Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS AMENDMENT REGULATIONS 2004 (NO. 8) 2004 NO. 366

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 purpose of the amending Regulations is to prescribe the times at which impending arrival, cargo and passenger reports have to be provided to the Australian Customs Service (Customs) and to prescribe application provisions for new cargo reporting obligations that will apply in relation to ships.

Section 64 of the Act, in part, requires the master or owner of a ship that is due to arrive at a port in Australia (whether the first port or any subsequent port on the same voyage) to report its impending arrival to Customs:

a)       if the journey from the last port is likely to take not less than 48 hours--not later than 48 hours before its arrival; and

b)       if the journey from the last port is likely to take less than 48 hours--not later than 24 hours before its arrival.

Section 64AB of the Act, in part, requires those same people to provide a cargo report to Customs of the cargo that is intended to be unshipped at the port for which the report is being provided within the same periods.

Section 64ACA of the Act, in part, requires the operator of a ship that is due to arrive at a port in Australia (whether it is the first or any subsequent port of the voyage) to report to Customs on the passengers who will be on board the ship at the time of its arrival at the port. Subsection 64ACA(5) provides that a report must be given not later than:

a)       if the journey from the last port outside Australia is likely to take not less than 48 hours--48 hours; or

b)       if the journey from the last port outside Australia is likely to take less than 48 hours--24 hours;

before the time stated in the report made under section 64 to be the estimated time of arrival of the ship.

Items 1 to 4 of Schedule 6 to the Customs Legislation Amendment (Airport, Port and Cargo Security) Act 2004 (the Amending Act) will amend the Act so that those reports must be provided:

a)       not later than the start of the prescribed period before its arrival/estimated time of arrival; or

b)       if the journey is of a kind described in regulations--not later than the start of the shorter period, that is specified in the regulations, before its arrival/estimated time of arrival.

The amendments will commence on 13 January 2005 unless proclaimed to commence earlier. It is not proposed to proclaim an earlier starting time.

Items 1 and 2 of Schedule 1 to the amending Regulations prescribe periods and specify journeys to ensure that impending arrival, cargo and passenger reports would have to be made within the same periods as currently required by the Act. Whilst it was intended to extend the reporting times when the Amending Act was made, consultations including industry and certain government agencies are continuing. During those consultations it is proposed to maintain the current reporting periods.

Currently cargo reports have to be provided prior to a ship's arrival in each Australian port and must specify the cargo intended to be unshipped at the particular port. The Amending Act will also amend section 64AB of the Act so that cargo reports for cargo intended to be unshipped in Australia will have to be provided before a ship's arrival at its first port in Australia (known as first port reporting). New subsection 64AB(2A) will provide that regulations made for the purposes of subsection (2) (that is, to prescribe periods and specify journeys) may prescribe matters of a transitional nature (including prescribing any saving or application provisions) arising out of the making of regulations for those purposes.

Regulation 4 of the amending Regulations prescribes the application provisions that will apply when first port reporting commences. The application provisions ensure that the people who have already provided a cargo report to Customs before 13 January 2005 will not be required to submit another cargo report in relation to the same goods. Further, the application provisions ensure that the amendments have a delayed application so that the masters and owners of ships do not breach section 64AB if his or her ship arrives in Australia on or soon after 13 January 2005.

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

The amending Regulations commence on 13 January 2005, to coincide with the commencement of items 1 to 4 of Schedule 6 to the Amending Act.

0413638A

ATTACHMENT

DETAILS OF THE CUSTOMS AMENDMENT REGULATIONS 2004 (NO. 8)

Regulation 1 - Name of Regulations

Regulation 1 provides that the amending Regulations are the Customs Amendment Regulations 2004 (No. 8).

Regulation 2 - Commencement

Regulation 2 provides that the amending Regulations commence on 13 January 2005.

Regulation 3 - Amendment of Customs Regulations 1926

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

Regulation 4 - Transitional: change in cargo reporting requirements

Regulation 4 prescribes the application provisions that will apply when the Act will be amended to require cargo reports for goods intended to be unshipped in Australia before the ship arrives in its first port in Australia since it last called at any port outside Australia.

Subregulation 4(1) sets out the purpose of regulation 4.

Subregulation 4(4) defines four terms for the purposes of the application provisions. They are:

Act means the Customs Act 1901.

new cargo reporting requirements means the cargo reporting requirements set out in section 64AB of the Act (as amended by Schedule 6 to the Customs Legislation Amendment (Airport, Port and Cargo Security) Act 2004 (the Amending Act)) and regulations 26B and 26C of the Regulations (which will be inserted by Schedule 1 to the amending Regulations).

old cargo reporting requirements means the cargo reporting requirements set out in section 64AB of the Act, immediately before its amendment by Schedule 6 to the Amending Act.

Regulations means the Customs Regulations 1926.

Subregulation 4(2) sets out the class of ships to which the old cargo reporting requirements continue to apply. They will apply to a ship that is on a voyage to a port in Australia if a cargo report for the port, or for any previous port in Australia on the same voyage:

a)       was communicated to Customs before 13 January 2005; or

b)       was required to be communicated to Customs before 13 January 2005.

A report in relation to a ship arriving at a port will be required to be communicated to Customs before 13 January 2005 if:

a)       the journey from the ship's last port is likely to take 48 hours or longer and the ship is due to arrive at the port before 15 January 2005; or

b)       the journey from the ship's last port is likely to take less than 48 hours and the ship is due to arrive at the port before 14 January 2005.

Once a cargo report has been made or was required to be made before 13 January 2005, the old cargo reporting requirements will continue to apply to the voyage. This will mean that cargo reports do not have to be resubmitted under the new cargo reporting requirements (even if the ship is due to arrive some time after 13 January 2005).

It will also mean that those ships arriving at their first port in Australia on or soon after 13 January 2005 will continue to be subject to the old cargo reporting requirements.

Subregulation 4(3) provides that the new cargo reporting requirements do not apply in relation to a ship on a voyage mentioned in subregulation 4(2).

This will mean that all other ships are subject to the new cargo reporting requirements.

SCHEDULE 1 - AMENDMENTS

Items 1 and 2

Items 1 to 4 of Schedule 6 to the Amending Act will amend the Act so that impending arrival, cargo and passenger reports must be provided:

a)       not later than the start of the prescribed period before its arrival/estimated time of arrival (new paragraphs 64(1)(a), 64AB(2)(a) and 64ACA(5)(a)); or

b)       if the journey is of a kind described in regulations made for the purposes of this paragraph--not later than the start of the shorter period before its arrival/estimated time of arrival that is specified in those regulations (new paragraphs 64(1)(b), 64AB(2)(b) and 64ACA(5)(b)).

Items 1 and 2 of Schedule 1 to the amending Regulations inserts regulations 26, 26A, 26B, 26C, 30A and 30B into the Principal Regulations to:

a)       specify that for new paragraphs 64(1)(a), 64AB(2)(a) and 64ACA(5)(a) of the Act, the prescribed period is 48 hours;

b)       specify that for new paragraphs 64(1)(b) and 64ACA(5)(b) of the Act, the shorter period is 24 hours if the journey is likely to take less than 48 hours from the time of departure from the last port (whether that port is inside or outside Australia);

c)       specify that for new paragraph 64AB(2)(b) of the Act, the shorter period is 24 hours if the journey is likely to take less than 48 hours from the time of departure from the last port outside Australia to its first port in Australia (as all cargo intended to be unshipped in Australia will have to be reported to Customs before the ship arrives at its first port in Australia).

This will ensure that the current periods in which these reports are required are maintained after items 1 to 4 of the Amending Act commence.