EXPLANATORY STATEMENT
STATUTORY RULES 2004 NO. 367
Issued by the Authority of the Minister for Justice and Customs
Customs Act 1901
Customs Amendment Regulations 2004 (No. 9)
Subsection 270(1) of the Customs Act 1901 (the Act) provides, in part, that the Governor‑General may make regulations not inconsistent with the Act prescribing all matters which by the Act are required or permitted to be prescribed or as may be necessary or convenient to be prescribed for giving effect to the Act or for the conduct of any business relating to the Customs.
The purpose of the amending Regulations is to amend the Customs Regulations 1926 (the Principal Regulations) to prescribe the class of ships for which reports of departing passengers and crew will have to be reported to Customs.
Item 1 of Schedule 3 to the Customs Legislation Amendment (Airport, Port and Cargo Security) Act 2004 (item 1) will insert Part VB into the Act. This item will commence on 13 January 2005 unless proclaimed to commence earlier. It is not proposed to proclaim it to commence earlier.
Subdivision A of Division 1 of Part VB will require the operator of certain ships and aircraft that are due to depart:
a) from a place in Australia at the beginning of a journey to a place outside Australia (whether or not the journey will conclude outside Australia); or
b) from a place in Australia in the course of such a journey;
to report the people on board or expected to be on board the ship or aircraft when it departs each place.
Three reports will have to be provided for each place on a relevant journey: the first between 72 and 48 hours before the time the ship or aircraft is due to depart the place, the second between 10 and 4 hours before that time and the third before the ship or aircraft departs. The second and third reports do not have to include anyone reported earlier.
New subsection 106A(1) of the Act will provide that these reporting requirements apply to a ship or aircraft of a kind prescribed by regulations made for the purposes of section 106A. New subsection 106A(2) of the Act will provide that regulations made for the purposes of section 106A may specify kinds of ships or aircraft by reference to particular matters, including any or all of the following matters:
a) the type, size or capacity of the ship or aircraft;
b) the kind of operation or service in which the aircraft or ship will be engaged on journeys from Australia;
c) other circumstances relating to the ship or aircraft or its use, or relating to the operator of the ship or aircraft.
The amending Regulations prescribe the kind of ships that are subject to Subdivision A of Division 1 of Part VB. They are international passenger cruise ships. These are ships that:
a) have sleeping facilities for at least 100 persons (other than crew members); and
b) are being used to provide a service of sea transportation of persons from a place in Australia to a place outside Australia that:
− is provided in return for a fee payable by persons using the service; and
− is available to the general public.
The Australian Customs Service (Customs) does not have facilities at most ports to process passengers and crew using electronic systems. The amending Regulations ensure that Customs can conduct any necessary checks, before the passengers and crew of international passenger cruise ships arrive at the ship, in order to process those passengers and crew.
Since Customs does have electronic processing facilities at the airports that aircraft currently depart Australia from, it is not proposed to prescribe any kinds of aircraft.
The amending Regulations commence on 13 January 2005, to coincide with the commencement of item 1.
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Overview
The Customs Amendment Regulations 2004 (No. 9) were enacted by the Australian government to address a specific gap in the Customs Act 1901. The Customs Legislation Amendment (Airport, Port and Cargo Security) Act 2004 introduced a requirement for certain ships and aircraft departing from Australia to report the people on board or expected to be on board. The amending Regulations were made under subsection 270(1) of the Customs Act 1901, which empowers the Governor-General to make regulations necessary or convenient for giving effect to the Act. The primary objective of these regulations is to ensure that the Australian Customs Service can conduct necessary checks on passengers and crew before they arrive at the ship, especially given the lack of electronic processing facilities at most ports for ships, unlike airports for aircraft. The Regulations, which came into effect on 13 January 2005, prescribe the kind of ships subject to these reporting requirements, specifically international passenger cruise ships that have sleeping facilities for at least 100 persons and provide sea transportation services available to the general public.
Scope and Application
The Customs Amendment Regulations 2004 (No. 9) amends the Customs Regulations 1926 to implement the Customs Legislation Amendment (Airport, Port and Cargo Security) Act 2004, specifically focusing on the reporting requirements for departing passengers and crew of certain ships. These regulations apply to international passenger cruise ships that have sleeping facilities for at least 100 persons, excluding crew members, and are used to provide a fee-based sea transportation service from Australia to a destination outside Australia that is available to the general public. The regulations are designed to ensure that the Australian Customs Service can conduct necessary checks on passengers and crew before they arrive at the ship, as electronic processing facilities are not available at most ports. The regulations specify that the reporting must occur three times: the first report must be submitted between 72 and 48 hours before departure, the second between 10 and 4 hours before departure, and the third immediately before departure, with the latter two reports not needing to include individuals already reported. The regulations do not apply to aircraft as electronic processing facilities are available at Australian airports from which aircraft depart. These amendments are set to commence on 13 January 2005, aligning with the commencement of the new provisions in the Customs Act 1901.
Key Provisions
The Customs Amendment Regulations 2004 (No. 9) primarily amend the Customs Regulations 1926 by prescribing the class of ships for which reports of departing passengers and crew must be submitted to Customs, in line with the Customs Legislation Amendment (Airport, Port and Cargo Security) Act 2004. This amendment introduces new obligations for the operators of certain ships that are due to depart from a place in Australia at the beginning of a journey to a place outside Australia, or in the course of such a journey. According to section 106A(1) of the Customs Act 1901, these reporting requirements apply to ships of a kind prescribed by regulations made under section 106A. Specifically, these regulations identify international passenger cruise ships as the class of ships subject to these reporting requirements.
Under the new provisions, the operator of these ships must submit three reports for each place on a relevant journey. The first report must be submitted between 72 and 48 hours before the ship is due to depart, the second report between 10 and 4 hours before departure, and the third report just before the ship departs. The second and third reports do not need to include individuals already reported earlier. This systematic approach ensures that Customs has sufficient information to conduct necessary checks before passengers and crew arrive at the ship. The regulations also specify that the ship must have sleeping facilities for at least 100 persons (excluding crew members) and must provide a service of sea transportation from a place in Australia to a place outside Australia that is available to the general public and provided in return for a fee.
Operators of international passenger cruise ships must comply with these reporting requirements to avoid any breaches of the Act. Failure to submit the required reports may result in non-compliance with the Customs Act 1901, potentially leading to enforcement actions by Customs. Although the amending Regulations do not specify any particular penalties for breaches of these reporting requirements, any breaches of the Customs Act 1901 generally may result in civil or criminal consequences, including fines and imprisonment, depending on the nature and severity of the breach. The maximum penalties for offences under the Customs Act can be substantial, reflecting the seriousness of non-compliance with customs regulations.