House of Representatives

Explanatory Memorandum

Circulated By Authority of the Minister For Home Affairs, the Honourable Bob Debus MP

OUTLINE

1. The purpose of this Bill is to amend the Customs Act 1901 (the Customs Act) to:

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reflect the new Certificate of Origin requirements for the Singapore-Australia Free Trade Agreement;

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update the broker licensing provisions to recognise the changing environment, including the contractual arrangements that exist between some brokerages and nominees;

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modernise provisions relating to duty recovery and payments under protest and to allow refunds to be applied against unpaid duty in some circumstances; and

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make it an offence to make false or misleading declarations in using the new SmartGate automated passenger processing system.

FINANCIAL IMPACT STATEMENT

2. The Bill has no financial impact.

NOTES ON CLAUSES

Clause 1 - Short title

3. This clause provides for the Bill, when enacted, to be cited as the Customs Legislation Amendment (Modernising) Act 2008 .

Clause 2 - Commencement

4. Subclause (1) provides that each provision of this Act specified in column 1 of the table in that subclause commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table. This subclause also provides that any other statement in column 2 of the table has effect according to its terms.

5. Item 1 of the table provides that sections 1 to 3 and anything in this Act not elsewhere covered by the table will commence on the day on which the Act receives the Royal Assent.

6. Item 2 of the table provides that Schedule 1 either commences on the day after the Act receives Royal Assent or on the day Articles 11 and 12 of Chapter 3 of the Singapore-Australia Free Trade Agreement (the SAFTA), as re-tabled in the House of Representatives on 31 May 2005, (the proposed SAFTA amendments) come into force for Australia, whichever is later.

7. A package of amendments to the SAFTA was agreed to in the first Ministerial Review meeting in July 2004 to incorporate additional measures into the SAFTA. The package of amendments were tabled on 15 March 2005 and 31 May 2005 and referred to the Joint Standing Committee on Treaties (JSCOT). JSCOT subsequently recommended that binding treaty action be taken in respect of the amendments (see Chapter 4 of Report 66 of the Joint Standing Committee on Treaties tabled on 17 August 2005).

8. The proposed SAFTA amendments are part of the agreed package of amendments to the SAFTA. The other amendments in this package did not require legislative amendment and have all entered into force with an exchange of notes between the Government of Singapore and the Government of the Commonwealth of Australia confirming completion of the Parties' respective domestic procedures.

9. The proposed SAFTA amendments will also enter into force with an exchange of notes between the Government of Singapore and the Government of the Commonwealth of Australia confirming completion of the Parties' respective domestic procedures. It is expected that this exchange of notes will occur after the Bill has received the Royal Assent.

10. However, item 2 of the table further provides that Schedule 1 will not commence at all if the proposed SAFTA amendments do not come into force for Australia. This ensures that the Customs Act accurately implements the SAFTA at all times. Furthermore, the Minister for Home Affairs must announce by notice in the Gazette the day on which the proposed SAFTA amendments come into force for Australia.

11. Item 3 of the table provides that Schedule 2 commences on the day after the Act receives the Royal Assent.

12. Item 4 of the table provides that Schedules 3 and 4 commence on the 28th day after the day on which this Act receives the Royal Assent. Schedule 3 modernises provisions relating to duty recovery and payments under protest and allows refunds to be applied against unpaid duty in some circumstances. The commencement of Schedule 3 will allow for new administrative procedures to be implemented and reasonable notice of the new arrangements to be given to industry. Schedule 4 makes changes to offence provisions. The commencement of Schedule 4 reflects Commonwealth policy of commencing changes to offence provisions 28 days after the Royal Assent.

13. Subclause (2) provides that column 3 of the table contains additional information that is not part of the Act.

Clause 3 - Schedule(s )

14. This clause is the formal enabling provision for the Schedule to the Bill, providing that each Act specified in a Schedule is amended in accordance with the applicable items of the Schedule. In this Bill, the Customs Act and the Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001 are being amended.

15. The clause also provides that the other items of the Schedules have effect according to their terms. This is a standard enabling clause for transitional, savings and application items in amending legislation.