EXPLANATORY STATEMENT

INFRINGEMENT NOTICE GUIDELINES (2006)

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 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 Division.  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 legislative instruments.

Background

The CEO approved guidelines when Division 5 of Part XIII was inserted into the Act on 1 July 2002.  Those guidelines were revoked in November 2004 and the CEO approved a new set of guidelines. The 2004 version of the guidelines have since been amended to provide clearer guidance to decision makers when deciding whether or not to serve an infringement notice. The amendments include:

a)        clearer descriptions of the relevant offences under the Customs Act;

b)        guidance on the impact of the Australia-United States Free Trade Agreement on the false and misleading statement offences in sections 243T and 243U of the Customs Act;

c)        clarification on the relevance of the number of false and misleading statement particulars or omissions in the relevant cargo or outturn report;

d)        clarification that when considering whether a breach is part of an ongoing pattern of non-compliance, the context of the person’s compliance history will be considered;

e)        clarification on the relevance of an overseas agent’s contribution to the commission of offences;

f)          clarification that an infringement notice will not be served where a person has made reasonable efforts to comply with regulatory requirements and the person has been unable to comply due to an identified Customs system problem.

Instrument

The instrument “Infringement Notice Guidelines (2006)” approves the Infringement Notice Guidelines (2006) as the new guidelines in respect of the administration of Division 5 of Part XIII of the Act.  This instrument also revokes CEO Instrument of Approval No. 21 of 2004 which approved the 2004 version of the guidelines.

Consultation

Consultation on the revised Infringement Notice Scheme Guidelines was conducted with Customs National Consultative Committee members. Additionally, submissions in relation to the revised Infringement Notice Scheme Guidelines were invited through a news item on the Customs Internet web page.

Commencement

The instrument commences on the day after it is registered.