Explanatory Memorandum
(Circulated by authority of the Minister for Home Affairs, the Honourable Bob Debus MP)SCHEDULE 6 - IMPENDING ARRIVAL REPORTS FOR PLEASURE CRAFT
Customs Act 1901
Background
118. Section 64 of the Customs Act provides for the making of an impending arrival report by a ship or aircraft in respect of a voyage or flight to Australia from a place outside Australia. Section 64 sets out when the report is required to be made, how the report should be made and the offences for failing to make the report. Information collected in the report is used for risk assessment purposes and by other Commonwealth agencies such as the Australian Quarantine and Inspection Service and the Department of Immigration and Citizenship.
119. In relation to ships, subsection 64(5) requires the operator of a ship to report the impending arrival of the ship not earlier than 10 days before the estimated time of arrival of the ship at its first port in Australia and no later than the start of the period prescribed before the ship's estimated time of arrival. 96 hours has been prescribed in the Customs Regulations 1926 (the Regulations), when a ship's journey is over 96 hours, as the period before the ship's estimated time of arrival that the impending arrival report is required to be made. When the journey is less than 96 hours, different periods of time have been prescribed in the Regulations depending on the length of the journey.
120. While the requirements in subsection 64(5) apply to all ships coming to Australia, masters of some yachts and other pleasure type vessels have experienced some difficulty in complying with the requirements of subsection 64(5). The inability to comply usually occurs due to the lack of facilities that these types of vessels have onboard and the fact that the requirements in subsection 64(5) are primarily directed towards commercial vessels. The inability in particular for masters/operators of yachts and pleasure type vessels to comply with the requirement in paragraph 64(5)(a), which requires the impending arrival report to be made not earlier than 10 days before the estimated time of arrival of the ship, has resulted in a number of masters/operators committing an offence under section 64 of the Customs Act for failing to report of their impending arrival within the required timeframe.
121. To resolve some of the difficulties faced by masters/operators of yachts and pleasure type vessels, section 64 of the Customs Act is to be amended to exclude pleasure craft from the reporting timeframe set out in subsection 64(5), and to include a new reporting timeframe for pleasure craft. It is intended that pleasure craft will have a longer period of time, for example up to 3 months, to report their impending arrival. It is still intended that the report will still need to be made no later than the same periods prescribed for other ships.
122. If 3 months were to be prescribed, the amendment would enable the report to be made no earlier than 3 months (as opposed to 10 days) before the estimated time of arrival and no later than 96 hours prior to the pleasure craft's estimated time of arrival in Australia. For example, the master/operator of a pleasure craft on a journey from Cape Town (South Africa) to Australia, which may take between 5 and 6 weeks to complete, could report the impending arrival of the pleasure craft prior to setting out on the voyage to Australia. Alternatively, the master/operator may decide if they were to land in another foreign country before arriving in Australia, to report the impending arrival from that foreign country.
123. Although operators of pleasure craft will have a separate timeframe for reporting their impending arrival, the remaining requirements and offences contained in section 64 of the Customs Act will continue to apply to pleasure craft.
124. The amendment will only alter the time at which an impending arrival report may be made to Customs. The other requirements contained within the Customs Act, such as those relating to how the report is to be made will not change as a result of this amendment. Similarly, the offence provisions relating to the failure to report will not change and thus apply equally to pleasure craft.
Part 1 - Amendments
Item 1 - Subsection 4(1)
125. This item inserts in subsection 4(1) of the Customs Act a definition for the term ' pleasure craft '. 'Pleasure craft' for the purposes of the Customs Act is to mean a ship that from time of its arrival at its first port of arrival in Australia from a place outside Australia until the time of its departure from its last port of departure in Australia is:
- a)
- used or intended to be used wholly for recreation activities or sporting activities or both; and
- b)
- not used or intended to be used for any commercial activity; and
- c)
- not offered or intended to be offered for sale or disposal.
Item 2 - Subsection 64(5)
126. This item inserts in subsection 64(5) after the words "a ship" the words "other than a pleasure craft". This amendment means that operators of ships that are pleasure craft will no longer need to report their impending arrival in accordance with the requirements set out in subsection 64(5).
Item 3 - After subsection 64(5)
127. This item inserts a new subsection 64(5A) into the Customs Act. New subsection 64(5A) provides when the impending arrival report for a pleasure craft is required to be made. New subsection 64(5A) provides that the report must not be made earlier than the prescribed number of days before the time stated in the report to be the estimated time of arrival of the pleasure craft, and must not be made later than the start of the prescribed period before the pleasure craft's estimated time of arrival, or, if the journey is of a kind described in the regulations for new subparagraph 64(5A)(b)(ii), the start of the shorter period specified in those regulations before the estimated time of arrival.
Item 4 - Subsection 64(6)
128. This item inserts after "paragraph (5)(b)" in subsection 64(6) a reference to new paragraph 64(5A)(b). Inserting a reference to new paragraph 64(5A)(b) in subsection 64(6) means that the regulations will be able to prescribe matters of a transitional nature (including prescribing any saving or application provisions) arising out of the making of regulations for the purposes of new paragraph 64(5A)(b).
Part 2 - Application provision
Item 5 - Application
129. This item sets out an application provision in relation to the amendments being made by this Schedule. The application provision provides that the amendments made by Schedule 5 would apply to a ship if the period which has been prescribed for the purposes of new subparagraph 64(5A)(b)(i) or (ii) starts on or after the day on which the amendments in Schedule 5 commence.
130. The application provision has the effect that if the period prescribed was, for example, 48 hours and the amendments commence on a Monday, the application provision would provide that the amendment would apply to a ship, provided it was a pleasure craft, which had an estimated time of arrival on Wednesday. If however, the estimated time of arrival was on Tuesday, the amendment would not apply as the prescribed period of 48 hours would not have started on or after the day that the amendments commenced (as that period would start on Sunday).