Customs Regulations (Amendment) 1991 No. 109
EXPLANATORY STATEMENT
STATUTORY RULES 1991 No. 109
CUSTOMS ACT 1901
CUSTOMS REGULATIONS (AMENDMENT)
ISSUED BY THE AUTHORITY OF THE MINISTER OF STATE FOR SMALL BUSINESS AND CUSTOMS
Section 270 of the Customs Act 1901 ("the Act") provides in part that "the Governor-General may make regulations not inconsistent with this Act prescribing all matters which by this Act are required or permitted to be prescribed or as may be necessary or convenient to be prescribed for giving effect to this Act or for the conduct of any business relating to the Customs ..."
Background
The Customs and Excise Legislation Amendment Act 1990 (Act No. 111 of 1990) amended the Act, amongst other things, to provide the legislative framework for the introduction of the electronic entry and cargo reporting system for exports ("EXIT"), and the consequential repeal of the Export Return Scheme.
The main feature of the amendments are:
• the introduction of an electronic option for the communication to Customs of information concerning goods intended for export, to complement the documentary export entry and manifest system; and
• computer transmission of export information via the EXIT computer system, access to which is conditional on registration as an EXIT user and entry into an Agreement with Customs setting out the terms and conditions of computer access for the purpose of communications relating to the export of goods.
These provisions will commence by Proclamation on 1 June 1991. A number of the provisions require the prescription of various matters by regulation.
The Statutory Rules amend the Customs Regulations to prescribe these various matters relating to the EXIT scheme.
Details of the amendments are as follows:
1) Commencement
Regulation 1.1 provides that these Regulations commence on 1 June 1991, being the date of commencement by Proclamation of the relevant EXIT provisions in the Customs and Excise Legislation Amendment Act 1990.
2) Amendment
Regulation 2.1 is a formal machinery provision which provides that the Customs Regulations are amended as set out in these Regulations.
3) New regulations 97 and 98
Regulation 3.1 inserts new regulations 97 and 98 into the Customs Regulations to prescribe:
- the absolute exemption of certain goods from the export entry requirement in section 113 of the Act, or the restriction of that exemption to certain classes of goods (new regulation 97); and
- the manner of giving an export entry advice under subsection 114C(1) of the Act (new regulation 98).
Details of the proposed regulations are as follows:
Entry of goods for export
new regulation 97 Subregulations (1) and (2) prescribe 4 kinds of goods which are to be excluded from the exemption from the export entry requirement in section 113 of the Act, (paragraphs 113(2)(b) and (c)). These goods will therefore be required to have entries for export lodged in respect of them. The goods are:
- goods on which a duty of Customs is payable and that duty is unpaid (new paragraphs 97(1)(a) and 97(2)(a));
- excisable goods (as defined in the Excise Act 1901) on which the excise duty is unpaid (new paragraphs 97(1)(b) and 97(2)(b));
- goods in respect of which a person intends to claim a drawback of either customs duty, excise duty or sales tax (new paragraphs 97(1)(c) and 97(2)(c)); and
- goods in respect of which sales tax is payable but unpaid under the Sales Tax Assessment Act (No. 5) 1930 (new paragraphs 97(1)(d) and 97(2)(d)).
The purpose of the above exceptions is to ensure that goods which would otherwise be liable to duty if not exported are in fact entered for export, so that exportation can in fact be checked if need be.
- An export entry provides an important evidentiary link in any documentary audit to establish exportation. Therefore, in the above circumstances, where a duty concession is involved, no exemption from the export entry requirement is desired.
Subregulations (3), (4) and (5) relate to the prescription, under paragraph 113(2)(f) of the Act, of goods exempted from the export entry requirement in section 113. That head of power permits exemption absolutely, or on such terms and conditions as may be prescribed.
Subregulation (3) exempts goods (other than petroleum products for use as fuel to provide locomotive power) that are aircraft's stores (as defined in Part VII of the Act); subject to 3 conditions:
- the goods must be supplied by a person whose business includes providing stores for aircraft engaging in international flights in accordance with an international airline licence issued under the Air Navigation Regulations (new paragraph (3)(a));
- the goods must be goods on which Customs duty or excise duty would be payable if entered for home consumption under subsection 68(1) of the Customs Act or subsection 58(1) of the Excise Act respectively; (new paragraph (3)(b)); like for instance, cigarettes or alcoholic beverages, and
- at all reasonable times the owner of the goods must make available to an officer for examination, records that show details of the receipt, use and disposal of the goods (new paragraphs (3)(c) and (5)(a) refer).
Subregulation (4) exempts aircraft's or ship's stores (as defined in Part VII of the Act).
i) if the stores are petroleum for use as fuel to provide locomotive power, subject to the conditions outlined in subregulation (5) below (new paragraph (4)(a)); and
ii) if the stores are not covered elsewhere in the regulation or would not be dutiable or excisable if entered for home consumption under either the Customs Act 1901 or Excise Act 1901, subject to the condition in paragraph (5)(a) (new paragraph (4)(b))
• The latter exemption basically covers ship's stores which would not be dutiable or excisable if entered for home consumption; like, for instance, normal groceries.
Subregulation (5) lists 2 conditions which apply variously to the export entry exemptions under paragraph 113(2)(f) of the Act in subregulations (3) and (4):
i) at all reasonable times the owner of the goods must make available to an officer for examination, records that show details of the receipt, use and disposal of the exempt goods (new paragraph (5)(a)); and
ii) a return in relation to the exempt goods in an approved form or approved statement must be lodged with Customs by the owner of goods within 7 days of the end of each month.
Export entry advices under section 114C of the Act
new regulation 98 prescribes the manner of giving an export entry advice under Section 114C of the Act in relation to an export entry (subregulation 1 and 2), and the details which must be contained in such an advice (subregulation 3).
If the export entry was transmitted to Customs by means of the EXIT computer system, the relevant export entry advice must also be given by means of that system (new subregulation (1)).
If however, the export entry has been communicated to Customs by documentary means, the relevant export entry advice may be given by either:
- the delivery of the advice by an officer of Customs to the owner, for instance, by handing the advice to the relevant exporter in person, (new paragraph (2)(a),); or
- making the advice available for collection during business hours at a place within a Customs Office that has been allocated to the owner for collection of documents from Customs (new paragraph (2)(b)); or
- transmitting the advice by facsimile to a number nominated by the owner on the entry (new paragraph (2)(c)); or
- posting the advice by pre-paid post to the postal address nominated by the owner on the entry (new paragraph (2)(d))
The export entry advice itself must contain
- the export entry advice number, being the Customs identifying number in respect of the entry to which the advice relates (new paragraph (3)(a));
This obligation is imposed by subsection 114C(2) of the Act.
- the identifying reference of the registered user (for computer entries) or the owner (for documentary entries) in respect of the entry to which the advice relates (new Paragraph (3)(b));
- a statement that the consignment of goods is cleared or not cleared for exportation (new paragraph (3)(c)); and
- the name of the owner of goods in the case of documentary entries (new paragraph (3)(d)).
4) Regulation 99 (Entry for export - required particulars)
Regulation 4.1 omits regulation 99 and substitutes 2 new regulations as follows:
Communication of entries, submanifests, manifests and withdrawals
new regulation 99 prescribes the manner in which a documentary entry, submanifest or any documentary withdrawal of such may be sent to the relevant officer referred to in subsection 119D(1) of the Act.
Section 119D of the Act specifies when the documents (export entries, submanifests, outward manifests, or withdrawals of same), are taken to have been communicated to Customs.
• The relevant officer in each case is the officer doing duty in relation to the particular document.
The document (or its withdrawal) may be sent to the relevant officer in two ways:
i) by facsimile transmission to a facsimile number specified by Customs for the purpose (new paragraph 99(1)(a)); or
ii) by pre-paid post to a postal address specified by Customs for the purpose (new paragraph 99(1)(b)).
The document will be taken to have been communicated to Customs at the time denoted by a stamp applied to the document by the relevant officer who receives it (new subregulations 99(2) and (3)).
Shipment of Goods
new regulation 100 prescribes 3 kinds of goods which are to be exempted from the obligation placed on the master of a ship or the pilot of an aircraft under section 120 of the Act. The proposed new regulation prescribes the goods which were previously the subject of specific exemptions in section 120 of the Act; although the regulation now makes a distinction between accompanied and unaccompanied baggage.
• Section 120 of the Act provides that the master of a ship or the pilot of an aircraft shall not suffer to be taken on board-his ship or aircraft any goods other than goods which are specified or referred to in the Outward Manifest or such other goods prescribed for the purposes of the section.
The 3 kinds of goods to be prescribed are:
- stores in respect of which a Collector has granted approval under subsection 129(1) of the Act (new paragraph 100(1)(a));
- ship's ballast approved by an officer doing duty in respect of the granting of Certificates of Clearance (new paragraph 100(1)(b)); and
- passenger's accompanied baggage as defined (new paragraph 100(1)(c)).
The third exemption for passenger's accompanied baggage is defined in subregulation (2) as goods taken through Customs personally by a passenger on departure from Australia (new paragraph 100(2)(a)); and goods consigned for transport as a passenger's allowed ticket baggage or excess baggage (other than that consigned as cargo on an airway bill or a bill of lading) (new paragraph 100(2)(b)).
Baggage consigned as cargo on an airway bill or a bill of lading (which is baggage not taken through the passenger departure area by a departing passenger), is to be the subject of a manifest in the same manner as other cargo.
5) Regulation 99A (Particulars required of goods exempted from entry for export)
Regulation 5.1 repeals regulation 99A as a consequence of the repeal of section 114A of the Act. The Export Return Scheme, which provided for post exportation reporting of export details, has been repealed. Particulars of exempt goods are now required pre-exportation, and are specified in approved forms or approved statements.
• An approved form is defined in subsection 4A(1) of the Act as a form approved by instrument in writing by the Comptroller-General. An approved statement is defined in similar terms in subsection 4A(1A) of the Act and refers to a means of approval of information which must be provided to Customs where a computer is used rather than documentary means to convey information.
- Both approved forms and approved statements are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901 and must be tabled in both Houses of Parliament.
6) Regulation 99B (Australian Harmonised Export Commodity Classification document)
Regulation 6.1 repeals regulation 99B since the requirements are now covered by approved forms or statements (see also the notes to regulation 5.1 above).
7) Regulation 100 (Goods exempt from entry for export)
Regulation 7.1 repeals regulation 100 since the entry exemptions provided by the regulation have now been transferred to subsection 113(2) of the Act.
8) Regulation 100A (Coal exempted from entry for export)
Regulation 8.1 repeals regulation 100A since this will now be covered by provisions in the Act relating to the Confirming Exporter Scheme (Section 114B) .
9) Regulation 101 (Forms for outward manifest)
Regulation 9.1 repeals regulation 101 as a consequence of those details now appearing in approved forms and statements (see also the notes to regulation 5.1 above).
10) Regulation 124 (Security for payment of duty)
Regulation 10.1 omits the reference "in accordance with Form 38" from paragraph 124(3)(c) since that Form has been repealed.
11) Regulation 134
Regulation 11.1 amends paragraph 134(1)(a) of the Regulations to include a reference to approved statements as well as approved forms. This will then cater for computer transmission of the relevant drawback information.
• Regulation 134 prescribes the conditions relating to the payment of drawback of import duty.
12) Regulation 179A (Commercial documents not required to be kept)
Regulation 12.1 repeals regulation 179A because it is redundant. Regulation 179A provides that for the purposes of section 240 of the Act commercial documents relating to goods specified in regulation 42 are declared to be commercial documents to which that section does not apply. Since section 240 is now only applicable to commercial documents which would enable a Collector to verify particulars on an entry and regulation 42 goods are exempt from the requirement for an entry, the regulation is redundant.
(S.R. 91R238)