Explanatory Memorandum
(Circulated by authority of the Minister for Home Affairs, the Honourable Bob Debus MP)SCHEDULE 3 - CARGO REPORTS
Customs Act 1901
Background
29. Section 64AB of the Customs Act sets out when a cargo report is required to be made, how that report is to be made and the offences for failing to make the report.
30. For cargo being carried on a ship, paragraph 64AB(8)(a) provides that the cargo report must be made no later than the prescribed period before the estimated time of arrival of the ship at the first port in Australia, or if the journey is of a kind described by the regulations, the start of the shorter period specified for that type of journey by the regulations. For a journey which is more than 48 hours, regulation 28 of the Customs Regulations 1926 (the Regulations) prescribes 48 hours as the period that the cargo report is required to be made before the estimated time of arrival of the ship at its first port in Australia. Regulation 29 of the Regulations prescribes shorter periods for journeys which are less than 48 hours.
31. Paragraph 64AB(8)(b) of the Customs Act provides that the cargo report for an aircraft must be made no later than 2 hours or such other period as is prescribed by the Regulations before the estimated time of arrival of the aircraft reported in the impending arrival report made under section 64 of the Customs Act. If the flight is of a kind described in the Customs Regulations, the cargo report is required to be made in the shorter period specified by the Regulations for that type of flight.
32. Failure to make the cargo report within the required period is an offence. Subsection 64AB(9) provides that a cargo reporter who intentionally contravenes section 64AB commits an offence punishable, on conviction, by a penalty not exceeding 120 penalty units. Subsection 64AB(10) provides that a cargo reporter who contravenes section 64AB commits an offence punishable, on conviction, by a penalty not exceeding 60 penalty units. As Division 5 of Part XIII applies to the offence under subsection 64AB(10), an infringement notice may be issued as an alternative to prosecution for this offence.
33. As the estimated time of arrival for a ship or aircraft can change due to weather and other circumstances and a number of estimated times of arrival may be reported to the Australian Customs Service, cargo reporters may become liable for the offence of failing to make the cargo report within the required time. To assist the cargo reporting industry and to give effect to Customs' undertaking given to the cargo reporting industry to not pursue prosecutions of cargo reporters in certain circumstances, section 64AB is to be amended to include an exception to the offence of failing to make the cargo report within the required period.
34. The exception to the offence applies where the cargo report is made no later than the period required by subsection 64AB(8) before the actual arrival time of the ship or aircraft in Australia.
Item 1 - After subsection 64AB(14)
35. This item inserts new subsection 64AB(14A) into the Customs Act. New subsection 64AB(14A) provides that a cargo reporter who is required to make a cargo report in respect of particular goods will not be liable to be prosecuted for, and cannot be served with an infringement notice under Division 5 of Part XIII of the Customs Act, for an offence against section 64AB if:
- a)
- the cargo reporter made a cargo report, but contravened subsection 64AB(8) because the report was not made before the start of the period that the report was required to be made; and
- b)
- the time (the actual time of arrival) at which the ship or aircraft in question arrived at the first port or airport in Australia since it last departed from a port or airport outside Australia was later than the estimated time of arrival; and
- c)
- the cargo reporter would not have contravened subsection 64AB(8) if the estimated time of arrival of the ship or aircraft had been its actual time of arrival.
36. New subsection 64AB(14A) has the effect that while the cargo reporter is required to make the cargo report no later than the period required by subsection 64AB(8) before the estimated time of arrival of the ship or aircraft in Australia, if the cargo reporter makes the cargo report no later than the period required by subsection 64AB(8) but before the actual time of arrival of the ship or aircraft in Australia, the cargo reporter will not be liable to be prosecuted for and cannot be served with an infringement notice for an offence for failing to make the cargo report on time.
37. New subsection 64AB(14A) would apply, for example, where a cargo reporter, who was required by subsection 64AB(8) to make the cargo report for a ship not later than 48 hours before the estimated time of arrival of that ship in Australia, fails to make the cargo report within the required time but makes the report 48 hours before the actual time of arrival of the ship at its first port in Australia.