Comptroller-General of Customs Instrument of Approval No. 19 of 2015

Administered by Department of Home Affairs

Legislation au F2015L01497 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

ComptrollerGeneral of Customs Instrument of Approval No. 19 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. 19 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 section 71L of that Act.

 

Background

 

Section 68 of the Customs Act requires all imported goods to be entered for home consumption or warehousing and lists goods that are not subject to the requirement (including those that do not meet the entry threshold value.  In particular, subsections 68(3A) and (3B) provide for the entry of goods for home consumption, and warehousing, to be made by communicating an import declaration and warehouse declaration in respect of those goods.

 

Section 71A of the Customs Act sets the requirements that must be satisfied to make an importation declaration for goods to which section 68 of that Act applies and goods that are warehoused goods that are intended to be entered for home consumption.  Similarly, section 71DH sets the requirements that must be satisfied to make a warehouse declaration for goods to which section 68 of that Act applies that are intended to be entered for warehousing.  A declaration so collected for the purpose of subsection 68(3A) or (3B) is defined to mean an import entry under section 4 of the Customs Act.

 

Under subsection 71F(1) of the Customs Act provides that, at any time after an import entry is communicated to the Department and before the goods to which it relates are dealt with in accordance with the entry, a withdrawal of the entry may be communicated to the Department by document or electronically.  Further subsection 71F(2) provides that if, at any time after a person has communicated an import entry to the Department and before the goods are dealt with in accordance with the entry, the person changes information included in the entry, the person is taken, at the time when the import entry advice is given or communicated in respect of the altered entry, to have withdrawn the entry as it previously stood.

 

Under subsection 71F(6) of the Customs Act, a withdrawal of an import entry is effected when it is, or is taken under section 71L of that Act to have been, communicated to the Department.

 

Relevantly, subsection 71L(1) provides that an import entry, a withdrawal of an import entry, a visual examination application, a movement application, or a return, for the purposes of subsections 69(8) or 70(7) or section 105C that is communicated to the Department electronically must communicate such information as set out in an approved statement.

 

Additionally, subsection 71L(3) of the Customs Act provides that, for the purposes of [that] Act, an import entry, a withdrawal of an import entry or a return for the purposes of subsection 69(8) or 70(7) or section 105C of that Act, is taken to have been communicated to the Department electronically when an import entry advice, or an acknowledgment of the withdrawal or the return, is communicated by a Collector electronically to the person identified in the import entry, withdrawal or return as the person sending it.

 

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

 

The previous Instrument, titled ‘CEO Instrument of Approval No. 71 of 2005’ (the previous Instrument), approved a statement under subsection 4A(1A) of the Customs Act for the purpose of communicating electronically the withdrawal of an import entry in accordance with section 71L of that Act.

 

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 subsection 71L of the Customs Act.

 

Instrument

 

The New Instrument approves the new “WITHDRAWAL OF A DECLARATION” statement as an approved statement for the purposes of communicating electronically with the Department the withdrawal of an import entry in accordance with section 71L of the Customs Act.

 

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 section 71L of the Customs Act.  The New Instrument does not change the scope of information collected for the purposes 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. 19 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. 71 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 a requirement under section 71L of the Customs Act.

 

Consistent with the previous Instrument, the collection of information relates to import entries communicated to the Department in accordance with section 71A and 71DH of the Customs Act

 

Section 68 of the Customs Act requires all imported goods to be entered for home consumption or warehousing and lists goods that are not subject to the requirement (including those that do not meet the entry threshold value.  In particular, subsections 68(3A) and (3B) provide for the entry of goods for home consumption, and warehousing, to be made by communicating an import declaration and warehouse declaration in respect of those goods.

 

Section 71A of the Customs Act sets the requirements that must be satisfied to make an importation declaration for goods to which section 68 of that Act applies and goods that are warehoused goods that are intended to be entered for home consumption.  Similarly, section 71DH sets the requirements that must be satisfied to make a warehouse declaration for goods to which section 68 of that Act applies that are intended to be entered for warehousing.  A declaration so collected for the purpose of subsection 68(3A) or (3B) is defined to mean an import entry under section 4 of the Customs Act.

 

Under subsection 71F(1) of the Customs Act provides that, at any time after an import entry is communicated to the Department and before the goods to which it relates are dealt with in accordance with the entry, a withdrawal of the entry may be communicated to the Department by document or electronically.  Further subsection 71F(2) provides that if, at any time after a person has communicated an import entry to the Department and before the goods are dealt with in accordance with the entry, the person changes information included in the entry, the person is taken, at the time when the import entry advice is given or communicated in respect of the altered entry, to have withdrawn the entry as it previously stood.

 

Under subsection 71F(6) of the Customs Act, a withdrawal of an import entry is effected when it is, or is taken under section 71L of that Act to have been, communicated to the Department.

 

Relevantly, subsection 71L(1) provides that an import entry, a withdrawal of an import entry, a visual examination application, a movement application, or a return, for the purposes of subsections 69(8) or 70(7) or section 105C that is communicated to the Department electronically must communicate such information as set out in an approved statement.

 

Additionally, subsection 71L(3) of the Customs Act provides that, for the purposes of [that] Act, an import entry, a withdrawal of an import entry or a return for the purposes of subsection 69(8) or 70(7) or section 105C of that Act, is taken to have been communicated to the Department electronically when an import entry advice, or an acknowledgment of the withdrawal or the return, is communicated by a Collector electronically to the person identified in the import entry, withdrawal or return as the person sending it.

 

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 required for the purpose of section 71L 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 Comptroller-General of Customs Instrument of Approval No. 19 of 2015 is a legislative instrument made under the Customs Act 1901 to address the sunsetting of a previous instrument, CEO Instrument of Approval No. 71 of 2005, which had ceased to have any effect on 1 October 2015 by operation of section 50 of the Legislative Instruments Act 2003. This new instrument is necessary to maintain the collection of relevant information in accordance with subsection 71L of the Customs Act. The Customs Act 1901, enacted by the Parliament of Australia, governs the administration of customs and excise duties and requires the entry of imported goods for home consumption or warehousing. The problem this legislation addresses is the need to ensure the continuity of information collection processes for import entries and their withdrawals after the sunsetting of the previous instrument. The policy objective of the New Instrument is to maintain the collection of commercial and personal information in accordance with the requirements of the Customs Act, ensuring the efficient administration of Australian customs laws without altering existing protections or the scope of information collected.

Scope and Application

The Comptroller-General of Customs Instrument of Approval No. 19 of 2015 is a legislative instrument made under the Customs Act 1901, which specifies the information to be collected for the purposes of section 71L of the Act. This Act applies to entities and individuals involved in the import and export of goods in Australia, including importers, exporters, customs brokers, and the Department of Home Affairs. The Act governs the collection of information necessary for the administration of Australian customs laws, including the withdrawal of import entries. The scope of the Act is national, covering all territories and states within Australia. The Act does not specify any exclusions, exemptions, or thresholds. The Instrument of Approval No. 19 of 2015 extends the application of the Customs Act by replacing the previous CEO Instrument of Approval No. 71 of 2005, which had sunsetted on 1 October 2015. The new Instrument maintains the collection of commercial and personal information in accordance with section 71L of the Customs Act, and is compatible with human rights, as it engages Article 17 of the International Covenant on Civil and Political Rights by maintaining existing protections under Australian laws.

Key Provisions

The Comptroller-General of Customs Instrument of Approval No. 19 of 2015 is a legislative instrument under section 4A(1A) of the Customs Act 1901. It approves a new "Withdrawal of a Declaration" statement for the electronic communication of the withdrawal of an import entry to the Department of Immigration and Border Protection. The primary purpose of the Instrument is to address the effect of the sunsetting of the previous "CEO Instrument of Approval No. 71 of 2005" under section 50 of the Legislative Instruments Act 2003. The New Instrument ensures the continuity of information collection in accordance with section 71L of the Customs Act. The information collected includes details on import entries communicated to the Department, as specified in sections 71A and 71DH of the Customs Act. These sections require that imported goods be entered for home consumption or warehousing and set the requirements for making import and warehouse declarations. The Instrument imposes obligations on parties to communicate electronically the withdrawal of import entries through the Integrated Cargo System. It mandates that the information communicated must comply with the approved statement outlined in the Instrument. This ensures that the Department receives the necessary information to process the withdrawal of import entries. The New Instrument does not alter the scope of information collected but ensures that the collection process remains compliant with the Customs Act and other relevant legislation. The Instrument also requires that the collection of information be authorised by law and be necessary for the administration of Australian laws, including customs laws. The New Instrument engages Article 17 of the International Covenant on Civil and Political Rights (ICCPR), which prohibits unlawful or arbitrary interferences with privacy. However, since the collection of information is authorised by Australian law and does not negate existing protections, it does not cause arbitrary interference. The Instrument maintains all existing protections contained in Australian law and ensures that the collection of information is lawful and reasonable in the circumstances. No consultation was undertaken before the Instrument was made as it is of a minor or machinery nature and does not substantially alter existing arrangements. The Instrument commenced on 1 October 2015, replacing the previous Instrument that had ceased to have effect on that date.

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