House of Representatives

Explanatory Memorandum

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

SCHEDULE 4 - TREATMENT OF CERTAIN INFORMATION GIVEN TO CUSTOMS

Customs Act 1901

99. Customs is progressively implementing an automated passenger processing system known as SmartGate. This implementation commenced in 2007 in Brisbane and Cairns - Sydney and Melbourne implementation will occur through 2008 and the remainder of the international airports following that. Arriving air passengers and crew holding eligible ePassports will be able to choose to clear themselves through the immigration control point at the Australian border using the SmartGate system where available. If the choice is not exercised, clearance will occur through the Customs staffed primary line.

Clearance of personal or household goods through SmartGate

100. Under paragraph 68(1)(d) of the Customs Act, goods that are the accompanied or unaccompanied personal or household effects of a passenger or crew of a ship or aircraft are not required to be entered. Such goods are also Subdivision AA goods under section 71AAAA of the Customs Act.

101. However, under section 71AAAB of the Customs Act, the owner of Subdivision AA goods must, in the circumstances specified in the regulations, provide, under section 71, the information specified in the regulations. Such information must be provided at the time and in the manner and form specified in the regulations.

102. For the purposes of section 71AAAB, regulation 41 of the Customs Regulations 1926 currently sets out the information to be provided under section 71, the relevant circumstances in which such information must be provided, and the time at which, and manner and form in which, such information must be provided.

103. Regulation 41 will be amended to provide for the provision of information under section 71 on Subdivision AA goods to Customs, in the circumstance where the owner of the goods is using the SmartGate system. As part of the SmartGate process, eligible passengers and crew may be required to answer questions and make declarations electronically to Customs about their accompanied personal and household effects. These answers and declarations will be used to assess a person's eligibility for automated clearance and identify persons who may hold items of interest (e.g. prohibited imports and dutiable/taxable items) to Customs.

Offence of making false and misleading statements

104. Existing paragraph 234(1)(d) of the Customs Act makes it an offence to make a false and misleading statement (including an omission), directly or indirectly, to an officer of Customs.

105. Passengers and crew who make false and misleading declarations electronically using the SmartGate system will be making false and misleading statements for the purposes of paragraph 234(1)(d). However, the false and misleading statements are made to "Customs" for the purposes of section 71, and not necessarily to an "officer of Customs".

106. Item 1 of Schedule 4 inserts new subsection 234(2BC), which provides that for the purposes of paragraph 234(1)(d), information provided to Customs under section 71 in the circumstances mentioned in section 71AAAB is taken to be a statement made to the CEO.

107. This means that passengers and crew making electronic declarations about their personal or household goods using the SmartGate system are deemed to be making statements to an officer of Customs for the purposes of paragraph 234(1)(d). Consequently, a person making a false or misleading declaration using the SmartGate system may be prosecuted for an offence against paragraph 234(1)(d).

108. New subsection 234(2BC) also applies in relation to any other prescribed circumstance (set out in regulation 41 or any other regulation) where an owner of Subdivision AA goods is required to provide information to Customs under sections 71 and 71AAAB of the Customs Act.

109. Item 3 of Schedule 4 provides that the offence will only apply in relation to information provided to Customs on or after the commencement of Schedule 4.