EXPLANATORY STATEMENT
CEO Declaration of Places No. 1 of 2005
Customs Act 1901
Background
Section 181 of the Customs Act 1901 (the Act) allows an agent to:
a) do any act or thing in relation to the goods that is required or permitted to be done by the owner of the goods under the Customs Acts; or
b) represent that he is able to do, or able to arrange to be done, any act or thing in relation to the goods that is required or permitted to be done by the owner under the Customs Acts.
However, subsection 181(2) of the Act provides that “[w]here the CEO, by notice published in the Gazette, declares that a place specified in the notice is a place to which this subsection applies, an owner of goods shall not authorize a person to be his agent for the purposes of the Customs Acts at that place unless that person is:
a) a natural person who is an employee of the owner and is not an employee of any other person; or
b) a customs broker at that place.”
On 23 March 1981, the former Minister of State for Business and Consumer Affairs (who previously had the power to declare places for the purposes of subsection 181(2)) declared the following places to be places to which subsection 181(2) applies:
Sydney | Newcastle |
Port Kembla | Melbourne |
Geelong | Brisbane |
Cairns | Townsville |
Perth | Fremantle |
Adelaide | Port Adelaide |
Hobart | Launceston |
Darwin | |
Hence, if a person wants to act as an agent of an owner of goods at any of these places, the person must be an employee of the owner (and not an employee of another person) or a customs broker at the place.
There are currently around 450 brokerages (corporate customs brokers or individual brokers who act in their own right) and 1800 nominee brokers .
To recognise the changes in the Customs environment and the ease of communicating with Customs from remote locations via computer, the Chief Executive Officer of Customs (the CEO) has declared all places in Australia to be places to which subsection 181(2) applies. This will mean that only brokers and employees will be able to satisfy an owners’ obligations under the Customs Acts in the whole of Australia.
Instrument
CEO Declaration of Places No. 1 of 2005 declares that all places in Australia are places to which subsection 181(2) applies and revokes the earlier instrument.
Consultation
No consultation was undertaken under section 17 of the Legislative Instruments Act 2003 before this instrument was made as it is of a minor or machinery nature and does not substantially alter existing arrangements.
Commencement
CEO Declaration of Places No. 1 of 2005 commences at the same time as import cut-over time (as defined in section 4 of the Customs Legislation Amendment (Application of International Trade Modernisation and Other Measures) Act 2004). Import cut-over time is 2 am AEST on 12 October 2005; or a later time specified by the CEO by legislative instrument.
Overview
The CEO Declaration of Places No. 1 of 2005 is an instrument under the Customs Act 1901 that was enacted to address the evolving customs environment and the increasing ease of remote communication with Customs via computer. The declaration was made by the Chief Executive Officer of Customs (the CEO) and expands the scope of subsection 181(2) of the Customs Act 1901, which previously restricted the ability of certain individuals to act as agents for the purposes of the Customs Acts at specified locations unless they were either an employee of the owner of the goods or a customs broker. The instrument declares that all places in Australia are now subject to these restrictions, thereby ensuring that only brokers and employees can satisfy an owner's obligations under the Customs Acts nationwide. The CEO Declaration of Places No. 1 of 2005 effectively revokes an earlier instrument that had specified certain locations, and it came into effect at the same time as the import cut-over time under the Customs Legislation Amendment (Application of International Trade Modernisation and Other Measures) Act 2004.
Scope and Application
The CEO Declaration of Places No. 1 of 2005, under Section 181(2) of the Customs Act 1901, extends the scope of the Act to cover all locations within Australia, thereby applying the restrictions on who can act as an agent for goods at any place in Australia. This legislative instrument effectively revokes the previous declaration which only applied to specific major ports and cities, and now mandates that only customs brokers or employees of the goods owner (not employees of any other entity) can serve as agents at any customs-related location across the country. This expansion is intended to reflect modern customs practices, including the increasing capability to manage customs obligations through remote communication and computer systems. The declaration came into effect at the same time as the import cut-over time specified in the Customs Legislation Amendment Act 2004, which is 2 am AEST on 12 October 2005, or a later time as determined by the CEO through a legislative instrument.
Key Provisions
The main operative sections of CEO Declaration of Places No. 1 of 2005, which is based on subsection 181(2) of the Customs Act 1901, declare that all locations in Australia are now subject to the conditions outlined in that subsection. This means that at these locations, the only individuals who can act as agents for the purposes of the Customs Acts are either employees of the goods owner who are not also employed by any other person or customs brokers operating at the location. This legislative instrument effectively revokes the earlier declaration made on 23 March 1981 by the former Minister of State for Business and Consumer Affairs, which had limited the application of these conditions to specified locations.
The Act imposes specific obligations and requirements on parties and entities it governs. Owners of goods are now required to ensure that any person acting as their agent at any location in Australia falls under one of the two categories specified: either they must be an employee of the goods owner who is not also employed by another entity, or they must be a customs broker registered at that location. This requirement is in place to maintain the integrity of the customs process and ensure that only qualified individuals can act on behalf of goods owners in customs-related matters.
Breach of the provisions set out in the CEO Declaration of Places No. 1 of 2005 may result in civil or criminal consequences. Under the Customs Act 1901, individuals or entities who do not comply with the Act's provisions may be subject to penalties. The maximum penalties for contraventions of the Customs Act can include substantial fines and, in some cases, imprisonment. Specifically, section 224 of the Customs Act provides for a penalty of up to 500 penalty units (currently AUD 50,000) for individuals and 2,500 penalty units (AUD 250,000) for bodies corporate for certain breaches. More serious offences may incur higher penalties, including longer terms of imprisonment. Compliance with the Act is therefore crucial to avoid these serious repercussions.