EXPLANATORY STATEMENT
Comptroller‑General of Customs Instrument of Approval No. 9 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. 9 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 64AAC(3) of that Act.
Background
Section 64AAC of Customs Act that applies to a ship or aircraft in respect of a voyage or flight to Australia from a place outside Australia and requires that the operator of the ship or aircraft to reports to the Department particulars of (see subsections 64AAC(1) and (2)):
(a) in the case of a ship—the stevedore with whom the operator has entered into a contract for the unloading of the cargo from the ship at a place in Australia; or
(b) in the case of an aircraft—the depot operator who will first receive the cargo after it has been unloaded from the aircraft at a place in Australia.
The report must be made electronically and must communicate such information as is set out in an approved statement (see subsection 64AAC(3)). In addition, the report must be made during the period within which a report under section 64 of the Customs Act of the impending arrival of the ship or aircraft is required to be made (see subsection 64AAC(4)).
An operator of a ship or aircraft who contravenes section 64AAC of the Customs Act commits a strict liability offence punishable, on conviction, by a penalty not exceeding 60 penalty units (see subsections 64AAC(6) and (7)).
The communication of the approved statement is made electronically through the Integrated Cargo System.
The previous Instrument, titled “CEO Instrument of Approval No. 54 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 of particulars of the stevedore with whom the operator has entered into a contract for the unloading of the cargo from the ship at a place in Australia and the depot operator who will first receive cargo after it has been unloaded from an aircraft at a place 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 64AAC(3) of the Customs Act.
Instrument
The New Instrument approves the new “PERSONS ENGAGED TO UNLOAD CARGO” statement as an approved statement for the purposes of communicating electronically to the Department, a report of the following particulars.
- In the case of a ship ‑ the stevedore with whom the operator has entered into a contract for the unloading of the cargo from the ship at a place in Australia; or
- In the case of an aircraft ‑ the depot operator who will first receive cargo after it has been unloaded from an aircraft at a place in Australia.
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 64AAC(3) 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
Comptroller‑General of Customs Instrument of Approval No. 9 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. 54 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 subsection 64AAC(3) of the Customs Act.
The information collected relates to the requirement in section 64AAC of Customs Act, which applies to a ship or aircraft in respect of a voyage or flight to Australia from a place outside Australia and requires that the operator of the ship or aircraft to reports to the Department particulars of (see subsections 64AAC(1) and (2)):
(a) in the case of a ship—the stevedore with whom the operator has entered into a contract for the unloading of the cargo from the ship at a place in Australia; or
(b) in the case of an aircraft—the depot operator who will first receive the cargo after it has been unloaded from the aircraft at a place in Australia.
The report must be made electronically and must communicate such information as is set out in an approved statement (see subsection 64AAC(3)). In addition, the report must be made during the period within which a report under section 64 of the Customs Act of the impending arrival of the ship or aircraft is required to be made (see subsection 64AAC(4)).
An operator of a ship or aircraft who contravenes section 64AAC of the Customs Act commits a strict liability offence punishable, on conviction, by a penalty not exceeding 60 penalty units (see subsections 64AAC(6) and (7)).
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 to identify the stevedore or deport operator that are contracted by the operators of a ship or aircraft to unload cargo in that ship or aircraft. 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