Overview

The Amendment of Guidelines Instrument No. 1 of 2011 was enacted to update the Infringement Notice Guidelines (2010) in line with the Customs Amendment (Export Controls and Other Measures) Act 2011. This instrument, developed by the Chief Executive Officer of Customs as required by section 243XA of the Customs Act 1901, serves to provide revised guidelines for the administration of Subdivision A of Division 5 of Part XIII of the Act, specifically concerning penalties that can be paid in lieu of prosecution for certain offences. The amended guidelines incorporate new strict liability offences, such as breaching the conditions of a warehouse licence and failing to comply with export directions, as well as existing offences that have been included in Subdivision A of Division 5. The instrument also reflects an administrative moratorium until 1 June 2012 for certain new offences and includes an exception for breaches of depot licence conditions due to compliance with aviation security directions. The changes were developed in consultation with industry groups and relevant committees, ensuring broad stakeholder input before implementation.

Scope and Application

The Amendment of Guidelines Instrument No. 1 of 2011 applies to the administration of Subdivision A of Division 5 of Part XIII of the Customs Act 1901, which pertains to penalties that can be paid in lieu of prosecution for certain offences. The Act applies to individuals and entities involved in activities subject to Customs control, particularly those who hold warehouse or depot licences, and those who deal with goods for export. The instrument, which amends the Infringement Notice Guidelines (2010), reflects recent legislative changes and includes new strict liability offences such as breaching the conditions of a warehouse licence and failing to comply with directions in relation to export goods, both introduced by the Customs Amendment (Export Controls and Other Measures) Act 2011. The geographic scope of this instrument is national, given that it pertains to the administration of the Commonwealth's Customs Act. The instrument does not explicitly state any exclusions or exemptions but incorporates an administrative moratorium until 1 June 2012 for the new offences, and a new exception for breaching depot licence conditions under specific compliance circumstances. The application of this instrument is further extended or restricted through subordinate instruments as needed to align with ongoing legislative changes.

Key Provisions

The main operative sections of the "Amendment of Guidelines Instrument No. 1 of 2011" are found within the Infringement Notice Guidelines, which have been revised to include new offences and administrative provisions (sections 1-3). These sections require the CEO of Customs to consider these updated guidelines when administering the penalties outlined in Subdivision A of Division 5 of Part XIII of the Customs Act 1901, particularly for offences that can be subject to penalties in lieu of prosecution. The guidelines now include the strict liability offence of breaching the conditions to which a warehouse licence is subject (section 82C), the strict liability offence of failing to comply with directions in relation to goods for export (section 112D), the strict liability offence of breaching the conditions imposed on a depot licence (section 77R), and the strict liability offence of failing to comply with directions given in relation to goods in a depot that are subject to Customs control. Additionally, the guidelines reflect an administrative moratorium until 1 June 2012 for the new offences and include a new exception in section 77R of the Act for breaches resulting from compliance with certain aviation security directions. The obligations imposed by the amended guidelines require the CEO of Customs to strictly adhere to the provisions outlined when exercising powers under Subdivision A of Division 5 of the Customs Act 1901. This includes considering the new offences, applying the updated administrative procedures, and ensuring that the guidelines are followed in the issuance of infringement notices. Furthermore, the CEO must take into account the administrative moratorium period for the new offences, during which specific actions may be deferred or altered. The CEO is also required to provide updated information to stakeholders through official channels such as the 'Compliance Update' and the Integrated Cargo System, ensuring that all relevant parties are informed about the changes in the guidelines. Breaches of the provisions outlined in the amended guidelines can lead to significant consequences. Firstly, any failure to comply with the guidelines when issuing infringement notices could result in the notices being deemed invalid, potentially leading to legal challenges and the need for prosecution in lieu of penalties. Secondly, the guidelines include specific offences with strict liability, meaning that intent is not required for a conviction; therefore, penalties can still be imposed even if the breach was unintentional. The maximum penalties for these offences vary but can include substantial fines and, in some cases, imprisonment. It is crucial for the CEO and other relevant parties to ensure strict adherence to these guidelines to avoid these severe repercussions.