Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS AMENDMENT REGULATIONS 2002 (NO. 2) 2002 NO. 98

STATUTORY RULES 2002 No. 98

Issued by the Authority of the Minister for Justice and Customs

Customs Act 1901

Customs Amendment Regulations 2002 (No. 2)

Section 270 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 for giving effect to the Act.

The purpose of the Regulations is to amend the Customs Regulations 1926 (the principal Regulations) to remove transitional and redundant regulations and insert new regulations which prescribe the ensigns that Commonwealth ships must fly and the ensigns or insignia that Commonwealth aircraft must display (items 1, 3 and 7).

The Regulations also:

•       prescribe as a travel expense accommodation allowances payable to Customs officers who are required to stay overnight to perform a function (item 2); and

•       increase rates of travel expense for travel by Customs officers to and from depots in line with the goods and services tax (items 4, 5 and 6).

Regulations 26 and 166A of the principal Regulations prescribed, pursuant to former sections 59 and 184 of the Act, ensigns and insignia that ships and aircraft in the service of the Commonwealth must fly or display. On 16 December 1999 those sections were repealed by the Border Protection Legislation Amendment Act 1999 (the Border Protection Legislation Amendment Act). That Act also inserted new definitions of 'Commonwealth aircraft' and 'Commonwealth ship' into subsection 4(1) of the Act. 'Commonwealth aircraft' was defined to mean 'an aircraft that is in the service of the Commonwealth and displaying the prescribed ensign or insignia' and 'Commonwealth ship' was defined to mean 'a ship that is in the service of the Commonwealth and flying the prescribed ensign'.

Item 51 of Schedule 2 to the Border Protection Legislation Amendment Act contains a transitional provision which provides in part that for the purposes of the new definitions of Commonwealth aircraft and Commonwealth ship in subsection 4(1), the ensigns and insignia are those prescribed for the purposes of repealed section 59 of the Act (that is the ensigns and insignia prescribed in regulation 26 of the principal Regulations). Under item 51 of Schedule 2 that transitional arrangement continues to operate until new regulations are made under subsection 4(1) of the Act prescribing ensigns and insignia for the purposes of the definitions of 'Commonwealth aircraft' and 'Commonwealth ship'. The Regulations prescribe the ensign and insignia that an aircraft must display and the ensign that a ship must fly in order to be a 'Commonwealth aircraft' or a 'Commonwealth ship' for the purposes of the Act.

Details of the Regulations are set out in the Attachment.

The Regulations commenced on gazettal.

ATTACHMENT

CUSTOMS AMENDMENT REGULATIONS 2002 (No. 2)

Regulation 1 - Name of Regulations

Regulation 1 provides that these Regulations are the Customs Amendment Regulations 2002 (No. 2).

Regulation 2 - Commencement

Regulation 2 provides that the Regulations commence on gazettal.

Regulation 3 - Amendment of Customs Regulations 1926

Regulation 3 provides that Schedule 1 amends the Customs Regulations 1926 (the Regulations).

SCHEDULE 1 - AMENDMENTS

Item 1 -After regulation 1B

Item 1 inserts new regulation 1C into the Regulations.

Prior to 16 December 1999, section 59 of the Act provided that the person in command of a ship in the service of the Commonwealth, on which the prescribed ensign of the ship was flying, could request the master of certain other ships to permit his or her ship to be boarded for the purposes of that Act. Further, the person in command of an aircraft in the service of the Commonwealth, on which the prescribed ensign or prescribed insignia of the aircraft was displayed, could request the master of certain ships to permit his or her ship to be boarded for the purposes of the Act. The person in charge of that aircraft could also request the pilot of certain aircraft to land his or her aircraft at the nearest airport for boarding for the purposes of the Act. Regulation 26 of the Regulations prescribed ensigns and insignia for the purposes of section 59.

In addition, section 184 of the Act provided that where a request made under section 59 was not complied with the person in command of the ship in the service of the Commonwealth, on which the prescribed ensign of the ship was flying, or of the aircraft in the service of the Commonwealth, on which the prescribed ensign or prescribed insignia of the aircraft was displayed, could use his or her ship to chase the other ship or aircraft. Regulation 166A of the Regulations prescribed ensigns and insignia for the purposes of section 184.

On 16 December 1999 the Border Protection Legislation Amendment Act 1999 (the Border Protection Legislation Amendment Act) repealed sections 59 and 184 and inserted sections 184A to 184D into the Act which allow commanders of Commonwealth ships and Commonwealth aircraft to make requests to board and land and to chase other ships and aircraft.

Definitions of 'Commonwealth ship' and 'Commonwealth aircraft' were inserted into subsection 4(1) of the Act as follows:

Commonwealth aircraft means an aircraft that is in the service of the Commonwealth and displaying the prescribed ensign or prescribed insignia.

Commonwealth ship means a ship that is in the service of the Commonwealth and flying the prescribed ensign.

Item 51 of Schedule 2 to the Border Protection Legislation Amendment Act contains a transitional provision which provides in part that for the purposes of the new definitions of Commonwealth aircraft and Commonwealth ship in subsection 4(1), the ensigns and insignia are those prescribed for the purposes of repealed section 59 of the Act (that is the ensigns and insignia prescribed in regulation 26 of the Regulations). Under item 51 of Schedule 2 that transitional arrangement continues to operate until new regulations are made under subsection 4(1) of the Act prescribing ensigns and insignia for the purposes of the definitions of 'Commonwealth aircraft' and 'Commonwealth ship'.

New subregulation 1C(1) prescribes the ensigns and insignia that an aircraft must display in order to be a Commonwealth aircraft for the purposes of the Act. The ensigns are for an aircraft in the service of Customs - the Customs flag; and for any other aircraft - the Australian National Flag. The insignia are for aircraft in the service of Customs - the word 'CUSTOMS', displayed in letters at least 150 millimetres high; and for aircraft in the service of the Australian Defence Force - a disc that displays, within a blue rim the inner diameter of which is two-thirds of the diameter of the disc, a red silhouette of a kangaroo on a white background.

New subregulation 1C(2) prescribes the ensigns that a ship must fly in order to be a Commonwealth ship. They are for a ship in the service of Customs - the Customs flag; for a ship in the service of the Royal Australian Navy - the ensign of the Royal Australian Navy; and for any other ship - the Australian National Flag.

Item 2 - After subregulation 20 (3)

Item 2 inserts new subregulation 20(4) to include a new travel expense for the purposes of paragraphs 28(3)(b) and 28(5)(b) of the Act.

Subsection 28(1) of the Act provides that the regulations may prescribe the days and hours on which officers of Customs are to be available to perform specified functions. Subsection 28(2) of the Act provides that if, at the request of a person, a Collector arranges for an officer to perform a function at a place outside the hours prescribed for that function, the person must pay to Customs an overtime fee. The overtime fee consists of a prescribed hourly rate and any prescribed travel expenses (subsection 28(3)).

Subsection 28(4) provides that if, at the request of a person, a Collector arranges for an officer to be available to perform a function at a place at which that function is not normally performed and during the hours prescribed for that function, the person must pay to Customs a location fee. The location fee consists of an hourly rate plus any prescribed travel expenses (subsection 28(5)).

Where an officer is required to stay overnight to perform a function at a place outside the hours prescribed for that function or to perform a function at a place at which such a function is not normally performed, an accommodation allowance is payable to the officer by Customs. For example, if the master of a foreign yacht requests inwards clearance of his or her vessel at Shute Harbour (which is not an appointed port under section 15 of the Act), a Customs officer from Mackay or Townsville would be required to travel to Shute Harbour to perform the clearance functions. If the officer is required to stay overnight, he or she is entitled to be paid an accommodation allowance.

Item 2 makes the whole of any accommodation allowance paid to the officer by Customs a travel expense.

Item 3 - Regulation 26

This item omits regulation 26 which is no longer needed as the head of power under which it was made, that is section 59 of the Act, has been repealed.

Item 4 - Subparagraph 48 (2) (a) (i)

Item 5 - Subparagraph 48 (2) (a) (ii)

Depots are places which may be licensed for the purposes of holding imported goods subject to Customs control and goods for export that are subject to Customs control and for the unpacking and packing and examination of such goods. Depot licences are subject to certain conditions set out in section 77N of the Act. One of these conditions (under subsection 77N(3)) is that the holder of a depot licence must pay to Customs any prescribed travelling expenses for any travel by a Collector to and from the depot. The regulations may prescribe the rates of travelling expenses.

Regulation 48 sets out the rates of travelling expenses for travel to and from a depot. These rates were not increased following the introduction of the goods and services tax (GST) which is payable on these expenses.

Existing paragraph 48(2)(a)(i) prescribes an hourly rate of $37.00 (during normal working hours) for travel to and from a depot. Item 3 increases this rate to $40.10.

Existing paragraph 48(2)(a)(ii) prescribes an hourly rate of $40.00 (outside normal working hours) for travel to and from a depot. Item 4 would increase this rate to $43.35.

Item 6 - Subparagraph 48 (2) (b) (ii)

Existing paragraph 48(2)(b)(ii) prescribes the travelling expenses for travel to and from a depot by motor vehicle (other than taxi) at 53.5 cents per kilometre. Item 5 increases this rate to 58 cents per kilometre.

Item 7 - Regulation 166A

This item omits regulation 26 which is no longer needed as the head of power under which it was made, that is section 185 of the Act, has been repealed.