Replacement Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Christopher Martin Ellison)
Schedule 3 - International trade modernisation amendments
The Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001 (the Trade Modernisation Act) contains substantial amendments to the Customs Act 1901 (the Customs Act) and will repeal the Import Processing Charges Act 1997 (to be replaced by the Import Processing Charges Act 2001 ). Most of these amendments have not yet commenced. Most of the amendments to the Customs Act 1901 (the Customs Act) contained in the Schedule are to those provisions as they will be introduced or amended by the Trade Modernisation Act. References to 'new' provisions are to the provisions as inserted, replaced or amended by the Trade Modernisation Act.
Part 1 - Reporting requirements
Customs Act 1901
Under new section 64AAC operators of ships will have to report to Customs who they have engaged to unload the cargo from their ship. The operators of aircraft have to report the depot operator who will first receive the cargo after it has been unloaded. In respect of ships that report must be made during the period within which the operator must report the impending arrival of the ship. However there is no such period in which operators of aircraft must report the relevant depot operator.
This item will ensure that reports of depot operators, also have to be made during the period within which the operator must report the impending arrival of the aircraft.
Item 2 - After subsection 64AB(4)
New section 64AB will require that cargo reporters who have arranged for goods to be carried on a ship or aircraft must report those goods to Customs. Except during an initial statutory moratorium period those reports must be made electronically. During the moratorium periods they may be made by document. However, new section 64AB does not set out how those reports must be made and what information they should include.
This item inserts new subsection 64AB(4A) which provides that a documentary cargo report must be in writing, be in an approved form, be communicated to Customs in certain ways, contain such information as is required by the form and be signed in a manner specified in the form.
This item also inserts new subsection 64AB(4B) which provides that an electronic cargo report must communicate such information as is set out in an approved statement.
New subsections 64AB(4A) and (4B) mirror other reporting requirements that are contained in Subdivision A of Division 3 of Part IV of the Customs Act.
Items 3 and 4 - Subsection 64ABAA(4)
New section 64ABAA provides that certain people have to provide outturn reports to Customs (these reports confirm what goods have been unloaded from a ship or aircraft and what goods are subsequently unpacked). In particular when cargo is moved, under a permission given to the operator of a ship or aircraft or to a cargo reporter, to a Customs place other than a warehouse, the person in charge of the Customs place must make an outturn report.
However, there are circumstances in which Customs wants an outturn report but the permission to move the goods will be given to a person other than the operator or cargo reporter.
These items ensure that outturn reports have to be provided whenever goods are moved to a Customs place under a permission (no matter who has the permission).
Under the Customs Act as amended by the Trade Modernisation Act certain communications to Customs will either have to be made electronically or may be made electronically. New paragraph 162DA(1)(c) provides that the Chief Executive Officer must determine, and cause to be published in the Gazette, the information technology requirements that have to be met to satisfy a requirement that a person's signature be given to Customs in connection with information when the information is communicated electronically.
However, once the Trade Modernisation Act commences there will not be any requirements that a person sign their electronic communications and hence new paragraph 126DA(1)(c) will have no effect.
Further, new subsection 126DA(1) requires the CEO to determine other information technology requirements but it is unclear from the amendments that will be made by the Trade Modernisation Act that these requirements must be complied with when electronic communications are sent to Customs.
This item inserts into Subdivision A of Division 3 of Part IV new section 64ADAA which would require electronic communications be signed by the person who makes them and provides that the other information technology requirements determined under section 126DA must be met.
Items 6 and 7- Subsection 64AE(1) and subsection 64AE(2)
Section 64AE of the Customs Act provides that the master and owner of a ship to which section 64, 64AA, 64AB or 64AC apply and pilot and owner of aircraft to which section 64, 64AA, 64AB or 64AC apply must answer certain questions and produce certain documents. Whilst section 64AE is being amended by the Trade Modernisation Act to ensure that the references to the reporting sections are correct, the requirement to answer and produce will remain with masters, pilots and owners. However, under the Trade Modernisation Act the requirement to provide reports will be placed on operators and cargo reporters.
Further, the Border Security Legislation Amendment Act 2002 would insert new reporting requirements into the Customs Act and cross references to those provisions need to be included in section 64AE. These items ensure that section 64AE refers to those new provisions.
These items also amend section 64AE so that the requirements to answer and produce are placed on the people who are required to provide reports to Customs. Relevant operators will have to answer questions and produce documents relating to their ship or aircraft and its cargo, crew, passenger, stores or voyage. Cargo reporters will have those same obligations in respect of the cargo that they have arranged to be carried on a relevant ship or aircraft.
Part 2 - Importation of goods
A New Tax System (Goods and Services Tax) Act 1999
Item 8 - Subsection 114-5(1) (table item 14)
Section 114 of the A New Tax System (Goods and Services Tax) Act 1999 sets out when a taxable importation is made in respect of imported goods that are not entered after importation. In particular item 14 of the table provides that when COMPILE contingency arrangements are in place a taxable importation will take place when the goods are taken into home consumption in accordance with a permission granted under section 77D of the Customs Act.
The Trade Modernisation Act will repeal section 77D of the Customs Act and hence item 14 of the table in subsection 114-5(1) will no longer be necessary.
A New Tax System (Wine Equalisation Tax) Act 1999
Currently section 71A provides in part that an import entry concerns goods intended to be entered for home consumption, for warehousing, and for transhipment, and warehoused goods that are intended to be entered for home consumption.
After the relevant provisions of the Trade Modernisation Act commences an entry of goods for home consumption will be able to be made by communicating an import declaration or an RCR (request for cargo release) and an entry of goods for warehousing will be able to be made by communicating to Customs a warehouse declaration.
Section 71A will be replaced in part by new section 71A (import declarations) and 71DB (request for cargo releases). In particular current subsection 71A(6) will be replaced by subsections 71A(7) and 71DB(7) and subsection 71A(7) will be replaced by subsections 71A(8) and 71DB(8).
These items make consequential amendments to the A New Tax System (Wine Equalisation Tax) Act 1999 to reflect the changes being made to section 71A by the Trade Modernisation Act.
Customs Act 1901
Item 11 - Subparagraph 71(2)(a)(i)
Section 68 of the Customs Act sets out those imported goods that need to be entered. Under paragraph 68(1)(f) certain goods whose value does not exceed $250 do not have to be entered. Those goods that do not have to be entered must be reported and cleared in accordance with section 71.
Section 71 will be replaced by the Trade Modernisation Act. Under new subsection 71(2) the owner of goods of a kind referred to in paragraph 68(1)(e), (f) or (i), or the person acting on behalf of the owner, must communicate to Customs a declaration stating whether the value of the goods is less than $250. The requirement to report the goods under section 71 (does not exceed $250) does not match the declaration requirement (less than $250).
This item will amend new subsection 71(2) to ensure it is consistent with section 68.
New subsection 71A(3) provides that a documentary import declaration must be made by the owner of the goods. This item removes that requirement as there are other people who may make documentary import declarations on behalf of owners (eg Customs brokers).
New subsection 71A(4) provides that an electronic import declaration can be communicated only by the owner of the goods concerned. This item repeals subsection 71A(4) to remove that requirement. Again it is possible for other people to make electronic import declarations on behalf of owners.
Item 14 - Subsections 71DC(1) and (2)
New subsection 71DB(3) provides that a RCR (request for cargo release) can only be made by a person who has entered into an import information contract or by a customs broker nominated in the contract to make communications to Customs on behalf of the person.
This item repeals and replaces new subsections 71DC(1) and (2) to make it clear that the RCR processing charge is payable by the person who has entered into the relevant import information contract and not the person who sends the RCR to Customs. As explained above a nominated broker may send an RCR on behalf of a person who has entered into the relevant import information contract.
The amendments to new subsection 71DC(2) are consequential on the changes to subsection 71DC(1).
This item amends subsection 71DD(1) to make it clear that RCRs may be sent by a nominated customs broker on behalf of the person who has entered into the relevant import information contract.
Item 16 - At the end of subsection 71DD(1)
Section 71DD provides that the CEO may enter into import information contracts with persons for the purposes of enabling RCRs to be made in respect of that persons' goods. Section 273EB provides that the CEO may make business rules that a person who wishes to enter into, or is a party to, an import information contract must comply with.
This item inserts a note into new subsection 71DD(1) that makes a reference to section 273EB.
Item 17 - Paragraph 71DD(3)(c)
This item corrects a reference to the ABN of Ericsson Australia Pty Limited which is incorrect.
This item replaces new section 71DF to make it clear that the obligation to make periodic declarations applies both where the person makes an RCR in the previous month or an RCR is made on their behalf by a nominated Customs broker.
This item replaces new section 71DG. New subsection 71DG(1) makes it clear the periodic declaration processing charge is payable by the person who has entered into the relevant import information contract and not the person who sent the periodic declaration (which may be a nominated customs broker).
New subsection 71DG(2) sets out when the charge is payable. Whilst subsection 71DC(2) sets out when RCR processing charge is payable, a similar provision in respect of periodic declaration processing charge was omitted in error.
New subsection 71DH(3) provides that a documentary warehouse declaration must be made by the owner of the goods. This item removes that requirement as there are other people who can make documentary warehouse declarations on behalf of owners (eg Customs brokers).
New subsection 71DH(4) provides that an electronic warehouse declaration can be communicated only by the owner of the goods concerned. This item repeals subsection 71DH(4) to remove that requirement. Again it is possible for other people to make electronic warehouse declarations on behalf of owners.
New subsection 71E(2A) provides that if goods have not been entered for home consumption or warehousing, an application to move the goods can only be made by certain people. However, some goods do not need to be entered and these requirements should not apply to them.
This item amends subsection 71E(2A) so that it only applies to those goods that need to be entered.
New subsection 71E(2A) allows stevedores and depot operators who have possession of goods (amongst others) to apply for permission to move goods. In some circumstances a stevedore or depot operator will want to apply for a movement permission even though they don't currently have possession of the goods.
This item will allow stevedores and depot operators who intend to take possession of goods to apply for permission to move those goods.
These items repeal the offence provisions contained in section 71E since offences that cover the same conduct are contained in section 33 of the Customs Act. The references to subsections 71E(3AA) and (3AB) are those inserted by item 34 of Schedule 21 to the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 not those inserted by the Trade Modernisation Act.
This item is similar to item 5 of Schedule 3 explained above, but inserts the requirement to sign electronic communications and meet information technology requirements into Division 4 of Part IV of the Customs Act.
Part 3 - Exportation of goods
Customs Act 1901
Item 27 - Paragraphs 33(1)(b), (2)(b), (3)(c), (5)(b) and (6)(b)
Section 33 makes it an offence to move, alter or interfere with goods that are subject to Customs control. It is not an offence if the movement, alteration or interference is authorised by the Customs Act. However, there are also provisions where movement of goods is authorised not by the direct operation of Act itself, but through a permission granted, or other process carried out, under the Act. For example, section 71E of the Customs Act allows a person to apply for permission to move goods and an officer of Customs may grant permission to move goods.
Whilst it has always been considered that people who move goods in accordance with such permissions are not committing an offence under section 33 this item makes it clear that it is not an offence if the goods are moved as authorised by or under the Customs Act.
Item 28 - At the end of section 33
Section 33 makes it an offence to move, alter or interfere with goods that are subject to Customs control unless they are moved, altered or interfered as authorised by the Customs Act.
Item 41 of Schedule 3 to this Bill inserts new section 119AA into the Customs Act which allows people to apply for permission to move certain goods intended for export that are under the control of Customs.
This item inserts a note into section 33 that refers to new section 119AA.
This item corrects a typographical error in subsection 114B(7).
Under new section 114BB, the CEO may enter into an export information contract with a person for the purpose of enabling 'accredited client export approved numbers' (ACEANs) to be used in connection with the export of the person's goods. These numbers are 'accredited client export approval numbers'.
This item changes the reference to 'approved' to 'approval' to reflect the correct title.
Item 31 - At the end of subsection 114BB(1)
Section 114BB provides that the CEO may enter into export information contracts with persons for the purposes of enabling ACEANs to be made in respect of that person's goods. Section 273EB provides that the CEO may make business rules that a person who wishes to enter into, or is a party to, an export information contract must comply with.
This item inserts a note into new subsection 114BB(1) that makes a reference to section 273EB.
Item 32 - Paragraph 114BB(3)(c)
This item corrects a reference to the ABN of Ericsson Australia Pty Limited which is incorrect.
Item 33 - At the end of paragraph 114BC(b)
New paragraph 114BC(b) states that a person who uses ACEANS (accredited client export approval numbers) must make at least one electronic declaration no later than the first day of the month following a relevant export. This is more restrictive than, and inconsistent with, the corresponding import provision in paragraph 71DF(b), which relates to RCRs, where it is stated that at least one electronic declaration must be made no later than the first day of the following month or such other day of that month as is prescribed. (These words were inserted by amendment to the Modernisation Act in the Senate).
This item will make the same amendment to the export provisions to ensure they are consistent with the equivalent import provisions.
This item contains technical amendments to new subsection 114C(7) to ensure that it is consistent with the other provisions in new section 114C.
New subsection 114C(6) provides the power to suspend an authority to deal with goods for export for a specified period of time if there are reasonable grounds to suspect that the goods have been dealt with in contravention of a Customs-related law . However, new subsection 114C(7) only provides the power to revoke that suspension when goods are no longer suspected to have been dealt with in contravention of this Act . This item will ensure that the power of revocation can be exercised when the goods are no longer suspected to have been dealt with in contravention of a Customs-related law .
Item 35 - Paragraph 114D(1)(b)
New section 114D provides in part that the owner of goods in respect of which an export entry has been communicated to Customs must not remove any of the goods from the possession of the person to whom they are delivered or of any person to whom they are subsequently passed in accordance with the entry unless the entry is withdrawn, or withdrawn in so far as it applies to those goods.
However, there are circumstances where goods need to be removed from the possession of the person to whom they are delivered and it is cumbersome to withdraw all of the entries that apply to the goods. For example, often goods are consolidated with other goods intended to be exported in one container. If the container is delivered to the wharf and subsequently it is decided not to export the goods, the entries for all of the goods would need to be withdrawn (even though the remainder of the goods are still intended to be exported) in order to remove the container from the wharf for the purpose of unpacking and removing the goods which are no longer being exported.
It is proposed to insert new section 119AA into the Customs Act which will allow a person to apply for permission to move goods intended for export so that they do not have to unnecessarily withdraw entries in respect of goods that are still intended to be exported.
This item amends new section 114D so that the prohibition on removing goods does not apply in respect of goods for which the entry has been withdrawn nor to goods for which permission to move, alter or interfere with the goods has been given under new section 119AA.
Under new subsection 117AA(3) a person in charge of certain prescribed places must not permit prescribed goods for export to be released from the place unless the person has ascertained, from information made available by Customs, that the goods have been entered for export and there is an authority to deal with the goods in force.
As explained above item 41 will insert new section 119AA into the Customs Act which will allow goods for export to be moved, altered or interfered with in accordance with a permission granted by Customs. This item inserts a new provision into section 117AA so that the person in charge of prescribed places will be able to allow goods to be released from the place if a permission to move, alter or interfere with the goods has been given under section 119AA.
Item 37 - After subsection 118(1A)
Under new section 118, the master of a ship and the pilot of an aircraft must not depart from Australia without receiving a Certificate of Clearance from a Collector.
This item inserts new subsection 118(1B) to make it clear that a Certificate of Clearance will only be granted if an application for that certificate is made under subsection 118(2) or (5). Under subsection (2) the master or pilot can apply to the Collector for a certificate. If a certificate has not been granted within 24 hours after the application is made under subsection (2), the master or pilot can apply to the CEO for a certificate (subsection (5)).
Item 38 - At the end of subsection 118(2)
This item inserts a note after subsection 118(2) which highlights that section 118A sets out the requirements for granting a Certificate of Clearance in respect of certain ships or aircraft. Item 39 of Schedule 3 to this Bill inserts new section 118A into the Customs Act.
Currently, before a Certificate of Clearance is granted in respect of a ship or aircraft (allowing it to leave Australia) the master or owner of the ship or the pilot or owner of the aircraft must communicate to Customs an outward manifest. An outward manifest lists certain goods that are on board the ship or aircraft or indicates that there are no such goods on board. The outward manifest can be communicated by computer or document.
Under the amendments that will be made by the Trade Modernisation Act outward manifests will not need to be made before the ship or aircraft leaves Australia, but must be made not later than 3 days after the day that the ship or aircraft departed. However, they can only be made electronically.
In respect of some ships and aircraft, the requirement to report electronically after departure will not be able to be satisfied. Hence it is proposed, that in respect of certain ships and aircraft their master, pilot or owner will be subject to the existing requirements, that is, they must provide an outward manifest before a Certificate of Clearance will be granted.
This item inserts section 118A into the Customs Act which will set out the requirements for ships and aircraft of a kind specified in the regulations (new subsections 118A(1) refers).
Under new subsection 118A(2) a Certificate of Clearance can not be granted in respect of a ship or aircraft unless the master or owner of the ship or the pilot or owner of the aircraft has communicated to Customs an outward manifest. That outward manifest should specify all the goods that are on board, or will be loaded on board the ship or aircraft, other than goods prescribed for the purposes of section 120 of the Customs Act. If there are no such goods, the outward manifest should contain a statement to that effect.
The outward manifest can be made by document or electronically (new subsection 118A(3)) and new subsections 118A(4) and (5) set out the requirements for the documentary and electronic outward manifests.
As explained above, new section 119 requires an outward manifest to be provided to Customs electronically, 3 days after a ship or aircraft leaves Australia. This requirement will not apply to certain ships and aircraft described in new section 118A. This item amends new section 119 so that it does not apply to those ships and aircraft to which section 118A applies.
Paragraphs 30(1)(b), (c) and (d) of the Customs Act set out when goods for export are subject to the control of Customs. Under amendments that will be made by the Trade Modernisation Act the range of goods for export that will be subject to the control of Customs will be expanded. Under section 33 of the Customs Act it is an offence to move, alter or interfere with goods that are subject to the control of Customs unless authorised by the Customs Act.
Further, new section 114D provides in part that the owner of goods in respect of which an export entry has been communicated to Customs must not remove any of the goods from the possession of the person to whom they are delivered or of any person to whom they are subsequently passed in accordance with the entry unless the entry is withdrawn, or withdrawn in so far as it applies to those goods.
However, there are circumstances in which goods for export that are subject to the control of Customs need to be moved but that movement may not be authorised by the Customs Act. Similarly, there may be reasons why goods need to be removed from the person to whom they have been delivered (or subsequently passed) and it would be cumbersome to withdraw all of the relevant export entries.
In respect of imported goods that are subject to Customs control, a person can apply for permission to move those goods (section 71E of the Customs Act). However, there is no equivalent provision in respect of goods for export that are subject to the control of Customs.
This item inserts new section 119AA into the Customs Act which will allow certain goods for export to be moved, altered or interfered with in accordance with a permission granted by Customs.
New subsection 119AA(1) provides that the section applies to goods:
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- that are the subject to the control of Customs under paragraph 30(1)(b), (c) or (d);
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- that have been entered for export; and
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- in relation to which an authority to deal with the goods is in force.
A person may apply for permission to move, alter or interfere with those types of goods in a particular way and that application must be made electronically and communicate such information as is set out in an approved statement (new subsections 119AA(2) and (3)). Otherwise (including for example, if the goods were entered for export by document) the entry must be withdrawn before the goods can be moved.
The CEO may approve different approved statements for applications made in different circumstances or by different classes of persons (new subsection 119AA(4)).
Once Customs has received an application, an officer may direct the applicant to ensure that the goods are held in the place where they are currently located until a decision is made on the application (new subsection 119AA(5)).
If a direction has not been given under new subsection 119AA(5), an officer must electronically communicate to the applicant a message that either gives permission to move, alter or interfere with the goods or refuses the application. If a direction has been given under new subsection 119AA(5), the message must be communicated within a reasonable period after the direction was given (new subsection 119AA(6)).
If the permission is given it may be given unconditionally or subject to such conditions as are specified in the notice or message. In the case of refusal, it must set out the reasons for the refusal.
Paragraph 229(1)(g) provides that all goods subject to the control of the Customs that are moved, altered or interfered with except as authorised by the Customs Act are forfeited to the Crown. New subsection 119AA(7) makes it clear that if a person moves, alters or interferes with goods otherwise that in accordance with a permission, the movement of the goods is, for the purposes of paragraph 229(1)(g), taken not to have been authorised by the Customs Act (new subsection 119AA(7)).
Item 42 - At the end of section 119D
This item inserts new subsection 119D(3) which sets out when an electronic movement application made under new section 119AA is taken to have been communicated to Customs.
This item is similar to item 5 of Schedule 3 explained above, but inserts the requirement to sign electronic communications and meet information technology requirements into Division 2 of Part VI of the Customs Act.
Part 4 - Other amendments
Customs Act 1901
Item 44 - Subsection 4(1) (definition of screening charge)
This item redefines 'screening charge' so that it is clear that it is the charge imposed by the Import Processing Charges Act 2001 (and not the Import Processing Charges Act 1997 ). When the Trade Modernisation Act was drafted it was intended that the 2001 Act would commence at the same time as the 1997 Act was repealed. This Bill will enable both to operate at the same time (allowing some transitional charges to still operate). Screening charge is the only charge which is imposed by both Acts. This item makes it clear which one operates.
Items 45, 46 and 47 - Subsection 102A(2)
New subsection 102A(2) provides that if goods are released from a warehouse for export, the holder of the warehouse licence must notify Customs of that release after the goods have been released.
Items 45 and 46 move that requirement so that Customs must be notified before the goods are released from the warehouse.
Item 47 amends subsection 102A so that such a report will have to be given during a period that begins at the prescribed time and ends at the prescribed time. This will allow those times to be amended as necessary.
New subsection 122F(2) specifies that the powers within Division 3A allow officers to assess whether goods meet the requirements of 'this Act' in relation to exports before the goods become subject to customs Control. As well as being subject to requirements under the Act, goods for export are also required to meet requirements under other Commonwealth Acts in relation to defence, indirect tax, quarantine, strategic goods etc.
This item amends new subsection 122F(2) to enable Customs officers to assess compliance with all export controls - not just those imposed by the Customs Act.
Item 49 - Paragraph 126DA(1)(b)
New paragraph 126DA(1)(b) provides that the CEO must determine, and cause to be published in the Gazette the action that a person has to take in order to verify the receipt of information communicated to Customs electronically.
Under the new electronic systems that Customs is developing, it is proposed that Customs will send a receipt when it receives an electronic communication and hence the sender will not have to do anything in order to verify the receipt of that information by Customs. For this reason new paragraph 126DA(1)(b) is no longer needed, and this item repeals it.
An amendment was made to new section 214AH in the Senate with the intention of protecting a person from committing an offence of failing to answer questions under section 243SA, where a monitoring officer has entered premises to exercise monitoring powers under a monitoring warrant. The amendment was intended to protect certain employees at premises from committing an offence if they failed to answer questions. When a monitoring officer enters premises, the occupier of the premises can nominate a representative. It was intended that the new section 214AH would only require the occupier and representative to answer questions and that other persons (including other employees) would only be required to answer those questions if the occupier and/or representative were unavailable or not present and would not be subject to the offence in section 243SA for failure to answer questions that an officer has power to require the person to answer. However, the amendment also had the unintended result of limiting the circumstances under which a monitoring officer can require answers to questions from 'any person' (including the occupier or representative) to when the occupier or representative is absent or unavailable.
These items repeal that amendment and remake the offence in new section 243SA to give effect to the intention of that amendment.
Item 50 omits from new subsection 214AH(2) the terms of the amendment made in the Senate.
Item 51 amends the note to subsection 214AH(2) to make it clear that it may be an offence to fail to answer a question put under this subsection.
Item 52 amends new section 243SA which makes it an offence for a person to fail to answer a question that an officer requires the person to answer pursuant to a power conferred on the officer by the Customs Act. The amendment will exclude from subsection 234SA(1) the power under subsection 214AH(2) which requires a person on premises the subject of a monitoring warrant to answer questions. A new offence in respect of subsection 214AH(2) is being inserted by item 53 of this Schedule.
Item 53 inserts new subsection 243SA(2) which makes it an offence to fail to answer a question asked by a monitoring officer under subsection 214AH(2) provided that the person is the occupier or a nominated representative of the occupier or the occupier or nominated representative are not present at the premises and available to answer questions.
New subsection 243X(1) sets out those offences (by reference to the relevant subsection of the Customs Act) to which Division 5 (Penalties in lieu of prosecution for certain offences) applies.
However, new subsection 243X(2) provides in part that the Division only applies to a subsection if the subsection was inserted or substituted by the Trade Modernisation Act.
One of the subsections listed in new subsection 243X(1) is subsection 114B(7). However, whilst subsection 114B(7) is being amended by the Trade Modernisation Act, it is not being inserted or substituted by that Act and hence although listed in new subsection 243X(1) the Division does not apply to it.
This item amends new subsection 243X(2) so that the Division also applies to those listed subsections if they have been amended by the Trade Modernisation Act. This amendment will only make the offence in subsection 114B(7) subject to penalties in lieu of prosecution and no other offences will be affected.
Item 55 - At the end of subsection 273EB(1)
This item inserts two notes at the end of new subsection 273EB(1), which allows the CEO to make business rules, that refer to the provisions which allow the CEO to terminate an import information contract or export information contract if the business rules are not complied with.
Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001
This item changes the reference to subsection 2(6) to subsection 2(7). This is because items 62 to 65 below will move the requirements of subsection (6) into new subsection (7). This is a consequential change as a result of those amendments.
Again this is a consequential change as a result of the amendments being made in items 62 to 65.
This item removes the reference to Schedule 4 from subsection 2(3). The commencement of Schedule 4 will now be governed by paragraph 2(5)(d) and subsection 2(6) (see items 62 to 65 below).
Again this is a consequential change as a result of the amendments being made in items and 62 to 65.
This item amends subsection 2(4) of the Trade Modernisation Act so that the items in Part 4 of Schedule 3 can commence on a day or days to be fixed by Proclamation. Currently, all of those items (other than items 79 and 81) must commence on the same day. That Part will repeal the provisions in the Customs Act governing the operation of Customs current cargo management computer systems. The effect of subsection 2(4) is that the provisions governing the operation of Customs current computer systems must be repealed on the same day.
The Integrated Cargo System (ICS) will replace Customs current cargo management computer systems. However given the scale of this change Customs intends to introduce the ICS in a phased manner. In practice this will mean that some of the current computer systems would need to continue to operate along side the ICS until the ICS is introduced fully.
This item will ensure that phased introduction can occur.
This item contains an amendment as a result of the amendments that are being made in items 62 to 65 below.
Item 62 - At the end of subsection 2(5)
This item adds new paragraph 2(5)(d) which provides that Schedule 4 to the Trade Modernisation Act (which repeals the Import Processing Charges Act 1997 ) commences on a day or days to be fixed by Proclamation. At the moment Schedule 4 must commence at the same time as Part 2 of Schedule 3. The amendment in this item will ensure that Schedule 4 can commence at a different time than Part 2 of Schedule 3.
Items 63 and 64 - Subsection 2(6)
These items amend subsection 2(6) of the Trade Modernisation Act so that if Schedule 4 of that Act does not commence under subsection (5), that is, it is not proclaimed to commence, within the period of 2 years after the Trade Modernisation Act received the Royal Assent, then Schedule 4 commences at the end of that period.
Item 65 - At the end of section 2
Under the Trade Modernisation Act if any of the provisions that commence by proclamation have not commenced 2 years after the period on which that Act received the Royal Assent, they commence automatically at the end of that period.
This item inserts new subsection 2(7) which will provide that if any of those same provisions (except Schedule 4) do not commence within 3 years of the Trade Modernisation Act receiving the Royal Assent, they will commence at the end of that period.
Many provisions of the Trade Modernisation Act depend directly or indirectly on the introduction of Customs new cargo management computer system. The 2 year proclamation period was to allow sufficient time for the trading community to be ready for the procedural and computer system changes. Since the Trade Modernisation Act was enacted it has become apparent that industry would not be in a position to implement its computer system changes by 21 July 2003. This item will extend the time in which those provisions can be Proclaimed to commence to 3 years to allow the trading community the extra time it would need to be ready (21 July 2004).
This item inserts a transitional provision into the Trade Modernisation Act which ensures that the cargo report processing charge is still payable under the Import Process Charges Act 1997 even though that Act will be repealed.
There are two circumstances in which the charge will be payable. They relate to the moratorium periods that are established under new section 64AB. Under that section cargo reporters will be required to make electronic cargo reports. However, new subsections 64AB(12) and (13) provide that during the six month period after the section commences (the general moratorium period) reports can be made by document. Further, under subsections 64AB(12) and (14) documentary reports can be made during the further moratorium period (not being more than 18 months), if the CEO grants a cargo reporter such a period.
Currently under section 64ABB of the Customs Act, persons who make certain documentary cargo reports become liable to pay cargo report processing charge.
Since documentary cargo reports will only be able to be made for a maximum of 2 years after the commencement of new section 64AB, the Trade Modernisation Act repeals section 64ABB. Hence under the amendments that will be made by the Trade Modernisation Act, cargo report processing charge will not be payable in respect of documentary cargo reports made during the general and further moratorium periods.
New paragraphs 4(1)(a) and (b) and new subsection 4(2) will ensure that cargo report processing charge is payable during both of those moratorium periods if cargo reporters make documentary cargo reports.
Item 67 - Item 4 of Schedule 3
This item repeals item 4 of Schedule 3 to the Trade Modernisation Act since the same amendment is being made by item 104 of Schedule 3 to that Act.
Item 68 - Item 27 of Schedule 3
Item 27 of Schedule 3 to the Trade Modernisation Act currently will amend paragraphs 30(1)(ab) and (ad) to replace the reference to 'subsection 71(2)' with a reference to 'subsection 71(4) or (5)'. This is because the provisions contained in subsection 71(2) will be moved into new subsections 71(4) and (5). Item 111 of Schedule 3 to the Trade Modernisation Act also proposes amendments to paragraph 30(1)(ab) to remove the reference to Collector's permits (since these will no longer exist under the Customs Act once the Trade Modernisation Act has commenced). However, due to the possibility that the amendments to section 71 and those relating to Collector's permits may not occur at the same time, the amendments in item 27 and 111 may be incorrect.
This item replaces item 27 of Schedule 3 to the Trade Modernisation Act with items 27 and 27A. New items 27 and 27A will amend paragraphs 30(1)(ab) and (ad) so that the references to subsection 71(2) will be changed to section 71. This will ensure that, when the provisions of subsection 71(2) are moved to subsections 71(4) and (5), paragraphs 30(1)(ab) and (ad) will continue to operate correctly.
Item 69 - After item 30 of Schedule 3
Section 63A of the Customs Act defines 'low value cargo' as cargo of one of the following kinds:
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- cargo (other than reportable documents) consigned from a particular mail-order house;
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- cargo comprising reportable documents;
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- cargo comprising other goods of a kind prescribed by the regulations;
being cargo in relation to each single consignment of which:
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- section 68 does not apply because of paragraph 68(1)(f); and
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- the total liability for import duty and sales tax does not exceed $50 or such other amount, not exceeding $75, as is from time to time prescribed for the purposes of this definition.
Item 116 of Schedule 3 to the Trade Modernisation Act will amend the definition removing two parts of the current definition being:
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- cargo comprising reportable documents; and
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- the import duty and tax liability.
However, it is possible that these two amendments will need to be made at different times. The removal of the import duty and sales tax liability should occur at the same time as items in Part 3 of Schedule 3 to the Trade Modernisation Act and the reportable documents amendments should occur at the same time as items in Part 6 of Schedule 3. Item 73 will amend item 116 of the Schedule 3 to the Trade Modernisation Act so that it only contains the reportable document related amendments. This item inserts a new item 30A into the Trade Modernisation Act which will amend the definition of low value cargo to remove the import duty and sales tax liability part of the definition.
Item 70 - Subitem 82(1) of Schedule 3
Item 82 of Schedule 3 to the Trade Modernisation Act contains a savings provision in respect of certain communications to Customs of information referred to in subsection 71A(1) of the Customs Act, that is entries for home consumption, warehousing and transhipment. Item 82 provides that those communications will be taken to be import declarations for the purposes of the Customs Act following the commencement of Part 2 of Schedule 3 to the Trade Modernisation Act. Whilst import declarations will be one way in which an entry for home consumption may be made after Part 2 commences, entries for warehousing should become warehouse declarations (not import declarations).
This item ensures that import entries that relate to goods intended to be entered for warehousing, are taken to be warehouse declarations for the purposes of the Customs Act as amended by the Trade Modernisation Act.
Item 71 - Subitem 82(2) of Schedule 3
This item makes a consequential amendment as a result of the amendments that are being made by item 70. Under item 70, item 82 of the Schedule 3 to the Trade Modernisation Act will apply to import entries (not just communications). This item makes the same change to subitem 82(2).
Item 72 - Item 111 of Schedule 3
As explained above at item 68 subparagraph 30(1)(ab)(i) is being amended by the Trade Modernisation Act for two purposes. Since those amendments may need to commence at different times the amendments are being done in two stages.
This item repeals and substitutes item 111 so that it only omits the reference to Collector's permits in subparagraph 30(1)(ab)(i).
Item 73 - Item 116 of Schedule 3
As explained above at item 68, the Trade Modernisation Act will amend the definition of low value cargo in section 63A of the Customs Act for two purposes. Again, these amendments may need to commence at different times.
This item repeals item 116 of Schedule 3 to the Trade Modernisation Act and replaces it with items 116, 116A, 116B and 116C which amend the definition of low value cargo so that it no longer applies to reportable documents.
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