Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS REGULATIONS (AMENDMENT) 1991 NO. 129

EXPLANATORY STATEMENT

STATUTORY RULES 1991 No. 129

CUSTOMS ACT 1901

CUSTOMS REGULATIONS (AMENDMENT)

ISSUED BY THE AUTHORITY OF THE MINISTER OF STATE FOR INDUSTRY, TECHNOLOGY AND COMMERCE

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 amend the Customs Regulations ("the Regulations") to:

i)       enable the implementation of the new cargo reporting regime as introduced by the Customs and Excise Legislation Amendment Act 1990 (Act No. 111 of 1990);

ii)       enable NASCAR Racing Cars to be eligible for duty free importation via a Tariff Concession Order; and

iii)       make minor technical amendments to regulations 181 and 182.

Background

i)       Implementation of the cargo reporting regime

The Customs and Excise Legislation Amendment Act 1990 amended the Act by, amongst other things, repealing Sections 64 and 74 and introducing new Sections 64, 64AA, 64AB, 64AC, 64AD and 74 to provide for the advance reporting of ships and aircraft and their cargo and crew, including the electronic reporting of some of that information. It is envisaged the new regime will enable early screening by Customs of cargo manifests and passenger and crew lists, enabling the Service to detect possible suspect shipments or possible couriers for narcotics.

These provisions commence on 22 June 1991, which is the automatic statutory commencement as provided for by subsection 2(5) of the Customs and Excise Legislation Amendment Act 1990. A number of the provisions require the prescription of various matters by regulation, such as the specified computer system to transmit the electronic information, and the prescribed officers to receive the various cargo and crew reports. These are explained in detail in the Attachment hereto.

ii)       Enabling duty free importation for NASCAR Racing Cars via a Tariff Concession Order

Schedule 2 to the Regulations lists goods in respect of which Tariff Concession Orders shall not be made, by specifying the tariff heading or sub-heading of the restricted goods in Column 2 of Schedule 2. Column 3 of Schedule 2 lists goods that are exceptions to the restriction provided for in Column 2.

Upon request by Calder Park Raceway Pty Ltd, the Government advised the Company on 6 March 1991 that NASCAR (National Association for Stock Car Auto Racing) Racing Cars would be removed from Column 2 of Schedule 2 to the Regulations which would, in effect, enable duty free importation for those vehicles via a Tariff Concession Order. Regulation 13 amends the Regulations to enable a Tariff Concession Order to be made in respect of NASCAR Racing Cars. Regulation 1 provides for a retrospective commencement of 6 March 1991 (the date of the Government's advice) for Regulation 13.

•       This retrospectivity does not offend subsection 48(2) of the Acts Interpretation Act 1901, as it confers a benefit upon Calder Park Raceway Pty Ltd (making such goods eligible for duty free entry) and does not impose any liabilities on any person.

iii) Amendments to Regulations 181 and 182

Following a change in the name of the Tariff Concessions and Quotas Component in the Australian Customs Service to the Industry Development Component, minor technical amendments to regulations 181 and 182 of the Regulations are necessary to reflect this change. Regulations 10 and 11 make these changes.

All of the above proposed changes are explained in greater detail in the Attachment.

ATTACHMENT

REGULATION 1 - COMMENCEMENT

Subregulation 1.1 provides for a commencement date of 6 March 1991 for regulation 13 which enables NASCAR Racing Cars to be eligible for duty free importation via a Tariff Concession Order.

•       This retrospective commencement does not offend subsection 48(2) of the Acts Interpretation Act 1901 as it confers a benefit upon Calder Park Raceway Pty Ltd and does not impose any liabilities on any person. The 6 March 1991 commencement is the date of the Government's decision to grant Tafiff Concession eligibility to these special racing cars.

REGULATION 2 - AMENDMENT

Subregulation 2.1 is a machinery provision which provides that the Customs Regulations ("the Regulations") are amended as set out in these Regulations.

REGULATION 3 - REGULATION 1A (INTERPRETATION)

Subregulation 3.1 defines a "Form" as being a Form included in Schedule 1 to the Regulations unless the contrary intention appears.

•       This addition to the Interpretation regulation is considered necessary given the increasing number of references to approved forms in the Regulations which are not contained in Schedule 1 but are approved by the Comptroller-General under Section 4A of the Customs Act 1901. To distinguish these forms from the prescribed forms contained in Schedule 1 to the regulations, the latter forms are now to be referred to by unique Number.

REGULATION 4 - NEW REGULATIONS 27 TO 31

Subregulation 4.1 adds new regulations which prescribe certain information necessary for the implementation of the new cargo reporting regime as introduced by the Customs and Excise Legislation Amendment Act 1990. The new regulations are as follows:

New regulation 27 (Prescribed officers: paragraph 64AB(4)(a) of the Act) prescribes an officer to whom a documentary cargo report under new section 64AB is to be sent or given as an officer doing duty in relation to the receipt of documentary cargo reports;

New regulation 28 (Prescribed computer systems: paragraphs 64AB(5)(a) and 64AC(4)(a) and subsection 64AD(3) of the Act) prescribes a computer system which is to be used for a computer cargo report (under paragraph 64AB(5)(a)) or a computer crew and passenger report (under paragraph 64AC(4)(a)) as a computer system which is linked to the computer used by Customs at the time that report is made and can transmit the information set out in the report;

New regulation 29 (Prescribed identifying information: paragraphs 64AB(5)(c) and 64AC(4)(c) of the Act prescribes a number or an alphanumeric code issued by Customs to a person as identifying information to be, in effect, a "signature" for reports made by computer (ie. the identifying code or number is taken for the purposes of the Act to represent the person in whose name the number or code was issued);

New regulation 30 (Prescribed officers: paragraph 64AC(3)(a) of the Act prescribes an officer to whom a documentary passenger and crew report under S.64AC is to be sent or given as an officer doing duty in relation to the receipt of documentary passenger and crew reports; and

New regulation 31 (Prescribed manner of communication: subsection 64AD(1) of the Act

New subregulation 31(1) prescribes the non-computer manner of communication for the four different reports in the new cargo reporting regime. The impending arrival report can be made via any method of telecommunication (eg. radio, telex, telegram, etc.). The arrival report must be hand delivered to Customs. The documentary cargo report for both ships and aircraft and the documentary passenger and crew report can be delivered by post or by hand or may be sent by facsimile.

New subregulation 31(2) provides that an impending arrival report is communicated to Customs when it is received by Customs.

New subregulations 31(3) and 31(4) provide a legislative mechanism to indicate the time at which the arrival report, the cargo reports and the passenger and crew reports are taken to have been communicated to Customs. When an officer of Customs receives one of these reports he or she must promptly stamp it with a stamp denoting the time and the document is taken to have been communicated to Customs at the time denoted by the stamp.

REGULATION 5 - REGULATION 31A (NOTIFICATION OF ARRIVAL)

Subregulation 5.1 repeals regulation 31A as it is no longer necessary given the obligation for the Impending Arrival Report for both ships and aircraft provided for in new section 64.

REGULATION 6 - REGULATION 32 (FORMS FOR INWARD REPORT OF SHIP OR AIRCRAFT

Subregulation 6.1 repeals regulation 32 as it is no longer necessary given the approved forms made under new sections 64AA and 64AB. An amendment consequential upon these amendments is included in subregulation 12.2 which repeals Forms 1 (Ships Manifest), 1A (Aircraft Manifest), 2 (Manifest Amendment), 5 (Dutiable Goods on Board the Ship) and 5AA (Barber's Stock on Board the Ship). All these forms are now included in the Ship's Arrival Report (under section 64AA) or the Cargo reports (under section 64AB).

REGULATION 7 - REGULATION 45 (UNSHIPMENT OF GOODS INCLUDED IN CARGO REPORT)

Subregulation 7.1 amends subregulation 45(1) by removing the reference to the prescribed Form 6 (which is repealed from Schedule 1 to the Regulations by subregulation 12.2) and substitutes a reference to "the approved form".

Subregulation 7.2 amends subregulation 45(2) by removing the reference to the prescribed Form 6A, which is also repealed from Schedule 1 by subregulation 12.2, and substitutes a reference to "the approved form".

•       Subsection 4A(1) of the Customs Act 1901 defines an 'approved form' as a form that is approved, by instrument in writing, by the Comptroller-General. The Section also provides that the form is a disallowable instrument in terms of Section 46A of the Acts Interpretation Act 1901 and as such requires Gazettal and tabling in both Houses of Parliament. Parliamentary scrutiny is therefore preserved in the same way as if the forms were prescribed by Regulation.

REGULATION 8 - NEW REGULATIONS 46 AND 47

Subregulation 8.1 inserts two new regulations:

New regulation 46 provides for the unshipment of goods which are not included in a cargo report made under section 64AB.

•       In circumstances where it is discovered that there are goods to be unshipped at a particular port that are not included in a cargo report, it may still be desired that these goods be unshipped. Such circumstances would arise where preventing the unshipment of such unreported cargo would create unacceptable delays in the movement of cargo into Australia. New regulation 46 provides a legislative mechanism whereby such unshipment can take place.

Firstly, the new regulation provides that unshipment of unreported cargo can take place in accordance with a special Collector's Permit which is granted in accordance with this regulation (new subregulation 46(1)). Secondly, an application for a special Collector's permit must be in accordance with an approved form (new subregulation 46(2)) and thirdly, the special Collector s permit cannot be granted unless a report is given to Customs in the approved form of the cargo which was not included in the cargo report given under section 64AB (new subregulation 46(3)).

•       The procedure to obtain a special Collector's permit mirrors that of obtaining a Collector's permit. Cargo which is unshipped via the special Collector's permit will not be available to be cleared until such time as Customs has had adequate time to screen the cargo to detect any risk to the community and is satisfied that no such risk exists.

New subregulation 46(4) provides that a successful applicant for a special Collector's permit will have his or her application so endorsed, and new subregulation 46(5) provides that if a condition on the special Collectors permit, or an undertaking in the application for the special Collector's permit is breached, then the Collector may cancel the permit.

New regulation 47 provides that if there is a conditional unshipment of cargo via a Collector's permit or a special Collector's permit, then once the condition is cancelled the holder of the permit must be so informed via an approved form.

•       This will ensure that when the conditions relating to the unshipment of goods imposed by Customs are satisfied, the holder of the permit can take the goods relating to the permit and can evidence the fact that the conditions have been satisfied.

REGULATION 9 - REGULATION 103 (CERTIFICATE OF CLEARANCE)

Subregulation 9.1 repeals regulation 103 and replaces it with a new regulation 103 which no longer refers to prescribed forms as Certificates of Clearance but refers to approved forms. At present, Form 1A in Schedule 1 to the Regulations, when stamped and signed by a Customs officer, constitutes the Certificate of Clearance of an Aircraft. Given the proposed repeal of Form 1A and its replacement with the Section 64AB Cargo Report it was considered appropriate to utilise the approved form mechanism for Certificates of Clearance for both ships and aircraft.

REGULATION 10 - REGULATION 181 (APPLICATIONS FOR CONCESSION ORDERS: PARTICULARS PRESCRIBED

Subregulation 10.1 provides for a minor technical amendment to paragraph 181(2)(c) of the Regulations consequential upon the change in name of the "Tariff Concessions and Quotas" Component of the Australian Customs Service to the "Industry Development" Component.

REGULATION 11 - REGULATION 182 (NOTICES UNDER SUBSECTION 269H OF THE ACT: MATTERS PRESCRIBED).

Subregulations 11.1 and 11.2 provides for minor technical amendments to paragraph 182 2)(c) as outlined in subregulation 10.1.

REGULATION 12 - SCHEDULE 1

Subregulation 12.1 amends Schedule 1 to the Regulations to repeal Forms 1, 1A, 2, 5, 5AA (comments in relation to regulation 6 refer) and repealing Forms 6 and 6A (comments in relation to regulation 7 refer)

REGULATION 13 - SCHEDULE 2 (GOODS IN RESPECT OF WHICH CONCESSION ORDERS NOT TO BE MADE)

Subregulation 13.1 enables NASCAR Racing Cars to be eligible for a Tariff Concession Order by including those goods in Column 3 of Schedule 2 to the Regulations.


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