EXPLANATORY STATEMENT
CEO Instrument of Approval No. 12 of 2010
Customs Act 1901
Subsection 4A(1) of the Customs Act 1901 (the Act) defines an approved form as a form that is approved, by instrument in writing, by the Chief Executive Officer of Customs (CEO). Subsection 4A(2) of the Act provides that the instrument by which a form is approved by the CEO under subsection 4A(1), is 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, approved forms are legislative instruments.
Background
Paragraphs 68(1)(d) to (i) of the Act list certain classes of goods which, if imported into Australia, are not required to be entered. Goods that are the accompanied personal or household effects of a passenger of a ship or an aircraft are such a class of goods (paragraph 68(1)(d) refers). Despite being exempt from formal import entry requirements, subsection 71AAAB(1) of the Act provides that the owner of such goods must, in the circumstances specified in the regulations, provide, under section 71, the information specified in the regulations at the time and in the manner and form specified in the regulations.
Regulation 41 of the Customs Regulations 1926 provides that if a Collector requires information under subsection 71AAAB(1) of the Act, then it must be provided in an approved form or an approved statement.
Instrument
CEO Instrument No. 12 of 2010 approves the "Incoming passenger card" form (No. 15 KOR (Design date 11/10)) as the approved form for the purposes of providing, in the Korean language, information required under subsection 71AAAB(1) of the Act in relation to imported goods that are accompanied personal or household effects of a passenger of a ship or aircraft.
The main change from the previously approved "Incoming passenger card" form involves the inclusion in Question 1 of the word ‘illegal’ immediately before the word 'pornography.’ The “Incoming passenger form” as it currently reads includes all pornography. By including an express reference to 'illegal pornography' is intended to clarify the type of pornography that must be declared.
Consultation
Consultation was not required under section 17 of the Legislative Instruments Act 2003 as the instrument is of a minor or machinery nature and does not substantially alter existing arrangements. However, Customs and Border Protection has consulted with key stakeholders including Classification Operations Branch of the Attorney-General’s Department and the key association representing the Australian adult retailers and entertainment industry about the preferred approach to amending the wording of the IPC to clarify the type of pornography to be declared on arrival.
Commencement
The instrument commences on the day after it is registered on the Federal Register of Legislative Instruments.
Overview
The Customs Act 1901 was enacted to regulate the importation and exportation of goods in Australia, ensuring compliance with relevant laws and policies. CEO Instrument No. 12 of 2010, introduced by the Chief Executive Officer of Customs under the authority of the Customs Act, addresses a specific need to clarify the type of pornography that must be declared by incoming passengers. This instrument approves a revised "Incoming passenger card" form, which now explicitly includes 'illegal' before 'pornography' to better align with the requirements set out in subsection 71AAAB(1) of the Act. The policy objective behind this amendment is to enhance clarity and precision in customs declarations, ensuring that only illegal pornography is subject to declaration, thereby aiding enforcement efforts. The instrument was not subject to formal consultation as it does not significantly alter existing arrangements but involved discussions with relevant stakeholders to refine the form's wording.
Scope and Application
The Customs Act 1901 applies to the regulation of goods imported into Australia, including the procedures and forms required for the declaration and entry of these goods. Within this framework, CEO Instrument No. 12 of 2010 specifically pertains to the approval of forms used for providing information regarding accompanied personal or household effects of passengers arriving by ship or aircraft. This instrument is applicable to individuals who are owners of such goods and are required to declare them upon entry into Australia. The approved form, the "Incoming passenger card," must be used to provide the specified information in the Korean language, as indicated by the instrument. This legislative instrument is a part of the Commonwealth jurisdiction and is designed to ensure compliance with the requirements set out in the Customs Act 1901 and the Customs Regulations 1926. The instrument does not require consultation as it is considered minor and of a machinery nature, although it does include feedback from relevant stakeholders to refine the declaration process for illegal pornography. The instrument comes into effect on the day it is registered on the Federal Register of Legislative Instruments.
Key Provisions
The key operative sections of the CEO Instrument No. 12 of 2010, in relation to the Customs Act 1901, are found in subsection 4A(1) and subsection 4A(2). Subsection 4A(1) defines an approved form as one that has been approved by the Chief Executive Officer of Customs through a written instrument. Subsection 4A(2) specifies that this approval instrument is a disallowable instrument under section 46A of the Acts Interpretation Act 1901. The instrument also aligns with the legislative instruments as per paragraph 6(d) of the Legislative Instruments Act 2003.
This legislation imposes specific obligations on the parties involved. For instance, according to subsection 71AAAB(1) of the Customs Act 1901, the owner of accompanied personal or household effects of a passenger must provide certain information specified in regulations at the required time, manner, and form. Regulation 41 of the Customs Regulations 1926 further mandates that this information must be provided in an approved form or an approved statement. The CEO Instrument No. 12 of 2010 approves the "Incoming passenger card" form as the required document for providing information in the Korean language about such imported goods.
The Act does not explicitly outline specific offences, penalties, or consequences for breach in the provided text. However, it is implicit that failure to comply with the requirements to provide the necessary information as specified under the Customs Act 1901 and its regulations could potentially lead to enforcement actions by Customs and Border Protection. The precise nature of these consequences would depend on the broader context of the Customs Act 1901 and any related regulations or administrative actions taken by Customs and Border Protection.
The CEO Instrument No. 12 of 2010, which approves the updated "Incoming passenger card" form, clarifies the type of pornography that must be declared on arrival by including the term ‘illegal’ before ‘pornography.’ This change aims to ensure that only illegal pornography is subject to declaration. Although consultation was not mandated for this minor instrument, Customs and Border Protection did consult with relevant stakeholders to determine the appropriate wording for the card. The instrument comes into effect on the day following its registration on the Federal Register of Legislative Instruments.