Commonwealth Numbered Regulations - Explanatory Statements

[Index] [Search] [Download] [Related Items] [Help]

CUSTOMS AMENDMENT REGULATIONS 2004 (NO. 5) 2004 NO. 259

Subsection 270(1) 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 or as may be necessary or convenient to be prescribed for giving effect to the Act or for the conduct of any business relating to the Customs.

The Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001 (the ITM Act) contains amendments to the Act. The amendments in the ITM Act relating to goods for export and the departure of ships and aircraft (the ITM exports amendments) have been proclaimed to commence on 22 September 2004. Consequential amendments to the Customs Regulations 1926 (the Principal Regulations) were made by the Customs Amendment Regulations 2004 (No. 3).

The purpose of the amending Regulations is to expand two of the regulations contained in the Customs Amendment Regulations 2004 (No. 3); amend existing regulations in, and insert new regulations into, the Principal Regulations to reflect the changes to the Act that will be made by the ITM Act; and repeal an unnecessary regulation.

The ITM exports amendments repeal the provisions of the Act that relate to the computer system, known as EXIT, that is currently used to communicate with Customs in relation to goods for export, and the departure of ships and aircraft from Australia. Those provisions will be replaced with a requirement that the Chief Executive Officer of the Australian Customs Service (the CEO) maintain information systems to enable persons to communicate electronically with Customs. This new system is known as the Integrated Cargo System or the ICS. Under the transitional arrangements contained in the Customs Legislation Amendment Act (No. 2) 2003 (the Amendment Act), the CEO must specify a cut-over time from the current system to the new system. This time is proposed to be 2am in the Australian Capital Territory on 6 October 2004. During the period between the commencement of the ITM exports amendments (ie 22 September 2004) and the cut-over time (ie 2am in the Australian Capital Territory on 6 October 2004) (the transition period) EXIT and the ICS will both operate. The Amendment Act provides that during the transition period the ICS must be used to communicate information to Customs about the exportation of goods and the departure of ships and aircraft where the intended time of exportation or departure is at or after the cut-over time. Communications made during the transition period about exportations and departures intended to occur before the cut-over time must be made using EXIT.

Schedule 1 to the amending Regulations:

•       prescribes the day on which certain declarations must be given to Customs;

•       prescribes the information that must be included in an application for a Certificate of Clearance;

•       prescribes the ships and aircraft in respect of which the master or owner of the ship or the pilot or owner of the aircraft may provide an outward manifest to Customs by document or electronically before the ship or aircraft departs Australia;

•       prescribes the manner in which certain documentary communications may be sent to an officer of Customs and the time and circumstance in which they are taken to be communicated to Customs;

•       clarifies the circumstance in which a Certificate of Clearance may be granted for a ship before the inward cargo and stores of the ship have been accounted for; and

•       repeals an unnecessary regulation.

Schedule 2 to the amending Regulations commences at the same time as the proposed cut-over time, tam in the Australian Capital Territory on 6 October 2004, to reflect that EXIT will no longer be able to be used and to implement Customs' undertaking that during the transition period, people will not commit offences for failing to comply with new obligations. Schedule 2:

•       prescribes goods for export that do not have to be reported to the person who takes delivery of them at a wharf or airport (the deliveree);

•       prescribes those same goods so that a deliveree does not have to report them to Customs;

•       prescribes an airport at which goods delivered for export do not have to be reported to Customs;

•       prescribes additional particulars that must be given to a deliveree when they take delivery of goods; and

•       prescribes the codes that a deliveree is required to provide.

Details of the amending Regulations are set out in the Attachment.

Regulations 1 to 3 and Schedule l to the amending Regulations commence on 22 September 2004, to coincide with the commencement of the ITM export amendments.

Schedule 2 to the amending Regulations commences at 2am in the Australian Capital Territory on 6 October 2004, ie the proposed cut-over time.

0408715A

ATTACHMENT

DETAILS OF THE CUSTOMS AMENDMENT REGULATIONS 2004 (NO. 5)

Regulation 1 - Name of Regulations

Regulation 1 provides that the amending Regulations are the Customs Amendment Regulations 2004 (No. 5).

Regulation 2 - Commencement

Paragraph 2(a) provides that regulations 1 to 3 and Schedule 1 to the amending Regulations commence on 22 September 2004.

Paragraph 2(h) provides that Schedule 2 to the amending Regulations commences at 2am in the Australian Capital Territory on 6 October 2004.

Regulation 3 - Amendment of Customs Regulations 1926

Subregulation 3(1) provides that Schedule 1 amends the Customs Regulations 1926 (the Principal Regulations), as amended by Schedule 1 to the Customs Amendment Regulations 2004 (No. 3) (the first Amending Regulations).

Schedule 1 to the first Amending Regulations commences on 22 September 2004. The amendments in Schedule 1 to the amending Regulations also commence on 22 September 2004. This provision makes it clear that the amendments in Schedule 1 to the amending Regulations are in addition to those in Schedule 1 to the first Amending Regulations.

Subregulation 3(2) provides that Schedule 2 amends the Principal Regulations, as amended by Schedule 2 to the first Amending Regulations.

Schedule 2 to the first Amending Regulations commences at 2am in the Australian Capital Territory on 6 October 2004. The amendments in Schedule 2 to the amending Regulations commence at the same time. This provision makes it clear that the amendments in Schedule 2 to the amending Regulations are in addition to those in Schedule 2 to the first Amending Regulations.

SCHEDULE 1 - AMENDMENTS COMMENCING ON 22 SEPTEMBER 2004

Item 1 - After regulation 97A

Item 1 inserts new regulation 97B into the Principal Regulations.

Currently under the Customs Act 1901 (the Act), details relating to the exportation of goods must be reported to Customs before the goods are exported. That report is known as an export entry. New section 113AA of the Act, as contained in the Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001 (the ITM Act) provides that an export entry is made by:

•       making an export declaration in respect of the goods other than a declaration that Customs refuses to accept under subsection 114(8); or

•       using an accredited client export approval number (an ACEAN).

An ACEAN may only be used by a person who has entered into an export information contract with the Chief Executive Officer of Customs (the CEO). Since the ACEAN will not include detailed information about the goods and their exportation, a person who uses an ACEAN in a particular month must send to Customs a declaration with those details not later than the first day of the following month or such other day of that month as is prescribed (new section 114BC of the Act refers).

New regulation 978 prescribes the 7^th day of the following month for this purpose.

This will allow a person who has used an ACEAN additional time to prepare the declaration while at the same time accommodate the Government's need to have the information in a timely manner, eg for statistical purposes.

Item 2 - Before regulation 99

Item 2 inserts new regulations 98D and 98E into the Principal Regulations.

Currently, section 118 of the Act provides that the master of a ship or the pilot of an aircraft shall not depart with his ship or aircraft from any port, airport or other place in Australia without receiving from the Collector a Certificate of Clearance. Section 119 of the Act provides that before a Certificate of Clearance may be granted a documentary or electronic outward manifest of the goods on board the ship or aircraft must be provided to Customs. An outward manifest is a report of certain goods on board a ship or aircraft and if there are no such goods to report, it must contain a statement that there are no such goods.

Sections 118 and 119 of the Act will be replaced under the ITM Act with new sections 118, 118A and 119. New section 118 will still require a Certificate of Clearance to be granted before a ship or aircraft may depart. New section 119 will require an outward manifest to be provided electronically but it may be provided up to 3 days after the day of departure of the ship or aircraft.

New subsection 118(1 B) will provide that a Certificate of Clearance will only be granted if an application is made under new subsection 118(2) or (5). New subsection 118(3) provides that an application under new subsection 118(2) must be in writing and contain such information as is prescribed by the regulations.

New regulation 98D prescribes that information as follows:

•       a unique identifier assigned to the application by the person communicating it, being an identifier that, if the application is a second or subsequent application for a Certificate of Clearance for a single departure, indicates that fact;

•       the Australian Business Number, or the number allocated by Customs, that identifies the person communicating the application;

•       whether the application relates to the departure of a ship or an aircraft;

•       the code allocated by Customs (if any) to identify the place from which the ship or aircraft will depart;

•       if the application relates to a ship, the ABN, or the number allocated by Customs, that identifies the operator for the voyage; the international vessel identification number of the ship and the voyage number

•       if the application relates to an aircraft, the code allocated by the International Air Transport Association to identify the operator for the flight and the flight number assigned by the airline to identify the flight;

•       the code (UN/LOCODE) allocated by the United Nations Economic Commission for Europe that identifies the first destination port or airport of the ship or aircraft (whether or not in Australia);

•       the intended date of departure of the ship or aircraft; and

•       the intended time of departure of the ship or aircraft.

Since some masters and pilots may not be able to provide an outward manifest electronically after they have departed from Australia, new section 118A contains alternative requirements for ships or aircraft of a kind specified in the regulations. Under new section 118A, the master or owner of those kinds of ships or the pilot or owner of those kinds of aircraft must provide their outward manifest to Customs before a Certificate of Clearance will be granted. The outward manifest will be able to be sent by document or electronically.

New regulation 98E specifies for new subsection 118A(1) the kind of ships and aircraft to which the alternative requirements apply. A ship or aircraft is specified if:

•       it: is not carrying any goods, other than goods prescribed by regulation 100; and

•       it is not a ship or aircraft in respect of which, on its last voyage to Australia from a place outside Australia, a report of cargo was required under section 64AB of the Act from:

-       in the case of a ship - the master or owner; or

-       in the case of an aircraft - the pilot or owner.

The goods prescribed by regulation 100 are certain stores, ship's ballast and baggage accompanying or intended to accompany a passenger.

This means that a ship or aircraft that is not carrying any relevant cargo when it departs will not be able to report under new section 118A if the ship or aircraft had cargo on board it when it arrived in Australia. An outward manifest will have to be provided in respect of these ships and aircraft under new section 119 of the Act.

Hence, for example, section 118A will cover personal yachts and cruise ships that are not carrying freight and did not have to provide a cargo report when the ship arrived in Australia.

Item 3 - Regulation 99

Item 3 substitutes regulation 99 of the Principal Regulations.

Currently, subsection 119D(1) of the Act provides: "a documentary export entry, a documentary submanifest, a documentary outward manifest, or a documentary withdrawal of such an entry, submanifest or manifest, may be sent to the officer . . . , as the case requires, in any manner prescribed and, when so sent, is taken to have been communicated to Customs at such time, and in such circumstances, as are prescribed."

Existing regulation 99 prescribes the manner, circumstances and time for the purposes of section 119D. Currently, those documents may be sent to a Customs officer by facsimile or pre-paid post. Once an officer receives the document, he or she must promptly apply a stamp to the document denoting the time when the officer received it and that time is the time the document is taken to have been communicated to Customs.

Section 119D will be replaced under the ITM Act. New subsection 119D(1) is the same but will only relate to documentary export entries and withdrawals of such entries.

New regulation 99 provides that withdrawals of documentary export entries will continue to be made by sending them to a Customs officer by facsimile or pre-paid post.

However, a documentary export entry will only be able to be sent to Customs by giving the entry to a person employed at an authorised Australia Post outlet.

An authorised Australia Post outlet is defined to mean an outlet:

•       owned and operated by Australia Post; or

•       Licensed by Australia Post to a third party licensee, and operated by a licensee or manager who meets the Gatekeeper criteria for accreditation for registration authorities by the Australian Government Information Management Office.

The employees at the authorised Australia Post outlet will conduct certain checks and the entry will be forwarded to Customs.

The time and circumstance in which a documentary export entry or withdrawal will be taken to have been communicated to Customs will remain the same.

These documents will still be able to be given to an officer of Customs under new section 114 or 119A of the Act.

Item 4 - Regulations 102 and 103

Item 4 repeals and replaces regulation 102 and repeals regulation 103 of the Principal Regulations.

Section 122 of the Act currently provides: "except as prescribed, no Certificate of Clearance shall be granted for any ship or aircraft unless all her inward cargo and stores shall have been duly accounted for to the satisfaction of the Collector nor unless all the other requirements of the law in regard to such ship or aircraft and her inward and outward cargo have been duly complied with."

Existing, regulation 102 of the Principal Regulations provides for the purposes of section 122: "permission for the clearance of a ship, prior to the production to the officer of all the goods included in the ship's inward report, may be granted by the Collector, on application being made in accordance with Form 40." Form 40 is set out in Schedule 1 to the Principal Regulations.

Section 122 will be amended by the ITM Act to remove the reference to 'and outward' as outward manifests may be provided after the ship or aircraft has departed once the ITM Act amendments relating to exports commence.

New regulation 102 makes it clear that regulation 102 is for the purposes of section 122 and that a Certificate of Clearance will only be granted in respect of a ship whose inward cargo and stores have not been accounted for if an application for the certificate has been made under new subsection 118(2) or (5) and an application has been made in accordance with Form 40.

Regulation 103 of the Principal Regulations currently provides that a Certificate of Clearance issued by Customs to the master of a ship or to the pilot of an aircraft must be in the approved form. This regulation is not required by the Act and item 4 of the amending Regulations repeals this regulation.

SCHEDULE 2 - AMENDMENTS COMMENCING AT 2AM IN THE AUSTRALIAN CAPITAL TERRITORY ON 6 OCTOBER 2004

Schedule 2 commences at 2am in the Australian Capital Territory on 6 October 2004. This is the time that the CEO proposes to declare under the Amendment Act to be the cut-over time and hence it will be the time after which the EXIT computer system cannot be used to communicate with Customs.

A number of matters will be prescribed to have effect from the cut-over time so that the new obligations do not become operative before that time. This will mean that, during this transitional period, failure to meet these new obligations will not constitute an offence.

Item 1 - Paragraph 98A(1)(a)

Item 1 substitutes paragraph 98A(1)(a) of the Principal Regulations.

New section 114E of the Act will require a person (the deliverer) who delivers goods for export to a wharf or airport to give information about those goods to the person (the deliveree) taking delivery of the goods.

New subparagraph 114E(1)(a)(i) will provide that the deliverer must give the deliveree prescribed particulars in the prescribed manner if the goods have been entered for export and an authority to deal with the goods is in force.

Paragraph 98A(1)(a) of the Principal Regulations, as contained in item 3 of Schedule 2 to the first Amending Regulations, will prescribe the particulars that have to be given to the deliveree for the purposes of new subparagraph 114E(1)(a)(i). They are the relevant export entry advice number or ACEAN.

New paragraph 98A(1)(a) contains additional particulars that must be provided. They are:

•       the Australian Business Number, or the number allocated by Customs, that identifies the shipping line or airline that will be used to export the goods;

•       if a submanifest number has been allocated by Customs for the goods - the submanifest number;

•       if the goods are transhipped goods - the number allocated by Customs to the goods;

•       if the goods are to be consigned by ship - the international vessel identification number and the number of the voyage on which the goods will be exported;

•       if the goods are to be exported in a container and consigned by ship - the container number;

•       if the goods are to be consigned by ship but not in a container - the voyage booking reference or the bill of lading reference; and

•       if the goods are to be consigned by air - the number or reference of the air waybill on which the goods are listed and the flight number of the aircraft on which the goods will be exported.

Item 2 - Subparagraph 98A(2)(a)(v)

Item 2 substitutes subparagraph 98A(2)(a)(v).

New paragraph 114E(1)(b) of the Act will provide that if the goods are not required to be entered for export, the deliverer must give the prescribed particulars to the deliveree in the prescribed manner.

Paragraph 98A(2)(a) of the Principal Regulations, as contained in item 3 of Schedule 2 to the first Amending Regulations, will prescribe the particulars that have to be given to the deliveree for the purposes of new paragraph 114E(1)(b). In particular, subparagraph 98A(2)(a)(v) provides that if the goods have not been entered for export, the code (if any) that would apply to the goods as contained in the Customs Manual 'Volume 12, as in force on 22 September 2004, must be provided. Even though the goods covered by new paragraph 114E(1)(b) do not have to be entered for export, they may be so entered.

New subparagraph 98A(2)(a)(v) provides that if the goods meet the description of an item in new Schedule 1AAB to the Principal Regulations (see item 5 below) and

•       the goods meet the description in any of items 1 to 6 and have not been entered for export - the code mentioned in the item is the prescribed particular; or

•       the goods meet the description in item 7 and have been entered for export - the code mentioned in the item is the prescribed particular.

Those descriptions and codes are those proposed to be included in the Customs Manual Volume 12. This will consolidate all of the requirements into the Principal Regulations.

Item 3 - After subregulation 98A(3)

Item 3 inserts new subregulation 98A(4) into the Principal Regulations.

New subsection 114E(5) of the Act will provide that the regulations may prescribe goods, or classes of goods, that are exempt from new section 114E.

New subregulation 98A(4) provides that for the purposes of new subsection 114E(5) of the Act, all goods are prescribed except the goods mentioned in new Schedule 1AAC to the Principal Regulations (see item 5 below).

This means that only the goods mentioned in Schedule 1AAC will need to be reported by the deliverer to the deliveree.

Item 4 - Regulation 98B

Item 4 substitutes regulation 98B of the Principal Regulations.

New subsection 114F(1A) of the Act will require the person who takes delivery of goods for export at a wharf or airport to give to Customs, within the period prescribed by the regulations, notice of the receipt of the goods.

Regulation 98B of the Principal Regulations, as contained in item 3 of Schedule 2 to the first Amending Regulations, will prescribe 3 hours after the receipt of the goods for the purposes of new subsection 114F(1A). This regulation is remade as new subregulation 98B(2).

New subsection 114F(1) will provide that new section 114F applies to a person who takes delivery of goods for export at a wharf or airport other than a wharf or airport that is, or is included in a class of wharves or airports that is, excluded by the regulations from the application of that section.

New subregulation 98B(1) prescribes the airport on Horn Island, in the Torres Strait, as excluded from the application of new section 114F. Hence, a person who takes delivery of relevant goods at that airport will not be required to report them to Customs. This is because there are Customs officers available to check all goods exported from Horn Island and hence there is no need to report them to Customs.

New subsection 114F(4) will provide that the regulations may prescribe goods, or classes of goods, that are exempt from new section 114F.

New subregulation 98B(3) provides that all goods are prescribed except the goods mentioned in Schedule 1AAC (see item 5 below). Hence, only the goods mentioned in Schedule 1AAC will need to be reported to Customs. These are the same goods that the deliverer must report to the deliveree under new section 114E of the Act.

Item 5 - After Schedule 1AAA

Item 5 inserts new Schedules 1AAB and 1AAC into the Principal Regulations.

New Schedule 1AAB sets out the codes that must be provided to Customs under new paragraph 114E(1)(b) as follows:

•       EXPE for goods that are described in paragraph 113(2)(a) of the Act which are accompanied or unaccompanied personal or household effects of a passenger in., or a member of the crew of, a ship or aircraft;

•       EXLV for. goods that are described in paragraph 113(2)(b) of the Act which are goods with an FOB (free on board) value not exceeding $2000 or a prescribed amount;

•       EXML for goods consigned by post or diplomatic bag of mail;

•       EXSP for ship's stores or aircraft's stores (as defined in section 130C of the Act);

•       EXTI for goods that have been delivered in accordance with a permission granted under section 162A of the Act. These are goods that are imported into Australia on a on a temporary basis without payment of duty, goods and services tax or luxury car tax;

•       EXDD for military goods that are the property of the Commonwealth, for use overseas by the Defence Force or part of the Defence Force;

•       EXCC for goods that have been entered by document under paragraph 126E(2)(b) of the Act during a period between the time the CEO gives notice of the occurrence mentioned in paragraph 126E(1)(a) of the Act and the time the CEO gives notice of the occurrence mentioned in paragraph 126E(1)(b) of the Act. New section 126E sets out the procedures to be used if an information system becomes temporarily inoperative.

New Schedule 1AAC sets out the goods that will need to be reported by a deliverer to a deliveree if they are delivered to a wharf or airport for export under new section 114E of the Act. Under that section, if the goods are required to be entered and are not entered for export before they are delivered to the wharf or airport or are not entered within 3 hours after the time of delivery, the deliverer commits an offence.

Those same goods will need to be reported by the deliveree to Customs under new section 114F of the Act.

These goods are:

•       goods consigned by air, other than livestock (item 1);

•       goods consigned by sea, in a container, whether open-roofed or not (item 2);

•       goods that are liquid, in a container of cylindrical shape designed for the purpose of transporting liquids (known as tanktainers) (item 3);

•       excisable goods and imported goods that, if manufactured in Australia, would be excisable goods, other than:

-       ship's stores or aircraft's stores (as defined in section 130C of the Act); or

-       fuel oil being exported in a bulk tanker (item 4);

•       machinery, other than new motor vehicles manufactured in Australia (item 5);

•       scrap metal, however packed (item 6);

•       goods packed in sealed or closed crates (item 7);

•       goods packed in metal, plastic, wood or cardboard boxes that conceal the contents (item 8);

•       goods sealed in drums (item 9).

Under item 1, livestock will not have to be entered within those time frames and will not have to be reported to Customs.

Item 4 will ensure that goods on which excise and customs duty may be unpaid are reported and entered.

The packed goods in items 7 to 9 are included so that Customs knows that these goods will need to be unpacked in order to examine them.