EXPLANATORY STATEMENT
Issued by the authority of the Comptroller-General of Customs
Customs Act 1901
Customs (Information Technology Requirements) Amendment (Australia Travel Declaration) Determination 2024
Legislative Authority
The Customs Act 1901 (Customs Act) concerns customs‑related functions and is the legislative authority that sets out the customs requirements for the importation, and exportation, of goods to and from Australia.
Subsection 126DA(1) of the Customs Act provides that, after consulting with persons likely to be affected, the Comptroller‑General of Customs must determine and cause to be published in the Commonwealth of Australia Gazette (being the Federal Register of Legislation):
- the information technology requirements that have to be met by persons who wish to communicate with the Department of Home Affairs electronically; and
- the information technology requirements that have to be met to satisfy a requirement that a person's signature be given to the Department of Home Affairs in connection with information when the information is communicated electronically; and
- the information technology requirements that have to be met to satisfy a requirement that a document be produced to the Department of Home Affairs when the document is produced electronically.
Subsection 126DA(2) of the Customs Act allows the Comptroller‑General of Customs to determine alternative information technology requirements that may be used, including different information technology requirements that may be used in different circumstances or by different classes of persons.
Background
The Australia Travel Declaration (ATD) is a digital declaration, introduced by the Home Affairs Legislation Amendment (Australia Travel Declaration and Other Matters) Regulations 2024 (Amendment Regulations), as an electronic alternative to completing the incoming passenger card. Consequently, a passenger who voluntarily and correctly completes and submits an ATD will relevantly be exempt from the requirement to complete the incoming passenger card on arrival under the Customs Regulation 2015 (Customs Regulation).
The information submitted as part of the ATD is for the purpose of facilitating information to be provided to an officer of Customs about goods that are accompanied or unaccompanied personal or household effects of a passenger (relevant goods). Such information includes the following:
- the person’s name and passport number.
- the name of the ship or the flight of the aircraft carrying the goods.
- whether the goods are prohibited or subject to restrictions.
- whether the goods include more than 2250mL of alcoholic beverages.
- whether the goods include more than 25 cigarettes or more than 25 grams of tobacco products.
- whether the goods obtained overseas or purchased duty free have a combine value of more than $900 for a passenger, and more than $450 for crew.
- whether the goods include samples intended for business or commercial use.
The information submitted will facilitate specified information in accordance with the Customs Act to be provided by a passenger for presentation to a Collector (within the meaning of section 8 of the Customs Act, which covers both the Comptroller-General and any officer of Customs) for consideration on whether to authorise or refuse to authorise the delivery of relevant goods into home consumption. The information will be submitted to the departmental system that processes the ATD.
Purpose and effect
The purpose of the Customs (Information Technology Requirements) Amendment (Australia Travel Declaration) Determination 2024 (Amendment Determination) is to amend the Customs (Information Technology Requirements) Determination 2021 (ITR Determination) to support the implementation of the Australia Travel Declaration (ATD).
The amendments contained in the Amendment Determination have the effect of setting out the information technology requirements specific to the submission of an ATD to departmental systems that process the ATD, including electronic signature requirements, by persons importing, or intending to import, their accompanied or unaccompanied personal or household effects into Australia.
The amendments also have the effect that information technology requirements specific to the communication of an ATD must be met by a person wishing to submit an ATD to the Department.
Consultation
The Amendment Determination was made available for public consultation in accordance with subsection 126DA(1) of the Customs Act by publication on the Department’s website, along with the Australian Custom Notice No. 2024/34. No submissions were received during the consultation period.
The Office of Impact Analysis was also consulted and advised that OIA24-07977 covers the Amendment Determination.
Details and operation
The Amendment Determination is a legislative instrument for the purposes of the Legislation Act 2003 (Legislation Act).
The Amendment Determination commences immediately after the commencement of the Home Affairs Legislation Amendment (Australia Travel Declaration and Other Matters) Regulations 2024, or on the day after the Amendment Determination is registered on the Federal Register of Legislation, whichever occurs latest.
Details of the Amendment Determination are set out at Attachment A.
Other
The requirement to publish in the Commonwealth of Australia Gazette under section 126DA(1) of the Customs Act is satisfied by registration of the instrument on the Federal Register of Legislation as a result of section 56 of the Legislation Act.
The combination of section 44 of the Legislation Act and table item 12 of regulation 10 of the Legislation (Exemptions and Other Matters) Regulation 2015 has the effect that section 42 of the Legislation Act (disallowance of legislative instruments) does not apply to an instrument made under section 126DA of the Customs Act.
The Amendment Determination is an instrument made under section 126DA of the Customs Act, and as such, is an instrument to which disallowance does not apply.
As the Amendment Determination is an instrument to which disallowance does not apply, a Statement of Compatibility with Human Rights is not required in accordance with paragraph 15J(2)(f) of the Legislation Act and subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011.
Section 48A of the Legislation Act automatically repeals a legislative instrument whose only legal effect is to amend or repeal one or more other legislative instruments. The only legal effect of the Amendment Determination is to amend the ITR Determination. The Amendment Determination will be repealed automatically by operation of section 48A of the Legislation Act, and as such, will not engage sunsetting under Part 4 of the Legislation Act.
ATTACHMENT A
Details of the Customs (Information Technology Requirements) Amendment (Australia Travel Declaration) Determination 2024
Section 1 Name
This section provides that the name of the instrument is the Customs (Information Technology Requirements) Amendment (Australia Travel Declaration) Determination 2024 (Amendment Determination).
Section 2 Commencement
This section sets out the time at which the provisions contained in the Amendment Determination commence.
It provides that the Amendment Determination will commence immediately after the commencement of the Home Affairs Legislation Amendment (Australia Travel Declaration and Other Matters) Regulations 2024, or on the day after the Amendment Determination is registered on the Federal Register of Legislation, whichever occurs later in time.
Section 3 Authority
This section sets out the authority under which the Amendment Determination is made, which is section 126DA of the Customs Act 1901 (Customs Act).
Section 4 Schedules
This section is the enabling provision for the schedules to the Amendment Determination and provides that, each instrument that is specified in a Schedule to the Amendment Determination, is amended as set out in the applicable items in the Schedule concerned, and that any other item in a Schedule to this instrument has effect according to its terms.
The instrument being amended is the Customs (Information Technology Requirements) Determination 2021 (ITR Determination).
Schedule 1—Amendments
Customs (Information Technology Requirements) Determination 2021
Item 1 Section 4 (after the definition of “Act”)
This item adds three new definitions into section 4 of the Customs (Information Technology Requirements) Determination 2021 (ITR Determination) after the definition of “Act”.
The first new definition is the definition of Australia Travel Declaration (ATD), which has the same meaning given by section 4 of the Customs Regulation 2015 (Customs Regulation). The Customs Regulation provides that the definition of Australia Travel Declaration, in relation to the importation of Subdivision AA goods by a person into Australia, means the digital declaration known by that name that is:
- submitted by the person in respect of that importation to the departmental system that processes such declarations; or
- if the person has submitted one or more subsequent declarations in respect of that importation—the most recently submitted declaration.
The second is the definition of Collector, which has the same meaning as given by section 8 of the Customs Act, being the Comptroller-General of Customs or any officer of Customs doing duty in the matter in relation to which the expression is used.
The third is the definition of Customs Regulation, which means the Customs Regulation 2015.
The purpose of these amendments is to set out the intended meaning of related terms as referred to in new section 8A inserted by item 3 of the Amendment Determination.
Item 2 Section 4 (after the definition “SMTP”)
This item adds the definition of Subdivision AA goods after the definition of “SMTP” in section 4 of the ITR Determination. The definition has the same meaning of Subdivision AA goods as given by section 71AAAA of the Customs Act.
Section 71AAAA of the Customs Act, referring to paragraph 68(1)(d) of that Act, defines Subdivision AA goods as accompanied or unaccompanied personal or household effects of a passenger or member of a crew of a ship or aircraft imported, or intended to be imported, into Australia. Section 71AAAA of the Customs Act also includes in the definition of Subdivision AA goods those goods that are prescribed by regulations made for the purposes of subsection 71AAAE(1) of that Act, which in turn provides that the regulations may prescribe goods that are excluded from being specified low value goods. Section 29 of the Customs Regulation sets out the Subdivision AA goods that are excluded from being specified low value goods for subsection 71AAAE(1) of the Customs Act.
Similar to the amendments made by item 1, the purpose of the amendment under item 2 is to set out the intended meaning of Subdivision AA goods as referred to in new section 8A inserted by item 3 of the Amendment Determination.
Item 3 After section 8
This item inserts new section 8A into Part 2 of the ITR Determination. The purpose of this section is to set out the information technology requirements specific to the submission of an ATD to the Department.
Part 2 of the ITR Determination identifies the information technology requirements for specified communications and signatures. Communication in these circumstances do not need to comply with the requirements set out in Part 3 of the ITR Determination, which provides the information technology requirement for general communications (see subsection 10(2) of the ITR Determination).
Subsection 8A(1)
New subsection 8A(1) sets out the circumstances in which the communication requirements in new subsection 8A(2) apply, namely where a person wishes to submit an ATD in respect of their Subdivision AA goods and causes an ATD to be submitted to the Department.
New paragraph 8A(1)(a) provides the first element for those circumstances, which is that the person wishes to submit an ATD in respect of the importation of their Subdivision AA goods. The paragraph also emphasises that an ATD includes the information specified in subsection 27(2) of the Customs Regulation about the person’s Subdivision AA goods. Subsection 27(2) sets out the information elicited by the customs related questions that are asked on the incoming passenger card, and that is sought for the purposes of sections 71 and 71AAAB of the Customs Act.
New paragraph 8A(1)(b) provides the second element for those circumstances, which is that the person causes the ATD to be submitted to the Department. A person causes an ATD to be submitted if they submit an ATD through the mobile device software application administered by an airline carrier or shipping line that is recognised by Departmental systems for the purposes of the ATD; or submits an ATD through a web form known as the Australia Travel Declaration, administered by the Department.
New paragraph 8A(1)(b) clarifies that one of the purposes for which a person submits an ATD is to have their Subdivision AA goods authorised by a Collector for delivery into home consumption under section 71 of the Customs Act, in accordance with section 71AAAB of that Act.
Three new notes are inserted at the end of new subsection 8A(1) to inform the reader of the general operation of the provisions referenced in the subsection.
Note 1 explains that subsection 27(2) of the Customs Regulation sets out the information in respect of Subdivision AA goods that is sought for the purposes of giving an authority to deal with the goods in accordance with sections 71 and 71AAAB of the Customs Act.
Note 2 clarifies that section 71 of the Customs Act empowers a Collector to make a decision whether or not to grant that authority.
Note 3 clarifies that section 71AAAB of the Customs Act is concerned with information a Collector must have regard to in making the decision mentioned in Note 2.
Subsection 8A(2)
New subsection 8A(2) sets out the information technology requirements which must be met for an ATD to be submitted to the Department. There are two ways in which an ATD may be submitted.
New paragraph 8A(2)(a) specifies that submission of an ATD to the Department must be a message using HTTPS (defined under section 4 of the ITR Determination as Hypertext Transfer Protocol Secure), that is capable of being received by the departmental system that processes ATDs. Once a person completes an ATD using the mobile device software application of an airline carrier or shipping line, this information will need to be submitted to the Departmental systems by HTTPS by the airline carrier or shipping line. The ATD will be capable of being received by departmental systems if the Department has made arrangements with the airline carrier or shipping line to recognise the message submitted to the Department through a mobile device software application developed for the purpose of submitting ATDs.
As an alternative way of submitting an ATD, new paragraph 8A(2)(b) specifies that an ATD may also be submitted using the web form administered by the Department, entitled the Australia Travel Declaration, for the purposes of persons wishing to submit an ATD.
Subsection 8A(3)
New subsection 8A(3) clarifies that a person who wishes to submit an ATD signs the ATD by inserting their full name as text into the ATD. The ATD will indicate a field where the person’s signature should be entered, and the ATD cannot be submitted until this information is provided. Electronic communications with the Department have signature requirements imposed upon them by section 71M of the Customs Act.