EXPLANATORY STATEMENT
CUSTOMS ACT 1901
CUSTOMS REGULATIONS (AMENDMENT)
STATUTORY RULES 1990 NO. 148
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 ...”
The Statutory Rules amends the Customs Regulations (the Regulations) to declare goods specified in Regulation 42 of the Regulations to be goods for which there is no obligation upon the owner to keep commercial documents relating to the goods for a period of 5 years.
Background
Section 240 of the Act was introduced last year as part of the Customs package of measures to tighten control over the short-payment of duty for imported goods. Together with stronger penalties for false or misleading statements made on import documentation which result in a short-payment of duty, new post-entry audit powers were provided in Sections 214AA and 214AB. A corollary of the audit powers was the new requirement in new Section 240 that “import” documents be retained for a period of 5 years.
Subsection 240(7) of the Act provides a head of power for the exemption by regulation of classes of persons or kinds of documents from the record keeping obligation.
It is the intention of new Regulation 79A to prescribe documents relating to the classes of goods referred to in regulation 42 of the Regulations as documents of a kind to which the 5 year record keeping obligation of Section 240 does not apply. The classes of goods referred to in Regulation 42 are:
• goods contained in the personal baggage of a passenger in a ship or aircraft, not being goods that, to the knowledge or belief of the passenger, are intended to be sold, or used in the course of trading, in Australia;
• goods contained in the personal baggage of a member of the crew of a ship or aircraft, not being goods that, to the knowledge or belief of the member, are intended to be sold, or used in the course of trading, in Australia;
• goods, not being goods included in a class of goods specified in the above dot points, imported otherwise than for the purpose of being sold, or used in the course of trading, in Australia;
• goods the value of which does not exceed $1,000, being goods constituting one consignment by post by the same person to one person in Australia;
• goods the value of which does not exceed $250, being goods that are all consigned (otherwise than by post) by the same person to one person in Australia and are all transported to Australia in the same ship or aircraft;
• containers;
- that were manufactured in Australia;
- that are, when imported into Australia, the property of a person carrying on business in Australia; and
- that were the property of that person when, and have remained the property of that person since, they were exported or last exported from Australia;
• containers, other than those referred to above, that are intended for use principally in the international carriage of goods.
(S.R. 145/90)
Overview
The Customs Regulations (Amendment) Statutory Rules 1990 No. 148, issued under the authority of the Minister of State for Small Business and Customs, amends the Customs Regulations 1990 to address a specific gap in record-keeping requirements for certain classes of imported goods. The Customs Act 1901, which provides a framework for the regulation of customs and the administration of customs duty, was updated to include new requirements for the retention of import documents for a period of five years under Section 240. This was part of a broader set of measures aimed at tightening control over the underpayment of duty on imported goods, which included stronger penalties for false or misleading statements on import documentation and new post-entry audit powers.
The purpose of the amendment, as stated in the Explanatory Statement, is to exempt certain categories of goods from the five-year record-keeping obligation. These categories include goods carried in personal baggage by passengers or crew members, goods not intended for sale or trade, low-value goods sent by post or other means, and specific types of containers. By issuing these regulations, the government aims to balance the need for effective customs administration with the practicality of record-keeping for low-value or non-commercial imports.
Scope and Application
The Customs Regulations (Amendment) Statutory Rules 1990 No. 148, issued under the authority of the Minister of State for Small Business and Customs, amends the Customs Regulations to exempt certain classes of goods from the requirement to retain commercial documents for a period of five years. This amendment is designed to provide relief from the record-keeping obligations imposed by Section 240 of the Customs Act 1901, which was introduced to strengthen controls over the short-payment of duty for imported goods. The new Regulation 79A specifically exempts documents related to goods contained in the personal baggage of passengers or crew members, provided the goods are not intended for sale or trade in Australia. Additionally, it exempts goods imported for personal use that do not exceed certain monetary thresholds, containers manufactured in Australia and intended for international carriage, and containers that are the property of an Australian business both when exported and imported. This regulation extends the application of the Act by providing exemptions that are necessary or convenient to give effect to the Customs Act, subject to the overarching provisions of the Act and any other relevant subordinate instruments.
Key Provisions
The Customs Regulations (Amendment) Statutory Rules 1990 No. 148 amends the Customs Regulations under the Customs Act 1901. The main operative sections of these regulations pertain to the exemption of certain goods from the five-year commercial document retention requirement, as outlined in Regulation 42 of the Regulations (section 2). These exemptions are specified in new Regulation 79A and apply to various categories of goods, including personal baggage of passengers and crew members, goods not intended for sale or trade, and specific consignments by post or other transport means (section 3).
The Regulations impose obligations on the parties governed by them, particularly those involved in the import of goods into Australia. They require importers to retain commercial documents for five years, unless the goods fall under the exemptions specified in Regulation 79A (section 240). For the exempted classes of goods, no such document retention obligation exists, thereby relieving the burden on individuals and businesses concerning record-keeping for these specific categories (section 3).
The Statutory Rules also provide for potential consequences in the event of non-compliance with the document retention requirements. Under Section 240 of the Customs Act 1901, failure to retain the required documents for the stipulated period may result in administrative and legal repercussions. While the specific penalties for non-compliance are not detailed in the Explanatory Statement, the associated legislative framework suggests that penalties could include fines or other sanctions as determined by the applicable laws and regulations. The severity of the penalties would depend on the specific nature and circumstances of the non-compliance (section 240).