EXPLANATORY STATEMENT
CEO Instrument of Approval No. 13 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. 13 of 2010 approves the "Incoming passenger card" form (No. 15 MLY (Design date 11/10)) as the approved form for the purposes of providing, in the Malay 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, enacted by the Parliament of Australia, is a comprehensive piece of legislation governing the regulation of customs and excise duties. One of its key provisions is the requirement for approved forms to be used for certain customs-related information, as defined by the Chief Executive Officer of Customs. The CEO Instrument No. 13 of 2010, issued under this Act, addresses a specific gap in the regulatory framework by approving the "Incoming passenger card" form in the Malay language for the declaration of accompanied personal or household effects of a passenger arriving by ship or aircraft. This update to the form, particularly the inclusion of the word "illegal" before "pornography" in Question 1, aims to clarify the type of pornography that must be declared, thereby enhancing compliance and enforcement in line with the policy objectives of the Customs Act. The instrument was issued without the need for consultation under section 17 of the Legislative Instruments Act 2003 as it is of a minor nature and does not substantially alter existing arrangements.
Scope and Application
The Customs Act 1901, as supplemented by the CEO Instrument No. 13 of 2010, applies to individuals who import goods into Australia as accompanied personal or household effects as passengers on ships or aircraft. The scope of the Act is confined to ensuring that these individuals provide necessary information about their imported goods in an approved form. The instrument specifically approves the "Incoming passenger card" form, now modified to include a reference to 'illegal pornography' in Question 1, to ensure that only illegal pornographic material is declared upon entry into Australia. This instrument operates nationally and applies to all persons importing such goods into the Commonwealth of Australia. There are no exclusions or exemptions specified in this instrument, though the Act itself exempts certain classes of goods from formal entry requirements. The scope of application may be further defined or extended through subordinate regulations or instruments. The CEO Instrument No. 13 of 2010 becomes effective the day after its registration on the Federal Register of Legislative Instruments.
Key Provisions
The main operative sections of this instrument, CEO Instrument No. 13 of 2010, relate to the approval of a form to be used by incoming passengers to declare certain items as part of their personal or household effects. Specifically, section 4A(1) of the Customs Act 1901 (the Act) mandates that an approved form is one that is approved by the Chief Executive Officer (CEO) of Customs through a written instrument. Section 4A(2) further clarifies that such an instrument is considered a disallowable instrument under section 46A of the Acts Interpretation Act 1901. This instrument also references paragraph 6(d) of the Legislative Instruments Act 2003, which recognises approved forms as legislative instruments.
In terms of obligations and requirements, the Act, under subsection 71AAAB(1), stipulates that the owner of goods, which are accompanied personal or household effects of a passenger, must provide specified information at the time and in the manner and form prescribed by the regulations. Regulation 41 of the Customs Regulations 1926 specifies that this information must be provided in an approved form or statement. The approved form, "Incoming passenger card" form (No. 15 MLY), approved by this instrument, is to be used for this purpose in the Malay language. The inclusion of the word 'illegal' before 'pornography' in the approved form aims to clarify the type of pornography that must be declared.
The instrument imposes no direct offences or penalties for its own breach but enforces compliance with the requirements set out in the Customs Act 1901 and the Customs Regulations 1926. Failure to provide the required information in the approved form or statement, as prescribed by the Act and the regulations, may result in penalties under the Customs Act 1901. These penalties can include fines and, in more serious cases, imprisonment, depending on the nature and severity of the non-compliance. The instrument, however, does not specify the maximum penalties, which would be determined by the relevant sections of the Customs Act 1901.