Customs and Other Legislation Amendment Bill 2016 [2017] AUSStaCSBSD 9 (8 February 2017)

• Customs and Other Legislation Amendment Bill 2016
• Penalties in regulations 19

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Customs and Other Legislation Amendment Bill 2016

Purpose	This bill seeks to amend various Acts relating to customs, trade descriptions and maritime powers to: • allow for the exemption from paying import declaration processing charge; • extend the circumstances in which an application can be made to move, alter or interfere with goods for export that are subject to customs control; • clarify and simplify the provisions concerning the making of tariff concession orders for made-to-order capital equipment; • remove unnecessary and outdated provisions; • provide that the Commerce (Imports) Regulations 1940 may prescribe penalties for offences against those regulations; • confirm that the powers under the Maritime Powers Act 2013 are able to be exercised in the course of passage through or above the waters of another country in a manner consistent with the United Nations Convention on the Law of the Sea
Portfolio	Immigration and Border Protection
Introduced	House of Representatives on 30 November 2016

Penalties in regulations ^[19]

1.19 Item 4 of Schedule 7 proposes to amend section 17 of the Commerce (Trade Descriptions) Act 1905 to enable regulations made under the Act to prescribe penalties, not exceeding 50 penalty units, for offences against the regulations. This item represents a significant delegation of legislative power in that it allows regulations (which are not subject to the same level of parliamentary scrutiny as primary legislation) to impose a penalty. The committee's view is that significant matters, such as the imposition of penalties, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided.

1.20 While the committee notes that this proposed provision conforms with the guidance in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers that 'regulations should not be authorised to impose fines exceeding 50 penalty units',^[20] the committee still expects that any provisions which allow regulations to impose a penalty of any level will be justified in the explanatory memorandum.

1.21 The committee requests the Minister's advice as to why the bill proposes enabling penalties to be prescribed by regulation.

Pending the Minister's reply, the committee draws Senators' attention to the provision, as it may be considered to delegate legislative powers inappropriately, in breach of principle 1(a)(iv) of the committee's terms of reference.

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[19] Schedule 7, item 4, proposed subsection 17(2) of the Commerce (Trade Descriptions) Act 1905.

[20] See Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, (September 2011), pp 44–45.