EXPLANATORY STATEMENT
Comptroller‑General of Customs Instrument of Approval No. 13 of 2015
Customs Act 1901
Section 4A of the Customs Act 1901 (the Customs Act), in part, allows the Comptroller‑General 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 “Comptroller‑General of Customs Instrument of Approval No. 13 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 subsections 71AAAO(3), 71DA(4) and 71DL(4) of that Act and subsection 110(6) of the Customs Regulation 2015 (the Customs Regulation).
Background
Self‑assessed clearance declarations
Section 71AAAO of the Customs Act allows a Collector to refuse to grant an authority to deal with goods covered by a self-assessed clearance declaration until an officer doing duty in relation to self‑assessed clearance declarations has verified particulars of the goods or is satisfied of any other matter that may be relevant to granting the authority to deal (see subsection 71AAAO(1)). In order to achieve this, the officer may require the owner of the goods to deliver to the officer, commercial documents in respect of the goods or information relating to the goods.
Under subsection 71AAAO(3) of the Customs Act, the requirement for the delivery of documents or information in respect of a self‑assessed clearance declaration must be communicated electronically to the person who made the declaration and contain such particulars as are set out in an approved statement.
Import declarations
Section 71DA of the Customs Act provides that, if an import declaration has been made in respect of goods, authority to deal with the goods may be refused until the officer doing duty in relation to the declaration has verified particulars of the goods or is satisfied of any other matter that may be relevant to granting the authority to deal (see subsection 71DA(1)). In order to achieve this, the officer may require the owner of the goods to deliver to the officer, commercial documents in respect of the goods or information relating to the goods.
Under subsection 71DA(4) of the Customs Act, an electronic requirement for the delivery of documents or information in respect of an import declaration must be communicated electronically to the person who made the declaration and contain such particulars set out in an approved statement.
Warehouse declaration
Section 71DL of the Customs Act provides that, if a warehouse declaration has been made in respect of goods, authority to deal with the goods may be refused until the officer doing duty in relation to the declaration has verified particulars of the goods or is satisfied of any other matter that may be relevant to granting the authority to deal (see subsection 71DL(1)). In order to achieve this, the officer may require the owner of the goods to deliver to the officer commercial documents in respect of the goods or information relating to the goods.
Under subsection 71DL(4) of the Customs Act, an electronic requirement for the delivery of documents or information in respect of a warehouse declaration must be communicated electronically to the person who made the declaration and contain such particulars set out in an approved statement.
Refund applications
Section 110 of the Customs Regulation prescribes the procedures for dealing with applications for refunds, rebates and remissions of duty. It allows a Collector to require an applicant to deliver documents or information in relation to his or her application, either by document or electronically.
Subregulation 110(6) provides that an electronic communication must include information required by an approved statement.
The communication of the approved statement in the above circumstances is made electronically through the Integrated Cargo System.
The previous Instrument, titled “CEO Instrument of Approval No. 64 of 2005” (the previous Instrument), approved a statement under subsection 4A(1A) of the Customs Act for the purpose of communicating electronically, to the Department, a requirement for the delivery of documents or information in respect of a self‑assessed clearance declaration, an import declaration, a warehouse declaration and a refund, rebate or remission application.
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 subsections 71AAAO(3), 71DA(4) and 71DL(4) of the Customs Act and subsection 110(6) of the Customs Regulation.
Instrument
The New Instrument approves the new “REQUEST FOR ADDITIONAL INFORMATION” statement as an approved statement for the purposes of communicating electronically to the Department, documents or information in respect of the following declarations and applications:
(a) a self‑assessed clearance declaration in accordance with subsection 71AAAO(3) of the Customs Act;
(b) an import declaration in accordance with subsection 71DA(4) of the Customs Act;
(c) a warehouse declaration in accordance with subsection 71DL(4) of the Customs Act; or
(d) a refund, rebate or remission application in accordance with subsection 110(6) of the Customs Regulation.
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 subsections 71AAAO(3), 71DA(4) and 71DL(4) of the Customs Act and subsection 110(6) of the Customs Regulation. The New Instrument does not change the scope of information collected for the purpose of the relevant provisions.
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 Instrument of Approval No. 13 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. 64 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 subsections 71AAAO(3), 71DA(4) and 71DL(4) of the Customs Act and subsection 110(6) of the Customs Regulation 2015 (the Customs Regulation).
Self‑assessed clearance declarations
Section 71AAAO of the Customs Act allows a Collector to refuse to grant an authority to deal with goods covered by a self-assessed clearance declaration until an officer doing duty in relation to self‑assessed clearance declarations has verified particulars of the goods or is satisfied of any other matter that may be relevant to granting the authority to deal (see subsection 71AAAO(1)). In order to achieve this, the officer may require the owner of the goods to deliver to the officer, commercial documents in respect of the goods or information relating to the goods.
Under subsection 71AAAO(3) of the Customs Act, the requirement for the delivery of documents or information in respect of a self‑assessed clearance declaration must be communicated electronically to the person who made the declaration and contain such particulars as are set out in an approved statement.
Import declarations
Section 71DA of the Customs Act provides that, if an import declaration has been made in respect of goods, authority to deal with the goods may be refused until the officer doing duty in relation to the declaration has verified particulars of the goods or is satisfied of any other matter that may be relevant to granting the authority to deal (see subsection 71DA(1)). In order to achieve this, the officer may require the owner of the goods to deliver to the officer, commercial documents in respect of the goods or information relating to the goods.
Under subsection 71DA(4) of the Customs Act, an electronic requirement for the delivery of documents or information in respect of an import declaration must be communicated electronically to the person who made the declaration and contain such particulars set out in an approved statement.
Warehouse declaration
Section 71DL of the Customs Act provides that, if a warehouse declaration has been made in respect of goods, authority to deal with the goods may be refused until the officer doing duty in relation to the declaration has verified particulars of the goods or is satisfied of any other matter that may be relevant to granting the authority to deal (see subsection 71DL(1)). In order to achieve this, the officer may require the owner of the goods to deliver to the officer commercial documents in respect of the goods or information relating to the goods.
Under subsection 71DL(4) of the Customs Act, an electronic requirement for the delivery of documents or information in respect of a warehouse declaration must be communicated electronically to the person who made the declaration and contain such particulars set out in an approved statement.
Refund applications
Section 110 of the Customs Regulation prescribes the procedures for dealing with applications for refunds, rebates and remissions of duty. It allows a Collector to require an applicant to deliver documents or information in relation to his or her application, either by document or electronically.
Subregulation 110(6) provides that an electronic communication must include information required by an approved statement.
The communication of the approved statement in the above circumstances 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 required for the purposes of subsections 71AAAO(3), 71DA(4) and 71DL(4) of the Customs Act and subsection 110(6) of the Customs Regulation. 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
Comptroller‑General of Customs