EXPLANATORY STATEMENT
Comptroller‑General of Customs Instrument of Approval No. 2 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. 2 of 2015 (the New Instrument), is a legislative instrument made under subsection 4A(1) of the Customs Act and sets the information to be collected in accordance with subsections 114(4) and 162AA(4) of that Act.
Background
Section 114 of the Customs Act, in part, provides that an export declaration is a communication to the Department in accordance with section 114 of information about goods that are intended for export, and may be communicated by document or electronically (see subsections 114(1) and (2)). Where the electronic communication is communicated electronically, subsection 114(4) requires the declaration to communicate such information as is set out in an approved statement.
Section 162A of the Customs Act, in part, allows the Comptroller‑General of Customs to grant permission to take delivery of goods to which that section applies without the payment of duty and take those goods abroad on a ship or aircraft if an application is made to the Comptroller‑General of Customs in accordance with section 162AA of that Act (see subsections 162A(2A) and (6A)). An application made in accordance with section 162AA may be communicated by document or computer (see subsection 162AA(2)). However, where the application by computer, subsection 162AA(4) provides for the application to made in accordance with an approved statement.
The communication of the approved statement in both of the circumstances is made electronically through the Integrated Cargo System.
The previous Instrument, titled “CEO Instrument of Approval No. 17 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, an export declaration, and a computer application, to take goods aboard a ship or aircraft for export where those goods were delivered as a result of an application described in subsection 162A(2A) 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 subsections 114(4) and 162AA(4) of the Customs Act.
Instrument
The New Instrument approves the new “EXPORT DECLARATION or APPLICATION UNDER SECTION 162A(6A) OF THE CUSTOMS ACT” statement as an approved statement for the purposes of communicating to the Department in accordance with subsections 114(4) and 162AA(4) of the Customs Act:
(a) an electronic export declaration; or
(b) a computer application under subsection 162A(6A) of the Customs Act to take goods aboard a ship or aircraft for export where those goods were delivered as a result of an application described in subsection 162A(2A).
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 114(4) and 162AA(4) of the Customs Act. 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. 2 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. 17 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 information to identify prescribed goods proposed for export and the entity or person proposing for export, in accordance with a requirement under subsections 114(4) and 162AA(4) of the Customs Act.
Section 114 of the Customs Act, in part, provides that an export declaration is a communication to the Department in accordance with section 114 of information about goods that are intended for export, and may be communicated by document or electronically (see subsections 114(1) and (2)). Where the electronic communication is communicated electronically, subsection 114(4) requires the declaration to communicate such information as is set out in an approved statement.
Section 162A of the Customs Act, in part, allows the Comptroller‑General of Customs to grant permission to take delivery of goods to which that section applies without the payment of duty and take those goods abroad on a ship or aircraft if an application is made to the Comptroller‑General of Customs in accordance with section 162AA of that Act (see subsections 162A(2A) and (6A)). An application made in accordance with section 162AA may be communicated by document or computer (see subsection 162AA(2)). However, where the application by computer, subsection 162AA(4) provides for the application to made in accordance with an approved statement.
The communication of the approved statement in both of the 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 to identify goods for export and the entity or person proposing to export the goods. 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