EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 248
Issued by the Authority of the Minister for Justice and Customs
Customs Act 1901
Customs Amendment Regulations 2005 (No. 7)
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 Regulations is to omit the references to the Air Navigation Act in regulations 31AAA and 167 of the Customs Regulations 1926 (the Principal Regulations) and insert references to the Aviation Transport Security Act 2004 (the Aviation Transport Security Act).
Section 64AF of the Act sets out the circumstances in which the operator of an international passenger air service must provide access to passenger information to authorised officers of the Australian Customs Service (Customs). Authorised officers must only access such information for the purposes of performing his or her functions under a law of the Commonwealth prescribed by the Principal Regulations) Regulation 31AAA of the Principal Regulations previously prescribed the Air Navigation Act 1920 (the Air Navigation Act) for the purposes of section 64AF of the Act.
Section 186A of the Act provides that if a document is examined under section 186 and, as a result of the examination, a Customs officer is satisfied that the document, or part of the document may contain information relevant to the commission or attempted commission of an offence against a prescribed Act, the officer may make a copy of, or take an extract from, that document. Regulation 167 of the Principal Regulations previously prescribed the Air Navigation Act for the purposes of section 186.
The functions and offences under the Air Navigation Act that were relevant to the exercise of powers under sections 64AF and 186 of the Act were repealed on
10 March 2005 by Schedule 1 to the Aviation Transport Security (Consequential Amendments and Transitional Provisions) Act 2004. Those offences are now included in the Aviation Transport Security Act.
Therefore, it was necessary to omit the references to the Air Navigation Act in regulations 31AAA and 167 of the Principal Regulations and replace these with references to the Aviation Transport Security Act. This will ensure the ongoing exercise of the powers in sections 64AF and 186 of the Act by Customs officers in relation to the Aviation Transport Security Act.
No consultation was undertaken in relation to the Regulations as they are of a minor or machinery nature and do not substantially alter existing arrangements.
The Regulations commence on the day after they are registered.
0508539A
Overview
The Customs Amendment Regulations 2005 (No. 7) were enacted to address the legislative gap created by the repeal of certain offences under the Air Navigation Act 1920 and their subsequent inclusion in the Aviation Transport Security Act 2004. These Regulations amend the Customs Regulations 1926 by replacing references to the Air Navigation Act with references to the Aviation Transport Security Act in regulations 31AAA and 167, thereby ensuring the continuity of powers for Australian Customs Service officers to access and examine relevant information under sections 64AF and 186 of the Customs Act 1901. The objective of these amendments is to align the regulatory framework with the updated legislative context concerning aviation security, facilitating the enforcement of new aviation security offences without disrupting existing customs procedures. The Regulations were issued by the Minister for Justice and Customs under the authority granted by the Customs Act 1901.
Scope and Application
The Customs Amendment Regulations 2005 (No. 7) apply to the authorised officers of the Australian Customs Service and the operators of international passenger air services. These Regulations amend the Customs Regulations 1926 by replacing references to the Air Navigation Act 1920 with references to the Aviation Transport Security Act 2004. This change ensures that the customs officers can continue to exercise their powers under sections 64AF and 186 of the Customs Act 1901 in relation to the new aviation security legislation. The amendments are made under the authority granted by subsection 270(1) of the Customs Act, and the regulations are intended to be consistent with the overarching Act. The Regulations have a national jurisdictional reach, applying across all states and territories of Australia, and they came into effect on the day after they were registered. There are no stated exclusions or thresholds within these Regulations, and they do not substantially alter existing arrangements, which is why consultation was deemed unnecessary.
Key Provisions
The Customs Amendment Regulations 2005 (No. 7) make changes to the Customs Regulations 1926 by replacing references to the Air Navigation Act 1920 with references to the Aviation Transport Security Act 2004 in regulations 31AAA and 167. Regulation 31AAA, as amended, now references the Aviation Transport Security Act for the purposes of section 64AF of the Customs Act 1901, which requires operators of international passenger air services to provide passenger information to authorised Customs officers. This change ensures that Customs officers can access passenger information for the purposes of performing their functions under the Aviation Transport Security Act. Similarly, regulation 167, as amended, now references the Aviation Transport Security Act for the purposes of section 186 of the Customs Act, which allows Customs officers to make copies or take extracts from documents that may contain information relevant to offences under the Aviation Transport Security Act.
These changes impose obligations on the operators of international passenger air services to provide the necessary passenger information to Customs officers when requested, and on Customs officers to access and utilise this information in accordance with the provisions of the Aviation Transport Security Act. The amendment streamlines the legal framework by aligning the Customs Regulations with the new legislative environment following the repeal of relevant offences under the Air Navigation Act and their transfer to the Aviation Transport Security Act.
Breach of the provisions in the Customs Act or the amended Customs Regulations can lead to both civil and criminal consequences. For instance, failure to provide the required passenger information to Customs officers under section 64AF can result in civil penalties. Under section 283 of the Customs Act, the maximum penalty for a strict liability offence is 10,000 penalty units, which currently equates to AUD 1,100,000. In addition, offences related to the making of false statements or the provision of misleading information can lead to criminal penalties, with section 288 of the Customs Act prescribing a maximum penalty of 5,000 penalty units, or imprisonment for five years, or both. These stringent penalties underscore the importance of compliance with the regulations and the serious nature of any breaches.