Comptroller-General of Customs Instrument of Approval No. 3 of 2015

Administered by Department of Home Affairs

Legislation au F2015L01502 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

ComptrollerGeneral of Customs Instrument of Approval No. 3 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. 3 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 subsection 64ACB(6) of that Act.

 

Background

 

Section 64ACB of the Customs Act sets a mandatory requirement for the operator of an aircraft that is due to arrive, from a place outside Australia, at an airport in Australia (whether it is the first or any subsequent airport for the flight) to report to the Department, by way of a crew report, each member of the crew that is onboard the aircraft at the time of its arrival (see subsection 64ACB(1)).

 

The information contained in the crew report under section 64ACB is taken to be obtained by the Department for the purposes of the of the administration of the Customs Act, the Migration Act 1958 (the Migration Act), and any other law of the Commonwealth prescribed by regulations for the purposes of subsection 64ACB(9).

 

Under subsection 64ACB(6) of the Customs Act, if the crew report is given electronically, it must communicate such information as is set out in 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. 25 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 report on crew who will be on board an aircraft at the time of its arrival at an airport in Australia.

 

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 64ACB(6) of the Customs Act.

 

Instrument

 

The New Instrument approves the new Data Elements Required for Electronic Reporting of Aircrew” statement as an approved statement for the purposes of communicating electronically to the Department, a report on crew members who will be on board an aircraft at the time of its arrival at an airport in Australia, in accordance with subsection 64ACB(6) 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 subsection 64ACB(6) 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. 3 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. 25 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 personal information, by way of a crew report, to identify members of a crew on board an aircraft in accordance subsection 64ACB(6) of the Customs Act.

 

The information contained in the crew report under section 64ACB is taken to be obtained by the Department for the purposes of the of the administration of the Customs Act, the Migration Act 1958 (the Migration Act), and any other law of the Commonwealth prescribed by regulations for the purposes of subsection 64ACB(9).

 

Under subsection 64ACB(6) of the Customs Act, if the crew report is given electronically, it must communicate such information as is set out in 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 personal information to identify members of the crew onboard an aircraft in accordance with subsection 64ACB(6) of the Customs Act.  The information collected is used to administer Australian laws (including customs and migration 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. 3 of 2015 amends the Customs Act 1901 to address a gap left by the sunsetting of the previous Instrument, CEO Instrument of Approval No. 25 of 2005. The Customs Act 1901 requires operators of aircraft arriving from outside Australia to report crew members on board, and this reporting must include specific information as set out in an approved statement. The previous Instrument, which approved such a statement, expired on 1 October 2015. The new Instrument, made under subsection 4A(1A) of the Customs Act, sets the data elements required for electronic reporting of aircrew to the Department of Immigration and Border Protection. This legislative instrument is designed to ensure the continuous collection of crew information, which is essential for the administration of the Customs Act and other relevant laws, while maintaining existing protections for privacy and personal information. The New Instrument is compatible with human rights and does not substantially alter the existing arrangements or scope of information collected.

Scope and Application

The Comptroller-General of Customs Instrument of Approval No. 3 of 2015 is a legislative instrument made under the Customs Act 1901, which sets the information to be collected for the purpose of reporting crew members on board an aircraft arriving in Australia. This instrument replaces the previous CEO Instrument of Approval No. 25 of 2005, which had sunsetted on 1 October 2015, and is necessary to maintain the collection of information in accordance with relevant provisions of the Customs Act. The approved statement, titled "Data Elements Required for Electronic Reporting of Aircrew," is communicated electronically to the Department of Immigration and Border Protection through the Integrated Cargo System. The information collected is used for the administration of Australian laws, including customs and migration laws, and is authorised by law, which ensures that the collection of information is lawful and does not cause arbitrary interference. This instrument is compatible with human rights as it maintains all existing protections contained in Australian law and does not seek to limit the right to privacy in any way. The Comptroller-General of Customs Instrument of Approval No. 3 of 2015 applies to operators of aircraft arriving in Australia from a place outside the country, who must report each crew member onboard the aircraft at the time of its arrival. The information collected is used for the administration of Australian laws, including customs and migration laws, and may be disclosed to other agencies to enable their administration of their legislation. This instrument is a legislative instrument, and its application may be extended or restricted through subordinate instruments. However, the New Instrument itself does not change the scope of information collected for the purpose of the relevant provision.

Key Provisions

The main operative sections of the Comptroller-General of Customs Instrument of Approval No. 3 of 2015 establish the requirements for the electronic reporting of aircrew to the Department of Immigration and Border Protection (DIBP) under the Customs Act 1901. Section 4A of the Customs Act allows the Comptroller-General of Customs to approve a statement for a purpose under that Act, and section 64ACB mandates that operators of aircraft report each crew member onboard at the time of arrival at an Australian airport. The New Instrument, which replaces the previous CEO Instrument of Approval No. 25 of 2005, sets out the information to be collected in accordance with subsection 64ACB(6) of the Customs Act. This information must be communicated electronically through the Integrated Cargo System. The New Instrument imposes obligations on the operators of aircraft to ensure they report each crew member onboard when the aircraft arrives at an Australian airport. These reports must include specific data elements approved by the Comptroller-General of Customs and must be submitted electronically through the Integrated Cargo System. The DIBP is responsible for receiving and processing this information, which is used for the administration of the Customs Act, the Migration Act 1958, and other relevant Commonwealth laws. Failure to comply with the requirements set out in the New Instrument could result in legal consequences. Although the Explanatory Statement does not specify particular offences or penalties, non-compliance with the Customs Act and the Migration Act could lead to civil or criminal penalties as outlined in those Acts. For example, under the Customs Act, an offence of providing false or misleading information can result in a penalty of up to $22,200 or imprisonment for up to two years, or both, for individuals, and up to $111,000, or both, for corporations. Furthermore, under the Migration Act, providing false or misleading information can lead to penalties of up to $55,500 or imprisonment for up to three years, or both, for individuals, and up to $277,500, or both, for corporations. The New Instrument ensures that the DIBP continues to receive the necessary information to enforce these Acts effectively.

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