EXPLANATORY STATEMENT
AMENDMENT OF gUIDELINES INSTRUMENT NO. 1 OF 2011
Customs Act 1901
Section 243XA of the Act provides that the Chief Executive Officer of Customs (the CEO) must develop written guidelines in respect of the administration of Subdivision A of Division 5 of Part XIII of the Customs Act 1901 (the Act) to which he or she must have regard when exercising powers under that Subdivision. Subdivision A of Division 5 relates to penalties that can be paid in lieu of prosecution for certain offences. Section 243XA provides that the guidelines are a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. Under paragraph 6(d) of the Legislative Instruments Act 2003, the guidelines are a legislative instrument.
Background
On 15 June 2010, the CEO approved the Infringement Notice Guidelines (2010). The 2010 version of the guidelines has since been amended to reflect changes made to the Act since these guidelines were approved.
The amended guidelines include the following new offences that were inserted in the Act by the Customs Amendment (Export Controls and Other Measures) Act 2011 and that were also included in Subdivision A of Division 5;
a) The strict liability offence of breaching the conditions to which a warehouse licence is subject (new section 82C); and
b) The strict liability offence of failing to comply with directions in relation to goods for export that are subject to Customs control (new section 112D).
The amended guidelines also include the following existing strict liability offences that have been included in Subdivision A of Division 5 by the Customs Amendment (Export Controls and Other Measures) Act 2011;
a) The strict liability offence of breaching the conditions imposed on a depot licence (section 77R); and
b) The strict liability offence of failing to comply with directions given relation to goods in a depot that are subject to Customs control.
The amended guidelines also include the administrative moratorium, which applies until 1 June 2012, in relation to the new offences contained in sections 82C and 112D of the Act, and the new offences that have been included in Subdivision A of Division 5;
The amended guidelines also reflect the new exception in section 77R of the Act for breaching the conditions imposed on a depot licence. This exception provides that section 77R does not apply if:
(a) the holder of a depot licence breaches a condition of the licence referred to in subsection 77R(1); and
(b) the breach occurred only as a result of the holder’s compliance, or attempted compliance, with a direction given under section 21 of the Aviation Transport Security Act 2004, or a special security direction (within the meaning of section 9 of that Act), that applies to the holder.
Instrument
The instrument “Amendment of Guidelines Instrument No. 1 of 2011” amends the Infringement Notice Guidelines (2010).
Consultation
Consultation on the revised Infringement Notice Scheme Guidelines was conducted with industry groups and members of the Customs and Border Protection National Consultative Committee including the Law Council of Australia, Shipping Australia Limited, the Customs Brokers and Forwarders Council of Australia and the Conference of Asia Pacific Express Carriers. Information regarding the changes has been advised through the 'Compliance Update' which is posted on Customs and Border Protection's internet site and messaged through the Integrated Cargo System.
Commencement
The instrument commences on the commencement of Schedules 1 and 2 to the Customs Amendment (Export Controls and Other Measures) Act 2011. This date is to be determined by Proclamation.