Senate

Replacement Explanatory Memorandum

(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Christopher Martin Ellison)

Notes on clauses

Clause 1 - Short title

This clause provides for the Act, when enacted, to be cited as the Customs Legislation Amendment Act (No. 1) 2002 .

Clause 2 - Commencement

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.

Item 1 of the table provides that sections 1 to 4 and anything in this Act not elsewhere covered by this table commence on the day on which this Act receives the Royal Assent.

Item 2 of the table provides that Schedules 1 and 2 to the Bill commence on the day on which the Act receives the Royal Assent. Schedule 1 harmonises a number of Customs offences. Schedule 2 contains amendments to the valuation provisions of the Customs Act 1901 (the Customs Act).

Many of the items in Schedule 3 to the Bill commence on the later of the day on which an item in the Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001 (the Trade Modernisation Act) commences or the day on which this Act receives the Royal Assent. This is because many of the provisions in Schedule 3 to the Bill amend the Customs Act as it will be amended by the Trade Modernisation Act and hence the amendments in this Bill cannot commence until the relevant item of the Trade Modernisation Act has commenced. However, it is possible that some of the items of the Trade Modernisation Act may commence prior to the amendments in Schedule 3 to this Bill, if this is the case, the amendments in this Bill will commence on the Royal Assent of this Bill.

Item 3 of the table provides that items 1 to 5 of Schedule 3 to the Bill commence on the later of:

-

immediately after item 118 of Schedule 3 to the Trade Modernisation Act commences; and

-

the day on which this Act receives the Royal Assent.

Items 1 to 5 of Schedule 3 to the Bill amend the reporting requirements that will be inserted into the Customs Act by the Trade Modernisation Act.

Item 4 of the table provides that items 6 and 7of Schedule 3 to the Bill commence on the later of:

-

immediately after item 118 of Schedule 3 to the Trade Modernisation Act commences; and

-

if the Border Security Legislation Amendment Act 2002 has been enacted - immediately after the commencement of Part 1 of Schedule 6 to that Act; and

-

the day on which this Act receives the Royal Assent.

Items 6 and 7 amend section 64AE of the Customs Act to reflect the different people who have to report to Customs once the Trade Modernisation Act commences.

Item 5 of the table provides that item 8 of Schedule 3 to the Bill commences on the later of:

-

immediately after item 81 of Schedule 3 to the Trade Modernisation Act commences; and

-

the day on which this Act receives the Royal Assent.

Item 8 of Schedule 3 to the Bill amends the A New Tax System (Goods and Services Tax) Act 1999 as a consequence of the COMPILE contingency arrangements being repealed by the Trade Modernisation Act.

Item 6 of the table provides that items 9 to 21 of Schedule 3 to the Bill commence on the later of:

-

immediately after item 38 of Schedule 3 to the Trade Modernisation Act commences; and

-

the day on which this Act receives the Royal Assent.

Items 9 and 10 of Schedule 3 to the Bill amend the A New Tax System (Wine Equalisation Tax) Act 1999 as consequence of amendments that will be made by the Trade Modernisation Act to section 71A of the Customs Act. Items 11 to 21 of Schedule 3 to the Bill amend the import provisions of the Customs Act that are being replaced or amended by the Trade Modernisation Act.

Item 7 of the table provides that items 22 and 23 of Schedule 3 to the Bill commence on the later of:

-

immediately after item 138 of Schedule 3 to the Trade Modernisation Act commences; and

-

the day on which this Act received the Royal Assent.

Items 22 and 23 of Schedule 3 to the Bill amend section 71E of the Customs Act as it will be amended by the Trade Modernisation Act.

Item 8 of the table provides that items 24 and 25 of Schedule 3 to the Bill commence on the day on which this Act receives the Royal Assent. Items 24 and 25 of Schedule 3 to the Bill repeal the offence provisions from section 71E of the Customs Act.

Item 9 of the table provides that item 26 of Schedule 3 to the Bill commences on the later of:

-

immediately after item 38 of Schedule 3 to the Trade Modernisation Act commences; and

-

the day on which this Act received the Royal Assent.

Item 26 of Schedule 3 to the Bill inserts a new requirement to provide signatures on electronic communications sent to Customs.

Item 10 of the table provides that item 27 of Schedule 3 to the Bill commences on the day on which this Act receives the Royal Assent. Item 27 of Schedule 3 to the Bill amends section 33 of the Customs Act to clarify its operation.

Item 11 of the table provides that item 28 of Schedule 3 to the Bill commences on the later of:

-

immediately after item 62 of Schedule 3 to the Trade Modernisation Act commences; and

-

the day on which this Act received the Royal Assent.

Item 28 of Schedule 3 to the Bill inserts a note into the Customs Act as a consequence of this Act inserting new section 119AA into the Customs Act.

Item 12 of the table provides that item 29 of Schedule 3 to the Bill commences on the day on which this Act receives the Royal Assent. Item 29 of Schedule 3 to the Bill makes a technical correction to subsection 114B(7).

Item 13 of the table provides that items 30 to 43 of Schedule 3 to the Bill commence on the later of:

-

immediately after item 62 of Schedule 3 to the Trade Modernisation Act commences; and

-

the day on which this Act received the Royal Assent.

Items 30 to 43 of Schedule 3 to the Bill amend the new export provisions of the Customs Act that will be amended or replaced by the Trade Modernisation Act.

Item 14 of the table provides that item 44 of Schedule 3 to the Bill commences on the later of:

-

immediately after item 17 of Schedule 3 to the Trade Modernisation Act commences; and

-

the day on which this Act received the Royal Assent.

Item 44 of Schedule 3 to the Bill inserts a new definition of screening charge into the Customs Act after the Import Processing Charges Act 2001 commences.

Item 15 of the table provides that items 45 to 47 of Schedule 3 to the Bill commence on the later of:

-

immediately after item 97A of Schedule 3 to the Trade Modernisation Act commences; and

-

the day on which this Act received the Royal Assent.

Items 45 to 47 of Schedule 3 to the Bill amend new section 102A of the Customs Act as inserted by the Trade Modernisation Act.

Item 16 of the table provides that item 48 of Schedule 3 to the Bill commences on the later of:

-

immediately after item 5 of Schedule 1 to the Trade Modernisation Act commences; and

-

the day on which this Act received the Royal Assent.

Item 48 of Schedule 3 to the Bill amends new section 122F of the Customs Act as inserted by the Trade Modernisation Act.

Item 17 of the table provides that item 49 of Schedule 3 commences on the later of:

-

immediately after item 1 of Schedule 3 to the Trade Modernisation Act commences; and

-

the day on which this Act received the Royal Assent.

Item 49 of Schedule 3 to the Bill amends new section 126DA of the Customs Act as inserted by the Trade Modernisation Act.

Item 18 of the table provides that item 50 and 51 of Schedule 3 to the Bill commence on the later of:

-

immediately after item 13 of Schedule 1 to the Trade Modernisation Act commences; and

-

the day on which this Act received the Royal Assent.

Items 50 and 51 of Schedule 3 to the Bill amend new section 214AH of the Customs Act as inserted by the Trade Modernisation Act.

Item 19 of the table provides that items 52 to 54 of Schedule 3 to the Bill commence on the later of:

-

immediately after item 5 of Schedule 2 to the Trade Modernisation Act commences; and

-

the day on which this Act received the Royal Assent.

Items 52 to 54 of Schedule 3 to the Bill amend sections 243SA and 243X of the Customs Act as inserted by the Trade Modernisation Act.

Item 20 of the table provides that item 55 of Schedule 3 to the Bill commences on the later of:

-

immediately after item 101 of Schedule 3 to the Trade Modernisation Act commences; and

-

the day on which this Act received the Royal Assent.

Item 55 of Schedule 3 to the Bill amends new section 273EB of the Customs Act as inserted by the Trade Modernisation Act.

Item 21 of the table provides that item 56 to 65 of Schedule 3 to the Bill commence on the day on which this Act receives the Royal Assent. Item 56 to 65 of Schedule 3 to the Bill amend the commencement of the Trade Modernisation Act.

Item 22 of the table provides that item 66 of Schedule 3 commences at the same time as item 118 of Schedule 3 to the Trade Modernisation Act commences. Item 68 inserts a transitional provision into the Trade Modernisation Act. Under subsection 2(5) of the Trade Modernisation Act, item 118 of Schedule 3 to the Trade Modernisation Act commences on a day to be fixed by Proclamation. No such day has yet been fixed and hence item 118 has not commenced. Under subsection 2(6) of the Trade Modernisation Act, if that item has not been Proclaimed to commence by 21 July 2003, it will commence on 21 July 2003. However, this Bill proposes to extend that time until 21 July 2004. If this Bill is passed, it is not expected that item 118 will be Proclaimed to commence until sometime in 2004 and hence it is not intended that the amendment in item 66 will operate retrospectively.

Item 23 of the table provides that items 67 and 68 of Schedule 3 commence immediately before Part 2 of Schedule 3 to the Trade Modernisation Act commences. Items 69 and 70 of Schedule 3 to the Bill repeal and replace items of the Trade Modernisation Act. Under subsection 2(3) of the Trade Modernisation Act, Part 2 of Schedule 3 to the Trade Modernisation Act commences on a day to be fixed by Proclamation. No such day has yet been fixed and hence Part 2 has not commenced. For the reasons explained above, it is not expected that Part 2 of Schedule 3 will be Proclaimed to commence until sometime in 2004 and hence it is not intended that the amendments in items 66 and 67 will operate retrospectively.

Item 24 of the table provides that item 69 of Schedule 3 commences at the same time as item 30 of Schedule 3 to the Trade Modernisation Act commences. Item 69 inserts new item 30A into the Trade Modernisation Act. Under subsection 2(3) of the Trade Modernisation Act item 30 of Schedule 3 to the Trade Modernisation Act commences on a day to be fixed by Proclamation. No such day has yet been fixed and hence item 30 has not commenced. For the reasons explained above, it is not expected that item 30 of Schedule 3 will be Proclaimed to commence until sometime in 2004 and hence it is not intended that the amendment in item 69 will operate retrospectively.

Item 25 of the table provides that items 70 and 71 of Schedule 3 commence at the same time as item 82 of Schedule 3 to the Trade Modernisation Act commences. Items 70 and 71 amend the transitional provisions of the Trade Modernisation Act. The Trade Modernisation Act proposes to amend the Customs Act so that import entries can be made by communicating to Customs an import declaration or a request for cargo release (RCR). These changes will commence when the new Customs computer system begins operation. Item 82 contains transitional provisions that ensure that import entries communicated to Customs via COMPILE will be taken to be import declarations when the new computer system commences. Item 82 of Schedule 3 to the Trade Modernisation Act commenced on the Royal Assent of the Trade Modernisation Act. Hence, items 70 and 71 of Schedule 3 will be taken to have commenced on 20 July 2001. Since the transitional provisions convert communications from one form into the other when the new system begins operation, the proposed retrospective commencement of the amendments would not disadvantage any person.

Item 26 of the table provides that item 72 of Schedule 3 to the Bill commences immediately before item 110 of Schedule 3 to the Trade Modernisation Act commences. Item 72 repeals and substitutes item 111 of the TMA. Under subsection 2(5) of the Trade Modernisation Act, item 110 of Schedule 3 to the Trade Modernisation Act commences on a day to be fixed by Proclamation. No such day has yet been fixed and hence item 110 has not commenced. For the reasons explained above, it is not expected that item 110 of Schedule 3 will be Proclaimed to commence until sometime in 2004 and hence it is not intended that the amendment in item 72 will operate retrospectively.

Item 27 of the table provides that item 73 of Schedule 3 to the Bill commences immediately before item 117 of Schedule 3 to the Trade Modernisation Act commences. Item 73 repeals and substitutes item 116 of the Trade Modernisation Act. Under subsection 2(5) of the Trade Modernisation Act, item 117 of Schedule 3 to the Trade Modernisation Act commences on a day to be fixed by Proclamation. No such day has yet been fixed and hence item 117 has not commenced. For the reasons explained above, it is not expected that item 117 of Schedule 3 will be Proclaimed to commence until sometime in 2004 and hence it is not intended that the amendment in item 73 will operate retrospectively.

Item 28 of the table provides that Schedule 4 to the Bill commences on the day on which this Act receives the Royal Assent. Schedule 4 introduces new powers of seizure without warrant for certain goods in the Protected Zone.

Item 29 of the table provides that Part 1 of Schedule 5 to the Bill commences on a single day to be fixed by Proclamation, subject to subsection (3). Schedule 5 creates a system under which re-mail reporters may be registered and may provide less information in respect of re-mail items in their cargo reports.

Item 30 of the table provides that Part 2 of Schedule 5 to the Bill commences immediately after item 118 of Schedule 3 to the Trade Modernisation Act commences. This will ensure that the amendments made to current section 64AB in respect of re-mail will not be repealed when section 64AB is replaced by the Trade Modernisation Act. Under subsection 2(5) of the Trade Modernisation Act, item 118 of Schedule 3 to the Trade Modernisation Act commences on a day to be fixed by Proclamation. No such day has yet been fixed and hence item 118 has not commenced. For the reasons explained above, it is not expected that item 118 of Schedule 3 will be Proclaimed to commence until sometime in 2004 and hence it is not intended that the amendments in Part 2 of Schedule 5 to the Bill will operate retrospectively.

Item 31 of the table provides that Schedule 6 to the Bill commences on the day on which this Act receives the Royal Assent. Schedule 6 relates to passenger movement charge.

Subclause (2) provides that column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.

Subclause (3) provides that if a provision covered by item 29 of the table does not commence within the period of 6 months on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period. This is the standard provision that applies to commencement by Proclamation.

Clause 3 - Schedule(s)

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 1901 , the Passenger Movement Charge Collection Act 1978 , the A New Tax System (Goods and Services Tax) Act 1999 , the A New Tax System (Wine Equalisation Tax) Act 1999, the Import Processing Charges Act 2001 and the Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001 are being amended.

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.

Clause 4 - Application of certain amendments

This is the application provision for the amendments relating to the harmonisation of Customs offences with the Criminal Code .