EXPLANATORY STATEMENT
CEO Instrument of Approval No. 37 of 2005
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 (the CEO). Subsection 4A(2) of the Act provides that the instrument by which a form is approved 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 Instrument 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). Prior to 19 July 2005, subsection 71(1) of the Act provided that the owner of such goods “must, in any circumstances specified in the regulations, provide such information, at such time, and in such manner and form as the regulations specify...”.
On 19 July 2005, section 71 was repealed and replaced by the Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001. The requirement on a passenger to provide information about their accompanied personal or household effects is now contained in new section 71AAAB of the Act.
Regulation 41 of the Customs Regulations 1926 has been amended as a consequence of the enactment of new section 71AAAB and provides that if a Collector requires information under section 71AAAB of the Act, then it must be provided in an approved form or an approved statement. Under regulation 41, the CEO has previously approved, for the purposes of section 71 of the Act, Incoming Passenger Cards, in a number of languages, which are used by arriving passengers to provide information about the passengers accompanied personal or household effects.
The CEO has now approved the same Incoming Passenger Cards for the purposes of new section 71AAAB of the Act.
CEO Instrument No. 37 of 2005 approves the “Incoming passenger card” form (No. 15 THA (Design date 03/05)).
Consultation
No consultation was undertaken under section 17 of the Legislative Instruments Act 2003 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 the day after it is registered.
Overview
The Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001 was enacted to address gaps and issues within the existing framework of the Customs Act 1901, particularly in relation to the modernisation of international trade processes. The Act was passed by the Australian Parliament with the policy objective of streamlining customs procedures to better facilitate international trade. One significant change introduced by this legislation was the replacement of subsection 71(1) of the Customs Act 1901, which previously outlined requirements for passengers to provide information about their accompanied personal or household effects. This change was implemented to enhance efficiency and align the customs process with modern trade practices.
The Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001 also necessitated amendments to the Customs Regulations 1926. Specifically, it introduced new section 71AAAB, which replaced the previous requirements and now mandates that information about accompanied personal or household effects must be provided in an approved form or statement. This change was reflected in Regulation 41 of the Customs Regulations 1926, which was subsequently amended. The Chief Executive Officer of Customs approved the "Incoming passenger card" form, used by arriving passengers to provide the necessary information, to comply with the new section 71AAAB of the Act.
Scope and Application
The Customs Act 1901 applies to a broad range of entities, including individuals, businesses, and other organisations involved in the import and export of goods into and out of Australia. Specifically, in the context of the approval of the Incoming Passenger Card, the Act pertains to passengers arriving in Australia who are required to declare their accompanied personal or household effects. The Act extends to the entire Commonwealth of Australia and its external territories. The scope of the Act includes the regulation of the import and export of goods, and it is implemented through various legislative instruments, including subordinate regulations and approved forms. The CEO Instrument No. 37 of 2005, which approves the Incoming Passenger Card, is an example of such subordinate legislation that extends the application of the Customs Act 1901 by specifying the form through which passengers must provide required information. There are no exclusions or exemptions noted in the Act or the instrument for the application of the Incoming Passenger Card requirement. The approval of the form by the CEO is a minor or machinery instrument and, as such, did not require consultation under the Legislative Instruments Act 2003. The instrument comes into effect on the day after it is registered.
Key Provisions
The main operative sections of this legislation concern the approval of specific forms under the Customs Act 1901. Specifically, section 4A(1) defines an approved form as one that is approved in writing by the Chief Executive Officer (CEO) of Customs. This approval is necessary for the form to be legally valid under the Act. Section 4A(2) clarifies that the instrument approving a form is a disallowable instrument, meaning it can be annulled by a resolution of either House of Parliament (subsection 46A of the Acts Interpretation Act 1901). Additionally, the approval of these forms is considered a legislative instrument under paragraph 6(d) of the Legislative Instruments Act 2003.
The Act imposes certain obligations and requirements on the parties and entities it governs. For instance, it requires the CEO to approve specific forms for use under the Customs Act. This approval process ensures that the forms meet the legal standards and requirements set by the Act. Furthermore, under section 71AAAB of the Act, passengers are required to provide information about their accompanied personal or household effects if requested by a Collector, and this information must be provided in an approved form or statement as specified in regulation 41 of the Customs Regulations 1926. The CEO has approved the Incoming Passenger Cards in various languages for this purpose, ensuring that passengers can comply with the information requirements in a language they understand.
Failure to comply with the provisions of the Customs Act and the associated regulations can result in various penalties and legal consequences. Although the explanatory statement does not explicitly detail the penalties, under Australian law, breaches of customs regulations can lead to civil penalties, including fines, or criminal penalties, which may include imprisonment, depending on the severity and nature of the breach. The maximum penalties can vary widely based on the specific offence and the discretion of the court, but they can include substantial fines and potential imprisonment for more serious violations. The Act and associated regulations are designed to ensure compliance and facilitate the smooth operation of customs procedures.