Comptroller-General of Customs Instrument of Approval No. 10 of 2015 (New Instrument) under the Customs Act 1901 (Customs Act) approve a statement for the purpose of communicating electronically an outturn report in respect of cargo unloaded from an aircraft at an Australian airport or moved to a Customs place other than a warehouse (subsections 64ABAA(1) and (4) of the Customs Act). This is achieved by approving the "OUTTURN REPORT (SUBSECTIONS 64ABAA(1) AND (4)) – AIR" statement (subsection 4A(1A) of the Customs Act). These reports must be made in accordance with this approved statement, and the communication of the approved statement is made electronically through the Integrated Cargo System. The New Instrument imposes specific obligations on depot operators, persons in charge of Customs places (other than warehouses), and stevedores. These parties must electronically communicate outturn reports to the Department of Immigration and Border Protection when cargo is unloaded from an aircraft at an airport or moved to a Customs place under a permission given under section 71E of the Customs Act (subsections 64ABAA(1) and (4) of the Customs Act). This requirement ensures that relevant information continues to be collected in accordance with the Customs Act. These reports may be disclosed by an officer to enable the reporting party to communicate an outturn report in respect of the cargo (subsection 64ABAA(7) of the Customs Act). The Customs Act stipulates that contravention of the requirement to communicate an outturn report constitutes a strict liability offence, punishable by a penalty not exceeding 60 penalty units on conviction (subsections 64ABAA(9) and (10) of the Customs Act). However, if the contravention is intentional, the penalty on conviction can be as high as 120 penalty units (subsection 64ABAA(8) of the Customs Act). These penalties underscore the importance of compliance with the reporting requirements set forth in the Customs Act. The New Instrument does not change the scope of information collected for the purpose of the relevant provisions but ensures that the collection of information continues in compliance with the Customs Act. The Instrument is declared a legislative instrument by operation of subparagraph 6(d)(i) of the Legislative Instruments Act 2003. Additionally, a Statement of Compatibility with Human Rights has been completed, confirming that the New 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.

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