An Act relating to the Customs
Part I—Introductory
1
Short title [see
Note 1]
This Act may be cited as the Customs
Act 1901.
2
Commencement [see
Note 1]
This Act shall commence on a day to be
fixed by Proclamation.
4
Definitions
(1) In this Act except where otherwise
clearly intended:
accredited client means a person who has
entered into an import information contract.
accredited client payment day, for a
particular month, means the 15th day of that month.
ACEAN means an accredited client export
approval number allocated by the CEO to a person under an export information
contract.
Adjacent area means an adjacent area in
respect of a State, of the Northern Territory or of the Territory of the
Ashmore and Cartier Islands, as determined in accordance with section 5 of
the Sea Installations Act.
Aircraft includes aeroplanes, seaplanes,
airships, balloons or any other means of aerial locomotion.
Airport means an airport appointed under
section 15.
Airport owner includes the occupier of an
airport.
Airport shop goods means:
(a) goods declared by the regulations
to be airport shop goods for the purposes of section 96B; or
(b) goods included in a class of goods
declared by the regulations to be a class of airport shop goods for the
purposes of that section.
Answer questions means that the person on
whom the obligation of answering questions is cast shall to the best of his or
her knowledge, information, and belief truly answer all questions on the
subject mentioned that an officer of Customs shall ask.
approved form means a form approved under
section 4A.
approved statement means a statement approved
under section 4A.
AQIS means the operating group within the
Department of Primary Industries and Energy having responsibility in relation
to the administration of the Quarantine Act 1908.
arrival means:
(a) in relation to a ship—the securing
of the ship in a port, or
(b) in relation to an aircraft—the
aircraft coming to a stop after landing.
Australia does
not include the external Territories.
Australian resources installation means a
resources installation that is deemed to be part of Australia because of the
operation of section 5C.
Australian seabed means so much of the seabed
adjacent to Australia (other than the seabed within the Joint Petroleum
Development Area) as is:
(a) within the area comprising:
(i) the areas described in
Schedule 1 to the Offshore Petroleum and Greenhouse Gas Storage Act
2006; and
(ii) the Coral Sea area;
and
(b) part of:
(i) the seabed beneath the
coastal area; or
(ii) the continental shelf
of Australia.
Australian sea installation means a sea
installation that is deemed to be part of Australia because of the operation of
section 5C.
Australian ship
means a ship that:
(a) is an Australian ship as defined
in the Shipping Registration Act 1981; or
(b) is not registered under the law of
a foreign country and is either wholly owned by, or solely operated by:
(i) one or more residents
of Australia; or
(ii) one or more Australian
nationals; or
(iii) one or more residents
of Australia and one or more Australian nationals.
For the purposes of this definition, Australian
national and resident of Australia have the same meanings
as in the Shipping Registration Act 1981.
Australian waters
means:
(a) in relation to a resources
installation—waters above the Australian seabed; and
(b) in relation to a sea
installation—waters comprising all of the adjacent areas and the coastal area.
authorised officer, in relation to a section
of this Act, means an officer of Customs authorised in writing by the CEO to
exercise the powers or perform the functions of an authorised officer under
that section.
Authority to deal means:
(a) in relation to goods the subject
of an export declaration—an authority of the kind mentioned in paragraph
114C(1)(a); or
(aa) in relation to goods the subject
of an ACEAN—the ACEAN; or
(b) in relation to goods the subject
of an import declaration—an authority of the kind referred to in subsection
71C(4); or
(c) in relation to goods the subject
of an RCR—an authority of the kind referred to in subsection 71DE(3); or
(d) in relation to goods the subject
of a warehouse declaration—an authority of the kind referred to in subsection
71DJ(4); or
(e) in relation to goods that are
Subdivision AA goods within the meaning of section 71AAAA or that are
specified low value goods within the meaning of section 71AAAD—an
authority under section 71.
Beer means any liquor on which, under the
name of beer, any duty of Customs imposed by the Parliament is payable.
Blending means a mixing together of 2 or more
substances in order to obtain a commercial product.
border controlled drug has the same meaning
as in Part 9.1 of the Criminal Code.
border controlled plant has the same meaning
as in Part 9.1 of the Criminal Code.
Brought into physical contact has the same
meaning as in the Sea Installations Act.
business rules means business rules made
under section 273EB.
by authority means by the authority of the
officer of Customs doing duty in the matter in relation to which the expression
is used.
cargo release advice means a cargo release
advice given under subsection 71DE(1).
cargo report means a report under section 64AB
that is made in respect of the cargo to be unloaded from, or kept on board, a
ship at a port or an aircraft at an airport.
cargo reporter, in relation to a ship or
aircraft and in relation to a particular voyage or flight, means:
(a) the operator or charterer of the
ship or aircraft; or
(b) a slot charterer in respect of the
ship; or
(c) a freight forwarder in respect of
the ship or aircraft;
for the voyage or flight.
Carriage includes vehicles and conveyances of
all kinds.
Carry, for the purposes of Division 1B
of Part XII, has the meaning given by subsection (19).
child: without limiting who is a child of a
person for the purposes of this Act, each of the following is the child of a
person:
(a) an adopted child or exnuptial
child of the person;
(b) someone who is a child of the
person within the meaning of the Family Law Act 1975.
CEO means the Chief Executive Officer of
Customs.
Charter of the United Nations means the
Charter of the United Nations, done at San Francisco on 26 June 1945
[1945] ATS 1.
Note: The text of the Charter of the United Nations
is set out in Australian Treaty Series 1945 No. 1. In 2007, the text of a
Convention in the Australian Treaty Series was accessible through the
Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Coastal area
means the area comprising the waters of:
(a) the territorial sea of Australia; and
(b) the sea on the landward side of
the territorial sea of Australia and not within the limits of a State or an
internal Territory.
commercial document, in relation to goods,
means a document or other record prepared in the ordinary course of business
for the purposes of a commercial transaction involving the goods or the
carriage of the goods, but does not include a record of any electronic
transmission to or from Customs:
(a) in respect of an import
declaration, RCR, or warehouse declaration, relating to the goods or the withdrawal
of such an import declaration, RCR or warehouse declaration; or
(b) in respect of an export entry,
submanifest, or outward manifest, relating to the goods or in respect of the
withdrawal of such an entry, submanifest or manifest.
Commissioner means the Commissioner of
Taxation.
Commissioner of Police means the Commissioner
of Police referred to in section 6 of the Australian Federal Police Act
1979, and includes an acting Commissioner of Police.
Commonwealth aircraft means an aircraft that
is in the service of the Commonwealth and displaying the prescribed ensign or
prescribed insignia.
Commonwealth authority means an authority or
body established for a purpose of the Commonwealth by or under a law of the
Commonwealth (including an Ordinance of the Australian Capital Territory).
Commonwealth ship means a ship that is in the
service of the Commonwealth and flying the prescribed ensign.
Container means a container within the
meaning of the Customs Convention on Containers, 1972 signed in Geneva on 2 December 1972, as affected by any amendment of the Convention that has
come into force.
contiguous zone, in relation to Australia, means the contiguous zone within the meaning of the Seas and Submerged Lands
Act 1973, adjacent to the coast of Australia.
Continental shelf has the same meaning as in
the Seas and Submerged Lands Act 1973.
Coral Sea area has the same
meaning as in section 7 of the Offshore Petroleum and Greenhouse Gas
Storage Act 2006.
Country includes territory or other place,
but does not include an Australian resources installation or an Australian sea
installation.
Customs Acts means this Act and any
instruments (including rules, regulations or by‑laws) made under this Act and
any other Act, and any instruments (including rules, regulations or by‑laws)
made under any other Act, relating to customs in force within the Commonwealth
or any part of the Commonwealth.
customs broker means a customs broker within
the meaning of Part XI.
Customs‑related law has the meaning given by
section 4B.
Customs Tariff means an Act imposing duties
of customs, and includes such an Act that has not come into operation.
data includes:
(a) information in any form; or
(b) any program (or part of a
program).
Days does not include Sundays or holidays.
Defence Minister means the Minister
administering section 1 of the Defence Act 1903.
depot operator means a person who holds a
depot licence as defined by subsection 77F(1).
Deputy Commissioner of Police means a Deputy
Commissioner of Police referred to in section 6 of the Australian
Federal Police Act 1979, and includes:
(a) an acting Deputy Commissioner of
Police; and
(b) a member of the Australian Federal
Police authorized in writing by the Commissioner of Police to act on behalf of
the Australian Federal Police for the purposes of this Act.
designated place means:
(a) a port, airport or wharf that is
appointed, and the limits of which are fixed, under section 15; or
(b) a place that is the subject of a
permission under subsection 58(2) while the ship or aircraft to which the
permission relates remains at that place; or
(c) a boarding station that is
appointed under section 15; or
(d) a place from which a ship or
aircraft that is the subject of a permission under section 175 is required
to depart, between the grant of that permission and the departure of the ship
or aircraft; or
(e) a place to which a ship or
aircraft that is the subject of a permission under section 175 is required
to return, while that ship or aircraft remains at that place; or
(f) a section 234AA place that
is not a place, or a part of a place, referred to in paragraph (a), (b),
(c), (d) or (e).
Detention officer
means:
(a) for the purposes of Subdivision A
of Division 1B of Part XII—an officer of Customs who is a detention
officer because of a declaration under subsection 219ZA(1); or
(b) for the purposes of Subdivision B
of that Division—an officer of Customs who is a detention officer because of a
declaration under subsection 219ZA(2); or
(c) for the purposes of Subdivision C
of that Division—an officer of Customs who is a detention officer because of a
declaration under subsection 219ZA(3).
Detention place
means:
(a) for the purposes of Subdivision B
of Division 1B of Part XII—a place that is a detention place because
of subsection 219ZB(1); and
(b) for the purposes of Subdivision C
of that Division—a place that is a detention place because of subsection
219ZB(2).
Division 1B Judge
means:
(a) a Judge of the Federal Court of
Australia, of the Supreme Court of the Australian Capital Territory, or of the
Family Court of Australia, in relation to whom a consent under subsection
219RA(1) and a nomination under subsection 219RA(2) are in force; or
(b) a Judge of the Supreme Court of a
State to whom an appropriate arrangement under subsection 11(1) applies; or
(c) a Judge of the Supreme Court of
the Northern Territory who is not a Judge referred to in paragraph (a) and
to whom an appropriate arrangement under subsection 11(2) applies.
Division 1B
Magistrate means:
(a) a Magistrate of the Australian Capital Territory; or
(b) a Magistrate of a State to whom an
appropriate arrangement under subsection 11(1) applies; or
(c) a Magistrate of the Northern Territory to whom an appropriate arrangement under subsection 11(2) applies.
documents include:
(a) any paper or other material on
which there is writing; and
(b) any paper or other material on
which there are marks, figures, symbols or perforations having a meaning for
persons qualified to interpret them; and
(c) any paper or other material on
which a photographic image or any other image is recorded; and
(d) any article or material from which
sounds, images or writing is capable of being produced with or without the aid
of a computer or of some other device.
Drawback includes bounty or allowance.
Dutiable goods includes all goods in respect
of which any duty of Customs is payable.
Duty means duty of Customs.
electronic, in relation to a communication,
means the transmission of the communication by computer.
Environment related activity has the same
meaning as in the Sea Installations Act.
excisable goods has the same meaning as in
the Excise Act 1901.
excise‑equivalent goods means goods
prescribed by the regulations for the purposes of this definition.
exclusive economic zone, in relation to Australia, has the same meaning as in the Seas and Submerged Lands Act 1973.
export declaration means an export
declaration communicated to Customs by document or electronically as mentioned
in section 114.
export entry means an entry of goods for
export made as mentioned in section 113AA.
Export entry advice means a communication, in
respect of an export entry, that is made in the manner, and has the form,
specified in regulations made for the purpose of subsection 114C(1).
export entry advice means an export entry
advice given under subsection 114C(1).
export information contract means a contract
made under subsection 114BB(1).
External place means:
(a) a Territory other than an internal
Territory; or
(b) a foreign country.
External search, in relation to a person,
means a search of the body of, and of anything worn by, the person:
(a) to determine whether the person is
carrying any prohibited goods; and
(b) to
recover any such goods;
but does not include an internal examination of the
person’s body.
Finance Minister means the Minister
administering the Financial Management and Accountability Act 1997.
foreign ship means a ship that is not an
Australian ship.
frisk search
means:
(a) a search of a person conducted by
quickly running the hands over the person’s outer garments; and
(b) an examination of anything worn or
carried by the person that is conveniently and voluntarily removed by the
person.
fuel means goods of a kind that fall within a
classification in subheading 2707, 2709 or 2710 of Schedule 3 to the
Customs Tariff.
Gazette notice means a notice signed by the
Minister and published in the Gazette.
goods means movable personal property of any
kind and, without limiting the generality of the expression, includes
documents, vessels and aircraft.
Goods under drawback includes all goods in
respect of which any claim for drawback has been made.
GST has the meaning given by section 195‑1
of the GST Act.
GST Act means the A New Tax System (Goods
and Services Tax) Act 1999.
identity card means an identity card issued
under section 4C for the purposes of the provision in which the expression
is used.
import declaration means an import
declaration communicated to Customs by document or electronically as mentioned
in section 71A.
import declaration advice means an import
declaration advice given under subsection 71C(1).
import declaration processing charge means
import declaration processing charge payable as set out in section 71B.
import duty means duty imposed on goods
imported into Australia.
import entry means an entry of goods for home
consumption made as mentioned in subsection 68(3A) or an entry of goods for
warehousing made as mentioned in subsection 68(3B).
import entry advice means an import
declaration advice, a cargo release advice or a warehouse declaration advice.
import information contract means a contract
made under section 71DD.
In need of protection has the meaning given
by subsection (20).
insolvent under
administration means a person who:
(a) under the Bankruptcy Act 1966
or the law of an external Territory, is a bankrupt in respect of a bankruptcy
from which the person has not been discharged; or
(b) under the law of an external
Territory or the law of a foreign country, has the status of an undischarged
bankrupt;
and includes:
(c) a person any of whose property is
subject to control under:
(i) section 50 or
Division 2 of Part X of the Bankruptcy Act 1966; or
(ii) a corresponding
provision of the law of an external Territory or the law of a foreign country;
or
(d) a person who has, at any time
during the preceding 3 years, executed a personal insolvency agreement under:
(i) Part X of the Bankruptcy
Act 1966; or
(ii) the corresponding
provisions of the law of an external Territory or the law of a foreign country.
Installation
means:
(a) a resources installation; or
(b) a sea installation.
Internal search, in relation to a person,
means an examination (including an internal examination) of the person’s body
to determine whether the person is internally concealing a substance or thing,
and includes the recovery of any substance or thing suspected on reasonable
grounds to be so concealed.
Joint Petroleum Development Area has the same
meaning as in the Petroleum (Timor Sea Treaty) Act 2003.
Justice means any Justice of the Peace having
jurisdiction in the place.
Lawyer means a person who has been admitted
in a State or Territory to practise as a barrister, as a solicitor or as a
barrister and solicitor and whose right so to practise is not suspended or has
not been cancelled.
Lighter includes a craft of every description
used for the carriage of goods in a port.
low value cargo has the same meaning as in
section 63A.
luxury car tax has the meaning given by
section 27‑1 of the Luxury Car Tax Act.
Luxury Car Tax Act means the A New Tax
System (Luxury Car Tax) Act 1999.
Master means:
(a) in relation to a ship (not being
an installation)—the person in charge or command of the ship; and
(b) in
relation to an installation—the person in charge of the installation;
but does not include a pilot or Government officer.
Medical practitioner means any person
registered or licensed as a medical practitioner under a law of a State or
Territory that provides for the registration or licensing of medical
practitioners.
Member of the Australian Federal Police
includes a special member of the Australian Federal Police.
monitoring powers has the meaning given by
section 214AB.
month means one of the 12 months of the
calendar year.
Movement application means an application
made under section 71E for permission to move goods that are, or will be,
subject to Customs control.
Narcotic goods means goods that consist of a
narcotic substance.
Narcotic‑related goods means:
(a) narcotic goods;
(b) moneys within the meaning of
section 229A to which that section applies or is believed by the person in
possession of the moneys to apply;
(c) goods within the meaning of
section 229A to which that section applies or is believed by the person in
possession of the goods to apply; or
(d) ships, aircraft, vehicles or
animals that are, or are believed by the person in possession of them to be,
forfeited goods by reason of having been used in the unlawful importation,
exportation or conveyance of prohibited imports, or prohibited exports, that
are narcotic goods.
narcotic substance means a border controlled
drug or a border controlled plant.
Natural resources means the mineral and other
non‑living resources of the seabed and its subsoil.
Officer means an officer of Customs.
Officer of Customs means a person:
(a) employed in the Customs; or
(b) authorised
in writing by the CEO under this Act to perform all of the functions of an
officer of Customs; or
(ba) who from time to time holds,
occupies, or performs the duties of an office or position (whether or not in or
for the Commonwealth) specified in writing by the CEO under this Act for the
purposes of this paragraph, even if the office or position does not come into
existence until after the CEO has specified it;
and includes:
(c) in relation to a provision of a
Customs Act—a person:
(i) authorised in writing
by the CEO under this Act to perform the functions of an officer of Customs
under that provision; or
(ii) who from time to time
holds, occupies, or performs the duties of an office or position (whether or
not in or for the Commonwealth) specified in writing by the CEO under this Act
in relation to that provision, even if the office or position does not come
into existence until after the CEO has specified it; or
(d) in
relation to a power conferred by a provision of a Customs Act—a person:
(i) authorised in writing
by the CEO under this Act to perform the functions of an officer of Customs in
relation to the exercise of that power; or
(ii) who from time to time
holds, occupies, or performs the duties of an office or position (whether or
not in or for the Commonwealth) specified in writing by the CEO under this Act
in relation to the exercise of that power, even if the office or position does
not come into existence until after the CEO has specified it.
operator of a ship or aircraft for a
particular voyage or flight means:
(a) the shipping line or airline
responsible for the operation of the ship or aircraft for the voyage or flight;
or
(b) if there is no such shipping line
or airline, or no such shipping line or airline that is represented by a person
in Australia—the master of the ship or the pilot of the aircraft.
outturn report means a report under section 64ABAA.
Overseas resources
installation means an off‑shore installation that:
(a) is in Australian waters; and
(b) has
been brought into Australian waters from a place outside the outer limits of
Australian waters;
but does not include an Australian resources installation.
Overseas sea
installation means a sea installation that:
(a) is in an adjacent area or a
coastal area; and
(b) has
been brought into the adjacent area or coastal area, as the case may be, from a
place outside the outer limits of Australian waters;
but does not include an Australian sea installation.
Owner in respect of goods includes any person
(other than an officer of Customs) being or holding himself or herself out to
be the owner, importer, exporter, consignee, agent, or person possessed of, or
beneficially interested in, or having any control of, or power of disposition
over the goods.
owner, in respect of a ship or aircraft,
includes a charterer of the ship or aircraft or a slot charterer or freight
forwarder responsible for the transportation of goods on the ship or aircraft.
Package includes every means by which goods
for carriage may be cased covered enclosed contained or packed.
Pallet means a pallet within the meaning of
the European Convention on Customs Treatment of Pallets used in International
Transport signed in Geneva on 9 December 1960, as affected by any
amendment of the Convention that has come into force.
parent: without limiting who is a parent of a
person for the purposes of this Act, someone is the parent of a
person if the person is his or her child because of the definition of child
in this subsection.
periodic declaration has the meaning given by
section 71DF.
periodic declaration processing charge means
a periodic declaration processing charge payable as set out in section 71DG.
Permit, in relation to a sea installation,
has the same meaning as in the Sea Installations Act.
Pilot means the person in charge or command
of any aircraft.
Place includes ship or aircraft.
place outside Australia includes:
(a) the waters in the Joint Petroleum
Development Area; or
(b) a
resources installation in the Joint Petroleum Development Area;
but does not include:
(c) any other area of waters outside Australia; or
(d) any other installation outside Australia; or
(e) a ship outside Australia; or
(f) a reef or an uninhabited island
outside Australia.
pleasure craft means a ship that from the
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 recreational activities, 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.
Port means a port appointed under section 15.
port authority means a body administering the
business carried on at a port or ports in a State or Territory.
Produce documents means that the person on
whom the obligation to produce documents is cast shall to the best of his or
her power produce to the Collector all documents relating to the subject matter
mentioned.
Prohibited goods means:
(a) goods whose importation or
exportation is prohibited by this Act or any other law of the Commonwealth; or
(b) goods whose importation or
exportation is subject to restrictions or conditions under this Act or any
other law of the Commonwealth; or
(c) goods subject to the control of
the Customs.
Protected object means an object in respect
of which a notice under section 203T is in force.
RCR means a request for cargo release
communicated to Customs under section 71DB.
RCR processing charge means an RCR processing
charge payable as set out in section 71DC.
Records offence
means:
(a) an offence against subsection
240(1) or (4) of this Act;
(b) an offence against:
(i) section 6 of the Crimes
Act 1914; or
(iii) section 237 of
this Act;
being an offence that relates to
an offence of the kind referred to in paragraph (a) of this definition; or
(ba) an ancillary offence (within the
meaning of the Criminal Code) that relates to an offence of the kind
referred to in paragraph (a) of this definition; or
(c) an offence against section 134.1,
134.2 or 135.1 of the Criminal Code, being an offence that relates to a
tax liability.
Resources installation means:
(a) a resources industry fixed
structure within the meaning of subsection (5); or
(b) a resources industry mobile unit
within the meaning of subsection (6).
resources installation in the Joint Petroleum
Development Area means a resources installation that is attached to the
seabed in the Joint Petroleum Development Area.
Sea installation has the same meaning as in
the Sea Installations Act.
Sea Installations Act means the Sea
Installations Act 1987.
section 234AA place means a place that
is identified under section 234AA as a place of a kind referred to in that
section.
self‑assessed clearance declaration means a
declaration given to Customs under section 71 in the circumstances
mentioned in section 71AAAF.
self‑assessed clearance declaration advice
means a self‑assessed clearance declaration advice given under section 71AAAG.
Ship means any vessel used in navigation,
other than air navigation, and includes:
(a) an off‑shore industry mobile unit;
and
(b) a barge, lighter or any other
floating vessel.
Smuggling means any importation, introduction
or exportation or attempted importation, introduction or exportation of goods
with intent to defraud the revenue.
special reporter has the same meaning as in
section 63A.
suspicious substance means a narcotic
substance that would, or would be likely to, assist in the proof of the
commission by any person of an offence against Division 307 of the Criminal
Code that is punishable by imprisonment for a period of 7 years or more.
taxation officer means a person employed or
engaged under the Public Service Act 1999 who is:
(a) exercising powers; or
(b) performing functions;
under, pursuant to or in relation to a taxation law (as
defined in section 2 of the Taxation Administration Act 1953).
territorial sea,
in relation to Australia, means the territorial sea area whose
outer limits are from time to time specified in a Proclamation made by the
Governor‑General for the purposes of section 7 of the Seas and
Submerged Lands Act 1973.
The United Kingdom includes the Channel Islands and the Isle of Man.
This Act includes all regulations made
thereunder.
UNCLOS means the United Nations Convention on
the Law of the Sea.
Note: The text of the Convention is set out in
Australian Treaty Series 1994 No. 31.
unmanufactured raw products means natural or
primary products that have not been subjected to an industrial process, other
than an ordinary process of primary production, and, without limiting the
generality of the foregoing, includes:
(a) animals;
(b) bones, hides, skins and other
parts of animals obtained by killing, including such hides and skins that have
been sun‑dried;
(c) greasy wool;
(d) plants and parts of plants,
including raw cotton, bark, fruit, nuts, grain, seeds in their natural state
and unwrought logs;
(e) minerals in their natural state
and ores; and
(f) crude petroleum.
Note: This term has a different meaning for the
purposes of Division 1B of Part VIII: see section 153UA.
unmarked plastic explosive has the same
meaning as in Subdivision B of Division 72 of the Criminal Code.
UN‑sanctioned goods means goods that are
prescribed as UN‑sanctioned goods under subsection 233BABAA(1).
Visual examination application means an
application made under section 71D or 71DK for permission to examine
goods.
Warehouse means a place that a person or
partnership is licensed under section 79 to use for warehousing goods.
warehouse declaration means a warehouse
declaration communicated to Customs by document or electronically under section 71DH.
warehouse declaration advice means a
warehouse declaration advice given under section 71DJ.
warehouse declaration processing charge means
a warehouse declaration processing charge payable as set out in section 71DI.
Warehoused goods
means:
(a) goods received into a warehouse in
pursuance of an entry for warehousing or permission granted under section 71E;
or
(b) goods blended or packaged in a
warehouse in compliance with this Act.
warehoused goods declaration fee means a fee
payable under section 71BA for the processing of an import declaration in
respect of warehoused goods.
Wharf means a wharf appointed under section 15.
Wharf owner includes any owner or occupier of
any wharf.
wine tax has the meaning given by section 33‑1
of the Wine Tax Act.
Wine Tax Act means the A New Tax System
(Wine Equalisation Tax) Act 1999.
(2) A reference in this Act to an officer of
police or a police officer shall be read as a reference to a member of the
Australian Federal Police or of the Police Force of a State or Territory.
(3) A reference in this Act or in any other
Act to a Customs Tariff or Customs Tariff alteration proposed in the Parliament
shall be read as a reference to a Customs Tariff or Customs Tariff alteration
proposed by a motion moved in the House of Representatives, and a Customs
Tariff or Customs Tariff alteration proposed by a motion so moved shall be
deemed to have been proposed in the Parliament at the time at which the motion
was moved.
(3A) A reference in this Act or any other law of
the Commonwealth to the tariff classification under which goods are classified
is a reference to the heading in Schedule 3 to the Customs Tariff Act
1995 or such a heading’s subheading:
(a) in whose third column a rate of
duty or the quota sign within the meaning of that Act is set out; and
(b) under which the goods are
classified for the purposes of that Act.
(3B) For the
purposes of this Act and any other law of the Commonwealth:
(a) a heading in Schedule 3 to
the Customs Tariff Act 1995 may be referred to by the word
“heading” followed by the digits with which the heading begins;
(b) a subheading of a heading in that
Schedule may be referred to by the word “subheading” followed by the digits
with which the subheading begins;
(c) an item in Schedule 4 to that
Act may be referred to by the word “item” followed by the number, or the number
and letter, with which the item begins;
(3C) Unless the contrary intention appears, if
the word “Free” is set out in section 16 or 18 of the Customs Tariff
Act 1995, in the third column of Schedule 3 or 4 to that Act or in the
third column of the table in Schedule 5 or 6 to that Act, that word is
taken to be a rate of duty for the purposes of this Act or any other law of the
Commonwealth.
(3D) Unless the contrary intention appears, any
words or words and figures, set out in the third column of Schedule 3 or 4
to the Customs Tariff Act 1995 or in the third column of the table in
Schedule 5 or 6 to that Act, that enable the duty to be worked out in
respect of goods, are taken to be a rate of duty for the purposes of this Act
or any other law of the Commonwealth.
(4A) To avoid doubt, if narcotic goods are:
(a) imported into Australia in breach of a prohibition under section 50; or
(b) exported from Australia in breach of a prohibition under section 112;
the goods are imported or exported, as the case may be, in
contravention of this Act.
Note: Most offences dealing with the importation and
exportation of narcotic goods are located in Part 9.1 of the Criminal
Code.
(5) A reference in this Act to a resources
industry fixed structure shall be read as a reference to a structure (including
a pipeline) that:
(a) is not able to move or be moved as
an entity from one place to another; and
(b) is used or is to be used off‑shore
in, or in any operations or activities associated with, or incidental to,
exploring or exploiting natural resources.
(6) A reference in this Act to a resources
industry mobile unit shall be read as a reference to:
(a) a vessel that is used or is to be
used wholly or principally in:
(i) exploring or
exploiting natural resources by drilling the seabed or its subsoil with equipment
on or forming part of the vessel or by obtaining substantial quantities of
material from the seabed or its subsoil with equipment of that kind; or
(ii) operations or
activities associated with, or incidental to, activities of the kind referred
to in subparagraph (i); or
(b) a structure (not being a vessel)
that:
(i) is able to float or be
floated;
(ii) is able to move or be
moved as an entity from one place to another; and
(iii) is used or is to be
used off‑shore wholly or principally in:
(A) exploring
or exploiting natural resources by drilling the seabed or its subsoil with
equipment on or forming part of the structure or by obtaining substantial
quantities of material from the seabed or its subsoil with equipment of that
kind; or
(B) operations
or activities associated with, or incidental to, activities of the kind
referred to in sub-subparagraph (A).
(7) A vessel of a kind referred to in paragraph (6)(a)
or a structure of a kind referred to in paragraph (6)(b) shall not be
taken not to be a resources industry mobile unit by reason only that the vessel
or structure is also used or to be used in, or in any operations or activities
associated with, or incidental to, exploring or exploiting resources other than
natural resources.
(8) The reference in subparagraph (6)(a)(ii)
to a vessel that is used or is to be used wholly or principally in operations
or activities associated with, or incidental to, activities of the kind
referred to in subparagraph (6)(a)(i) shall be read as not including a
reference to a vessel that is used or is to be used wholly or principally in:
(a) transporting persons or goods to
or from a resources installation; or
(b) manoeuvring a resources
installation, or in operations relating to the attachment of a resources
installation to the Australian seabed.
(9) A resources installation shall be taken
to be attached to the Australian seabed if:
(a) the installation:
(i) is in physical contact
with, or is brought into physical contact with, a part of the Australian
seabed; and
(ii) is used or is to be
used, at that part of the Australian seabed, wholly or principally in or in any
operations or activities associated with, or incidental to, exploring or
exploiting natural resources; or
(b) the installation:
(i) is in physical contact
with, or is brought into physical contact with, another resources installation
that is taken to be attached to the Australian seabed by virtue of the
operation of paragraph (a); and
(ii) is used or is to be
used, at the place where it is brought into physical contact with the other
installation, wholly or principally in or in any operations or activities
associated with, or incidental to, exploring or exploiting natural resources.
(9A) If it is necessary to determine whether a
resources installation is attached to the seabed in the Joint Petroleum
Development Area, subsection (9) has effect as if a reference to the
Australian seabed were a reference to the seabed in the Joint Petroleum
Development Area.
(10) For the purposes of this Act, the space
above or below a coastal area shall be deemed to be in that area.
(11) Subject to subsection (13), for the
purposes of this Act, a sea installation shall be taken to be installed in an
adjacent area if:
(a) the installation is in, or is
brought into, physical contact with a part of the seabed in the adjacent area;
or
(b) the installation is in, or is
brought into, physical contact with another sea installation that is to be
taken to be installed in the adjacent area because of paragraph (a).
(12) For the purposes of this Act, a sea
installation shall be taken to be installed in an adjacent area at a particular
time if the whole or part of the installation:
(a) is in that adjacent area at that
time; and
(b) has been in a particular locality:
(i) that is circular and
has a radius of 20 nautical miles; and
(ii) the whole or part of
which is in that adjacent area;
for:
(iii) a continuous period,
of at least 30 days, that immediately precedes that time; or
(iv) one or more periods,
during the 60 days that immediately precede that time, that in sum amount to at
least 40 days.
(13) Where a sea installation, being a ship or
an aircraft:
(a) is brought into physical contact
with a part of the seabed in an adjacent area; or
(b) is
in, or is brought into, physical contact with another sea installation that is
to be taken to be installed in an adjacent area;
for less than:
(c) in the case of a ship, or an
aircraft, registered under the law of a foreign country—30 days; or
(d) in
any other case—5 days;
it shall not be taken to be installed in that adjacent
area under subsection (11).
(14) A sea installation shall not be taken to
be installed in an adjacent area for the purposes of this Act unless it is to
be taken to be so installed under this section.
(15) Subject to subsection (17), for the
purposes of this Act, a sea installation shall be taken to be installed in a
coastal area if:
(a) the installation is in, or is
brought into, physical contact with a part of the seabed in the coastal area;
or
(b) the installation is in, or is
brought into, physical contact with another sea installation that is to be
taken to be installed in the coastal area because of paragraph (a).
(16) For the purposes of this Act, a sea
installation (other than an installation installed in an adjacent area) shall
be taken to be installed in a coastal area at a particular time if the whole or
part of the installation:
(a) is in that coastal area at that
time; and
(b) has been in a particular locality:
(i) that is circular and has
a radius of 20 nautical miles; and
(ii) the whole or part of
which is in that coastal area;
for:
(iii) a continuous period,
of at least 30 days, that immediately precedes that time; or
(iv) one or more periods,
during the 60 days that immediately precede that time, that in sum amount to at
least 40 days.
(17) Where a sea
installation, being a ship or an aircraft:
(a) is brought into physical contact
with a part of the seabed in a coastal area; or
(b) is
in, or is brought into, physical contact with another sea installation that is
to be taken to be installed in a coastal area;
for less than:
(c) in the case of a ship, or an
aircraft, registered under the law of a foreign country—30 days; or
(d) in
any other case—5 days;
it shall not be taken to be installed in that adjacent
area under subsection (15).
(18) A sea installation shall not be taken to
be installed in a coastal area for the purposes of this Act unless it is to be
taken to be so installed under this section.
(19) For the purposes of Part XII, a
person will be taken to carry a thing, including a thing constituting or
containing special forfeited goods or prohibited goods, on his or her body only
if the thing constitutes, or is in or under, clothing worn by the person.
(19A) In subsection (19), the reference to
clothing worn by a person includes a reference to any personal accessory or
device that is worn by, or attached to, the person.
(20) For the purposes of Division 1B of
Part XII, a person is in need of protection if, and only if, the person
is:
(a) under 18 years of age; or
(b) in a mental or physical condition
(whether temporary or permanent) that makes the person incapable of managing
his or her affairs.
4AAA
Members of family
For the purposes of this Act, the
members of a person’s family are taken to include the following (without
limitation):
(a) a de facto partner of the
person (within the meaning of the Acts Interpretation Act 1901);
(b) someone who is the child of the
person, or of whom the person is the child, because of the definition of child
in section 4;
(c) anyone else who would be a member
of the person’s family if someone mentioned in paragraph (a) or (b) is
taken to be a member of the person’s family.
4AA
Act not to apply so as to exceed Commonwealth power
(1) Unless the contrary intention appears, if
a provision of this Act:
(a) would, apart from this section,
have an invalid application; but
(b) also has at least one valid
application;
it is the Parliament’s intention that the provision is not
to have the invalid application, but is to have every valid application.
(2) Despite subsection (1),
the provision is not to have a particular valid application if:
(a) apart from this section, it is
clear, taking into account the provision’s context and the purpose or object
underlying the Act, that the provision was intended to have that valid
application only if every invalid application, or a particular invalid
application, of the provision had also been within the Commonwealth’s
legislative power; or
(b) the provision’s operation in
relation to that valid application would be different in a substantial respect
from what would have been its operation in relation to that valid application
if every invalid application of the provision had been within the Commonwealth’s
legislative power.
(3) Subsection (2) does not limit the
cases where a contrary intention may be taken to appear for the purposes of subsection (1).
(4) This section applies to a provision of
this Act, whether enacted before, at or after the commencement of this section.
(5) In this
section:
application means an application in relation
to:
(a) one or more particular persons,
things, matters, places, circumstances or cases; or
(b) one or more classes (however
defined or determined) of persons, things, matters, places, circumstances or
cases.
invalid application, in relation to a
provision, means an application because of which the provision exceeds the
Commonwealth’s legislative power.
valid application, in relation to a
provision, means an application that, if it were the provision’s only
application, would be within the Commonwealth’s legislative power.
4AB
Compensation for acquisition of property
(1) If:
(a) this Act would result in an
acquisition of property; and
(b) any provision of this Act would
not be valid, apart from this section, because a particular person has not been
compensated;
the Commonwealth must pay that person:
(c) a reasonable amount of
compensation agreed on between the person and the Commonwealth; or
(d) failing agreement—a reasonable
amount of compensation determined by a court of competent jurisdiction.
(2) Any damages or compensation recovered, or
other remedy given, in a proceeding begun otherwise than under this section
must be taken into account in assessing compensation payable in a proceeding
begun under this section and arising out of the same event or transaction.
(3) In this section:
acquisition of property has the same meaning
as in paragraph 51(xxxi) of the Constitution.
(4) The Consolidated Revenue Fund is
appropriated for the purposes of making payments under this section.
4A
Approved forms and approved statements
(1) In this Act, a reference to an approved
form is a reference to a form that is approved, by instrument in writing, by
the CEO.
(1A) In this Act, a reference to an approved
statement is a reference to a statement that is approved, by instrument in
writing, by the CEO.
(2) The instrument by which a form or
statement is approved under subsection (1) after this section commences is
a disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
4B
What is a Customs‑related law
In this Act:
Customs‑related law means:
(a) this Act; or
(b) the Excise Act 1901 and
regulations made under that Act; or
(baa) section 72.13 of the Criminal
Code; or
(ba) Division 307 of the Criminal
Code; or
(c) any other Act, or any regulations
made under any other Act, in so far as the Act or regulations relate to the
importation or exportation of goods, where the importation or exportation is
subject to compliance with any condition or restriction or is subject to any
tax, duty, levy or charge (however described).
4C
Identity cards
(1) The CEO must cause an identity card to be
issued to an officer who is an authorised officer for the purposes of Division 3A
of Part VI or is a monitoring officer for the purposes of Subdivision J of
Division 1 of Part XII or is a verification officer for the purposes
of Subdivision JA of Division 1 of Part XII.
(2) An identity card:
(a) must be in a form approved by the
CEO; and
(b) must contain a recent photograph
of the authorised officer, monitoring officer or verification officer.
(3) If a person to whom an identity card has
been issued ceases to be an authorised officer, monitoring officer or
verification officer for the purposes of the provisions of this Act in respect
of which the card was issued, the person must return the card to the CEO as
soon as practicable.
Penalty: One penalty unit.
(4) An offence for a contravention of subsection (3)
is an offence of strict liability.
(5) An authorised officer, monitoring officer
or verification officer must carry his or her identity card at all times when
exercising powers in respect of which the card was issued.
5
Penalties at foot of sections or subsections
The penalty, pecuniary or other, set
out:
(a) at the foot of a section of this
Act; or
(b) at
the foot of a subsection of a section of this Act, but not at the foot of the
section;
indicates that a contravention of the section or of the subsection,
as the case may be, whether by act or omission, is an offence against this Act,
punishable upon conviction by a penalty not exceeding the penalty so set out.
5AA
Application of the Criminal Code
(1) Subject to subsection (2), Chapter 2
of the Criminal Code applies to an offence against this Act.
(2) For the purposes of a Customs
prosecution:
(a) Parts 2.1, 2.2 and 2.3 of the
Criminal Code apply; and
(b) Parts 2.4, 2.5 and 2.6 of the
Criminal Code do not apply; and
(c) a reference to criminal
responsibility in Chapter 2 of the Criminal Code is taken to be a
reference to responsibility.
(3) This section is not to be interpreted as
affecting in any way the nature of any offence under this Act, the nature of
any prosecution or proceeding in relation to any such offence, or the way in
which any such offence is prosecuted, heard or otherwise dealt with.
(4) Without limiting the scope of subsection (3),
this section is not to be interpreted as affecting in any way the standard or
burden of proof for any offence under this Act that is the subject of a Customs
prosecution.
(5) In this
section:
Customs prosecution has the meaning given in
section 244.
Part II—Administration
5A
Attachment of overseas resources installations
(1) A person shall not cause an overseas
resources installation to be attached to the Australian seabed.
Penalty: 500 penalty units.
(1A) Subsection (1) does not apply if the
person has the permission of the CEO given under subsection (2).
(2) The CEO may, by notice in writing given
to a person who has applied for permission to cause an overseas resources
installation to be attached to the Australian seabed, give the person
permission, subject to such conditions (if any) as are specified in the notice,
to cause that installation to be so attached.
(3) A person who has been given permission
under subsection (2) shall not refuse or fail to comply with any condition
(including a condition imposed or varied under subsection (4)), to which
that permission is subject.
Penalty: 100 penalty units.
(4) Where the CEO has, under subsection (2),
given a person permission to cause an overseas resources installation to be
attached to the Australian seabed, the CEO may, at any time before that
installation is so attached, by notice in writing served on the person:
(a) revoke the permission;
(b) revoke or vary a condition to
which the permission is subject; or
(c) impose new conditions to which the
permission is to be subject.
(5) Without limiting the generality of subsection (2),
conditions to which a permission given under that subsection may be subject
include:
(a) conditions relating to matters of
quarantine; and
(b) conditions requiring the master of
an installation to bring the installation to a place specified by the CEO for
examination for quarantine purposes before the installation is attached to the
Australian seabed.
5B
Installation of overseas sea installations
(1) A person shall not cause an overseas sea
installation to be installed in an adjacent area or a coastal area.
Penalty: 500 penalty units.
(1A) Subsection (1) does not apply if the
person has the permission of the CEO given under subsection (2).
(2) The CEO may, by notice in writing given
to a person who has applied for permission to cause an overseas sea installation
to be installed in an adjacent area or a coastal area, give the person
permission, subject to such conditions (if any) as are specified in the notice,
to cause that installation to be so installed.
(3) A person who has been given permission
under subsection (2) shall not refuse or fail to comply with any condition
(including a condition imposed or varied under subsection (4)) to which
that permission is subject.
Penalty: 100 penalty units.
(4) Where the CEO has, under subsection (2),
given a person permission to cause an overseas sea installation to be installed
in an adjacent area or a coastal area, the CEO may, at any time before that
installation is so installed, by notice in writing served on the person:
(a) revoke the permission;
(b) revoke or vary a condition to
which the permission is subject; or
(c) impose new conditions to which the
permission is to be subject.
(5) Without limiting the generality of subsection (2),
conditions to which a permission given under that subsection in relation to a
sea installation may be subject include:
(a) conditions relating to matters of
quarantine; and
(b) conditions requiring the owner of
the installation, to bring the installation to a place specified by the CEO for
examination for quarantine purposes before the installation is installed in an
adjacent area or a coastal area.
5C
Certain installations to be part of Australia
(1) For the purposes of the Customs Acts:
(a) a resources installation that
becomes attached to, or that is, at the commencement of this subsection,
attached to, the Australian seabed; or
(b) a
sea installation that becomes installed in, or that is, at the commencement of
this subsection, installed in, an adjacent area or a coastal area;
shall, subject to subsections (2) and (3), be deemed
to be part of Australia.
(2) A resources installation that is deemed
to be part of Australia because of the operation of this section shall, for the
purposes of the Customs Acts, cease to be part of Australia if:
(a) the installation is detached from
the Australian seabed, or from another resources installation attached to the
Australian seabed, for the purpose of being taken to a place outside the outer
limits of Australian waters (whether or not the installation is to be taken to
a place in Australia before being taken outside those outer limits); or
(b) after having been detached from
the Australian seabed otherwise than for the purpose referred to in paragraph (a),
the installation is moved for the purpose of being taken to a place outside the
outer limits of Australian waters (whether or not the installation is to be
taken to a place in Australia before being taken outside those outer limits).
(3) A sea installation that is deemed to be
part of Australia because of the operation of this section shall, for the
purposes of the Customs Acts, cease to be part of Australia if:
(a) the installation is detached from
its location for the purpose of being taken to a place that is not in an
adjacent area or in a coastal area; or
(b) after having been detached from
its location otherwise than for the purpose referred to in paragraph (a),
the installation is moved for the purpose of being taken to a place that is not
in an adjacent area or in a coastal area.
6 Act
does not extend to external Territories
(1) Subject to subsection (2), this Act
does not extend to the external Territories.
(2) Regulations may be made to extend the
whole or a part of this Act (with or without modifications) to the Territory of Ashmore and Cartier Islands.
7
General administration of Act
(1) The Chief Executive Officer of Customs
has the general administration of this Act.
8
Collectors of Customs
(1) In this Act:
(a) a reference to the Collector, or
to a Collector, is a reference to:
(i) the CEO; or
(ii) the Regional Director
for a State or Territory; or
(iii) any officer doing duty
in the matter in relation to which the expression is used; and
(b) a reference to the Regional
Director, or to a Regional Director, for a State or Territory is a reference to
the principal officer of Customs for that State or Territory.
(2) For the purposes of this Act, a State
shall be taken to include:
(a) in the case of a State other than
the State of Queensland—that part of Australian waters that is within the area
described in Schedule 1 to the Offshore Petroleum and Greenhouse Gas
Storage Act 2006 that refers to that State; and
(b) in the case of the State of Queensland—that part of Australian waters that is within:
(i) the area described in
that Schedule to that Act that refers to the State of Queensland; or
(ii) the Coral Sea area.
(3) For the purposes of this Act, the Northern Territory shall be taken to include that part of Australian waters that is within:
(a) the area described in Schedule 1
to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 that
refers to the Northern Territory; or
(b) the area described in that
Schedule to that Act that refers to the Territory of Ashmore and Cartier Islands.
8A
Attachment of part of a State or Territory to adjoining State or Territory for
administrative purposes
The Governor‑General may, by
Proclamation, declare that, for the purposes of the administration of the
Customs, a part of a State or Territory specified in the Proclamation is
attached to an adjoining State or Territory so specified, and a part of a State
or Territory so specified shall, for the purposes of this Act, be deemed to be
part of the adjoining State or Territory.
9
Delegation
(1) The Minister may, by signed instrument,
delegate to an officer of Customs all or any of the functions and powers of the
Minister under the Customs Acts.
(2) A function or power so delegated, when
performed or exercised by the delegate, shall, for the purposes of the Customs
Acts, be deemed to have been performed or exercised by the Minister.
(3) Paragraph 34AB(c) of the Acts
Interpretation Act 1901 does not apply to a delegation under subsection (1).
(4) Despite subsection (1), the power of
the Minister to delegate the Minister’s powers and functions under the Customs
Acts does not extend to a power or function conferred by subsection 77EA(1),
77ED(1), 77EE(1), 77EF(2), 269TG(1) or (2), 269TH(1) or (2), 269TJ(1), (2),
(4), (5) or (6) or 269TK(1) or (2) of this Act or by subsection 8(5), 9(5),
10(3B), 10(5) or 11(4) of the Anti‑Dumping Act.
11
Arrangements with States and the Northern Territory
(1) The
Governor‑General may make arrangements with the Governor of a State:
(aa) for the performance by all or any
of the persons who from time to time hold office as Judges of the Supreme Court
of that State of the functions of a Judge under Subdivision C of Division 1B
of Part XII; and
(ab) for the performance by all or any
of the persons who from time to time hold office as Judges of the Supreme Court
of that State of the functions of a judicial officer under Subdivision DA of
Division 1 of Part XII, and under other provisions in so far as they
relate to that Subdivision; and
(b) for the performance by all or any
of the persons who from time to time hold office as Magistrates in that State
of the functions of a Magistrate under Subdivision C of Division 1B of
Part XII; and
(c) for the performance by all or any
of the persons who are medical practitioners employed by that State of the
functions of a medical practitioner under Division 1B of Part XII.
(2) The Governor‑General may make
arrangements with the Administrator of the Northern Territory:
(aa) for the performance by all or any
of the persons who from time to time hold office as Judges of the Supreme Court
of that Territory (and are not also Judges of the Federal Court of Australia or
of the Supreme Court of the Australian Capital Territory) of the functions of a
Judge under Subdivision C of Division 1B of Part XII; and
(ab) for the performance by all or any
of the persons who from time to time hold office as Judges of the Supreme Court
of that Territory (and are not also Judges of the Federal Court of Australia or
of the Supreme Court of the Australian Capital Territory) of the functions of a
judicial officer under Subdivision DA of Division 1 of Part XII, and
under other provisions in so far as they relate to that Subdivision; and
(b) for the performance by all or any
of the persons who from time to time hold office as Magistrates in that
Territory of the functions of a Magistrate under Subdivision C of
Division 1B of Part XII; and
(c) for the performance by all or any
of the persons who are medical practitioners employed by that Territory of the
functions of a medical practitioner under Division 1B of Part XII.
13
Customs Seal
(1) The Customs shall have a seal, called the
Customs Seal, the design of which shall be determined by the CEO.
(2) The design so determined shall include:
(a) the Coat of Arms of the
Commonwealth, that is to say, the armorial ensigns and supporters granted to
the Commonwealth by Royal Warrant dated 19 September 1912; and
(b) the words “Australia—Customs and Border Protection”.
(3) The Customs Seal shall be kept at such
place, and in the custody of such person, as the CEO directs.
(4) The Customs Seal shall be used as
directed by the CEO.
(5) The CEO, the Regional Director for a
State and the Regional Director for the Northern Territory shall each have in
his or her custody a stamp, called a Customs stamp, the design of which shall,
as nearly as practicable, be the same as the design of the Customs Seal with
the addition of:
(a) in the case of the stamp in the
custody of the CEO—the words “Australian Capital Territory”; and
(b) in the case of the stamp in the
custody of a Regional Director for a State—the name of the State; and
(c) in the case of the stamp in the
custody of the Regional Director for the Northern Territory—the words “Northern Territory”.
(6) A Customs stamp shall be used as provided
by this Act.
(7) All courts (whether exercising federal
jurisdiction or not) and all persons acting judicially shall take judicial
notice of the impression of the Customs Seal, or of the mark of a Customs
stamp, on a document or a copy of a document and, in the absence of proof to
the contrary, shall presume that impression or mark, as the case may be, was
made by proper authority.
14
Customs flag
The ships and aircraft employed in the
service of the Customs shall be distinguished from other ships and aircraft by
such flag or in such other manner as shall be prescribed.
15
Appointment of ports etc.
(1) The CEO may, by notice published in the Gazette:
(a) appoint ports and fix the limits
of those ports; and
(b) appoint airports and fix the
limits of those airports.
(1A) In deciding whether to appoint a port under
subsection (1), the CEO may take into account:
(a) whether the port or any part of
the port is a security regulated port (within the meaning of the Maritime
Transport and Offshore Facilities Security Act 2003); and
(b) if so—whether the person
designated under section 14 of the Maritime Transport and Offshore
Facilities Security Act 2003 as the port operator has a maritime security
plan (within the meaning of that Act).
(2) The CEO may, by notice published in the Gazette:
(a) appoint wharves and fix the limits
of those wharves; and
(b) appoint boarding stations for the
boarding of ships and aircraft by officers.
(3) A notice under subsection (1) or (2)
may provide that a port, airport, wharf or boarding station appointed by the
notice is to be a port, airport, wharf or boarding station for limited purposes
specified in the notice.
17
Appointment of sufferance wharfs etc.
The CEO
may by Gazette notice:
(a) Appoint sufferance wharfs in any
port.
19
Accommodation on wharfs and at airports
Every wharf‑owner and airport owner
shall provide to the satisfaction of the Collector suitable office
accommodation on his or her wharf or at his or her airport for the exclusive
use of the officer employed at the wharf or airport also such shed accommodation
for the protection of goods as the CEO may in writing declare to be requisite.
Penalty: 1 penalty unit.
20
Waterfront area control
(1) A person who is in a waterfront area
must, at the request of a Customs officer, produce appropriate identification
for the officer’s inspection.
(2) If a person refuses or fails to produce
appropriate identification to a Customs officer on request, the officer may, if
he or she has reason to believe that the person is a member of the crew of an
international ship, request the person to return to the ship forthwith to
obtain that identification.
(3) If a member of the crew of an
international ship refuses or fails to produce appropriate identification to a
Customs officer, the master of the ship is taken, because of that refusal or
failure, to have committed an offence against this Act.
Penalty: 10 penalty units.
(4) In any proceedings for an offence against
subsection (3), it is a defence if the master of the ship establishes that
he or she has taken all reasonable steps to ensure that crew members:
(a) have appropriate identification;
and
(b) understand their obligation to
carry their identification in a waterfront area and to produce it to Customs
officers when requested to do so.
(5) If:
(a) a person refuses or fails to
produce appropriate identification to a Customs officer on request; and
(b) the
officer has no reason to believe that the person is a member of an
international ship’s crew;
the officer may:
(c) if the person can otherwise
establish his or her identity to the satisfaction of the officer and explain
his or her presence in the waterfront area—issue the person with a temporary
identification; or
(d) if the person is unable to
establish his or her identity or to explain his or her presence in the
waterfront area—request the person to leave the waterfront area forthwith.
(6) For the purposes of this section, a
temporary identification issued under subsection (5) has effect, until
that document expires, as if it were an appropriate identification.
(7) A person
must not refuse or fail to comply with a request under subsection (2) or paragraph (5)(d).
Penalty: 5 penalty units.
(7A) Subsection (7) does not apply if the
person has a reasonable excuse.
(8) In this section:
appropriate identification means:
(a) if a person is a member of the
crew of an international ship:
(i) current passport; or
(ii) a document issued by
the shipping company having control of the ship concerned setting out the full
name and nationality of the person and the passport number or other official
identification number of the person; or
(iii) a document issued by,
or by an instrumentality of, the Commonwealth, a State or a Territory providing
photographic identification of the person and setting out the person’s full name,
address, and date of birth; and
(b) if
the person is not a member of the crew of such a ship—either:
(i) a document issued by
the employer of the person providing photographic identification of the
employee; or
(ii) a document issued by,
or by an instrumentality of, the Commonwealth, a State or a Territory providing
photographic identification of the person and setting out the person’s full
name, address, and date of birth.
international ship means a ship that is
currently engaged in making international voyages.
waterfront area means an area:
(a) that is:
(i) a port or wharf that
is appointed, and the limits of which are fixed, under section 15; or
(ii) a boarding station
that is appointed under section 15; or
(iii) a place that is
appointed under paragraph 17(b); and
(b) that is signposted so as to give
persons present in the area a clear indication:
(i) that it is an area
under Customs control; and
(ii) that they must not
enter, or remain in, the area unless they carry appropriate identification; and
(iii) that they may be
required to produce appropriate identification and, if they fail to do so, that
they may be requested to leave the area.
25
Persons before whom declarations may be made
Declarations under this Act may be made
before the Minister, an officer of Customs or a Justice.
26
Declaration by youths
No person shall knowingly receive a
declaration under this Act by any person under the age of eighteen years.
27
State inspection laws
If the Governor‑General shall so direct
by proclamation any State Act relating to the inspection or testing of imported
goods may be executed and enforced by the Customs.
28
Working days and hours etc.
(1) The regulations may prescribe the days
(which may include Sundays or holidays) on which, and the hours on those days
(which may be different hours on different days) between which, officers are to
be available to perform a specified function in every State or Territory, in a
specified State or Territory or otherwise than in a specified State or Territory.
(2) If, at the request of a person, a
Collector arranges for an officer to be available to perform a function at a
place outside the hours prescribed for that function, the person must pay to
Customs an overtime fee.
(3) The
overtime fee in relation to the officer is:
(a) $40 per hour or part hour during
which the officer performs that function and engages in any related travel, or
such other rate as is prescribed; and
(b) any prescribed travel expense (at
the rate prescribed) associated with the officer performing that function at
that place.
(4) If, at the request of a person, a
Collector arranges for an officer to be available to perform a function:
(a) at a place that is not a place at
which such a function is normally performed; and
(b) during
the hours prescribed for that function;
the person must pay to Customs a location fee.
(5) The location fee in relation to the
officer is:
(a) $37 per hour or part hour during
which the officer performs that function and engages in any related travel, or
such other rate as is prescribed; and
(b) any prescribed travel expense (at
the rate prescribed) associated with the officer performing that function at
that place.
(6) In this section:
related travel means travel to or from the
place at which the function referred to in paragraph (3)(a) or (5)(a) is
performed if that travel directly relates to the officer performing that
function.
Part III—Customs control examination and securities generally
30
Customs control of goods
(1) Goods shall be subject to the control of
the Customs as follows:
(a) as to goods to which section 68
applies that are unshipped—from the time of their importation:
(ii) if the goods are not
examinable food that has been entered for home consumption or warehousing and are
not excise‑equivalent goods—until either they are delivered into home
consumption in accordance with an authority to deal or in accordance with a
permission under section 69, 70 or 162A or they are exported to a place
outside Australia, whichever happens first; and
(iii) if the goods are
examinable food that has been entered for home consumption—until a food control
certificate is delivered to the person who has possession of the food; and
(iv) if the goods are
examinable food that has been entered for warehousing and are not excise‑equivalent
goods—until there is delivered to the person who has possession of the food an
imported food inspection advice requiring its treatment, destruction or
exportation or, if no such advice is delivered, until the goods are entered for
home consumption or the food is exported to a place outside Australia,
whichever happens first; and
(v) if the goods (the dual
goods) are examinable food that has been entered for warehousing and
are excise‑equivalent goods—until whichever of the events mentioned in
subsection (1A) happens first; and
(vi) if the goods are excise‑equivalent
goods and are not examinable food—until whichever of the events mentioned in
subsection (1B) happens first;
(aa) as to goods to which section 68
applies that are not unshipped—from the time of their importation until they
are exported to a place outside Australia;
(ab) as to goods referred to in
paragraph 68(1)(e), (f) or (i)—from the time of their importation:
(i) if they are
unshipped—until they are delivered into home consumption in accordance with an
authority under section 71; or
(ii) if they are not
unshipped—until they are exported to a place outside Australia;
(ac) as to goods referred to in
paragraph 68(1)(g) or (h)—from the time of their importation:
(i) if they are unshipped—until
they are delivered into home consumption; or
(ii) if they are not
unshipped—until they are exported to a place outside Australia;
(ad) as to goods referred to in
paragraph 68(1)(d)—from the time of their importation until they are delivered
into home consumption in accordance with an authority under section 71 or
they are exported to a place outside Australia, whichever happens first;
(ae) as to goods referred to in
paragraph 68(1)(j)—from the time of their importation until they are exported
to a place outside Australia;
(b) as to all goods in respect of
which a claim for drawback has been made before exportation of the goods to a
place outside Australia—from the time the claim is made until the goods are exported,
the claim is withdrawn or the claim is disallowed, whichever happens first;
(c) as to all goods subject to any
export duty—from the time when the same are brought to any port or place for
exportation until the payment of the duty;
(d) as to all goods for export
(including goods delivered for export under section 61AA of the Excise
Act 1901)—from the time the goods are made or prepared in, or are brought
into, any prescribed place for export, until their exportation to a place
outside Australia, or, in the case of goods delivered for export under section 61AA
of the Excise Act 1901, their exportation to such a place or their
return, in accordance with subsection 114D(2) of this Act, to the
Commissioner’s control under section 61 of the Excise Act 1901.
(1A) The events
for the purposes of subparagraph (1)(a)(v) are as follows:
(a) the dual goods are destroyed in
accordance with an imported food inspection advice delivered to the person who
has possession of the goods;
(b) excisable goods are manufactured
and the dual goods are used in that manufacture;
(c) the dual goods are delivered into
home consumption in accordance with an authority to deal or in accordance with
a permission under section 69, 70 or 162A;
(d) the dual goods are exported to a place
outside Australia.
(1B) The events for the purposes of
subparagraph (1)(a)(vi) are as follows:
(a) excisable goods are manufactured
and the excise‑equivalent goods are used in that manufacture;
(b) the excise‑equivalent goods are
delivered into home consumption in accordance with an authority to deal or in
accordance with a permission under section 69, 70 or 162A;
(c) the excise‑equivalent goods are
exported to a place outside Australia.
(2) In this section:
examinable food has the same meaning as in
the Imported Food Control Act 1992.
imported food inspection advice has the same
meaning as in the Imported Food Control Act 1992.
30A
Exemptions under Torres Strait Treaty
(1) In this section:
area in the vicinity of the Protected Zone
means an area in respect of which a notice is in force under subsection (2).
Australian place means a place in Australia that is in the Protected Zone or in an area in the vicinity of the Protected
Zone.
Papua New Guinea place means a
place in Papua New Guinea that is in the Protected Zone or in an area in the
vicinity of the Protected Zone.
Protected Zone means the zone established
under Article 10 of the Torres Strait Treaty, being the area bounded by the
line described in Annex 9 to that treaty.
Protected Zone ship means a ship that is
owned or operated by a traditional inhabitant.
Torres Strait Treaty means the treaty between
Australia and the Independent State of Papua New Guinea that was signed at Sydney on 18 December 1978.
traditional activities has the same meaning
as in the Torres Strait Treaty.
traditional inhabitants has the same meaning
as in the Torres Strait Fisheries Act 1984.
(2) The CEO may, by notice published in the Gazette,
declare an area adjacent to the Protected Zone to be an area in the vicinity of
the Protected Zone for the purposes of this section.
(3) The CEO
may, by notice published in the Gazette, exempt, subject to such
conditions (if any) as are specified in the notice, from so many of the
provisions of the Customs Acts as are specified in the notice:
(a) any Protected Zone ship that
arrives at an Australian place on a voyage from a Papua New Guinea place or
that leaves an Australian place on a voyage to a Papua New Guinea place, being
a ship:
(i) on board which there
is at least one traditional inhabitant who is undertaking that voyage in
connection with the performance of traditional activities in the Protected Zone
or in an area in the vicinity of the Protected Zone; and
(ii) no person on board
which is a person other than:
(A) a person
referred to in subparagraph (i); or
(B) an
employee of the Commonwealth, of Queensland or of Papua New Guinea or of an
authority of the Commonwealth, of Queensland or of Papua New Guinea who is
undertaking that voyage in connection with the performance of his or her duties;
(b) the entry into Australia, or the
departure from Australia, of persons on board a ship of the kind referred to in
paragraph (a); or
(c) the importation into Australia, or
the exportation from Australia, of goods on board a ship of the kind referred
to in paragraph (a), being goods that:
(i) are owned by, or are
under the control of, a traditional inhabitant who is on board that ship and
have been used, are being used or are intended to be used by him or her in
connection with the performance of traditional activities in the Protected Zone
or in an area in the vicinity of the Protected Zone; or
(ii) are the personal
belongings of a person referred to in subparagraph (a)(ii); or
(iii) are stores for the use
of the passengers or crew of that ship or for the service of that ship.
(4) Where:
(a) the master of a ship (not being a
ship to which an exemption under subsection (3) applies) or the pilot of
an aircraft proposes to take that ship or aircraft, as the case may be, on a
voyage or flight, as the case may be, from an Australian place to a Papua New
Guinea place or from a Papua New Guinea place to an Australian place; and
(b) that voyage or flight, as the case
may be:
(i) will be undertaken by
at least one person who is a traditional inhabitant for purposes connected with
the performance of traditional activities in the Protected Zone or in an area
in the vicinity of the Protected Zone; and
(ii) will not be undertaken
by a person other than:
(A) a person
referred to in subparagraph (i);
(B) an
employee of the Commonwealth, of Queensland or of Papua New Guinea or of an
authority of the Commonwealth, of Queensland or of Papua New Guinea who will be
undertaking that voyage or flight in connection with the performance of his or
her duties; or
(C) the
master of the ship or a member of the crew of the ship or the pilot of the
aircraft or a member of the crew of the aircraft, as the case may be;
the master of the ship or the pilot of the aircraft, as
the case may be, may, by notice in writing given to the CEO setting out such
information as is prescribed, request the CEO to grant an exemption under subsection (5)
in relation to the voyage or flight, as the case may be.
(5) The CEO
may, in his or her discretion, after receiving an application under subsection (4)
in relation to a proposed voyage by a ship or a proposed flight by an aircraft,
by notice in writing given to the person who made the application, exempt,
subject to such conditions (if any) as are specified in the notice, from so
many of the provisions of the Customs Acts as are specified in the notice:
(a) the entry into Australia, or the departure from Australia, of that ship or aircraft, as the case may be,
in the course of that voyage or flight, as the case may be; and
(b) the entry into Australia, or the
departure from Australia, of any person on board that ship or aircraft, as the
case may be, in the course of that voyage or flight, as the case may be; and
(c) the importation into Australia, or
the exportation from Australia, of goods, or goods included in a class of goods
specified in the notice, on board that ship during that voyage or on board that
aircraft during that flight, as the case may be, being goods that:
(i) are owned by, or are
under the control of, a traditional inhabitant who is on board that ship or
aircraft, as the case may be, and have been used, are being used or are
intended to be used by him or her in connection with the performance of
traditional activities in the Protected Zone or in an area in the vicinity of
the Protected Zone; or
(ii) are the personal
belongings of a person who is on board that ship or aircraft, as the case may
be, in the course of that voyage or flight, as the case may be; or
(iii) are stores for the use
of the passengers or crew of that ship or aircraft, as the case may be, or for
the service of that ship or aircraft, as the case may be.
(6) Where:
(a) under subsection (3) or (5),
the arrival at a place in Australia of a ship, an aircraft or a person, or the
importation into Australia of goods, is exempt from any provisions of the
Customs Acts; and
(b) that
ship, aircraft or person arrives at, or those goods are taken to, a place in Australia that is not in the Protected Zone or in an area in the vicinity of the Protected Zone;
the Customs Acts (including the provisions referred to in paragraph (a))
apply in relation to the arrival of that ship, aircraft or person at, or the
taking of those goods to, the place referred to in paragraph (b) as if
that ship, aircraft or person had arrived at the place, or those goods had been
taken to that place, as the case may be, from a place outside Australia.
31
Goods on ships and aircraft subject to Customs control
All goods on board any ship or aircraft
from a place outside Australia shall also be subject to the control of the
Customs whilst the ship or aircraft is within the limits of any port or airport
in Australia.
33
Persons not to move goods subject to the control of Customs
(1) If:
(a) a person intentionally moves,
alters or interferes with goods that are subject to the control of Customs; and
(b) the movement, alteration or
interference is not authorised by or under this Act;
the person commits an offence punishable, on conviction,
by a penalty not exceeding 500 penalty units.
(2) If:
(a) a person moves, alters or
interferes with goods that are subject to the control of Customs; and
(b) the movement, alteration or
interference is not authorised by or under this Act;
the person commits an offence punishable, on conviction, by
a penalty not exceeding 60 penalty units.
(3) If:
(a) an employee of a person moves,
alters or interferes with goods that are subject to the control of Customs; and
(b) in moving, altering or interfering
with the goods the employee is acting on behalf of the person; and
(c) the movement, alteration or
interference is not authorised by or under this Act;
the person commits an offence punishable, on conviction,
by a penalty not exceeding 60 penalty units.
(4) It is a defence to a prosecution of a
person for a contravention of subsection (3) if the person took reasonable
precautions, and exercised due diligence, to prevent the employee who is
alleged to have moved, altered or interfered with the goods from moving,
altering or interfering with them.
(5) If:
(a) a person intentionally directs or
permits another person to move, alter or interfere with goods that are subject
to the control of Customs; and
(b) the movement, alteration or
interference is not authorised by or under this Act;
the person commits an offence punishable, on conviction,
by a penalty not exceeding 500 penalty units.
(6) If:
(a) a person directs or permits
another person to move, alter or interfere with goods that are subject to the
control of Customs; and
(b) the movement, alteration or
interference is not authorised by or under this Act;
the person commits an offence punishable, on conviction,
by a penalty not exceeding 60 penalty units.
(7) An offence against subsection (2),
(3) or (6) is an offence of strict liability.
(8) In this section:
employee, of a body corporate, includes a
person who is a director, a member, or a member of the board of management, of
the body corporate.
goods does not include installations.
Note 1: For permission to move goods specified in a
cargo report from one place under Customs control to another place under
Customs control, see section 71E.
Note 2: For permission to move, alter or interfere with
goods for export, see section 119AA.
33A
Resources installations subject to the control of the Customs
(1) A person shall not use an Australian
resources installation that is subject to the control of the Customs in, or in
any operations or activities associated with, or incidental to, exploring or
exploiting the Australian seabed.
Penalty: 500 penalty units.
(1A) Subsection (1) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(1B) Subsection (1) does not apply if the
person has permission in force under subsection (2).
(2) The CEO may give permission in writing to
a person specified in the permission, subject to such conditions (if any) as
are specified in the permission, to engage in specified activities in relation
to the use of an Australian resources installation that is subject to the
control of the Customs.
(3) A person who has been given permission
under subsection (2) shall not refuse or fail to comply with any condition
(including a condition imposed or varied under subsection (4)) to which
that permission is subject.
Penalty: 100 penalty units.
(4) Where the CEO has, under subsection (2),
given a person permission to engage in any activities in relation to an
Australian resources installation, the CEO may, while that installation remains
subject to the control of Customs, by notice in writing served on the person:
(a) suspend or revoke the permission;
(b) revoke or vary a condition to
which the permission is subject; or
(c) impose new conditions to which
the permission is to be subject.
33B
Sea installations subject to the control of the Customs
(1) A person shall not use an Australian sea
installation that is subject to the control of the Customs.
Penalty: 500 penalty units.
(1A) Subsection (1) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(1B) Subsection (1) does not apply if the
person has permission in force under subsection (2).
(2) The CEO may give permission in writing to
a person specified in the permission, subject to such conditions (if any) as
are specified in the permission, to engage in specified activities in relation
to the use of an Australian sea installation that is subject to the control of
the Customs.
(3) A person
who has been given permission under subsection (2) shall not refuse or
fail to comply with any condition (including a condition imposed or varied
under subsection (4)) to which that permission is subject.
Penalty: 100 penalty units.
(4) Where the CEO has, under subsection (2),
given a person permission to engage in any activities in relation to an Australian
sea installation, the CEO may, while that installation remains subject to the
control of the Customs, by notice in writing served on the person:
(a) suspend or revoke the permission;
(b) revoke or vary a condition to
which the permission is subject; or
(c) impose new conditions to which the
permission is to be subject.
33C
Obstructing or interfering with Commonwealth property in a Customs place
(1) A person commits an offence if:
(a) the person intentionally obstructs
or interferes with the operation of a thing; and
(b) the thing belongs to the
Commonwealth; and
(c) the thing is located in a Customs
place.
Penalty: 60 penalty units.
(2) Absolute liability applies to
paragraph (1)(b).
Note: For absolute liability, see section 6.2
of the Criminal Code.
(3) In this section:
Customs place has the same meaning as in
section 183UA.
34 No
claim for compensation for loss
The Customs shall not be liable for any
loss or damage occasioned to any goods subject to the control of the Customs
except by the neglect or wilful act of some officer.
35
Goods imported by post
Goods imported by post shall be subject
to the control of the Customs equally with goods otherwise imported.
35A Amount
payable for failure to keep dutiable goods safely etc.
(1) Where a person who has, or has been
entrusted with, the possession, custody or control of dutiable goods which are
subject to the control of the Customs:
(a) fails to keep those goods safely;
or
(b) when
so requested by a Collector, does not account for those goods to the
satisfaction of a Collector in accordance with section 37;
that person shall, on demand in writing made by a
Collector, pay to the Commonwealth an amount equal to the amount of the duty of
Customs which would have been payable on those goods if they had been entered
for home consumption on the day on which the demand was made.
(1A) Where:
(a) dutiable goods subject to the
control of the Customs are, in accordance with authority to deal or by
authority of a permission given under section 71E, taken from a place for
removal to another place;
(b) the goods are not, or part of the
goods is not, delivered to that other place; and
(c) when
so requested by a Collector, the person who made the entry or to whom the
permission was given, as the case may be, does not account for the goods, or
for that part of the goods, as the case may be, to the satisfaction of a
Collector in accordance with section 37;
the person shall, on demand in writing made by a
Collector, pay to the Commonwealth an amount equal to the amount of the duty of
Customs which would have been payable on the goods, or on that part of the
goods, as the case may be, if they had been entered for home consumption on the
day on which the demand was made.
(1B) Where:
(a) dutiable goods subject to the
control of the Customs are, by authority of a permission given under section 71E,
removed to a place other than a warehouse; and
(b) the
person to whom the permission was given fails to keep those goods safely or,
when so requested by a Collector, does not account for the goods to the
satisfaction of a Collector in accordance with section 37;
the person shall, on demand in writing made by a
Collector, pay to the Commonwealth an amount equal to the amount of the duty of
Customs which would have been payable on those goods if they had been entered
for home consumption on the day on which the demand was made.
(2) An amount payable under subsection (1),
(1A) or (1B) shall be a debt due to the Commonwealth and may be sued for and
recovered in a court of competent jurisdiction by proceedings in the name of
the Collector.
(3) In proceedings under the last preceding
subsection, a statement or averment in the complaint, claim or declaration of
the Collector is evidence of the matter or matters so stated or averred.
(4) This section does not affect the
liability of a person arising under or by virtue of:
(a) any other provision of this Act;
or
(b) a security given under this Act.
36
Offences for failure to keep goods safely or failure to account for goods
Offences for failure to keep goods safely
(1) A person commits an offence if:
(a) goods are subject to the control
of the Customs; and
(b) the person has, or has been
entrusted with, the possession, custody or control of the goods; and
(c) the person fails to keep the goods
safely.
Penalty: 500 penalty units.
(2) A person commits an offence if:
(a) goods are subject to the control
of the Customs; and
(b) the person has, or has been
entrusted with, the possession, custody or control of the goods; and
(c) the person fails to keep the goods
safely.
Penalty: 60 penalty units.
(3) An offence against subsection (2) is
an offence of strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
Offences for failure to account for goods
(4) A person commits an offence if:
(a) goods are subject to the control
of the Customs; and
(b) the person has, or has been
entrusted with, the possession, custody or control of the goods; and
(c) the person, when so requested by a
Collector, does not account for the goods to the satisfaction of a Collector in
accordance with section 37.
Penalty: 500 penalty units.
(5) A person commits an offence if:
(a) goods are subject to the control
of the Customs; and
(b) the person has an authority to deal
with the goods, or is given a permission under section 71E in relation to
the goods; and
(c) the goods are taken, in accordance
with the authority to deal or by authority of the permission under
section 71E, from a place for removal to another place; and
(d) the goods are not, or part of the
goods is not, delivered to that other place; and
(e) the person, when so requested by a
Collector, does not account for the goods or for that part of the goods (as the
case may be) to the satisfaction of a Collector in accordance with
section 37.
Penalty: 500 penalty units.
(6) A person commits an offence if:
(a) goods are subject to the control
of the Customs; and
(b) the person has, or has been
entrusted with, the possession, custody or control of the goods; and
(c) the person, when so requested by a
Collector, does not account for the goods to the satisfaction of a Collector in
accordance with section 37.
Penalty: 60 penalty units.
(7) A person commits an offence if:
(a) goods are subject to the control
of the Customs; and
(b) the person has an authority to
deal with the goods, or is given a permission under section 71E in
relation to the goods; and
(c) the goods are taken, in accordance
with the authority to deal or by authority of the permission under section 71E,
from a place for removal to another place; and
(d) the goods are not, or part of the
goods is not, delivered to that other place; and
(e) the person, when so requested by a
Collector, does not account for the goods or for that part of the goods (as the
case may be) to the satisfaction of a Collector in accordance with
section 37.
Penalty: 60 penalty units.
(8) An offence against subsection (6) or
(7) is an offence of strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
Removal of goods by authority of section 71E
permission
(9) Without limiting subsection (1),
(2), (4) or (6), if goods are removed to a place other than a warehouse by
authority of a permission given to a person under section 71E, the person
is taken to have, or to have been entrusted with, the possession, custody or
control of the goods for the purposes of paragraph (1)(b), (2)(b), (4)(b)
or (6)(b).
Other liabilities not affected
(10) This section does not affect the liability
of a person arising under or by virtue of:
(a) any other provision of this Act;
or
(b) a security given under this Act.
37
Accounting for goods
A person accounts for goods or a part of
goods to the satisfaction of a Collector in accordance with this section if,
and only if:
(a) the Collector sights the goods; or
(b) if the Collector is unable to
sight the goods—the person satisfies the Collector that the goods have been
dealt with in accordance with this Act.
42
Right to require security
(1) The Customs shall have the right to
require and take securities for compliance with this Act, for compliance with
conditions or requirements to which the importation or exportation of goods is
subject and generally for the protection of the revenue of the Customs, and
pending the giving of the required security in relation to any goods subject to
the control of the Customs may refuse to deliver the goods or to give any
authority to deal with the goods.
(1A) The right of the Customs under subsection (1)
to require and take a security includes the right to require and take
securities for payment of any penalty that a person may become liable to pay to
the Commonwealth under the Customs Undertakings (Penalties) Act 1981.
(1B) The right of the Customs under subsection (1)
to require and take a security includes the right to require and take
securities in respect of any interim duty that may be payable on goods under
the Customs Tariff (Anti‑Dumping) Act 1975 but no such security shall be
required or taken under this Act:
(a) on an application under section 269TB
of this Act in respect of the goods to which the application relates before the
time at which the CEO has made a preliminary affirmative determination, within
the meaning of Part XVB, in respect of those goods; or
(b) on like goods imported into Australia before that time.
(1C) If:
(a) an undertaking is given and
accepted under subsection 269TG(4) or 269TJ(3) in respect of goods; and
(b) the
undertaking is subsequently breached;
the Customs may require and take securities in respect of
any interim duty that may be payable under the Customs Tariff (Anti‑Dumping)
Act 1975 on the goods or on like goods imported into Australia.
(1D) The right of the Customs under subsection (1)
to require and take a security includes the right to require and take a
security in respect of any interim duty that may be payable under the Customs
Tariff (Anti‑Dumping) Act 1975 on goods the subject of an application under
subsection 269ZE(1) of this Act.
(2) The right of the Customs under subsection (1)
to require and take securities includes the right to require and take a
security for a purpose or purposes for which security may be taken under that
subsection and for a purpose or purposes for which security may be taken under
section 16 of the Excise Act 1901‑1957 and the succeeding
provisions of this Part apply to and in relation to such a security in the same
manner as they apply to and in relation to any other security required and
taken under subsection (1).
(3) The rights of the Customs under this
section may be exercised by a Collector on behalf of the Customs.
43
Form of security
A security shall be given in a manner
and form approved by a Collector and may, subject to that approval, be by bond,
guarantee, cash deposit or any other method, or by two or more different
methods.
44
General bonds may be given
When security is required for any
particular purpose security may by the authority of the CEO be accepted to
cover all transactions for such time and for such amounts as the CEO may approve.
45
Cancellation of bonds
(1) All Customs securities may after the
expiration of 3 years from the date thereof or from the time specified for the
performance of the conditions thereof be cancelled by the CEO.
(2) A security taken in respect of any interim
duty that may become payable on goods under section 8, 9, 10 or 11 of the
Customs Tariff (Anti‑Dumping) Act 1975, being a security taken before the
publication by the Minister of a notice declaring that section to apply to
those goods, shall be cancelled before the expiration of the prescribed period
after the date the security is taken.
(3) In subsection (2), prescribed
period means:
(a) in relation to a security in
respect of any interim duty that may be payable on goods under section 8
or 9 of the Customs Tariff (Anti‑Dumping) Act 1975—a period of 6 months
or such longer period (not being a period exceeding 9 months) as is requested
by the exporter of the goods concerned; or
(b) in any other case—a period of 4
months.
(4) Where:
(a) a notice is published by the
Minister declaring section 8, 9, 10 or 11 of the Customs Tariff (Anti‑Dumping)
Act 1975 to apply to goods of a particular kind that may be imported into
Australia;
(b) goods of that kind are imported
while that notice is in force; and
(c) security
is taken after the importation of those goods in relation to the interim duty
that may be payable in respect of them;
subsection (2) does not apply in relation to that
security.
46 New
sureties
If the Collector shall not at any time
be satisfied with the sufficiency of any security the Collector may require a
fresh security and a fresh security shall be given accordingly.
47
Form of Customs security
The form of Customs security in Schedule
I hereto shall suffice for all the purposes of a bond or guarantee under this
Act and without sealing shall bind its subscribers as if sealed and unless
otherwise provided therein jointly and severally and for the full amount.
48
Effect of Customs security
(1) Whenever any such Customs security is put
in suit by the Collector the production thereof without further proof shall
entitle the Collector to judgment for their stated liability against the
persons appearing to have executed the same unless the defendants shall prove
compliance with the condition or that the security was not executed by them or
release or satisfaction.
(2) If it appears to the Court that a non‑compliance
with a Customs security has occurred, the security shall not be deemed to have
been discharged or invalidated, and the subscribers shall not be deemed to have
been released or discharged from liability by reason of:
(a) an extension of time or other
concession;
(b) the
Customs having consented to, or acquiesced in, a previous non‑compliance with
the condition; or
(c) the Collector having failed to
bring suit against the subscribers upon the occurrence of a previous non‑compliance
with the condition.
Part IV—The importation of goods
Division 1A—Preliminary
49
Importation
For the purpose of securing the due
importation of goods:
(1) The ship or aircraft may be
boarded.
(2) The cargo shall be reported.
(3) The goods shall be entered
unshipped and may be examined.
49A
Ships and aircraft deemed to be imported
(1) Where:
(a) a ship or an aircraft has entered Australia; and
(b) a
Collector, after making such inquiries as he or she thinks appropriate, has
reason to believe that the ship or aircraft might have been imported into
Australia;
he or she may serve, in accordance with subsection (4),
a notice in respect of the ship or aircraft stating that, if the ship or
aircraft remains in Australia throughout the period of 30 days commencing on
the day on which the notice was served, the ship or aircraft shall be deemed to
have been imported into Australia and may be forfeited.
(2) Where a notice under subsection (1)
has been served in respect of a ship or an aircraft, a Collector, if he or she
considers that, having regard to weather conditions or any other relevant
matter, it is reasonable to do so, may extend the period specified in the
notice by serving, in accordance with subsection (4), a notice in respect
of the ship or aircraft stating that that period has been extended and
specifying the period by which it has been extended.
(3) Where a notice under subsection (1)
has been served in respect of a ship or an aircraft, a Collector may, before
the expiration of the period specified in the notice, or, if that period has
been extended under subsection (2), that period as extended, revoke that
notice by serving, in accordance with subsection (4), a notice in respect
of the ship or aircraft stating that the first‑mentioned notice is revoked.
(4) A Collector shall serve a notice under subsection (1),
(2) or (3) in respect of a ship or an aircraft by causing the notice to be
affixed to a prominent part of the ship or aircraft.
(5) Where a Collector serves a notice under subsection (1),
(2) or (3) in respect of a ship or an aircraft, he or she shall, as soon as
practicable after serving the notice, publish a copy of the notice in:
(a) a newspaper circulating generally
in the State or Territory in which the ship or aircraft is situated, or, in the
case of a ship or seaplane that is not in a State or Territory, in the State or
Territory that is adjacent to the place where the ship or seaplane is situated;
and
(b) if that newspaper does not
circulate in the locality in which the ship or aircraft is situated—a newspaper
(if any) circulating in that locality.
(6) Where a Collector who proposes to serve a
notice under subsection (1), (2) or (3) in respect of a ship or aircraft
considers that the person (if any) in charge of the ship or aircraft is
unlikely to be able to read the English language but is likely to be able to
read another language, the Collector shall, when causing the notice to be
affixed to the ship or aircraft, cause a translation of the notice into a
language that that person is likely to be able to read to be affixed to the
ship or aircraft as near as practicable to the notice.
(7) Where:
(a) a Collector has served a notice
under subsection (1) in respect of a ship or aircraft;
(b) the Collector has complied with subsections (5)
and (6) in relation to the notice;
(c) the notice has not been revoked
under subsection (3);
(d) the ship or aircraft has remained
in Australia throughout the period specified in the notice, or, if that period
has been extended under subsection (2), that period as extended; and
(e) an
entry has not been made in respect of the ship or aircraft during that period
or that period as extended, as the case requires;
the ship or aircraft shall, for the purpose of this Act be
deemed to have been imported into Australia on the expiration of that period or
that period as extended, as the case requires.
(8) A reference in this section to Australia shall be read as including a reference to waters within the limits of any State
or internal Territory.
(9) A reference in this section to a ship
shall be read as not including a reference to an overseas resources
installation or to an overseas sea installation.
49B
Installations and goods deemed to be imported
(1) Where:
(a) an overseas resources installation
(not being an installation referred to in subsection (2)), becomes
attached to the Australian seabed; or
(b) an
overseas sea installation (not being an installation referred to in subsection (2))
becomes installed in an adjacent area or in a coastal area;
the installation and any goods on the installation at the
time when it becomes so attached or so installed shall, for the purposes of the
Customs Acts, be deemed to have been imported into Australia at the time when
the installation becomes so attached or so installed.
(2) Where:
(a) an overseas resources installation
is brought to a place in Australia and is to be taken from that place into
Australian waters for the purposes of being attached to the Australian seabed;
or
(b) an
overseas sea installation is brought to a place in Australia and is to be taken
from that place into an adjacent area or into a coastal area for the purposes
of being installed in that area;
the installation and any goods on the installation at the
time when it is brought to that place shall, for the purpose of the Customs
Acts, be deemed to have been imported into Australia at the time when the
installation is brought to that place.
Division 1—Prohibited imports
50
Prohibition of the importation of goods
(1) The Governor‑General may, by regulation,
prohibit the importation of goods into Australia.
(2) The power conferred by the last preceding
subsection may be exercised:
(a) by prohibiting the importation of
goods absolutely;
(aa) by prohibiting the importation of
goods in specified circumstances;
(b) by prohibiting the importation of
goods from a specified place; or
(c) by prohibiting the importation of
goods unless specified conditions or restrictions are complied with.
(3) Without limiting the generality of paragraph (2)(c),
the regulations:
(a) may provide that the importation
of the goods is prohibited unless a licence, permission, consent or approval to
import the goods or a class of goods in which the goods are included has been
granted as prescribed by the regulations made under this Act or the
Therapeutic Goods Act 1989; and
(b) in relation to licences or
permissions granted as prescribed by regulations made under this Act—may make
provision for and in relation to:
(i) the assignment of
licences or permissions so granted or of licences or permissions included in a
prescribed class of licences or permissions so granted;
(ii) the granting of a
licence or permission to import goods subject to compliance with conditions or
requirements, either before or after the importation of the goods, by the
holder of the licence or permission at the time the goods are imported;
(iii) the surrender of a
licence or permission to import goods and, in particular, without limiting the
generality of the foregoing, the surrender of a licence or permission to import
goods in exchange for the granting to the holder of the surrendered licence or
permission of another licence or permission or other licences or permissions to
import goods; and
(iv) the revocation of a
licence or permission that is granted subject to a condition or requirement to
be complied with by a person for a failure by the person to comply with the
condition or requirement, whether or not the person is charged with an offence
against subsection (4) in respect of the failure.
(3A) Without limiting the generality of subparagraph (3)(b)(ii),
a condition referred to in that subparagraph may be a condition that, before
the expiration of a period specified in the permission or that period as
extended with the approval of the Collector, that person, or, if that person is
a natural person who dies before the expiration of that period or that period
as extended, as the case may be, the legal personal representative of that
person, shall export, or cause the exportation of, the goods from Australia.
(4) A person is guilty of an offence if:
(a) a licence or permission has been
granted, on or after 16 October 1963, under the regulations; and
(b) the licence or permission relates
to goods that are not narcotic goods; and
(c) the licence or permission is
subject to a condition or requirement to be complied with by the person; and
(d) the person engages in conduct; and
(e) the person’s conduct contravenes
the condition or requirement.
Penalty: 100 penalty units.
(5) Subsection (4) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(6) Absolute liability applies to paragraph (4)(a),
despite subsection (5).
Note: For absolute liability, see
section 6.2 of the Criminal Code.
(7) A person
is guilty of an offence if:
(a) a licence or permission has been
granted, on or after 16 October 1963, under the regulations; and
(b) the licence or permission relates
to goods that are narcotic goods; and
(c) the licence or permission is
subject to a condition or requirement to be complied with by the person; and
(d) the person engages in conduct; and
(e) the person’s conduct contravenes
the condition or requirement.
Penalty: Imprisonment for 2 years or 20 penalty units, or
both.
(9) Absolute liability applies to paragraph (7)(a).
Note: For absolute liability, see
section 6.2 of the Criminal Code.
(10) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
51
Prohibited imports
(1) Goods, the importation of which is
prohibited under section 50, are prohibited imports.
(2) Notwithstanding the generality of subsection (1),
ships, boats and aircraft the importation of which is prohibited under section 50
are prohibited imports if, and only if, they have been imported into Australia.
51A
Certain controlled substances taken to be prohibited imports
(1) This section applies if a substance or
plant is determined, under section 301.8 or 301.9 of the Criminal Code,
to be a border controlled drug, a border controlled plant or a border
controlled precursor.
(2) For the period during which the
determination has effect, Schedule 4 to the Customs (Prohibited
Imports) Regulations 1956 has effect as if the substance or plant were
described as a drug in that Schedule.
52
Invalidation of licence, permission etc. for false or misleading information
A licence, permission, consent or
approval granted in respect of the importation of UN‑sanctioned goods is taken
never to have been granted if:
(a) an application for the licence,
permission, consent or approval was made in an approved form; and
(b) information contained in, or
information or a document accompanying, the form:
(i) was false or
misleading in a material particular; or
(ii) omitted any matter or
thing without which the information or document is misleading in a material
particular.
Division 2—The boarding of ships and aircraft
58
Ships and aircraft to enter ports or airports
(1) The master of a ship or the pilot of any
aircraft shall not bring his or her ship or aircraft to a place other than a
port or airport unless from stress of weather or other reasonable cause.
Penalty: 500 penalty units.
(1A) Subsection (1) does not apply if the
master or pilot has the permission of a Collector given under subsection (2).
(2) A Collector may, by notice in writing
given to the master of a ship or the pilot of an aircraft who has applied for
permission to bring his or her ship or aircraft to a place other than a port or
airport, give the person permission, subject to such conditions (if any) as are
specified in the notice, to bring the ship or aircraft to, or to remain at,
that place.
(3) A person who has been given permission
under subsection (2) shall not refuse or fail to comply with any condition
(including a condition imposed or varied under subsection (4)) to which
that permission is subject.
Penalty: 100 penalty units.
(4) Where a Collector has, under subsection (2),
given a person permission to bring a ship or aircraft to a place other than a
port or airport, the Collector may, at any time before that ship or aircraft is
brought to that place, by notice in writing served on the person:
(a) revoke the permission;
(b) revoke or vary a condition to
which the permission is subject; or
(c) impose new conditions to which the
permission is to be subject.
(5) Conditions to which a permission under subsection (2)
may be subject include conditions relating to matters occurring while the ship
or aircraft is at the place to which the permission relates.
(6) A reference in this section to a ship or
aircraft entering, or being brought to, a place other than a port or airport
shall be read as including a reference to the ship or aircraft being brought to
a ship that is at an Australian resources installation or an Australian sea
installation.
58A
Direct journeys between installations and external places prohibited
(1) For the purposes of this section,
installations shall be deemed not to be a part of Australia.
(2) Subject to subsection (6), where a
person:
(a) travels from an external place to:
(i) a sea installation
installed in an adjacent area or in a coastal area; or
(ii) a resources
installation attached to the Australian seabed;
whether or not in the course of
a longer journey; and
(b) has
not been available for questioning in Australia for the purposes of this Act
after leaving the place and before arriving at the installation;
then:
(c) that person;
(d) the holder of the permit for the
installation or, if there is no such holder, the owner of the installation; and
(e) the
owner and person in charge of a ship or aircraft on which the person travelled
from the place to the installation;
are each guilty of an offence against this section.
(3) Subject to subsection (6), where
goods:
(a) are brought from an external place
to:
(i) a sea installation
installed in an adjacent area or in a coastal area; or
(ii) a resources
installation attached to the Australian seabed;
whether or not previously
brought to that place from another place; and
(b) have
not been available for examination in Australia for the purposes of this Act
after leaving the place and before arriving at the installation;
then:
(c) the owner of the goods at the time
of their arrival at the installation;
(d) the holder of the permit for the
installation or, if there is no such holder, the owner of the installation; and
(e) the
owner and person in charge of a ship or aircraft on which the goods were
transported from the place to the installation;
are each guilty of an offence against this section.
(4) Subject to subsection (6), where a
person:
(a) travels from:
(i) a sea installation
installed in an adjacent area or in a coastal area; or
(ii) a resources
installation attached to the Australian seabed;
whether or not in the course of
a longer journey; and
(b) has
not been available for questioning in Australia for the purposes of this Act
after leaving the installation and before arriving in the place;
then:
(c) that person;
(d) the holder of the permit for the
installation or, if there is no such holder, the owner of the installation; and
(e) the
owner and person in charge of a ship or aircraft on which the person travelled
from the installation to the place;
are each guilty of an offence against this section.
(5) Subject to subsection (6), where
goods:
(a) are sent from:
(i) a sea installation
installed in an adjacent area or in a coastal area; or
(ii) a resources
installation attached to the Australian seabed;
whether or not the goods are
sent on from that place; and
(b) have
not been available for examination in Australia for the purposes of this Act
after leaving the installation and before arriving in the place;
then:
(c) the person who sent the goods;
(d) the holder of the permit for the
installation or, if there is no such holder, the owner of the installation; and
(e) the
owner and person in charge of a ship or aircraft on which the goods were
transported from the installation to the place;
are each guilty of an offence against this section.
(5A) Subsections (2), (3), (4) and (5) are
offences of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(6) It is a defence to a charge of an offence
against this section if it is established that the journey because of which the
offence would have been committed:
(a) was necessary to secure the safety
of, or appeared to be the only way of averting a threat to, human life;
(b) was necessary to secure, or
appeared to be the only way of averting a threat to, the safety of a ship at
sea, of an aircraft in flight or of an installation; or
(c) was authorised in writing, by the
CEO, and was carried out in accordance with the conditions (if any) specified in
that authorisation.
(7) Subsection (6) shall not be taken to
limit by implication any defence that would, but for the subsection, be
available to a person charged with an offence against this section.
(8) For the purposes of this section:
(a) a person shall not be taken to
travel from or to an external place or an installation because only of having
been in an aircraft flying over, or on a landing place in, the place or
installation; and
(b) goods
shall not be taken to have been brought from, or sent to, an external place or
an installation because only of being in an aircraft flying over, or on a
landing place in, the place or installation.
Penalty: 100 penalty units.
58B
Direct journeys between certain resources installations and external places prohibited
(1) In this section:
external place does not include East Timor.
(2) Subject to
subsection (6), where a person travels from an external place to a
resources installation in the Joint Petroleum Development Area (whether or not
in the course of a longer journey) without entering either Australia or East Timor:
(a) that person; and
(b) the owner of the installation; and
(c) the
owner and person in charge of the ship or aircraft on which the person arrives
at the installation;
are each guilty of an offence against this section.
(3) Subject to subsection (6), where
goods are taken from an external place to a resources installation in the Joint
Petroleum Development Area (whether or not previously brought to that place
from another place) without being taken into either Australia or East Timor:
(a) the owner of the goods at the time
of their arrival at the installation; and
(b) the owner of the installation; and
(c) the
owner and person in charge of the ship or aircraft on which the goods arrive at
the installation;
are each guilty of an offence against this section.
(4) Subject to subsection (6), where a
person travels from a resources installation in the Joint Petroleum Development
Area to an external place (whether or not in the course of a longer journey)
without entering either Australia or East Timor:
(a) that person; and
(b) the owner of the installation; and
(c) the
owner and person in charge of the ship or aircraft on which the person left the
installation;
are each guilty of an offence against this section.
(5) Subject to subsection (6), where
goods are sent from a resources installation in the Joint Petroleum Development
Area to an external place (whether or not the goods are sent on from that
place) without being taken into Australia or East Timor:
(a) the person who sends the goods;
and
(b) the owner of the installation; and
(c) the
owner and person in charge of the ship or aircraft on which the goods leave the
installation;
are each guilty of an offence against this section.
(5A) Subsections (2), (3), (4) and (5) are
offences of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(6) It is a defence to a prosecution for an
offence against this section that the journey because of which the offence would
have been committed:
(a) was necessary to secure the safety
of, or appeared to be the only way of averting a threat to, human life; or
(b) was necessary to secure, or
appeared to be the only way of averting a threat to, the safety of a ship at
sea, of an aircraft in flight or of a resources installation; or
(c) was authorised in writing by the
CEO and was carried out in accordance with the conditions (if any) specified in
the authorisation.
(7) Subsection (6) is not to be taken to
limit by implication any defence that would, apart from that subsection, be
available to a person charged with an offence against this section.
(8) For the purposes of this section:
(a) a person is not to be taken to
travel from or to an external place or an installation only because the person
is in an aircraft flying over, or on a landing place in or on, the place or
installation; and
(b) goods are not to be taken to have
been brought from, or sent to, an external place or an installation only
because the goods were in an aircraft that flew over, or was on a landing place
in or on, the place or installation.
(9) A person who commits an offence against
this section is punishable, on conviction, by a fine not exceeding 100 penalty
units.
60
Boarding stations
(1) The master of every ship from a place
outside Australia bound to or calling at any port shall bring his or her ship
to for boarding at a boarding station appointed for that port and shall permit
his or her ship to be boarded.
Penalty: 100 penalty units.
(1A) Subsection (1) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(2) The pilot of an aircraft from a place
outside Australia arriving in Australia shall not suffer the aircraft to land
at any other airport until the aircraft has first landed:
(a) at such airport for which a
boarding station is appointed as is nearest to the place at which the aircraft
entered Australia; or
(b) at such other airport for which a
boarding station is appointed as has been approved by the CEO, in writing, as
an airport at which that aircraft, or a class of aircraft in which that
aircraft is included, may land on arriving in Australia from a place outside
Australia.
Penalty: 100 penalty units.
(2A) For the purposes of an offence against subsection (2),
strict liability applies to the physical element of circumstance of the
offence, that an airport for which a boarding station is appointed and at which
the aircraft did not first land:
(a) is nearest to the place at which
the aircraft entered Australia; or
(b) is one that has been approved by
the CEO, in writing, as an airport at which that aircraft, or a class of
aircraft in which that aircraft is included, may land on arriving in Australia from a place outside Australia.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) The pilot
of an aircraft engaged on an air service or flight between Australia and a place outside Australia:
(a) shall not suffer the aircraft to
land at an airport for which a boarding station is not appointed; and
(b) shall, as soon as practicable
after the aircraft lands at an airport, bring the aircraft for boarding to a
boarding station appointed for that airport and shall permit the aircraft to be
boarded.
Penalty: 100 penalty units.
(4) It is a defence to a prosecution for an
offence against a provision of subsection (2) or (3) if the person charged
proves that he or she was prevented from complying with the provision by stress
of weather or other reasonable cause.
61
Facility for boarding
(1) The master
of any ship or the pilot of any aircraft permitting his or her ship or aircraft
to be boarded, the master of a resources installation, or the owner of a sea
installation, shall, by all reasonable means, facilitate the boarding of the
ship, aircraft or installation by a person who is authorized under this Act to
board that ship, aircraft or installation.
Penalty: 50 penalty units.
(2) Subsection (1) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
61A
Owner or operator of port etc. to facilitate boarding
(1) An officer of Customs may request an
owner or operator of a port or of a port facility to facilitate, by any
reasonable means, the boarding of a ship that is in the port or port facility
by any person who is authorised under this Act to board the ship.
(2) The owner or operator commits an offence
if the owner or operator fails to comply with the request.
Penalty: 30 penalty units.
(3) In this section:
port facility means an area of land or water,
or land and water, (including any buildings, installations or equipment in or
on the area) used either wholly or partly in connection with the loading,
unloading, docking or mooring of ships.
62
Ships to come quickly to place of unlading
(1) When a ship has been brought to at a
boarding station and boarded by an officer, the master of the ship shall,
subject to any direction given under section 275A, bring the ship to the
proper place of mooring or to the proper wharf appointed under subsection
15(2), without touching at any other place, as quickly as it is practicable for
him or her lawfully to do so.
Penalty: 50 penalty units.
(2) Subsection (1)
is an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
63
Ship or aircraft not to be moved without authority
(1) No ship or
aircraft after arrival at the proper place of mooring, at the proper wharf
appointed under subsection 15(2) or at an airport appointed under subsection
15(1) shall be removed therefrom before the discharge of the cargo intended to
be discharged at the port or airport.
Penalty: 50 penalty units.
(2) Subsection (1) does not apply if the
removal is by authority or by direction of the harbour or aerial authority.
(3) Subsection (1) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
Division 3—The report of the cargo
Subdivision A—General reporting requirements
63A
Definitions
In this Division:
abbreviated cargo report means an electronic
cargo report, in relation to low value cargo of a particular kind, made by a
special reporter in relation to cargo of that kind in accordance with the
requirements of section 64AB.
applicant means an applicant under
Subdivision C for registration, or for renewal of registration, as a special
reporter in relation to low value cargo of a particular kind.
application means an application under
Subdivision C for registration, or for renewal of registration, as a special
reporter in relation to low value cargo of a particular kind.
cargo, in relation to a ship or aircraft,
includes any mail carried on the ship or aircraft.
dedicated computer facilities, in relation to
a person who is seeking to be registered, or is or has been registered, as a
special reporter in relation to low value cargo of a particular kind, means
computer facilities of that person that meet the requirements of Subdivision C
relating to the making of abbreviated cargo reports in relation to cargo of
that kind, and the storage of electronic information concerning individual
consignments covered by those reports.
house agreement, in relation to a particular
mail‑order house and to a particular registered user proposing to handle
consignments from that house, means a written agreement between that house and
that user that includes provisions:
(a) setting out the arrangements made
by the user with the house for the shipment of low value goods consigned by
that house and handled by that user; and
(b) providing that all such consignments
from that house that are to be handled by that user will be consolidated at a
single place of export outside Australia designated or determined in accordance
with the agreement; and
(c) providing that the house will
transmit electronically to the user full particulars of each such consignment
for which an order has been placed including details of the consignment’s
transportation to Australia.
low value cargo means:
(a) cargo consigned from a particular
mail‑order house; or
(c) cargo comprising other goods of a
kind prescribed by the regulations;
being cargo in relation to each single consignment of which
section 68 does not apply because of paragraph 68(1)(f).
mail, in relation to a ship or aircraft,
means:
(a) any goods consigned through the
Post Office that are carried on the ship or aircraft; and
(b) any other correspondence carried
on the ship or aircraft that is not consigned as cargo and that is not
accompanied personal or household effects of a passenger or member of the crew.
Note: Correspondence covered by paragraph (b)
would include, for example, an airline’s inter‑office correspondence that is
carried on one of the airline’s aircraft and that is not consigned as cargo.
mail‑order house means a commercial
establishment carrying on business outside Australia that sells goods solely in
response to orders placed with it either by mail or electronic means.
notified premises, in relation to a person
who is, or has been, a special reporter in relation to low value cargo of a
particular kind, means:
(a) the premises or all premises
indicated in the application, in accordance with subsection 67EC(3), as places
in Australia at which are located:
(i) dedicated computer
facilities for the storage of information relating to cargo of that kind; or
(ii) documents relating to
such information; and
(b) if a special reporter notifies the
CEO under subsection 67EF(2) that, with effect from a particular day, the
premises at which all or any of those facilities or documents will be located
is to be changed to another place in Australia—with effect from that day, the
premises at which all of those facilities and documents will be located.
re‑mail item, in relation to a ship or
aircraft, means an item of cargo carried on the ship or aircraft, in respect of
which all of the following apply:
(a) the item is packaged in an
addressed envelope, of paper or other material, whose length plus width
does not exceed 80 cm;
(b) the item consists only of paper;
(c) the item and packaging weigh no
more than one kilogram;
(d) the item either has no commercial
value or is a publication in respect of which the following apply:
(i) the publication is
sent from overseas to the addressee as a subscriber to the publication;
(ii) the subscription is
made by a direct dealing with the consignor by either the addressee or another
person arranging a gift subscription for the addressee;
(iii) the value of the
publication does not exceed $250 (or such other amount as is prescribed for the
purposes of subparagraph 68(1)(f)(iii));
(e) the
item is not mail;
(f) the item is not, or does not
contain, goods covered by paragraph (a) or (b) of the definition of prohibited
goods in subsection 4(1);
(g) there is no individual document of
carriage for the item;
(h) the item was consigned on the ship
or aircraft by the consignor, with other items that are covered by paragraphs (a)
to (g) of this definition, to different consignees.
re‑mail reporter means a person or
partnership that is registered under Subdivision E as a re‑mail reporter.
special reporter means a person who is
registered under Subdivision C as a special reporter in respect of low value
cargo of a particular kind.
64
Impending arrival report
(1) This section applies to a ship or
aircraft in respect of a voyage or flight to Australia from a place outside Australia.
(2) If the ship or aircraft is due to arrive
at a port or airport in Australia (whether the first port or airport or any
subsequent port or airport on the same voyage or flight), the operator must
report to Customs, in accordance with this section, the impending arrival of
the ship or aircraft.
(3) Subject to subsection (4), the
report of the impending arrival of the ship or aircraft may be made by document
or electronically.
(4) If the operator is required to report to
Customs under section 64AAB, or to make a cargo report, in respect of the
voyage or flight, the report of the impending arrival of the ship or aircraft
must be made electronically.
(5) A report of the impending arrival of a
ship (other than a pleasure craft) must be made:
(a) not earlier than 10 days before
the time stated in the report to be the estimated time of arrival of the ship;
and
(b) not later than:
(i) the start of the
prescribed period before its estimated time of arrival; or
(ii) if the journey is of a
kind described in regulations made for the purposes of this subparagraph—the
start of the shorter period specified in those regulations before its estimated
time of arrival.
(5A) A report of the impending arrival of a
pleasure craft must be made:
(a) not 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
(b) not later than:
(i) the start of the
prescribed period before its estimated time of arrival; or
(ii) if the journey is of a
kind described in regulations made for the purposes of this subparagraph—the
start of the shorter period specified in those regulations before its estimated
time of arrival.
(6) Regulations made for the purposes of paragraph (5)(b)
or (5A)(b) may prescribe matters of a transitional nature (including
prescribing any saving or application provisions) arising out of the making of
regulations for those purposes.
(7) A report of the impending arrival of an
aircraft must be made:
(a) not earlier than 10 days before
the time stated in the report to be the estimated time of arrival of the
aircraft; and
(b) not later than the prescribed
period before that time.
(8) For the
purposes of paragraph (7)(b), the prescribed period before
the estimated time of arrival of an aircraft is:
(a) if the flight from the last
airport is likely to take not less than 3 hours—3 hours or such other period as
is prescribed by the regulations; or
(b) if the flight from the last
airport is likely to take less than 3 hours:
(i) one hour or such other
period as is prescribed by the regulations; or
(ii) if the flight is of a
kind described in regulations made for the purposes of this subparagraph—such
shorter period as is specified in those regulations.
(9) A documentary report must:
(a) be in writing; and
(b) be in an approved form; and
(c) be communicated to Customs by
sending or giving it to an officer doing duty in relation to the reporting of
ships or aircraft at the port or airport at which the ship or aircraft is
expected to arrive; and
(d) contain such information as is
required by the form; and
(e) be signed in a manner specified in
the form.
(10) An electronic report must communicate such
information as is set out in an approved statement.
(11) The CEO may approve different forms for
documentary reports, and different statements for electronic reports, to be
made under subsections (9) and (10) in different circumstances, by
different kinds of operators of ships or aircraft or in respect of different
kinds of ships or aircraft.
(12) An operator of a ship or aircraft who
intentionally contravenes this section commits an offence punishable, on
conviction, by a penalty not exceeding 120 penalty units.
(13) An operator of a ship or aircraft who
contravenes this section commits an offence punishable, on conviction, by a
penalty not exceeding 60 penalty units.
(14) An offence against subsection (13) is
an offence of strict liability.
64AA
Arrival report
(1) This section applies to a ship or
aircraft in respect of a voyage or flight to Australia from a place outside Australia.
(2) When the ship or aircraft has arrived at
a port or airport in Australia (whether the first port or airport or any
subsequent port or airport on the same voyage or flight), the operator must
report to Customs, in accordance with this section, particulars of the arrival
of the ship or aircraft and the time of arrival.
(3) The report must be made:
(a) in the case of a ship—before:
(i) the end of 24 hours
(disregarding any period that occurs on a Saturday, Sunday or holiday) after
the ship’s arrival; or
(ii) the issue of a
Certificate of Clearance in respect of the ship and the port;
whichever first happens; or
(b) in the case of an aircraft—before:
(i) the end of 3 hours
after the aircraft’s arrival; or
(ii) the issue of a
Certificate of Clearance in respect of the aircraft and the airport;
whichever first happens.
(4) Subject to subsection (5), the
report of the arrival of the ship or aircraft may be made by document or
electronically.
(5) If the operator is required to report to
Customs under section 64AAB, or to make a cargo report, in respect of the
voyage or flight, the report of the arrival of the ship or aircraft must be
made electronically.
(6) A documentary report must:
(a) be in writing; and
(b) be in an approved form; and
(c) be communicated to Customs by
sending or giving it to an officer doing duty in relation to the reporting of
ships or aircraft at the port or airport of arrival; and
(d) contain such information as is
required by the form; and
(e) be signed in a manner specified in
the form.
(7) An electronic report must communicate
such information as is set out in an approved statement.
(8) The CEO may approve different forms for
documentary reports, and different statements for electronic reports, to be
made under subsections (6) and (7) in different circumstances, by
different kinds of operators of ships or aircraft or in respect of different
kinds of ships or aircraft.
(9) An operator of a ship or aircraft who
intentionally contravenes this section commits an offence punishable, on
conviction, by a penalty not exceeding 120 penalty units.
(10) An operator of a ship or aircraft who
contravenes this section commits an offence punishable, on conviction, by a
penalty not exceeding 60 penalty units.
(11) An offence against subsection (10) is
an offence of strict liability.
64AAA
Report of stores and prohibited goods
(1) This section applies to a ship or
aircraft in respect of a voyage or flight to Australia from a place outside Australia.
(2) When the ship or aircraft has arrived at
a port or airport in Australia (whether the first port or airport or any
subsequent port or airport on the same voyage or flight), the operator must
report to Customs, in accordance with this section, particulars of the ship’s
stores or aircraft’s stores and of any prohibited goods contained in those
stores at the time of arrival.
(3) The report
must be made:
(a) in
the case of a ship—before:
(i) the end of 24 hours
(disregarding any period that occurs on a Saturday, Sunday or holiday) after
the ship’s arrival; or
(ii) the issue of a
Certificate of Clearance in respect of the ship and the port;
whichever first happens; or
(b) in the case of an aircraft—before:
(i) the end of 3 hours
after the aircraft’s arrival; or
(ii) the issue of a
Certificate of Clearance in respect of the aircraft and the airport;
whichever first happens.
(4) The report may be made by document or
electronically.
(5) A documentary report must:
(a) be in writing; and
(b) be in an approved form; and
(c) be communicated to Customs by
sending or giving it to an officer doing duty in relation to the reporting of
ships or aircraft at the port or airport of arrival; and
(d) contain such information as is
required by the form; and
(e) be signed in a manner specified in
the form.
(6) An electronic report must communicate
such information as is set out in an approved statement.
(7) The CEO may approve different forms for
documentary reports, and different statements for electronic reports, to be
made under subsections (5) and (6) in different circumstances, by
different kinds of operators of ships or aircraft or in respect of different
kinds of ships or aircraft.
(8) An operator of a ship or aircraft who
intentionally contravenes this section commits an offence punishable, on
conviction, by a penalty not exceeding 120 penalty units.
(11) In this section:
aircraft’s stores and ship’s stores
have the meanings given by section 130C.
64AAB
Notifying Customs of particulars of cargo reporters
(1) This section applies to a ship or
aircraft in respect of a voyage or flight to Australia from a place outside Australia.
(2) A cargo reporter who has entered into an
agreement or arrangement with another cargo reporter under which cargo for
whose carriage the other cargo reporter is responsible is to be carried on the
ship or aircraft during the voyage or flight must report to Customs, in
accordance with this section, particulars of the other cargo reporter.
(3) A report must be made electronically and
must communicate such information as is set out in an approved statement.
(4) A report must be made before the latest
time by which a cargo report may be made.
(5) The CEO may approve different statements
for reports to be made under this section in different circumstances or by
different kinds of cargo reporters.
(6) A cargo reporter who intentionally
contravenes this section commits an offence punishable, on conviction, by a
penalty not exceeding 120 penalty units.
(7) A cargo reporter who contravenes this
section commits an offence punishable, on conviction, by a penalty not
exceeding 60 penalty units.
(8) An offence against subsection (7) is
an offence of strict liability.
64AAC
Report to Customs of persons engaged to unload cargo
(1) This section applies to a ship or
aircraft in respect of a voyage or flight to Australia from a place outside Australia.
(2) The operator must report to Customs, in
accordance with this section, particulars of:
(a) in the case of a ship—the
stevedore with whom the operator has entered into a contract for the unloading
of the cargo from the ship at a place in Australia; or
(b) in the case of an aircraft—the
depot operator who will first receive the cargo after it has been unloaded from
the aircraft at a place in Australia.
(3) A report must be made electronically and
must communicate such information as is set out in an approved statement.
(4) A report must be made during the period
within which a report under section 64 of the impending arrival of the
ship or aircraft is required to be made.
(5) The CEO may approve different statements
for electronic reports to be made under this section in different
circumstances, by different kinds of operators of ships or aircraft or in
respect of different kinds of ships or aircraft.
(6) An operator of a ship or aircraft who
contravenes this section commits an offence punishable, on conviction, by a
penalty not exceeding 60 penalty units.
(7) An offence against subsection (6) is
an offence of strict liability.
64AB
Cargo reports
(1) This section applies to a ship or
aircraft in respect of a voyage or flight to Australia from a place outside Australia.
(2) If the ship or aircraft is due to arrive
at its first port or airport in Australia since it last departed from a port or
airport outside Australia, each cargo reporter must report to Customs, in
accordance with this section, particulars of all goods:
(a) that the cargo reporter has
arranged to be carried on the ship or aircraft on the voyage or flight; and
(b) that are intended to be unloaded
from the ship or aircraft at a port or airport in Australia (whether the first
port or airport or any subsequent port or airport on the same voyage or
flight); and
(c) that are not:
(i) accompanied personal
or household effects of a passenger or member of the crew; or
(ii) ship’s stores or
aircraft’s stores.
(2A) If the ship or aircraft is due to arrive at
its first port, or airport, in Australia since it last called at a port, or
departed from an airport, outside Australia, each cargo reporter must report to
Customs, in accordance with this section, particulars of all goods that the
cargo reporter has arranged to be carried on the ship or aircraft and that are
intended to be kept on board the ship or aircraft for shipment on to a place
outside Australia, other than:
(a) goods that are accompanied
personal or household effects of a passenger or member of the crew; or
(b) ship’s stores or aircraft’s
stores.
(3) A cargo report that is made by a person
during the general moratorium period, or is made by a person during a further
moratorium period that has been granted to the person, may be a documentary
report or an electronic report.
(4) A cargo report to which subsection (3)
does not apply must be an electronic report.
(4A) A documentary cargo report must:
(a) be in writing; and
(b) be in an approved form; and
(c) be communicated to Customs by
sending or giving it to an officer doing duty in relation to the reporting of
ships or aircraft at the port or airport at which the ship or aircraft is
expected to arrive; and
(d) contain such information as is
required by the form; and
(e) be signed in a manner specified in
the form.
(4B) An electronic cargo report must communicate
such information as is set out in an approved statement.
(5) If the information required by an
approved form to be contained in a documentary cargo report, or required by an
approved statement to be communicated electronically, refers to particulars of
the consignor or consignee of goods:
(a) in the case of a report under subsection (2)—the
reference in the form or statement to the consignor of goods is a reference to
a supplier of goods who is located outside Australia and:
(i) initiates the sending
of goods to a person in Australia; or
(ii) complies with a
request from a person in Australia to send goods to the person; and
(aa) in the case of a report under subsection (2A)—the
reference in the form or statement to the consignor of goods is a reference to
a supplier of goods who is located outside Australia and:
(i) initiates the sending
of goods to a person in a place outside Australia; or
(ii) complies with a
request from a person in a place outside Australia to send goods to the person;
and
(b) in any case—the reference in the
form or statement to the consignee of goods is a reference to the person who is
the ultimate recipient of goods that have been sent from outside Australia,
whether or not the person ordered or paid for the goods.
(6) The CEO may approve different forms or
statements for the cargo reports to be made in different circumstances or by
different kinds of cargo reporters.
(7) The form or statement approved for a
report by a special reporter in relation to low value cargo of a particular
kind must not require the special reporter to include information relating to
cargo of that kind at a level of specificity below the level of a submaster air
waybill or an ocean bill of lading, as the case requires.
(7A) The form or statement approved for a report
by a re‑mail reporter in relation to re‑mail items must not require the
reporter to include information relating to re‑mail items at a level of
specificity below the level of a submaster air waybill or an ocean bill of
lading, as the case requires.
Note: This means that a re‑mail reporter using the
approved form or statement does not have to give information about individual
re‑mail items.
(7B) However, a re‑mail reporter must not use
that approved form or statement for a re‑mail item for which the reporter has
information below that level of specificity.
Note: A re‑mail reporter who does not use the
approved form or statement for re‑mail items must provide information about
individual re‑mail items in a cargo report.
(8) A cargo report is to be made not later
than:
(a) if the cargo is carried on a ship:
(i) the start of the
prescribed period; or
(ii) if the journey from
the last port is of a kind described in regulations made for the purposes of
this subparagraph—the start of the shorter period that is specified in those
regulations;
before the estimated time of
arrival of the ship at the first port in Australia since it last departed from
a port outside Australia; or
(b) if the cargo is carried on an
aircraft:
(i) 2 hours or such other
period as is prescribed by the regulations; or
(ii) if the flight from the
last airport is of a kind described in regulations made for the purposes of
this subparagraph—such shorter period as is specified in those regulations;
before the estimated time of
arrival specified in the report under section 64 of the impending arrival
of the aircraft at the first airport in Australia since it last departed from
an airport outside Australia.
(8A) Regulations made for the purposes of paragraph (8)(a)
may prescribe matters of a transitional nature (including prescribing any
saving or application provisions) arising out of the making of regulations for
those purposes.
(9) A cargo reporter who intentionally
contravenes this section commits an offence punishable, on conviction, by a
penalty not exceeding 120 penalty units.
(10) A cargo reporter who contravenes this
section commits an offence punishable, on conviction, by a penalty not
exceeding 60 penalty units.
(11) An offence against subsection (10) is
an offence of strict liability.
(12) If:
(a) a cargo reporter who is required
to make a cargo report in respect of particular goods commits an offence
against this section because the report is not made before the time by which it
was required by subsection (8) to be made; and
(b) that time occurs before the end of
the general moratorium period or, if a further moratorium period is granted to
the cargo reporter, before the end of the further moratorium period;
the cargo reporter is not liable to be prosecuted for the
offence and an infringement notice cannot be served on the cargo reporter under
Subdivision A of Division 5 of Part XIII for the offence.
(13) The general moratorium period
is the period of 6 months beginning on the date of commencement of this
section.
(14) If:
(a) a cargo reporter applies to the
CEO for the grant to the cargo reporter of a further moratorium period to have
effect at the end of the general moratorium period; and
(b) the CEO is satisfied that the
cargo reporter has, within the general moratorium period, made reasonable
progress in:
(i) installing the
facilities required for the making of electronic cargo reports; or
(ii) in putting in place
business practices or entering into business arrangements to enable the making
of electronic cargo reports;
the CEO may grant to the cargo reporter a further
moratorium period of not more than 18 months beginning at the end of
the general moratorium period.
(14A) A cargo reporter who is required to make a
cargo report in respect of particular goods is not liable to be prosecuted for,
and cannot be served with an infringement notice under Division 5 of
Part XIII for, an offence against this section if:
(a) the cargo reporter made a cargo
report, but contravened subsection (8) because the report was not made
before the start of a certain period; and
(b) the time (the actual time of
arrival) at which the ship or aircraft in question arrived at the first
port or airport in Australia since it last departed from a port or airport
outside Australia was later than the estimated time of arrival referred to in
subsection (8); and
(c) the cargo reporter would not have
contravened subsection (8) if the estimated time of arrival of the ship or
aircraft had been its actual time of arrival.
(15) Nothing in this section affects the
operation of Subdivision C.
(16) In this section:
aircraft’s stores and ship’s stores
have the meanings given by section 130C.
64ABAA
Outturn reports
(1) When cargo is unloaded from an aircraft
at an airport, the depot operator whose particulars have been communicated to
Customs by the operator of the aircraft under section 64AAC must
communicate electronically to Customs an outturn report in respect of the
cargo.
(2) When a container is unloaded from a ship
at a port, the stevedore whose particulars have been communicated to Customs by
the operator of the ship under section 64AAC must communicate
electronically to Customs an outturn report in respect of the container.
(3) When cargo that is not in a container is
unloaded from a ship, the stevedore whose particulars have been communicated to
Customs by the operator of the ship under section 64AAC must communicate
electronically to Customs an outturn report in respect of the cargo.
(4) When cargo unloaded from an aircraft or
ship has been moved, under a permission given under section 71E, to a
Customs place other than a warehouse, the person in charge of the Customs place
must communicate electronically to Customs an outturn report in respect of the
cargo.
(5) An outturn report must:
(a) if it is made under subsection (1),
(3) or (4):
(i) specify any goods
included in the cargo report that have not been unloaded or, if there are no
such goods, contain a statement to that effect; and
(ii) specify any goods not
included in the cargo report that have been unloaded or, if there are no such
goods, contain a statement to that effect; and
(b) if it is made under subsection (2)—set
out a list of the containers that have been unloaded; and
(c) in any case:
(i) be in accordance with
an approved statement; and
(ii) state any times
required by section 64ABAB; and
(iii) be made within the
period or at the time required by that section.
(6) The CEO may approve different statements
for the outturn reports to be made by stevedores, depot operators, or persons
in charge of Customs places.
(7) The CEO or an officer may disclose a
cargo report to a stevedore, a depot operator or a person in charge of a
Customs place (other than a warehouse) for the purpose of enabling the
stevedore, operator or person to communicate to Customs an outturn report in
respect of the cargo.
(8) A person who intentionally contravenes
this section commits an offence punishable, on conviction, by a penalty not
exceeding 120 penalty units.
(9) A person who contravenes this section
commits an offence punishable, on conviction, by a penalty not exceeding 60
penalty units.
(10) An offence against subsection (9) is
an offence of strict liability.
(11) In this
section:
Customs place has the meaning given by subsection
183UA(1).
64ABAB
When outturn report is to be communicated to Customs
(1) In the case of cargo unloaded from an
aircraft at an airport and received into a depot, the depot operator must
communicate the outturn report to Customs within 24 hours, or such other period
as is prescribed by the regulations, after the time of arrival of the aircraft
as stated in the report under section 64AA.
(2) Subsections (2A), (2B), (2C), (2D)
and (2E) of this section apply to outturn reports a stevedore must communicate
under subsection 64ABAA(2) because of the unloading of one or more containers
from a ship at a port.
(2A) The stevedore must communicate a report at
the end of each period:
(a) that starts at a time described in
subsection (2B); and
(b) that is 3 hours long; and
(c) during which a container is
unloaded.
(2B) A period starts:
(a) at the time the first container is
unloaded; or
(b) immediately after the end of the
most recent period covered by subsection (2A); or
(c) at the first time a container is
unloaded after the end of the most recent period covered by subsection (2A),
if a container has not been unloaded in the 3 hours starting at the end of the
most recent period covered by that subsection.
(2C) The first report must state the time the
first container is unloaded.
(2D) The last report must state the time when
the unloading of the containers was completed.
(2E) If the stevedore communicates a report
that:
(a) covers the unloading of a
container that, because of a decision not to unload any more containers that
was made after the communication, completes the unloading of the containers;
and
(b) does not state the time when the
unloading of the containers was completed;
the stevedore must communicate another report that states
that the unloading of the containers has been completed. The stevedore must do
so within 3 hours of the decision being made.
(2F) If the regulations prescribe a period
other than 3 hours, subsections (2A), (2B) and (2E) have effect as if they
referred to the period prescribed instead of 3 hours.
(3) In the case of cargo (not in containers)
unloaded from a ship at a wharf, the stevedore must communicate the outturn
report to Customs within 5 days, or such other period as is prescribed by the
regulations, after the day on which the unloading of the cargo from the ship
was completed. The outturn report must state the time when the unloading of the
cargo was completed.
(4) In the case of cargo unloaded from a ship
or aircraft and moved, under a permission given under section 71E, to a
Customs place (as defined in subsection 183UA(1)) other than a warehouse, the
person in charge of the Customs place must communicate the outturn report to
Customs:
(a) if the cargo is in a container:
(i) if the container is
not unpacked at that place—within 24 hours (or such longer period as is
prescribed by the regulations) after the person in charge of that place
recorded the receipt of the container at that place; or
(ii) if the container is
unpacked at that place—within 24 hours, or such other period as is prescribed
by the regulations, after it was unpacked; or
(b) if the cargo is not in a
container—not later than:
(i) the day after the day
on which the person in charge of that place recorded a receipt of the cargo at
that place; or
(ii) if a later time is
prescribed by the regulations—that later time.
If the cargo is in a container that is unpacked at the
Customs place, the outturn report must state the time when the unpacking of the
cargo was completed.
64ABAC
Explanation of shortlanded or surplus cargo
(1) If an
outturn report specifies:
(a) any goods included in the cargo
report that have not been unloaded; or
(b) any goods not included in the
cargo report that have been unloaded;
the officer may require the cargo reporter who made the
cargo report in relation to the goods to explain why the goods were not
unloaded or were not included in the cargo report, as the case may be.
(2) If a cargo reporter in respect of whom a
requirement is made under subsection (1) fails to comply with the
requirement, the cargo reporter commits a offence punishable, on conviction, by
a penalty not exceeding 60 penalty units.
64ACA
Passenger reports
Obligation to report on passengers
(1) The operator of a ship or aircraft that
is due to arrive, from a place outside Australia, at a port or airport in
Australia (whether it is the first or any subsequent port or airport of the
voyage or flight) must report to Customs on each passenger who will be on board
the ship or aircraft at the time of its arrival at the port or airport.
Note 1: This obligation (and the obligation in subsection (11))
must be complied with even if the information concerned is personal information
(as defined in the Privacy Act 1988).
Note 2: See also section 64ACC, which deals with what
happens if information has already been reported to the Migration Department.
Note 3: Section 64ACD contains an offence for
failure to comply with this subsection.
How report is to be given—certain operators to use an
approved electronic system
(2) If one of the following paragraphs
applies, the operator must give the report by the electronic system approved
for the operator for the purposes of this subsection:
(a) the ship is on a voyage for
transporting persons:
(i) that is provided for a
fee payable by those using it; and
(ii) the operator of which
is prescribed by the regulations;
and the CEO has, in writing,
approved an electronic system for the operator for the purposes of this
subsection;
(b) the aircraft is on a flight that
is provided as part of an airline service:
(i) that is provided for a
fee payable by those using it; and
(ii) that is provided in
accordance with fixed schedules to or from fixed terminals over specific
routes; and
(iii) that is available to
the general public on a regular basis;
and the CEO has, in writing,
approved an electronic system for the operator for the purposes of this
subsection.
Note 1: An instrument approving an electronic system
can be varied or revoked under subsection 33(3) of the Acts Interpretation Act
1901.
Note 2: An instrument approving an electronic system,
or a variation or revocation of such an instrument, is a disallowable
instrument—see subsection (10).
(3) However, if the approved electronic
system is not working, then the operator must give the report as if subsection (4)
applied.
How report to is be given—other operators
(4) The operator of any other ship or
aircraft may give the report by document or electronically.
(5) If the report relates to a ship, it must
be given not later than:
(a) the start of the prescribed period
before its estimated time of arrival; or
(b) if the journey is of a kind
described in regulations made for the purposes of this paragraph—the start of
the shorter period before its estimated time of arrival that is specified in
those regulations.
(5A) Regulations made for the purposes of subsection (5)
may prescribe matters of a transitional nature (including prescribing any
saving or application provisions) arising out of the making of regulations for
those purposes.
Deadline for giving report—aircraft
(6) If the
report relates to an aircraft, it must be given not later than:
(a) if the flight from the last
airport outside Australia is likely to take not less than 3 hours—3 hours; or
(b) if the flight from the last
airport outside Australia is likely to take less than 3 hours—one hour;
before the time stated in the report made under section 64
to be the estimated time of arrival of the aircraft.
Other requirements for documentary reports
(7) If the report is given by document, it
must:
(a) be in writing; and
(b) be in an approved form; and
(c) contain such information as is
required by the form; and
(d) be signed in a manner specified in
the form; and
(e) be communicated to Customs by
sending or giving it to an officer doing duty in relation to the reporting of
ships or aircraft at the port or airport at which the ship or aircraft is
expected to arrive.
Other requirements for electronic reports
(8) If the report is given electronically
(whether or not by an electronic system approved for the purposes of subsection (2)),
it must communicate such information as is set out in an approved statement.
Different forms and statements for different
circumstances etc.
(9) The CEO may approve different forms for
documentary reports, and different statements for electronic reports, to be
made under subsections (7) and (8) in different circumstances, by
different kinds of operators of ships or aircraft or in respect of different
kinds of ships or aircraft.
Approvals of electronic systems for the purposes of subsection (2)
are disallowable instruments
(10) An instrument of approval of an electronic
system for the purposes of subsection (2), or a variation or revocation of
such an instrument, is a disallowable instrument for the purposes of section 46A
of the Acts Interpretation Act 1901.
Obligation to pass information on to Migration
Department
(11) As soon as practicable after information
is reported under this section, Customs must provide the information to the
Department administered by the Minister who administers the Migration Act
1958.
Purpose for which information obtained
(12) Information obtained by Customs:
(a) under this section; or
(b) under subsection 245L(6) of the Migration
Act 1958;
is taken to be obtained by Customs for the purposes of the
administration of this Act, the Migration Act 1958, and any other law of
the Commonwealth prescribed by regulations for the purposes of this subsection.
64ACB
Crew reports
Obligation to report on crew
(1) The operator of a ship or aircraft that
is due to arrive, from a place outside Australia, at a port or airport in
Australia (whether it is the first or any subsequent port or airport of the
voyage or flight) must, in accordance with this section, report to Customs on each
member of the crew who will be on board the ship or aircraft at the time of its
arrival at the port or airport.
Note 1: This obligation (and the obligation in subsection (8))
must be complied with even if the information concerned is personal information
(as defined in the Privacy Act 1988).
Note 2: See also section 64ACC, which deals with
what happens if information has already been reported to the Migration
Department.
Note 3: Section 64ACD contains an offence for
failure to comply with this subsection.
How report is to be given
(2) The operator may give the report by
document or electronically.
Deadline for giving report
(3) The report must be made during the period
within which a report under section 64 of the impending arrival of the
ship or aircraft is required to be made.
(4) However, a report in respect of an
aircraft must not be made before the date of departure of the aircraft from the
last airport outside Australia.
Other requirements for documentary reports
(5) If the report is given by document, it
must:
(a) be in writing; and
(b) be in an approved form; and
(c) contain such information as is
required by the form; and
(d) be signed in a manner specified in
the form; and
(e) be communicated to Customs by
sending or giving it to an officer doing duty in relation to the reporting of
ships or aircraft at the port or airport at which the ship or aircraft is
expected to arrive.
Other requirements for electronic reports
(6) If the report is given electronically, it
must communicate such information as is set out in an approved statement.
Different forms and statements for different
circumstances etc.
(7) The CEO may approve different forms for
documentary reports, and different statements for electronic reports, to be
made under subsections (5) and (6) in different circumstances, by
different kinds of operators of ships or aircraft or in respect of different
kinds of ships or aircraft.
Obligation to pass information on to Migration
Department
(8) As soon as practicable after information
is reported under this section, Customs must provide the information to the
Department administered by the Minister who administers the Migration Act
1958.
Purpose for which information obtained
(9) Information obtained by Customs:
(a) under this section; or
(b) under subsection 245L(6) of the Migration
Act 1958;
is taken to be obtained by Customs for the purposes of the
administration of this Act, the Migration Act 1958, and any other law of
the Commonwealth prescribed by regulations for the purposes of this subsection.
64ACC
Information does not have to be reported if it has already been reported to the
Migration Department
(1) If:
(a) both:
(i) section 64ACA or
64ACB of this Act; and
(ii) section 245L of
the Migration Act 1958;
require the same piece of
information in relation to a particular passenger or member of the crew on a
particular voyage or flight to be reported; and
(b) the operator has reported that
piece of information in relation to that passenger or member of the crew in
accordance with that section of the Migration Act 1958;
the operator is then taken not to be required by section 64ACA
or 64ACB of this Act (as the case requires) to report the same piece of
information in relation to those passengers or crew.
Note: This may mean that no report at all is
required under this Act.
(2) However, subsection (1) only applies
if the report under the Migration Act 1958 relates to the arrival of the
ship or aircraft at the same port or airport for which this Act requires a
report.
Note: So, for example, if a report under the Migration
Act 1958 is given for a ship’s or aircraft’s arrival in an external
Territory that is not part of Australia for the purposes of this Act, subsection (1)
does not apply and a report under this Act is required.
64ACD Offence
for failure to comply
(1) An operator of a ship or aircraft who
intentionally contravenes section 64ACA or 64ACB commits an offence
punishable, on conviction, by a penalty not exceeding 120 penalty units.
(2) An operator of a ship or aircraft who
contravenes section 64ACA or 64ACB commits an offence punishable, on
conviction, by a penalty not exceeding 60 penalty units.
(3) An offence against subsection (2) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(4) An operator of an aircraft or ship
commits a separate offence under subsection (1) or (2) in relation to each
passenger or member of the crew in relation to whom the operator contravenes
section 64ACA or 64ACB.
64ACE
Communication of reports
(1) For the purposes of this Act, a
documentary report that is sent or given to Customs in accordance with section 64,
64AA, 64AAA, 64AB, 64ACA or 64ACB may be sent or given in any prescribed manner
and, when so sent or given, is taken to have been communicated to Customs when
it is received by Customs.
(2) For the purposes of this Act, a report
that is sent electronically to Customs under section 64, 64AA, 64AAA,
64AAB, 64AAC, 64AB, 64ABAA, 64ACA or 64ACB is taken to have been communicated
to Customs when an acknowledgment of the report is sent to the person
identified in the report as the person sending it.
64ADAA
Requirements for communicating to Customs electronically
A communication that is required or
permitted by this Subdivision to be made to Customs electronically must:
(a) be signed by the person who makes
it (see paragraph 126DA(1)(c)); and
(b) otherwise meet the information
technology requirements determined under section 126DA.
64ADA
Disclosure of cargo reports to port authorities
(1) The CEO or an officer may disclose a
cargo report to a port authority for the purpose of enabling the authority to
collect statistics or compute liability for wharfage charges.
(2) A person to whom information is disclosed
under subsection (1) must not:
(a) use the information for any
purpose other than the purpose for which the information was disclosed; or
(b) disclose the information to any
person except to the extent necessary for that purpose.
Penalty: Imprisonment for 2 years.
(3) A reference in this section to disclosure
of information includes a reference to disclosure by way of the provision of
electronic access to the information.
64AE
Obligation to answer questions and produce documents
(1) The operator of a ship or aircraft to
whom section 64, 64AA, 64AAA, 64ACA or 64ACB applies must:
(a) answer questions asked by a
Collector relating to the ship or aircraft or its cargo, crew, passengers,
stores or voyage; and
(b) produce documents requested by the
Collector relating to a matter referred to in paragraph (a), if the
documents are in his or her possession or control at the time of the request.
Penalty: 5 penalty units.
(1A) Subsection (1) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(2) Each cargo reporter to whom section 64AB
applies must:
(a) answer questions asked by a
Collector relating to the goods he or she has arranged to be carried on the
relevant ship or aircraft; and
(b) produce documents requested by the
Collector relating to such goods, if the documents are in his or her possession
or control at the time of the request.
Penalty: 5 penalty units.
(2A) Subsection (2) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) It is a
defence to a prosecution for an offence against subsection (1) or (2) if
the person charged had a reasonable excuse for:
(a) refusing or failing to answer
questions asked by a Collector; or
(b) refusing or failing to produce
documents when so requested by a Collector.
64AF
Obligation to provide access to passenger information
(1) An operator of an international passenger
air service commits an offence if:
(a) the operator receives a request
from the CEO to allow authorised officers ongoing access to the operator’s
passenger information in a particular manner and form; and
(b) the operator fails to provide that
access in that manner and form.
Note 1: For operator, international
passenger air service and passenger information, see subsection (6).
Note 2: The obligation to provide access must be
complied with even if the information concerned is personal information (as
defined in the Privacy Act 1988).
Penalty: 50 penalty units.
(2) An operator of an international passenger
air service does not commit an offence against subsection (1) at a
particular time if, at that time, the operator cannot itself access the
operator’s passenger information.
Note 1: For example, the operator cannot access the
operator’s passenger information if the operator’s computer system is not
working.
Note 2: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) An operator of an international passenger
air service commits an offence if the operator fails to provide an authorised
officer to whom the operator is required to allow access in accordance with subsection (1)
with all reasonable facilities, and assistance, necessary to obtain information
by means of that access and to understand information obtained.
Penalty: 50 penalty units.
(4) An operator of an international passenger
air service does not commit an offence against subsection (3) if the
operator had a reasonable excuse for failing to provide the facilities and
assistance in accordance with that subsection.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal
Code).
(5) An authorised officer must only access an
operator’s passenger information for the purposes of performing his or her
functions in accordance with:
(a) this Act; or
(b) a law of the Commonwealth
prescribed by regulations for the purposes of this paragraph.
(6) In this section:
Australian international flight means a
flight:
(a) from a place within Australia to a place outside Australia; or
(b) from a place outside Australia to a place within Australia.
international passenger air service means a
service of providing air transportation of people:
(a) by means of Australian
international flights (whether or not the operator also operates domestic
flights or other international flights); and
(b) for a fee payable by people using
the service; and
(c) in accordance with fixed schedules
to or from fixed terminals over specific routes; and
(d) that is available to the general
public on a regular basis.
operator, in relation to an international
passenger air service, means a person who conducts, or offers to conduct, the
service.
passenger information, in relation to an
operator of an international passenger air service, means any information the
operator of the service keeps electronically relating to:
(a) flights scheduled by the operator
(including information about schedules, departure and arrival terminals, and
routes); and
(b) payments by people of fees
relating to flights scheduled by the operator; and
(c) people taking, or proposing to
take, flights scheduled by the operator; and
(d) passenger check‑in, and seating,
relating to flights scheduled by the operator; and
(e) numbers of passengers taking, or
proposing to take, flights scheduled by the operator; and
(f) baggage, cargo or anything else
carried, or proposed to be carried, on flights scheduled by the operator and
the tracking and handling of those things; and
(g) itineraries (including any
information about things other than flights scheduled by the operator) for
people taking, or proposing to take, flights scheduled by the operator.
Note: The flights referred to are any flights
scheduled by the operator (not just Australian international flights).
64A
Ships or aircraft arriving at certain places
(1) The master
of a relevant ship or the pilot of a relevant aircraft shall, if required to do
so by a Collector, make a report within such time as is specified by the
Collector and in such form as is specified by the Collector, of the ship or
aircraft and of the cargo of the ship or aircraft.
Penalty: 20 penalty units.
(2) The master of a relevant ship or the
pilot of a relevant aircraft shall, if required to do so by a Collector, answer
questions relating to the ship or aircraft, to its cargo, crew, passengers or
stores or to its voyage or flight.
Penalty: 10 penalty units.
(3) The master of a relevant ship or the
pilot of a relevant aircraft shall, if required to do so by a Collector,
produce documents relating to the matters referred to in subsection (2).
Penalty: 10 penalty units.
(3A) Subsections (1), (2) and (3) are
offences of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(4) In this
section:
relevant aircraft means an aircraft that
arrives from parts beyond the seas at a place other than an airport in
pursuance of permission granted under section 58.
relevant ship means a ship that arrives from
parts beyond the seas at a place other than a port in pursuance of permission
granted under section 58.
65
Master or pilot of wrecked ship or aircraft to report
(1) When any ship is lost or wrecked upon the
coast the master or owner shall without any unnecessary delay make report of
the ship and cargo by delivering to the Collector a Manifest so far as it may
be possible for him or her to do so at the Customs house nearest to the place
where the ship was lost or wrecked or at the chief Customs house of the State
where the ship was lost or wrecked.
Penalty: 50 penalty units.
(1A) Subsection (1) does not apply to the
extent that it requires the master or owner of the ship to make a report of the
cargo if the master or owner has:
(a) made a cargo report in respect of
the cargo; or
(b) communicated an outward manifest
under section 119 in respect of the cargo.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal
Code).
(2) When any aircraft arriving from parts
beyond the seas is lost or wrecked at any place within Australia, the pilot or
owner shall, without any unnecessary delay, make report of the aircraft and
cargo by delivering to the Collector a Manifest, as far as it may be possible
for him or her to do so, at the Customs House nearest to the place where the
aircraft was lost or wrecked.
Penalty: 50 penalty units.
(2A) Subsection (2) does not apply to the
extent that it requires the pilot or owner of the aircraft to make a report of
the cargo if the pilot or owner has:
(a) made a cargo report in respect of
the cargo; or
(b) communicated an outward manifest
under section 119 in respect of the cargo.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsections (1) and (2) are offences
of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
66
Goods derelict to be delivered to officer
Whoever has any dutiable goods derelict
flotsam jetsam lagan or wreck in his or her possession shall deliver the same
to an officer without unnecessary delay.
Penalty: 20 penalty units.
67
Interference with derelict goods
(1) No person shall unnecessarily move alter
or interfere with any goods derelict flotsam jetsam lagan or wreck.
Penalty: 20 penalty units.
(2) Subsection (1) does not apply to a
person who moves, alters or interferes with the goods by authority.
Note: For by authority, see subsection
4(1).
Subdivision C—The registration, rights and obligations of special
reporters
67EA
Special reporters
For the purposes of section 64AB of
this Act, a person or a partnership may, in accordance with this Subdivision,
become a special reporter in relation to low value cargo of a particular kind.
67EB
Requirements for registration as a special reporter
(1) The CEO must not register a person as a
special reporter if:
(b) the applicant does not satisfy
Customs as mentioned in subsection (2) in relation to low value cargo of
that kind; or
(c) if the applicant is applying to be
registered in respect of low value cargo consigned from a particular mail‑order
house—the applicant is not a party to a house agreement with that mail‑order
house in force at all times during the 3 consecutive months before the making
of the application; or
(d) the applicant does not have
dedicated computer facilities having such specifications as are determined, in
writing, by the CEO for the purpose of this paragraph, in relation to low value
cargo generally, including, in particular, specifications to ensure that the
information maintained by the applicant in those facilities will not be able to
be accessed or altered by unauthorised persons; or
(e) in the CEO’s opinion:
(i) if the applicant is a
natural person—the applicant is not a fit and proper person to be registered as
a special reporter; or
(ii) if the applicant is a
partnership—any of the partners is not a fit and proper person to be a member
of a partnership registered as a special reporter; or
(iii) if the applicant is a
company—any director, officer or shareholder of a company who would participate
in the management of the affairs of the company is not a fit and proper person
so to participate; or
(iv) an employee of the
applicant who would participate in the management of the applicant’s dedicated
computer facilities is not a fit and proper person so to participate; or
(v) if the applicant is a
company—the company is not a fit and proper company to be registered as a
special reporter.
(2) An applicant for registration as a special
reporter in relation to low value cargo of a particular kind is taken to comply
with this subsection if, and only if, the applicant satisfies Customs that:
(a) in a case of low value cargo
consigned from a particular mail‑order house to consignees in Australia—the
applicant is likely to make cargo reports covering at least 1,000 such
consignments per month from the mail‑order house during the period of
registration; or
(b) in a case of low value cargo of
another prescribed kind consigned from a place outside Australia to a consignee in Australia—the applicant is likely to make cargo reports
covering a number of consignments per month of that kind that is not less than
the number specified in the regulations.
(3) The CEO must, in deciding whether a person
is a fit and proper person for the purposes of subparagraph (1)(e)(i),
(ii), (iii) or (iv) have regard to:
(a) any conviction of the person of an
offence against this Act committed within the 10 years immediately before the
decision; and
(b) any conviction of the person of an
offence punishable by imprisonment for one year or longer:
(i) against another law of
the Commonwealth; or
(ii) against a law of a
State or of a Territory;
if that offence was committed
within the 10 years immediately before that decision; and
(c) whether the person is an insolvent
under administration; and
(d) whether the person was, in the 2
years immediately before that decision, a director of, or concerned in the
management of, a company that:
(i) had been, or is being,
wound up; or
(ii) had had its
registration as a special reporter in relation to any low value cargo of any
kind cancelled by the CEO because of a breach of any condition to which the
registration of the company as a special reporter was subject; and
(e) whether any misleading information
or document has been furnished in relation to the person by the applicant under
subsection 67EC(2), 67ED(5) or 67EK(12); and
(f) if any information or document
given by or in relation to the person was false—whether the applicant knew that
the information or document was false.
(4) The CEO must, in deciding whether a
company is a fit and proper company for the purpose of subparagraph (1)(e)(v),
have regard to:
(a) any conviction of the company of
an offence:
(i) against this Act; or
(ii) if it is punishable by
a fine of $5,000 or more—against another law of the Commonwealth, or a law of a
State or of a Territory;
committed:
(iii) within the 10 years
immediately before that decision; and
(iv) at a time when any person
who is presently a director, officer or shareholder of a kind referred to in subparagraph (1)(e)(iii)
in relation to the company was such a director, officer or shareholder; and
(b) whether a receiver of the
property, or part of the property, of the company has been appointed; and
(c) whether the company is under
administration within the meaning of the Corporations Act 2001; and
(d) whether the company has executed,
under Part 5.3A of that Act, a deed of company arrangement that has not
yet terminated; and
(f) whether the company is being
wound up.
(5) Nothing in this section affects the
operation of Part VIIC of the Crimes Act 1914 (which includes
provisions that, in certain circumstances, relieves persons from the
requirement to disclose spent convictions and requires persons aware of such
convictions to disregard them).
67EC
The making of an application
(1) An applicant for registration as a
special reporter in respect of low value cargo of a particular kind may make an
application under this subsection in relation to cargo of that kind.
(2) An application must:
(a) be in writing; and
(b) be in an approved form; and
(c) contain such information as the
form requires; and
(d) be accompanied by such other
documentation as the form requires; and
(e) be signed in the manner indicated
in the form; and
(f) be lodged as required by subsection (4).
(3) Without limiting by implication the
generality of the information that may be required by the approved form, the
application must indicate the premises in Australia at which the dedicated
computer facilities of the applicant are located and the premises in Australia
at which documents relating to information required to be stored on those
facilities are or will be located.
(4) An application is taken to have been
lodged with Customs when the application is first received by an officer of
Customs designated by the CEO to receive such applications.
(5) The day on which an application is taken
to have been lodged must be recorded on the application.
(6) For the avoidance of doubt, it is the
intention of the Parliament that a person who seeks to be registered as a
special reporter:
(a) if the person seeks that
registration in relation to low value cargo consigned from more than one mail‑order
house—must make a separate application for such registration in relation to
each such house; and
(c) if the person seeks that
registration in relation to low value cargo of any other kind prescribed by the
regulations—must make a separate application for such registration in relation
to each prescribed kind of low value cargo.
67ED
Consideration of the application
(1) If an application under section 67EC
for registration as a special reporter in relation to low value cargo of a
particular kind is lodged, the CEO must, having regard:
(a) to the terms of the application;
and
(b) if additional information is
supplied in response to a requirement under subsection (5)—to that
additional information;
decide whether or not to register the applicant in
relation to low value cargo of that kind.
(2) The CEO must make a decision within 60
days after:
(a) if paragraph (b) does not
apply—the lodgment of the application; and
(b) if the CEO requires further
information to be supplied under subsection (5) and the applicant supplies
the information in accordance with that subsection—the receipt of the
information.
(3) If the CEO decides to register the
applicant in relation to low value cargo of the kind referred to in the
application, the CEO must register the applicant as a special reporter in
respect of low value cargo of that kind and notify the applicant, in writing,
of that decision specifying the day on which the registration comes into force.
(4) If the CEO decides not to register the
applicant in respect of low value cargo of that kind referred to in the
application, the CEO must notify the applicant, in writing, of that decision
setting out the reasons for so deciding.
(5) If, in considering the application, the
CEO decides that he or she needs further information on any matter dealt with
in the application:
(a) the CEO may, by notice in writing
to the applicant, require the applicant to provide such additional information
relating to that matter as the CEO specifies within a period specified in the
notice; and
(b) unless the information is given to
the CEO within that period—the applicant is taken to have withdrawn the
application.
67EE
Basic conditions attaching to registration as a special reporter
(1) The registration of a special reporter is
subject to:
(a) the conditions set out in this
section and section 67EF; and
(b) if the special reporter is
registered as a special reporter in respect of low value cargo consigned from a
mail‑order house—section 67EG; and
(c) if regulations under section 67EH
apply—that section.
(2) The special reporter must give the CEO
written information of any of the following matters within 30 days after the
occurrence of the matter:
(a) any matter that might, if the
reporter were not a special reporter but were an applicant for registration,
cause paragraph 67EB(1)(e) to apply in relation to the reporter;
(b) if, after the registration, or
renewal of registration, of a company as a special reporter, a person commences
to participate, as a director, officer or shareholder, in the management of the
affairs of the company—the fact of such commencement; and
(c) if, after the registration, or
renewal of registration, of a special reporter, a person commences to
participate as an employee of the special reporter in the management of the
dedicated computer facilities of the special reporter—the fact of such
commencement; and
(d) if the special reporter is a
partnership—the fact of any change in the membership of the partnership.
(3) The special reporter must, except in the
circumstances referred to in subsection 64AB(3C), communicate such cargo
reports by using dedicated computer facilities.
67EF
Storage and record maintenance conditions
(1) A person
who is or has been a special reporter must:
(a) store in dedicated computer
facilities at notified premises all information relating to individual
consignments that the reporter would, but for the reporter’s registration under
section 67ED or renewal of registration under section 67EK, be
required to give to Customs under section 64AB; and
(b) for 2 years after the date that an
abbreviated cargo report covering a consignment is transmitted to Customs,
retain at notified premises all the information stored under paragraph (a)
in relation to that consignment and also all physical documents of a prescribed
kind that cover or relate to that consignment.
(2) If, at any time, while a person is, or
within 2 years after the person ceased to be, a special reporter in relation to
low value cargo of a particular kind, the person intends to change the location
of notified premises at which:
(a) all or any of the dedicated
computer facilities used to store information relating to cargo of that kind
are situated; or
(b) all or any documents containing
information relating to cargo of that kind required to be stored in such
facilities are situated;
the person must, before so doing, notify the CEO in
writing of the intention to change the premises and include particulars of the
changes proposed and of the date on which those changes will take effect.
(3) The special reporter must ensure that the
changed premises referred to in subsection (2) are located in Australia.
(4) The special reporter must provide Customs
with online access to the information stored and retained under subsection (1)
and with the capacity to download that information, or a part of that
information, at any time as required by Customs.
(5) The special reporter must, despite
providing Customs with the capacity to download information referred to in subsection (4),
electronically transfer that information, or a part of that information, to
Customs at any reasonable time as required by Customs.
67EG
Special mail‑order house condition
If a person is registered as a special
reporter in relation to low value cargo consigned from a particular mail‑order
house, the person must:
(a) ensure, at all times while that person
continues to be a special reporter in relation to that mail‑order house, that
there is in force between the person and that mail‑order house a house
agreement within the meaning of section 63A; and
(b) if the agreement expires or for
any reason is terminated or there is a breach or an alleged breach of the terms
of that agreement—notify the CEO, in writing, of that expiration or termination
or of that breach or alleged breach.
67EH
Further conditions may be imposed by regulations
The regulations may, at any time,
provide that:
(a) if a person is first registered as
a special reporter after that time; or
(b) if a person’s registration as a
special reporter is renewed after that time;
that registration, or registration as renewed, is subject
to such further conditions relevant to registration or renewal of registration
as a special reporter under this Subdivision as the regulations specify.
67EI
Breach of conditions of registration
(1) A person who is or has been a special
reporter must not breach a condition of the person’s registration as a special
reporter.
Penalty: 50 penalty units.
(2) An offence against subsection (1) is
an offence of strict liability.
67EJ
Duration of registration
If a person is registered as a special
reporter in relation to low value cargo of a particular kind, that
registration:
(a) unless paragraph (b)
applies—comes into force on a date specified by the CEO under subsection
67ED(3); and
(b) if it is a renewed
registration—comes into force on a date determined under subsection 67EK(8);
and
(c) remains in force for 2 years after
it comes into force unless, before that time, it is cancelled under section 67EM.
67EK
Renewal of registration
(1) A person who is a special reporter in
relation to low value cargo of a particular kind may seek renewal of
registration in relation to cargo of that kind by making and lodging a further
application in accordance with the requirements of section 67EC:
(a) unless paragraph (b)
applies—not later than 30 days before the end of the current period of
registration; or
(b) if the CEO is satisfied that, for
reasons beyond the control of the special reporter, it was not possible to meet
the requirements of paragraph (a)—not later than such later date before
the end of the period of registration as the CEO specifies.
(2) Subject to subsection (3), sections 67EB
and 67EC apply in relation to an application for renewal of registration in the
same manner as they applied to the original application.
(3) Subsection 67EB(2) has effect in relation
to an application for renewal of registration:
(a) if the registration relates to a
low value cargo consigned from a particular mail‑order house—as if that
subsection required the applicant, as a special reporter, to have reported at
least 3,000 consignments of such cargo from that house during the 3 months
immediately before the making of the application; and
(c) if the registration relates to low
value cargo of another prescribed kind—as if that subsection required the
applicant, as a special reporter, to have reported at least the prescribed
number of consignments of cargo of that kind during the 3 months before the
making of the application.
(4) In considering an application for renewal
of registration as a special reporter, if the CEO has varied the specifications
in relation to dedicated computer facilities in any manner, the special
reporter must ensure that the computer facilities meet the specifications as so
varied.
(5) If an application for renewal of
registration as a special reporter in relation to low value cargo of a
particular kind is lodged, the CEO must, having regard to the terms of the
application and, where additional information is supplied under subsection (12),
to the additional information, decide whether or not to renew the registration
of the applicant in relation to low value cargo of that kind.
(6) The CEO must make the decision before, or
as soon as possible after, the end of the current period of registration.
(7) If, for any reason, the CEO has not
completed the consideration of the application for renewal of registration at
the time when the current period of registration would, but for this
subsection, expire, the current period of registration is taken to continue
until the consideration of the application is concluded and a resulting
decision made.
(8) If the CEO decides to renew the
registration of a special reporter in relation to low value cargo of a
particular kind, the CEO must renew the registration and notify the applicant
for renewal, in writing, of that decision specifying the day on which, in
accordance with subsection (10), the renewal of registration comes into
force.
(9) If the CEO decides not to renew the
registration of a special reporter in relation to low value cargo of a
particular kind, the CEO must notify the applicant for renewal, in writing, of
that decision setting out the reasons for so deciding.
(10) If the CEO decides to renew the
registration of a special reporter in relation to low value cargo of a
particular kind, that renewal takes effect on the day following the end of the
current period of registration, or of that period as it is taken to have been
extended under subsection (7).
(11) If the CEO refuses to renew the
registration of a special reporter in relation to low value cargo of a
particular kind, the registration in relation to cargo of that kind continues:
(a) until the end of the current
period of registration, unless it is earlier cancelled; or
(b) if the current period of
registration is taken to have been extended under subsection (7)—until the
making of the decision to refuse to renew registration.
(12) If, in considering an application for
renewal of registration, the CEO decides that he or she needs further
information on any matter dealt with in the application:
(a) the CEO may, by notice in writing
to the applicant, require the applicant to provide such additional information
relating to the matter as the CEO specifies within a period specified in the
notice; and
(b) unless the information is given to
the CEO within that period—the applicant is taken to have withdrawn the
application.
67EL
CEO to allocate a special identifying code for each special reporter
If the CEO registers an applicant as a
special reporter in respect of low value cargo of a particular kind, the CEO
must allocate to the reporter a special identifying code for use by the special
reporter when making an abbreviated cargo report in relation to cargo of that
kind.
67EM
Cancellation of registration as special reporter
(1) The CEO may, at any time, give to a
special reporter a notice of intention to cancel the special reporter’s
registration if the CEO is satisfied that:
(b) if the special reporter were not a
special reporter but were an applicant for registration—circumstances have
arisen whereby paragraph 67EB(1)(e) applies in relation to the reporter; or
(c) the special reporter has breached
any condition to which the registration as a special reporter is subject in accordance
with section 67EE, 67EF, 67EG or 67EH; or
(d) if the special reporter is
registered as such in relation to low value cargo consigned from a particular
mail‑order house:
(i) there is no longer a
house agreement in force between the special reporter and that house; or
(ii) the terms of such an
agreement have been breached.
(2) For the purposes of paragraph (1)(b),
the expression 10 years immediately before the decision in
subsections 67EB(3) and (4) is to be taken to be 10 years immediately before
the notice.
(3) The notice of intention to cancel
registration must:
(a) specify the ground or grounds for
the intended cancellation; and
(b) invite the special reporter to
provide a written statement to Customs within 30 days after the notice is given
(the submission period) explaining why the registration should
not be cancelled; and
(c) state that the CEO may decide to
cancel the registration at any time within the 14 days following the end of the
submission period, if the grounds or at least one of the grounds exists at that
time.
(4) At any time within the 14 days referred
to in paragraph (3)(c), the CEO may, by notice in writing, decide to
cancel the registration of the special reporter generally in relation to low
value cargo of all kinds or of a particular kind, as the CEO considers
appropriate, if, having regard to any statements made by the special reporter
in response to the notice, the CEO is satisfied that at least one of the
grounds specified in the notice exists at the time of the decision.
(5) If the CEO decides to cancel the
registration within the 14 days, the registration is cancelled:
(a) if paragraph (b) does not
apply—28 days after the CEO’s decision; or
(b) if the special reporter applies to
the Administrative Appeals Tribunal for a review of the CEO’s decision—when the
Tribunal affirms the CEO’s decision.
(6) The CEO must, by notice in writing,
cancel a registration if the CEO receives a written request by the special
reporter that the registration be cancelled on or after a specified day
indicated in the request letter.
(7) A notice under subsection (1), (4)
or (6) may be served:
(a) by post at the address indicated
by the special reporter in the application for registration or renewal or at an
address subsequently indicated by the special reporter; or
(b) if the special reporter is a
company—by post at the registered office of the company; or
(c) by giving it personally to the
special reporter, if the special reporter is a natural person.
(8) Failure to send a notice to a special
reporter under subsection (6) does not affect the cancellation of the
registration.
Subdivision E—Registering re‑mail reporters
67F
Applying to be a re‑mail reporter
(1) A person or partnership may apply to be
registered as a re‑mail reporter.
Note: A re‑mail reporter is generally not required
to give information about individual re‑mail items in a cargo report: see subsections
64AB(7A) and (7B).
(2) An application must:
(a) be in writing; and
(b) be in an approved form; and
(c) contain the information that the
form requires; and
(d) be accompanied by any other
documentation that the form requires; and
(e) be signed in the manner indicated
by the form; and
(f) be lodged with an authorised
officer.
67G
Registering re‑mail reporters
(1) The CEO must register an applicant as a
re‑mail reporter if:
(a) the applicant applies under
section 67F; and
(b) the CEO is satisfied that the
applicant would be unlikely to have information, or access to information,
about re‑mail items that would allow the applicant to make cargo reports at a
level of specificity below the level of submaster air waybill or ocean bill of
lading; and
(c) the CEO is satisfied that the
applicant meets the fit and proper person test under section 67H.
(2) For the purposes of deciding whether to
register the applicant, the CEO may request, in writing, the applicant to
provide additional information specified in the request within a specified
period.
(3) The CEO must decide whether to register
the applicant within:
(a) if no additional information has
been requested under subsection (2)—60 days of the lodgment of the
application under section 67F; or
(b) if additional information has been
requested under subsection (2)—60 days of the CEO receiving the
information.
(4) The CEO must:
(a) notify the applicant in writing of
his or her decision; and
(b) if the decision is to register the
applicant—specify, in the notification, the day from which the applicant is
registered as a re‑mail reporter.
(5) The registration may be made subject to
any conditions specified in the notification.
67H
Fit and proper person test
(1) An applicant meets the fit and proper
person test for the purposes of paragraph 67G(1)(c) if the CEO is satisfied
that:
(a) if the applicant is a natural
person—the applicant is a fit and proper person to be registered as a re‑mail
reporter; and
(b) if the applicant is a
partnership—all of the partners are fit and proper persons to be members of a
partnership registered as a re‑mail reporter; and
(c) if the applicant is a company—all
of the company’s directors, officers and shareholders who would participate
in managing the affairs of the company are fit and proper persons to do so; and
(d) each employee of the applicant who
would participate in making cargo reports in relation to re‑mail items under
section 64AB is a fit and proper person to do so; and
(e) if the applicant is a company—the
company is a fit and proper company to be registered as a re‑mail reporter.
(2) The CEO must, in deciding whether a
person is a fit and proper person for the purposes of paragraph (1)(a),
(b), (c) or (d), have regard to:
(a) any conviction of the person of an
offence against this Act committed within the 10 years immediately before the
decision; and
(b) any conviction of the person of an
offence punishable by imprisonment for one year or longer:
(i) against another law of
the Commonwealth; or
(ii) against a law of a
State or Territory;
if that offence was committed
within the 10 years immediately before that decision; and
(c) whether the person is an insolvent
under administration; and
(d) whether the person was, in the 2
years immediately before that decision, a director of, or concerned in the
management of, a company that:
(i) had been, or is being,
wound up; or
(ii) had had its
registration as a re‑mail reporter cancelled by the CEO under paragraph
67K(1)(a), (b) or (d); and
(e) whether any misleading information
or document has been provided in relation to the person by the applicant under
subsection 67F(2) or 67G(2); and
(f) if any information or document
given by or in relation to the person was false—whether the applicant knew that
the information or document was false.
(3) The CEO must, in deciding whether a
company is a fit and proper company for the purpose of paragraph (1)(e),
have regard to:
(a) any conviction of the company of
an offence:
(i) against this Act; or
(ii) if it is punishable by
a fine of $5,000 or more—against another law of the Commonwealth, or a law of a
State or Territory;
committed:
(iii) within the 10 years
immediately before that decision; and
(iv) at a time when any
person who is presently a director, officer or shareholder of a kind referred
to in paragraph (1)(c) in relation to the company, was such a director,
officer or shareholder; and
(b) whether a receiver of the
property, or part of the property, of the company has been appointed; and
(c) whether the company is under
administration within the meaning of the Corporations Act 2001; and
(d) whether the company has executed,
under Part 5.3A of that Act, a deed of company arrangement that has not
yet terminated; and
(f) whether the company is being
wound up.
(4) Nothing in this section affects the
operation of Part VIIC of the Crimes Act 1914 (which includes
provisions that, in certain circumstances, relieve persons from the requirement
to disclose spent convictions and requires persons aware of such convictions to
disregard them).
67I
Obligation of re‑mail reporters to notify the CEO of certain matters
A re‑mail reporter must notify the CEO
in writing if:
(a) an event or circumstance occurs
after the reporter’s registration which section 67H would require the CEO
to have regard to if the reporter were, at that time, an applicant for
registration; or
(b) a person becomes, or ceases to be:
(i) if the reporter is a
partnership—a member of the partnership; and
(ii) if the reporter is a
company—a director, officer or shareholder of the company who would participate
in managing the affairs of the company; and
(iii) an employee of the
reporter who would participate in making cargo reports in relation to re‑mail
items under section 64AB.
67J
Varying etc. conditions of registration
(1) After registration, the CEO may impose a
new condition on a re‑mail reporter’s registration by notifying the reporter in
writing of the condition.
(2) The CEO may remove or vary any condition
of a re‑mail reporter’s registration by notifying the reporter in writing of
the removal or variation.
67K
Cancelling the registration of a re‑mail reporter
(1) The CEO may cancel the registration of a
re‑mail reporter if:
(a) the reporter reports an item of
cargo in the approved form or statement referred to in subsection 64AB(7A) that
was not a re‑mail item; or
(b) the reporter uses the approved
form or statement in breach of subsection 64AB(7B); or
(c) the CEO is no longer satisfied as
mentioned in paragraph 67G(1)(b) or (c); or
(d) the reporter breaches a condition
of the reporter’s registration or section 67I.
(2) The CEO must notify the reporter in
writing of the cancellation of the registration.
Division 4—The entry, unshipment, landing, and examination of goods
Subdivision A—Preliminary
68
Entry of imported goods
(1) This section applies to:
(a) goods that are imported into Australia; and
(b) goods that are intended to be
imported into Australia and that are on board a ship or aircraft that has
commenced its journey to Australia; and
(c) a
ship or aircraft that is intended to be imported into Australia and that has commenced its journey to Australia;
but does not apply to:
(d) goods that are accompanied or
unaccompanied personal or household effects of a passenger, or a member of a
crew, of a ship or aircraft; and
(e) goods, other than prescribed
goods:
(i) that are included in a
consignment consigned through the Post Office by one person to another; and
(ii) that have a value not
exceeding $1,000 or such other amount as is prescribed; and
(f) goods, other than prescribed
goods:
(i) that are included in a
consignment consigned otherwise than by post by one person to another; and
(ii) that are all
transported to Australia in the same ship or aircraft; and
(iii) that have a value not
exceeding $250 or such other amount as is prescribed; and
(g) containers:
(i) that are the property
of a person carrying on business in Australia; and
(ii) that are imported on a
temporary basis to be re‑exported, whether empty or loaded; and
(h) containers:
(i) that were manufactured
in Australia; and
(ii) that are, when
imported into Australia, the property of a person carrying on business in Australia; and
(iii) that were the property
of that person when, and have remained the property of that person since, they
were exported or were last exported from Australia; and
(i) goods that, under the regulations,
are exempted from this section, either absolutely or on such terms and
conditions as are specified in the regulations; and
(j) goods stated in a cargo report to
be goods whose destination is a place outside Australia.
(2) The owner of goods to which this section
applies may, at any time before the ship or aircraft carrying the goods first
arrives at a port or airport in Australia at which any goods are to be
discharged, enter the goods:
(a) for home consumption; or
(b) for warehousing.
(3) If the owner of goods to which this
section applies does not enter the goods under subsection (2) for a
purpose set out in that subsection, the owner must enter the goods for one or
other such purpose after the ship or aircraft carrying the goods first arrives
at a port or airport in Australia at which any goods are to be discharged.
(3A) An entry of goods for home consumption is
made by communicating to Customs:
(a) an import declaration in respect
of the goods; or
(b) an RCR in respect of the goods.
(3B) An entry of goods for warehousing is made
by communicating to Customs a warehouse declaration in respect of the goods.
(4) For the purposes of paragraph (1)(d),
goods:
(a) in quantities exceeding what could
reasonably be expected to be required by a passenger or member of the crew of a
ship or aircraft for his or her own use; or
(b) that
are, to the knowledge or belief of a passenger or member of the crew of a ship
or aircraft, to be sold, or used in the course of trading, in Australia;
are not included in the personal or household effects of a
passenger or crew member.
(5) For the purposes of paragraphs (1)(e)
or (f), the value of goods must be ascertained or determined under Division 2
of Part VIII.
68A
Goods imported for transhipment
If a cargo report in relation to goods
states that the destination of the goods is a place outside Australia, an officer may direct a person who has possession of the goods:
(a) not to move the goods; or
(b) to move them to a place specified
in the direction.
69 Like
customable goods
(1) In this
section:
like customable goods means:
(a) goods to which section 68
applies that are classified under a subheading specified in column 1 of the
Table to section 19 of the Customs Tariff Act 1995; and
(b) any other goods that are
prescribed for the purposes of this section.
(2) A person who has imported or who proposes
to import particular like customable goods, or like customable goods of a
particular kind, may apply to Customs, in writing, for permission to deliver
those goods, or goods of that kind into home consumption without entering them
for that purpose.
(3) An officer of Customs may, on receipt of
an application under subsection (2), by notice in writing:
(a) grant permission for the
particular like customable goods, or like customable goods of the particular
kind, to which the application relates to be delivered into home consumption
without entering them for that purpose; or
(b) refuse to grant such a permission
and set out in the notice the reasons for so refusing.
(4) A permission granted in respect of
particular goods, or goods of a particular kind, is subject:
(a) to the condition that, on or after
their importation and before they are delivered into home consumption, goods to
which the permission relates must have been, or must be, entered for
warehousing; and
(b) to any other condition, specified
in the permission, that Customs considers appropriate.
(5) Where:
(a) permission is granted in respect
of particular goods or goods of a particular kind; and
(b) those
goods or goods of that kind are delivered into home consumption under that
permission;
the person to whom the permission is granted must:
(c) give Customs returns at such
intervals, not exceeding 2 months, as are specified in the permission, providing
particulars in accordance with section 71K or 71L in relation to those
goods or to goods of that kind that have, during the periods to which the
returns relate, been delivered into home consumption; and
(d) at the time when each return is
given to Customs, pay any duty owing at the rate applicable when the goods were
delivered into home consumption; and
(e) comply with any conditions to
which the permission is subject.
Penalty: 50 penalty units.
(5A) Subsection (5) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(6) Where an officer of Customs is satisfied
that a person to whom a permission has been granted under this section has
failed to comply with any condition to which the permission is subject, the
officer may:
(a) if the permission related to
particular goods—at any time before those goods are delivered into home
consumption; and
(b) if
the permission related to goods of a particular kind—at any time while the
permission remains in force;
by notice in writing, revoke the permission and set out in
the notice the reasons for that revocation.
70
Special clearance goods
(1) In this section, special clearance
goods means goods to which section 68 applies comprising:
(a) goods reasonably required for
disaster relief or for urgent medical purposes; or
(b) engines or spare parts that are
unavailable in Australia and are urgently required for ships or aircraft, or
for other machinery that serves a public purpose; or
(c) perishable food.
(2) A person who has imported or proposes to
import goods referred to in paragraph (a) of the definition of special
clearance goods may apply to Customs at any time, in writing, for
permission to deliver the goods into home consumption without entering them for
that purpose.
(3) A person who has imported goods referred
to in paragraph (b) or (c) of the definition of special clearance
goods may apply to Customs, in writing, for permission to deliver the
goods into home consumption without entering them for that purpose:
(a) if the goods become subject to
Customs control outside the hours of business for dealing with import entries;
and
(b) the application is made before
those hours of business resume.
(4) Subject to subsection (5), an
officer of Customs may, on receipt of an application under subsection (2)
or (3), by notice in writing:
(a) grant permission for the goods to
which the application relates to be delivered into home consumption without
entering them for that purpose; or
(b) refuse to grant such a permission
and set out in the notice the reasons for so refusing.
(5) A permission granted in respect of goods
is subject to any condition, specified in the permission, that Customs
considers appropriate.
(6) Where an application is made in respect
of perishable food, an officer of Customs must not grant the permission unless
he or she is satisfied that, if he or she refused to do so, the food would be
of little or no commercial value when the hours of business for dealing with
import entries resumed.
(7) Where permission is granted in respect of
goods, the person to whom the permission is granted must:
(a) give Customs a return, within 7
days of the delivery of the goods into home consumption, providing particulars
in accordance with section 71K or 71L in relation to the goods; and
(b) at the time when the return is
given to Customs, pay any duty owing at the rate applicable when the goods were
delivered into home consumption; and
(c) comply
with any condition to which the permission is subject.
Penalty: 50 penalty units.
(7A) Subsection (7) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(8) Where an officer of Customs is satisfied
that a person to whom a permission has been granted under this section has
failed to comply with any of the conditions to which the permission is subject,
the officer may, at any time before goods are delivered into home consumption,
by notice in writing, revoke the permission and set out in the notice the
reasons for that revocation.
(9) In this section, a reference to the hours
of business for dealing with import entries is a reference to a time when,
under regulations made for the purposes of section 28, the applicant would
be able to give a documentary import declaration to Customs.
71
Information and grant of authority to deal with goods not required to be
entered
Information to be given under this section
(1) A person to whom section 71AAAB or
71AAAF applies must give information to Customs under this section in the
circumstances mentioned in those sections.
Authority to deal granted under this section
(2) Customs must, if circumstances mentioned
in Subdivision AA or AB of this Division require it, give an authority to deal
with goods under this section.
Refusal to grant authority to deal under this section
(3) Customs may, in the circumstances
mentioned in section 71AAAB, refuse under this section to authorise the
delivery of goods into home consumption.
Subdivision AA—Information
and grant of authority to deal with Subdivision AA goods
71AAAA
Meaning of Subdivision AA goods
In this Subdivision:
Subdivision AA goods means:
(a) goods of a kind referred to in
paragraph 68(1)(d); and
(b) goods that are prescribed by
regulations made for the purposes of subsection 71AAAE(1).
71AAAB
Report and grant of authority to deal with Subdivision AA goods
Providing information about Subdivision AA goods
(1) A person:
(a) who is the owner of Subdivision AA
goods; or
(b) who is covered by regulations made
under subsection 71AAAE(2);
must, in the circumstances specified in the regulations,
provide, under section 71, the information specified in the regulations:
(c) at the time; and
(d) in the manner and form;
specified in the regulations.
Authority to deal with Subdivision AA goods
(2) If Subdivision AA goods are imported into
Australia, Customs must, having regard to information about the goods given
under subsection (1) and (if any) section 196C:
(a) authorise the delivery of the
goods into home consumption under section 71; or
(b) refuse to authorise the delivery
of the goods into home consumption and give reasons for the refusal.
(3) A decision of Customs mentioned in subsection (2)
must be communicated in writing, electronically, or by another method
prescribed by the regulations.
Duty etc. to be paid before authority given
(4) Customs must not give an authority to
deal with Subdivision AA goods unless the duty (if any) and any other charge or
tax (if any) payable on the importation of the goods has been paid.
71AAAC
Suspension of authority to deal with Subdivision AA goods
Suspension of authority to deal
(1) If:
(a) Customs has given an authority to
deal with Subdivision AA goods; and
(b) before the goods are dealt with in
accordance with the authority, an officer has reasonable grounds to suspect
that the goods were imported into Australia in contravention of a Customs‑related
law;
the officer may suspend the authority for a specified
period.
(2) An officer suspends an authority to deal
with Subdivision AA goods by signing a notice:
(a) stating that the authority is
suspended; and
(b) setting out the reasons for the
suspension;
and serving a copy of the notice on:
(c) the owner of the goods; or
(d) if the owner does not have
possession of the goods—on the person who has possession of the goods.
Revoking a suspension of authority to deal
(3) If, during the period of a suspension of
an authority to deal with Subdivision AA goods, an officer becomes satisfied
that there are no longer reasonable grounds to suspect that the goods were
imported into Australia in contravention of a Customs‑related law, the officer
must revoke the suspension.
(4) An officer revokes a suspension of an
authority to deal with Subdivision AA goods by signing a notice:
(a) stating that the authority is
suspended; and
(b) setting out the reasons for the
suspension;
and serving a copy of the notice on:
(c) the owner of the goods; or
(d) if the owner does not have
possession of the goods—on the person who has possession of the goods.
When suspension or revocation of suspension has effect
(5) A suspension of an authority to deal with
Subdivision AA goods, or a revocation of a suspension of such an authority, has
effect from the time when the relevant notice was given.
Subdivision AB—Information and grant of authority to deal with specified
low value goods
71AAAD
Meaning of specified low value goods
In this Subdivision:
specified low value goods means goods of a
kind referred to in paragraph 68(1)(e), (f) or (i).
71AAAE
Regulations
(1) The regulations may prescribe goods that
are excluded from being specified low value goods.
Note 1: These goods are Subdivision AA goods for the
purposes of Subdivision AA of this Division.
Note 2: For specification by class, see subsection
46(2) of the Acts Interpretation Act 1901.
(2) The regulations may prescribe persons who
are not required to comply with the provisions of this Subdivision.
Note 1: These persons must comply with Subdivision AA
of this Division.
Note 2: For specification by class, see subsection
46(2) of the Acts Interpretation Act 1901.
71AAAF
Making a self‑assessed clearance declaration
(1) Despite section 181, the owner of
specified low value goods, or a person acting on behalf of the owner, must give
Customs a declaration (a self‑assessed clearance declaration)
under section 71 containing the information that is set out in an approved
statement.
(2) A self‑assessed clearance declaration
must be communicated electronically to Customs.
(3) A self‑assessed clearance declaration may
be communicated together with a cargo report.
71AAAG
Customs’ response if a self‑assessed clearance declaration is communicated
separately from a cargo report
(1) If a self‑assessed clearance declaration
is communicated to Customs but not together with a cargo report, Customs must
communicate a self‑assessed clearance declaration advice electronically to the
person who made the declaration.
(2) A self‑assessed clearance declaration
advice:
(a) must refer to the number given by
Customs to identify the self‑assessed clearance declaration to which the advice
is a response; and
(b) must contain:
(i) a statement that the
goods covered by the declaration are cleared for home consumption; or
(ii) a direction that the
goods covered by the declaration be held in their current location or further
examined.
71AAAH
Customs’ response if a self‑assessed clearance declaration is communicated
together with a cargo report
If a self‑assessed clearance declaration
is communicated together with a cargo report, Customs may communicate
electronically to the person who made the declaration a direction that the
goods covered by the declaration be held in their current location or further
examined.
71AAAI
Authority to deal with goods covered by a self‑assessed clearance declaration
If declaration is communicated separately from a cargo
report
(1) If Customs gives a self‑assessed
clearance declaration advice in response to a self‑assessed clearance
declaration, Customs must communicate electronically to the person to whom the
advice was given an authority under section 71 to deliver into home
consumption the goods covered by the declaration.
Note 1: Section 71AAAL prevents Customs from
authorising the delivery of goods into home consumption while certain duty etc.
payable on the goods is outstanding.
Note 2: Customs does not have to give an authority to
deal with the goods while the goods are subject to a direction under
subparagraph 71AAAG(2)(b)(ii) (see section 71AAAK) or while an officer is
seeking further information (see section 71AAAO).
If declaration is communicated together with a cargo
report
(2) If Customs receives a self‑assessed
clearance declaration together with a cargo report, Customs must communicate
electronically:
(a) if Customs gave a direction under
section 71AAAH in response to the declaration—to the person who has
possession of the goods covered by the declaration; or
(b) otherwise—to the person who made
the declaration;
an authority under section 71 to deliver into home
consumption the goods covered by the declaration.
Note 1: Section 71AAAL prevents Customs from
authorising the delivery of goods into home consumption while certain duty etc.
payable on the goods is outstanding.
Note 2: Customs does not have to give an authority to
deal with the goods while the goods are subject to a direction under section 71AAAH
(see section 71AAAK) or while an officer is seeking further information
(see section 71AAAO).
71AAAJ
Contents of authority to deal with specified low value goods
(1) An authority to deal with specified low
value goods must set out:
(a) any condition under subsection (2)
of this section that applies to the authority; and
(b) the date on which the authority is
given; and
(c) any other prescribed information.
(2) An authority to deal with specified low
value goods may be expressed to be subject to a condition that a specified
permission for the goods to be dealt with (however described) be obtained under
another law of the Commonwealth.
(3) If an authority to deal with specified
low value goods is expressed to be subject to the condition that a specified
permission be obtained, the authority is taken not to have been given until the
permission has been obtained.
71AAAK
No authority to deal with specified low value goods while subject to a direction
to hold or further examine
Customs is not required to grant an
authority to deal with specified low value goods at any time while the goods
are subject to a direction under subparagraph 71AAAG(2)(b)(ii) or section 71AAAH.
71AAAL
No authority to deal with specified low value goods unless duty etc. paid
Duty etc. to be paid before authority given
(1) Customs must not give an authority to
deal with specified low value goods unless the duty (if any) and any other
charge or tax (if any) payable on the importation of the goods has been paid.
First exception
(2) Subsection (1) does not apply in
relation to an authority to deal with specified low value goods, if the goods
are covered by item 2 of the table in subsection 132AA(1).
Note: Subsection 132AA(1) provides that import duty
on goods covered by item 2 of the table in that subsection must be paid by
a time worked out under the regulations.
Second exception
(3) Subsection (1) does not apply in
relation to an authority to deal with specified low value goods, if:
(a) the only duty, charge or tax
outstanding on the importation of the goods is one or more of the following:
(i) the GST payable on the
taxable importation (as defined in the GST Act), if any, that is associated
with the import of the goods;
(ii) if a taxable
importation of a luxury car (as defined in the Luxury Car Tax Act) is
associated with the import of the goods—the luxury car tax payable on that
taxable importation;
(iii) if a taxable dealing
(as defined in the Wine Tax Act) is associated with the import of the goods—the
wine tax payable on that dealing; and
(b) because of the following
provisions, the unpaid GST, luxury car tax or wine tax (as appropriate) is not
payable until after duty on the goods was payable (or would have been payable
if the goods had been subject to duty):
(i) paragraph 33‑15(1)(b)
of the GST Act;
(ii) paragraph 13‑20(1)(b)
of the Luxury Car Tax Act;
(iii) paragraph 23‑5(1)(b)
of the Wine Tax Act.
71AAAM
Suspension of authority to deal with specified low value goods
Suspension of authority to deal
(1) If:
(a) Customs has given an authority to
deal with specified low value goods; and
(b) before the goods are dealt with in
accordance with the authority, an officer has reasonable grounds to suspect
that the goods were imported into Australia in contravention of a Customs‑related
law;
the officer may suspend the authority for a specified
period.
(2) An officer suspends an authority to deal
with specified low value goods by:
(a) if the authority was given in the
circumstances mentioned in subsection 71AAAI(1)—sending electronically to the
person who made the self‑assessed clearance declaration a message stating that
the authority is suspended and setting out the reasons for the suspension; or
(b) if the authority was given in the
circumstances mentioned in subsection 71AAAI(2)—sending electronically to the
person who has possession of the goods a message stating that the authority is
suspended and setting out the reasons for the suspension.
Revoking a suspension of authority to deal
(3) If, during the period of a suspension of
an authority to deal with specified low value goods, an officer becomes
satisfied that there are no longer reasonable grounds to suspect that the goods
were imported into Australia in contravention of a Customs‑related law, the
officer must revoke the suspension.
(4) An officer revokes a suspension of an
authority to deal with specified low value goods by:
(a) if the authority was given in the
circumstances mentioned in subsection 71AAAI(1)—sending electronically to the
person who made the self‑assessed clearance declaration relating to the goods a
message stating that the suspension is revoked; or
(b) if the authority was given in the
circumstances mentioned in subsection 71AAAI(2)—sending electronically to the
person who has possession of the goods a message stating that the suspension is
revoked.
When suspension or revocation of suspension has effect
(5) A suspension of an authority to deal with
specified low value goods, or a revocation of a suspension of such an
authority, has effect from the time when the relevant notice was given or the
relevant message was sent.
71AAAN
Cancellation of authority to deal with specified low value goods
(1) An officer may, at any time before
specified low value goods are dealt with in accordance with an authority to
deal, cancel the authority.
(2) An officer cancels an authority to deal
with specified low value goods by sending electronically, to the person who has
possession of the goods, a message stating that the authority is cancelled and
setting out the reasons for the cancellation.
(3) A cancellation of an authority has effect
from the time when the message was sent.
71AAAO
Officer may seek further information in relation to self‑assessed clearance
declaration
(1) Customs may refuse to grant an authority
to deal with goods covered by a self‑assessed clearance declaration until an
officer doing duty in relation to self‑assessed clearance declarations:
(a) has verified particulars of the
goods; or
(b) is satisfied of any other matter
that may be relevant to the granting of an authority to deal.
(2) If an officer doing duty in relation to
self‑assessed clearance declarations believes on reasonable grounds that the
owner of goods covered by a self‑assessed clearance declaration:
(a) has custody or control of
commercial documents relating to the goods that will assist the officer to
determine whether this Act has been or is being complied with in respect of the
goods; or
(b) has or can obtain information that
will so assist the officer;
the officer may require the owner:
(c) to deliver to the officer the
commercial documents in respect of the goods that are in the owner’s custody or
control (including any such documents that had previously been delivered to an
officer and had been returned to the owner); or
(d) to deliver to the officer such
information, in writing, relating to the goods (being information of a kind
specified in the notice) as is within the knowledge of the owner or as the owner
is reasonably able to obtain.
(3) A requirement for the delivery of
documents or information in respect of a self‑assessed clearance declaration
must:
(a) be communicated electronically to
the person who made the declaration; and
(b) contain such particulars as are
set out in an approved statement.
(4) If an owner of goods has been required to
deliver documents or information in relation to the goods under subsection (2),
Customs must not grant an authority to deal with the goods unless the
requirement has been complied with or withdrawn.
(5) An officer doing duty in relation to self‑assessed
clearance declarations may ask:
(a) the owner of goods covered by a
self‑assessed clearance declaration; or
(b) if another person made the
declaration on behalf of the owner—the other person;
any questions relating to the goods.
(6) If a person has been asked a question in
respect of goods under subsection (5), Customs must not grant an authority
to deal with the goods unless the question has been answered or withdrawn.
(7) If an officer doing duty in relation to
self‑assessed clearance declarations believes on reasonable grounds that the
owner of goods covered by a self‑assessed clearance declaration:
(a) has custody or control of
documents relating to the goods that will assist the officer to verify the
particulars shown in the declaration; or
(b) has or can obtain information that
will so assist the officer;
the officer may require the owner to produce the documents
or supply the information to the officer.
(8) If an owner of goods has been required to
verify a matter in respect of the goods under subsection (7), Customs must
not grant an authority to deal with the goods unless the requirement has been
complied with or withdrawn, or a security has been taken for compliance with
the requirement.
(9) Subject to section 215, if a person
delivers a commercial document to an officer doing duty in relation to self‑assessed
clearance declarations under this section, the officer must deal with the
document and then return it to the person.
71AAAP
Withdrawal of self‑assessed clearance declarations
(1) A self‑assessed clearance declaration
may, at any time before the goods covered by the declaration are dealt with in
accordance with an authority to deal, be withdrawn by either:
(a) the owner of the goods; or
(b) a person acting on behalf of the
owner;
communicating the withdrawal electronically to an officer
doing duty in relation to self‑assessed clearance declarations.
(2) A person who makes a self‑assessed clearance
declaration in respect of goods may, at any time before the goods are dealt
with in accordance with an authority to deal with the goods, change information
in the declaration.
(3) If a person changes information in a self‑assessed
clearance declaration, the person is taken, at the time when the self‑assessed
clearance declaration advice is communicated in respect of the altered
declaration, to have withdrawn the declaration as it previously stood.
(4) A withdrawal of a self‑assessed clearance
declaration has no effect during any period while a requirement under
subsection 71AAAO(2) or (7) in respect of the goods to which the declaration
relates has not been complied with.
(5) A withdrawal of a self‑assessed clearance
declaration is effected when it is, or is taken under section 71AAAT to
have been, communicated to Customs.
(6) If:
(a) a self‑assessed clearance
declaration is communicated to Customs; and
(b) any duty, fee, charge or tax in
respect of goods covered by the declaration remains unpaid in respect of the
goods for 30 days starting on:
(i) the day on which the
self‑assessed clearance declaration advice relating to the goods is
communicated; or
(ii) if under subsection
132AA(1) the duty is payable by a time worked out under the regulations—the day
on which that time occurs; and
(c) after that period ends, the CEO
gives written notice to the owner of the goods requiring payment of the unpaid
duty, fee, charge or tax (as appropriate) within a further period set out in
the notice; and
(d) the unpaid duty, fee, charge or
tax (as appropriate) is not paid within the further period;
the self‑assessed clearance declaration is taken to have
been withdrawn under subsection (1).
71AAAQ
Further self‑assessed clearance declaration not to be given while there is an
existing self‑assessed clearance declaration
(1) If goods are covered by a self‑assessed
clearance declaration, a person must not communicate a further self‑assessed
clearance declaration in respect of the goods or any part of the goods unless
the first‑mentioned self‑assessed clearance declaration is withdrawn.
Penalty: 15 penalty units.
(2) An offence under subsection (1) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
71AAAR
Effect of withdrawal of a self‑assessed clearance declaration
(1) When a withdrawal of a self‑assessed
clearance declaration takes effect, any authority to deal with the goods to
which the declaration relates is revoked.
(2) Despite
the withdrawal:
(a) a person may be prosecuted under
Division 4 of Part XIII, or action may be taken under Subdivision A
of Division 5 of that Part, in respect of the self‑assessed clearance
declaration; and
(b) a penalty may be imposed on a
person who is convicted of an offence in respect of the declaration;
as if it had not been withdrawn.
71AAAS
Annotation of self‑assessed clearance declaration by Customs for certain
purposes not to constitute withdrawal
Any annotation of a self‑assessed
clearance declaration that is made by Customs as a result of the acceptance by
Customs of an application for:
(a) a refund or rebate of all or part
of the duty paid on goods covered by the declaration; or
(b) a remission of all or part of the
duty payable on goods covered by the declaration;
is not taken to constitute a withdrawal of the declaration
for the purposes of this Act.
71AAAT
Manner and effect of communicating self‑assessed clearance declarations to
Customs
(1) The CEO may approve different statements
for electronic communications to be made in relation to different classes of
goods for which a self‑assessed clearance declaration is required.
(2) For the purposes of this Act, a self‑assessed
clearance declaration is taken to have been communicated to Customs
electronically:
(a) when a self‑assessed clearance
declaration advice is communicated by Customs electronically to the person
identified in the declaration as the person sending the declaration; or
(b) in the case of a self‑assessed
clearance declaration communicated to Customs together with a cargo report—when
Customs communicates electronically to the person who made the declaration an
acknowledgment of the declaration.
(3) For the purposes of this Act, a
withdrawal of a self‑assessed clearance declaration is taken to have been
communicated to Customs electronically when an acknowledgment of the withdrawal
is communicated by Customs electronically to the person identified in the
withdrawal as the person sending the withdrawal.
Subdivision B—Import declarations
71A
Making an import declaration
(1) An import declaration is a communication
to Customs in accordance with this section of information about:
(a) goods to which section 68
applies; or
(b) warehoused goods;
that are intended to be entered for home consumption.
(2) An import declaration can be communicated
by document or electronically.
(3) A documentary import declaration must be
communicated to Customs:
(a) by giving or sending it to an
officer doing duty in relation to import declarations; or
(b) by leaving it at a place that has
been allocated for lodgment of import declarations in a Customs Office;
at the place at which the goods are to be delivered for
home consumption.
(5) If the information communicated to
Customs in an import declaration relating to goods adequately identifies any
permission (however it is described) that has been given for the importation of
those goods, the identification of the permission in that information is taken,
for the purposes of any law of the Commonwealth (including this Act), to be the
production of the permission to an officer.
(6) However, subsection (5) does not
affect any power of an officer, under this Act, to require the production of a
permission referred to in that subsection.
(7) If:
(a) an import declaration is, or is
taken under section 71L to have been, communicated to Customs; and
(b) before the time when the
declaration is, or is so taken to have been, communicated to Customs, the goods
to which the declaration relates have been imported or have been brought to the
first port or airport in Australia at which any goods are to be discharged;
the goods are taken to have been entered for home
consumption.
(8) If:
(a) an import declaration is, or is
taken under section 71L to have been, communicated to Customs; and
(b) at the time when the declaration
is, or is so taken to have been, communicated to Customs, the goods to which
the declaration relates have not been brought to the first port or airport in
Australia at which any goods are to be discharged;
the goods are taken to be entered for home consumption
only when they are brought to that port or airport.
71B
Liability for import declaration processing charge
(1) When an import declaration (including an
altered import declaration) in respect of goods to which section 68
applies (other than warehoused goods) is, or is taken to have been,
communicated to Customs under section 71A, the owner of the goods becomes
liable to pay import declaration processing charge in respect of the
declaration.
(2) If a person who is an owner of goods pays
import declaration processing charge in respect of an import declaration
relating to particular goods, any other person who is an owner of those goods
ceases to be liable to pay charge in respect of that declaration.
(3) If an import declaration is withdrawn
under subsection 71F(1), or is taken, under subsection 71F(2) or (7), to have
been withdrawn, before the issue of an authority to deal in respect of goods
covered by the declaration, then, despite subsection (1), the owner of the
goods is not liable to pay import declaration processing charge in respect of
the declaration.
71BA
Warehoused goods declaration fee
(1) An owner of warehoused goods who makes an
import declaration in respect of the goods is liable to pay a fee (the warehoused
goods declaration fee) for the processing by Customs of the
declaration.
(2) The amount of the warehoused goods
declaration fee is:
(a) if the import declaration is made
electronically—$23.20 or, if another amount (not exceeding $34.80) is prescribed
by the regulations, the amount so prescribed; or
(b) if the import declaration is made
by document—$60.00 or, if another amount (not exceeding $90.00) is prescribed
by the regulations, the amount so prescribed.
(3) If a person who is an owner of warehoused
goods pays the warehoused goods declaration fee for the processing of an import
declaration in respect of the goods, any other person who is an owner of the
goods ceases to be liable to pay the fee for the processing of the import
declaration.
(4) In this section:
warehoused goods includes goods that, under
section 100, may be dealt with as warehoused goods.
71C
Authority to deal with goods in respect of which an import declaration has been
made
(1) If an import declaration in respect of
goods has been communicated to Customs, Customs must give an import declaration
advice, by document or electronically, in accordance with this section.
(2) An import declaration advice relating to
goods entered by documentary import declaration:
(a) must be given to the owner of the
goods or be made available for collection by leaving it at a place in a Customs
office that has been allocated for collection of such advices; and
(b) must contain:
(i) a statement to the
effect that the goods are cleared for home consumption; or
(ii) a statement that the
goods are directed to be held in their current location or are directed for
further examination.
(3) An import declaration advice relating to
goods entered by an electronic import declaration:
(a) must refer to the number given by
Customs to identify the particular import declaration; and
(b) must be communicated
electronically to the person who made the declaration; and
(c) must contain:
(i) a statement to the
effect that the goods are cleared for home consumption; or
(ii) a statement that the
goods are directed to be held in their current location or are directed for
further examination.
(4) Subject to subsection (5), if:
(a) an import declaration advice is
given or communicated under this section; and
(b) a payment is made of any duty,
GST, luxury car tax, wine tax, import declaration processing charge or other
charge or fee payable at the time of entry of, or in respect of, the goods
covered by the import declaration advice;
Customs must:
(c) if the advice was given under subsection (2)—give
the person to whom the advice was given an authority, in writing, to take the
goods into home consumption; and
(d) if the advice was communicated
electronically under subsection (3)—communicate electronically, to the
person to whom the advice was communicated, an authority to take the goods into
home consumption.
(5) Customs is not required to give or
communicate an authority under subsection (4) while the goods concerned
are subject to a direction referred to in subparagraph (2)(b)(ii) or
(3)(c)(ii).
(6) Customs must give an authority under subsection (4)
in relation to goods covered by item 2 of the table in subsection 132AA(1)
if subsection (4) would require Customs to do so apart from paragraph (4)(b).
Note: Subsection 132AA(1) provides that import duty
on goods covered by item 2 of the table in that subsection must be paid by
a time worked out under the regulations.
(7) Customs
must give an authority under subsection (4) in relation to goods if:
(a) that subsection would require
Customs to do so apart from the fact that any or all of the following were not
paid when duty on the goods was paid (or would have been payable if the goods
had been subject to duty):
(i) the GST payable on the
taxable importation (as defined in the GST Act), if any, that is associated
with the import of the goods;
(ii) if a taxable
importation of a luxury car (as defined in the Luxury Car Tax Act) is
associated with the import of the goods—the luxury car tax payable on that
taxable importation;
(iii) if a taxable dealing
(as defined in the Wine Tax Act) is associated with the import of the goods—the
wine tax payable on that dealing; and
(b) because of the following
provisions, the unpaid GST, luxury car tax or wine tax (as appropriate) was not
payable until after duty on the goods was payable (or would have been payable
if the goods had been subject to duty):
(i) paragraph 33‑15(1)(b)
of the GST Act;
(ii) paragraph 13‑20(1)(b)
of the Luxury Car Tax Act;
(iii) paragraph 23‑5(1)(b)
of the Wine Tax Act.
(8) If goods are authorised to be taken into
home consumption, the authority to deal, whether given by a document or
electronically, must set out:
(a) any condition of the kind referred
to in subsection (9) to which the authority is subject; and
(b) the date on which the authority is
given; and
(c) such other information as is
prescribed.
(9) An authority to deal with goods may be
expressed to be subject to a condition that a specified permission for the
goods to be dealt with (however it is described) be obtained under another law
of the Commonwealth.
(10) If an authority to deal with goods is
expressed to be subject to the condition that a specified permission be
obtained, the authority is taken not to have been given until the permission
has been obtained.
(11) An officer may, at any time before goods
authorised to be taken into home consumption are so dealt with, cancel the
authority:
(a) if the authority was given in
respect of a documentary declaration, by:
(i) signing a notice
stating that the authority is cancelled and setting out the reasons for the
cancellation; and
(ii) serving a copy of the
notice on the person who made the declaration or, if that person does not have
possession of the goods, on the person who has possession of the goods; or
(b) if the authority was given in
respect of an electronic declaration—by sending electronically, to the person
who made the declaration, a message stating that the authority is cancelled and
setting out the reasons for the cancellation.
(12) If, at any time before goods authorised to
be taken into home consumption are so dealt with, an officer has reasonable
grounds to suspect that the goods were imported into Australia in contravention
of any Customs‑related law, the officer may suspend the authority for a
specified period:
(a) if the authority was given in
respect of a documentary declaration, by:
(i) signing a notice
stating that the authority is so suspended and setting out the reasons for the
suspension; and
(ii) serving a copy of the
notice on the person who made the declaration or, if that person does not have
possession of the goods, on the person who has possession of the goods; or
(b) if the authority was given in
respect of an electronic declaration—by sending electronically, to the person
who made the declaration, a message stating that the authority is so suspended
and setting out the reasons for the suspension.
(13) If, during the suspension under subsection (12)
of an authority, an officer becomes satisfied that there are no longer
reasonable grounds to suspect that the goods were imported into Australia in
contravention of a Customs‑related law, the officer must revoke the suspension:
(a) if the authority was given in
respect of a documentary declaration, by:
(i) signing a notice
stating that the suspension is revoked; and
(ii) serving a copy of the
notice on the person to whom the notice of the suspension was given; or
(b) if the authority was given in
respect of an electronic declaration—by sending electronically, to the person
to whom the message notifying the suspension was sent, a message stating that
the suspension is revoked.
(14) A cancellation or suspension of an
authority, or a revocation of a suspension of an authority, has effect from the
time when the relevant notice is served or the relevant message is sent, as the
case may be.
71D
Visual examination in presence of officer
(1) If a person who is permitted or required
to make an import declaration in respect of goods to which section 68
applies does not have the information to complete the declaration, the person
may apply to Customs, by document or electronically, for permission to examine
the goods in the presence of an officer.
(2) A documentary application must be
communicated to Customs by giving it to an officer doing duty in relation to
import declarations.
(3) When an application is given to an
officer under subsection (2) or is sent electronically, an officer must,
by writing or by message sent electronically, give the applicant permission to
examine the goods on a day and at a place specified in the notice.
(4) A person who has received a permission
may examine the goods in accordance with the permission in the presence of an
officer.
71DA
An officer may seek additional information
(1) Without limiting the information that may
be required to be included in an import declaration, if an import declaration
has been made in respect of goods, authority to deal with the goods may be
refused until an officer doing duty in relation to import declarations:
(a) has verified particulars of the
goods shown in the import declaration; or
(b) is satisfied of any other matter
that may be relevant to the granting of an authority to deal.
(2) If an officer doing duty in relation to
import declarations believes, on reasonable grounds, that the owner of goods to
which an import declaration relates has custody or control of commercial
documents, or has, or can obtain, information, relating to the goods that will
assist the officer to determine whether this Act has been or is being complied
with in respect of the goods, the officer may require the owner:
(a) to deliver to the officer the
commercial documents in respect of the goods that are in the owner’s custody or
control (including any such documents that had previously been delivered to an
officer and had been returned to the owner); or
(b) to deliver to the officer such
information, in writing, relating to the goods (being information of a kind
specified in the notice) as is within the knowledge of the owner or as the
owner is reasonably able to obtain.
(3) A documentary requirement for the
delivery of documents or information in respect of an import declaration must:
(a) be communicated to the person by
whom, or on whose behalf, the declaration was communicated; and
(b) be in an approved form and contain
such particulars as the form requires.
(4) An electronic requirement for the
delivery of documents or information in respect of an import declaration must:
(a) be communicated electronically to
the person who made the declaration; and
(b) contain such particulars as are
set out in an approved statement.
(5) An officer doing duty in relation to
import declarations may ask:
(a) the owner of goods in respect of
which an import declaration has been made; and
(b) if another person made the
declaration on behalf of the owner—that other person;
any questions relating to the goods.
(6) If an officer doing duty in relation to
import declarations believes, on reasonable grounds, that the owner of goods to
which an import declaration relates has custody or control of documents, or
has, or can obtain, information, relating to the goods that will assist the
officer to verify the particulars shown in the import declaration, the officer
may require the owner to produce the documents or supply the information to the
officer.
(7) If:
(a) the owner of goods has been
required to deliver documents or information in relation to the goods under subsection (2);
or
(b) the owner of, or the person making
an import declaration in respect of, goods has been asked a question in respect
of the goods under subsection (5); or
(c) the owner of goods has been
required to verify a matter in respect of the goods under subsection (6);
authority to deal with the relevant goods in accordance
with the declaration must not be granted unless:
(d) the requirement referred to in paragraph (a)
has been complied with or withdrawn; or
(e) the question referred to in paragraph (b)
has been answered or withdrawn; or
(f) the requirement referred to in paragraph (c)
has been complied with or withdrawn, or a security has been taken for
compliance with the requirement;
as the case requires.
(8) Subject to section 215, if a person
delivers a commercial document to an officer doing duty in relation to import
declarations under this section, the officer must deal with the document and
then return it to the person.
Subdivision C—Requests for cargo release
71DB
Making a request for cargo release
(1) A request for cargo release (an RCR)
in respect of goods is a communication to Customs in accordance with this
section of a request for the release of goods to which section 68 applies
that are intended to be entered for home consumption.
(2) An RCR must be communicated
electronically.
(3) An RCR can be made only:
(a) by a person (an accredited
client) 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; and
(b) while the contract is in force.
(4) An RCR must contain the information
contained in an approved statement.
(5) If the information communicated to
Customs in an RCR in respect of goods adequately identifies any permission
(however it is described) that has been given for the importation of those
goods, the identification of the permission in that information is taken, for
the purposes of any law of the Commonwealth (including this Act), to be the
production of the permission to an officer.
(6) However, subsection (5) does not
affect any power of an officer, under this Act, to require the production of a
permission referred to in that subsection.
(7) If:
(a) an RCR in respect of goods is, or
is taken under section 71L to have been, communicated to Customs; and
(b) before the time when the RCR is,
or is so taken to have been, communicated to Customs, the goods to which the
RCR relates have been imported or have been brought to the first port or
airport in Australia at which any goods are to be discharged;
the goods are taken to have been entered for home
consumption.
(8) If:
(a) an RCR in respect of goods is, or
is taken under section 71L to have been, communicated to Customs; and
(b) at the time when the RCR is, or is
so taken to have been, communicated to Customs, the goods have not been brought
to the first port or airport in Australia at which any goods are to be
discharged;
the goods are taken to be entered for home consumption
only when they are brought to that port or airport.
71DC
Liability for an RCR processing charge
(1) When an RCR is sent to Customs by or on
behalf of an accredited client, the accredited client becomes liable to pay an
RCR processing charge in respect of the RCR.
(2) RCR processing charge in respect of an
RCR in respect of goods is payable on the accredited client payment day for the
month following the month during which the goods are taken, under
section 71DB, to have been entered for home consumption.
(3) If an RCR is withdrawn under subsection
71F(1), or is taken to be withdrawn under subsection 71F(2) or (7), before the
issue of an authority to deal in respect of goods covered by the RCR, then,
despite subsection (1), the person is not liable to pay an RCR processing
charge in respect of the RCR.
71DD
Making of import information contracts
(1) Subject to subsection (2), the CEO
may enter into a contract (an import information contract) with a
person for the purposes of:
(a) enabling RCRs to be made by, or on
behalf of, the person; and
(b) enabling payments of amounts of
import duty, accredited client monthly duty estimate, RCR processing charge and
periodic declaration processing charge to be made on accredited client payment
days.
Note: 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 (see section 273EB).
(2) The CEO must not enter into an import
information contract with a person (other than a company specified in subsection (3))
unless the CEO is satisfied, as a result of an audit carried out by a person
chosen in accordance with the business rules, that the person can provide
Customs with accurate information that is necessary to enable Customs to
perform duties in relation to goods imported into Australia.
(3) The following companies are specified for
the purposes of subsection (2):
(a) Colorado Group Limited (ABN 8500
432 7566);
(b) Du Pont (Australia) Pty Limited (ABN 5900 071 6469);
(c) Ericsson Australia Pty Limited (ABN
5600 407 1854);
(d) Grocery Holdings Pty Limited (ABN
27007 427 581);
(e) K mart Australia Limited (ABN
73004 700 485);
(f) Kodak (Australasia) Pty Limited
(ABN 4900 405 7621);
(g) Liquorland (Australia) Pty Limited (ABN 82007 512 414);
(h) My Car Automotive Pty Limited (ABN
94061 462 593);
(i) Myer Stores Limited (ABN 83004
143 239);
(j) Nortel Networks Australia Pty
Limited (ABN 400 031 64145);
(k) NS Komatsu Pty Limited (ABN 630
535 14739);
(l) Officeworks Superstores Pty
Limited (ABN 36004 763 526);
(m Panasonic Australia Pty Limited
(ABN 8300 159 2187);
(n) Target Australia Pty Limited (ABN
75004 250 944);
(o) Tyremaster (Wholesale) Pty Limited
(ABN 18000 781 037).
(4) The provisions in an import information
contract are to include provisions relating to:
(a) the goods covered by the contract;
and
(b) how the person’s compliance with
the business rules is to be reported, monitored and audited; and
(c) the power of the CEO to terminate
the contract if the person fails to comply with any of the business rules or
with any of the requirements of this Act; and
(d) how amounts of accredited client
monthly duty estimate payable under section 71DGA are to be determined.
(4A) Provisions in an import information
contract relating to how amounts of accredited client monthly duty estimate
payable by a person are to be determined must provide a method of working out
the amounts that results in the estimate payable by the person for a particular
month being approximately equal to the total amount of import duty that the
person will be liable to pay in respect of goods that are:
(a) covered by the import information
contract; and
(b) taken, under section 71DB, to
have been entered for home consumption during the month.
(5) The existence of an import information
contract does not affect the exercise by the CEO of any powers conferred on him
or her by or under this Act.
71DE
Authority to deal with goods in respect of which an RCR has been made
(1) If an RCR in respect of goods has been
communicated to Customs, Customs must give a cargo release advice
electronically in accordance with this section.
(2) A cargo release advice:
(a) must refer to the number given by
Customs to identify the particular RCR; and
(b) must be communicated
electronically to the person who made the RCR; and
(c) must contain:
(i) a statement to the
effect that the goods are cleared for home consumption; or
(ii) a statement that the
goods are directed to be held in their current location or are directed for
further examination.
(3) Subject to subsection (4), if a
cargo release advice is communicated under this section, Customs must
communicate electronically, to the person to whom the advice was communicated,
an authority to take the goods into home consumption.
(4) Customs is not required to communicate an
authority under subsection (3) while the goods concerned are subject to a
direction referred to in subparagraph (2)(c)(ii).
(5) If goods are authorised to be taken into
home consumption, the authority to deal must set out:
(a) any condition of the kind referred
to in subsection (6) to which the authority is subject; and
(b) the date on which the authority is
given; and
(c) such other information as is
prescribed.
(6) An authority to deal with goods may be
expressed to be subject to a condition that a specified permission for the
goods to be dealt with (however it is described) be obtained under another law
of the Commonwealth.
(7) If an authority to deal with goods is
expressed to be subject to the condition that a specified permission be
obtained, the authority is taken not to have been given until the permission
has been obtained.
(8) An officer may, at any time before goods
authorised to be taken into home consumption are so dealt with, cancel the
authority by sending electronically, to the person to whom the cargo release
advice was sent, a message stating that the authority is cancelled and setting
out the reasons for the cancellation.
(9) If, at any time before goods authorised
to be taken into home consumption are so dealt with, an officer has reasonable
grounds to suspect that the goods were imported into Australia in contravention
of a Customs‑related law, the officer may suspend the authority for a specified
period by sending electronically, to the person to whom the cargo release
advice was sent, a message stating that the authority is so suspended and
setting out the reasons for the suspension.
(10) If, during the suspension under subsection (9)
of an authority, an officer becomes satisfied that there are no longer
reasonable grounds to suspect that the goods were imported into Australia in contravention
of a Customs‑related law, the officer must revoke the suspension by sending
electronically, to the person to whom the message notifying the suspension was
sent, a message stating that the suspension is revoked.
(11) A cancellation or suspension of an
authority, or a revocation of a suspension of an authority, has effect from the
time when the relevant notice is served or the relevant message is sent, as the
case may be.
71DF
Periodic declarations by persons who may make RCRs
(1) If:
(a) an RCR in respect of goods covered
by an import information contract is made by the accredited client who entered
into the contract or a customs broker nominated in the contract to make
communications to Customs on behalf of the accredited client; and
(b) the goods are taken, under
section 71DB, to have been entered for home consumption;
the accredited client or nominated broker must send
electronically to Customs one or more declarations (periodic declarations)
containing such information in relation to the goods as is set out in an
approved statement.
(2) Any periodic declarations in respect of
particular goods that are required to be sent to Customs under
subsection (1) must be sent to Customs not later than:
(a) the first day of the month
following the month during which the goods are taken to have been entered for
home consumption; or
(b) such other day of the month
following the month during which the goods are taken to have been entered for
home consumption as is prescribed.
71DG
Liability for a periodic declaration processing charge
(1) When a periodic declaration is sent to
Customs under section 71DF by or on behalf of an accredited client, the
accredited client becomes liable to pay a periodic declaration processing
charge in respect of the declaration.
(2) Periodic declaration processing charge in
respect of a periodic declaration in respect of goods is payable on the
accredited client payment day for the month following the month during which
the goods are taken, under section 71DB, to have been entered for home
consumption.
71DGA
Liability for accredited client monthly duty estimate
(1) An accredited client is liable to pay
accredited client monthly duty estimate for a month in respect of goods if the
goods:
(a) are covered by an import information
contract entered into by the accredited client; and
(b) are taken, or are expected to be
taken, under section 71DB, to have been entered for home consumption
during the month.
(2) Accredited client monthly duty estimate
payable for a particular month is payable on the accredited client payment day
for that month.
(3) The amount of accredited client monthly
duty estimate payable by an accredited client for a particular month in respect
of goods is worked out in accordance with the import information contract
entered into by the accredited client that covers those goods.
71DGB
Payment of import duty
(1) If an accredited client becomes liable to
pay import duty on goods that are covered by an import information contract
entered into by the accredited client, the import duty is payable on the
accredited client payment day for the month following the month during which
the goods are taken, under section 71DB, to have been entered for home
consumption.
Note: Other charges may be payable at the same time,
such as RCR processing charge (see subsection 71DC(2)) and periodic declaration
processing charge (see subsection 71DG(2)).
(2) If an accredited client has paid an
amount of accredited client monthly duty estimate for a particular month, then
the amount of import duty that is payable by the accredited client in respect
of goods taken, under section 71DB, to have been entered for home
consumption during the month is reduced by the amount of accredited client
monthly duty estimate paid by the accredited client for that month.
(3) If the amount of accredited client
monthly duty estimate that an accredited client has paid for a particular month
is greater by a particular amount (the excess amount) than the
amount of import duty that is payable by the accredited client in respect of
goods taken, under section 71DB, to have been entered for home consumption
during the month, then the excess amount is to be dealt with by Customs as
agreed in writing with the accredited client.
Subdivision D—Warehouse declarations
71DH
Making a warehouse declaration
(1) A warehouse declaration is a
communication to Customs in accordance with this section of information about
goods to which section 68 applies that are intended to be entered for
warehousing.
(2) A warehouse declaration may be
communicated by document or electronically.
(3) A
documentary warehouse declaration must be communicated to Customs:
(a) by giving or sending it to an
officer doing duty in relation to warehouse declarations; or
(b) by leaving it at a place that has
been allocated for lodgment of warehouse declarations in a Customs Office;
at the place at which the goods are to be delivered for
warehousing.
(5) If the information communicated to
Customs in a warehouse declaration relating to goods adequately identifies any
permission (however it is described) that has been given for the importation of
those goods, the identification of the permission in that information is taken,
for the purposes of any law of the Commonwealth (including this Act), to be the
production of the permission to an officer.
(6) However, subsection (5) does not
affect any power of an officer, under this Act, to require the production of a
permission referred to in that subsection.
(7) If:
(a) a warehouse declaration is, or is
taken under section 71L to have been, communicated to Customs; and
(b) before the time when the
declaration is, or is so taken to have been, communicated to Customs, the goods
to which the declaration relates have been imported or have been brought to the
first port or airport in Australia at which any goods are to be discharged;
the goods are taken to have been entered for warehousing.
(8) If:
(a) a warehouse declaration is, or is
taken under section 71L to have been, communicated to Customs; and
(b) at the time when the warehouse
declaration is, or is so taken to have been, communicated to Customs, the goods
to which the declaration relates have not been brought to the first port or
airport in Australia at which any goods are to be discharged;
the goods are taken to be entered for warehousing only
when they are brought to that port or airport.
71DI
Liability for warehouse declaration processing charge
(1) When a warehouse declaration (including
an altered warehouse declaration) in respect of goods is, or is taken to have
been, communicated to Customs under section 71DH, the owner of the goods
becomes liable to pay warehouse declaration processing charge in respect of the
declaration.
(2) If a person who is an owner of goods pays
warehouse declaration processing charge in respect of a warehouse declaration
relating to particular goods, any other person who is an owner of those goods
ceases to be liable to pay charge in respect of that declaration.
(3) If a warehouse declaration is withdrawn
under subsection 71F(1), or is taken, under subsection 71F(2) or (7), to have
been withdrawn, before the issue of an authority to deal in respect of goods
covered by the declaration, then, despite subsection (1), the owner of the
goods is not liable to pay warehouse declaration processing charge in respect
of the declaration.
71DJ
Authority to deal with goods in respect of which a warehouse declaration has
been made
(1) If a warehouse declaration in respect of
goods has been communicated to Customs, Customs must give a warehouse
declaration advice, by document or electronically, in accordance with this
section.
(2) A warehouse declaration advice relating
to goods entered by documentary warehouse declaration:
(a) must be given to the owner of the
goods or be made available for collection by leaving it at a place in a Customs
office that has been allocated for collection of such advices; and
(b) must contain:
(i) a statement to the
effect that the goods are cleared for warehousing; or
(ii) a statement that the
goods are directed to be held in their current location or are directed for
further examination.
(3) A warehouse declaration advice relating
to goods entered by an electronic warehouse declaration:
(a) must refer to the number given by
Customs to identify the particular warehouse declaration; and
(b) must be communicated
electronically to the person who made the declaration; and
(c) must contain:
(i) a statement to the
effect that the goods are cleared for warehousing; or
(ii) a statement that the
goods are directed to be held in their current location or are directed for
further examination.
(4) Subject to subsection (5), if:
(a) a warehouse declaration advice is
given or communicated under this section; and
(b) a payment is made of any warehouse
declaration processing charge or other charge or fee payable at the time of
entry of, or in respect of, the goods covered by the warehouse declaration
advice;
Customs must:
(c) if the advice was given under subsection (2)—give
the person to whom the advice was given an authority, in writing, to take the
goods into warehousing; and
(d) if the advice was communicated
electronically under subsection (3)—communicate electronically, to the
person to whom the advice was communicated, an authority to take the goods into
warehousing.
(5) Customs is not required to give or
communicate an authority under subsection (4) while the goods concerned
are subject to a direction referred to in subparagraph (2)(b)(ii) or
(3)(c)(ii).
(6) If goods are authorised to be taken into
warehousing, the authority to deal, whether given by a document or
electronically, must set out:
(a) any condition of the kind referred
to in subsection (7) to which the authority is subject; and
(b) the date on which the authority is
given; and
(c) such other information as is
prescribed.
(7) An authority to deal with goods may be
expressed to be subject to a condition that a specified permission for the
goods to be dealt with (however it is described) be obtained under another law
of the Commonwealth.
(8) If an authority to deal with goods is
expressed to be subject to the condition that a specified permission be
obtained, the authority is taken not to have been given until the permission
has been obtained.
(9) An officer may, at any time before goods
authorised to be taken into warehousing are so dealt with, cancel the
authority:
(a) if the authority was given in
respect of a documentary declaration, by:
(i) signing a notice
stating that the authority is cancelled and setting out the reasons for the
cancellation; and
(ii) serving a copy of the
notice on the person who made the declaration or, if that person does not have
possession of the goods, on the person who has possession of the goods; or
(b) if the authority was given in
respect of an electronic declaration—by sending electronically, to the person
who made the declaration, a message stating that the authority is cancelled and
setting out the reasons for the cancellation.
(10) If, at any time before goods authorised to
be taken into warehousing are so dealt with, an officer has reasonable grounds
to suspect that the goods were imported into Australia in contravention of any
Customs‑related law, the officer may suspend the authority for a specified
period:
(a) if the authority was given in respect
of a documentary declaration, by:
(i) signing a notice
stating that the authority is so suspended and setting out the reasons for the
suspension; and
(ii) serving a copy of the
notice on the person who made the declaration or, if that person does not have
possession of the goods, on the person who has possession of the goods; or
(b) if the authority was given in
respect of an electronic declaration—by sending electronically, to the person
who made the declaration, a message stating that the authority is so suspended
and setting out the reasons for the suspension.
(11) If, during the suspension under subsection (10)
of an authority, an officer becomes satisfied that there are no longer
reasonable grounds to suspect that the goods were imported into Australia in
contravention of a Customs‑related law, the officer must revoke the suspension:
(a) if the authority was given in
respect of a documentary declaration, by:
(i) signing a notice
stating that the suspension is revoked; and
(ii) serving a copy of the
notice on the person to whom the notice of the suspension was given; or
(b) if the authority was given in
respect of an electronic declaration—by sending electronically, to the person
to whom the message notifying the suspension was sent, a message stating that
the suspension is revoked.
(12) A cancellation or suspension of an
authority, or a revocation of a suspension of an authority, has effect from the
time when the relevant notice is served or the relevant message is sent, as the
case may be.
71DK
Visual examination in presence of officer
(1) If a person who is permitted or required
to make a warehouse declaration in respect of goods to which section 68
applies does not have the information to complete the declaration, the person
may apply to Customs, by document or electronically, for permission to examine
the goods in the presence of an officer.
(2) A documentary application must be
communicated to Customs by giving it to an officer doing duty in relation to
warehouse declarations.
(3) When an application is given to an
officer under subsection (2) or is sent electronically, an officer must,
by writing or by message sent electronically, give the applicant permission to
examine the goods on a day and at a place specified in the notice.
(4) A person who has received a permission
may examine the goods in accordance with the permission in the presence of an
officer.
71DL
An officer may seek additional information
(1) Without limiting the information that may
be required to be included in a warehouse declaration, if a warehouse
declaration has been made in respect of goods, authority to deal with the goods
may be refused until an officer doing duty in relation to warehouse
declarations:
(a) has verified particulars of the
goods shown in the warehouse declaration; or
(b) is satisfied of any other matter
that may be relevant to the granting of an authority to deal.
(2) If an officer doing duty in relation to
warehouse declarations believes, on reasonable grounds, that the owner of goods
to which a warehouse declaration relates has custody or control of commercial
documents, or has, or can obtain, information, relating to the goods that will
assist the officer to determine whether this Act has been or is being complied
with in respect of the goods, the officer may require the owner:
(a) to deliver to the officer the
commercial documents in respect of the goods that are in the owner’s custody or
control (including any such documents that had previously been delivered to an
officer and had been returned to the owner); or
(b) to deliver to the officer such
information, in writing, relating to the goods (being information of a kind
specified in the notice) as is within the knowledge of the owner or as the
owner is reasonably able to obtain.
(3) A documentary
requirement for the delivery of documents or information in respect of a
warehouse declaration must:
(a) be communicated to the person by
whom, or on whose behalf, the declaration was communicated; and
(b) be in an approved form and contain
such particulars as the form requires.
(4) An electronic requirement for the
delivery of documents or information in respect of a warehouse declaration
must:
(a) be communicated electronically to
the person who made the declaration; and
(b) contain such particulars as are
set out in an approved statement.
(5) An officer doing duty in relation to
warehouse declarations may ask:
(a) the owner of goods in respect of
which a warehouse declaration has been made; and
(b) if another person made the
declaration on behalf of the owner—that other person;
any questions relating to the goods.
(6) If an officer doing duty in relation to
warehouse declarations believes, on reasonable grounds, that the owner of goods
to which a warehouse declaration relates has custody or control of commercial
documents, or has, or can obtain, information, relating to the goods that will
assist the officer to verify the particulars shown in the warehouse
declaration, the officer may require the owner to produce the documents or
supply the information to the officer.
(7) If:
(a) the owner of goods has been
required to deliver documents or information in relation to the goods under subsection (2);
or
(b) the owner of, or the person making
a warehouse declaration in respect of, goods has been asked a question in
respect of the goods under subsection (5); or
(c) the owner of goods has been
required to verify a matter in respect of the goods under subsection (6);
authority to deal with the relevant goods in accordance
with the declaration must not be granted unless:
(d) the requirement referred to in paragraph (a)
has been complied with or withdrawn; or
(e) the question referred to in paragraph (b)
has been answered or withdrawn; or
(f) the requirement referred to in paragraph (c)
has been complied with or withdrawn, or a security has been taken for
compliance with the requirement;
as the case requires.
(8) Subject to section 215, if a person
delivers a commercial document to an officer doing duty in relation to
warehouse declarations under this section, the officer must deal with the
document and then return it to the person.
Subdivision E—General
71E
Application for movement permission
(1) Where particular goods, or goods of a
particular kind, are, or after their importation will be, subject to Customs
control, application may be made to Customs, by document or electronically, in
accordance with this section, for permission to move those goods, or goods of
that kind, or to move them after their importation, to a place specified in the
application.
(2) A documentary movement application must:
(a) be made by the owner of the goods
concerned; and
(b) be communicated to Customs by
giving it to an officer doing duty in relation to import entries or to the
movement of goods subject to Customs control.
(2A) If:
(a) the goods are goods to which
section 68 applies; and
(b) the goods have not been entered
for home consumption or warehousing; and
(c) subsection (2C) does not
apply to the goods;
a movement application may be made only by the operator of
the ship or aircraft that carried the goods, by a cargo reporter in relation to
the goods, or by a stevedore or depot operator who has, or intends to take,
possession of the goods.
(2B) A movement application under subsection (2A)
must be made electronically.
(2C) This subsection applies to goods if:
(a) the goods are:
(i) accompanied by, and
described in, temporary admission papers issued in accordance with an agreement
between Australia and one or more other countries that provides for the temporary
importation of goods without payment of duty; or
(ii) subject to an
application under section 162AA for permission to take delivery of goods;
and
(b) neither
of the following applies:
(i) the CEO has refused to
accept a security or undertaking under section 162A in relation to the
goods;
(ii) a Collector has
refused to grant permission under section 162A to take delivery of the
goods.
(3) If a movement application is duly
communicated to Customs, subsections (3AA) and (3AB) apply.
(3AA) An officer may direct the applicant to ensure
that the goods are held in the place where they are currently located until the
decision is made on the application.
(3AB) If a direction is not given under subsection (3AA),
or a reasonable period has elapsed since the giving of such a direction to
enable the making of an informed decision on the application, an officer must:
(a) if the application is a document
movement application—by notice in writing to the applicant; or
(b) if the application is an electronic
movement application—by sending a message electronically to the applicant;
do either of the following:
(c) give the applicant permission to
move the goods to which the application relates in accordance with the
application either unconditionally or subject to such conditions as are
specified in the notice or message;
(d) refuse the application and set out
in the notice or message the reasons for the refusal.
(3B) If a person
moves goods otherwise than in accordance with the requirement of a permission to
which the goods relate, the movement of the goods is, for the purposes of
paragraph 229(1)(g), taken not to have been authorised by this Act.
(3C) If a cargo report states that goods
specified in the report are proposed to be moved from a Customs place to
another Customs place, then, despite section 71L, the statement is taken
to be a movement application in respect of the goods duly made under this
section.
(3D) In subsection (3C):
Customs place has the meaning given by
subsection 183UA(1).
(4) Where goods are moved to a place other
than a warehouse in accordance with a permission under subsection (3), an
officer of Customs may, at any time while the goods remain under Customs
control, direct in writing that they be moved from that place to a warehouse
specified in the direction within a period specified in the direction.
(5) If goods are not moved in accordance with
such a direction, an officer of Customs may arrange for the goods to be moved
to the warehouse specified in the direction or to any other warehouse.
(6) Where an officer of Customs has arranged
for goods to be moved to a warehouse, Customs has a lien on the goods for any
expenses incurred in connection with their removal to the warehouse and for any
warehouse rent and charges incurred in relation to the goods.
71F
Withdrawal of import entries
(1) At any time after an import entry is
communicated to Customs and before the goods to which it relates are dealt with
in accordance with the entry, a withdrawal of the entry may be communicated to
Customs by document or electronically.
(2) If, at any time after a person has
communicated an import entry to Customs and before the goods are dealt with in
accordance with the entry, the person changes information included in the
entry, the person is taken, at the time when the import entry advice is given
or communicated in respect of the altered entry, to have withdrawn the entry as
it previously stood.
(3) A documentary withdrawal of an import
entry must:
(a) be communicated by the person by
whom, or on whose behalf, the entry was communicated; and
(b) be communicated to Customs by
giving it to an officer doing duty in relation to import entries.
(5) A withdrawal of an import entry has no
effect during any period while a requirement under subsection 71DA(2) or (6) or
71DL(2) or (6) in respect of the goods to which the entry relates has not been
complied with.
(6) A withdrawal of an import entry is
effected when it is, or is taken under section 71L to have been,
communicated to Customs.
(7) If:
(a) an import entry is communicated to
Customs; and
(b) any duty, fee, charge or tax in
respect of goods covered by the entry remains unpaid in respect of the goods
concerned for 30 days starting on:
(i) the day on which the
import entry advice relating to the goods is communicated; or
(ii) if under subsection
132AA(1) the duty is payable by a time worked out under the regulations—the day
on which that time occurs; and
(c) after that period ends, the CEO
gives written notice to the owner of the goods requiring payment of the unpaid
duty, fee, charge or tax (as appropriate) within a further period set out in
the notice; and
(d) the unpaid duty, fee, charge or
tax (as appropriate) is not paid within the further period;
the import entry is taken to have been withdrawn under subsection (1).
71G
Goods not to be entered while an entry is outstanding
(1) If goods have been entered for home
consumption under subsection 68(2) or (3), a person must not communicate a
further import declaration, a further RCR or a warehouse declaration in respect
of the goods or any part of the goods unless the import declaration or RCR that
resulted in the goods being entered for home consumption is withdrawn.
Penalty: 15 penalty units.
(2) An offence for a contravention of subsection (1)
is an offence of strict liability.
71H
Effect of withdrawal
(1) When a withdrawal of an import entry in
respect of goods takes effect, any authority to deal with the goods is revoked.
(2) Despite the withdrawal:
(a) a person may be prosecuted under
Division 4 of Part XIII, or action may be taken under Subdivision A
of Division 5 of that Part, in respect of the import entry; and
(b) a penalty may be imposed on a
person who is convicted of an offence in respect of the import entry;
as if it had not been withdrawn.
(3) The withdrawal of a documentary import
declaration or of a documentary warehouse declaration does not entitle the
person who communicated it to have it returned.
71J
Annotation of import entry by Customs for certain purposes not to constitute
withdrawal
Any annotation of an import entry that
is made by Customs as a result of the acceptance by Customs of an application
for a refund or rebate of all or a part of the duty paid, or for a remission of
all or part of the duty payable, on goods covered by the entry, is not to be
taken to constitute a withdrawal of the entry for the purposes of this Act.
71K
Manner of communicating with Customs by document
(1) An import entry, a withdrawal of an
import entry, a visual examination application, a movement application, or a
return for the purposes of subsection 69(5) or 70(7) or section 105C, that
is communicated to Customs by document:
(a) must be in an approved form; and
(b) must contain such information as
the approved form requires; and
(c) must be signed in the manner
indicated in the approved form.
(2) The CEO may approve different forms for
documentary communications to be made in different circumstances or by
different classes of persons.
71L
Manner and effect of communicating with Customs electronically
(1) An import entry, a withdrawal of an
import entry, a visual examination application, a movement application, or a
return for the purposes of subsection 69(5) or 70(7) or section 105C that
is communicated to Customs electronically must communicate such information as
is set out in an approved statement.
(2) The CEO may approve different statements
for electronic communications to be made in different circumstances or by
different classes of persons.
(3) For the purposes of this Act, an import
entry, a withdrawal of an import entry, a return for the purposes of subsection
69(5) or 70(7) or section 105C or a periodic declaration, is taken to have
been communicated to Customs electronically when an import entry advice, or an
acknowledgment of the withdrawal, the return or the declaration, is
communicated by Customs electronically to the person identified in the import
entry, withdrawal, return or declaration as the person sending it.
(4) A movement application that is
communicated to Customs electronically must communicate such information as is
set out in an approved statement.
(5) For the purposes of this Act, a movement
application is taken to have been communicated to Customs electronically when
an acknowledgment of the application is communicated by Customs electronically
to the person identified in the application as the person sending it.
71M
Requirements for communicating to Customs electronically
A communication that is required or
permitted by this Division to be made to Customs electronically must:
(a) be signed by the person who makes
it (see paragraph 126DA(1)(c)); and
(b) otherwise meet the information
technology requirements determined under section 126DA.
72
Failure to make entries
(1) Where:
(a) imported goods are required to be
entered; and
(b) an
entry is not made in respect of the goods within such period commencing on the
importation of the goods as is prescribed, or any further period allowed by a
Collector;
a Collector may cause or permit the goods to be removed to
a warehouse or such other place of security as the Collector directs or
permits.
(2) Where goods that have been, or may be,
removed under subsection (1) are live animals or are of a perishable or
hazardous nature and a Collector considers it expedient to do so without delay,
the Collector may sell, or otherwise dispose of, the goods.
(3) A Collector has a lien on goods for any
expenses incurred by him or her in connection with their removal under subsection (1)
and for any warehouse rent or similar charges incurred in relation to the
goods.
(4) Where:
(a) goods (other than goods to which subsection (2)
applies) have been, or may be, removed under subsection (1); and
(b) all things that are required to be
done to enable authority to deal with the goods to be given, including the
making of an entry in respect of the goods, are not done within:
(i) if the goods have been
removed—such period as is prescribed commencing on the removal of the goods; or
(ii) if
the goods have not been removed—such period as is prescribed commencing on the
expiration of the period applicable under paragraph (1)(b) in relation to
the goods;
a Collector may sell, or otherwise dispose of, the goods.
(5) A period prescribed for the purposes of subsection (1)
or subparagraph (4)(b)(i) or (ii) may be a period prescribed in relation
to all goods or in relation to goods in a class of goods.
73
Breaking bulk
(1) Subject to subsections (2B) and (3),
a person shall not break the bulk cargo of a ship arriving in, or on a voyage
to, Australia while the ship is within waters of the sea within the outer
limits of the territorial sea of Australia, including such waters within the
limits of a State or an internal Territory.
Penalty: 250 penalty units.
(2) Subject to
subsections (2B) and (3), a person shall not break the bulk cargo of an
aircraft arriving in, or on a flight to, Australia while the aircraft is:
(a) flying over Australia; or
(b) in, or flying over, waters of the
sea within the outer limits of the territorial sea of Australia.
Penalty: 250 penalty units.
(2A) Subsections (1) and (2) are offences
of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(2B) Subsections (1) and (2) do not apply
if the person has the permission of a Collector.
(3) Subsections (1) and (2) do not apply
in respect of goods authority to deal with which has been given under section 71B.
74
Officer may give directions as to storage or movement of certain goods
(1) If an officer has reasonable grounds to
suspect that a report of the cargo made in respect of a ship or aircraft:
(a) has not included particular goods
that are intended to be unloaded from the ship or aircraft at a port or airport
in Australia; or
(b) has incorrectly described
particular goods;
the officer may give written directions to the cargo
reporter as to how and where the goods are to be stored, and as to the extent
(if any) to which the goods may be moved.
(2) An officer who has given a written
direction under subsection (1) may, by writing, cancel the direction if
the officer is satisfied that a report of the cargo made in respect of the ship
or aircraft has included, or correctly described, as the case may be, the
goods.
(3) If an officer has reasonable grounds to
suspect that particular goods in the cargo that is to be, or has been, unloaded
from a ship or aircraft are prohibited goods, the officer may give written
directions to:
(a) the cargo reporter; or
(b) the stevedore or depot operator
whose particulars have been communicated to Customs by the operator of the ship
or aircraft under section 64AAC;
as to how and where the goods are to be stored, and as to
the extent (if any) to which the goods may be moved.
(4) An officer who has given a written
direction under subsection (3) may, by writing, cancel the direction if
the officer is satisfied that the cargo does not contain prohibited goods.
(5) A person who intentionally contravenes a
direction given to the person under subsection (1) or (3) commits an
offence punishable, on conviction, by a penalty not exceeding 120 penalty
units.
(6) A person who contravenes a direction
given to the person under subsection (1) or (3) commits an offence
punishable, on conviction, by a penalty not exceeding 60 penalty units.
(7) An offence against subsection (6) is
an offence of strict liability.
76
Goods landed at ship’s risk etc.
Goods unshipped shall be placed by and
at the expense of the master or owner of the ship or the pilot or owner of the
aircraft from which they were unshipped in a place of security approved by the
Collector, and shall until lawfully removed therefrom be at the risk of the
master or owner of the ship or the pilot or owner of the aircraft as if they
had not been unshipped.
77
Repacking on wharf
Any goods may by authority be repacked
or skipped on the wharf.
77AA
Disclosure of information to cargo reporter or owner of goods
(1) If a cargo reporter in relation to goods
that are on a ship or aircraft on a voyage or flight to a place in Australia requests Customs to inform the cargo reporter:
(a) whether a report of the impending
arrival of the ship or aircraft has been made and, if so, the estimated time of
arrival specified in the report; or
(b) whether a report of the arrival of
the ship or aircraft has been made and, if so, the time of arrival;
Customs may comply with the request.
(2) If goods have been entered for home
consumption or warehousing, Customs may, at the request of the owner of the
goods, inform the owner of the stage reached by Customs in deciding whether or
not to give an authority to deal with the goods.
(3) If a movement application has been made
in respect of goods, Customs may, at the request of the owner of the goods,
inform the owner of the stage reached by Customs in its consideration of the application.
(4) If goods have been entered for export by
the making of an export declaration, Customs may, at the request of the owner
of the goods, inform the owner of the stage reached by Customs in deciding
whether or not to give an authority to deal with the goods.
(5) If a submanifest in respect of goods has
been sent to Customs under section 117A, Customs may, at the request of
the owner of the goods, inform the owner of the stage reached by Customs in
preparing to give a submanifest number in respect of the submanifest.
Division 5—Detention of goods in the public interest
77EA
Minister may order goods to be detained
(1) The Minister may, if the Minister
considers that it is in the public interest to do so, order Customs to detain
the goods specified in the Minister’s order.
(2) At the time an order is made to detain
goods:
(a) the goods must be goods the
importation of which is restricted by the Customs (Prohibited Imports)
Regulations 1956; and
(b) the goods must have been imported
into Australia; and
(c) the importation of the goods must
not breach this Act; and
(d) the goods must not have been:
(i) delivered into home
consumption in accordance with an authority to deal with the goods; or
(ii) exported from Australia.
(3) An order to detain goods has effect
despite any provision of this Act to the contrary.
77EB
Notice to person whose goods are detained
If the Minister orders goods to be
detained, the Minister must, as soon as practicable after making the order,
give written notice of the order to:
(a) the owner of the goods; or
(b) if the owner of the goods cannot
be identified after reasonable inquiry—the person in whose possession or under
whose control the goods were at the time the order was given.
77EC
Detention of goods by Customs
If the Minister orders Customs to detain
goods under section 77EA, Customs must:
(a) move the goods to a place that is
approved by a Collector for the purpose of detaining goods under this
Subdivision (unless the goods are already in such a place); and
(b) detain the goods in that place
until the goods are dealt with under section 77ED, 77EE or 77EF.
77ED
Minister may authorise delivery of detained goods into home consumption
(1) On application by the owner of goods
detained under section 77EC, the Minister may authorise the delivery of
the goods, or so much of the goods as the Minister specifies in the authority,
into home consumption.
(2) An authority is subject to any
conditions, or other requirements, specified in the authority in relation to
the goods.
(3) An application under subsection (1)
must be made before the end of the period of 12 months after the date of the
order.
(4) The owner of goods authorised to be taken
into home consumption under subsection (1) must comply with any other provision
of this Act in relation to taking goods into home consumption.
77EE
Minister may authorise export of detained goods
(1) On application by the owner of goods
detained under section 77EC, the Minister may authorise the exportation of
the goods, or so much of the goods as the Minister specifies in the authority,
from Australia.
(2) An authority is subject to any
conditions, or other requirements, specified in the authority in relation to
the goods.
(3) An application under subsection (1)
must be made before the end of the period of 12 months after the date of the
order.
(4) The owner of goods authorised to be
exported under subsection (1) must comply with any other provision of this
Act in relation to exporting goods.
77EF
When goods have been detained for 12 months
Goods to be exported or disposed of
(1) This section applies if, at the end of
the period of 12 months after an order to detain goods is given, some or all of
the goods (the remaining goods) have not been:
(a) delivered into home consumption in
accordance with an authority given under section 77ED; or
(b) exported in accordance with an
authority given under section 77EE.
(2) The Minister may grant an authority to
export the remaining goods from Australia.
(3) The owner of goods authorised to be
exported under subsection (2) must comply with any other provision of this
Act in relation to exporting goods.
(4) If:
(a) the Minister does not grant an
authority to export the remaining goods from Australia within 1 month of the
end of the period of 12 months after the date of the order; or
(b) the remaining goods have not been
exported from Australia within 2 months after the date of an authority to
export the goods under subsection (2);
the Minister must authorise Customs to dispose of the
goods in the manner the Minister considers appropriate.
Compensation for detained goods
(5) Nothing in this section prevents a person
from seeking compensation in relation to the remaining goods, or other goods
ordered to be detained under this Subdivision, in accordance with section 4AB.
Part IVA—Depots
77F
Interpretation
(1) In this Part:
Australia Post means the Australian Postal
Corporation.
depot, in relation to a depot licence, means
the place to which the licence relates.
depot licence means a licence granted under
section 77G and includes such a licence that has been renewed under
section 77T.
depot licence application charge means the
depot licence application charge imposed by the Customs Depot Licensing
Charges Act 1997 and payable as set out in section 77H.
depot licence charge means the depot licence
charge imposed by the Customs Depot Licensing Charges Act 1997 and
payable as set out in section 77M or 77U.
depot licence variation charge means the
depot licence variation charge imposed by the Customs Depot Licensing
Charges Act 1997 and payable as set out in section 77LA of this Act.
International Mail Centre means a place
approved in writing by the CEO under this section as a place for the
examination of international mail.
place includes an area, a building and a part
of a building.
receptacle means a shipping or airline
container, a pallet or other similar article.
Tribunal means the Administrative Appeals
Tribunal.
(2) A
reference in this Part to a conviction of a person of an offence includes a
reference to the making of an order under section 19B of the Crimes Act
1914, or under a corresponding provision of a law of a State, a Territory
or a foreign country, in relation to a person in respect of an offence.
Note: Section 19B of the Crimes Act 1914
empowers a court that has found a person to have committed an offence to take
action without proceeding to record a conviction.
(3) Nothing in this Part affects the
operation of Part VIIC of the Crimes Act 1914 (which includes
provisions relieving persons from requirements to disclose spent convictions).
77G
Depot licences
(1) Subject to this Part, the CEO may, on an
application made by a person or partnership in accordance with section 77H,
grant the person or partnership a licence in writing, to be known as a depot
licence, to use a place described in the licence for any one or more of the
following purposes:
(a) the holding of imported goods that
are subject to the control of the Customs under section 30;
(b) the unpacking of goods referred to
in paragraph (a) from receptacles;
(c) the holding of goods for export
that are subject to the control of the Customs under section 30;
(d) the packing of goods referred to
in paragraph (c) into receptacles;
(e) the examination of goods referred
to in paragraph (a) or (c) by officers of Customs.
(2) A depot licence may be granted:
(a) in relation to all the purposes
referred to in subsection (1) or only to a particular purpose or purposes
referred to in subsection (1) as specified in the licence; and
(b) in relation to goods generally or
to goods of a specified class or classes as specified in the licence.
77H
Application for a depot licence
(1) An application for a depot licence to
cover a place must be made by a person or partnership who would occupy and
control the place as a depot if the licence were granted.
(2) The application must:
(a) be in writing; and
(b) be in an approved form; and
(c) contain such information as the
form requires; and
(d) be signed in the manner indicated
in the form; and
(e) subject to subsection (3), be
accompanied by a depot licence application charge.
(3) If Australia Post makes an application
under this section for the whole or a part of an International Mail Centre to
be covered by a depot licence, it is not liable to pay the depot licence
application charge under subsection (2).
77J
CEO may require applicant to supply further information
(1) The CEO may, by written notice given to
an applicant for a depot licence, require the applicant to supply further
information in relation to the application within the period that is specified
in the notice.
(2) The CEO may extend the specified period
if the applicant, in writing, requests the CEO to do so.
(3) If the applicant:
(a) fails to supply the further
information within the specified period, or that period as extended under subsection (2);
but
(b) supplies
the information at a subsequent time;
the CEO must not take the information into account in
determining whether to grant the depot licence.
77K Requirements
for grant of depot licence
(1) The CEO must not grant a depot licence
if, in the CEO’s opinion:
(a) if the applicant is a natural
person—the applicant is not a fit and proper person to hold a depot licence; or
(b) if the applicant is a partnership—any
of the partners is not a fit and proper person to be a member of a partnership
holding a depot licence; or
(c) if the applicant is a company—any
director, officer or shareholder of a company who would participate in the
management or control of the place proposed to be covered by the licence (the proposed
depot) is not a fit and proper person so to participate; or
(d) an employee of the applicant who
would participate in the management or control of the proposed depot is not a
fit and proper person so to participate; or
(e) if the applicant is a company—the
company is not a fit and proper company to hold a depot licence; or
(f) if the applicant is a natural
person or a company—the applicant would not be in a position to occupy and
control the proposed depot if the licence were granted; or
(g) if the applicant is a
partnership—none of the members of the partnership would be in a position to
occupy and control the proposed depot if the licence were granted; or
(h) the
physical security of the proposed depot is not adequate having regard to:
(i) the nature of the
place; or
(ii) the procedures and
methods that would be adopted by the applicant to ensure the security of goods
in the proposed depot if the licence were granted; or
(i) the records that would be kept in
relation to the proposed depot would not be suitable to enable Customs
adequately to audit those records.
(2) The CEO must, in deciding whether a
person is a fit and proper person for the purposes of paragraph (1)(a),
(b), (c) or (d), have regard to:
(a) any conviction of the person of an
offence against this Act committed within the 10 years immediately before that
decision; and
(b) any conviction of the person of an
offence against another law of the Commonwealth, or a law of a State or of a
Territory, that is punishable by imprisonment for one year or longer, being an
offence committed within the 10 years immediately before that decision; and
(c) whether the person is an insolvent
under administration; and
(d) any misleading statement made
under section 77H or 77J in relation to the application for the licence by
or in relation to the person; and
(e) if any such statement made by the
person was false—whether the person knew that the statement was false.
(3) The CEO must, in deciding whether a
company is a fit and proper company for the purposes of paragraph (1)(e),
have regard to:
(a) any conviction of the company of
an offence against this Act committed within the 10 years immediately before
that decision and at a time when any person who is presently a director,
officer or shareholder of the company was a director, officer or shareholder of
the company; and
(b) any conviction of the company of
an offence against another law of the Commonwealth, or a law of a State or of a
Territory, that is punishable by a fine of $5,000 or more, being an offence
committed within the 10 years immediately before that decision and at a time
when a person who is presently a director, officer or shareholder of the
company was a director, officer or shareholder of the company; and
(c) whether a receiver of the
property, or part of the property, of the company has been appointed; and
(d) whether the company is under
administration within the meaning of the Corporations Act 2001; and
(e) whether the company has executed
under Part 5.3A of that Act a deed of company arrangement that has not yet
terminated; and
(g) whether the company is being wound
up.
(4) The CEO may refuse to grant a depot
licence if, in the CEO’s opinion, the place in relation to which the licence is
sought would be too remote from the nearest place where officers of Customs
regularly perform their functions for Customs to be able to conveniently check
whether the Customs Acts are being complied with at the place.
(5) If the place in relation to which the
application for a depot licence is sought (the proposed depot) is
proposed to be used as a depot for imported goods, the CEO must not grant the
licence unless the applicant has, at the proposed depot, facilities that would
enable the applicant to communicate with Customs electronically.
77L
Granting of a depot licence
(1) Subject to
subsection (3), the CEO must decide whether or not to grant a depot
licence within 60 days after:
(a) if paragraph (b) does not
apply—the receipt of the application for the licence; or
(b) if the CEO requires further
information relating to the application to be supplied by the applicant under
section 77J and the applicant supplied the information in accordance with
that section—the receipt of the information.
(2) If the CEO has not made a decision
whether or not to grant a depot licence within 60 days under subsection (1),
the CEO is taken to have refused the application.
(3) This section does not apply to an
application made before 1 July 1997 in relation to a place that was an
appointed place under paragraph 17(b) of this Act immediately before the
commencement of this Part.
77LA
Variation of places covered by depot licence
(1) The CEO may, on application by the holder
of a depot licence, vary the licence by:
(a) omitting the description of the
place that is currently described in the licence and substituting a description
of another place; or
(b) altering the description of the
place that is currently described in the licence.
(2) The application must:
(a) be in writing; and
(b) be in an approved form; and
(c) contain such information as the
form requires; and
(d) be signed in the manner indicated
in the form; and
(e) be accompanied by payment of the
depot licence variation charge.
(3) The CEO may, by written notice given to
an applicant for the variation of a depot licence, require the applicant to
supply further information in relation to the application within the period
that is specified in the notice or within such further period as the CEO
allows.
(4) The CEO must not grant an application for
the substitution of the description of a place not currently described in the
licence, or for the alteration to the description of a place currently
described in the licence, if, in the CEO’s opinion:
(a) the physical security of the place
whose description is to be substituted, or of the place that would have the
altered description, as the case may be, would not be adequate having regard
to:
(i) the nature of the
place; or
(ii) the procedures and
methods that would be adopted by the applicant to ensure the security of goods
in the place if the variation were made; or
(b) the records that would be kept in
relation to the place would not be suitable to enable Customs adequately to
audit those records.
(5) The CEO must not grant an application for
the substitution of the description of a place not currently described in the
licence if, in the CEO’s opinion, the place would be too remote from the
nearest place where officers who regularly perform their functions for Customs
would be able conveniently to check whether the Customs Acts are being complied
with at the place.
(6) The CEO must decide whether or not to
grant the application within 60 days after:
(a) if paragraph (b) does not
apply—the receipt of the application; or
(b) if the CEO requires further
information relating to the application to be supplied by the applicant under subsection (3)
and the applicant supplied the information in accordance with that
subsection—the receipt of the information.
(7) If the CEO has not made the decision
whether or not to grant the application within the period applicable under subsection (6),
the CEO is taken to have refused the application.
77M
Transitional provisions for former paragraph 17(b) places
(1) On and after this Part’s commencement, a
place that was an appointed place under paragraph 17(b) of this Act immediately
before that commencement ceases to be so appointed.
(2) A person occupying and controlling such a
place (the operator) may, before 1 July 1997, apply for a depot licence to cover that place.
(3) If the CEO has not made a decision
whether or not to grant the licence before 1 October 1997, the CEO is taken to have refused the application.
(4) If the operator does not apply for the
depot licence before 1 July 1997:
(a) for the purposes of this Part, the
place is taken to be covered by a depot licence for the period starting from
this Part’s commencement and ending at the end of 30 June 1997; and
(b) for the purposes of this Part, the
operator is taken to be the holder of such a licence for that period; but
(c) in spite of any provisions in this
Part, the operator is not liable to pay depot licence charge for that period.
(5) If:
(a) the operator applies for the depot
licence before 1 July 1997; and
(b) the CEO refuses, or is taken to
have refused, the application before 1 October 1997 and:
(i) the operator does not
apply for a review of that decision within 28 days of that decision; or
(ii) the
operator applies for such a review and the Tribunal affirms the CEO’s decision;
then:
(c) for the purposes of this Part, the
place is taken to be covered by a depot licence for the period starting from
this Part’s commencement and ending:
(i) if subparagraph (5)(b)(i)
applies—28 days after the CEO’s decision; or
(ii) if subparagraph (5)(b)(ii)
applies—on the day of the Tribunal’s decision; and
(d) for the purposes of this Part, the
operator is taken to be the holder of that licence for that period; but
(e) in spite of any provisions in this
Part, the operator is not liable to pay depot licence charge for that period.
(6) If:
(a) the operator applies for the depot
licence before 1 July 1997; and
(b) the
application is successful (whether or not subsequent to an application by the
operator to the Tribunal);
then:
(c) the licence granted to the
operator must cover the period starting from this Part’s commencement and
ending at the end of 30 June 1998; and
(d) the
operator must pay Customs depot licence charge within 30 days of the granting
of the licence.
Note: Section 77S provides the general rule
that each grant of a licence is for a period of not more than 12 months. Subsection (6)
of this section is an exception to that general rule.
(7) If Australia Post would, apart from this
subsection, be required to pay under this section an amount of depot licence
charge in respect of the whole or a part of an International Mail Centre, it is
not liable to pay that amount.
77N
Conditions of a depot licence—general
(1) A depot licence is subject to the
conditions set out in subsections (2) to (10).
(2) The holder of a licence must, within 30
days after the occurrence of an event referred to in any of the following
paragraphs, give the CEO particulars in writing of that event:
(a) a person not described in the
application for the licence as participating in the management or control of
the depot commences so to participate;
(b) in the case of a licence held by a
partnership—there is a change in the membership of the partnership;
(c) in the case of a licence held by a
company:
(i) the company is
convicted of an offence of a kind referred to in paragraph 77K(3)(a) or (b); or
(ii) a receiver of the
property, or part of the property, of the company is appointed; or
(iii) an administrator of
the company is appointed under section 436A, 436B or 436C of the Corporations
Act 2001; or
(iv) the company executes a
deed of company arrangement under Part 5.3A of that Act;
(d) a person who participates in the
management or control of the depot, the holder of the licence or, if a licence
is held by a partnership, a member of the partnership, is convicted of an
offence referred to in paragraph 77K(2)(a) or (b) or becomes an insolvent under
administration.
(2A) The holder of a licence must not cause or
permit a substantial change to be made in:
(a) a matter affecting the physical
security of the depot; or
(b) the keeping of records in relation
to the depot;
unless the holder has given to the CEO 30 days’ notice of
the proposed change.
(3) The holder of the licence must pay to
Customs any prescribed travelling expenses payable by the holder under the
regulations in relation to travelling to and from the depot by a Collector for
the purposes of the Customs Acts. For that purpose, the regulations may prescribe
particular rates of travelling expenses in relation to particular circumstances
concerning travelling to and from a depot by a Collector for the purposes of
the Customs Acts.
(4) The holder of the licence must stack and
arrange goods in the depot so that authorised officers have reasonable access
to, and are able to examine, the goods.
(5) The holders of the licence must provide
authorised officers with:
(a) adequate space and facilities for
the examination of goods in the depot; and
(b) secure storage space for holding
those goods.
(6) The holder of the licence must, when
requested to do so, allow an authorised officer to enter and remain in the
depot to examine goods:
(a) which are subject to the control
of the Customs; or
(b) which an authorised officer has
reasonable grounds to believe are subject to the control of the Customs.
(7) The holder of the licence must, when
requested to do so, provide an authorised officer with information, which is in
the holder’s possession or within the holder’s knowledge, in relation to
determining whether or not goods in the depot are subject to the control of the
Customs.
(8) The holder of the licence must retain all
commercial records and records created in accordance with the Customs Acts
that:
(a) relate to goods received into a
depot; and
(b) come
into the possession or control of the holder of the licence;
for 5 years beginning on the day on which the goods were
received into the depot.
(9) The holder of the licence must keep the
records referred to in subsection (8) at:
(a) the depot; or
(b) if the holder has notified Customs
in writing of the location of any other places occupied and controlled by the
holder where the records are to be kept—those other places.
(10) At any reasonable time within the 5 years
referred to in subsection (8), the holder of the licence must, when
requested to do so:
(a) permit an authorised officer:
(i) to enter and remain in
a place that is occupied and controlled by the holder and which the officer has
reasonable grounds to believe to be a place where records referred to in subsection (8)
are kept; and
(ii) to have full and free
access to any such records in that place; and
(iii) to inspect, examine,
make copies of, or take extracts from any such records in that place; and
(b) provide the officer with all
reasonable facilities and assistance for the purpose of doing all of the things
referred to in subparagraphs (a)(i) to (iii) (including providing access
to any electronic equipment in the place for those purposes).
(11) The holder of the licence is not obliged
to comply with a request referred to in subsection (6), (7) or (10) unless
the request is made by a person who produces written evidence of the fact that
the person is an authorised officer.
77P
Conditions of a depot licence—imported goods
(1) If imported goods were received into a
depot during a particular month, it is a condition of the licence that the
holder of the licence must:
(a) if paragraph (b) does not
apply—cause the removal of those goods into a warehouse before the end of the
following month; or
(b) if the CEO, on written request by
the holder made before the end of that following month, grants an extension
under this section—cause the removal of the goods into a warehouse within 30
days after the end of that following month.
(2) In this section:
month means month of a year.
77Q
The CEO may specify other conditions of a depot licence
(1) The CEO may, for the purpose of:
(a) ensuring compliance with the
Customs Acts; or
(b) protecting
the revenue;
specify conditions in a depot licence that are additional
to the conditions set out in sections 77N and 77P.
(2) The CEO may, by written notice to the
holder of the licence, vary conditions specified under subsection (1) in
relation to that licence.
(3) Variation of the conditions cannot take
effect before the end of 30 days after the giving of the notice under subsection (2).
77R
Breach of conditions of depot licence
(1) The holder of a depot licence must not
breach a condition of the licence set out in section 77N or 77P or
conditions specified in the licence under section 77Q.
Penalty: 50 penalty units.
(2) An offence against subsection (1) is
an offence of strict liability.
77S
Duration of depot licences
Subject to this Part, a depot licence:
(a) comes into force on a date
specified in the licence; and
(b) remains
in force until the end of the 30 June next following the grant of the
licence;
but may be renewed under
section 77T.
Note: Section 77M provides that, in certain
circumstances, a depot licence may be taken to have been granted for a certain
period. It also provides that, in relation to certain applicants, an initial
depot licence is to be granted for a period that exceeds 12 months. In
addition, section 77T provides that a licence may continue to be in force
for a further period of 90 days after the 30 June referred to in this
section under certain circumstances. Another provision that might affect the
operation of this section is section 77V (revocation of licence).
77T
Renewal of depot licences
(1) The CEO must, before the end of a
financial year, notify each holder of a depot licence of the terms of this
section.
(2) If the holder pays a depot licence charge
for the renewal of the licence before the end of the financial year, the
licence is renewed for another period of 12 months at the end of the financial
year.
(3) If the holder fails to pay the charge
before the end of the financial year, a Collector may, until the charge is paid
or the end of 90 days immediately following the end of the financial year
(whichever occurs first), refuse to permit goods that are subject to the
control of the Customs to be received into the depot.
(4) If the holder pays the charge within 90
days immediately following the end of the financial year, the licence is taken
to have been renewed for another period of 12 months at the end of the
financial year.
(5) If the holder fails to pay the charge
within 90 days immediately following the end of the financial year, the licence
expires at the end of that period of 90 days.
(6) A depot licence that has been renewed may
be further renewed.
77U
Licence charges
(1) Subject to section 77M, a depot
licence charge is payable in respect of the grant of a depot licence by the
person or partnership seeking the grant.
(2) A person liable to pay a depot licence
charge for the grant of a depot licence must pay the charge within 30 days of
the decision to grant that licence.
(3) A depot licence charge in respect of the
renewal of a depot licence is payable by the holder of the licence in
accordance with section 77T.
(4) Australia Post is not liable to pay a
depot licence charge under this section in respect of each grant or renewal of
a depot licence that covers the whole or a part of an International Mail Centre.
77V
Revocation of a depot licence
(1) The CEO may give notice of intention to
revoke a depot licence to the holder of the licence if:
(a) the CEO is satisfied that:
(i) the physical security
of the depot is no longer adequate having regard to the matters referred to in
paragraph 77K(1)(h); or
(ii) if the licence is held
by a natural person—the person is not a fit and proper person to hold a depot
licence; or
(iii) if the licence is held
by a partnership—a member of the partnership is not a fit and proper person to
be a member of a partnership holding a depot licence; or
(iv) if the licence is held
by a company—a director, officer or shareholder of the company who participates
in the management or control of the depot is not a fit and proper person so to
participate; or
(v) an employee of the
holder of the licence who participates in the management or control of the
depot is not a fit and proper person so to participate; or
(vi) if the licence is held
by a company—the company is not a fit and proper company to hold a depot
licence; or
(vii) a condition to which
the licence is subject has not been complied with; or
(viii) a licence charge
payable in respect of the grant of the depot remains unpaid more than 30 days
after the grant of the licence; or
(b) the CEO is satisfied on any other
grounds that the revocation is necessary for the protection of the revenue or
for the purpose of ensuring compliance with the Customs Acts.
(2) In deciding whether a person is a fit and
proper person for the purposes of subparagraphs (1)(a)(ii) to (v), the CEO
must have regard to:
(a) whether or not the person is an
insolvent under administration; and
(b) any conviction of the person of an
offence against this Act, or of an offence against another law of the Commonwealth,
or a law of a State or of a Territory, punishable by imprisonment for one year
or longer, that is committed:
(i) if the licence has not
been renewed previously—after the grant of the licence or within 10 years
immediately before the grant of the licence; or
(ii) if the licence has
been renewed on one or more occasions—after the renewal or latest renewal of
the licence or within 10 years immediately before that renewal; and
(c) any misleading statement made
under section 77H or 77J in relation to the application for the depot
licence by or in relation to the person; and
(d) if any such statement made by the
person was false—whether the person knew that the statement was false.
(3) In deciding whether a company is a fit
and proper company for the purposes of subparagraph (1)(a)(vi), the CEO
must have regard to:
(a) the matters referred to in
paragraphs 77K(3)(c) to (g); and
(b) any conviction of the company of
an offence against this Act or of an offence against another law of the
Commonwealth, or a law of a State or of a Territory, punishable by a fine of
$5,000 or more, that is committed:
(i) if the licence has not
been renewed previously—after the grant of the licence or within 10 years
immediately before the grant of the licence; or
(ii) if
the licence has been renewed on one or more occasions—after the renewal or the
latest renewal of the licence or within 10 years immediately before that
renewal;
and at a time when a person who
is presently a director, officer or shareholder of the company was a director,
officer or shareholder of the company.
(4) The notice of intention to revoke a depot
licence must:
(a) specify the ground or grounds for
the intended revocation; and
(b) state that the CEO may decide to
revoke the licence at any time within the 14 days following the end of 30 days
after the notice is given if the ground or at least one of the grounds exists
at that time; and
(c) invite the holder of the licence
to provide written statements to Customs within the 30 days to explain why, in
the holder’s opinion, the licence should not be revoked.
(5) At any time within the 14 days referred
to in paragraph (4)(b), the CEO may, by notice in writing, decide to
revoke the licence if, having regard to any statements made by the holder of
the licence in response to the notice, the CEO is satisfied that the ground or
at least one of the grounds specified in the notice exists at that time.
(6) If the CEO decides to revoke the depot
licence within the 14 days, the depot licence is revoked:
(a) if paragraph (b) does not
apply—28 days after the CEO’s decision; or
(b) if the holder of the licence
applies to the Tribunal for a review of the CEO’s decision—when the Tribunal
affirms the CEO’s decision.
(7) The CEO must, by notice in writing, revoke
a depot licence if the CEO receives a written request by the holder of the
licence that the licence be revoked on and after a specified day.
(8) If a depot licence is revoked under this
section, the CEO must, by notice published in a newspaper circulating in the
locality in which the depot is situated, inform the owners of goods in the
depot of that fact and the date of the revocation.
(9) If a depot licence is revoked under this
section, the person or partnership who held the licence before the revocation
must return the licence to Customs within 30 days after the revocation.
(10) A notice under subsection (1), (5) or
(7) must be served:
(a) either personally or by post, on
the holder of the depot licence; or
(b) personally on a person who, at the
time of service, apparently participates in the management or control of the
depot.
(11) In spite of the fact that a notice under subsection (1)
or (5) has been given in relation to the revocation of a depot licence, nothing
in this Part prevents:
(a) the CEO giving a notice under
subsection 77T(1) in relation to the renewal of the licence; or
(b) the
holder of the licence obtaining a renewal of the licence by paying a depot
licence charge in accordance with section 77T.
Note: Depot licence charge paid in the circumstances
described in subsection (11) may be refunded under section 77W.
77W
Refund of depot licence charge on revocation of a depot licence
(1) If:
(a) a depot licence is revoked before
the end of a financial year (the financial year); and
(b) the
person or partnership (the former holder) who held the licence
before its revocation has paid the depot licence charge for that year;
the former holder is entitled to a refund of an amount
worked out using the formula:
where:
annual rate means the amount of $4,000, or,
if another amount is prescribed under subsection 6(1) of the Customs Depot
Licensing Charges Act 1997, that other amount.
post‑revocation days means the number of days
in the financial year during which the licence is not in force following the
revocation of the licence.
days in the year
means:
(a) if paragraph (b)
does not apply—365; or
(b) if the financial year in which the
licence is in force is not constituted by 365 days—the number of days in that
financial year.
(2) If the former holder has paid the depot
licence charge in respect of the renewal of the licence for the following
financial year, the former holder is entitled to a refund of the full amount of
that charge.
77X
Collector’s powers in relation to a place that is no longer a depot
(1) This section applies in relation to a
place if:
(a) the place ceases to be covered by
a depot licence because the period during which the licence was taken to be in
force under subsection 77M(4) or (5) has expired; or
(b) the place otherwise ceases to be
covered by a depot licence.
(2) If this section applies to a place, a
Collector may:
(a) permit goods that are subject to
the control of the Customs to be received into the place during a period of 30
days after the place ceased to be covered by a depot licence; and
(b) permit imported goods to be
unpacked from receptacles in the place; and
(c) permit goods for export to be
packed into receptacles in the place; and
(d) permit examination of goods that
are subject to the control of the Customs (the controlled goods)
by officers of Customs in the place; and
(e) permit removal of any controlled
goods from the place to a depot covered by a depot licence or to a warehouse;
and
(f) by notice in writing to the
person who was, or who was taken to be, the holder of the licence (the former
holder) covering that place, require the former holder to remove any
controlled goods to a depot covered by a depot licence or to a warehouse; and
(g) while controlled goods are in the
place, take such control of the place as may be necessary for the protection of
the revenue or for ensuring compliance with the Customs Acts; and
(h) by notice in writing to the former
holder, require the former holder to pay to Customs, in respect of the services
of officers required in relation to any controlled goods as a result of the
licence ceasing to be in force (including services relating to the supervision
of activities in relation to the place, the stocktaking of goods in the place
or the reconciliation of records relating to such goods), such fees as the CEO
determines having regard to the cost of the services; and
(i) if the former holder fails to
comply with a requirement under paragraph (f) in relation to any
controlled goods, remove the goods from the place to a depot covered by a depot
licence or a warehouse; and
(j) if goods have been removed under paragraph (i),
by notice in writing to the former holder, require the former holder to pay to
Customs in respect of the cost of the removal such fees as the CEO determines
having regard to that cost.
(3) If an amount that a former holder is
required to pay in accordance with a notice under paragraph (2)(h) or (j)
is not paid, that amount may be recovered as a debt due to the Commonwealth by
action in a court of competent jurisdiction.
77Y
Collector may give directions in relation to goods subject to Customs control
(1) A Collector may, for the protection of
the revenue or for the purpose of ensuring compliance with the Customs Acts,
give written directions under this section to:
(a) the holder of a depot licence; or
(b) a
person participating in the management or control of the depot;
in relation to goods in the depot that are subject to the
control of the Customs (the controlled goods).
(2) A direction under subsection (1)
must be a direction:
(a) to move, or not to move,
controlled goods within a depot; or
(b) about the storage of controlled
goods in the depot; or
(c) to move controlled goods to
another depot or a warehouse; or
(d) about the unpacking from
receptacles of imported goods that are controlled goods; or
(e) about the packing into receptacles
of goods for export that are controlled goods.
(3) A Collector may, for the purpose of:
(a) preventing interference with
controlled goods in a depot; or
(b) preventing
interference with the exercise of the powers or the performance of the
functions of a Collector in respect of a depot or of controlled goods in a
depot;
give directions, in relation to the controlled goods, to
any person in the depot.
(4) A person who has been given a direction
under subsection (1) or (3) must not refuse or fail to comply with the
direction.
Penalty: 50 penalty units.
(5) An offence against subsection (4) is
an offence of strict liability.
77Z
Licences cannot be transferred
(1) Subject to subsection (2), a depot
licence cannot be transferred to another person.
(2) A depot licence may be transferred to
another person in the circumstances prescribed by the regulations.
77ZA
Service of notice
For the purpose of the application of
section 29 of the Acts Interpretation Act 1901 to the service by
post of a notice under this Part on a person or partnership who holds or held a
depot licence, if the notice is posted as a letter addressed to the person or
partnership at the address of the place that is or was the depot, the notice is
taken to be properly addressed.
Part V—Warehouses
78
Interpretation
(1) In this Part, unless the contrary
intention appears:
place includes an area, a building and a part
of a building.
warehouse, in relation to a warehouse
licence, means the warehouse to which the licence relates.
warehouse licence means a licence granted
under section 79 and includes such a licence that has been renewed under
section 84.
(2) A reference in this Part to the CEO shall
be read as including a reference to a Regional Director for a State or
Territory.
(3) For the purposes of this Part, a person
shall be taken to participate in the management or control of a warehouse if:
(a) he or she has authority to direct
the operations of the warehouse or to direct activities in the warehouse, the
removal of goods from the warehouse, or another important part of the
operations of the warehouse; or
(b) he or she has authority to direct
a person who has authority referred to in paragraph (a) in the exercise of
that authority.
79
Warehouse licences
(1) Subject to this Part, the CEO may grant a
person or partnership a licence in writing, to be known as a warehouse licence,
to use a place described in the licence for warehousing goods.
(2) A warehouse licence may be a licence to
use a place for warehousing goods generally, goods included in a specified
class or specified classes of goods or goods other than goods included in a
specified class or specified classes of goods.
(3) A warehouse licence may authorize
blending or packaging, processing, manufacture of excisable goods, trading or
other activities specified in the licence to be carried on in the warehouse.
80
Applications for warehouse licences
An application for a warehouse licence
shall:
(a) be in writing; and
(b) contain a description of the place
in relation to which the licence is sought; and
(c) specify the kinds of goods that
would be warehoused in that place if it were a warehouse; and
(d) set out the name and address of
each person whom the CEO is required to consider for the purposes of paragraph
81(1)(a), (b), (c) or (d); and
(e) set out such particulars of the
matters that the CEO is required to consider for the purposes of paragraph
81(1)(e), (f) or (g) as will enable him or her adequately to consider those
matters; and
(f) contain such other information as
is prescribed.
81
Requirements for grant of warehouse licence
(1) The CEO shall not grant a warehouse
licence if, in his or her opinion:
(a) where the applicant is a natural
person—the applicant is not a fit and proper person to hold a warehouse
licence; or
(b) where the applicant is a
partnership—any of the partners is not a fit and proper person to be a member
of a partnership holding a warehouse licence; or
(c) where the applicant is a
company—any director, officer or shareholder of the company who would
participate in the management or control of the warehouse is not a fit and
proper person so to participate; or
(d) an employee of the applicant who
would participate in the management or control of the warehouse is not a fit
and proper person so to participate; or
(da) where the applicant is a
company—the company is not a fit and proper company to hold a warehouse
licence; or
(e) the physical security of the place
in relation to which the licence is sought is not adequate having regard to:
(ia) the nature of the
place;
(i) the kinds and quantity
of goods that would be kept in that place if it were a warehouse; or
(ii) the procedures and methods
that would be adopted by the applicant to ensure the security of goods in the
place if it were a warehouse; or
(f) the plant and equipment that
would be used in relation to goods in the place in relation to which the
licence is sought if it were a warehouse are not suitable having regard to the
nature of those goods and that place; or
(g) the books of account or records
that would be kept in relation to the place in relation to which the licence is
sought if it were a warehouse would not be suitable to enable the Customs
adequately to audit those books or records.
(2) The CEO shall, in determining whether a
person is a fit and proper person for the purposes of paragraph (1)(a),
(b), (c) or (d), have regard to:
(a) any conviction of the person for an
offence against this Act committed within the 10 years immediately preceding
the making of the application;
(b) any conviction of the person for
an offence under a law of the Commonwealth, of a State or of a Territory that
is punishable by imprisonment for a period of one year or longer, being an
offence committed within the 10 years immediately preceding the making of the
application;
(c) whether the person is an
undischarged bankrupt;
(d) any misleading statement made in
the application by or in relation to the person; and
(e) where any statement by the person
in the application was false—whether the person knew that the statement was
false.
(3) The CEO shall, in determining whether a
company is a fit and proper company for the purposes of paragraph (1)(da),
have regard to:
(a) any conviction of the company of
an offence against this Act committed within the 10 years immediately preceding
the making of the application and at a time when a person who is a director,
officer or shareholder of the company was a director, officer or shareholder of
the company; or
(b) any conviction of the company of
an offence under a law of the Commonwealth, of a State or of a Territory that
is punishable by a fine of 50 penalty units or more, being an offence committed
within the 10 years immediately preceding the making of the application and at
a time when a person who is a director, officer or shareholder of the company
was a director, officer or shareholder of the company; or
(c) whether a receiver of the
property, or part of the property, of the company has been appointed; or
(ca) whether the company is under
administration within the meaning of the Corporations Act 2001; or
(cb) whether the company has executed
under Part 5.3A of that Act a deed of company arrangement that has not yet
terminated; or
(e) whether the company is being wound
up.
82
Conditions of warehouse licences
(1) A warehouse licence is subject to the
condition that, if:
(a) a person not described in the
application for the licence as participating in the management or control of
the warehouse commences so to participate;
(b) in the case of a licence held by a
partnership—there is a change in the membership of the partnership;
(ba) in the case of a licence held by a
company—any of the following events occurs:
(i) the company is
convicted of an offence of a kind referred to in paragraph 81(3)(a) or (b);
(ii) a receiver of the
property, or part of the property, of the company is appointed;
(iii) an administrator of
the company is appointed under section 436A, 436B or 436C of the Corporations
Act 2001;
(iv) the company executes a
deed of company arrangement under Part 5.3A of that Act;
(v) the company begins to
be wound up;
(c) a person who participates in the
management or control of the warehouse, the holder of the licence or, in the
case of a licence held by a partnership, a member of the partnership, is
convicted of an offence referred to in paragraph 81(2)(a) or (b) or becomes
bankrupt;
(d) there is a substantial change in a
matter affecting the physical security of the warehouse;
(e) there is a substantial change in
plant or equipment used in relation to goods in the warehouse; or
(f) there
is a substantial change in the keeping of accounts or records kept in relation
to the warehouse;
the holder of the licence shall, within 30 days after the
occurrence of the event, change, conviction, bankruptcy or appointment, as the
case requires, give the CEO particulars in writing of that event, change,
conviction, bankruptcy or appointment, as the case requires.
(2) A warehouse licence is subject to such
other conditions (if any) for the protection of the revenue, for the purpose of
ensuring compliance with the Customs Acts or otherwise as are prescribed.
(3) A warehouse licence is subject to such
other conditions (if any) as are specified in the licence, being conditions
considered by the CEO to be necessary or desirable for the protection of the
revenue or for the purpose of ensuring compliance with the Customs Acts.
(4) The conditions specified in a warehouse
licence may include:
(a) conditions specifying the persons
or classes of persons whose goods may be warehoused in the warehouse; and
(b) conditions limiting the operations
that may be performed upon, or in relation to, goods in the warehouse.
(5) The CEO may, upon application by the
holder of a warehouse licence and production of the licence, vary the
conditions specified in the licence by making an alteration to, or an
endorsement on, the licence.
83
Duration of warehouse licence
(1) A warehouse licence:
(a) comes into force on a date
specified in the licence or, if no date is so specified, the date on which the
licence is granted; and
(b) subject to this Part, remains in
force until 30 June next following the grant of the licence but may be
renewed in accordance with section 84.
(2) Notwithstanding
that a warehouse licence has not been renewed, a Collector may:
(a) permit goods to be placed in the
former warehouse; and
(b) permit the removal of goods from
the former warehouse, including the removal of goods to a warehouse; and
(c) by notice in writing to the last
holder of the licence, require him or her to remove all or specified goods in
the former warehouse to a warehouse approved by the Collector; and
(d) take such control of the former
warehouse or all or any goods in the former warehouse as may be necessary for
the protection of the revenue or for ensuring compliance with the Customs Acts;
and
(e) by notice in writing to the last
holder of the licence, require him or her to pay to the Customs in respect of
the services of officers required as the result of the licence not having been
renewed (including services relating to the supervision of activities in
relation to the former warehouse permitted by a Collector, the stocktaking of
goods in the former warehouse or the reconciliation of records relating to such
goods) such fee as the CEO determines having regard to the cost of the
services; and
(f) where the last holder of the
licence fails to comply with a requirement under paragraph (c) in relation
to goods, remove the goods from the former warehouse to a warehouse; and
(g) where goods have been removed in
accordance with paragraph (f), by notice in writing to the last holder of
the licence, require him or her to pay to the Customs in respect of the cost of
the removal such fee as the CEO determines having regard to that cost.
(3) Subject to subsection (4), where a
warehouse licence has not been renewed and goods remain in the former
warehouse, the CEO shall by notice:
(a) published by being displayed on a
public notice board in the Customs House or other office of the Customs nearest
to the former warehouse;
(b) published in the Gazette;
and
(c) published
in a newspaper circulating in the locality in which the warehouse is situated;
inform the owners of goods
in the former warehouse:
(d) that they are required, within a
time specified in the notice or any further time allowed by the CEO, to:
(i) pay to the Collector
duty payable in respect of their goods in the former warehouse; or
(ii) remove their goods in
the former warehouse to another place in accordance with permission obtained
from the Collector; and
(e) that, if they do not comply with
the requirements of the notice, their goods in that former warehouse will be
sold.
(4) Where the CEO is satisfied that all the
goods in a former warehouse the licence in respect of which has not been
renewed are the property of the person who held the licence, the notice
referred to in subsection (3) need not be published as mentioned in that
subsection but shall be:
(a) served, either personally or by
post, on that person; or
(b) served personally on a person who,
at the time of the expiration of the licence, apparently participated in the
management or control of the former warehouse.
(5) Where the owner of goods to which a
notice under subsection (3) applies fails to comply with the requirements
of the notice within the time specified in the notice or any further time
allowed by the CEO, the goods may be sold by a Collector.
(6) If an amount that the last holder of a
licence is required to pay in accordance with a notice under paragraph (2)(e)
or (g) is not paid, that amount may be recovered as a debt due to the
Commonwealth by action in a court of competent jurisdiction.
84
Renewal of warehouse licence
(1) The CEO may, by writing, renew a
warehouse licence on the application, in writing, of the holder of the licence.
(2) Where a warehouse licence is renewed, the
CEO may specify conditions different from those specified in the original
licence.
(3) The CEO may refuse to renew a licence if the
CEO is satisfied that, if the licence were renewed, he or she would be entitled
to cancel the licence.
(4) Subject to this Part, a warehouse licence
that has been renewed continues in force for 12 months but may be further
renewed.
85
Fees for warehouse licences
(1) Such fees as are prescribed are payable
in respect of warehouse licences.
(2) Regulations for the purposes of subsection (1)
may prescribe:
(a) annual fees in respect of
warehouse licences;
(b) fees calculated in accordance with
the duration of warehouse licences;
(c) a fee for each transaction, or
each transaction in a class of transactions, involving the movement of goods
into or out of the warehouse to which a warehouse licence relates; and
(d) a fee calculated by reference to
the volume or value of transactions, or of a specific class of transactions,
relating to goods in the warehouse to which a warehouse licence relates.
(3) Different fees may be prescribed in
relation to warehouse licences subject to different conditions or in relation
to warehouse licences for warehouses of different kinds.
86
Suspension of warehouse licences
(1) The CEO may give notice in accordance
with this section to the holder of a warehouse licence if he or she has
reasonable grounds for believing that:
(a) the physical security of the
warehouse is no longer adequate having regard to the matters referred to in
paragraph 81(1)(e); or
(b) the plant and equipment used in
the warehouse are such that the protection of the revenue in relation to goods
in the warehouse is inadequate; or
(c) where the licence is held by a
natural person—that person is not a fit and proper person to hold a warehouse
licence; or
(d) where the licence is held by a
partnership—a member of the partnership is not a fit and proper person to be a
member of a partnership holding a warehouse licence; or
(e) where the licence is held by a
company—a director, officer or shareholder of the company who participates in the
management or control of the warehouse is not a fit and proper person so to
participate; or
(f) an employee of the holder of the
licence, being an employee who participates in the management or control of the
warehouse, is not a fit and proper person so to participate; or
(fa) where the licence is held by a
company—the company is not a fit and proper company to hold a warehouse
licence; or
(g) a condition to which the licence
is subject has not been complied with; or
(h) a
fee payable in respect of a licence is unpaid and has been unpaid for 28 days
after the day on which it became payable;
or it otherwise appears to him or her to be necessary for
the protection of the revenue or for the purpose of ensuring compliance with
the Customs Acts to give the notice.
(1A) The CEO shall, in considering whether a
person is a fit and proper person for the purposes of paragraph (1)(c),
(d), (e) or (f), have regard to:
(a) any conviction of the person of an
offence against this Act committed:
(i) where the licence has
not been renewed—after the grant of the licence or within 10 years immediately
preceding the making of the application for the licence;
(ii) where the licence has
been renewed on one occasion only—after the renewal of the licence or within 10
years immediately preceding the making of the application for the renewal; or
(iii) where the licence has
been renewed on more than one occasion—after the latest renewal of the licence
or within 10 years immediately preceding the making of the application for the
latest renewal;
(b) any conviction of the person of an
offence under a law of the Commonwealth, of a State or of a Territory that is
punishable by imprisonment for a period of one year or longer, being an offence
committed:
(i) where the licence has not
been renewed—after the grant of the licence or within 10 years immediately
preceding the making of the application for the licence;
(ii) where the licence has
been renewed on one occasion only—after the renewal of the licence or within 10
years immediately preceding the making of the application for the renewal; or
(iii) where the licence has
been renewed on more than one occasion—after the latest renewal of the licence
or within 10 years immediately preceding the making of the application for the
latest renewal; or
(c) whether the person is an
undischarged bankrupt.
(1B) The CEO shall, in considering whether a
company is a fit and proper company for the purposes of paragraph (1)(fa)
have regard, in relation to the company, to:
(a) any conviction of the company of
an offence against this Act that was:
(i) where the licence has
not been renewed—committed after the grant of the licence;
(ii) where the licence has
been renewed on one occasion only—committed after the renewal of the licence;
(iii) where the licence has
been renewed on more than one occasion—committed after the latest renewal of
the licence; or
(iv) committed:
(A) where
the licence has not been renewed—within 10 years immediately preceding the
making of the application for the licence;
(B) where
the licence has been renewed on one occasion only—within 10 years immediately
preceding the making of the application for the renewal of the licence; or
(C) where
the licence has been renewed on more than one occasion—within 10 years immediately
preceding the making of the application for the latest renewal of the licence;
and at a time when a
person who is a director, officer or shareholder of the company was a director,
officer or shareholder of the company;
(b) any conviction of the company of
an offence under a law of the Commonwealth, of a State or of a Territory that
is punishable by a fine of $5,000 or more, being an offence that was:
(i) where the licence has
not been renewed—committed after the grant of the licence;
(ii) where the licence has
been renewed on one occasion only—committed after the renewal of the licence;
(iii) where the licence has
been renewed on more than one occasion—committed after the latest renewal of
the licence; or
(iv) committed:
(A) where
the licence has not been renewed—within 10 years immediately preceding the
making of the application for the licence;
(B) where
the licence has been renewed on one occasion only—within 10 years immediately
preceding the making of the application for the renewal of the licence; and
(C) where
the licence has been renewed on more than one occasion—within 10 years
immediately preceding the making of the application for the latest renewal of
the licence;
and at a time when a
person who is a director, officer or shareholder of the company was a director,
officer or shareholder of the company; or
(c) the matters mentioned in
paragraphs 81(3)(c) and (e).
(2) Notice in accordance with this section to
the holder of a warehouse licence shall be in writing and shall be:
(a) served, either personally or by
post, on the holder of the licence; or
(b) served personally on a person who,
at the time of service, apparently participates in the management or control of
the warehouse.
(3) A notice in accordance with this section
to the holder of a warehouse licence:
(a) shall state that, if the holder of
the licence wishes to prevent the cancellation of the licence, he or she may,
within 7 days after the day on which the notice was served, furnish to the CEO
at an address specified in the notice a written statement showing cause why the
licence should not be cancelled; and
(b) may,
if it appears to the CEO to be necessary for the protection of the revenue or
for ensuring compliance with the Customs Acts to do so, state that the licence is
suspended;
and, if the notice states that the licence is suspended,
that licence is suspended on and from the service of the notice.
(5) Where a warehouse licence is suspended
under this section, the CEO:
(a) may at any time revoke the
suspension; and
(b) if the licence has not been
cancelled within 28 days after the day on which the licence was suspended—shall
revoke the suspension.
(6) Subject to subsection (7), during a
period in which a warehouse licence is suspended under this section, a person shall
not use the warehouse with the intention of warehousing goods.
Penalty: 50 penalty units.
(7) Notwithstanding subsection (6),
during a period in which a warehouse licence is suspended under this section, a
Collector may:
(a) permit goods to be placed in the
warehouse; and
(b) permit a process to be carried out
in the warehouse; and
(c) permit the removal of goods from
the warehouse, including the removal of goods to another warehouse; and
(d) by notice in a prescribed manner
to the owner of goods in the warehouse, require the owner to remove his or her
goods to another warehouse approved by the Collector; and
(e) take such control of the warehouse
or all or any goods in the warehouse as may be necessary for the protection of
the revenue or for ensuring compliance with the Customs Acts; and
(f) by notice in writing to the
holder of the licence, require him or her to pay to the Customs in respect of
the services of officers required as the result of the suspension, including
services relating to the enforcement of the suspension, the supervision of
activities in relation to the warehouse permitted by a Collector, the
stocktaking of goods in the warehouse or the reconciliation of records relating
to such goods, such fee as the CEO determines, having regard to the cost of the
services.
(8) If an amount that the holder of a licence
is required to pay in accordance with a notice under paragraph (7)(f) is
not paid, that amount may be recovered as a debt due to the Commonwealth by
action in a court of competent jurisdiction.
87
Cancellation of warehouse licences
(1) The CEO may cancel a warehouse licence
if:
(a) he or she is satisfied in relation
to the licence as to any of the matters mentioned in paragraphs (a) to (h)
(inclusive) of subsection 86(1); or
(b) he or she is satisfied on any
other grounds that cancellation of the licence is necessary for the protection
of the revenue or for the purpose of ensuring compliance with the Customs Acts.
(2) The CEO shall cancel a warehouse licence
under subsection (1) by notice in writing:
(a) served, either personally or by
post, on the holder of the licence; or
(b) served personally on a person who,
at the time of service, apparently participates in the management or control of
the warehouse.
(4) Subject to subsection (5), where the
CEO cancels a warehouse licence, he or she shall by notice:
(a) published by being displayed on a
public Notice Board in the Customs House or other office of the Customs nearest
to the warehouse; and
(b) published in the Gazette;
and
(c) published
in a newspaper circulating in the locality in which the warehouse is situated;
inform the owners of goods in the place that was the
warehouse:
(d) that they are required, within a
time specified in the notice or any further time allowed by the CEO, to:
(i) pay to the Collector
duty payable in respect of their goods in the warehouse; or
(ii) remove their goods in
the warehouse to another place in accordance with permission obtained from the
Collector; and
(e) that, if they do not comply with
the requirements of the notice, their goods in that place will be sold.
(5) Where the CEO who has cancelled a
warehouse licence under this section is satisfied that all the goods in the
place that was the warehouse are the property of the person who held the
licence, the notice referred to in subsection (4) need not be published as
mentioned in that subsection but shall be:
(a) served, either personally or by
post, on that person; or
(b) served personally on a person who,
at the time of the cancellation of the licence, apparently participated in the
management or control of the place that was the warehouse.
(6) Where the owner of goods to which a
notice under subsection (4) applies fails to comply with the requirements
of the notice within the time specified in the notice or any further time
allowed by the CEO, the goods may be sold by a Collector.
(7) Where a warehouse licence is cancelled
under this section, the holder of the licence shall, if requested by the CEO to
do so, surrender the licence to the CEO.
Penalty: 1 penalty unit.
(8) Subsection (7) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
88
Service of notices
For the purpose of the application of
section 29 of the Acts Interpretation Act 1901 to the service by
post of a notice under this Part on a person who holds or held a warehouse
licence, such a notice posted as a letter addressed to the person at the
address of the place that is or was the warehouse shall be deemed to be properly
addressed.
89
Death of licence holder
If the holder of a warehouse licence,
being a natural person, dies, the licence shall be deemed to be transferred to
his or her legal personal representative.
90
Obligations of holders of warehouse licences
(1) The holder
of a warehouse licence shall:
(a) stack and arrange goods in the
warehouse so that officers have reasonable access to, and are able to examine,
the goods;
(b) provide officers with adequate
space and facilities for the examination of goods in the warehouse and with
devices for accurately measuring and weighing such goods;
(c) if required by a Collector,
provide adequate office space and furniture and a telephone service, for the
official use of officers performing duties at the warehouse; and
(d) provide sufficient labour and
materials for use by a Collector in dealing with goods in the warehouse for the
purposes of this Act.
Penalty: 10 penalty units.
(1A) Subsection (1) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(2) A requirement imposed on the holder of a
warehouse licence under paragraph (1)(c) shall be set out in a notice in
writing served, either personally or by post, on the holder of the licence.
91
Access to warehouses
A Collector may, at any time, gain
access to and enter, if necessary by force, any warehouse and examine any goods
in the warehouse.
92
Repacking in warehouse
A Collector may, in accordance with the
regulations, permit the owner of warehoused goods to sort, bottle, pack or
repack those goods.
93
Regauging etc. of goods
Where:
(a) any warehoused goods are examined
by an officer or by the owner of the goods with the approval of an officer; and
(b) the
examination shows that there has been a decrease in the volume or weight of the
goods since they were first entered;
the volume or weight of the goods shall, for the purposes
of this Act or any other law of the Commonwealth, be taken to be:
(c) except where paragraph (d)
applies—the volume or weight found on that examination; or
(d) where,
in the opinion of a Collector, that decrease is excessive—the volume or weight
shown in the original entry reduced to an extent that the Collector considers
appropriate;
and duty in respect of the goods is payable accordingly.
94
Goods not worth duty may be destroyed
(1) Where a Collector is satisfied that the
value of any warehoused goods is less than the amount of duty payable in
respect of the goods, he or she may, if requested by the owner of the goods to
do so, destroy the goods and remit the duty.
(2) The destruction of warehoused goods under
subsection (1) does not affect any liability of the owner of the goods to
pay the holder of a warehouse licence any rent or charges payable in respect of
the goods.
95 Revaluation
Where a Collector is satisfied that
warehoused goods that have been valued for the purposes of this Act in
accordance with Division 2 of Part VIII have deteriorated in value as
the result of accidental damage, the Collector may, if requested by the owner
of the goods to do so, cancel that valuation and, for the purposes of this Act
and in accordance with Division 2 of Part VIII revalue those goods as
at the time of the revaluation.
96
Arrears of warehouse charges
(1) Where any
rent or charges in respect of warehoused goods has or have been in arrears for:
(a) except where paragraph (b)
applies—6 months; or
(b) where
the goods are the unclaimed baggage of a passenger or member of the crew of a
ship or aircraft—30 days;
a Collector may sell the goods.
(2) In this section, member of the crew
includes:
(a) in relation to a ship—the master,
a mate or an engineer of the ship; and
(b) in relation to an aircraft—the
pilot of the aircraft.
96A
Outwards duty free shops
(1) In this section:
international flight means a flight, whether
direct or indirect, by an aircraft between a place in Australia from which the aircraft takes off and a place outside Australia at which the
aircraft lands or is intended to land.
international voyage means a voyage, whether
direct or indirect, by a ship between a place in Australia and a place outside Australia.
outwards duty free shop means a warehouse in
respect of which the relevant warehouse licence authorises the sale in the
warehouse of goods to relevant travellers.
proprietor, in relation to an outwards duty
free shop, means the holder of the warehouse licence that relates to the
outwards duty free shop.
relevant traveller means a person:
(a) who intends to make an
international flight, whether as a passenger on, or as a pilot or member of the
crew of, an aircraft; or
(b) who intends to make an
international voyage, whether as a passenger on, or as the master or a member
of the crew of, a ship.
(2) Subject to the regulations (if any), a
Collector may give permission, in accordance with subsection (3), for
goods that are specified in the permission and are sold to a relevant traveller
in an outwards duty free shop that is specified in the permission to be:
(a) delivered to the relevant
traveller personally for export by him or her when making the international
flight or voyage in relation to which he or she is a relevant traveller; and
(b) exported
by the relevant traveller when making that flight or voyage without the goods
having been entered for export;
and, subject to subsection (13), the permission is
authority for such goods to be so delivered and so exported.
(3) Permission under subsection (2) is
given in accordance with this subsection if it is in writing and is delivered
to the proprietor of the outwards duty free shop to which the permission
relates.
(4) Permission under subsection (2) may
relate to particular goods, all goods, goods included in a specified class or
classes of goods or goods other than goods included in a specified class or
classes of goods.
(5) Without limiting the matters that may be
prescribed in regulations referred to in subsection (2), those
regulations:
(a) may prescribe circumstances in
which permission under that subsection may be given;
(b) may prescribe matters to be taken
into account by a Collector when deciding whether to give permission under that
subsection; and
(c) may prescribe conditions to which
a permission under that subsection is to be subject.
(6) A Collector may, when giving permission
under subsection (2) or at any time while a permission under that
subsection is in force, impose conditions to which the permission is to be
subject, being conditions that, in the opinion of the Collector, are necessary
for the protection of the revenue or for the purpose of ensuring compliance
with the Customs Acts and may, at any time, revoke, suspend or vary, or cancel
a suspension of, a condition so imposed.
(7) Without limiting the generality of paragraph (5)(c)
or subsection (6), a condition referred to in that paragraph or that
subsection to which a permission is to be subject may be:
(a) a condition to be complied with by
the proprietor of the outwards duty free shop to which the permission relates
or by relevant travellers to whom goods to which the permission relates are
sold; or
(b) a condition that the permission
only applies to sales to relevant travellers who comply with a prescribed
requirement or requirements, which may be, or include, a requirement that
relevant travellers produce to the proprietor of the outwards duty free shop to
which the permission relates or to a servant or agent of that proprietor a
ticket or other document, being a document approved by a Collector for the
purposes of this paragraph, showing that the relevant traveller is entitled to
make the international flight or voyage in relation to which he or she is a
relevant traveller; or
(c) a condition that the proprietor of
the outwards duty free shop to which the permission relates will keep records
specified in the regulations and will notify a Collector of all sales made by
him or her to which the permission applies.
(8) A condition imposed in respect of a
permission under subsection (6) or a revocation, suspension or variation,
or a cancellation of a suspension, of such a condition takes effect when
notice, in writing, of the condition or of the revocation, suspension or
variation, or of the cancellation of the suspension, is served on the
proprietor of the outwards duty free shop to which it relates, or at such later
time (if any) as is specified in the notice, but does not have effect in
relation to any goods delivered to a relevant traveller before the notice was
served.
(9) A condition imposed in respect of a
permission under paragraph (5)(c) or subsection (6) or a revocation,
suspension or variation, or a cancellation of a suspension, of a condition
under subsection (6) may relate to all goods to which the permission
relates or to particular goods to which the permission relates and may apply
either generally or in particular circumstances.
(10) A permission under subsection (2) is
subject to:
(a) the condition that the proprietor
of the outwards duty free shop to which the permission relates will ensure that
relevant travellers to whom goods are delivered in accordance with the permission
are aware of any conditions of the permission with which they are required to
comply; and
(b) the condition that that proprietor
will provide a Collector with proof, in a prescribed way and within a
prescribed time, of the export of goods delivered to a relevant traveller in
accordance with the permission.
(11) If a person who is required to comply with
a condition imposed in respect of a permission under subsection (2) fails
to comply with the condition, he or she is guilty of an offence against this
Act punishable upon conviction by a penalty not exceeding 50 penalty units.
(11A) Subsection (11) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(12) Where the proprietor of an outwards duty
free shop to which a permission under subsection (2) relates does not
produce the proof required by paragraph (10)(b) that goods delivered by
him or her to a relevant traveller in accordance with the permission have been
exported by that traveller, the goods shall be deemed to have been entered, and
delivered, for home consumption by the proprietor, as owner of the goods, on
the day on which the goods were delivered to that traveller.
(13) A Collector may, in accordance with the
regulations, revoke a permission given under subsection (2) in relation to
the sale of goods occurring after the revocation.
(14) Where a Collector makes a decision under subsection (2)
refusing to give permission to the proprietor of an outwards duty free shop or
under subsection (13) revoking a permission given under subsection (2),
he or she shall cause to be served, either personally or by post, on the
proprietor of the shop, a notice in writing setting out the Collector’s
findings on material questions of fact, referring to the evidence or other
material on which those findings were based and giving the reasons for the
decision.
96B
Inwards duty free shops
(1) In this section:
international flight means a flight, whether
direct or indirect, by an aircraft between a place outside Australia from which the aircraft took off and a place in Australia at which the aircraft
landed.
inwards duty free shop means a warehouse in
respect of which the relevant warehouse licence authorises the sale in the
warehouse of airport shop goods to relevant travellers.
proprietor, in relation to an inwards duty
free shop, means the holder of the warehouse licence that relates to the
inwards duty free shop.
relevant traveller means a person who:
(a) has arrived in Australia on an international flight, whether as a passenger on, or as the pilot or a
member of the crew of, an aircraft; and
(b) has not been questioned, for the
purposes of this Act, by an officer of Customs in respect of goods carried on
that flight.
(2) A warehouse licence is not to authorise the
sale in the warehouse of airport shop goods to relevant travellers unless the
warehouse:
(a) is situated at an airport; and
(b) is so located that passengers on
international flights who arrive at that airport would normally have access to
the warehouse before being questioned for the purposes of this Act by officers
of Customs.
(3) Subject to the regulations (if any), a
Collector may give permission, in accordance with subsection (4), for
airport shop goods that are specified in the permission and are sold to a
relevant traveller in an inwards duty free shop that is specified in the
permission to be:
(a) delivered to the relevant
traveller; and
(b) taken by the relevant traveller
for reporting to an officer of Customs doing duty in relation to clearance
through Customs of the personal baggage of the relevant traveller.
(4) Permission under subsection (3) is
given in accordance with this subsection if it is in writing and is delivered
to the proprietor of the inwards duty free shop to which the permission
relates.
(5) Without limiting the matters that may be
prescribed in regulations referred to in subsection (3), those
regulations:
(a) may prescribe circumstances in
which permission under that subsection may be given;
(b) may prescribe matters to be taken
into account by a Collector when deciding whether to give permission under that
subsection; and
(c) may prescribe conditions to which
a permission under that subsection is to be subject.
(6) A Collector may, when giving permission
under subsection (3) or at any time while a permission under that
subsection is in force, impose conditions to which the permission is to be
subject, being conditions that, in the opinion of the Collector, are necessary
for the protection of the revenue or for the purpose of ensuring compliance
with the Customs Acts, and may, at any time, revoke, suspend or vary, or cancel
a suspension of, a condition so imposed.
(7) Without limiting the generality of paragraph (5)(c)
or subsection (6), a condition referred to in that paragraph or that
subsection to which a permission is to be subject may be:
(a) a condition to be complied with by
the proprietor of the inwards duty free shop to which the permission relates or
by relevant travellers to whom goods to which the permission relates are sold;
or
(b) a condition that the proprietor of
the inwards duty free shop to which the permission relates will keep records
specified in the regulations.
(8) A condition imposed in respect of a
permission under subsection (6) or a revocation, suspension or variation,
or a cancellation of a suspension, of such a condition takes effect when notice
in writing of the condition or of the revocation, suspension or variation, or
of the cancellation of the suspension, is served on the proprietor of the
inwards duty free shop to which it relates, or at such later time (if any) as
is specified in the notice, but does not have effect in relation to any goods
delivered to a relevant traveller before the notice was served.
(9) A condition imposed in respect of a
permission under paragraph (5)(c) or subsection (6) or a revocation,
suspension or variation, or a cancellation of a suspension, of a condition
under subsection (6) may relate to all goods to which the permission
relates or to particular goods to which the permission relates and may apply
either generally or in particular circumstances.
(10) A permission under subsection (3) is
subject to the condition that the proprietor of the inwards duty free shop to
which the permission relates will ensure that relevant travellers to whom goods
are delivered in accordance with the permission are aware of any conditions of
the permission with which they are required to comply.
(11) If a person who is required to comply with
a condition imposed in respect of a permission under subsection (3) fails
to comply with the condition, the person is guilty of an offence against this
Act punishable upon conviction by a fine not exceeding 50 penalty units.
(11A) Subsection (11) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(12) A Collector may, in accordance with the
regulations, revoke a permission given under subsection (3) in relation to
the sale of goods occurring after the revocation.
(13) Where a Collector makes a decision under subsection (3)
refusing to give permission to the proprietor of an inwards duty free shop or a
decision under subsection (12) revoking a permission given under subsection (3),
the Collector shall cause to be served, either personally or by post, on the
proprietor of the shop, a notice in writing setting out the Collector’s
findings on material questions of fact, referring to the evidence or other
material on which those findings were based and giving the reasons for the
decision.
97
Goods for public exhibition
(1) Subject to subsection (3), a
Collector may, by writing signed by him or her, grant to the owner of
warehoused goods permission to take those goods out of the warehouse for the
purpose of public exhibition, testing or a similar purpose without entering the
goods for home consumption.
(2) Permission under subsection (1)
shall specify the period during which the owner of the relevant goods may keep
the goods outside the warehouse.
(3) Permission under subsection (1) for
the taking of warehoused goods out of a warehouse shall not be granted unless
security has been given to the satisfaction of the Collector for the payment,
in the event of the goods not being returned to the warehouse before the
expiration of the period specified in the permission, of the duty that would
have been payable if the goods had been entered for home consumption on the day
on which they were taken out of the warehouse.
98
Goods blended or packaged in warehouse
Subject to the regulations, where a
warehouse licence authorizes blending or packaging in the warehouse, goods may
be blended or packaged in the warehouse in accordance with, and subject to any
relevant conditions of, the licence, and goods so blended or packaged may,
subject to the payment of any duty in respect of the goods the payment of which
is required by the regulations, be delivered for home consumption.
99
Entry of warehoused goods
(1) Warehoused goods may be entered:
(a) for home consumption; or
(b) for export.
(2) Subject to sections 69 and 70, the
holder of a warehouse licence must not permit warehoused goods to be delivered
for home consumption unless:
(a) they have been entered for home
consumption; and
(b) an authority to deal with them is
in force.
Penalty: 60 penalty units.
(3) Subject to section 96A, the holder
of a warehouse licence must not permit goods to be taken from the warehouse for
export unless:
(a) they have been entered for export;
and
(b) an authority to deal with them is
in force; and
(c) if the goods are, or are included
in a class of goods that are, prescribed by the regulations—the holder of the
relevant warehouse licence has ascertained, from information made available by
Customs, the matters mentioned in paragraphs (a) and (b).
Penalty: 60 penalty units.
(4) An offence for a contravention of subsection (3)
is an offence of strict liability.
100
Constructive warehousing
(1) Where goods have been entered for
warehousing, they may, without being warehoused in accordance with the entry,
be further entered in accordance with section 99 and be dealt with in
accordance with that further entry as if they had been so warehoused.
(2) Where a person makes a further entry in
accordance with subsection (1) in respect of goods that have been entered
for warehousing, he or she shall:
(a) at the time of lodging the further
entry, give the Collector particulars of the entry for warehousing; and
(b) as
soon as practicable, give particulars of the further entry to the holder of the
warehouse licence relating to the warehouse in which the goods were intended to
be warehoused in accordance with the entry for warehousing.
Penalty: 10 penalty units.
(3) Subsection (2) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
101
Delivery of warehousing authority
(1) Where the owner of goods receives written
authority for warehousing goods in pursuance of an entry for warehousing or
written permission under this Act to warehouse the goods, he or she shall, as
soon as practicable, before the goods are delivered to the warehouse nominated
in the authority or permission, deliver the authority or permission to the
holder of the warehouse licence by leaving it at the warehouse with a person
apparently participating in the management or control of the warehouse.
Penalty: 10 penalty units.
(2) Subsection (1) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
102
Holder of licence to inform Collector of certain matters
(1) Where goods are delivered to a warehouse
but documents relating to those goods required to be delivered to the holder of
the warehouse licence in accordance with this Act are not so delivered or such
documents are so delivered but do not contain sufficient information to enable
the holder to make a record relating to the goods that he or she is required to
make under this Act, the holder shall, as soon as practicable, inform a
Collector of the non‑delivery or inadequacy of those documents, as the case may
be.
Penalty: 10 penalty units.
(2) Where documents relating to goods to be
warehoused in a warehouse are delivered to the holder of the warehouse licence
in accordance with this Act but those goods are not received at the warehouse
within 7 days after the delivery of the documents, the holder shall, as soon as
practicable, inform a Collector of the non‑delivery of those goods.
Penalty: 10 penalty units.
(3) Subsections (1) and (2) are offences
of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
102A
Notices to Customs by holder of warehouse licence
(1) This section applies only to goods that
are, or are included in a class of goods that are, prescribed by the
regulations.
(2) If goods are to be released from a
warehouse for export, the holder of the warehouse licence must give notice to
Customs electronically, within the period that begins at the prescribed time
and ends at the prescribed time, stating that the goods are to be released and
giving such particulars of the release of the goods as are required by an
approved statement.
(3) If goods that have previously been
released from a warehouse for export are returned to the warehouse, the holder
of the warehouse licence must give notice to Customs electronically, within the
period prescribed by the regulations, stating that the goods have been returned
and giving such particulars of the return of the goods as are required by an
approved statement.
(4) A person who contravenes subsection (2)
or (3) commits an offence punishable, on conviction, by a penalty not exceeding
60 penalty units.
(5) An offence against subsection (4) is
an offence of strict liability.
Part VA—Special provisions relating to beverages
103
Interpretation
In this Part:
bulk container means a container that has the
capacity to have packaged in it more than 2 litres of customable beverage.
container means any article capable of
holding liquids.
customable beverage means like customable
goods (within the meaning of section 69):
(a) that are described in Chapter 22
of Schedule 3 to the Customs Tariff; and
(b) that are prescribed.
104
Customable beverage imported in bulk must be entered for warehousing or
transhipment
All customable beverage imported into Australia in bulk containers must initially either be entered for warehousing under
paragraph 68(2)(b) or for transhipment under paragraph 68(2)(c).
105
Certain customable beverage not to be entered for home consumption in bulk
containers without CEO’s approval
(1) Customable beverage that has been
imported into Australia in bulk containers and entered for warehousing must not
be entered for home consumption unless:
(a) the customable beverage has been
repackaged in containers other than bulk containers; or
(b) the CEO, by notice in writing,
permits the customable beverage to be entered for home consumption packaged in
bulk containers.
(2) The CEO must not permit customable
beverage that has been imported into Australia in bulk containers and initially
entered for warehousing to be subsequently entered for home consumption
purposes in bulk containers unless:
(a) the containers have a capacity of
not more than 20 litres or such other volume as the CEO approves in writing;
and
(b) the CEO is satisfied that the
customable beverage will not be repackaged in any other container for the
purposes of retail sale.
105A
Delivery from Customs control of brandy, whisky or rum
(1) Brandy, whisky or rum imported into Australia must not be delivered from the control of the Customs unless a Collector is
satisfied that it has been matured by storage in wood for at least 2 years.
(2) In this section:
brandy means a spirit distilled from grape
wine in such a manner that the spirit possesses the taste, aroma and other
characteristics generally attributed to brandy.
grape wine has the same meaning as in
Subdivision 31‑A of the A New Tax System (Wine Equalisation Tax) Act
1999.
rum means a spirit obtained by the
distillation of a fermented liquor derived from the products of sugar cane,
being distillation carried out in such a manner that the spirit possesses the
taste, aroma and other characteristics generally attributed to rum.
whisky means a spirit obtained by the
distillation of a fermented liquor of a mash of cereal grain in such a manner
that the spirit possesses the taste, aroma and other characteristics generally
attributed to whisky.
Part VAA—Special provisions relating to excise‑equivalent goods
105B
Extinguishment of duty on excise‑equivalent goods
(1) The liability to pay import duty on
excise‑equivalent goods is extinguished if:
(a) the goods are entered for
warehousing; and
(b) excisable goods are manufactured
and the excise‑equivalent goods are used in that manufacture; and
(c) the excise‑equivalent goods are
subject to the control of the Customs at the time they are used in that
manufacture; and
(d) that manufacture occurs at a place
that is both:
(i) a warehouse described
in a warehouse licence granted under Part V of this Act; and
(ii) premises specified in
a manufacturer licence granted under the Excise Act 1901.
(2) The liability is extinguished at the time
the excisable goods are manufactured.
Ad valorem component
(3) Subsection (1) does not apply to an
amount of duty that is calculated as a percentage of the value of the excise‑equivalent
goods because of section 9 of the Customs Tariff Act 1995.
Note: Subsection 105C(2) deals with the payment of
the amount.
105C
Returns
(1) This section applies if:
(a) excisable goods are manufactured
within a manufacture period; and
(b) excise‑equivalent goods are used
in that manufacture (whether or not in that period); and
(c) the excise‑equivalent goods are
subject to the control of the Customs at the time they are used in that
manufacture; and
(d) that manufacture occurs at a place
that is both:
(i) a warehouse described
in a warehouse licence granted under Part V of this Act; and
(ii) premises specified in
a manufacturer licence granted under the Excise Act 1901.
(2) The legal owner of the excise‑equivalent
goods at the time they are used in that manufacture must:
(a) give Customs a return within 8
days after the end of the manufacture period, providing particulars in
accordance with section 71K or 71L in relation to the excise‑equivalent
goods; and
(b) at the time when each return is
given to Customs, pay any amount of duty referred to in subsection 105B(3) that
is owing at the rate applicable at the time the excisable goods are
manufactured.
Penalty: 50 penalty units.
(3) Subsection (2) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
(4) In this section:
manufacture period means:
(a) a 7‑day period beginning on a
Monday; or
(b) if the regulations prescribe a
different period for the purposes of this definition—that period.
(5) If the regulations do prescribe such a
different period, the regulations may also prescribe matters of a transitional
nature relating to the change to the different period.
105D
GST matters
(1) This section applies if:
(a) excise‑equivalent goods are
entered for warehousing; and
(b) excisable goods are manufactured
and the excise‑equivalent goods are used in that manufacture; and
(c) the excise‑equivalent goods are
subject to the control of the Customs at the time they are used in that
manufacture.
Taxable importation
(2) For the purposes of the GST Act, the
importer of the excise‑equivalent goods is taken to have entered them for home
consumption at the time the excisable goods are manufactured.
Note: Section 13‑5 of the GST Act deals with
taxable importations of goods entered for home consumption.
Deferred payment of GST
(3) If the importer of the excise‑equivalent
goods is an approved entity at the time the excisable goods are manufactured,
then for the purposes of the GST Act and the GST regulations the importer is taken
to have entered the excise‑equivalent goods for home consumption by computer at
that time.
Note: Regulations made for the purposes of paragraph
33‑15(1)(b) of the GST Act deal with deferred payment of GST on taxable
importations and require goods to have been entered for home consumption by
computer.
Definitions
(4) In this section:
approved entity means an entity approved
under regulations made for the purposes of paragraph 33‑15(1)(b) of the GST
Act.
GST regulations means the A New Tax System
(Goods and Services Tax) Regulations 1999.
105E
Use of excise‑equivalent goods in the manufacture of excisable goods to occur
at a dual‑licensed place
A person must not use excise‑equivalent
goods subject to the control of the Customs in the manufacture of excisable
goods unless that manufacture occurs at a place that is both:
(a) a warehouse described in a
warehouse licence granted under Part V of this Act; and
(b) premises specified in a
manufacturer licence granted under the Excise Act 1901.
Part VB—Information about persons departing Australia
Division 1—Reports on departing persons
Subdivision A—Reports on departing persons
106A
Ships and aircraft to which this Subdivision applies
(1) This Subdivision applies to a ship or
aircraft of a kind prescribed by regulations made for the purposes of this
section, if the ship or aircraft is due to depart:
(a) from a place in Australia at the beginning of a journey to a place outside Australia (whether or not the
journey will conclude outside Australia); or
(b) from a place in Australia in the course of such a journey.
(2) Regulations made for the purposes of this
section may specify kinds of ships or aircraft by reference to particular
matters, including any or all of the following matters:
(a) the type, size or capacity of the
ship or aircraft;
(b) the kind of operation or service
in which the aircraft or ship will be engaged on journeys from Australia;
(c) other circumstances relating to
the ship or aircraft or its use, or relating to the operator of the ship or
aircraft.
106B
Report 48 hours before ship or aircraft is due to depart
(1) At least 48 hours (but no more than 72
hours) before the time the ship or aircraft is due to depart from the place,
the operator of the ship or aircraft must report to Customs, in accordance with
Subdivision C, on the persons:
(a) who, at the time the report is
made, are expected to be on board the ship or aircraft when it departs from the
place; and
(b) who are not identified (or to be
identified) in a report made (or to be made) in relation to the ship’s or
aircraft’s earlier departure from another place in the course of the same
journey.
(2) The operator of the ship or aircraft
commits an offence if the operator intentionally contravenes subsection (1).
Penalty: 120 penalty units.
(3) The operator of the ship or aircraft
commits an offence if the operator contravenes subsection (1).
Penalty: 60 penalty units.
(4) Strict liability applies to an offence
against subsection (3).
Note: For strict liability, see
section 6.1 of the Criminal Code.
106C
Report 4 hours before ship or aircraft is due to depart
(1) At least 4 hours (but no more than 10
hours) before the time the ship or aircraft is due to depart from the place,
the operator of the ship or aircraft must report to Customs, in accordance with
Subdivision C:
(a) on the persons:
(i) who, at the time the
report is made, are expected to be on board the ship or aircraft when it
departs from the place; and
(ii) who are not identified
in a report made by the operator in relation to the ship’s or aircraft’s
departure from the place under section 106B; and
(iii) who are not identified
(or to be identified) in a report made (or to be made) in relation to the
ship’s or aircraft’s earlier departure from another place in the course of the
same journey; or
(b) if there are no persons covered by
paragraph (a)—that there are no persons to report.
(2) The operator of the ship or aircraft
commits an offence if the operator intentionally contravenes subsection (1).
Penalty: 120 penalty units.
(3) The operator of the ship or aircraft
commits an offence if the operator contravenes subsection (1).
Penalty: 60 penalty units.
(4) Strict
liability applies to an offence against subsection (3).
Note: For strict liability, see
section 6.1 of the Criminal Code.
106D
Report just before ship or aircraft departs
(1) Before the ship or aircraft departs from
the place, the operator must report to Customs, in accordance with Subdivision
C:
(a) on the persons:
(i) who will be on board
the ship or aircraft when it departs from the place; and
(ii) who are not identified
in a report made by the operator in relation to the ship’s or aircraft’s
departure from the place under section 106B or 106C; and
(iii) who are not identified
in a report made in relation to the ship’s or aircraft’s earlier departure from
another place in the course of the same journey; or
(b) if there are no persons covered by
paragraph (a)—that there are no persons to report.
(2) The operator of the ship or aircraft
commits an offence if the operator intentionally contravenes subsection (1).
Penalty: 120 penalty units.
(3) The operator of the ship or aircraft
commits an offence if the operator contravenes subsection (1).
Penalty: 60 penalty units.
(4) Strict liability applies to an offence
against subsection (3).
Note: For strict liability, see
section 6.1 of the Criminal Code.
Subdivision B—Reports on matters in approved statement
106E
Ships and aircraft to which this Subdivision applies
(1) This Subdivision applies to a ship or
aircraft of a kind prescribed by regulations made for the purposes of this
section, if the ship or aircraft is due to depart:
(a) from a place in Australia at the beginning of a journey to a place outside Australia (whether or not the
journey will conclude outside Australia); or
(b) from a place in Australia in the course of such a journey.
(2) Regulations made for the purposes of this
section may specify kinds of ships or aircraft by reference to particular
matters, including any or all of the following matters:
(a) the type, size or capacity of the
ship or aircraft;
(b) the kind of operation or service
in which the aircraft or ship will be engaged on journeys from Australia;
(c) other circumstances relating to
the ship or aircraft or its use, or relating to the operator of the ship or
aircraft.
106F
Reports on matters in approved statement
The operator of the ship or aircraft
must report to Customs, in accordance with Subdivision C:
(a) not later than the prescribed
period or periods before the ship’s or aircraft’s departure from a place; or
(b) at the time of a prescribed event
or events; or
(c) at the prescribed time or times.
Subdivision C—How reports under this Division are to be made
106G
Reports to be made electronically
(1) A report under this Division must:
(a) be made:
(i) electronically, using
a system (if any) approved by the CEO in writing for the purposes of this
subparagraph; or
(ii) using a format or
method approved by the CEO in writing for the purposes of this subparagraph;
and
(b) contain the information set out in
an approved statement.
(2) An operator who reports electronically
under subparagraph (1)(a)(i) is taken to have reported to Customs when
Customs sends an acknowledgment of the report to the person identified in the
report as having made it.
(3) An operator who reports using a format or
method approved under subparagraph (1)(a)(ii) is taken to have reported to
Customs when the report is given to an officer doing duty in relation to ships
and aircraft due to depart.
(4) The CEO may approve different systems,
formats or methods under subparagraphs (1)(a)(i) and (ii) to be used for
different kinds of operators or in different circumstances.
(5) An approval under subparagraph (1)(a)(i)
or (ii) is a disallowable instrument for the purposes of section 46A of
the Acts Interpretation Act 1901.
106H
Reports to be made by document if approved electronic system or other approved
format or method unavailable
(1) Despite section 106G, if, when an
operator is required to report under this Division:
(a) a system approved under
subparagraph 106G(1)(a)(i) is not working; and
(b) the operator is not able to use a
format or method approved under subparagraph 106G(1)(a)(ii);
the report must:
(c) be made by document in writing;
and
(d) be in an approved form; and
(e) contain the information required
by the approved form; and
(f) be signed in the manner specified
by the approved form; and
(g) be communicated to Customs by
sending or giving it to an officer doing duty in relation to the reporting of
ships or aircraft due to depart.
(2) A documentary report is taken to have
been made when it is sent or given to Customs in the prescribed manner.
106I
CEO may approve different statements or forms
(1) The CEO may approve, under section 4A,
different statements for the purposes of this Division, for reports:
(a) made by different kinds of
operators; or
(b) relating to different kinds of
ships or aircraft; or
(c) made in different circumstances;
or
(d) made in relation to different
classes of persons who are expected to be, or who will be, on board a ship or
aircraft.
(2) The CEO
may approve, under section 4A, different forms for the purposes of this
Division, for reports:
(a) made by different kinds of
operators; or
(b) relating to different kinds of
ships or aircraft; or
(c) made in different circumstances;
or
(d) made in relation to different
classes of persons who are expected to be, or who will be, on board a ship or
aircraft.
Division 2—Questions about departing persons
106J
Officers may question operators about departing persons
If a ship or aircraft is due to depart
or is departing Australia, or has already departed Australia, an officer may
require the operator of the ship or aircraft:
(a) to answer questions about the
persons who are expected to be on board, or who are or were on board, the ship
or aircraft; or
(b) to produce documents relating to
those persons.
Note: Failing to answer a question or produce a
document when required to do so by an officer may be an offence (see sections 243SA
and 243SB).
Part VI—The exportation of goods
Division 1—Prohibited exports
112
Prohibited exports
(1) The Governor‑General may, by regulation,
prohibit the exportation of goods from Australia.
(2) The power conferred by subsection (1)
may be exercised:
(a) by prohibiting the exportation of
goods absolutely;
(aa) by prohibiting the exportation of
goods in specified circumstances;
(b) by prohibiting the exportation of
goods to a specified place; or
(c) by prohibiting the exportation of
goods unless specified conditions or restrictions are complied with.
(2A) Without limiting the generality of paragraph (2)(c),
the regulations:
(aa) may identify the goods to which
the regulations relate by reference to their inclusion:
(i) in a list or other
document formulated by a Minister and published in the Gazette or
otherwise; or
(ii) in that list or other
document as amended by the Minister and in force from time to time; and
(a) may provide that the exportation
of the goods is prohibited unless a licence, permission, consent or approval to
export the goods or a class of goods in which the goods are included has been
granted as prescribed by the regulations made under this Act or the Therapeutic
Goods Act 1989; and
(b) in relation to licences or
permissions granted as prescribed by regulations made under this Act—may make
provision for and in relation to:
(i) the assignment of
licences or permissions so granted or of licences or permissions included in a
prescribed class of licences or permissions so granted;
(ii) the granting of a
licence or permission to export goods subject to compliance with conditions or
requirements, either before or after the exportation of the goods, by the
holder of the licence or permission at the time the goods are exported;
(iii) the surrender of a
licence or permission to export goods and, in particular, without limiting the
generality of the foregoing, the surrender of a licence or permission to export
goods in exchange for the granting to the holder of the surrendered licence or
permission of another licence or permission or other licences or permissions to
export goods; and
(iv) the revocation of a
licence or permission that is granted subject to a condition or requirement to
be complied with by a person for failure by the person to comply with the
condition or requirement, whether or not the person is charged with an offence
against subsection (2B) in respect of the failure.
(2AA) Where a Minister makes an amendment to a list
or other document:
(a) that is formulated and published
by the Minister; and
(b) to
which reference is made in regulations made for the purposes of paragraph (2)(c);
the amendment is a disallowable instrument within the
meaning of section 46A of the Acts Interpretation Act 1901.
(2B) A person is guilty of an offence if:
(a) a licence or permission has been
granted, on or after 10 November 1977, under the regulations; and
(b) the licence or permission relates
to goods that are not narcotic goods; and
(c) the licence or permission is
subject to a condition or requirement to be complied with by the person; and
(d) the person engages in conduct; and
(e) the person’s conduct contravenes
the condition or requirement.
Penalty: 100 penalty units.
(2BA) Subsection (2B) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(2BB) Absolute liability applies to paragraph (2B)(a),
despite subsection (2BA).
Note: For absolute liability, see
section 6.2 of the Criminal Code.
(2BC) A person is guilty of an offence if:
(a) a licence or permission has been
granted, on or after 10 November 1977, under the regulations; and
(b) the licence or permission relates
to goods that are narcotic goods; and
(c) the licence or permission is subject
to a condition or requirement to be complied with by the person; and
(d) the person engages in conduct; and
(e) the person’s conduct contravenes
the condition or requirement.
Penalty: Imprisonment for 2 years or 20 penalty units, or
both.
(2BE) Absolute liability applies to paragraph (2BC)(a).
Note: For absolute liability, see
section 6.2 of the Criminal Code.
(2AB) It is a
condition of any licence or permission to export goods, being a licence or
permission granted under paragraph (2)(c) by the Defence Minister or an
authorised person within the meaning of subregulation 13B(1) or 13E(1) of the
Customs (Prohibited Exports) Regulations after the commencement of this
subsection, that the Defence Minister may, at any time, by notice:
(a) published:
(i) in the Gazette;
and
(ii) in each State and
internal Territory, in a newspaper circulating throughout that State or
Territory; and
(b) in
writing given to the holder of the licence or permission;
inform the holder that, with effect from a day specified
in the notice, all goods to which the licence or permission relates, or such
kinds of those goods as are specified in the notice, shall not be exported to a
specified place because in the opinion of the Defence Minister:
(c) a situation in that place; or
(d) a
situation in another place to which there is a reasonable likelihood that such
goods will be re‑exported from that specified place;
makes the exportation of such goods from Australia
contrary to the national interest, and, where the Defence Minister gives such a
notice, the authority of the holder to export such goods to that specified
place shall be taken to have been withdrawn until the Defence Minister, by
further notice in writing given to the holder, revokes the original notice.
(2AC) The day specified in a notice under subsection (2AB)
shall be a day not earlier than the day on which the notice is published in the
Gazette under subparagraph (2AB)(a)(i).
(2AD) Any failure to comply with the requirements
of paragraph (2AB)(b) in relation to a notice under subsection (2AB)
does not affect the validity of the notice.
(3) Goods the exportation of which is
prohibited under this section are prohibited exports.
(4) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
112A
Certain controlled substances taken to be prohibited exports
(1) Subsection (2) applies if a
substance or plant is determined, under section 301.8 of the Criminal
Code, to be a border controlled drug or a border controlled plant.
(2) For the period during which the
determination has effect, Part 1 of Schedule 8 to the Customs
(Prohibited Exports) Regulations 1958 has effect as if the substance or
plant were described as a drug in that Part.
(3) Subsection (4) applies if a
substance is determined, under section 301.9 of the Criminal Code,
to be a border controlled precursor.
(4) For the period during which the
determination has effect, Part 1 of Schedule 9 to the Customs
(Prohibited Exports) Regulations 1958 has effect as if the substance were
described as a precursor substance in that Part.
112B
Invalidation of licence, permission etc. for false or misleading information
A licence, permission, consent or
approval granted in respect of the exportation of UN‑sanctioned goods is taken
never to have been granted if:
(a) an application for the licence,
permission, consent or approval was made in an approved form; and
(b) information contained in, or
information or a document accompanying, the form:
(i) was false or
misleading in a material particular; or
(ii) omitted any matter or
thing without which the information or document is misleading in a material
particular.
Division 2—Entry and clearance of goods for export
Subdivision A—Preliminary
113
Entry of goods for export
(1) The owner of goods intended for export:
(a) must ensure that the goods are
entered for export; and
(b) must not allow the goods:
(i) if the goods are a
ship or aircraft that is to be exported otherwise than in a ship or aircraft—to
leave the place of exportation; or
(ii) if the goods are other
goods—to be loaded on the ship or aircraft in which they are to be exported;
unless:
(iii) an authority to deal
with them is in force; or
(iv) the goods are, or are
included in a class of goods that are, excluded by the regulations from the
application of this paragraph.
Penalty: 50 penalty units.
(1A) An offence against subsection (1) is
an offence of strict liability.
(2) Subsection (1) does not apply to:
(a) goods that are accompanied or
unaccompanied personal or household effects of a passenger in, or a member of
the crew of, a ship or aircraft; and
(b) goods (other than prescribed
goods) constituting, or included in, a consignment that:
(i) is consigned by post,
by ship or by aircraft from one person to another; and
(ii) has an FOB value not
exceeding $2,000 or such other amount as is prescribed.
(d) containers that are the property
of a person carrying on business in Australia and that are exported on a
temporary basis to be re‑imported, whether empty or loaded; and
(e) containers that are intended for
use principally in the international carriage of goods, other than containers
that, when exported from Australia, cease, or are intended to cease, to be the
property of a natural person resident, or a body corporate incorporated, in
Australia; and
(f) goods that, under the
regulations, are exempted from this section, either absolutely or on such terms
and conditions as are specified in the regulations.
(2A) However, subsection (2) does not
exempt from subsection (1) goods for the export of which a permission
(however described) is required by an Act or an instrument made under an Act,
other than goods or classes of goods prescribed by the regulations for the
purposes of this subsection.
(3) For the purposes of paragraph (2)(a),
goods:
(a) in quantities exceeding what could
reasonably be expected to be required by a passenger or member of the crew of a
ship or aircraft for his or her own use; or
(b) that
are, to the knowledge or belief of a passenger or a member of the crew of a
ship or aircraft, to be sold, or used in the course of trading, outside
Australia;
are not included in the personal or household effects of
that passenger or crew member.
113AA
How an entry of goods for export is made
An entry of goods for export is made by:
(a) making in respect of the goods an
export declaration other than a declaration that Customs refuses under
subsection 114(8) to accept; or
(b) using an ACEAN in respect of the
goods.
Subdivision B—Export declarations
114
Making an export declaration
(1) An export declaration is a communication
to Customs in accordance with this section of information about goods that are
intended for export.
(2) An export declaration can be communicated
by document or electronically.
(3) A documentary export declaration:
(a) can be made only by the owner of
the goods concerned; and
(b) must be communicated to Customs by
giving or sending it to an officer doing duty in relation to export
declarations; and
(c) must be in an approved form; and
(d) must contain such information as
is required by the form; and
(e) must be signed by the person
making it.
(4) An electronic export declaration must
communicate such information as is set out in an approved statement.
(5) If the information communicated to
Customs in an export declaration relating to goods adequately identifies any
permission (however it is described) that has been given for the exportation of
those goods, the identification of the permission in that information is taken,
for the purposes of any law of the Commonwealth (including this Act), to be the
production of the permission to an officer.
(6) However, subsection (5) does not
affect any power of an officer, under this Act, to require the production of a
permission referred to in that subsection.
(7) When, in accordance with section 119D,
an export declaration is taken to have been communicated to Customs, the goods
to which the declaration relates are taken to have been entered for export.
(8) Customs may refuse to accept or deal with
an export declaration in circumstances prescribed by the regulations.
(9) Customs must communicate a refusal to
accept or deal with an export declaration by notice given by document or
electronically to the person who made the declaration.
114A An
officer may seek additional information
(1) Without limiting the information that may
be required to be included in an export declaration, if an export declaration
has been made in respect of goods, authority to deal with the goods in
accordance with the declaration may be refused until an officer doing duty in
relation to export declarations has verified particulars of the goods shown in
the declaration:
(a) by reference to information
contained in commercial documents relating to the goods that have been given to
Customs by the owner of the goods on, or at any time after, the communication
of the declaration to Customs; or
(b) by reference to information, in
writing, in respect of the goods that has been so given to Customs.
(2) If an officer doing duty in relation to
export declarations believes, on reasonable grounds, that the owner of goods to
which an export declaration relates has custody or control of commercial
documents, or has, or can obtain, information, relating to the goods that will
assist the officer to determine whether this Act has been or is being complied
with in respect of the goods, the officer may require the owner:
(a) to deliver to the officer the
commercial documents in respect of the goods that are in the owner’s possession
or under the owner’s control (including any such documents that had previously
been delivered to an officer and had been returned to the owner); or
(b) to deliver to the officer such
information, in writing, relating to the goods (being information of a kind
specified in the notice) as is within the knowledge of the owner or as the
owner is reasonably able to obtain.
(3) A documentary requirement for the
delivery of documents or information in respect of an export declaration must:
(a) be communicated to the person by
whom, or on whose behalf, the declaration was communicated; and
(b) be in an approved form and contain
such particulars as the form requires.
(4) An electronic requirement for the
delivery of documents or information in respect of an export declaration must:
(a) be sent electronically to the
person who made the declaration; and
(b) communicate such particulars as
are set out in an approved statement.
(5) An officer doing duty in relation to
export declarations may ask:
(a) the owner of goods in respect of
which an export declaration has been made; and
(b) if another person made the
declaration on behalf of the owner—the other person;
any questions relating to the goods.
(6) An officer doing duty in relation to
export declarations may require the owner of goods in respect of an export
declaration that has been made to verify the particulars shown in the export
declaration by making a declaration or producing documents.
(7) If:
(a) the owner of goods has been
required to deliver documents or information in relation to the goods under subsection (2);
or
(b) the owner of, or person who made
an export declaration in respect of, goods has been asked a question in respect
of the goods under subsection (5); or
(c) the
owner of goods has been required under subsection (6) to verify a matter
in respect of the goods;
authority to deal with the relevant goods in accordance
with the declaration must not be granted unless:
(d) the requirement referred to in paragraph (a)
has been complied with or withdrawn; or
(e) the question referred to in paragraph (b)
has been answered or withdrawn; or
(f) the requirement referred to in paragraph (c)
has been complied with or withdrawn;
as the case requires.
(8) Subject to section 215, if a person
delivers a commercial document to an officer doing duty in relation to export
declarations under this section, the officer must deal with the document and
then return it to that person.
114B
Confirming exporters
(1) A person who:
(a) proposes to make an export declaration
relating to particular goods or is likely to make, from time to time, export
declarations in relation to goods of a particular kind; and
(b) will
be unable to include in the export declaration or export declarations
particular information in relation to the goods because the information cannot
be ascertained until after the exportation of the goods;
may apply to the CEO for confirming exporter status in
respect of the information and the goods.
(2) An application under subsection (1)
must:
(a) be in writing; and
(b) be in an approved form; and
(c) contain such particulars as are
required by the form including the reasons the information referred to in subsection (1)
cannot be ascertained before exportation.
(3) Where a person applies for confirming
exporter status in respect of particular information and particular goods or
goods of a particular kind, the CEO must:
(a) if the CEO is satisfied that the
information cannot be ascertained before exportation—grant the applicant that
status by signing a notice stating:
(i) that the applicant is
granted that status in respect of that information and those goods; and
(ii) that the grant is on
such conditions as are specified in the notice; or
(b) if the CEO is not so
satisfied—refuse to grant the applicant that status by signing a notice stating
that the CEO has refused to grant the applicant that status and setting out the
reasons for the refusal.
(4) A grant of confirming exporter status has
effect from the day on which the relevant notice is signed.
(5) Without limiting the generality of the
conditions to which a grant of confirming exporter status may be subject, those
conditions must be expressed to include:
(a) a requirement that the appropriate
confirming exporter status will be specified in any export declaration relating
to the goods in respect of which the status was granted where the confirming
exporter proposes to rely on that status; and
(b) a requirement that full details of
the information in respect of which the status was granted will be provided as
soon as practicable after exportation and not later than the time the CEO
indicates in the notice granting the status; and
(c) a requirement that, if information
in respect of which the status was granted becomes, to the knowledge of the
confirming exporter, able to be ascertained before the exportation of goods in
respect of which the status was granted, the confirming exporter will notify
the CEO forthwith.
(6) Where the CEO is satisfied that
information in respect of which confirming exporter status was granted is now
able to be ascertained before exportation, he or she must sign a notice in
writing:
(a) cancelling the confirming exporter
status forthwith; or
(b) modifying the confirming exporter
status so that it no longer relates to that information.
(7) Where a
person granted a confirming exporter status in respect of information and goods
fails to comply with a condition to which the grant is subject, the person is
guilty of an offence.
Penalty: 10 penalty units.
(7A) Subsection (7) does not apply if the
person has a reasonable excuse.
(7B) Subsection (7) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(8) Where:
(a) a person who is a confirming
exporter in respect of information and goods of a particular kind is convicted
of an offence against subsection (7); or
(b) the
CEO becomes satisfied that a person who is such a confirming exporter has
failed to comply with a condition of a grant of confirming exporter status
although no proceedings for an offence against subsection (7) have been
brought against the person;
the CEO may:
(c) cancel that person’s status in
respect of that information and those goods; or
(d) modify
that person’s status so that it no longer relates to specified information or
goods or so that the conditions to which it is subject are altered in a
specified respect;
by signing a notice stating that that status has been so
cancelled or modified and setting out the reasons for that cancellation or
modification.
(9) A cancellation or modification of the
confirming exporter status of a person has effect on the day the relevant
notice was signed.
(10) The CEO must, as soon as practicable after
signing a notice under subsection (3), (6) or (8), serve a copy of the
notice on the person concerned but a failure to do so does not alter the effect
of the notice.
Subdivision C—ACEANS
114BA
Using ACEANS in respect of goods
(1) The use of an ACEAN by a
person in respect of goods is the communication in accordance with this section
to the CEO of the ACEAN in respect of goods that are intended for export.
(3) An ACEAN must be communicated
electronically.
(4) An ACEAN can be communicated only while
the export information contract entered into in respect of goods to which the
ACEAN relates is in force.
(5) A communication made by the use of an
ACEAN must relate only to one consignment of goods.
(6) If a person makes, by the use of an
ACEAN, a communication that relates to more than one consignment of goods:
(a) the use of the ACEAN is invalid
and does not constitute an entry of any of the goods for export; and
(b) the person is guilty of an offence
punishable, on conviction, by a penalty not exceeding 60 penalty units.
(7) An offence against paragraph (6)(b)
is an offence of strict liability.
114BB
Making of export information contracts
(1) Subject to subsection (2), the CEO
may enter into a contract (an export information contract) with a
person for the purpose of enabling the use of accredited client export approval
numbers (ACEANS) in connection with the export of the person’s
goods.
Note: 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: see section 273EB.
(2) The CEO must not enter into an export
information contract with a person (other than a company specified in subsection (3))
unless the CEO is satisfied, as a result of an audit carried out by a person
chosen in accordance with the business rules, that the person can provide
Customs with accurate information that is necessary to enable Customs to
perform duties in relation to goods exported from Australia.
(3) The following companies are specified for
the purposes of subsection (2):
(a) Colorado Group Limited (ABN 8500 432
7566);
(b) Du Pont (Australia) Pty Limited (ABN 5900 071 6469);
(c) Ericsson Australia Pty Limited
(ABN 5600 407 1854);
(d) Grocery Holdings Pty Limited (ABN
27007 427 581);
(e) K mart Australia Limited (ABN
73004 700 485);
(f) Kodak (Australasia) Pty Limited
(ABN 4900 405 7621);
(g) Liquorland (Australia) Pty Limited (ABN 82007 512 414);
(h) My Car Automotive Pty Limited (ABN
94061 462 593);
(i) Myer Stores Limited (ABN 83004
143 239);
(j) Nortel Networks Australia Pty
Limited (ABN 400 031 64145);
(k) NS Komatsu Pty Limited (ABN 630
535 14739);
(l) Officeworks Superstores Pty
Limited (ABN 36004 763 526);
(m Panasonic Australia Pty Limited
(ABN 8300 159 2187);
(n) Target Australia Pty Limited (ABN
75004 250 944);
(o) Tyremaster (Wholesale) Pty Limited
(ABN 18000 781 037).
(4) The provisions in an export information
contract are to include provisions relating to:
(a) the goods covered by the contract;
and
(b) how the person’s compliance with
the business rules is to be reported, monitored and audited; and
(c) the power of the CEO to terminate
the contract if the person fails to comply with any of the business rules or
with any of the requirements of this Act; and
(d) the way ACEANS are to be allocated
to the person.
(5) The existence of an export information
contract does not affect the exercise by the CEO of any powers conferred on him
or her by or under this Act.
114BC
Declarations by persons who use ACEANS
If a person, during a particular month,
enters goods for export by using one or more ACEANS, the person:
(a) may, from time to time during the
month, send electronically to Customs declarations containing such information
in relation to the goods as is set out in an approved statement; but
(b) must send electronically to
Customs at least one such declaration not later than the first day of the
following month or such other day of that month as is prescribed.
Subdivision D—General
114C
Authority to deal with goods entered for export
(1) If goods have been entered for export by
the making of an export declaration in respect of the goods, Customs must give
an export entry advice, in a manner and form specified in the regulations, that
constitutes either:
(a) an authority to deal with the
goods to which the entry relates in accordance with the entry; or
(b) a refusal to provide such an
authority.
(2) Without limiting the generality of subsection (1),
regulations specifying the form of an export entry advice must include in the
information set out in that advice a number (the export entry advice
number) by which the advice can be identified.
(3) An authority under subsection (1) to
deal with goods may be expressed to be subject to a condition that a specified
permission for the goods to be dealt with (however it is described) be obtained
under another law of the Commonwealth.
(3A) An authority under subsection (1) to
deal with goods may be expressed to be subject to a condition that any security
required under section 16 of the Excise Act 1901 be given.
(4) If an authority under subsection (1)
to deal with goods is expressed to be subject to a condition that a specified
permission be obtained, the authority is taken not to have been given until the
permission has been obtained.
(4A) If an authority under subsection (1)
to deal with goods is expressed to be subject to a condition that any security
required under section 16 of the Excise Act 1901 be given, the
authority is taken not to have been given until the security has been given.
(4B) If goods have been entered for export by the
use of an ACEAN, the ACEAN constitutes an authority to deal with the goods.
(5) An officer
may, at any time before goods authorised to be dealt with in accordance with an
export entry are so dealt with, cancel the authority:
(a) if the authority was given in
respect of a documentary declaration, by:
(i) signing a notice
stating that the authority is cancelled and setting out the reasons for the
cancellation; and
(ii) serving a copy of the
notice on the person who made the declaration or, if that person does not have
possession of the goods, on the person who has possession of the goods; or
(b) if the authority was given in
respect of an electronic declaration or an ACEAN—by sending electronically, to
the person who made the declaration or used the ACEAN, a message stating that
the authority is cancelled and setting out the reasons for the cancellation.
(6) If, at any time before goods authorised
to be dealt with in accordance with an export entry are so dealt with, an
officer has reasonable grounds to suspect that the goods have been dealt with
in contravention of a Customs‑related law, the officer may suspend the
authority for a specified period:
(a) if the authority was given in
respect of a documentary declaration, by:
(i) signing a notice
stating that the authority is so suspended and setting out the reasons for the
suspension; and
(ii) serving a copy of the
notice on the person who made the declaration or, if that person does not have
possession of the goods, on the person who has possession of the goods; or
(b) if the authority was given in
respect of an electronic declaration or an ACEAN—by sending electronically, to
the person who made the declaration or used the ACEAN, a message stating that
the authority is so suspended and setting out the reasons for the suspension.
(7) If, during the suspension under subsection (6)
of an authority, an officer becomes satisfied that there are no longer
reasonable grounds to suspect that the goods have been dealt with in
contravention of a Customs‑related law, the officer must revoke the suspension:
(a) if the authority was given in
respect of a documentary declaration, by:
(i) signing a notice
stating that the suspension is revoked; and
(ii) serving a copy of the
notice on the person to whom the notice of the suspension was given; or
(b) if the authority was given in
respect of an electronic declaration or an ACEAN—by sending electronically, to
the person to whom the message notifying the suspension was sent, a message
stating that the suspension is revoked.
(8) A cancellation or suspension of an
authority, or a revocation of a suspension of an authority, has effect from the
time when the relevant notice is served or the relevant message is sent, as the
case may be.
114D
Goods to be dealt with in accordance with export entry
(1) The owner
of goods in respect of which an export entry has been communicated to Customs:
(a) must, as soon as practicable after
an authority to deal with the goods is granted, deal with the goods in
accordance with the entry; and
(b) 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:
(i) the entry has been
withdrawn, or withdrawn in so far as it applies to those goods; or
(ii) a permission to move,
alter or interfere with the goods has been given under section 119AA.
Penalty: 10 penalty units.
(2) If:
(a) excisable goods on which excise
duty has not been paid have been delivered to a place prescribed for the
purposes of paragraph 30(1)(d); and
(b) the export entry that applies to
those goods is withdrawn, or withdrawn insofar as it applies to those goods;
then, despite any implication to the contrary in subsection (1),
the goods become, on communication to Customs of the withdrawal, goods under
the Commissioner’s control under section 61 of the Excise Act 1901.
(3) If goods are goods on which Customs duty
is payable but has not been paid and the export entry that applies to those
goods is withdrawn, or withdrawn in so far as it applies to those goods, then:
(a) despite any implication to the
contrary in subsection (1), the goods remain under Customs control; and
(b) the withdrawal constitutes a
permission, under section 71E, to move the goods back to the place from
which they were first moved in accordance with the entry.
114E
Sending goods to a wharf or airport for export
(1) A person (the deliverer)
commits an offence if the deliverer delivers goods to a person (the deliveree)
at a wharf or airport for export and:
(a) if the goods have been entered for
export—neither of the following applies:
(i) an authority to deal
with the goods is in force and the deliverer of the goods has, at or before the
time of the delivery, given the prescribed particulars to the deliveree in the
prescribed manner;
(ii) the goods are, or are
included in a class of goods that are, excluded by the regulations from the
application of this section and the deliverer has, at or before the time of the
delivery, given the prescribed particulars to the deliveree in the prescribed
manner; or
(b) if the goods are not required to
be entered for export—the deliverer has not, at or before the time of the
delivery, given the prescribed particulars to the deliveree in the prescribed
manner; or
(c) if the goods have not been entered
for export—the deliveree fails to enter the goods for export within the
prescribed period after the time of the delivery.
(2) For the purposes of subparagraphs (1)(a)(i)
and (ii) and paragraph (1)(b), the regulations may prescribe different
particulars according to the kind of deliverer.
(3) The penalty for an offence against subsection (1)
is a penalty not exceeding 60 penalty units.
(4) An offence against subsection (1) is
an offence of strict liability.
(5) The regulations may prescribe goods, or
classes of goods, that are exempt from this section.
114F
Notices to Customs by person who receives goods at a wharf or airport for
export
(1) This section applies to a person who
takes delivery of goods for export at a wharf or airport other than a wharf or
airport that is, or is included in a class of wharves or airports that is,
excluded by the regulations from the application of this section.
(1A) The person must give notice to Customs
electronically, within the period prescribed by the regulations, stating that
the person has received the goods and giving such particulars as are required
by an approved statement.
(1B) Before the goods are removed from the wharf
or airport for a purpose other than loading them onto a ship or aircraft for
export, the person must give notice (the removal notice) to
Customs electronically:
(a) stating that the goods are to be
removed; and
(b) giving such particulars as are
required by an approved statement.
If the regulations require the person to give the removal
notice at least a specified time before the removal, the person must comply
with the requirement.
(2) A person who contravenes subsection (1A)
or (1B) commits an offence punishable, on conviction, by a penalty not
exceeding 60 penalty units.
(3) An offence against subsection (2) is
an offence of strict liability.
(4) The regulations may prescribe goods, or
classes of goods, that are exempt from this section.
115
Goods not to be taken on board without authority to deal
(1) The owner of a ship or aircraft must not
permit goods required to be entered for export to be taken on board the ship or
aircraft for the purpose of export unless:
(a) an authority to deal with the
goods is in force under section 114C; or
(b) the goods are, or are included in
a class of goods that are, excluded by the regulations from the application of
this section.
Penalty: 60 penalty units.
(2) An offence against subsection (1) is
an offence of strict liability.
116
What happens when goods entered for export by an export declaration are not
dealt with in accordance with the export entry
(1) If:
(a) goods are entered for export by
the making of an export declaration in respect of the goods; and
(b) none
of the goods or some only of the goods have been exported in accordance with
the entry at the end of a period of 30 days after the intended day of
exportation notified in the entry;
the authority to deal with the goods in accordance with
the entry, so far as it relates to goods not exported before the end of the
period, is, at the end of the period, taken to have been revoked.
(2) If an authority to deal with goods
entered for export is taken, under subsection (1), to have been totally or
partially revoked, the owner of the goods must, within 7 days after the end of
the period referred to in that subsection:
(a) if the authority to deal was taken
to be totally revoked—withdraw the entry relating to the goods; and
(b) if the authority to deal was taken
to be partially revoked—amend the entry so that it relates only to the goods
exported before the end of the period.
Penalty: 50 penalty units.
(3) An offence against subsection (2) is
an offence of strict liability.
(4) If the owner of goods entered for export
amends the original entry in accordance with paragraph (2)(b), the owner
is, in accordance with subsection 119C(1), taken to have withdrawn the original
entry but this Act has effect as if:
(a) the amended entry had been
communicated to Customs; and
(b) an
authority to deal with the goods to which the amended entry relates in
accordance with the amended entry had been granted under section 114C;
on the day, or the respective days, on which the original
entry was communicated and the original authority to deal was granted.
116A
What happens when goods entered for export by the use of an ACEAN are not
exported within 30 days
If:
(a) goods are entered for export by
the use of an ACEAN; and
(b) the goods have not been exported
within 30 days after the day on which the ACEAN was communicated to Customs;
the entry is taken to have been withdrawn and the ACEAN
concerned cannot again be used to enter those goods or any other goods for
export.
117
Security
The Collector may require the owner of
any goods entered for export and subject to the control of the Customs to give
security that the goods will be landed at the place for which they are entered
or will be otherwise accounted for to the satisfaction of the Collector.
117AA
Consolidation of certain goods for export can only occur at a prescribed place
(1) A person must not consolidate, or take
part in the consolidation of, prescribed goods for export unless the
consolidation is to be carried out at a place prescribed by the regulations for
the purposes of this section.
Penalty: 60 penalty units.
(2) If prescribed goods are received at a
place referred to in subsection (1) for the purpose of being consolidated
for export, the person in charge of the place must give notice electronically
to Customs, within the prescribed period after the goods were received at the
place, stating that the goods were received and setting out such particulars of
the goods as are required by an approved statement.
Penalty: 60 penalty units.
(3) The person in charge of a place referred
to in subsection (1) must not permit prescribed goods to be released from
the place unless:
(a) the person has ascertained, from
information made available by Customs, that:
(i) the goods have been
entered for export; and
(ii) an authority to deal
with the goods is in force; or
(b) a permission to move, alter or
interfere with the goods has been given under section 119AA.
Penalty: 60 penalty units.
(4) If prescribed goods have been released
from a place referred to in subsection (1), the person in charge of the
place must give notice electronically to Customs, within the prescribed period
after the goods were released, stating that the goods were released and giving
particulars of the entry and authority referred to in subsection (3) that
relates to the goods.
Penalty: 60 penalty units.
(5) An offence for a contravention of this
section is an offence of strict liability.
117A
Submanifests to be communicated to Customs
(1) The person in charge of the place at
which the consolidation of goods for exportation by a ship or aircraft is to be
carried out must, so as to enable the exportation, prepare and communicate
electronically to Customs a submanifest in respect of the goods.
Penalty: 60 penalty units.
(1A) An offence against subsection (1) is
an offence of strict liability.
(2) A submanifest must communicate such
information as is set out in an approved statement.
(3) When a submanifest is sent to Customs,
Customs must send to the compiler of the submanifest a notice acknowledging its
receipt and giving the compiler a submanifest number for inclusion in any
outward manifest purportedly relating to the goods concerned.
118
Certificate of Clearance
(1) The master of a ship or the pilot of an
aircraft must not depart with the ship or aircraft from any port, airport or
other place in Australia without receiving from the Collector a Certificate of
Clearance in respect of the ship or aircraft.
Penalty: 60 penalty units.
(1A) An offence against subsection (1) is
an offence of strict liability.
(1B) A Certificate of Clearance in respect of a
ship or aircraft may only be granted on application under subsection (2)
or (5).
(2) The master of a ship or the pilot of an
aircraft may apply to the Collector for a Certificate of Clearance in respect
of the ship or aircraft.
Note: Section 118A sets out the requirements
for granting a Certificate of Clearance in respect of certain ships or
aircraft.
(3) An application under subsection (2)
must be in writing and must contain such information as is prescribed by the
regulations.
(4) The master and the owner of a ship, or
the pilot and the owner of an aircraft, that is at a port, airport or other
place in Australia must:
(a) severally answer questions asked
by an officer relating to the ship or aircraft and its cargo, stores and voyage;
and
(b) severally produce documents
requested by an officer that relate to the ship or aircraft and its cargo; and
(c) comply with such requirements (if
any) as are prescribed by the regulations.
(5) If a Certificate of Clearance has not
been given to the master of a ship or the pilot of an aircraft within 24 hours
after an application is made by the master or pilot under subsection (2),
the master or pilot may apply to the CEO for a Certificate of Clearance. The
decision of the CEO on the application is final.
(6) If, after an application to the CEO for a
Certificate of Clearance is made under subsection (5), the CEO does not
grant, or delays granting, the Certificate of Clearance, the owner of the ship
or aircraft is entitled, in a court of competent jurisdiction, to recover
damages against the Commonwealth in respect of the failure to grant, or the
delay in granting, the Certificate, if the court is satisfied that the failure
or delay was without reasonable and probable cause.
(7) Except as provided in subsection (6),
an action or other proceeding cannot be brought against the Commonwealth, or an
officer of the Commonwealth, because of the failure to grant, or because of a
delay in granting, a Certificate of Clearance.
118A
Requirements for granting a Certificate of Clearance in respect of certain
ships or aircraft
(1) This section applies to a ship or
aircraft of a kind specified in the regulations.
(2) Before a Certificate of Clearance in
respect of the ship or aircraft is granted under section 118, the master
or owner of the ship or the pilot or owner of the aircraft must communicate to
Customs, in accordance with this section, an outward manifest:
(a) specifying all of the goods (other
than goods prescribed for the purposes of section 120) that are on board,
or are to be loaded on board, the ship or aircraft at the port, airport or
other place in Australia; or
(b) if there are no goods of the kind
to which paragraph (a) applies—making a statement to that effect.
(3) An outward manifest may be made by
document or electronically.
(4) A documentary outward manifest must:
(a) be in writing; and
(b) be in an approved form; and
(c) be communicated to Customs by
sending or giving it to an officer doing duty in respect of the clearance of
ships or aircraft; and
(d) contain such information as is
required by the form; and
(e) be signed in a manner specified in
the form.
(5) An electronic outward manifest must
communicate such information as is set out in an approved statement.
119
Communication of outward manifest to Customs
(1) If:
(aa) a ship or aircraft departs from a
port, airport or other place in Australia; and
(ab) section 118A does not apply to
the ship or aircraft;
the master or owner of the ship, or the pilot or owner of
the aircraft, must communicate electronically to Customs, not later than 3 days
after the day of departure, or such time as is prescribed in relation to the
departure, an outward manifest:
(a) specifying all of the goods, other
than goods prescribed for the purposes of section 120, that were loaded on
board the ship or aircraft at the port, airport or other place; or
(b) if there were no goods of the kind
to which paragraph (a) applies that were loaded on board the ship or
aircraft at the port, airport or other place—making a statement to that effect.
(2) An outward manifest must contain such
information as is set out in an approved statement.
(3) If subsection (1) is contravened in
respect of a ship or aircraft, the master and the owner of the ship, or the
pilot and the owner of the aircraft, each commit an offence punishable, on
conviction, by a penalty not exceeding 60 penalty units.
(4) An offence against subsection (3) is
an offence of strict liability.
119AA
Application for permission to move, alter or interfere with goods for export
(1) This section applies to goods:
(a) that are subject to the control of
Customs under paragraph 30(1)(b), (c) or (d); and
(b) that have been entered for export;
and
(c) in relation to which an authority
to deal with the goods is in force.
(2) A person may apply to Customs for
permission to move, alter or interfere with the goods in a particular way.
(3) An application under subsection (2)
must:
(a) be made electronically; and
(b) communicate such information as is
set out in an approved statement.
(4) The CEO may approve different statements
for electronic applications made under this section in different circumstances
or by different classes of persons.
(5) If an application is made under subsection (2),
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.
(6) If a direction is not given under subsection (5),
or a reasonable period has elapsed since the giving of such a direction to
enable the making of an informed decision on the application, an officer must
send a message electronically to the applicant:
(a) giving the applicant permission to
move, alter or interfere with the goods in accordance with the application
either unconditionally or subject to such conditions as are specified in the
message; or
(b) refusing the application and
setting out the reasons for the refusal.
(7) If a person moves, alters or interferes
with goods otherwise than in accordance with a relevant permission, the
movement of the goods is, for the purposes of paragraph 229(1)(g), taken not to
have been authorised by this Act.
119A
Withdrawal of entries, submanifests and manifests
(1) At any time after an export entry, a
submanifest or an outward manifest is communicated to Customs and before the
goods to which it relates are exported, a withdrawal of the entry, submanifest
or manifest may be communicated to Customs:
(a) in the case of a withdrawal of an
entry that was communicated to Customs by document—by document; or
(b) in any other case—electronically.
(2) A documentary withdrawal of an entry
must:
(a) be communicated by the person by
whom, or on whose behalf, the entry was communicated; and
(b) be communicated to Customs by giving
it to an officer doing duty in relation to export entries; and
(c) be in an approved form; and
(d) contain such information as is
required by the form; and
(e) be signed in a manner specified in
the form.
(3) An electronic withdrawal of an entry,
submanifest or manifest must communicate such information as is set out in an
approved statement.
(4) A withdrawal of an entry, submanifest or
manifest has effect when, in accordance with section 119D, it is
communicated to Customs.
119B
Effect of withdrawal
(1) When a withdrawal of an export entry
takes effect, any authority to deal with the goods to which the entry relates
is revoked.
(2) Despite the withdrawal of an entry,
submanifest or manifest:
(a) a person may be prosecuted in
respect of the entry, submanifest or manifest; and
(b) a
penalty may be imposed on a person who is convicted of an offence in respect of
the entry, submanifest or manifest;
as if it had not been withdrawn.
(2A) Despite the withdrawal of an entry,
submanifest or manifest, action may be taken under Subdivision A of Division 5
of Part XIII in respect of the entry, submanifest or manifest as if it had
not been withdrawn.
(3) The withdrawal of a documentary entry the
original of which was sent or given to an officer does not entitle the person
who communicated it to have it returned.
119C
Change of electronic entries and change of submanifests and manifests treated
as withdrawals
(1) If a person who has communicated an
electronic export entry changes information included in that entry, the person
is taken, at the time when an export entry advice is communicated in respect of
the altered entry, to have withdrawn the entry as it previously stood.
(2) If a person who has communicated a
submanifest or an outward manifest changes information included in the
submanifest or manifest, the person is taken, at the time when an
acknowledgment of the altered submanifest or altered manifest, as the case
requires, is communicated, to have withdrawn the submanifest or manifest as it
previously stood.
119D
Notification of export entries, submanifests, manifests and withdrawals
(1) For the purposes of this Act, a
documentary export entry, or a documentary withdrawal of such an entry, may be
sent to an officer referred to in subsection 114(3) or 119A(2) in any manner
prescribed and, when so sent, is taken to have been communicated to Customs at
such time, and in such circumstances, as are prescribed.
(2) For the purposes of this Act, an
electronic export entry, or an electronic withdrawal of such an entry, or a
submanifest, an outward manifest, or a withdrawal of such a submanifest or
manifest, that is sent to Customs is taken to have been communicated to Customs
when an export entry advice or an acknowledgment of receipt of the submanifest,
manifest or withdrawal is sent to the person who sent the entry, submanifest,
manifest or withdrawal.
(3) For the purposes of this Act, an
electronic application under section 119AA is taken to have been
communicated to Customs when an acknowledgment of the application is
communicated by Customs electronically to the person who sent the application.
119E
Requirements for communicating to Customs electronically
A communication that is required or
permitted by this Division to be made to Customs electronically must:
(a) be signed by the person who makes
it (see paragraph 126DA(1)(c)); and
(b) otherwise meet the information
technology requirements determined under section 126DA.
120
Shipment of goods
The master of a ship or the pilot of an
aircraft shall not suffer to be taken on board his or her ship or aircraft any
goods other than:
(a) goods which are specified or
referred to in the Outward Manifest; and
(b) goods prescribed for the purpose
of this section.
Penalty: 100 penalty units.
122
Time of clearance
Except as prescribed, no Certificate of
Clearance shall be granted for any ship or aircraft unless all her inward cargo
and stores shall have been duly accounted for to the satisfaction of the
Collector nor unless all the other requirements of the law in regard to such
ship or aircraft and her inward cargo have been duly complied with.
Division 3A—Examining goods for export that are not yet subject to
Customs control
122F
Object of Division
(1) The object of this Division is to confer
powers on authorised officers to enter premises and examine goods that are
reasonably believed to be intended for export.
(2) The powers are exercisable before the
goods become subject to the control of Customs and are conferred for the
purpose of enabling officers to assess whether the goods meet the requirements
of a Customs‑related law relating to exports.
(3) The powers are exercisable only with the
consent of the occupier of the premises at which the goods are situated.
(4) The CEO must not authorise an officer to
exercise powers under this Division unless the CEO is satisfied that the
officer is suitably qualified, because of the officer’s abilities and
experience, to exercise those powers.
122G
Occupier of premises
In this Part:
occupier of premises includes a person who is
apparently in charge of the premises.
122H
Consent required to enter premises and examine goods for export
(1) Subject to section 122J, an
authorised officer may enter premises, and exercise the powers conferred by the
other sections of this Division in or on the premises, in accordance with this
section.
(2) The authorised officer must believe on
reasonable grounds that there are, or have been, in or on particular premises
goods (the export goods) that the authorised officer reasonably
believes are intended to be exported.
(3) The premises must not be a place
prescribed for the purposes of paragraph 30(1)(d), or part of such a place.
Note: Paragraph 30(1)(d) subjects to the control of
Customs goods that are made or prepared in, or brought to, a prescribed place
for export.
(4) The occupier of the premises must have
consented in writing to the entry of the authorised officer to the premises and
the exercise of the powers in or on the premises.
(5) Before obtaining the consent, the
authorised officer must have told the occupier that he or she could refuse
consent.
(6) Before the authorised officer enters the
premises or exercises any of the powers, he or she must produce his or her
identity card to the occupier.
122J
Officer must leave premises if consent withdrawn
(1) An authorised officer who has entered
premises under section 122H must leave the premises if the occupier
withdraws his or her consent.
(2) A withdrawal of a consent does not have
any effect unless it is in writing.
122K
Power to search premises for export goods
The authorised officer may search the
premises for the export goods and documents relating to them.
122L
Power to examine export goods
(1) While the authorised officer is in or on
the premises, he or she may inspect, examine, count, measure, weigh, gauge,
test or analyse, and take samples of, the export goods.
(2) The authorised officer may remove from
the premises any samples taken, and arrange for tests or analyses to be
conducted on them elsewhere.
122M
Power to examine documents relating to export goods
The authorised officer may examine and
take extracts from, or make copies of, documents that are in or on the premises
and relate to the export goods.
122N
Power to question occupier about export goods
If the authorised officer is in or on
the premises because the occupier consented to the officer’s entry, the officer
may request the occupier:
(a) to answer questions about the
export goods; and
(b) to produce to the officer
documents that are in or on the premises and relate to the export goods;
but the occupier is not obliged to comply with the
request.
122P
Power to bring equipment to the premises
The authorised officer may bring into or
onto the premises equipment and materials for exercising a power described in
section 122K, 122L or 122M.
122Q
Compensation
(1) If a person’s property is damaged as a
result of an exercise of a power under this Division, the person is entitled to
compensation of a reasonable amount payable by Customs for the damage.
(2) Customs must pay the person such
reasonable compensation as Customs and the person agree on. If they fail to
agree, the person may institute proceedings in the Federal Court of Australia
for such reasonable amount of compensation as the Court determines.
(3) In determining the amount of compensation
payable, regard is to be had to whether the occupier of the premises and the
employees or agents of the occupier, if they were available at the time, had
provided any warning or guidance that was appropriate in the circumstances.
122R
Powers in this Division are additional to other powers
The powers of an authorised officer
under this Division do not limit powers under other provisions of this Act or
under provisions of other Acts.
Example: Some other provisions and Acts giving similar
powers are Parts III and XII of this Act, and the Commerce (Trade
Descriptions) Act 1905 and the Export Control Act 1982.
Division 4—Exportation procedures after Certificate of Clearance issued
123
Ship to bring to and aircraft to stop at boarding stations
(1) The master of every ship departing from
any port shall bring his or her ship to at a boarding station appointed for the
port and by all reasonable means facilitate boarding by the officer, and shall
not depart with his or her ship from any port with any officer on board such
ship in the discharge of his or her duty without the consent of such officer.
Penalty: 5 penalty units.
(2) The pilot of every aircraft departing
from any airport shall bring his or her aircraft to a boarding station
appointed for the port or airport, and by all reasonable means facilitate
boarding by the officer, and shall not depart with his or her aircraft from any
port or airport with any officer on board such aircraft without the consent of
such officer.
Penalty: 5 penalty units.
(3) Subsections (1) and (2) are offences
of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
124
Master or pilot to account for missing goods
(1) The master of every ship and the pilot of
every aircraft after clearance shall:
(a) on demand by an officer produce
the Certificate of Clearance;
(b) account to the satisfaction of the
Collector for any goods specified or referred to in the Outward Manifest and
not on board his or her ship or aircraft.
Penalty: 100 penalty units.
(2) Subsection (1) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
125
Goods exported to be landed at proper destination
(1) No goods shipped for export shall be
unshipped or landed except in parts beyond the seas.
Penalty: 250 penalty units.
(2) Subsection (1) does not apply if the
goods are unshipped or landed with the permission of the Collector.
(3) Subsection (1) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
126
Certificate of landing
If required by the CEO a certificate in
such form and to be given by such person as may be prescribed shall be produced
in proof of the due landing according to the export entry of any goods subject
to the control of the Customs, and the Collector may refuse to allow any other
goods subject to the control of the Customs to be exported by any person who
fails within a reasonable time to produce such certificate of the landing of
any such goods previously exported by him or her or to account for such goods
to the satisfaction of the Collector.
Division 4A—Exportation of goods to Singapore
126AA
Declaration concerning exports to Singapore
The regulations may prescribe the
requirements on exporters relating to the making of declarations concerning the
export of goods to Singapore for which a preferential tariff is to be claimed.
126AB
Record keeping obligations
Regulations may prescribe record keeping obligations
(1) The regulations may prescribe record
keeping obligations that apply in relation to goods that:
(a) are exported to Singapore; and
(b) are claimed to be the produce or
manufacture of Australia for the purpose of obtaining a preferential tariff in Singapore.
On whom obligations may be imposed
(2) Regulations for the purposes of subsection (1)
may impose such obligations on a producer, manufacturer or exporter of goods.
126AC
Power to require records
Requirement to produce records
(1) An authorised officer may require a
person who is subject to record keeping obligations under regulations made for
the purposes of section 126AB to produce to the officer such of those
records as the officer requires.
Disclosing records to instrumentality or agency of
Singapore
(2) An authorised officer may, for the
purpose of verifying a claim for a preferential tariff in Singapore, disclose any records so produced to an instrumentality or agency of
Singapore.
126AD
Power to ask questions
Power to ask questions
(1) An authorised officer may require a
person who is an exporter, producer or manufacturer of goods that:
(a) are exported to Singapore; and
(b) are claimed to be the produce or
manufacture of Australia for the purpose of obtaining a preferential tariff in Singapore;
to answer questions in order to verify the origin of the
goods.
Disclosing answers to instrumentality or agency of
Singapore
(2) An authorised officer may, for the
purpose of verifying a claim for a preferential tariff in Singapore, disclose any answers to such questions to an instrumentality or agency of
Singapore.
Division 4B—Exportation of textile and clothing goods to the US
126AE
Authorised officer may request records or ask questions
(1) If textile and clothing goods are exported
to the US, an authorised officer may request a person who:
(a) is the exporter or producer of the
goods; or
(b) is involved in the transportation
of the goods from Australia to the US;
to produce particular records, or to answer questions put
by the officer, in relation to the export, production or transportation of the
goods.
(2) The person is not obliged to comply with
the request.
Disclosing records or answers to US
(3) An authorised officer may disclose any
records so produced, or disclose any answers to such questions, to a US customs official for the purpose of a matter covered by Article 4.3 of the Agreement.
Definitions
(4) In this section:
Agreement means the Australia‑United States
Free Trade Agreement done at Washington DC on 18 May 2004, as amended from time to time.
Note: In 2004 the text of the Agreement was
accessible through the website of the Department of Foreign Affairs and Trade.
Harmonized System has the same meaning as in
section 153YA.
textile and clothing goods means goods that
are classified to:
(a) subheading 4202.12, 4202.22,
4202.32 or 4202.92 of Chapter 42 of the Harmonized System; or
(b) any of Chapters 50 to 63 of
the Harmonized System; or
(c) heading 7019 of Chapter 70 of
the Harmonized System; or
(d) subheading 9409.90 of Chapter 94
of the Harmonized System.
US means the United States of America.
US customs official means a
person representing the customs administration of the US.
Division 4C—Exportation of goods to Thailand
126AF
Definitions
In this Division:
producer has the same meaning as in Division 1D
of Part VIII.
Thai customs official means a person
representing the customs administration of Thailand.
126AG
Record keeping obligations
Regulations may prescribe record keeping obligations
(1) The regulations may prescribe record
keeping obligations that apply in relation to goods that:
(a) are exported to Thailand; and
(b) are claimed to be Australian
originating goods for the purpose of obtaining a preferential tariff in Thailand.
On whom obligations may be imposed
(2) Regulations for the purposes of subsection (1)
may impose such obligations on a producer or exporter of goods.
126AH
Power to require records
Requirement to produce records
(1) An authorised officer may require a
person who is subject to record keeping obligations under regulations made for
the purposes of section 126AG to produce to the officer such of those
records as the officer requires.
Note: Failing to produce a record when required to
do so by an officer may be an offence: see section 243SB. However, a
person does not have to produce a record if doing so would tend to incriminate
the person: see section 243SC.
Disclosing records to Thai customs official
(2) An authorised officer may, for the
purpose of verifying a claim for a preferential tariff in Thailand, disclose any records so produced to a Thai customs official.
126AI
Power to ask questions
Power to ask questions
(1) An authorised officer may require a
person who is an exporter or producer of goods that:
(a) are exported to Thailand; and
(b) are claimed to be Australian
originating goods for the purpose of obtaining a preferential tariff in Thailand;
to answer questions in order to verify the origin of the
goods.
Note: Failing to answer a question when required to
do so by an officer may be an offence: see section 243SA. However, a
person does not have to answer a question if doing so would tend to incriminate
the person: see section 243SC.
Disclosing answers to Thai customs official
(2) An authorised officer may, for the purpose
of verifying a claim for a preferential tariff in Thailand, disclose any
answers to such questions to a Thai customs official.
Division 4D—Exportation of goods to New
Zealand
126AJA
Definitions
In this Division:
manufacture means the creation of an article
essentially different from the matters or substances that go into that
creation, but does not include the following activities (whether performed
alone or in combination with each other):
(a) restoration or renovation
processes such as repairing, reconditioning, overhauling or refurbishing;
(b) minimal operations of pressing,
labelling, ticketing, packaging and preparation for sale, whether conducted
alone or in combination with each other;
(c) quality control inspections.
New Zealand customs official means
a person representing the customs administration of New Zealand.
principal manufacturer of goods means the
person in Australia who performs, or has had performed on the person’s behalf,
the last process of manufacture of the goods.
producer means a person who grows, farms,
raises, breeds, mines, harvests, fishes, traps, hunts, captures, gathers,
collects, extracts, manufactures, processes, assembles or disassembles goods.
126AJB
Record keeping obligations
Regulations may prescribe record keeping obligations
(1) The regulations may prescribe record
keeping obligations that apply in relation to goods that:
(a) are exported to New Zealand; and
(b) are claimed to be Australian
originating goods for the purpose of obtaining a preferential tariff in New Zealand.
On whom obligations may be imposed
(2) Regulations made for the purposes of
subsection (1) may impose such obligations on the exporter, the principal
manufacturer or a producer of the goods.
126AJC
Power to require records
Requirement to produce records
(1) An authorised officer may require a
person who is subject to record keeping obligations under regulations made for
the purposes of section 126AJB to produce to the officer such of those
records as the officer requires.
Note: Failing to produce a record when required to
do so by an officer may be an offence: see section 243SB. However, a
person does not have to produce a record if doing so would tend to incriminate
the person: see section 243SC.
Disclosing records to New Zealand customs official
(2) An authorised officer may, for the
purpose of verifying a claim for a preferential tariff in New Zealand, disclose any records so produced to a New Zealand customs official.
126AJD
Power to ask questions
Power to ask questions
(1) An authorised officer may require a
person who is the exporter, the principal manufacturer or a producer of goods
that:
(a) are exported to New Zealand; and
(b) are claimed to be Australian
originating goods for the purpose of obtaining a preferential tariff in New Zealand;
to answer questions in order to verify the origin of the
goods.
Note: Failing to answer a question when required to
do so by an officer may be an offence: see section 243SA. However, a
person does not have to answer a question if doing so would tend to incriminate
the person: see section 243SC.
Disclosing answers to New Zealand customs official
(2) An authorised officer may, for the
purpose of verifying a claim for a preferential tariff in New Zealand, disclose any answers to such questions to a New Zealand customs official.
Division 4E—Exportation of goods to Chile
126AKA
Definitions
In this Division:
Chilean customs official means a person
representing the customs administration of Chile.
producer means a person who grows, farms, raises,
breeds, mines, harvests, fishes, traps, hunts, captures, gathers, collects,
extracts, manufactures, processes or assembles goods.
126AKB
Record keeping obligations
Regulations may prescribe record keeping obligations
(1) The regulations may prescribe record
keeping obligations that apply in relation to goods that:
(a) are exported to Chile; and
(b) are claimed to be Australian
originating goods for the purpose of obtaining a preferential tariff in Chile.
On whom obligations may be imposed
(2) Regulations for the purposes of
subsection (1) may impose such obligations on a producer or exporter of
goods.
126AKC
Power to require records
Requirement to produce records
(1) An authorised officer may require a
person who is subject to record keeping obligations under regulations made for
the purposes of section 126AKB to produce to the officer such of those
records as the officer requires.
Note: Failing to produce a record when required to
do so by an officer may be an offence: see section 243SB. However, a
person does not have to produce a record if doing so would tend to incriminate
the person: see section 243SC.
Disclosing records to Chilean customs official
(2) An authorised officer may, for the
purpose of verifying a claim for a preferential tariff in Chile, disclose any records so produced to a Chilean customs official.
126AKD
Power to ask questions
Power to ask questions
(1) An authorised officer may require a
person who is an exporter or producer of goods that:
(a) are exported to Chile; and
(b) are claimed to be Australian
originating goods for the purpose of obtaining a preferential tariff in Chile;
to answer questions in order to verify the origin of the
goods.
Note: Failing to answer a question when required to
do so by an officer may be an offence: see section 243SA. However, a
person does not have to answer a question if doing so would tend to incriminate
the person: see section 243SC.
Disclosing answers to Chilean customs official
(2) An authorised officer may, for the
purpose of verifying a claim for a preferential tariff in Chile, disclose any answers to such questions to a Chilean customs official.
Division 5—Miscellaneous
126A
Export of installations
(1) Where an installation ceases to be part
of Australia, the installation and any goods on the installation at the time
when it ceases to be part of Australia shall, for the purposes of the Customs
Acts, be taken to have been exported from Australia.
(2) Where:
(a) a resources installation is taken
from a place in Australia into Australian waters for the purpose of becoming
attached to the Australian seabed; or
(b) a
sea installation is taken from a place in Australia into an adjacent area or
into a coastal area for the purpose of being installed in that area;
the installation and any goods on the installation shall
not be taken, for the purposes of the Customs Acts, to have been exported from Australia.
126B
Export of goods from installations
For the purposes of the Customs Acts,
where goods are taken from an installation that is deemed to be part of
Australia under section 5C for the purpose of being taken to a place
outside Australia, whether directly or indirectly, the goods shall be deemed to
have been exported from Australia at the time when they are so taken from the
installation.
126C
Size of exporting vessel
(1) Goods subject to the control of Customs
must not be exported in a ship of less than 50 tons gross registered.
Penalty: 10 penalty units.
(2) Subsection (1) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) Subsection (1) does not apply if the
CEO has given written permission for the export of the goods in that way.
Part VIA—Electronic communications
126D
CEO to maintain information systems
The CEO must establish and maintain such
information systems as are necessary to enable persons to communicate
electronically with Customs.
126DA
Communications standards and operation
(1) After consulting with persons likely to
be affected, the CEO must determine, and cause to be published in the Gazette:
(a) the information technology
requirements that have to be met by persons who wish to communicate with
Customs electronically; and
(c) 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; and
(d) the information technology
requirements that have to be met to satisfy a requirement that a document be
produced to Customs when the document is produced electronically.
(2) The CEO may:
(a) determine alternative information
technology requirements that may be used; and
(b) without limiting paragraph (a),
determine different information technology requirements that may be used in
different circumstances or by different classes of persons.
126DB
Authentication of certain electronic communications
An electronic communication that is made
to Customs and is required or permitted by this Act is taken to be made by a
particular person, even though the person did not authorise the communication,
if:
(a) the communication meets the
information technology requirements that the CEO has determined under section 126DA
have to be met to satisfy a requirement that the person’s signature be given to
Customs in connection with information in the communication; and
(b) the person did not notify Customs
of a breach of security relating to those information technology requirements
before the communication;
unless the person provides evidence to the contrary.
126DC
Records of certain electronic communications
(1) The CEO must keep a record of each
electronic communication made as required or permitted by this Act. The CEO
must keep the record for 5 years after the communication is made.
Note: It does not matter whether the communication
is made to Customs or by Customs.
Evidentiary value of the record
(2) The record kept is admissible in
proceedings under this Act.
(3) In proceedings under this Act, the record
is prima facie evidence that a particular person made the statements in the
communication, if the record purports to be a record of an electronic
communication that:
(a) was made to Customs; and
(b) met the information technology
requirements that the CEO has determined under section 126DA have to be
met to satisfy a requirement that the person’s signature be given to Customs in
connection with information in the communication.
(4) In proceedings under this Act, the record
is prima facie evidence that Customs made the statements in the communication,
if the record purports to be a record of an electronic communication that was
made by Customs.
126DD
Authentication, records and Electronic Transactions Act 1999
Sections 126DB and 126DC have
effect despite section 15 of the Electronic Transactions Act 1999.
126E
Communication to Customs when information system is temporarily inoperative
(1) If:
(a) an information system becomes
temporarily inoperative; or
(b) an information system that has
become temporarily inoperative again becomes operative;
the CEO must cause notice of the occurrence to be given:
(c) on the website maintained by
Customs; and
(d) where practicable, by e‑mail to
persons who communicate with Customs electronically.
(2) If an information system is temporarily
inoperative, information that a person could otherwise have communicated
electronically to Customs by means of the system may be communicated to Customs
in either of the following ways:
(a) if another information system by
means of which the person can communicate information to Customs is
operative—electronically by means of that other system;
(b) by document given or sent to an
officer doing duty in relation to the matter to which the information relates.
(3) If:
(a) because an information system is
temporarily inoperative, a person communicates information to an officer by
document in accordance with paragraph (2)(b); and
(b) the CEO causes notice to be given
under paragraph (1)(b) stating that the information system has again
become operative;
the person must communicate the information electronically
to Customs within 24 hours after the notice was given.
Penalty: 50 penalty units.
126F
Payment to Customs when information system is temporarily inoperative
(1) This section applies when a person who is
liable to make a payment to Customs and would ordinarily make the payment
electronically is unable to do so because an information system is temporarily
inoperative.
(2) The person may give an undertaking to
Customs to make the payment as soon as practicable after, and in any case not
later than 24 hours after, the CEO causes notice to be given under paragraph
126E(1)(b) stating that the information system has again become operative.
(3) If the person is notified by Customs that
the undertaking is accepted:
(a) this Act has the effect that it
would have if the payment had been made; and
(b) the person must comply with the
undertaking.
Penalty: 50 penalty units.
126G
Meaning of temporarily inoperative
An information system that has become
inoperative is not taken to be temporarily inoperative for the
purposes of this Part unless the CEO is satisfied that the period for which it
has been, or is likely to be, inoperative is significant.
Part VII—Ships’ stores and aircraft’s stores
127
Use of ships’ and aircraft’s stores
(1) Ships’ stores and aircraft’s stores,
whether shipped in a place outside Australia or in Australia:
(a) shall not be unshipped or
unloaded; and
(b) shall not be used before the
departure of the ship or aircraft from its last port of departure in Australia otherwise than for the use of the passengers or crew, or for the service, of the
ship or aircraft.
Penalty: 20 penalty units.
(2) Subsection (1) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) Subsection (1) does not apply if the
Collector has consented to the unshipping, unloading or use.
128
Unshipment of ships’ and aircraft’s stores
Ships’ stores and aircraft’s stores
which are unshipped or unloaded with the consent of the Collector shall be
entered:
(a) for home consumption; or
(b) for warehousing.
129
Ships’ and aircraft’s stores not to be taken on board without approval
(1) The master or owner of a ship or the
pilot or owner of an aircraft may make application to a Collector for the
approval of the Collector to take ship’s stores or aircraft’s stores on board
the ship or aircraft and the Collector may grant to the master, pilot or owner
of the ship or aircraft approval to take on board such ship’s stores or such
aircraft’s stores as the Collector, having regard to the voyage or flight to be
undertaken by the ship or aircraft and to the number of passengers and crew to
be carried, determines.
(2) Approval under the last preceding
subsection may be granted subject to the condition that the person to whom the
approval is granted complies with such requirements as are specified in the
approval, being requirements that, in the opinion of the Collector, are
necessary for the protection of the revenue of the Customs or for the purpose
of ensuring compliance with the Customs Acts.
(3) If, in relation to any goods, a person to
whom an approval has been granted under subsection (1) fails to comply
with a requirement specified in the approval:
(a) he or she is guilty of an offence
against this Act punishable, upon conviction, by a penalty not exceeding 20
penalty units; and
(b) if he or she failed to comply with
a requirement before the goods were placed on board the ship or aircraft—the
removal of the goods for the purpose of placing the goods on board the ship or
aircraft shall, for the purposes of paragraph 229(1)(g), be deemed not to have
been authorized by this Act.
(3A) Subsection (3) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(4) Ship’s stores or aircraft’s stores taken
on board a ship or aircraft otherwise than in accordance with an approval
granted under subsection (1) shall, notwithstanding that the goods are
taken on board by authority of an entry under this Act, be deemed, for the
purposes, to be prohibited exports.
130
Ship’s and aircraft’s stores exempt from duty
Except as provided by the regulations,
ship’s stores and aircraft’s stores are not liable to duties of Customs.
130A
Entry not required for ship’s or aircraft’s stores
Goods consisting of ship’s stores or
aircraft’s stores, other than goods of a prescribed kind, may be taken on board
a ship or aircraft in accordance with an approval granted under section 129
notwithstanding that an entry has not been made in respect of the goods
authorizing the removal of the goods to the ship or aircraft and duty has not
been paid on the goods.
130B
Payment of duty on ship’s or aircraft’s stores
(1) Where duty is payable on goods taken on
board a ship as ship’s stores, or on board an aircraft as aircraft’s stores, in
accordance with an approval granted under section 129 without duty having
been paid on the goods, the duty shall, on demand for payment of the duty being
made by a Collector to the master or owner of the ship or to the pilot or owner
of the aircraft, be paid as if the goods had been entered for home consumption
on the day on which the demand was made.
(2) The master or owner of a ship, if so
directed by an officer, must give to a Collector a return, in accordance with
the approved form, relating to the ship’s stores of the ship and to goods taken
on board the ship as ship’s stores.
(2AA) The return referred to in subsection (2)
must include details of any:
(a) drugs that are prohibited imports;
and
(b) firearms; and
(c) ammunition;
that are ship’s stores of the ship or have been taken on
board the ship as ship’s stores.
(2A) The owner of an aircraft, or, if so
directed by an officer, the pilot of an aircraft, shall:
(a) whenever so directed by an
officer, give to a Collector particulars of:
(i) the prescribed
aircraft’s stores of the aircraft; and
(ii) goods taken on board
the aircraft as prescribed aircraft’s stores; and
(b) immediately before the departure
of the aircraft from Australia, give to a Collector a return, in accordance
with the prescribed form, relating to drugs that are prohibited imports and:
(i) are aircraft’s stores
of the aircraft; or
(ii) have been taken on
board the aircraft as aircraft’s stores.
(3) A person who fails to comply with a
direction under subsection (2) or (2A) is guilty of an offence punishable
upon conviction by a penalty not exceeding 20 penalty units.
(3A) Subsection (3)
is an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(4) In subsection (2A), prescribed
aircraft’s stores means prescribed aircraft’s stores within the meaning
of section 129.
130C
Interpretation
In this Part:
aircraft does not include:
(a) an aircraft that is not currently
engaged in making international flights; or
(b) an aircraft that is currently
engaged in making international flights but is about to make a flight other
than an international flight.
aircraft’s stores means stores for the use of
the passengers or crew of an aircraft, or for the service of an aircraft.
international flight, in relation to an
aircraft, means a flight, whether direct or indirect, between:
(a) a place in Australia from which the aircraft takes off and a place outside Australia at which the
aircraft lands or is intended to land; or
(b) a place outside Australia from which the aircraft takes off and a place in Australia at which the aircraft
lands.
international voyage, in relation to a ship,
means a voyage, whether direct or indirect, between a place in Australia and a place outside Australia.
ship does not include:
(a) a ship that is not currently
engaged in making international voyages; or
(b) a
ship that is currently engaged in making international voyages but is about to
make a voyage other than an international voyage.
ship’s stores means stores for the use of the
passengers or crew of a ship, or for the service of a ship.
Part VIII—The duties
Division 1—The payment and computation of duties generally
131A
Fish caught by Australian ships
(1) Fish and other goods the produce of the
sea which are caught or gathered by a ship which:
(a) is registered in Australia; and
(b) was
fitted out for the voyage during which those fish or goods were caught or
gathered at a port or place in Australia;
shall not, when brought into Australia by that ship, or by
a tender (which is registered in Australia) of that ship, be liable to any duty
of Customs, or be subject to the control of the Customs.
131AA
Special provisions for goods taken to Joint Petroleum Development Area
(1) Goods taken out of Australia for the purpose of being taken to a resources installation in the Joint Petroleum
Development Area and there used for a purpose related to petroleum activities
are not liable to any duty of Customs in relation to the taking of the goods
out of Australia.
(2) Goods brought into Australia for the purpose of being taken to a resources installation in the Joint Petroleum
Development Area and there used for a purpose related to petroleum activities
are not liable to any duty of Customs in relation to the bringing of the goods
into Australia.
(3) In this section:
petroleum activities has the same meaning as
in the Treaty (within the meaning of the Petroleum (Timor Sea Treaty) Act
2003).
131B Liability
of Commonwealth authorities to pay duties of Customs
(1) Subject to
subsection (2), to the extent that, but for this section, an Act (whether
enacted before, on or after 1 July 1987) would:
(a) exempt a particular Commonwealth
authority from liability to pay duties of Customs; or
(b) exempt
a person from liability to pay duties of Customs in relation to goods for use
by a particular Commonwealth authority;
then, by force of this section, the exemption has no
effect.
(2) Subsection (1) does not apply to an
exemption if:
(a) the provision containing the
exemption is enacted after 30 June 1987; and
(b) the exemption expressly refers to
duties of Customs (however described).
132
Rate of import duty
(1) Subject to this section and to sections 105C
and 132B, the rate of any import duty payable on goods is the rate of the duty
in force when the goods are entered for home consumption.
(2) Where goods are entered for home
consumption more than once before import duty is paid on them, the rate at which
the import duty is payable is the rate of the duty in force when the goods were
first entered for home consumption.
(3) For the purposes of this section, if an
entry for home consumption in respect of goods is withdrawn under section 71F
and the goods are subsequently entered for warehousing, the entry for home
consumption is to be disregarded.
(4) The rate of any import duty on goods about
which the owner, or a person acting on behalf of the owner, is required by
section 71 to provide information is the rate of the duty in force at the
later of the following times (or either of them if they are the same):
(a) the time when the information is
provided;
(b) the time when the goods arrive in Australia.
(5) The rate
of any import duty on goods:
(a) that are goods of a kind referred
to in paragraph 68(1)(e); and
(b) about which neither the owner, nor
any person acting on behalf of the owner, is required to provide information;
is the rate of duty in force at the time when the goods
arrive in Australia.
132AA
When import duty must be paid
General rule
(1) Import duty payable on goods described in
an item of the following table must be paid by the time indicated in the item.
Import duty on goods covered by both items 1 and 2 is payable by the time
indicated in item 2.
|
When import duty must be paid
|
|
Item
|
Description of goods
|
Time by which duty on goods must be paid
|
|
1
|
Goods entered for home consumption
|
Time of entry of the goods for home consumption
|
|
2
|
Goods prescribed by the regulations and entered for home
consumption
|
Time worked out under the regulations made for the
purposes of this item
|
|
3
|
Goods about which the owner, or a person acting on behalf
of the owner, is required by section 71 to provide information
|
When the information is provided, or when the goods arrive
in Australia, whichever is later
|
|
4
|
Goods of a kind referred to in paragraph 68(1)(e) that are
not covered by item 3
|
Time of delivery of the goods into home consumption
|
Note: The regulations may prescribe goods by
reference to classes, and may provide for different times for payment for
different classes of goods. See subsection 33(3A) of the Acts Interpretation
Act 1901.
Regulations prescribing goods
(2) For the purposes of subsection (1),
goods may be prescribed by reference to a class identified by reference to
characteristics or actions of the persons importing goods in the class. This
does not limit the ways in which goods may be prescribed.
Regulations setting time for payment of duty
(3) For the purposes of subsection (1),
the regulations may provide for the time by which import duty must be paid to
be worked out by reference to a time specified by the CEO. This does not limit
the ways in which the regulations may provide for working out that time.
Exceptions to this section
(4) Subsection (1) has effect subject to
the provisions listed in column 2 of the following table:
|
Exceptions to this section
|
|
Column 1
Item
|
Column 2
Provisions
|
Column 3
Subject
|
|
1
|
paragraphs 69(5)(d) and 70(7)(b)
|
payment of duty on certain goods delivered into home
consumption without entry for home consumption
|
|
1A
|
subsection 71DGB(1)
|
payment of duty on certain goods by accredited clients
|
|
2
|
paragraphs 77D(5)(b) and 77E(5)(b)
|
payment of duty on goods delivered into home consumption
under special permission because the COMPILE computer system is not operating
properly
|
|
3
|
section 162A
|
temporary importation of goods without paying duty
|
132A
Prepayment of duty
Where, before goods are entered for home
consumption, an amount is paid to a Collector in respect of duty that may
become payable in respect of the goods, the amount shall, upon the goods being
entered for home consumption, be deemed, for the purposes of this Act, to be an
amount of duty paid in respect of the goods.
132B
Declared period quotas—effect on rates of import duty
(1) If at any time the CEO is of the opinion
that, for the reason that persons are anticipating, or may anticipate, an
increase in the rate of duty applicable to goods of a particular kind, the
quantity of goods of that kind that may be entered for home consumption during
a period is likely to be greater than it would otherwise be, the CEO may, by
notice published in the Gazette, declare that that period is, for the
purposes of this section, a declared period with respect to goods of that kind.
(2) The CEO shall, in a notice under subsection (1)
declaring that a period is a declared period for the purposes of this section,
specify in the notice another period being a period ending before the
commencement of the declared period, as the base period in relation to the
declared period.
(3) Where the CEO makes a declaration under subsection (1)
specifying a declared period in respect of goods of any kind, he or she may, in
respect of that kind of goods, or goods of a kind included in that kind of
goods, make an order in writing (in this Act referred to as a quota order)
applicable to a person specified in the order, being an order that states that
the person’s quota, for the declared period, in respect of goods of the kind to
which the order relates is such quantity as is specified in the order or is
nil, and, subject to subsection (4) of this section, the order comes into
force forthwith.
(4) Where, during a declared period, a person
enters goods for home consumption, being goods of a kind in respect of which
there is no quota order in force that is applicable to that person for the
declared period, the CEO may, before authority to deal with the goods is given
under section 71C or 71DE and whether or not the declared period has
expired, make, under subsection (3), a quota order that is applicable to
that person for that declared period in respect of goods of that kind, and a
quota order so made shall, unless the contrary intention appears in the order,
be deemed to have come into force immediately before the time of entry of the
goods.
(5) In making a quota order under subsection (3),
or revoking or varying a quota order under section 132C, with respect to a
person, the CEO shall have regard to the quantity of goods (if any) of the kind
to which the order relates that, at any time or times during the period that is
the base period with respect to the declared period to which the order relates
or during any other period that the CEO considers relevant, the person has
entered for home consumption, and to such other matters as the CEO considers
relevant.
(6) If:
(a) at any time during a declared
period, a person has entered any goods (in this section referred to as the
relevant goods) for home consumption, being goods of a kind in respect
of which there is in force at the time of entry of the goods a quota order that
states that the person’s quota in respect of goods of that kind is a quantity
specified in the order;
(b) the quantity of the relevant goods
so entered, together with goods (if any) of that kind previously entered for
home consumption by the person during the declared period, exceeds the quota;
and
(c) the
amount of import duty paid or payable on the relevant goods at the rate of duty
in force at the time of entry of the goods is less than the amount of duty
applicable to those goods in accordance with the rate of duty in force on the
day immediately following the last day of the declared period;
the rate of import duty payable on the relevant goods, or
on so much of the relevant goods as, together with goods (if any) of that kind
previously entered for home consumption by the person during the declared
period, exceeds the quota, is the rate of duty in force on the day immediately
following the last day of the declared period.
(7) If:
(a) at any time during a declared
period, a person has entered any goods for home consumption, being goods of a
kind in respect of which there is in force at the time of entry of the goods a
quota order that states that the person’s quota in respect of goods of that
kind is nil; and
(b) the
amount of import duty paid or payable on those goods at the rate of duty in
force at the time of entry of the goods is less than the amount of duty
applicable to those goods in accordance with the rate of duty in force on the
day immediately following the last day of the declared period;
the rate of import duty payable on the goods is the rate
of duty in force on the day immediately following the last day of the declared
period.
(8) Where at any time during a declared period,
a person enters any goods for home consumption, being goods of a kind in
respect of which there is in force at the time of entry of the goods a quota
order that is applicable to that person for the declared period, the Customs
shall have the right, before authority to deal with the goods is given under
section 71C or 71DE, in addition to requiring import duty to be paid on
the goods at the rate in force at that time of entry of the goods, to require
and take, for the protection of the revenue of the Customs in relation to any
additional amount of duty that may become payable on the goods, or on a part of
the goods, by virtue of the operation of subsection (6) or (7), security
by way of cash deposit of an amount equal to the amount of duty payable on the
goods, or on that part of the goods, at the rate in force at the time of entry
of the goods.
132C
Revocation and variation of quota orders
(1) The CEO may, by writing under his or her
hand, revoke or vary a quota order at any time before the expiration of the
declared period to which the quota order relates.
(2) Where a quota order is revoked by the CEO
under this section, the revocation shall be deemed to have taken effect on the
day on which the order came into force.
(3) The revocation of a quota order under
this section does not prevent the making of a further quota order that is
applicable to the person to whom the revoked quota order was applicable and
that has effect with respect to the declared period in respect of which the
revoked quota order had effect, whether or not the kind of goods to which the
further quota order relates is the same as the kind of goods to which the
revoked quota order related.
(4) Subject to subsection (5), a
variation of a quota order under this section shall, for the purposes of
section 132B, be deemed to have had effect on and from the day on which
the quota order came into force.
(5) Where:
(a) a quota order applicable to a
person states that the person’s quota in respect of goods of the kind to which
the order relates is a quantity specified in the order; and
(b) the
CEO varies the order in such a way that the order specifies a lesser quantity
or states that the person’s quota is nil;
the variation has effect on and from the day on which it
is made.
132D
Service of quota orders etc.
The CEO shall, as soon as practicable
after he or she makes a quota order or revokes or varies a quota order, cause a
copy of the quota order or of the revocation or variation, as the case may be,
to be served on the person to whom the quota order is applicable.
133
Export duties
(1) All export duties shall be finally
payable at the rate in force when the goods are actually exported but in the
first instance payment shall be made by the owner to the Collector at the rate
in force when the goods are entered for export.
(2) Duty imposed on coal by the Customs
Tariff (Coal Export Duty) Act 1975 shall be payable at the rate in force
when the coal is exported and shall be paid before the coal is exported or
within such further period as the Collector allows.
(5) Duty imposed on Alligator Rivers Region
uranium concentrate by the Customs Tariff (Uranium Concentrate Export Duty)
Act 1980 shall be payable at the rate in force when that concentrate is
exported and shall be paid before that concentrate is exported or within such
further period as the Collector allows.
134
Weights and measures
Where duties are imposed according to
weight or measure the weight or measurement of the goods shall be ascertained
according to the standard weights and measures by law established.
135
Proportion
Where duties are imposed according to a
specified quantity weight size or value the duties shall apply in proportion to
any greater or lesser quantity weight size or value.
136
Manner of fixing duty
Whenever goods (other than beer that is
entered for home consumption after 31 January 1989) are sold or prepared
for sale as or are reputed to be of a size or quantity greater than their
actual size or quantity duties shall be charged according to such first‑mentioned
size or quantity.
137
Manner of determining volumes of, and fixing duty on, beer
(1) For the purposes of the Customs Acts in
their application to beer that is entered for home consumption after 31 January 1989 in a bulk container, the container in which the beer is packaged
shall be treated as containing:
(a) if the volume of the contents of
the container is nominated for the purpose of the entry, the beer is entered
before 1 July 1991 and the actual volume of the contents of the container
does not exceed 101.5% of the nominated volume—the nominated volume;
(b) if the volume of the contents of
the container is nominated for the purpose of the entry, the beer is entered
before 1 July 1991 and the actual volume of the contents of the container
exceeds 101.5% of the nominated volume—a volume equal to the sum of:
(i) the nominated volume;
and
(ii) the volume by which
the actual volume of the contents of the container exceeds 101.5% of the
nominated volume;
(c) if the volume of the contents of
the container is nominated for the purpose of the entry, the beer is entered
after 30 June 1991 and the actual volume of the contents of the container
does not exceed 101% of the nominated volume—the nominated volume;
(d) if the volume of the contents of
the container is nominated for the purpose of the entry, the beer is entered
after 30 June 1991 and the actual volume of the contents of the container
exceeds 101% of the nominated volume—a volume equal to the sum of:
(i) the nominated volume;
and
(ii) the volume by which
the actual volume of the contents of the container exceeds 101% of the
nominated volume; or
(e) if
the volume of the contents of the container is not nominated for the purpose of
the entry—the actual volume of the contents of the container;
and duty on beer so entered shall be fixed accordingly.
(2) For the purposes of the application of
the Customs Acts in their application to beer that is entered for home
consumption after 31 January 1989 in a container other than a bulk
container, the container in which the beer is packaged shall be treated as
containing:
(a) if the volume of the contents of
the container is indicated on a label printed on, or attached to, the container
and the actual volume of the contents of the container does not exceed 101.5%
of the volume so indicated—the volume so indicated;
(b) if the volume of the contents of
the container is indicated on a label printed on, or attached to, the container
and the actual volume of the contents of the container exceeds 101.5% of the volume so indicated—a volume equal to the sum of:
(i) the volume so
indicated; and
(ii) the volume by which
the actual volume of the contents of the container exceeds 101.5% of the volume
so indicated; or
(c) if
the volume of the contents of the container is not indicated on a label printed
on, or attached to, the container—the actual volume of the contents of the
container;
and duty on beer so entered shall be fixed accordingly.
(3) In determining, for the purposes of this
section, the volume of the contents of containers entered for home consumption,
the Customs is not required to take a measurement of the contents of each
container so entered but may employ such methods of sampling as are approved in
writing by the CEO for the purpose.
(4) In this section:
bulk container, in relation to beer, means a
container that has the capacity to have packaged in it more than 2 litres of
beer.
container, in relation to beer, includes a
bottle, can or any other article capable of holding liquids.
142
Measurement for duty
Goods charged with duty by measurement
shall at the expense of the owner be heaped piled sorted framed or otherwise
placed in such manner as the Collector may require to enable measurement and
account thereof to be taken; and in all cases where the same are measured in
bulk the measurement shall be taken to the full extent of the heap or pile.
145
Value of goods sold
When the duty on any goods sold at any
Collector’s sale shall be ad valorem the value of such goods shall if
approved by the Collector be taken to be the value as shown by the sale.
148
Derelict goods dutiable
All goods derelict flotsam jetsam or
lagan or landed saved or coming ashore from any wreck or sold as droits of
Admiralty shall be charged with duty as if imported in the ordinary course.
149
Duty on goods in report of cargo that are not produced or landed
(1) If any dutiable goods which are included
in the report of any ship or aircraft are not produced to the officer the
master or owner of the ship or the pilot or owner of the aircraft shall on
demand by the Collector pay the duty thereon as estimated by the Collector
unless the goods are accounted for to the satisfaction of the Collector.
(2) For the purposes of sections 132 and
132AA, goods to which subsection (1) of this section applies that have not
been entered for home consumption shall be taken to have been entered for home
consumption on the day on which the demand for duty on the goods is made.
150
Samples
Small samples of the bulk of any goods
subject to the control of the Customs may, with the approval of a Collector, be
delivered free of duty.
152
Alterations to agreements where duty altered
(1) If after any agreement is made for the
sale or delivery of goods duty paid any alteration takes place in the duty
collected affecting such goods before they are entered for home consumption, or
for export, as the case may be, then in the absence of express written
provision to the contrary the agreement shall be altered as follows:
(a) In the event of the alteration
being a new or increased duty the seller after payment of the new or increased
duty may add the difference caused by the alteration to the agreed price.
(b) In the event of the alteration
being the abolition or reduction of duty the purchaser may deduct the
difference caused by the alteration from the agreed price.
(c) Any refund or payment of increased
duty resulting from the alteration not being finally adopted shall be allowed
between the parties as the case may require.
(2) Subsection (1) does not apply in
relation to duty imposed by the Customs Tariff (Coal Export Duty) Act 1975.
(3) Subsection (1) does not apply in
relation to duty imposed by the Customs Tariff (Uranium Concentrate Export
Duty) Act 1980.
Division 1AA—Calculation of duty on certain alcoholic beverages
153AA
Meaning of alcoholic beverage
In this Division:
alcoholic beverage has the meaning given by
the regulations.
153AB
Customs duty to be paid according to labelled alcoholic strength of prescribed
alcoholic beverages
(1) If:
(a) an alcoholic beverage is entered
for home consumption or delivered into home consumption in accordance with a
permission given under section 69; and
(b) the percentage by volume of the
alcoholic content of the beverage indicated on the beverage’s label exceeds the
actual percentage by volume of the alcoholic content of the beverage;
customs duty is to be charged according to the percentage
by volume of alcoholic content indicated on the label.
(2) If:
(a) an alcoholic beverage is entered
for or delivered into home consumption in a labelled form and an unlabelled
form; and
(b) subsection (1) applies to the
beverage in its labelled form;
then subsection (1) applies to the beverage in its
unlabelled form as if it had been labelled and the label had indicated the same
percentage by volume of alcoholic content as is indicated on the beverage in
its labelled form.
153AC
Rules for working out strength of prescribed alcoholic beverages
(1) The CEO may, by instrument in writing,
determine, in relation to an alcoholic beverage included in a class of
alcoholic beverages, rules for working out the percentage by volume of alcohol
in the beverage.
(2) Without limiting the generality of subsection (1),
rules determined by the CEO for working out the percentage by volume of alcohol
in an alcoholic beverage:
(a) may specify sampling methods; and
(b) may, for the purposes of working
out the customs duty payable, permit minor variations between the nominated or
labelled volume of alcohol in the beverage and the actual volume of alcohol in
the beverage so as to provide for unavoidable variations directly attributable
to the manufacturing process.
(3) The CEO may make different determinations
for alcoholic beverages included in different classes of alcoholic beverages.
(4) A determination applicable to an
alcoholic beverage included in a class of alcoholic beverages applies only to
an alcoholic beverage in that class that is entered for, or delivered into,
home consumption on or after the making of the determination.
(5) The CEO makes a determination public:
(a) by publishing it; and
(b) by publishing notice of it in the Gazette.
(6) The notice in the Gazette must
include a brief description of the contents of the determination.
(7) The determination is made at the later of
the time when it is published and the time when notice of it is published in
the Gazette.
153AD
Obscuration
If, in the opinion of the Collector, the
strength of any spirits cannot immediately be accurately ascertained by
application of the rules (if any) made for that purpose under section 153AC,
the strength may be ascertained after distillation or in any prescribed manner.
Division 1A—Rules of origin of preference claim goods
153A
Purpose of Division
(1) The purpose of this Division is to set
out rules for determining whether goods are the produce or manufacture:
(a) of a particular country other than
Australia; or
(b) of a Developing Country but not of
a particular Developing Country.
(2) Goods are not the produce or manufacture
of a country other than Australia unless, under the rules as so set out, they
are its produce or manufacture.
153B
Definitions
In this Division:
allowable factory cost, in relation to
preference claim goods and to the factory at which the last process of their
manufacture was performed, means the sum of:
(a) the allowable expenditure of the
factory on materials in respect of the goods worked out under section 153D;
and
(b) the allowable expenditure of the
factory on labour in respect of the goods worked out under section 153F;
and
(c) the allowable expenditure of the
factory on overheads in respect of the goods worked out under section 153G.
Developing Country has the same
meaning as in the Customs Tariff Act 1995.
factory, in relation to preference claim
goods, means:
(a) if the goods are claimed to be the
manufacture of a particular preference country—the place in that country where
the last process in the manufacture of the goods was performed; and
(b) if the goods are claimed to be the
manufacture of a preference country that is a Developing Country but not a
particular Developing Country—the place in Papua New Guinea or in a Forum
Island Country where the last process in the manufacture of the goods was
performed.
Forum Island Country has the same meaning as
in the Customs Tariff Act 1995.
inner container includes any container into
which preference claim goods are packed, other than a shipping or airline
container, pallet or other similar article.
Least Developed Country has the same meaning
as in the Customs Tariff Act 1995.
manufacturer, in relation to preference claim
goods, means the person undertaking the last process in their manufacture.
materials, in relation to preference claim
goods, means:
(a) if the goods are unmanufactured
raw products—those products; and
(b) if the goods are manufactured
goods—all matter or substances used or consumed in the manufacture of the goods
(other than that matter or those substances that are treated as overheads); and
(c) in either case—the inner containers
in which the goods are packed.
person includes partnerships and
unincorporated associations.
preference claim goods means goods that are
claimed, when they are entered for home consumption, to be the produce or
manufacture of a preference country.
preference country has the same meaning as in
the Customs Tariff Act 1995.
qualifying area,
in relation to particular preference claim goods, means:
(b) if the goods are claimed to be the
manufacture of Canada—Canada and Australia; or
(c) if the goods are claimed to be the
manufacture of Papua New Guinea—Papua New Guinea, the Forum Island Countries, New Zealand and Australia; or
(d) if the goods are claimed to be the
manufacture of a Forum Island Country—the Forum Island Countries, Papua New Guinea, New Zealand and Australia; or
(e) if the goods are claimed to be the
manufacture of a particular Developing Country—the Developing Country, Papua
New Guinea, the Forum Island Countries, the other Developing Countries and
Australia; or
(f) if the goods are claimed to be
the manufacture of a Developing Country but not a particular Developing
Country—Papua New Guinea, the Forum Island Countries, the Developing Countries
and Australia; or
(fa) if goods are claimed to be the
manufacture of a Least Developed Country—the Developing Countries, the Forum
Island Countries and Australia; or
(g) if the goods are claimed to be the
manufacture of a country that is not a preference country—that country and Australia.
total factory cost, in relation to preference
claim goods, means the sum of:
(a) the total expenditure of the
factory on materials in respect of the goods, worked out under section 153C;
and
(b) the allowable expenditure of the
factory on labour in respect of the goods, worked out under section 153F;
and
(c) the allowable expenditure of the
factory on overheads in respect of the goods, worked out under section 153G.
153C
Total expenditure of factory on materials
The total expenditure of a factory on
materials in respect of preference claim goods is the cost to the manufacturer
of the materials in the form they are received at the factory, worked out under
section 153E.
153D
Allowable expenditure of factory on materials
General rule for determining allowable expenditure of a
factory on materials
(1) Subject to the exceptions set out in this
section, the allowable expenditure of a factory on materials in respect of
preference claim goods is the cost to the manufacturer of those materials in
the form they are received at the factory, worked out under section 153E.
Goods wholly or partly manufactured from materials
imported from outside the qualifying area
(2) If:
(a) preference claim goods (other than
goods wholly manufactured from unmanufactured raw products) are manufactured,
in whole or in part, from particular materials; and
(b) those
particular materials, in the form they are received at the factory, are
imported from a country outside the qualifying area;
there is no allowable expenditure of the factory on those
particular materials.
Goods claimed to be the manufacture of a Least
Developed Country—special rule
(2A) If:
(a) goods claimed to be the
manufacture of a Least Developed Country contain materials that, in the form
they were received by the factory, were manufactured or produced in Developing
Countries that are not Least Developed Countries; and
(b) the allowable expenditure of the
factory on those materials in aggregate would, but for this subsection, exceed
25% of the total factory cost of the goods;
that allowable expenditure on those materials is taken to
be 25% of the total factory cost of the goods.
Inland freight rule
(3) If:
(a) preference claim goods are
manufactured, in whole or in part, from particular materials; and
(b) the preference country is Papua New Guinea or a Forum Island Country; and
(ba) the goods are claimed to be the
manufacture of Papua New Guinea or a Forum Island Country; and
(c) those particular materials:
(i) were imported into the
preference country from a country outside the qualifying area; or
(ii) incorporate
other materials (contributing materials) imported into the
preference country from a country outside the qualifying area;
then, despite subsection (2), the allowable
expenditure of the factory on those particular materials includes:
(d) the cartage of those particular
materials; or
(e) the
part of the cost of those particular materials that is attributable to the
cartage of those contributing materials;
from the port or airport in the preference country where
those particular materials or contributing materials are first landed to the
factory or to the plant where they are processed or first processed.
Goods wholly or partly manufactured from materials
imported from outside the qualifying area—intervening manufacture
(4) If:
(a) preference claim goods are
manufactured, in whole or in part, from particular materials; and
(b) other materials (contributing
materials) have been incorporated in those particular materials; and
(c) those contributing materials were
imported into a country in the qualifying area from a country outside the
qualifying area; and
(d) after
their importation and to achieve that incorporation, those contributing
materials have been subjected to a process of manufacture, or a series of
processes of manufacture, in the qualifying area without any intervening
exportation to a country outside that area;
the allowable expenditure of the factory on those
particular materials in the form they are received at the factory does not
include any part of the cost of those particular materials to the manufacturer,
worked out under section 153E, that is attributable to the cost of those
contributing materials in the form in which the contributing materials were
received by the person who subjected them to their first manufacturing process
in the qualifying area after importation.
Intervening export of contributing materials
(5) If contributing materials within the
meaning of subsection (4) are, after their importation into a country in
the qualifying area and before their incorporation into the particular
materials from which preference claim goods are manufactured, subsequently
exported to a country outside that area, then, on their reimportation into a
country in the qualifying area, subsection (2) or (4), as the case
requires, applies as if that subsequent reimportation were the only importation
of those materials.
(6A) If:
(a) goods claimed to be the
manufacture of Papua New Guinea or a particular Forum Island Country are
manufactured, in whole or in part, from particular materials; and
(b) if
the qualifying area for that country consisted only of that country and
Australia—under subsection (4), the allowable expenditure of the factory
on those particular materials, after excluding any costs required to be
excluded under subsection (4), would be at least 50% of the total
expenditure of the factory on those particular materials worked out in
accordance with section 153C;
then, despite subsection (4), the allowable
expenditure of the factory on those particular materials is taken to be that
total expenditure.
Waste or scrap
(7) If:
(a) materials are imported into a
country; and
(b) the subjecting of those materials
to a process of manufacture gives rise to waste or scrap; and
(c) that
waste or scrap is fit only for the recovery of raw materials;
any raw materials that are so recovered in that country
are to be treated, for the purposes of this section, as if they were
unmanufactured raw products of that country.
Transhipment
(8) If, in the course of their exportation
from one country to another country, materials are transhipped, that
transhipment is to be disregarded for the purpose of determining, under this
section, the country from which the materials were exported.
153E
Calculation of the cost of materials received at a factory
Purpose of section
(1) This section sets out, for the purposes
of sections 153C and 153D, the rules for working out the cost of materials
in the form they are received at a factory.
General rule
(2) Subject to this section, the cost of
materials received at a factory is the amount paid or payable by the
manufacturer in respect of the materials in the form they are so received.
Customs and excise duties and certain other taxes to be
disregarded
(3) Any part of the cost of materials in the
form they are received at a factory that represents:
(a) a customs or excise duty; or
(b) a
tax in the nature of a sales tax, a goods and services tax, an anti‑dumping
duty or a countervailing duty;
imposed on the materials by a country in the qualifying
area is to be disregarded.
CEO may require artificial elements of cost to be
disregarded
(4) If the CEO is satisfied that preference
claim goods consist partly of materials added or attached solely for the
purpose of artificially raising the allowable factory cost of the goods, the CEO
may, by written notice given to the importer of the preference claim goods,
require the part of that cost that is, in the CEO’s opinion, reasonably
attributable to those materials, to be disregarded.
CEO may require cost over normal market value to be disregarded
(5) If the CEO is satisfied that the cost to
the manufacturer of materials in the form they are received at a factory
exceeds, by an amount determined by the CEO, the normal market value of the
materials, the CEO may, by written notice given to the importer of preference
claim goods in which those materials are incorporated, require the excess to be
disregarded.
CEO may determine cost of certain materials received at
a factory
(6) If the CEO is satisfied:
(a) that materials in the form they are
received at a factory are so received:
(i) free of charge; or
(ii) at a cost that is less
than the normal market value of the materials; and
(b) that
the receipt of the materials free of charge or at a reduced cost has been
arranged, directly or indirectly, by a person who will be the importer of
preference claim goods in which those materials are incorporated;
the CEO may, by written notice given to the importer,
require that an amount determined by the CEO to be the difference between the
cost, if any, paid by the manufacturer and the normal market value be treated
as the amount, or a part of the amount, paid by the manufacturer in respect of
the materials.
Effect of determination
(7) If the CEO gives a notice to the importer
of preference claim goods under subsection (4), (5) or (6) in respect of
materials incorporated in those goods, the cost of the materials to the
manufacturer must be determined having regard to the terms of that notice.
153F
Allowable expenditure of factory on labour
Calculation of allowable expenditure of factory on
labour
(1) Allowable expenditure of a factory on
labour in respect of preference claim goods means the sum of the part of each
cost prescribed for the purposes of this subsection:
(a) that is incurred by the manufacturer
of the goods; and
(b) that relates, directly or
indirectly, and wholly or partly, to the manufacture of the goods; and
(c) that can reasonably be allocated
to the manufacture of the goods.
Regulations may specify manner of working out cost
(2) Regulations prescribing a cost for the
purposes of subsection (1) may also specify the manner of working out that
cost.
153G
Allowable expenditure of factory on overheads
Calculation of allowable expenditure of factory on
overheads
(1) Allowable expenditure of a factory on
overheads in respect of preference claim goods means the sum of the part of
each cost prescribed for the purposes of this subsection:
(a) that is incurred by the
manufacturer of the goods; and
(b) that relates, directly or
indirectly, and wholly or partly, to the manufacture of the goods; and
(c) that can reasonably be allocated
to the manufacture of the goods.
Regulations may specify manner of working out cost
(2) Regulations prescribing a cost for the
purposes of subsection (1) may also specify the manner of working out that
cost.
153H
Unmanufactured goods
Goods claimed to be the produce of a
country are the produce of that country if they are its unmanufactured raw
products.
153L
Manufactured goods originating in Papua New Guinea or a Forum Island Country
Rule for certain goods wholly manufactured in Papua New Guinea
(1) Goods claimed to be the manufacture of Papua New Guinea are the manufacture of that country if they are wholly manufactured in Papua New Guinea from one or more of the following:
(a) unmanufactured raw products;
(b) materials wholly manufactured in Australia or Papua New Guinea or Australia and Papua New Guinea;
(c) materials imported into Papua New Guinea that the CEO has determined, by Gazette notice, to be manufactured
raw materials of Papua New Guinea.
Rule for manufactured goods last processed in PNG or a Forum Island Country
(2) Goods claimed to be the manufacture of
Papua New Guinea or of a Forum Island Country are the manufacture of that
country if:
(a) the last process in their
manufacture was performed in that country; and
(b) having regard to their qualifying
area, their allowable factory cost is not less than the specified percentage of
their total factory cost.
Specified percentage
(4) The specified percentage of the total
factory cost of goods referred to in subsection (2) is:
(a) unless paragraph (b)
applies—50%; or
(b) if the goods are of a kind for
which the CEO has determined, by Gazette notice, that a lesser
percentage is appropriate—that percentage.
153LA
Modification of section 153L in special circumstances
When 50% in subsection 153L(4) can be read as 48%
(1) If the CEO is satisfied:
(a) that the allowable factory cost of
preference claim goods in a shipment of such goods that are claimed to be the
manufacture of Papua New Guinea or a Forum Island Country is at least 48% but
not 50% of the total factory cost of those goods; and
(b) that the allowable factory cost of
those goods would be at least 50% of the total factory cost of those goods if
an unforeseen circumstance had not occurred; and
(c) that
the unforeseen circumstance is unlikely to continue;
the CEO may determine, in writing, that section 153L
has effect:
(d) for the purpose of the shipment of
goods that is affected by that unforeseen circumstance; and
(e) for
the purposes of any subsequent shipment of similar goods that is so affected
during a period specified in the determination;
as if the reference in subsection 153L(4) to 50% were a
reference to 48%.
Effect of determination
(2) If the CEO makes a determination, then,
in relation to all preference claim goods imported into Australia that are
covered by the determination, section 153L has effect in accordance with
the determination.
CEO may revoke determination
(3) If:
(a) the CEO makes a determination; and
(b) the
CEO becomes satisfied that the unforeseen circumstance giving rise to the
determination no longer continues;
the CEO may, by written notice, revoke the determination
despite the fact that the period referred to in the determination has not
ended.
Definition of similar goods
(4) In this section:
similar goods, in relation to goods in a
particular shipment, means goods:
(a) that are contained in another
shipment that is imported by the same importer; and
(b) that undergo the same process or
processes of manufacture as the goods in the first‑mentioned shipment.
153M
Manufactured goods originating in a particular Developing Country
Goods claimed to be the manufacture of a
particular Developing Country are the manufacture of that country if:
(a) the last process in their
manufacture was performed in that country; and
(b) having regard to their qualifying
area, their allowable factory cost is at least 50% of their total factory cost.
153N
Manufactured goods originating in a Developing Country but not in any
particular Developing Country
Goods claimed to be the manufacture of a
Developing Country, but not of any particular Developing Country, are the
manufacture of a Developing Country, but not a particular Developing Country,
if:
(a) the last process in their
manufacture was performed in Papua New Guinea or a Forum Island Country; and
(b) they are not the manufacture of Papua New Guinea or a Forum Island Country under section 153L; and
(c) having regard to their qualifying
area, their allowable factory cost is at least 50% of their total factory cost.
153NA
Manufactured goods originating in a Least Developed Country
Goods claimed to be the manufacture of a
Least Developed Country are the manufacture of that country if:
(a) the last process in their
manufacture was performed in that country; and
(b) having regard to their qualifying
area, their allowable factory cost is at least 50% of their total factory cost.
153P
Manufactured goods originating in Canada
General rule
(1) Despite section 153H and subsections (2)
and (3), goods claimed to be the produce or manufacture of Canada are not the produce or manufacture of that country unless:
(a) they have been shipped to Australia from Canada; and
(b) either:
(i) they have not been
transhipped; or
(ii) the CEO is satisfied
that, when they were shipped from Canada, their intended destination was Australia.
Rule for certain manufactured goods wholly manufactured
in Canada
(2) Goods claimed to be the manufacture of Canada are the manufacture of that country if they are wholly manufactured in Canada from one or more of the following:
(a) unmanufactured raw products;
(b) materials wholly manufactured in Australia or Canada or Australia and Canada;
(c) materials imported into Canada that the CEO has determined, by Gazette notice, to be manufactured raw
materials of Canada.
Rule for other manufactured goods last processed in Canada
(3) Goods claimed to be the manufacture of Canada are the manufacture of that country if:
(a) the last process in their
manufacture was performed in Canada; and
(b) having regard to their qualifying
area, their allowable factory cost is not less than the specified percentage of
their total factory cost.
Specified percentage
(4) The specified percentage of the total
factory cost of goods referred to in subsection (3) is:
(a) if the goods are of a kind
commercially manufactured in Australia—75%; or
(b) if the goods are of a kind not
commercially manufactured in Australia—25%.
153Q
Manufactured goods originating in a country that is not a preference country
Rule for certain goods wholly manufactured in a country
that is not a preference country
(1) Goods claimed to be the manufacture of a
country that is not a preference country are the manufacture of that country if
they are wholly manufactured in that country from one or more of the following:
(a) unmanufactured raw products;
(b) materials wholly manufactured in Australia or the country or Australia and the country;
(c) materials imported into the
country that the CEO has determined, by Gazette notice, to be
manufactured raw materials of the country.
Rule for other manufactured goods last processed in a
country that is not a preference country
(2) Goods claimed to be the manufacture of a
country that is not a preference country are the manufacture of that country
if:
(a) the last process in their
manufacture was performed in that country; and
(b) having regard to their qualifying
area, their allowable factory cost is not less than the specified percentage of
their total factory cost.
Specified percentage
(3) Subject to subsection (4), the
specified percentage of the total factory cost of goods referred to in subsection (2)
is:
(a) if the goods are of a kind
commercially manufactured in Australia—75%; or
(b) if the goods are of a kind not
commercially manufactured in Australia—25%.
Special rule for Christmas Island, Cocos (Keeling) Islands and Norfolk Island
(4) If the country that is not a preference
country is Christmas Island, Cocos (Keeling) Islands or Norfolk Island, the
specified percentage of the total factory cost of goods referred to in subsection (2)
is:
(a) if the goods are of a kind
commercially manufactured in Australia—50%; or
(b) if the goods are of a kind not
commercially manufactured in Australia—25%.
153R
Are goods commercially manufactured in Australia?
CEO may determine that goods are, or are not,
commercially manufactured in Australia
(1) For the purposes of sections 153P
and 153Q, the CEO may, by Gazette notice, determine that goods of a
specified kind are, or are not, commercially manufactured in Australia.
Effect of determination
(2) If such a determination is made, this
Division has effect accordingly.
153S
Rule against double counting
In determining the allowable factory
cost or the total factory cost of preference claim goods, a cost incurred,
whether directly or indirectly, by the manufacturer of the goods must not be
taken into account more than once.
Division 1B—Rules of origin of goods claimed to be the produce or
manufacture of Singapore
Subdivision A—Preliminary
153U
Purpose of this Division
The purpose of this Division is to set
out rules for determining whether goods are the produce or manufacture of Singapore.
153UA
Definitions
In this Division:
allowable cost to manufacture has the meaning
given by section 153W.
allowable expenditure by the principal manufacturer
on labour has the meaning given by section 153WB.
allowable expenditure by the principal manufacturer
on materials has the meaning given by section 153WA.
allowable expenditure by the principal manufacturer
on overheads has the meaning given by section 153WC.
Certificate of Origin means a certificate
that complies with the requirements of Annex 2A of SAFTA.
cultivate includes cultivate by a process of
aquaculture.
input means any matter or substance used or
consumed in the manufacture or production of a material, other than a matter or
substance that is treated as an overhead.
manufacture means the creation of an article essentially
different from the matters or substances that go into such manufacture and does
not include the following activities (whether performed alone or in combination
with each other):
(a) restoration or renovation
processes such as repairing, reconditioning, overhauling or refurbishing;
(b) minimal
operations;
(c) quality control inspections.
material means any matter or substance
purchased by the principal manufacturer of the goods and used or consumed in
the processing of the goods, other than any matter or substance that is treated
as an overhead.
minimal operations means pressing, labelling,
ticketing, packaging and preparation for sale, or any similar process, whether
conducted alone or in combination with each other.
partly manufactured in Singapore, in relation
to goods, has the meaning given by section 153VB.
person includes partnerships and
unincorporated associations.
principal manufacturer, in relation to goods,
means the person in Singapore who performs, or has had performed on its
behalf, the last process of manufacture of the goods.
process means any operation performed on
goods, and includes:
(a) a process of manufacture; and
(b) minimal operations; and
(c) quality control inspections.
produce, in relation to wholly obtained
goods, means grow, mine, harvest, fish, hunt, gather, trap, capture, farm,
cultivate or otherwise obtain wholly obtained goods.
SAFTA means the Singapore‑Australia Free
Trade Agreement done at Singapore on 17 February 2003, as amended from time to time.
Note: In 2003 the text of the Agreement was
accessible through the website of the Department of Foreign Affairs and Trade.
total cost to manufacture has the meaning
given by section 153X.
total expenditure by the principal manufacturer on
materials has the meaning given by section 153XA.
total expenditure by the principal manufacturer on
overseas processing costs has the meaning given by section 153XB.
unmanufactured raw
products means:
(a) natural or primary products that
have not been subjected to an industrial process, other than an ordinary
process of primary production, and includes:
(i) animals and products
obtained from animals, including greasy wool; and
(ii) plants and products
obtained from plants; and
(iii) minerals in their
natural state and ores; and
(iv) crude petroleum; or
(b) raw materials recovered in Singapore or in Australia from waste and scrap.
waste and scrap means only waste and scrap
that:
(a) have been derived from
manufacturing operations or consumption; and
(b) are fit only for the recovery of
raw materials.
wholly manufactured in Singapore, in relation
to goods, has the meaning given by section 153VA.
wholly obtained goods means:
(a) unmanufactured raw products; or
(b) waste and scrap.
153UB
Rule against double counting
In determining:
(a) the allowable cost to manufacture;
or
(b) the total cost to manufacture;
goods claimed to be the produce or manufacture of Singapore, a cost incurred, whether directly or indirectly, by the principal manufacturer
of the goods must not be taken into account more than once.
153UC
CEO may determine cost of certain input, material etc.
If the CEO is satisfied that any input,
material, labour, overhead or overseas process was provided:
(a) free of charge; or
(b) at a price that is inconsistent with
the normal market value of that input, material, labour, overhead or overseas
process;
the CEO may require, in writing, that an amount determined
by the CEO to be the normal market value of that input, material, labour,
overhead or overseas process be treated, for the purposes of this Division, as
the amount paid by the manufacturer for the input, material, labour, overhead
or overseas process.
Subdivision B—Rules of origin of goods claimed to be the produce or
manufacture of Singapore
153V
Goods claimed to be the produce or manufacture of Singapore
Goods claimed to be produce of Singapore
(1) Goods claimed to be the produce of Singapore are the produce of that country if they are wholly obtained goods produced in Singapore.
Goods claimed to be manufacture of Singapore
(2) Goods claimed to be the manufacture of Singapore are the manufacture of that country if:
(a) they are wholly manufactured in Singapore; or
(b) they are partly manufactured in Singapore.
(3) This section is subject to sections 153VE
and 153VF.
153VA
Goods wholly manufactured in Singapore
Goods are wholly manufactured in Singapore if they are manufactured in that country from one or more of the
following:
(a) unmanufactured raw products;
(b) waste and scrap produced in Singapore or Australia;
(c) materials wholly manufactured
within Singapore or Australia;
(d) materials imported into Singapore that the CEO has determined, by Gazette notice, to be manufactured raw
materials of Singapore.
153VB
Goods partly manufactured in Singapore
General rule
(1) Goods are partly manufactured in Singapore if:
(a) in relation to any goods—subsection (2)
applies to the goods; or
(b) in relation to any goods that are
not specified in Annex 2C of SAFTA—subsection (5) applies to the goods.
Any goods
(2) This subsection applies to the goods if:
(a) the last process of manufacture
was performed in Singapore by, or on behalf of, the principal manufacturer; and
(b) the allowable cost to manufacture
the goods is not less than:
(i) if the goods are
specified in Annex 2D of SAFTA—30% of the total cost to manufacture the goods;
or
(ii) in any other case—50%
of the total cost to manufacture the goods.
Costs not included in allowable cost to manufacture—any
goods
(3) For the purposes of subsection (2),
the allowable cost to manufacture the goods does not include the following:
(a) the cost of any material purchased
by the principal manufacturer and subsequently processed outside Singapore or Australia;
(b) the cost of processing (including
the cost of labour and overheads) any materials referred to in paragraph (a)
that is performed, whether in Singapore or Australia or elsewhere, up until the
processed material is returned to Singapore.
Minimal operations or quality control inspections
(4) For the purposes of subsection (2),
if minimal operations or quality control inspections are conducted by, or on
behalf of, the principal manufacturer in Singapore, as part of a process of
manufacturing the goods, the cost of those minimal operations or quality control
inspections may be included in the calculation of:
(a) the total expenditure on
materials; and
(b) the allowable expenditure on
materials, labour and overheads;
to the extent that they relate to the cost of materials,
labour or overheads, as the case requires.
Goods other than those specified in Annex 2C
(5) This subsection applies to the goods if:
(a) one or more processes of
manufacture was or were performed on the goods in Singapore by, or on behalf
of, the principal manufacturer; and
(b) one or more processes was or were
performed on the goods in Singapore by, or on behalf of, the principal
manufacturer immediately prior to export of the goods to Australia; and
(c) the principal manufacturer in Singapore incurred all the costs associated with any process performed on the goods outside
Singapore or Australia; and
(d) the allowable cost to manufacture
the goods is not less than:
(i) if the goods are
specified in Annex 2D of SAFTA—30% of the total cost to manufacture the goods;
or
(ii) in any other case—50%
of the total cost to manufacture the goods.
Costs not included in allowable cost to
manufacture—other goods
(6) For the purposes of subsection (5),
the allowable cost to manufacture the goods does not include the cost of
processing (including the cost of labour or overheads) any material outside Singapore or Australia.
153VC
Reduction of the required percentage of allowable cost to manufacture in
unforeseen circumstances
When 30% in subsection 153VB(2) or 153VB(5) can be read
as 28%
(1) If the CEO is satisfied:
(a) that the allowable cost to
manufacture goods that are claimed to be the manufacture of Singapore, in a
shipment of such goods, is at least 28% but not 30%, of the total cost to
manufacture those goods; and
(b) that the allowable cost to
manufacture those goods would be at least 30% of the total cost to manufacture
those goods if an unforeseen circumstance had not occurred; and
(c) that the unforeseen circumstance
is unlikely to continue;
the CEO may determine, in writing, that subsection
153VB(2) or 153VB(5) has effect:
(d) for the purposes of the shipment
of goods that is affected by that unforeseen circumstance; and
(e) for the purposes of any subsequent
shipment of similar goods that is so affected during a period specified in the
determination;
as if the reference in subsection 153VB(2) or 153VB(5) to
30% were a reference to 28%.
When 50% in subsection 153VB(2) or 153VB(5) can be read
as 48%
(2) If the CEO is satisfied:
(a) that the allowable cost to
manufacture goods that are claimed to be the manufacture of Singapore, in a
shipment of such goods, is at least 48% but not 50%, of the total cost to
manufacture those goods; and
(b) that the allowable cost to
manufacture those goods would be at least 50% of the total cost to manufacture
those goods if an unforeseen circumstance had not occurred; and
(c) that the unforeseen circumstance
is unlikely to continue;
the CEO may determine, in writing, that subsection
153VB(2) or 153VB(5) has effect:
(d) for the purposes of the shipment
of goods that is affected by that unforeseen circumstance; and
(e) for the purposes of any subsequent
shipment of similar goods that is so affected during a period specified in the
determination;
as if the reference in subsection 153VB(2) or 153VB(5) to
50% were a reference to 48%.
Effect of determination
(3) If the CEO makes a determination under
this section then, in relation to all goods imported into Australia that are
covered by that determination, section 153VB has effect in accordance with
the determination.
CEO may revoke determination
(4) If:
(a) the CEO has made a determination
under this section; and
(b) the CEO becomes satisfied that the
unforeseen circumstance giving rise to the determination no longer continues;
the CEO may, by written notice, revoke the determination
despite the fact that the period referred to in the determination has not
ended.
Similar goods
(5) In this section:
similar goods, in relation to goods in a
particular shipment, means goods:
(a) that are contained in another
shipment that is imported by the same importer; and
(b) that are covered by the same
Certificate of Origin.
153VD
Changing the required percentage of allowable cost to manufacture in
exceptional circumstances
CEO may determine a different percentage
(1) If the CEO is satisfied that exceptional
circumstances apply, the CEO may determine, by Gazette notice, that a
reference to a percentage in subsection 153VB(2) or 153VB(5) is taken to be a
reference to another percentage in respect of particular goods or goods of a
specific class or kind during a period specified in the determination.
Effect of determination
(2) If the CEO makes a determination under
this section then, in relation to all goods imported into Australia that are
covered by that determination, section 153VB has effect in accordance with
the determination.
CEO may revoke determination
(3) If:
(a) the CEO makes a determination
under this section; and
(b) the CEO becomes satisfied that the
exceptional circumstances giving rise to the determination no longer continue;
the CEO may, by Gazette notice, revoke the
determination despite the fact that the period referred to in the determination
has not ended.
153VE
Certificate of Origin requirements
Certificate of Origin
(1) Goods claimed to be the produce or
manufacture of Singapore are not the produce or manufacture of Singapore, unless:
(a) at the time of entry of the goods,
the importer of the goods holds a valid Certificate of Origin relevant to those
goods; and
(b) if, at the time of entry of the
goods, the importer of the goods has previously used that Certificate of Origin
in respect of goods of the same kind—at the time of entry of the goods to which
the claim relates, the importer of those goods also holds a declaration
relevant to those goods; and
(c) if an officer requests production
of a copy of any document that the importer of the goods is required under
paragraph (a) or (b) to hold—a copy of that document is produced to the
officer.
Declaration
(2) In this section:
declaration means a declaration made, by the
exporter of the goods in question from Singapore, in accordance with Article
11.6 of Chapter 3 of SAFTA.
153VF
Consignment requirements
Goods
claimed to be the produce or manufacture of Singapore are not the produce or
manufacture of Singapore, unless:
(a) they have been transported
directly to Australia from Singapore; or
(b) they have been transported through
a country or place other than Singapore or Australia but:
(i) did not undergo
operations in that country or place other than packing, packaging, unloading,
reloading or operations to preserve them in good condition; and
(ii) were not traded or
used in that country or place; or
(c) they have been transported from a
country or place other than Singapore where minimal operations were performed
immediately after importation from Singapore and immediately before their
exportation to Australia.
Subdivision C—Allowable cost to manufacture
153W
Allowable cost to manufacture
The allowable cost to manufacture
goods is the sum of:
(a) the allowable expenditure by the
principal manufacturer on materials in respect of the goods; and
(b) the allowable expenditure by the
principal manufacturer on labour in respect of the goods; and
(c) the allowable expenditure by the principal
manufacturer on overheads in respect of the goods.
153WA
Allowable expenditure by principal manufacturer on materials
General rule
(1) The allowable expenditure by the
principal manufacturer on materials in respect of goods is the amount
incurred, directly or indirectly, by the principal manufacturer for all
materials, in the form purchased by the principal manufacturer, that were
manufactured or produced in Singapore or Australia.
Particular matters included in allowable expenditure on
materials
(2) The allowable expenditure by the
principal manufacturer on materials in respect of goods includes:
(a) freight, insurance, shipping and
packing costs and all other costs, incurred directly or indirectly by the
principal manufacturer, in transporting the materials to the first place in
Singapore or Australia at which a process is performed on those materials by or
on behalf of the principal manufacturer; and
(b) customs brokerage fees, incurred
directly or indirectly by the principal manufacturer on the materials paid in Singapore or Australia or both.
What is not included in allowable expenditure on
materials
(3) The allowable expenditure by the
principal manufacturer on materials in respect of goods does not include the
following:
(a) a customs or excise duty imposed
on the materials by or under a law of Singapore or Australia;
(b) a tax in the nature of a sales
tax, a goods and services tax, an anti‑dumping duty or a countervailing duty,
imposed on the materials by or under a law of Singapore or Australia;
(c) the cost of any input that, in the
form it was received by the manufacturer or producer of the materials, was not
manufactured or produced in Singapore or Australia.
Total cost of inputs may be included in allowable
expenditure on materials
(4) Despite paragraph (3)(c), the total
cost of those inputs that would, because of that paragraph, not have been
included in the allowable expenditure on a material by the principal
manufacturer may be included in that allowable expenditure if the total cost
does not exceed 50% of the total expenditure by the principal manufacturer on
that material.
(5) Subsection (4) does not apply in
relation to materials that are provided for processing in a country other than Singapore or Australia.
153WB
Allowable expenditure by principal manufacturer on labour
The allowable expenditure by the
principal manufacturer on labour, in respect of goods, is the sum of
those parts, of the costs relating to the goods that are costs referred to in
section (i) of Annex 2B of SAFTA, that:
(a) are incurred, directly or
indirectly, by the principal manufacturer; and
(b) relate, directly or indirectly,
and wholly or partly, to the processing of the goods in Singapore; and
(c) can reasonably be allocated to the
processing of the goods in Singapore.
153WC
Allowable expenditure by principal manufacturer on overheads
The allowable expenditure by the
principal manufacturer on overheads, in respect of goods, is the sum of
those parts, of the costs relating to the goods that are costs allowed in
section (ii) of Annex 2B of SAFTA, that:
(a) are incurred, directly or
indirectly, by the principal manufacturer; and
(b) relate, directly or indirectly,
and wholly or partly, to the processing of the goods in Singapore; and
(c) can reasonably be allocated to the
processing of the goods in Singapore.
Subdivision D—Total cost to manufacture
153X
Total cost to manufacture
The total cost to manufacture
goods is the sum of:
(a) the total expenditure by the
principal manufacturer on materials in respect of the goods; and
(b) the allowable expenditure by the
principal manufacturer on labour in respect of the goods; and
(c) the allowable expenditure by the
principal manufacturer on overheads in respect of the goods; and
(d) the total expenditure (if any) by
the principal manufacturer on overseas processing costs in respect of the
goods.
153XA
Total expenditure by principal manufacturer on materials
General rule
(1) The total expenditure by the
principal manufacturer on materials in respect of goods is the amount
incurred, directly or indirectly, by the principal manufacturer for all
materials.
What is included in total expenditure on materials
(2) The total expenditure by the
principal manufacturer on materials in respect of goods includes:
(a) freight, insurance, shipping and
packing costs and all other costs, incurred directly or indirectly by the
principal manufacturer, in transporting the materials to the first place in
Singapore or Australia at which a process is performed on those materials by or
on behalf of the principal manufacturer; and
(b) customs brokerage fees, incurred
directly or indirectly by the principal manufacturer, on the materials paid in Singapore or Australia or both.
What is not included in total expenditure on materials
(3) The total expenditure by the principal
manufacturer on materials in respect of goods does not include:
(a) a customs or excise duty; or
(b) a tax in the nature of a sales
tax, a goods and services tax, an anti‑dumping duty or a countervailing duty;
imposed on the materials by or under a law of Singapore or Australia.
153XB
Total expenditure by principal manufacturer on overseas processing costs
The total expenditure by the
principal manufacturer on overseas processing costs in respect of goods
is the sum of those parts, of the costs relating to the goods, that:
(a) are incurred, directly or
indirectly, by the principal manufacturer; and
(b) relate, directly or indirectly,
and wholly or partly, to the processing of the goods outside Singapore or Australia, including any associated transport costs; and
(c) can reasonably be allocated to the
processing of the goods.
Division 1C—US originating goods
Subdivision A—Preliminary
153Y
Simplified outline
The following is a simplified outline of
this Division:
• This Division defines US
originating goods. Preferential rates of customs duty under the Customs
Tariff Act 1995 apply to US originating goods that are imported into Australia.
• Subdivision B provides that
goods are US originating goods if they are wholly obtained or
produced entirely in the US.
• Subdivision C provides that
goods are US originating goods if they are produced entirely in
the US, or in the US and Australia, exclusively from originating materials.
• Subdivision D sets out when
goods (except clothing and textiles) that are produced entirely in the US, or in the US and Australia, from non‑originating materials only, or from non‑originating
materials and originating materials, are US originating goods.
• Subdivision E sets out when
goods that are clothing or textiles that are produced entirely in the US, or in the US and Australia, from non‑originating materials only, or from non‑originating
materials and originating materials, are US originating goods.
• Subdivision F sets out when
accessories, spare parts or tools (imported with other goods) are US
originating goods.
• Subdivision G deals with
how the packaging materials or containers in which goods are packaged affects
whether the goods are US originating goods.
• Subdivision H deals with
how the consignment of goods affects whether the goods are US originating
goods.
153YA
Interpretation
Definitions
(1) In this Division:
Agreement means the Australia‑United States
Free Trade Agreement done at Washington DC on 18 May 2004, as amended from time to time.
Note: In 2004 the text of the Agreement was
accessible through the website of the Department of Foreign Affairs and Trade.
Australian originating goods means goods that
are Australian originating goods under a law of the US that implements the
Agreement.
Convention means the International Convention
on the Harmonized Commodity Description and Coding System done at Brussels on 14 June 1983.
Note: The text of the Convention is set out in
Australian Treaty Series 1988 No. 30. In 2004 this was available in the
Australian Treaties Library of the Department of Foreign Affairs and Trade,
accessible through that Department’s website.
customs value, in relation to goods, has the
meaning given by section 159.
fuel has its ordinary meaning.
Harmonized System means the Harmonized
Commodity Description and Coding System (as in force from time to time) that is
established by or under the Convention.
Harmonized US Tariff Schedule means the
Harmonized Tariff Schedule of the United States (as in force from time to
time).
indirect materials means:
(a) goods used in the production,
testing or inspection of other goods, but that are not physically incorporated
in the other goods; or
(b) goods used in the operation or
maintenance of buildings or equipment associated with the production of other
goods;
including:
(c) fuel; and
(d) tools, dies and moulds; and
(e) lubricants, greases, compounding
materials and other similar goods; and
(f) gloves, glasses, footwear,
clothing, safety equipment and supplies for any of these things; and
(g) catalysts and solvents.
Interpretation Rules means the General Rules
for the Interpretation of the Harmonized System provided for by the Convention.
non‑originating materials means goods that
are not originating materials.
originating materials means:
(a) goods that are used in the
production of other goods and that are US originating goods; or
(b) goods that are used in the
production of other goods and that are Australian originating goods; or
(c) indirect materials.
Example: This example illustrates goods produced from
originating materials and non‑originating materials.
Pork sausages are produced in the US from US cereals, Hungarian frozen pork meat and Brazilian spices.
The US cereals are originating materials
since they are goods used in the production of other goods (the sausages) and
they are US originating goods under Subdivision B.
The Hungarian frozen pork meat and
Brazilian spices are non‑originating materials since they are produced in
countries other than the US and Australia.
person of the US means a person of a Party
within the meaning, in so far as it relates to the US, of Article 1.2 of the
Agreement.
produce means grow, raise, mine, harvest,
fish, trap, hunt, manufacture, process, assemble or disassemble. Producer
and production have corresponding meanings.
recovered goods means goods in the form of
individual parts that:
(a) have resulted from the complete
disassembly of goods which have passed their useful life or which are no longer
useable due to defects; and
(b) have been cleaned, inspected or
tested (as necessary) to bring them into reliable working condition.
remanufactured goods means goods that:
(a) are produced entirely in the US; and
(b) are classified to:
(i) Chapter 84, 85 or
87 (other than heading 8418, 8516 or 8701 to 8706), or to heading 9026, 9031 or
9032 of Chapter 90, of the Harmonized System; or
(ii) any other tariff
classification prescribed by the regulations; and
(c) are entirely or partially
comprised of recovered goods; and
(d) have a similar useful life, and
meet the same performance standards, as new goods:
(i) that are so
classified; and
(ii) that are not comprised
of any recovered goods; and
(e) have a producer’s warranty similar
to such new goods.
Schedule 1 tariff table means the table
in Schedule 1 to the Customs (Australia‑United States Free Trade
Agreement) Regulations 2004.
Schedule 2 tariff table means the table
in Schedule 2 to the Customs (Australia‑United States Free Trade
Agreement) Regulations 2004.
US means the United States of America.
used means used or consumed in the production
of goods.
US originating goods means goods that, under
this Division, are US originating goods.
Value of goods
(2) The value of goods for the
purposes of this Division is to be worked out in accordance with the
regulations. The regulations may prescribe different valuation rules for
different kinds of goods.
Tariff classifications
(3) In specifying tariff classifications for
the purposes of this Division, the regulations may refer to the following:
(a) the Harmonized System;
(b) the Harmonized US Tariff Schedule.
(4) Subsection 4(3A) does not apply for the
purposes of this Division.
Regulations
(5) For the purposes of this Division, the
regulations may apply, adopt or incorporate any matter contained in any
instrument or other writing as in force or existing from time to time.
Subdivision B—Goods wholly obtained or produced entirely in the US
153YB
Goods wholly obtained or produced entirely in the US
(1) Goods are US originating goods
if they are wholly obtained or produced entirely in the US.
(2) Goods are wholly obtained or
produced entirely in the US if, and only if, the goods are:
(a) minerals extracted in the US; or
(b) plants grown in the US, or in the US and Australia, or products obtained from such plants; or
(c) live animals born and raised in
the US, or in the US and Australia, or products obtained from such animals; or
(d) goods obtained from hunting,
trapping, fishing or aquaculture conducted in the US; or
(e) fish, shellfish or other marine
life taken from the sea by ships registered or recorded in the US and flying the flag of the US; or
(f) goods produced exclusively from
goods referred to in paragraph (e) on board factory ships registered or
recorded in the US and flying the flag of the US; or
(g) goods taken from the seabed, or
beneath the seabed, outside the territorial waters of the US by the US or a person of the US, but only if the US has the right to exploit that part
of the seabed; or
(h) goods taken from outer space by
the US or a person of the US; or
(i) waste
and scrap that:
(i) has been derived from
production operations in the US; or
(ii) has been derived from
used goods that are collected in the US and that are fit only for the recovery
of raw materials; or
(j) recovered goods derived in the US and used in the US in the production of remanufactured goods; or
(k) goods produced entirely in the US exclusively from goods referred to in paragraphs (a) to (i) or from their
derivatives.
Subdivision C—Goods produced entirely in the US or in the US and Australia exclusively from originating materials
153YC
Goods produced entirely in the US or in the US and Australia exclusively from originating materials
Goods are US originating goods
if they are produced entirely in the US, or entirely in the US and Australia, exclusively from originating materials.
Subdivision D—Goods (except clothing and textiles) produced entirely in
the US or
in the US and Australia from non‑originating materials
153YD
Simplified outline
The following is a simplified outline of
this Subdivision:
• This Subdivision sets out
when goods (except clothing and textiles) that are produced entirely in the US, or in the US and Australia, from non‑originating materials only, or from non‑originating
materials and originating materials, are US originating goods.
• The goods may be US
originating goods under section 153YE (which applies to all goods except
clothing and textiles).
• The goods may also be US
originating goods under section 153YF (which applies only to goods that
are chemicals, plastics or rubber).
153YE
Goods (except clothing and textiles) produced entirely in the US or in the US and Australia from non‑originating materials
(1) Goods are US originating goods
if:
(a) a tariff classification (the final
classification) that is specified in column 2 of the Schedule 1
tariff table applies to the goods; and
(b) they are produced entirely in the US, or entirely in the US and Australia, from non‑originating materials only or from non‑originating
materials and originating materials; and
(c) if any of the following 3
requirements apply in relation to the goods—that requirement is satisfied.
First requirement
(2) Subject to subsection (3), the first
requirement applies only if a change in tariff classification is specified in
column 3 of the Schedule 1 tariff table opposite the final classification
for the goods. The first requirement is that:
(a) each of the non‑originating
materials satisfies the transformation test (see subsection (8)); or
(b) the following are satisfied:
(i) the total value of all
the non‑originating materials, that do not satisfy the transformation test (see
subsection (8)), does not exceed 10% of the customs value of the goods;
(ii) if one or more of the
non‑originating materials are prescribed for the purposes of this
paragraph—each of those non‑originating materials satisfies the transformation
test (see subsection (8)).
Note 1: Paragraph (2)(b) relates to Article 5.2
(De Minimis) of the Agreement.
Note 2: The value of the non‑originating materials is
to be worked out in accordance with the regulations: see subsection 153YA(2).
(3) However,
the first requirement does not apply if:
(a) an alternative requirement to the
change in tariff classification is also specified in column 3 of the Schedule 1
tariff table opposite the final classification for the goods; and
(b) that alternative requirement is
satisfied.
Second requirement
(4) Subject to subsection (5), the
second requirement applies only if a regional value content requirement is
specified in column 3 of the Schedule 1 tariff table opposite the final
classification for the goods. The second requirement is that the goods satisfy
that regional value content requirement.
(5) However, the second requirement does not
apply if:
(a) an alternative requirement to the
regional value content requirement is also specified in column 3 of the
Schedule 1 tariff table opposite the final classification for the goods;
and
(b) that alternative requirement is
satisfied.
(6) The regulations may prescribe different
regional value content requirements for different kinds of goods.
Third requirement
(7) The third requirement is that the goods
satisfy any other requirement that is specified in, or referred to in, column 3
of the Schedule 1 tariff table opposite the final classification for the
goods.
Transformation test
(8) A non‑originating material satisfies the
transformation test if:
(a) it satisfies the change in tariff
classification that is specified in column 3 of the Schedule 1 tariff
table opposite the final classification for the goods; or
(b) it does not satisfy the change in
tariff classification mentioned in paragraph (a), but it was produced
entirely in the US, or entirely in the US and Australia, from other non‑originating
materials, and each of those materials satisfies the transformation test
(including by one or more applications of this subsection).
Note 1: Paragraph (8)(b) relates to paragraph 2 of
Article 5.3 (Accumulation) of the Agreement.
Note 2: Subsection (8) operates in a recursive
manner: a non‑originating material may satisfy the transformation test in its
own right, or it may satisfy it because each non‑originating material used to
produce it satisfies the transformation test (whether because each of those
materials does so in its own right, or because each non‑originating material
used to produce the material does so), and so on.
153YF
Goods that are chemicals, plastics or rubber
Goods are US originating goods
if:
(a) they are produced entirely in the US, or entirely in the US and Australia, from non‑originating materials only or from non‑originating
materials and originating materials; and
(b) they are goods that are classified
to any of Chapters 28 to 40 of the Harmonized System; and
(c) a tariff classification (the final
classification) that is specified in column 2 of the Schedule 1
tariff table applies to the goods; and
(d) before the tariff classifications
in column 2 of that table in relation to Chapter 28 or 39 of the Harmonized
System, the regulations specify particular rules in column 3 of that table; and
(e) those rules apply in relation to
the final classification for the goods; and
(f) the goods satisfy those rules.
Subdivision E—Goods that are clothing or textiles produced entirely in the
US or in
the US and Australia from non‑originating materials
153YG
Simplified outline
The following is a simplified outline of
this Subdivision:
• This Subdivision sets out
when goods that are clothing or textiles that are produced entirely in the US, or in the US and Australia, from non‑originating materials only, or from non‑originating
materials and originating materials, are US originating goods.
• The goods may be US
originating goods under section 153YH (which applies to all clothing and
textiles).
• The goods may also be US
originating goods under section 153YI (which applies only to clothing and
textiles classified to Chapter 62 of the Harmonized System).
153YH
Goods that are clothing or textiles produced entirely in the US or in the US and Australia from non‑originating materials
(1) Subject to subsection (5), goods are
US originating goods if:
(a) a tariff classification (the final
classification) that is specified in column 2 of the Schedule 2
tariff table applies to the goods; and
(b) they are produced entirely in the US, or entirely in the US and Australia, from non‑originating materials only or from non‑originating
materials and originating materials; and
(ba) if the component of the goods that
determines the final classification for the goods contains elastomeric
yarns—the elastomeric yarns are produced entirely in the US or Australia; and
(c) if any of the following 2
requirements apply in relation to the goods—that requirement is satisfied.
Note 1: Subsection (5) sets out a qualification
for goods put up in a set for retail sale.
Note 2: Paragraph (1)(ba) relates to paragraph 7
of Article 4.2 (Rules of origin and related matters) of the Agreement.
First requirement
(2) The first requirement applies only if a change
in tariff classification is specified in column 3 of the Schedule 2 tariff
table opposite the final classification for the goods. The first requirement is
that:
(a) subject to subsection (3),
each of the non‑originating materials satisfies the transformation test (see subsection (7));
or
(b) the following are satisfied:
(i) the total weight of
all the relevant non‑originating materials (see subsection (8)) does not
exceed 7% of the total weight of the component of the goods that determines the
final classification for the goods;
(ii) if one or more of the
non‑originating materials are prescribed for the purposes of this
paragraph—each of those non‑originating materials satisfies the transformation
test (see subsection (7)).
Note: Paragraph (2)(b) relates to paragraph 6
(De Minimis) of Article 4.2 of the Agreement.
(3) In relation to goods classified to
Chapter 61, 62 or 63 of the Harmonized System, paragraph (2)(a) is to
be applied by applying:
(a) for goods covered by Chapter 61
of the Harmonized System—Chapter Rule 2 for Chapter 61 that is set out in
the Schedule 2 tariff table; and
(b) for goods covered by Chapter 62
of the Harmonized System—Chapter Rule 3 for Chapter 62 that is set out in
the Schedule 2 tariff table; and
(c) for goods covered by Chapter 63
of the Harmonized System—Chapter Rule 1 for Chapter 63 that is set out in
the Schedule 2 tariff table.
Second requirement
(4) The second requirement is that the goods
satisfy any other requirement that is specified in, or referred to in, column 3
of the Schedule 2 tariff table opposite the final classification for the
goods.
Goods put up in a set for retail sale
(5) However, if:
(a) the goods are put up in a set for
retail sale; and
(b) the goods are classified in
accordance with Rule 3 of the Interpretation Rules;
the goods are US originating goods only if:
(c) all of the goods in the set are US
originating goods under this Division; or
(d) the total value of the goods in
the set that are not US originating goods under this Division does not exceed
10% of the customs value of the set of goods.
Note: The value of the goods in the set is to be
worked out in accordance with the regulations: see subsection 153YA(2).
(6) In applying paragraph (5)(c), assume
the goods were not part of a set.
Example: A skirt and a belt are put up in a set for retail
sale. The skirt and the belt have been classified under Rule 3 of the
Interpretation Rules according to the tariff classification applicable to
skirts.
The effect of subsection (6) is that
the origin of the belt must now be determined according to the tariff
classification applicable to belts.
Transformation test
(7) A non‑originating material satisfies the
transformation test if:
(a) it satisfies the change in tariff
classification that is specified in column 3 of the Schedule 2 tariff
table opposite the final classification for the goods; or
(b) it does not satisfy the change in
tariff classification mentioned in paragraph (a), but it was produced
entirely in the US, or entirely in the US and Australia, from other non‑originating
materials, and each of those materials satisfies the transformation test
(including by one or more applications of this subsection).
Note 1: Paragraph (7)(b) relates to paragraph 2 of
Article 5.3 (Accumulation) of the Agreement.
Note 2: Subsection (7) operates in a recursive
manner: a non‑originating material may satisfy the transformation test in its
own right, or it may satisfy it because each non‑originating material used to
produce it satisfies the transformation test (whether because each of those
materials does so in its own right, or because each non‑originating material
used to produce the material does so), and so on.
(8) In this section:
relevant non‑originating materials, in
relation to goods, means non‑originating materials that:
(a) are used to produce the component
of the goods that determines the final classification for the goods; and
(b) do not satisfy the transformation
test (see subsection (7)).
153YI
Goods that are clothing and textiles classified to Chapter 62 of the
Harmonized System
Goods are
US originating goods if:
(a) they are produced entirely in the US, or entirely in the US and Australia, from non‑originating materials only or from non‑originating
materials and originating materials; and
(b) they are goods that are classified
to Chapter 62 of the Harmonized System; and
(c) either:
(i) in any case—the goods
satisfy Chapter Rule 2 for Chapter 62 that is set out in the Schedule 2
tariff table; or
(ii) in the case of goods
that are classified to subheading 6205.20 or 6205.30 of Chapter 62 of the
Harmonized System—the goods satisfy the subheading rule for that subheading
that is set out in the Schedule 2 tariff table.
Subdivision F—Other US originating goods
153YJ
Standard accessories, spare parts and tools
(1) If goods (the underlying goods)
are imported into Australia with standard accessories, standard spare parts or
standard tools, then the accessories, spare parts or tools are US
originating goods if:
(a) the underlying goods are US originating
goods; and
(b) the accessories, spare parts or
tools are not invoiced separately from the underlying goods; and
(c) the quantities and value of the
accessories, spare parts or tools are the usual quantities and value in
relation to the underlying goods.
(2) In working out if the underlying goods
are US originating goods, if the goods must satisfy a regional value content
requirement under Subdivision D, the regulations must require the value of the
accessories, spare parts or tools to be taken into account for the purposes of
that requirement.
Note: The value of the accessories, spare parts or
tools is to be worked out in accordance with the regulations: see subsection
153YA(2).
Subdivision G—Packaging materials and containers
153YK
Packaging materials and containers
(1) If:
(a) goods are packaged for retail sale
in packaging material or a container; and
(b) the packaging material or
container is classified with the goods in accordance with Rule 5 of the
Interpretation Rules;
then the packaging material or container is to be
disregarded for the purposes of this Division (with 1 exception).
(2) The exception is that in working out if
the goods are US originating goods, if the goods must satisfy a regional value
content requirement under Subdivision D, the regulations must require the value
of the packaging material or container to be taken into account for the
purposes of that requirement.
Note: The value of the packaging material or
container is to be worked out in accordance with the regulations: see
subsection 153YA(2).
Subdivision H—Consignment
153YL
Consignment
(1) Goods are not US originating goods under
this Division if:
(a) they are transported through a
country or place other than the US or Australia; and
(b) they undergo any process of
production, or any other operation, in that country or place (other than
unloading, reloading, any operation to preserve them in good condition or any
operation that is necessary for them to be transported to Australia).
(2) This section applies despite any other
provision of this Division.
Division 1D—Thai originating goods
Subdivision A—Preliminary
153Z
Simplified outline
The following is a simplified outline of
this Division:
• This Division defines Thai
originating goods. Preferential rates of customs duty under the Customs
Tariff Act 1995 apply to Thai originating goods that are imported into Australia.
• Subdivision B sets out when
goods that are wholly obtained goods of Thailand are Thai originating goods.
• Subdivision C sets out when
goods that are produced entirely in Thailand, or in Thailand and Australia, are Thai originating goods.
• Subdivision D sets out when
accessories, spare parts or tools (imported with other goods) are Thai
originating goods.
• Subdivision E deals with
how the packaging materials or containers in which goods are packaged affects
whether the goods are Thai originating goods.
• Subdivision F deals with
how the consignment of goods affects whether the goods are Thai originating
goods.
153ZA
Interpretation
Definitions
(1) In this Division:
Agreement means the Thailand‑Australia Free
Trade Agreement, done at Canberra on 5 July 2004, as amended from time to time.
Note: In 2004 the text of the Agreement was
accessible through the website of the Department of Foreign Affairs and Trade.
Australian originating goods means goods that
are Australian originating goods under a law of Thailand that implements the
Agreement.
Certificate of Origin means a certificate
that is in force and that complies with the requirements of Annex 4.2 of the
Agreement.
continental shelf has the same meaning as in
the Seas and Submerged Lands Act 1973.
Convention means the International Convention
on the Harmonized Commodity Description and Coding System done at Brussels on 14 June 1983.
Note: The text of the Convention is set out in
Australian Treaty Series 1988 No. 30. In 2004 this was available in the
Australian Treaties Library of the Department of Foreign Affairs and Trade,
accessible through that Department’s website.
customs value, in relation to goods, has the
meaning given by section 159.
Harmonized System means the Harmonized
Commodity Description and Coding System (as in force from time to time) that is
established by or under the Convention.
Interpretation Rules means the General Rules for
the Interpretation of the Harmonized System provided for by the Convention.
non‑originating materials means goods that
are not originating materials.
originating materials means:
(a) goods that are used in the
production of other goods and that are Thai originating goods; or
(b) goods that are used in the
production of other goods and that are Australian originating goods.
produce means grow, raise, mine, harvest,
fish, trap, hunt, manufacture, process, assemble or disassemble. Producer
and production have corresponding meanings.
tariff table means the table in Schedule 1
to the Customs (Thailand‑Australia Free Trade Agreement) Regulations 2004.
territorial sea has the same meaning as in
the Seas and Submerged Lands Act 1973.
Thai originating goods means goods that,
under this Division, are Thai originating goods.
Value of goods
(2) The value of goods for the
purposes of this Division is to be worked out in accordance with the
regulations. The regulations may prescribe different valuation rules for different
kinds of goods.
Tariff classifications
(3) In specifying tariff classifications for
the purposes of this Division, the regulations may refer to the Harmonized
System.
(4) Subsection 4(3A) does not apply for the
purposes of this Division.
Regulations
(5) For the purposes of this Division, the
regulations may apply, adopt or incorporate any matter contained in any
instrument or other writing as in force or existing from time to time.
Subdivision B—Wholly obtained goods of Thailand
153ZB
Wholly obtained goods of Thailand
(1) Goods are Thai originating goods
if:
(a) they are wholly obtained goods of Thailand; and
(b) the importer of the goods holds,
at the time the goods are imported, a Certificate of Origin, or a copy of one,
for the goods.
(2) Goods are wholly obtained goods of Thailand if, and only if, the goods are:
(a) minerals extracted in Thailand; or
(b) agricultural goods harvested,
picked or gathered in Thailand; or
(c) live animals born and raised in Thailand; or
(d) products obtained from live
animals in Thailand; or
(e) goods obtained directly from
hunting, trapping, fishing, gathering or capturing carried out in Thailand; or
(f) fish, shellfish, plant or other
marine life taken:
(i) within the territorial
sea of Thailand; or
(ii) within any other
maritime zone in which Thailand has sovereign rights under the law of Thailand and in accordance with UNCLOS; or
(iii) from the high seas by
ships flying the flag of Thailand; or
(g) goods obtained or produced
exclusively from goods referred to in paragraph (f) on board factory ships
flying the flag of Thailand; or
(h) goods taken from the seabed or the
subsoil beneath the seabed of the territorial sea of Thailand or of the
continental shelf of Thailand:
(i) by Thailand; or
(ii) by a national of Thailand; or
(iii) by a body corporate
incorporated in Thailand; or
(i) waste and scrap that has been
derived from production operations in Thailand and that is fit only for the
recovery of raw materials; or
(j) used goods that are collected in Thailand and that are fit only for the recovery of raw materials; or
(k) goods produced entirely in Thailand exclusively from goods referred to in paragraphs (a) to (j).
Subdivision C—Goods produced entirely in Thailand or in Thailand and Australia
153ZC
Simplified outline
The following is a simplified outline of
this Subdivision:
• This Subdivision sets out
when goods that are produced entirely in Thailand, or in Thailand and Australia, are Thai originating goods.
• The goods may be Thai
originating goods under section 153ZD (which applies to all goods).
• The goods may also be Thai
originating goods under section 153ZE (which applies only to goods that
are chemicals, plastics or rubber).
153ZD
Goods produced entirely in Thailand or in Thailand and Australia
(1) Subject to subsection (6), goods are
Thai originating goods if:
(a) they are classified to a heading
or subheading of the Harmonized System that is specified in column 1 or 2 of
the tariff table; and
(b) they are produced entirely in Thailand, or entirely in Thailand and Australia, from originating materials or non‑originating
materials, or both; and
(c) the requirement or requirements
that are specified in column 4 of the tariff table and that apply to the goods
are satisfied; and
(d) the importer of the goods holds,
at the time the goods are imported, a Certificate of Origin, or a copy of one,
for the goods.
Change in tariff classification
(2) The regulations may make it a requirement
(the tariff change requirement) that each non‑originating
material (if any) used to produce the goods must satisfy a particular change in
tariff classification. The regulations may also set out when a non‑originating
material is taken to satisfy that change.
(3) The tariff change requirement is also taken
to be satisfied if the total value of all the non‑originating materials that:
(a) do not satisfy the particular
change in tariff classification; and
(b) are used to produce the goods;
does not exceed 10% of the customs value of the goods.
Regional value content
(4) The regulations may make it a requirement
that the goods must satisfy a regional value content requirement. The
regulations may prescribe different regional value content requirements for
different kinds of goods.
No limit on paragraph (1)(c)
(5) Subsections (2) and (4) do not limit
the requirements the regulations may specify under paragraph (1)(c).
Dilution with water or another substance
(6) However, the goods are not Thai
originating goods under this section if:
(a) they are classified to any of
Chapters 1 to 40 of the Harmonized System; and
(b) they are produced merely as a
result of non‑originating materials being diluted with water or another
substance; and
(c) that dilution does not materially
alter the characteristics of the non‑originating materials.
153ZE
Goods that are chemicals, plastics or rubber
Goods are Thai originating goods
if:
(a) they are produced entirely in Thailand or entirely in Thailand and Australia; and
(b) they are classified to any of
Chapters 28 to 40 of the Harmonized System; and
(c) they are the product of a chemical
reaction (within the meaning of the Customs (Thailand‑Australia Free Trade
Agreement) Regulations 2004); and
(d) the importer of the goods holds,
at the time the goods are imported, a Certificate of Origin, or a copy of one,
for the goods.
Subdivision D—Other Thai originating goods
153ZF
Standard accessories, spare parts and tools
(1) If goods (the underlying goods)
are imported into Australia with standard accessories, standard spare parts or
standard tools, then the accessories, spare parts or tools are Thai
originating goods if:
(a) the underlying goods are Thai
originating goods; and
(b) the accessories, spare parts or
tools are not invoiced separately from the underlying goods; and
(c) the quantities and value of the
accessories, spare parts or tools are the usual quantities and value in
relation to the underlying goods.
Exception
(2) However, the accessories, spare parts or
tools are not Thai originating goods under this section if:
(a) the underlying goods must satisfy
a regional value content requirement under section 153ZD to be Thai
originating goods; and
(b) the accessories, spare parts or
tools are imported solely for the purpose of artificially raising the regional
value content of the underlying goods.
Underlying goods
(3) If:
(a) the underlying goods must satisfy
a regional value content requirement under section 153ZD to be Thai
originating goods; and
(b) the accessories, spare parts or
tools are not imported solely for the purpose of artificially raising the
regional value content of the underlying goods;
then the regulations must require the value of the
accessories, spare parts or tools to be taken into account for the purposes of
that requirement.
Note: The value of the accessories, spare parts or
tools is to be worked out in accordance with the regulations: see subsection
153ZA(2).
Subdivision E—Packaging materials and containers
153ZG
Packaging materials and containers
(1) If:
(a) goods are packaged for retail sale
in packaging material or a container; and
(b) the packaging material or
container is classified with the goods in accordance with Rule 5 of the
Interpretation Rules;
then the packaging material or container is to be
disregarded for the purposes of this Division (with 1 exception).
(2) The exception is that in working out if
the goods are Thai originating goods, if the goods must satisfy a regional
value content requirement under section 153ZD, the regulations must
require the value of the packaging material or container to be taken into
account for the purposes of that requirement.
Note: The value of the packaging material or
container is to be worked out in accordance with the regulations: see
subsection 153ZA(2).
Subdivision F—Consignment
153ZH
Consignment
(1) Goods are not Thai originating goods
under this Division if:
(a) they are transported through a
country or place other than Thailand or Australia; and
(b) either:
(i) they undergo any
process of production or other operation in that country or place (other than
any operation to preserve them in good condition or any operation that is
necessary for them to be transported to Australia); or
(ii) they are traded or
used in that country or place.
(2) This section applies despite any other provision
of this Division.
Division 1E—New Zealand originating goods
Subdivision A—Preliminary
153ZIA
Simplified outline
The following is a simplified outline of
this Division:
• This Division defines New Zealand originating goods. Preferential rates of customs
duty under the Customs Tariff Act 1995 apply to New Zealand originating goods that are imported into Australia.
• Subdivision B provides that
goods are New Zealand originating goods if they are wholly
obtained in New Zealand or in New Zealand and Australia.
• Subdivision C provides that
goods are New Zealand originating goods if they are produced
entirely in New Zealand, or in New Zealand and Australia, from originating
materials only.
• Subdivision D sets out when
goods are New Zealand originating goods because they are produced entirely in New Zealand, or in New Zealand and Australia, from non‑originating materials only or from
non‑originating materials and originating materials.
• Subdivision E sets out when
goods are New Zealand originating goods because they are accessories, spare
parts or tools imported with other goods.
• Subdivision F sets out when
goods are New Zealand originating goods because they are wholly manufactured in
New Zealand.
• Subdivision G sets out when
goods are New Zealand originating goods because their last process of
manufacture is performed in New Zealand. It is repealed on 1 January 2012.
• Subdivision H deals with
how the consignment of goods affects whether the goods are New Zealand originating goods.
153ZIB
Interpretation
Definitions
(1) In this Division:
Agreement means the Australia New Zealand
Closer Economic Relations Trade Agreement done at Canberra on 28 March 1983, as amended from time to time.
Note: The text of the Agreement is set out in
Australian Treaty Series 1983 No. 2. In 2006 the text of an Agreement in
the Australian Treaty Series was accessible through the Australian Treaties
Library on the AustLII website (www.austlii.edu.au).
Australian originating goods means goods that
are Australian originating goods under a law of New Zealand that implements the
Agreement.
continental shelf has the same meaning as in
the Seas and Submerged Lands Act 1973.
Convention means the International Convention
on the Harmonized Commodity Description and Coding System done at Brussels on 14 June 1983.
Note: The text of the Convention is set out in
Australian Treaty Series 1988 No. 30. In 2006 the text of a Convention in
the Australian Treaty Series was accessible through the Australian Treaties
Library on the AustLII website (www.austlii.edu.au).
customs value of goods has the meaning given
by section 159.
Harmonized System means the Harmonized
Commodity Description and Coding System (as in force from time to time) that is
established by or under the Convention.
indirect materials means:
(a) goods or energy used or consumed
in the production, testing or inspection of goods, but not physically
incorporated in the goods; or
(b) goods or energy used or consumed
in the operation or maintenance of buildings or equipment associated with the
production of goods;
including:
(c) fuel (within its ordinary
meaning); and
(d) tools, dies and moulds; and
(e) spare parts; and
(f) lubricants, greases, compounding
materials and other similar goods; and
(g) gloves, glasses, footwear, clothing,
safety equipment and supplies; and
(h) catalysts and solvents.
manufacture means the creation of an article
essentially different from the matters or substances that go into that
creation, but does not include the following activities (whether performed
alone or in combination with each other):
(a) restoration or renovation
processes such as repairing, reconditioning, overhauling or refurbishing;
(b) minimal operations of pressing,
labelling, ticketing, packaging and preparation for sale, whether conducted
alone or in combination with each other;
(c) quality control inspections.
New Zealand originating goods means
goods that, under this Division, are New Zealand originating goods.
non‑originating materials means goods that
are not originating materials.
originating materials means:
(a) New Zealand originating goods that
are used or consumed in the production of other goods; or
(b) Australian originating goods that
are used or consumed in the production of other goods; or
(c) indirect materials.
produce means grow, farm, raise, breed, mine,
harvest, fish, trap, hunt, capture, gather, collect, extract, manufacture,
process, assemble or disassemble.
territorial sea has the same meaning as in
the Seas and Submerged Lands Act 1973.
Regional value content of goods
(2) The regional value content of
goods for the purposes of this Division is to be worked out in accordance with
the regulations. The regulations may prescribe different regional value content
rules for different kinds of goods.
Value of goods
(3) The value of goods for the
purposes of this Division is to be worked out in accordance with the
regulations. The regulations may prescribe different valuation rules for
different kinds of goods.
Tariff classifications
(4) In specifying tariff classifications for
the purposes of this Division, the regulations may refer to the Harmonized
System.
(5) Subsection 4(3A) does not apply for the
purposes of this Division.
Incorporation of other instruments
(6) For the purposes of this Division, the
regulations may apply, adopt or incorporate any matter contained in any
instrument or other writing as in force or existing from time to time.
Subdivision B—Goods wholly obtained in New Zealand or New Zealand and Australia
153ZIC
Goods wholly obtained in New Zealand or New Zealand and Australia
(1) Goods are New Zealand
originating goods if they are wholly obtained in New Zealand or in New Zealand and Australia.
(2) Goods are wholly obtained in New Zealand or in New Zealand and Australia if, and only if, the goods are:
(a) minerals extracted in New Zealand; or
(b) plants grown in New Zealand, or in
New Zealand and Australia, or products obtained in New Zealand from such
plants; or
(c) live animals born and raised in New Zealand, or in New Zealand and Australia; or
(d) products obtained from live
animals in New Zealand; or
(e) goods obtained from hunting,
trapping, fishing, capturing or aquaculture conducted in New Zealand; or
(f) fish, shellfish or other marine
life taken from the sea by ships that are registered or recorded in New Zealand
and are flying, or are entitled to fly, the flag of New Zealand; or
(g) goods produced or obtained
exclusively from goods referred to in paragraph (f) on board factory ships
that are registered or recorded in New Zealand and are flying the flag of New
Zealand; or
(h) goods taken from the seabed, or
the subsoil beneath the seabed, of the territorial sea of New Zealand or of the
continental shelf of New Zealand:
(i) by New Zealand; or
(ii) by a New Zealand citizen; or
(iii) by a body corporate
incorporated in New Zealand;
but only if New Zealand has the right to exploit that part of the seabed; or
(i) waste and scrap that has been
derived from production operations in New Zealand, or from used goods collected
in New Zealand, and that is fit only for the recovery of raw materials; or
(j) goods produced entirely in New
Zealand, or in New Zealand and Australia, exclusively from goods referred to in
paragraphs (a) to (i) or from their derivatives.
Subdivision C—Goods produced in New
Zealand or New Zealand and Australia from originating materials
153ZID
Goods produced in New Zealand or New Zealand and Australia from originating
materials
Goods are New Zealand
originating goods if they are produced entirely in New Zealand, or entirely in New Zealand and Australia, from originating materials only.
Subdivision D—Goods produced in New
Zealand or New Zealand and Australia from non‑originating materials
153ZIE
Goods produced in New Zealand or New Zealand and Australia from non‑originating
materials
(1) Goods are New Zealand
originating goods if:
(a) they are classified to a heading
or subheading of the Harmonized System specified in column 1 or 2 of the table
in Schedule 1 to the Customs (New Zealand Rules of Origin) Regulations
2006; and
(b) they are produced entirely in New
Zealand, or entirely in New Zealand and Australia, from non‑originating
materials only or from non‑originating materials and originating materials; and
(c) each requirement that is specified
in the regulations to apply in relation to the goods is satisfied.
Change in tariff classification
(2) The regulations may specify that each non‑originating
material used or consumed in the production of the goods is required to satisfy
a specified change in tariff classification.
(3) The regulations may also specify when a
non‑originating material used or consumed in the production of the goods is
taken to satisfy the change in tariff classification.
(4) If:
(a) the requirement referred to in
subsection (2) applies in relation to the goods; and
(b) one or more of the non‑originating
materials used or consumed in the production of the goods do not satisfy the
change in tariff classification;
then the requirement referred to in subsection (2) is
taken to be satisfied if the total value of those non‑originating materials
does not exceed 10% of the customs value of the goods.
Regional value content
(5) The regulations may specify that the
goods are required to have a regional value content of at least a specified
percentage.
(6) If:
(a) the goods are required to have a
regional value content of at least a particular percentage; and
(b) the goods are imported into Australia with standard accessories, standard spare parts or standard tools; and
(c) the accessories, spare parts or
tools are not invoiced separately from the goods; and
(d) the quantities and value of the
accessories, spare parts or tools are customary for the goods;
then the regulations must require the value of the
accessories, spare parts or tools to be taken into account as originating
materials or non‑originating materials, as the case may be, for the purposes of
working out the regional value content of the goods.
Note: The value of the accessories, spare parts or
tools is to be worked out in accordance with the regulations: see subsection
153ZIB(3).
(7) For the purposes of subsection (6),
disregard section 153ZIG in working out whether the accessories, spare
parts or tools are originating materials or non‑originating materials.
(8) However, subsection (6) does not
apply if the accessories, spare parts or tools are imported solely for the
purpose of artificially raising the regional value content of the goods.
No limit on regulations
(9) Subsections (2) and (5) do not limit
paragraph (1)(c).
153ZIF
Packaging materials and containers
(1) If:
(a) goods are packaged for retail sale
in packaging material or a container; and
(b) the packaging material or
container is classified with the goods in accordance with Rule 5 of the General
Rules for the Interpretation of the Harmonized System provided for by the
Convention;
then the packaging material or container is to be
disregarded for the purposes of this Subdivision (with 1 exception).
Exception
(2) If the goods are required to have a
regional value content of at least a particular percentage, the regulations
must require the value of the packaging material or container to be taken into
account as originating materials or non‑originating materials, as the case may
be, for the purposes of working out the regional value content of the goods.
Note: The value of the packaging material or
container is to be worked out in accordance with the regulations: see
subsection 153ZIB(3).
Subdivision E—Goods that are standard accessories, spare parts or tools
153ZIG
Goods that are standard accessories, spare parts or tools
Goods are New Zealand
originating goods if:
(a) they are standard accessories,
standard spare parts or standard tools in relation to other goods; and
(b) the other goods are imported into Australia with the accessories, spare parts or tools; and
(c) the accessories, spare parts or
tools are not imported solely for the purpose of artificially raising the
regional value content of the other goods; and
(d) the other goods are New Zealand originating goods; and
(e) the accessories, spare parts or
tools are not invoiced separately from the other goods; and
(f) the quantities and value of the
accessories, spare parts or tools are customary for the goods.
Subdivision F—Goods wholly manufactured in New Zealand
153ZIH
Goods wholly manufactured in New Zealand
(1) Goods are New Zealand
originating goods if they are wholly manufactured in New Zealand from one or more of the following:
(a) unmanufactured raw products;
(b) materials wholly manufactured in Australia or New Zealand or Australia and New Zealand;
(c) materials covered by
subsection (2).
(2) The CEO may, by legislative instrument,
determine specified materials imported into New Zealand to be manufactured raw
materials of New Zealand.
Subdivision G—Goods last processed in New Zealand
153ZII
Goods last processed in New Zealand
(1) Goods are New Zealand
originating goods if:
(a) the last process in their
manufacture was performed in New Zealand; and
(b) the qualifying expenditure on the
goods is at least 50% (the standard percentage) of the factory
cost of the goods.
Lower percentage in unforeseen circumstances
(2) If the CEO is satisfied that:
(a) a shipment of goods would be New Zealand originating goods under this section if the standard percentage were 48%; and
(b) the qualifying expenditure on the
goods would have been at least 50% of the factory cost of the goods if an
unforeseen circumstance had not occurred; and
(c) the
unforeseen circumstance is unlikely to continue;
the CEO may determine in writing that the standard
percentage is taken to be 48%:
(d) for the purpose of that shipment
of goods; and
(e) for the purpose of any later
shipment of similar goods that is affected by that unforeseen circumstance
during a period specified in the determination.
(3) A determination made under
subsection (2) is not a legislative instrument.
CEO may revoke determination
(4) If:
(a) the CEO makes a determination
under subsection (2); and
(b) the
CEO becomes satisfied that the unforeseen circumstance no longer exists;
the CEO may, by writing, revoke the determination even
though the period specified in it has not ended.
Definitions
(5) In this section:
factory cost of goods has the meaning given
by the regulations.
qualifying expenditure on goods has the
meaning given by the regulations.
similar goods, in relation to goods in a
particular shipment (the first shipment), means goods:
(a) that are contained in another
shipment that is imported by the same importer; and
(b) that undergo the same process or
processes of manufacture as the goods in the first shipment.
153ZIJ
Repeal of this Subdivision
This Subdivision is repealed on 1 January 2012.
Subdivision H—Consignment
153ZIK
Consignment
(1) Goods are not New Zealand originating
goods under this Division if:
(a) they are transported through a
country or place other than New Zealand or Australia; and
(b) they undergo subsequent production
or any other operation in that country or place (other than unloading,
reloading, storing, repacking, relabelling or any operation that is necessary
to preserve them in good condition or to transport them to Australia).
(2) This section applies despite any other
provision of this Division.
Division 1F—Chilean originating goods
Subdivision A—Preliminary
153ZJA
Simplified outline
The following is a simplified outline of
this Division:
• This Division defines Chilean
originating goods. Preferential rates of customs duty under the Customs
Tariff Act 1995 apply to Chilean originating goods that are imported into Australia.
• Subdivision B provides that
goods are Chilean originating goods if they are wholly obtained
goods of Chile.
• Subdivision C provides that
goods are Chilean originating goods if they are produced entirely
in the territory of Chile from originating materials only.
• Subdivision D sets out when
goods are Chilean originating goods because they are produced entirely in the territory of Chile, or in the territory of Chile and the territory of Australia, from non‑originating materials only or from non‑originating materials and
originating materials.
• Subdivision E sets out when
goods are Chilean originating goods because they are accessories, spare parts,
tools or instructional or other information resources imported with other
goods.
• Subdivision F provides that
goods are not Chilean originating goods under this Division merely because of
certain operations.
• Subdivision G deals with
how the consignment of goods affects whether the goods are Chilean originating
goods.
153ZJB
Interpretation
Definitions
(1) In this Division:
Agreement means the Australia‑Chile Free
Trade Agreement, done at Canberra on 30 July 2008, as amended from time to time.
Note: In 2008, the text of the Agreement was
accessible through the Australian Treaties Library on the AustLII website
(www.austlii.edu.au).
Australian originating goods means goods that
are Australian originating goods under a law of Chile that implements the
Agreement.
Certificate of Origin means a certificate
that is in force and that complies with the requirements of paragraph 2 of
Article 4.16 of the Agreement.
Chilean originating goods means goods that,
under this Division, are Chilean originating goods.
composite goods has the same meaning as it
has in the Agreement.
Convention means the International Convention
on the Harmonized Commodity Description and Coding System done at Brussels on
14 June 1983 [1988] ATS 30, as in force from time to time.
Note: The text of the Convention is set out in
Australian Treaty Series 1988 No. 30. In 2008, the text of a Convention in
the Australian Treaty Series was accessible through the Australian Treaties
Library on the AustLII website (www.austlii.edu.au).
customs value of goods has the meaning given
by section 159.
Harmonized System means the Harmonized
Commodity Description and Coding System (as in force from time to time) that is
established by or under the Convention.
indirect materials means:
(a) goods or energy used in the
production, testing or inspection of goods, but not physically incorporated in
the goods; or
(b) goods or energy used in the
maintenance of buildings or the operation of equipment associated with the
production of goods;
including:
(c) fuel (within its ordinary
meaning); and
(d) tools, dies and moulds; and
(e) spare parts and materials; and
(f) lubricants, greases, compounding
materials and other similar goods; and
(g) gloves, glasses, footwear,
clothing, safety equipment and supplies; and
(h) catalysts and solvents.
Interpretation Rules means the General Rules
(as in force from time to time) for the Interpretation of the Harmonized System
provided for by the Convention.
non‑originating materials means goods that
are not originating materials.
originating materials means:
(a) Chilean originating goods that are
used in the production of other goods; or
(b) Australian originating goods that
are used in the production of other goods; or
(c) indirect materials.
person of Chile means person of a Party
within the meaning, insofar as it relates to Chile, of Article 2.1 of the
Agreement.
produce means grow, farm, raise, breed, mine,
harvest, fish, trap, hunt, capture, gather, collect, extract, manufacture,
process or assemble.
territorial sea has the same meaning as in
the Seas and Submerged Lands Act 1973.
territory of Australia means territory within
the meaning, insofar as it relates to Australia, of Article 2.1 of the
Agreement.
territory of Chile means
territory within the meaning, insofar as it relates to Chile, of Article 2.1 of the Agreement.
Regional value content of goods
(2) The regional value content of
goods for the purposes of this Division is to be worked out in accordance with
the regulations. The regulations may prescribe different regional value content
rules for different kinds of goods.
Value of goods
(3) The value of goods for the
purposes of this Division is to be worked out in accordance with the
regulations. The regulations may prescribe different valuation rules for
different kinds of goods.
Tariff classifications
(4) In specifying tariff classifications for
the purposes of this Division, the regulations may refer to the Harmonized
System.
(5) Subsection 4(3A) does not apply for the
purposes of this Division.
Subdivision B—Wholly obtained goods of Chile
153ZJC
Wholly obtained goods of Chile
(1) Goods are Chilean originating goods
if:
(a) they are wholly obtained goods of Chile; and
(b) the importer of the goods has, at
the time the goods are imported, a Certificate of Origin, or a copy of one, for
the goods.
(2) Goods are wholly obtained goods of Chile if, and only if, the goods are:
(a) minerals extracted in or from the territory of Chile; or
(b) goods listed in Section II of the
Harmonized System that are harvested, picked or gathered in the territory of
Chile; or
(c) live animals born and raised in
the territory of Chile; or
(d) goods obtained from live animals
in the territory of Chile; or
(e) goods obtained from hunting,
trapping, fishing, gathering, capturing or aquaculture conducted in the territory of Chile; or
(f) fish, shellfish or other marine
life taken from the high seas by ships that are registered or recorded in Chile
and are flying the flag of Chile; or
(g) goods obtained or produced from
goods referred to in paragraph (f) on board factory ships that are
registered or recorded in Chile and are flying the flag of Chile; or
(h) goods taken from the seabed, or
beneath the seabed, outside the territorial sea of Chile:
(i) by Chile; or
(ii) by a person of Chile;
but only if Chile has the right to exploit that part of the seabed in accordance with international
law; or
(i) waste and scrap that have been
derived from production operations in the territory of Chile, or from used
goods collected in the territory of Chile, and that are fit only for the
recovery of raw materials; or
(j) goods obtained or produced
entirely in the territory of Chile exclusively from goods referred to in
paragraphs (a) to (i).
Subdivision C—Goods produced in Chile from originating materials
153ZJD
Goods produced in Chile from originating materials
Goods are Chilean originating
goods if:
(a) they are produced entirely in the territory of Chile from originating materials only; and
(b) the importer of the goods has, at
the time the goods are imported, a Certificate of Origin, or a copy of one, for
the goods.
Subdivision D—Goods produced in Chile, or Chile and Australia, from non‑originating materials
153ZJE
Goods produced in Chile, or Chile and Australia, from non‑originating materials
(1) Goods are Chilean originating goods
if:
(a) they are classified to a heading
or subheading of the Harmonized System specified in column 1 of the table in
Schedule 1 to the Customs (Chilean Rules of Origin) Regulations 2008;
and
(b) they are produced entirely in the
territory of Chile, or entirely in the territory of Chile and the territory of
Australia, from non‑originating materials only or from non‑originating
materials and originating materials; and
(c) each requirement that is specified
in the regulations to apply in relation to the goods is satisfied; and
(d) the importer of the goods has, at
the time the goods are imported, a Certificate of Origin, or a copy of one, for
the goods.
This subsection is subject to subsections (9) and
(10).
Change in tariff classification
(2) The regulations may specify that each non‑originating
material used in the production of the goods is required to satisfy a specified
change in tariff classification.
(3) The regulations may also specify when a
non‑originating material used in the production of the goods is taken to
satisfy the change in tariff classification.
(4) If:
(a) the requirement referred to in
subsection (2) applies in relation to the goods; and
(b) one or more of the non‑originating
materials used in the production of the goods do not satisfy the change in
tariff classification;
then the requirement referred to in subsection (2) is
taken to be satisfied if the total value of those non‑originating materials
does not exceed 10% of the customs value of the goods.
Regional value content
(5) The regulations may specify that the
goods are required to have a regional value content of at least a specified
percentage.
(6) If:
(a) the goods are required to have a
regional value content of at least a particular percentage; and
(b) the goods are imported into Australia with accessories, spare parts, tools or instructional or other information
resources; and
(c) the accessories, spare parts,
tools or instructional or other information resources are not invoiced
separately from the goods; and
(d) the quantities and value of the
accessories, spare parts, tools or instructional or other information resources
are customary for the goods; and
(e) the accessories, spare parts,
tools or instructional or other information resources are non‑originating
materials;
then the regulations must require the value of the
accessories, spare parts, tools or instructional or other information resources
to be taken into account as non‑originating materials for the purposes of
working out the regional value content of the goods.
Note: The value of the accessories, spare parts,
tools or instructional or other information resources is to be worked out in
accordance with the regulations: see subsection 153ZJB(3).
(7) For the purposes of subsection (6),
disregard section 153ZJG in working out whether the accessories, spare
parts, tools or instructional or other information resources are non‑originating
materials.
No limit on regulations
(8) Subsections (2) and (5) do not limit
paragraph (1)(c).
Goods put up in a set for retail sale
(9) If:
(a) the goods are put up in a set for
retail sale; and
(b) the goods are classified in
accordance with Rule 3 of the Interpretation Rules;
the goods are Chilean originating goods under
this section only if:
(c) all of the goods in the set,
considered individually, are Chilean originating goods under this Division; or
(d) the total value of the goods in
the set that are not Chilean originating goods under this Division does not
exceed 25% of the customs value of the set of goods.
Note: The value of the goods in the set is to be worked
out in accordance with the regulations: see subsection 153ZJB(3).
Composite goods
(10) If:
(a) the goods are composite goods; and
(b) the goods are classified in
accordance with Rule 3 of the Interpretation Rules;
the goods are Chilean originating goods under
this section only if:
(c) all of the components of the
composite goods, considered individually, are Chilean originating goods under
this Division; or
(d) the total value of the components
of the composite goods that are not Chilean originating goods under this
Division does not exceed 25% of the customs value of the goods.
Note: The value of the components of the composite
goods is to be worked out in accordance with the regulations: see subsection
153ZJB(3).
153ZJF
Packaging materials and containers
(1) If:
(a) goods are packaged for retail sale
in packaging material or a container; and
(b) the packaging material or
container is classified with the goods in accordance with Rule 5 of the
Interpretation Rules;
then the packaging material or container is to be
disregarded for the purposes of this Subdivision (with 1 exception).
Exception
(2) If:
(a) the goods are required to have a
regional value content of at least a particular percentage; and
(b) the packaging material or
container is a non‑originating material;
the regulations must require the value of the packaging
material or container to be taken into account as a non‑originating material
for the purposes of working out the regional value content of the goods.
Note: The value of the packaging material or
container is to be worked out in accordance with the regulations: see
subsection 153ZJB(3).
Subdivision E—Goods that are accessories, spare parts, tools or
instructional or other information resources
153ZJG
Goods that are accessories, spare parts, tools or instructional or other
information resources
Goods are Chilean originating
goods if:
(a) they are accessories, spare parts,
tools or instructional or other information resources in relation to other
goods; and
(b) the other goods are imported into Australia with the accessories, spare parts, tools or instructional or other information
resources; and
(c) the other goods are Chilean
originating goods; and
(d) the accessories, spare parts,
tools or instructional or other information resources are not invoiced
separately from the other goods; and
(e) the quantities and value of the
accessories, spare parts, tools or instructional or other information resources
are customary for the other goods.
Subdivision F—Non‑qualifying operations
153ZJH
Non‑qualifying operations
(1) Goods are not Chilean originating goods
under this Division merely because of the following operations:
(a) operations to preserve goods in
good condition for the purpose of storage of the goods during transport;
(b) changing of packaging or the
breaking up or assembly of packages;
(c) disassembly of goods;
(d) placing goods in bottles, cases or
boxes or other simple packaging operations;
(e) making up of sets of goods;
(f) any combination of operations
referred to in paragraphs (a) to (e).
(2) This section applies despite any other
provision of this Division.
Subdivision G—Consignment
153ZJI
Consignment
(1) Goods are not Chilean originating goods
under this Division if:
(a) they are transported through a country
or place other than Chile or Australia; and
(b) they undergo subsequent production
or any other operation in that country or place (other than unloading,
reloading, storing, repacking, relabelling, exhibition or any operation that is
necessary to preserve them in good condition or to transport them to
Australia).
(2) This section applies despite any other
provision of this Division.
Division 1G—ASEAN‑Australia‑New Zealand (AANZ) originating goods
Subdivision A—Preliminary
153ZKA
Simplified outline
The following is a simplified outline of
this Division:
• This Division defines AANZ
originating goods (short for ASEAN‑Australia‑New Zealand originating
goods). Preferential rates of customs duty under the Customs Tariff Act 1995
apply to AANZ originating goods that are imported into Australia.
• Subdivision B provides that
goods are AANZ originating goods if they are wholly obtained
goods of a Party.
• Subdivision C provides that
goods are AANZ originating goods if they are produced entirely in
a Party from originating materials only.
• Subdivision D sets out when
goods are AANZ originating goods because they are produced from non‑originating
materials only or from non‑originating materials and originating materials.
• Subdivision E sets out when
goods are AANZ originating goods because they are accessories, spare parts,
tools or instructional or other information materials imported with other
goods.
• Subdivision F deals with
how the consignment of goods affects whether the goods are AANZ originating
goods.
153ZKB
Interpretation
Definitions
(1) In this
Division:
AANZ originating goods means goods that,
under this Division, are AANZ originating goods.
Agreement means the Agreement Establishing
the ASEAN‑Australia‑New Zealand Free Trade Area, done at Thailand on
27 February 2009, as amended from time to time.
Note: In 2009, the text of the Agreement was
accessible through the Australian Treaties Library on the AustLII website
(www.austlii.edu.au).
aquaculture has the meaning given by Article
1 of Chapter 3 of the Agreement.
Certificate of Origin means a certificate
that is in force and that complies with the requirements of Rule 7 of the Annex
to Chapter 3 of the Agreement.
Convention means the International Convention
on the Harmonized Commodity Description and Coding System done at Brussels on
14 June 1983, as in force from time to time.
Note: The text of the Convention is set out in
Australian Treaty Series 1988 No. 30 ([1988] ATS 30). In 2009, the text of
a Convention in the Australian Treaty Series was accessible through the
Australian Treaties Library on the AustLII website (www.austlii.edu.au).
customs value of goods has the meaning given
by section 159.
exclusive economic zone has the same meaning
as in the Seas and Submerged Lands Act 1973.
Harmonized System means the Harmonized
Commodity Description and Coding System (as in force from time to time) that is
established by or under the Convention.
in a Party includes:
(a) the territorial sea of a Party;
and
(b) the exclusive economic zone of a
Party over which the Party exercises sovereign rights or jurisdiction in
accordance with international law; and
(c) the continental shelf of a Party
over which the Party exercises sovereign rights or jurisdiction in accordance
with international law.
indirect materials means:
(a) goods or energy used in the
production, testing or inspection of goods, but not physically incorporated in
the goods; or
(b) goods or energy used in the
maintenance of buildings or the operation of equipment associated with the production
of goods;
including:
(c) fuel (within its ordinary
meaning); and
(d) tools, dies and moulds; and
(e) spare parts and materials; and
(f) lubricants, greases, compounding
materials and other similar goods; and
(g) gloves, glasses, footwear, clothing,
safety equipment and supplies; and
(h) catalysts and solvents.
Interpretation Rules means the General Rules
(as in force from time to time) for the Interpretation of the Harmonized System
provided for by the Convention.
non‑originating materials means goods that
are not originating materials.
originating materials means:
(a) AANZ originating goods that are
used or consumed in the production of other goods; or
(b) indirect materials.
Party means a Party (within the meaning of
the Agreement) for which the Agreement has entered into force.
Note: See also subsection (7).
produce means grow, farm, raise, breed, mine,
harvest, fish, trap, hunt, capture, gather, collect, extract, manufacture,
process or assemble.
territorial sea has the same meaning as in
the Seas and Submerged Lands Act 1973.
Regional value content of goods
(2) The regional value content of
goods for the purposes of this Division is to be worked out in accordance with
the regulations. The regulations may prescribe different regional value content
rules for different kinds of goods.
Value of goods
(3) The value of goods for the
purposes of this Division is to be worked out in accordance with the
regulations. The regulations may prescribe different valuation rules for
different kinds of goods.
Tariff classifications
(4) In specifying tariff classifications for
the purposes of this Division, the regulations may refer to the Harmonized
System.
(5) Subsection 4(3A) does not apply for the
purposes of this Division.
Incorporation of other instruments
(6) For the purposes of this Division, the
regulations may apply, adopt or incorporate any matter contained in any
instrument or other writing as in force or existing from time to time.
Notification of entry into force of Agreement for a
Party
(7) The Minister must announce by notice in
the Gazette the day on which the Agreement enters into force for a Party
(other than Australia). For the purposes of this subsection, Party means
a Party (within the meaning of the Agreement).
(8) A notice referred to in
subsection (7) is not a legislative instrument.
Subdivision B—Wholly obtained goods of a Party
153ZKC
Wholly obtained goods of a Party
(1) Goods are AANZ originating goods
if:
(a) they are wholly obtained goods of
a Party; and
(b) the importer of the goods has, at
the time the goods are imported, a Certificate of Origin, or a copy of one, for
the goods.
(2) Goods are wholly obtained goods of
a Party if, and only if, the goods are:
(a) plants, or goods obtained from
plants, that are grown, harvested, picked or gathered in a Party (including
fruit, flowers, vegetables, trees, seaweed, fungi and live plants); or
(b) live animals born and raised in a
Party; or
(c) goods obtained from live animals
in a Party; or
(d) goods obtained from hunting, trapping,
fishing, farming, aquaculture, gathering or capturing in a Party; or
(e) minerals or other naturally
occurring substances extracted or taken in a Party; or
(f) fish, shellfish or other marine
goods taken from the high seas, in accordance with international law, by ships
that are registered or recorded in a Party and are flying, or are entitled to
fly, the flag of that Party; or
(g) goods produced from goods referred
to in paragraph (f) on board factory ships that are registered or recorded
in a Party and are flying, or are entitled to fly, the flag of that Party; or
(h) goods taken by a Party, or a
person of a Party, from the seabed, or beneath the seabed, outside:
(i) the exclusive economic
zone of that Party; and
(ii) the continental shelf
of that Party; and
(iii) an area over which a
third party exercises jurisdiction;
and taken under exploitation
rights granted in accordance with international law; or
(i) waste and scrap that has been
derived from production or consumption in a Party and that is fit only for the
recovery of raw materials; or
(j) used goods that are collected in
a Party and that are fit only for the recovery of raw materials; or
(k) goods produced or obtained
entirely in a Party exclusively from goods referred to in paragraphs (a)
to (j) or from their derivatives.
Subdivision C—Goods produced from originating materials
153ZKD
Goods produced from originating materials
Goods are
AANZ originating goods if:
(a) they are produced entirely in a
Party from originating materials only; and
(b) the importer of the goods has, at
the time the goods are imported, a Certificate of Origin, or a copy of one, for
the goods.
Subdivision D—Goods produced from non‑originating materials
153ZKE
Goods produced from non‑originating materials and classified in the tariff
table
(1) Goods are AANZ originating goods
if:
(a) they are classified to a heading
or subheading of the Harmonized System specified in column 1 or 2 of the table
in Schedule 1 to the Customs (ASEAN‑Australia‑New Zealand Rules of
Origin) Regulations 2009; and
(b) each requirement that is specified
in the regulations to apply in relation to the goods is satisfied; and
(c) the importer of the goods has, at
the time the goods are imported, a Certificate of Origin, or a copy of one, for
the goods.
Change in tariff classification
(2) The regulations may specify that each non‑originating
material used or consumed in the production of the goods is required to satisfy
a specified change in tariff classification.
(3) The regulations may also specify when a
non‑originating material used or consumed in the production of the goods is
taken to satisfy the change in tariff classification.
(4) If:
(a) the requirement referred to in
subsection (2) applies in relation to the goods; and
(b) one or more of the non‑originating
materials used or consumed in the production of the goods do not satisfy the
change in tariff classification;
then the requirement referred to in subsection (2) is
taken to be satisfied if the total value of those non‑originating materials
does not exceed 10% of the customs value of the goods.
(5) If:
(a) the requirement referred to in
subsection (2) applies in relation to the goods; and
(b) the goods are classified to any of
Chapters 50 to 63 of the Harmonized System; and
(c) one or more of the non‑originating
materials used or consumed in the production of the goods do not satisfy the
change in tariff classification;
then the requirement referred to in subsection (2) is
taken to be satisfied if the total weight of those non‑originating materials
does not exceed 10% of the total weight of the goods.
Regional value content
(6) The regulations may specify that the
goods are required to have a regional value content of at least a specified
percentage.
(7) If:
(a) the goods are required to have a
regional value content of at least a particular percentage; and
(b) the goods are imported into
Australia with accessories, spare parts, tools or instructional or other
information materials; and
(c) the accessories, spare parts,
tools or instructional or other information materials are not invoiced
separately from the goods; and
(d) the quantities and value of the
accessories, spare parts, tools or instructional or other information materials
are customary for the goods;
then the regulations must require the value of the
accessories, spare parts, tools or instructional or other information materials
to be taken into account as originating materials or non‑originating materials,
as the case may be, for the purposes of working out the regional value content
of the goods.
Note: The value of the accessories, spare parts,
tools or instructional or other information materials is to be worked out in
accordance with the regulations: see subsection 153ZKB(3).
(8) For the purposes of subsection (7),
disregard section 153ZKI in working out whether the accessories, spare
parts, tools or instructional or other information materials are originating
materials or non‑originating materials.
(9) However, subsection (7) does not
apply if the accessories, spare parts, tools or instructional or other
information materials are imported solely for the purpose of artificially
raising the regional value content of the goods.
No limit on regulations
(10) Subsections (2) and (6) do not limit
paragraph (1)(b).
153ZKF
Goods produced from non‑originating materials and not classified in the tariff
table
Regional value content of at least 40%
(1) Goods are AANZ originating goods
if:
(a) they are classified to a heading
or subheading of the Harmonized System that is not specified in column 1 or 2
of the table in Schedule 1 to the Customs (ASEAN‑Australia‑New Zealand
Rules of Origin) Regulations 2009; and
(b) the final process in their
production was performed in a Party; and
(c) the goods have a regional value
content of at least 40%; and
(d) the importer of the goods has, at
the time the goods are imported, a Certificate of Origin, or a copy of one, for
the goods.
(2) For the purposes of subsection (1),
if:
(a) the goods are imported into
Australia with accessories, spare parts, tools or instructional or other
information materials; and
(b) the accessories, spare parts,
tools or instructional or other information materials are not invoiced
separately from the goods; and
(c) the quantities and value of the
accessories, spare parts, tools or instructional or other information materials
are customary for the goods;
then the regulations must require the value of the
accessories, spare parts, tools or instructional or other information materials
to be taken into account as originating materials or non‑originating materials,
as the case may be, for the purposes of working out the regional value content
of the goods.
Note: The value of the accessories, spare parts,
tools or instructional or other information materials is to be worked out in
accordance with the regulations: see subsection 153ZKB(3).
(3) For the purposes of subsection (2),
disregard section 153ZKI in working out whether the accessories, spare
parts, tools or instructional or other information materials are originating
materials or non‑originating materials.
(4) However, subsection (2) does not
apply if the accessories, spare parts, tools or instructional or other
information materials are imported solely for the purpose of artificially
raising the regional value content of the goods.
Change in tariff classification at heading level
(5) Goods are AANZ originating goods
if:
(a) they are classified to a heading
or subheading of the Harmonized System that is not specified in column 1 or 2
of the table in Schedule 1 to the Customs (ASEAN‑Australia‑New Zealand
Rules of Origin) Regulations 2009; and
(b) they are produced entirely in one
or more Parties from non‑originating materials only or from non‑originating
materials and originating materials; and
(c) each non‑originating material used
or consumed in the production of the goods undergoes a change in tariff
classification that is a change to a heading of the Harmonized System from any
other heading of the Harmonized System; and
(d) the importer of the goods has, at
the time the goods are imported, a Certificate of Origin, or a copy of one, for
the goods.
(6) For the purposes of
paragraph (5)(c), if one or more of the non‑originating materials used or
consumed in the production of the goods do not satisfy the change in tariff
classification referred to in that paragraph, then that paragraph is taken to
be satisfied if the total value of those non‑originating materials does not
exceed 10% of the customs value of the goods.
(7) For the purposes of
paragraph (5)(c), if:
(a) the goods are classified to any of
Chapters 50 to 63 of the Harmonized System; and
(b) one or more of the non‑originating
materials used or consumed in the production of the goods do not satisfy the
change in tariff classification referred to in that paragraph;
then that paragraph is taken to be satisfied if the total
weight of those non‑originating materials does not exceed 10% of the total
weight of the goods.
153ZKG
Non‑qualifying operations or processes
(1) This section applies for the purposes of
working out if goods are AANZ originating goods under:
(a) subsection 153ZKE(1) where, in
relation to paragraph 153ZKE(1)(b), the goods are claimed to be AANZ
originating goods solely on the basis that the goods have a regional value
content of at least a particular percentage; or
(b) subsection 153ZKF(1).
(2) The goods are not AANZ originating goods
merely because of the following:
(a) operations or processes to
preserve goods in good condition for the purpose of transport or storage of the
goods;
(b) operations or processes to
facilitate the shipment or transportation of goods;
(c) packaging (other than
encapsulation of electronics) for transportation or sale or presenting goods
for transportation or sale;
(d) simple processes of sifting,
classifying, washing, cutting, slitting, bending, coiling, uncoiling or other
similar simple processes;
(e) affixing of marks, labels or other
distinguishing signs on goods or on their packaging;
(f) dilution with water or another
substance that does not materially alter the characteristics of goods;
(g) any combination of things referred
to in paragraphs (a) to (f).
153ZKH
Packaging materials and containers
(1) If:
(a) goods are packaged for retail sale
in packaging material or a container; and
(b) the packaging material or
container is classified with the goods in accordance with Rule 5 of the
Interpretation Rules;
then the packaging material or container is to be
disregarded for the purposes of this Subdivision (with one exception).
Exception
(2) If the goods are required to have a
regional value content of at least a particular percentage, the regulations
must require the value of the packaging material or container to be taken into
account as originating materials or non‑originating materials, as the case may
be, for the purposes of working out the regional value content of the goods.
Note: The value of the packaging material or
container is to be worked out in accordance with the regulations: see
subsection 153ZKB(3).
Subdivision E—Goods that are accessories, spare parts, tools or
instructional or other information materials
153ZKI
Goods that are accessories, spare parts, tools or instructional or other
information materials
Goods are AANZ originating goods if:
(a) they are accessories, spare parts,
tools or instructional or other information materials in relation to other
goods; and
(b) the other goods are imported into
Australia with the accessories, spare parts, tools or instructional or other
information materials; and
(c) the accessories, spare parts,
tools or instructional or other information materials are not imported solely
for the purpose of artificially raising the regional value content of the other
goods; and
(d) the other goods are AANZ
originating goods; and
(e) the accessories, spare parts,
tools or instructional or other information materials are not invoiced
separately from the other goods; and
(f) the quantities and value of the
accessories, spare parts, tools or instructional or other information materials
are customary for the other goods.
Subdivision F—Consignment
153ZKJ
Consignment
(1) Goods are not AANZ originating goods
under this Division if:
(a) the goods are transported through
a country or place other than a Party; and
(b) at least one of the following
applies:
(i) the goods undergo
subsequent production or any other operation in that country or place (other
than unloading, reloading, storing or any operation that is necessary to
preserve the goods in good condition or to transport the goods to Australia);
(ii) the goods enter the
commerce of that country or place;
(iii) the transport through
that country or place is not justified by geographical, economic or logistical
reasons.
(2) This section applies despite any other
provision of this Division.
Division 2—Valuation of imported goods
154
Interpretation
(1) In this Division, unless the contrary
intention appears:
about the same time has the meaning given by subsection (2).
acquire, in relation to goods, includes
purchase, receive in exchange for other goods, take on lease, take on hire,
take on hire‑purchase and take under licence.
Australian inland freight, in relation to
imported goods, means:
(a) if any amount (other than an
amount of an Australian inland insurance) was paid or is payable by a trader of
the goods to a person other than a person related to a trader of the goods in
respect of:
(i) the transportation of
the goods on or after their importation into Australia; or
(ii) the
obtaining of any commercial or other documentation required in respect of the
transportation referred to in subparagraph (i) or in respect of the
importation of the goods;
and a Collector is satisfied of
the correctness of that amount—that amount;
(b) if any amount (other than an
amount of Australian inland insurance) was paid or is payable by a trader of
the goods to a person related to a trader of the goods in respect of the
provision of a service referred to in subparagraph (a)(i) or (ii) and a
Collector:
(i) is satisfied that the
amount is the same, or substantially the same, as the amount that would be
payable to a person not so related; and
(ii) is
satisfied of the correctness of that amount;
that amount; or
(c) if
any amount (other than an amount of Australian inland insurance) was paid or is
payable by a trader in respect of the provision of a service referred to in subparagraph (a)(i)
or (ii) but a Collector is not satisfied as required by paragraph (a) or
(b), whichever is applicable—such an amount as a Collector determines, having
regard to the ordinary costs payable in respect of the provision of the same
service to a trader in respect of the same class of goods as the imported
goods, under the same conditions, by a person who is not related to a trader of
goods of that class, on or after their importation into Australia;
or, if more than one of paragraphs (a), (b) and (c)
is applicable to the goods, the sum of the amounts ascertained in accordance
with the applicable paragraphs.
Australian inland insurance, in relation to
imported goods, means:
(a) if any amount was paid or is
payable by a trader of the goods to a person other than a person related to a
trader of the goods in respect of insurance in relation to the transportation
of the goods on or after importation into Australia and a Collector is
satisfied of the correctness of that amount—that amount;
(b) if any amount was paid or is
payable by a trader of the goods to a person related to a trader of the goods
in respect of insurance of the kind referred to in paragraph (a) and a
Collector:
(i) is satisfied that the
amount is the same, or substantially the same, as the amount that would be
payable to a person not so related; and
(ii) is
satisfied of the correctness of that amount;
that amount; or
(c) if
any amount was paid or is payable by a trader in respect of insurance of a kind
referred to in paragraph (a) but a Collector is not satisfied as required
by paragraph (a) or (b), whichever is applicable—such an amount as a
Collector determines, having regard to the ordinary cost of the same kind of
insurance to a trader in respect of the same class of goods as the imported
goods, under the same conditions, where the insurer is not related to a trader
of goods of that class;
or, if more than one of paragraphs (a), (b) and (c)
is applicable to the goods, the sum of the amounts ascertained in accordance
with the applicable paragraphs.
buying commission has the meaning given by
section 155.
comparable goods, in relation to imported
goods, means:
(a) the imported goods;
(b) identical goods; or
(c) similar goods.
computed value, in relation to imported
goods, has the meaning given by section 161F.
computed valued goods means exporter’s goods:
(a) whose owner has, before the
payment of duty in respect of the goods (whether before or after any
determination of a value of the goods) requested a Collector to take their
customs value to be their computed value in preference to their deductive
value; and
(b) whose computed value can be
determined by the Collector.
customs value, in relation to imported goods,
has the meaning given by section 159.
deductible administrative costs, in relation
to goods in a sale, means any costs that are payable on or after the
importation of the goods into Australia in relation to the activities of, or
services performed by, any local, State or Commonwealth public authorities or
officers, any licensed Customs broker, or any other person in Australia, in
connection with the importation and subsequent delivery of the goods.
deductible financing costs, in relation to goods
in a sale, means any interest payable under a written contract, agreement or
arrangement under which the purchaser is permitted to delay the payment of the
price in return for the payment of that interest (whether or not also in return
for an increase in the price or for the payment of an additional amount), being
a contract, agreement or arrangement entered into between the purchaser and the
vendor or another person in relation to the purchase of the goods, where:
(a) the interest is distinguished to
the satisfaction of a Collector from the price actually paid or payable for the
goods;
(b) if a Collector requires the
purchaser to demonstrate to the satisfaction of a Collector that identical or
similar goods are actually sold at the last‑mentioned price—the purchaser so
demonstrates; and
(c) if a Collector requires the
purchaser to demonstrate to the satisfaction of a Collector that the rate of
the interest does not exceed the rate of interest in similar contracts,
agreements or arrangements entered into in the country where, and at the time
when, finance under the first‑mentioned contract, agreement or arrangement was
provided—the purchaser so demonstrates.
deductive (contemporary sales) value, in
relation to imported goods, has the meaning given by section 161C.
deductive (derived goods sales) value, in
relation to imported goods, has the meaning given by section 161E.
deductive (later sales) value, in relation to
imported goods, has the meaning given by section 161D.
deductive value, in relation to imported
goods, means their:
(a) deductive (contemporary sales)
value;
(b) deductive (later sales) value; or
(c) deductive (derived goods sales)
value.
exempted container means a container that:
(a) is not a pallet; and
(b) is or has been permitted to be
temporarily imported into Australia free of Customs duty under section 162A.
exempted pallet means a pallet that is or has
been permitted to be temporarily imported into Australia free of Customs duty
under either section 162A or 162B.
exporter’s goods means imported goods
exported to Australia by their producer.
fall‑back value, in relation to imported
goods, has the meaning given by section 161G.
foreign inland freight, in relation to
imported goods, means:
(a) if any amount (other than an
amount of foreign inland insurance) was paid or is payable by a trader of the
goods to a person other than a person related to a trader of the goods in
respect of:
(i) the transportation of
the goods within a foreign country before they left their place of export; or
(ii) the
obtaining of any commercial or other documentation (other than documentation
required in respect of overseas freight or overseas insurance) required in
respect of the transportation referred to in subparagraph (i) or in
respect of the transportation of the goods from the foreign country concerned;
and a Collector is satisfied of
the correctness of that amount—that amount;
(b) if any amount (other than an
amount of foreign inland insurance) was paid or is payable by a trader of the
goods to a person related to a trader of the goods in respect of the provision
of service referred to in subparagraph (a)(i) or (ii) and a Collector:
(i) is satisfied that the
amount is the same, or substantially the same, as the amount that would be
payable to a person not so related; and
(ii) is
satisfied of the correctness of that amount;
that amount; or
(c) if
any amount (other than an amount of foreign inland insurance) was paid or is
payable by a trader in respect of the provision of a service referred to in subparagraph (a)(i)
or (ii) but a Collector is not satisfied as required by paragraph (a) or
(b), whichever is applicable—such an amount as a Collector determines, having
regard to the ordinary costs payable in respect of the provision of the same
service to a trader, in respect of the same class of goods as the imported
goods, under the same conditions, by a person who is not related to a trader of
goods of that class, before leaving the same place of export;
or, if more than one of paragraphs (a), (b) and (c)
is applicable to the goods, the sum of the amounts ascertained in accordance
with the applicable paragraphs.
foreign inland
insurance, in relation to imported goods, means:
(a) if any amount was paid or is
payable by a trader of the goods to a person other than a person related to a
trader of the goods in respect of insurance in relation to the transportation
of the goods within a foreign country before they left their place of export
and a Collector is satisfied of the correctness of that amount—that amount;
(b) if any amount was paid or is
payable by a trader of the goods to a person related to a trader of the goods
in respect of insurance of the kind referred to in paragraph (a) and a
Collector:
(i) is satisfied that the
amount is the same, or substantially the same, as the amount that would be
payable to a person not so related; and
(ii) is
satisfied of the correctness of that amount;
that amount; or
(c) if
any amount was paid or is payable by a trader in respect of insurance of a kind
referred to in paragraph (a) but a Collector is not satisfied as required
by paragraph (a) or (b), whichever is applicable—such an amount as a
Collector determines, having regard to the ordinary cost of the same kind of
insurance to a trader in respect of the same class of goods as the imported
goods, under the same conditions, where the insurer is not related to a trader
of goods of that class;
or, if more than one of paragraphs (a), (b) and (c)
is applicable to the goods, the sum of the amounts ascertained in accordance
with the applicable paragraphs.
identical goods, in relation to imported
goods, has the meaning given by section 156.
identical goods value, in relation to
imported goods, has the meaning given by section 161A.
import sales transaction, in relation to
imported goods, means:
(a) where there was one, and only one,
contract of sale for the importation of the goods into Australia entered into
before they became subject to Customs control and it was also a contract for
their exportation from a foreign country—that contract;
(b) where there was one, and only one,
contract of sale for the importation of the goods into Australia entered into
before they became subject to Customs control and it was not also a contract
for their exportation from a foreign country—that contract; or
(c) where
there were 2 or more contracts of sale for the importation of the goods into
Australia entered into before they became subject to Customs control—whichever
of the contracts was made last;
and includes:
(d) any contract, agreement or
arrangement, whether formal or informal, to which the vendor, the purchaser or
an agent of, or a person related to, the vendor or purchaser is a party that
provides for an increase in the value of the goods the subject of the contract
of sale referred to in paragraph (a), (b) or (c) prior to their
importation; and
(e) any other contract, agreement or
arrangement relating to the contract of sale referred to in paragraph (a),
(b) or (c) that a Collector determines is so closely connected with that
contract and to the goods the subject of that contract that together they form
a single transaction.
overseas freight, in relation to imported
goods, means:
(a) if any amount (other than an
amount of overseas insurance) was paid or is payable by a trader of the goods
to a person other than a person related to a trader of the goods in respect of
the transportation of the goods from their place of export to Australia, the
goods are not self transported goods and a Collector is satisfied of the correctness
of that amount—that amount;
(b) if any amount (other than an
amount of overseas insurance) was paid or is payable by a trader of the goods
to a person related to a trader of the goods in respect of the transportation
referred to in paragraph (a), the goods concerned are not self transported
goods and a Collector:
(i) is satisfied that the
amount is the same, or substantially the same, as the amount that would be
payable to a person not so related; and
(ii) is
satisfied of the correctness of that amount;
that amount; or
(c) if any amount (other than an
amount of overseas insurance) was paid or is payable by a trader in respect of
the transportation referred to in paragraph (a) but the goods concerned
are self transported goods or a Collector is not satisfied as required by paragraph (a)
or (b), whichever is applicable—such an amount, as a Collector determines,
having regard to the ordinary costs of the transportation of goods of the same
class as the imported goods:
(i) if the imported goods
are self transported goods—under the most commercially viable conditions; or
(ii) if
the imported goods are not self transported goods—under the same conditions as
the imported goods;
by
a person who is not related to a trader of goods of that class, between the
same foreign country and Australia;
or, if more than one of paragraphs (a), (b) and (c)
is applicable to the goods, the sum of the amounts ascertained in accordance
with the applicable paragraphs.
overseas insurance, in relation to imported
goods, means:
(a) if any amount was paid or is
payable by a trader of the goods to a person other than a person related to a
trader of the goods in respect of insurance in relation to the transportation
of the goods from their place of export to Australia, the goods are not self
transported goods and a Collector is satisfied of the correctness of that
amount—that amount;
(b) if any amount was paid or is
payable by a trader of the goods to a person related to a trader of the goods
in respect of insurance of the kind referred to in paragraph (a), the
goods concerned are not self transported goods, and a Collector:
(i) is satisfied that the
amount is the same, or substantially the same, as the amount that would be
payable to a person not so related; and
(ii) is
satisfied of the correctness of that amount;
that amount; or
(c) if any amount was paid or is
payable in respect of insurance of a kind referred to in paragraph (a) but
the goods concerned are self transported goods or a Collector is not satisfied
as required by paragraph (a) or (b) whichever is applicable—such an amount
as a Collector determines, having regard to the ordinary cost of insurance in
relation to the transportation of goods of the same class as the imported
goods:
(i) if the imported goods
are self transported goods—under the most commercially viable conditions; or
(ii) if
the imported goods are not self transported goods—under the same conditions as
the imported goods;
where
the insurer is not related to a trader of the transported goods;
or, if more than one of paragraphs (a), (b) and (c)
is applicable to the goods, the sum of the amounts ascertained in accordance
with the applicable paragraphs.
place of export, in relation to imported
goods, means:
(a) where, while in the country from
which they were exported the goods were posted to Australia—the place where
they were so posted;
(b) where, while in the country from
which they were exported, the goods, not being goods referred to in paragraph (a),
were packed in a container—the place where they were so packed;
(c) where the goods, being self
transported goods, were exported from a country by sea or air—the place, or
last place, in that country from which the goods departed for Australia;
(d) where the goods, not being goods
referred to in paragraph (a), (b) or (c), were exported from a country by
sea or air—the place, or first place, in that country where the goods were
placed on board a ship or aircraft for export from that country;
(e) where the goods, not being goods
referred to in paragraph (a), (b), (c) or (d), were exported from a
country by land, or by river, canal or other inland waterway—the place at which
the goods finally crossed the border from that country into another country in
the course of their transportation to Australia; or
(f) in any other case—a place
determined by a Collector.
price, in relation to goods the subject of a
contract of sale, means an amount determined by a Collector, after disregarding
rebates in relation to those goods, to be the sum of:
(a) all payments that have been made,
or are to be made, directly or indirectly, in relation to such goods, by or on
behalf of the purchaser:
(i) to the vendor;
(ii) to any person related
to the vendor unless a Collector is satisfied that the vendor has not derived
and will not derive any direct or indirect benefit from the payment; or
(iii) to
any other person for the direct or indirect benefit of the vendor;
in accordance with the contract
of sale; and
(b) all payments that have been made,
or are to be made, directly or indirectly, in relation to such goods, by or on
behalf of the purchaser:
(i) to the vendor;
(ii) to any person related
to the vendor unless a Collector is satisfied that the vendor has not derived
and will not derive any direct or indirect benefit from the payment; or
(iii) to
any other person for the direct or indirect benefit of the vendor;
under
any other contract, agreement or arrangement, whether formal or informal, being
a contract, agreement or arrangement for the doing of anything to increase the
value of the goods or that a Collector is satisfied is so closely connected
with the contract of sale referred to in paragraph (a) and to the goods
the subject of that contract that together they form a single transaction;
whether the payment is made in money or by letter of
credit, negotiable instrument or otherwise, and includes:
(c) the value, as determined by a
Collector, of any goods or services supplied, or to be supplied, by, or on
behalf of, the purchaser as part of the consideration passing from the
purchaser under the contract of sale referred to in paragraph (a); and
(d) the value, as determined by a
Collector, of any goods or services supplied, or to be supplied, directly or
indirectly, by, or on behalf of, the purchaser:
(i) to the vendor;
(ii) to any person related
to the vendor unless the Collector is satisfied that the vendor has not derived
and will not derive any direct or indirect benefit from the payment; or
(iii) to
any other person for the direct or indirect benefit of the vendor;
under
a contract, agreement or arrangement of the kind referred to in paragraph (b);
but does not include the amount of any duty of Customs
(including any dumping or countervailing duty imposed under the Customs
Tariff (Anti‑Dumping) Act 1975), any sales tax, or any other duty or tax,
that is payable by law because of the importation into, or subsequent use, sale
or disposition in, Australia of the goods.
price related costs, in relation to imported
goods, means:
(a) production assist costs in respect
of the goods;
(b) packing costs for materials and
labour paid or payable, directly or indirectly, by or on behalf of the
purchaser in respect of the goods (including, but without limiting the
generality of the foregoing, costs of fumigating, cleaning, coating, wrapping
or otherwise preparing the goods for their exportation from a foreign country
or otherwise placing them in the condition in which they are imported into
Australia, but not including the cost of any exempted pallet or exempted container
concerned in their exportation);
(c) foreign inland freight and foreign
inland insurance in relation to the goods paid or payable, directly or
indirectly, by or on behalf of the purchaser;
(d) commission, other than a buying
commission, or brokerage, paid or payable, directly or indirectly, by or on
behalf of the purchaser in respect of the goods; or
(e) all royalties or licence fees paid
or payable, directly or indirectly, by or on behalf of the purchaser to the
vendor or to another person under the import sales transaction, not being
royalties or licence fees:
(i) that do not relate to
the imported goods in the condition, or substantially in the condition, in
which they are imported into Australia;
(ii) whose only
relationship to the imported goods in the condition in which they are imported
into Australia is insubstantial or incidental;
(iii) that are merely for
the right to reproduce the imported goods within Australia; or
(iv) that
are payable for the assembly, erection, construction or maintenance of imported
goods after their importation into Australia or for any technical assistance in
respect of the goods after their importation; and
(f) the whole or any part of the
proceeds of any subsequent use, resale or disposal of the goods, by or on behalf
of the purchaser, that have accrued, or will accrue, to the vendor.
produce includes grow, manufacture, mine,
process and treat.
production assist costs, in relation to
imported goods (including imported goods that are comparable goods or derived
goods in relation to other imported goods), means the sum of:
(a) the purchaser’s material costs;
(b) the purchaser’s tooling costs;
(c) the purchaser’s work costs; and
(d) the
purchaser’s subsidiary costs;
in relation to those first‑mentioned imported goods.
production materials,
in relation to the imported goods, means:
(a) materials, components or other
goods that form part of the imported goods; and
(b) materials consumed in the
production of the imported goods.
production tooling, in relation to imported
goods, means tools, dies, moulds or other machinery or equipment used in the
production of the imported goods.
production work means art work, design work,
development work and engineering work and includes models, plans and sketches.
purchaser, in relation to imported goods,
means the purchaser under the import sales transaction for the goods.
purchaser’s material costs, in relation to
imported goods, means the sum of the following amounts relating to production
materials supplied, directly or indirectly, by the purchaser free of charge or
at a reduced cost:
(a) an amount equal to:
(i) where the materials
were acquired by the purchaser from a person who was not related to the
purchaser at the time of acquisition—the cost of acquisition;
(ii) where the materials
were acquired by the purchaser from a person who was related to the purchaser
at the time of acquisition and who did not produce the materials—the cost of
acquisition of the materials by the person; or
(iii) where the materials
were produced by the purchaser or by a person who was related to the purchaser
at the time of production of the goods—the cost of production;
(b) the cost of transporting the
materials after their acquisition or production by the purchaser to the place
of production of the imported goods;
(c) the cost of repairs and
modifications of the materials after their acquisition or production by the
purchaser.
purchaser’s subsidiary
costs, in relation to imported goods, means such part of the sum of the
following amounts relating to subsidiary goods, or subsidiary services,
supplied, directly or indirectly, by the purchaser free of charge or at a
reduced price as a Collector considers should be apportioned to the production
of the imported goods:
(a) an amount equal to:
(i) where the subsidiary
goods relate to work goods and were available generally to the public in
Australia or elsewhere at the time of acquisition by the purchaser (in this
definition called available goods)—the cost to the public of
acquiring the available goods;
(ii) where the subsidiary
goods (other than available goods) were acquired by the purchaser from a person
who was not related to the purchaser at the time of acquisition—the cost of
acquisition;
(iii) where the subsidiary
goods (other than available goods) were acquired by the purchaser from a person
who was related to the purchaser at the time of acquisition and who did not
produce the goods—the cost of acquisition by the person; or
(iv) where the subsidiary
goods (other than available goods) were produced by the purchaser or by a
person who was related to the purchaser at the time of the production of the
goods—the cost of that production;
(b) the cost of transporting the
subsidiary goods (other than goods that relate to work goods) after their acquisition
or production by the purchaser to the place of production of the production
materials or production tooling, as the case requires;
(c) the cost of repairs and
modifications of subsidiary goods, (other than goods that relate to work
goods), after their acquisition or production by the purchaser;
(d) the cost of repairs and
modifications outside Australia of subsidiary goods that relate to work goods
after the acquisition or production of the subsidiary goods by the purchaser;
(e) an amount equal to:
(i) where the subsidiary
services were supplied by a person who was not related to the purchaser at the
time of the supply—the cost of that supply; or
(ii) in any other case—such
amount as the Collector determines to be the value of the subsidiary services;
(f) the cost of the supply of any
further services in relation to the subsidiary services (other than services
that relate to work services);
(g) the cost of the supply outside Australia of any further services in relation to the subsidiary services that relate to
work services.
purchaser’s tooling costs, in relation to
imported goods, means such part of the sum of the following amounts relating to
production tooling supplied, directly or indirectly, by the purchaser free of
charge or at a reduced price as a Collector considers should be apportioned to
the production of the imported goods:
(a) an amount equal to:
(i) where the tooling was
acquired by the purchaser from a person who was not related to the purchaser at
the time of acquisition—the cost of acquisition;
(ii) where the tooling was
acquired by the purchaser from a person who was related to the purchaser at the
time of acquisition and who did not produce the tooling—the cost of acquisition
of the tooling by the person; or
(iii) where the tooling was
produced by the purchaser or by a person who was related to the purchaser at
the time of production of the tools—the cost of production;
(b) the cost of transporting the
tooling after its acquisition or production by the purchaser to the place of
production of the imported goods;
(c) the cost of repairs and
modifications of the tooling after its acquisition or production by the
purchaser.
purchaser’s work costs, in relation to
imported goods, means such part of the sum of the following amounts relating to
work goods, or work services, supplied, directly or indirectly, by the
purchaser free of charge or at a reduced price, as a Collector considers should
be apportioned to the production of the imported goods:
(a) an amount equal to:
(i) where the work goods
were available generally to the public in Australia or elsewhere at the time of
acquisition by the purchaser (in this definition called available goods)—the
cost to the public of acquiring the goods;
(ii) where the work goods
(other than available goods) were acquired by the purchaser from a person who
was not related to the purchaser at the time of acquisition—the cost of
acquisition;
(iii) where the work goods
(other than available goods) were acquired by the purchaser from a person who
was related to the purchaser at the time of acquisition and who did not produce
the work goods—the cost of acquisition by the person; or
(iv) where the work goods
(other than available goods) were produced by the purchaser or by a person who
was related to the purchaser at the time of the production of the work
goods—the cost of that production;
(b) the cost of transporting the work
goods, after their acquisition or production by the purchaser to the place of
production of the imported goods;
(c) the cost of repairs and
modifications outside Australia of the work goods after their acquisition by
the purchaser;
(d) an
amount equal to:
(i) where the work
services were supplied by a person who was not related to the purchaser at the
time of the supply—the cost of that supply; or
(ii) in any other case—such
amount as the Collector determines to be the value of the work services;
(e) the cost of the supply outside Australia of any further services in relation to the work services.
rebate, in relation to goods the subject of a
contract for sale, means any rebate of, or other decrease in, the amount that
would constitute the price of the goods other than such a rebate or decrease
the benefit of which has been received when that amount is being determined.
related, in relation to persons, has the
meaning given by subsection (3).
request goods means goods whose owner has
requested a Collector to determine their deductive (derived goods sales) value.
royalty, in relation to imported goods, means
royalty within the meaning given by section 157.
self transported goods
means:
(a) a ship imported otherwise than in
another ship or an aircraft; or
(b) an aircraft imported otherwise
than in a ship or another aircraft.
similar goods, in relation to imported goods,
has the meaning given by section 156.
similar goods value, in relation to imported
goods, has the meaning given by section 161B.
subsidiary goods, in relation to imported
goods, means goods supplied, directly or indirectly, by the purchaser in
relation to the production of production materials, production tooling, work
goods, or work services, supplied, directly or indirectly by the purchaser
(whether or not free of charge or at a reduced cost) in relation to the
production of the imported goods.
subsidiary services, in relation to imported
goods, means services supplied, directly or indirectly, by the purchaser in
relation to the production of production materials, production tooling, work
goods, or work services, supplied, directly or indirectly by the purchaser
(whether or not free of charge or at a reduced cost) in relation to the
production of the imported goods.
trade mark means a mark of a kind capable of
registration under the Trade Marks Act 1955, whether or not it is
registered under that Act or any other law, but does not include a mark that
relates to a service.
trader, in relation to goods, means a vendor,
exporter, purchaser or importer of the goods.
transaction value, in relation to imported
goods, has the meaning given by section 161.
transportation includes transportation by
post and storage or handling incidental to transportation.
value unrelated amount, in relation to goods
in a sale, means:
(a) where the sale is on
commission—the amount of commission usually earned in connection with the sale
of other goods of the same class and in the same quantity as the goods in the
sale, being a sale of other goods in Australia at the same trade level as the
first‑mentioned goods;
(b) where the sale is not on
commission—the amount usually added for profit and general expenses (including
all costs, direct or indirect, of marketing), taken as a whole, in connection
with the sale of other goods of the same class or kind and in the same quantity
as the goods in the sale, being a sale of other goods in Australia at the same
trade level as the first‑mentioned goods;
(c) Australian inland freight and
Australian inland insurance in respect of the goods in the sale or of the goods
from which the goods in the sale were derived;
(d) the amount of any duties of
Customs and other taxes payable because of the importation into, or the sale
in, Australia of the goods in the sale or of goods from which the goods in the
sale were derived; and
(e) overseas freight and overseas
insurance in relation to the goods in the sale or of the goods from which the
goods in the sale were derived.
vendor, in relation to imported goods, means
the vendor under the import sales transaction for the goods.
work goods, in
relation to imported goods, means goods relating to production work that was:
(a) required for the production of the
imported goods; and
(b) undertaken outside Australia.
work services, in relation to imported goods,
means services relating to production work that was:
(a) required for the production of the
imported goods; and
(b) undertaken outside Australia.
(2) For the purposes of this Division, an
event occurs about the same time as another event if the first event occurs:
(a) on the same day as the other
event; or
(b) within the 45 days immediately
before, or the 45 days immediately after, the day on which the other event
occurs.
(3) For the purposes of this Division, 2
persons shall be deemed to be related to each other if, and only if:
(a) both being natural persons:
(i) they are members of
the same family; or
(ii) one of them is an
officer or director of a body corporate controlled, directly or indirectly, by
the other;
(b) both being bodies corporate:
(i) both of them are
controlled, directly or indirectly, by a third person (whether or not a body
corporate);
(ii) both of them together
control, directly or indirectly, a third body corporate;
(iii) the same person
(whether or not a body corporate) is in a position to cast, or control the
casting of, 5% or more of the maximum number of votes that might be cast at a
general meeting of each of them;
(c) one of them, being a body
corporate, is, directly or indirectly, controlled by the other (whether or not
a body corporate);
(d) one of them, being a natural
person, is an employee, officer or director of the other (whether or not a body
corporate); or
(e) they are members of the same
partnership.
Note: In relation to the reference to member of a
family in subparagraph (3)(a)(i), see also section 4AAA.
(4) A person, whether or not a body
corporate, shall be taken to control another body corporate for the purposes of
subsection (3) if that person has the capacity to impose any restraint or
restrictions upon, or to exercise any direction over, that other body
corporate.
(5) Without, by implication, affecting the meaning
of any reference to an owner of goods in any other provision of this Act, a
reference in this Division to the owner of goods, being a ship or aircraft,
shall not be taken to include a person acting as agent for the owner or
receiving freight or other charges payable in respect of the ship or aircraft.
155
Interpretation—Buying commission
(1) Subject to subsection (2), a
reference in this Division to a buying commission in relation to imported goods
is a reference to an amount paid or payable by or on behalf of the purchaser of
the goods directly or indirectly to a person who, as an agent of the purchaser,
represented the purchaser in the purchase of the goods in the import sales
transaction.
(2) An amount paid by a purchaser of imported
goods to another person in the circumstances referred to in subsection (1)
shall be taken not to be a buying commission unless a Collector is satisfied
that that other person did not and does not:
(a) produce, in whole or in part, or
control the production, in whole or in part of:
(i) the imported goods, or
any other goods whose value would be taken into account in determining, or
attempting to determine, the transaction value of the imported goods; or
(ii) any other goods of the
same class as goods referred to in subparagraph (i);
(b) supply,
or control the supply of, any services:
(i) whose value would be
taken into account in determining, or attempting to determine, the price of the
imported goods; or
(ii) any other services of
the same class as the services referred to in subparagraph (i);
(c) transport the imported goods, or
any other goods referred to in subparagraph (a)(i), within any foreign
country, between a foreign country and Australia, or within Australia, for any
purpose associated with the manufacture or importation of those imported goods;
(d) purchase, exchange, sell, or
otherwise trade any of the goods referred to in subparagraph (a)(i) or
supply any of the services referred to in subparagraph (b)(i) other than
in the capacity of an agent of the purchaser;
(e) in relation to any of the goods
referred to in subparagraph (a)(i) or any of the services referred to in subparagraph (b)(i):
(i) act as an agent for,
or in any other way represent, the producer, supplier, or vendor of the goods
or services; or
(ii) otherwise be
associated with any such person except as the agent of the purchaser; or
(f) claim or receive, directly or
indirectly, the benefit of any commission, fee or other payment, in the form of
money, letter of credit, negotiable instruments, or any goods or services, from
any person as a consequence of the import sales transaction, other than
commission received from the purchaser for the services rendered by that person
in that transaction.
156
Interpretation—Identical goods and similar goods
(1) Subject to subsection (2), a
reference in this Division to identical goods, in relation to imported goods is
a reference to goods that a Collector is prepared, or is required by their
owner, to treat as identical goods in relation to the imported goods, being
goods that the Collector is satisfied:
(a) are the same in all material
respects, including physical characteristics, quality and reputation, as the
imported goods;
(b) were produced in the same country
as the imported goods; and
(c) were
produced by or on behalf of the producer of the imported goods;
but not being goods in relation to which:
(d) art work, design work, development
work, engineering work undertaken, or substantially undertaken, in Australia; or
(e) models,
plans or sketches prepared, or substantially prepared, in Australia;
was or were supplied directly or indirectly by or on
behalf of the purchaser free of charge or at a reduced cost for use in relation
to their production.
(2) Where a Collector, after reasonable inquiry,
is not aware of any goods that may be treated under subsection (1) as
identical goods in relation to the goods to be valued, the Collector shall
disregard the requirement in paragraph (1)(c) for the purpose of treating
goods as identical goods in relation to the imported goods.
(3) Subject to subsection (4), a
reference in this Division to similar goods, in relation to imported goods, is
a reference to goods that a Collector is prepared, or is required by their
owner, to treat as similar goods in relation to the imported goods, being goods
that the Collector is satisfied:
(a) closely resemble the imported
goods in respect of component materials and parts and in respect of physical
characteristics;
(b) are functionally and commercially
interchangeable with the imported goods having regard to the quality and
reputation (including any relevant trade marks) of each lot of goods;
(c) were produced in the same country
as the imported goods; and
(d) were
produced by or on behalf of the producer of the imported goods;
but not being goods in relation to which:
(e) art work, design work, development
work or engineering work undertaken, or substantially undertaken, in Australia; or
(f) models,
plans or sketches prepared, or substantially prepared, in Australia;
was or were supplied directly or indirectly by or on
behalf of the purchaser free of charge or at a reduced cost for use in relation
to their production.
(4) Where a Collector, after reasonable
inquiry, is not aware of any goods that may be treated under subsection (3)
as similar goods in relation to the goods to be valued, the Collector shall
disregard the requirement in paragraph (3)(d) for the purpose of treating
goods as similar goods in relation to the imported goods.
157
Interpretation—Royalties
(1) A reference in this Division to a royalty
includes a reference to an amount paid or credited (however described or
computed and whether the payment or credit is periodical or not) to the extent
to which the amount is paid or credited as consideration for:
(a) the making, use, exercise or
vending of an invention or the right to make, use, exercise or vend an
invention;
(b) the use of, or the right to use:
(i) a design or trade
mark;
(ii) confidential
information; or
(iii) machinery, implements,
apparatus or other equipment;
(c) the supply of scientific,
technical, industrial, commercial or other knowledge or information;
(d) the supply of any assistance that
is ancillary and subsidiary to, and is furnished as a means of enabling the
application or enjoyment of, any matter falling within any of the foregoing
paragraphs; or
(e) a total or partial forbearance in
respect of any matter falling within any of the foregoing paragraphs (including
paragraph (d)).
(2) Where:
(a) a person pays an amount of royalty
in respect of goods at a time when the goods are not imported goods;
(b) the goods are imported goods
before or after the payment; and
(c) the
payment is made in connection with a scheme entered into or carried out for the
purpose of the payment not being royalty for the purposes of this Division;
the payment shall be deemed, for the purposes of this
Division, to have been made at a time when the goods were imported goods.
(3) In this
section:
design means a design of a kind capable of
being registered under the Designs Act 2003, whether or not it is
registered under that Act or any other law.
payment, in relation to an amount, includes
the incurring of a liability to pay, and the crediting of, the amount.
scheme means:
(a) an agreement, arrangement,
understanding, promise or undertaking, whether formal or informal, whether
express or implied and whether or not enforceable, or intended to be
enforceable, by legal proceedings; or
(b) a plan, proposal, action, course
of action or course of conduct, whether unilateral or otherwise.
use, includes hire‑out, lease‑out, rent‑out,
sell, market, distribute or otherwise trade in or dispose of.
(4) For the purposes of this section, a
scheme shall be taken to be entered into or carried out for a particular purpose
if the person who has, or one or more of the persons who have, entered into or
carried out the scheme or a part of the scheme did so for that purpose or for
purposes including that purpose.
158
Interpretation—Transportation costs
Where the purchaser of imported goods:
(a) has supplied any production
material, production tooling or work goods in relation to those imported goods
to a person in a foreign country for the purposes related to the production of
those imported goods; or
(b) has
supplied any subsidiary goods to a person in a foreign country for purposes
related to the production of production materials, production tooling, work
goods or work services in relation to those imported goods;
references in this Division to the cost of transporting
that production material or production tooling or those work goods or
subsidiary goods, after its or their acquisition or production by the
purchaser, to the place of production in that foreign country shall be taken to
include:
(c) the packing costs for materials
and labour paid or payable by or on behalf of the purchaser in relation to that
production material, or production tooling or those work goods or subsidiary
goods including, but without limiting the generality of the foregoing, costs of
fumigating, cleaning, coating, wrapping or otherwise preparing the material
tooling or goods for transportation to the place of production of the imported
goods;
(d) any amount paid or payable by or
on behalf of the purchaser in relation to that production material or
production tooling or those work goods or subsidiary goods that would:
(i) if that foreign
country were Australia;
(ii) if any other country
from which that material or tooling or those goods were exported were a foreign
country; and
(iii) if that material or
tooling or those goods were imported goods;
be an amount of foreign inland
freight or foreign inland insurance, overseas freight or overseas insurance, or
Australian inland freight or Australian inland insurance; and
(e) all duties of Customs, sales tax,
or other duties or taxes paid or payable in consequence of the importation of
that production tooling or those work goods or subsidiary goods or in
consequence of any other use, sale or disposition in that foreign country.
159
Value of imported goods
(1) Unless the contrary intention appears in
this Act or in another Act, the value of imported goods for the purposes of an
Act imposing duty is their customs value and the Collector shall determine that
customs value in accordance with this section.
(2) Where a Collector can determine the
transaction value of imported goods, their customs value is their transaction
value.
(3) Where a Collector cannot determine the
transaction value of imported goods but can determine their identical goods value,
their customs value is their identical goods value.
(4) Where a Collector:
(a) cannot determine the transaction
value of imported goods; and
(b) cannot
determine their identical goods value;
but can determine their similar goods value, their customs
value is their similar goods value.
(5) Where a Collector:
(a) cannot determine the transaction
value of imported goods, not being computed valued goods;
(b) cannot determine their identical
goods value; and
(c) cannot
determine their similar goods value;
but can determine their deductive (contemporary sales)
value, their customs value is their deductive (contemporary sales) value.
(6) Where a
Collector:
(a) cannot determine the transaction
value of imported goods, not being computed valued goods;
(b) cannot determine their identical
goods value;
(c) cannot determine their similar
goods value; and
(d) cannot
determine their deductive (contemporary sales) value;
but can determine their deductive (later sales) value,
their customs value is their deductive (later sales) value.
(7) Where a Collector:
(a) cannot determine the transaction
value of imported goods, not being computed valued goods but being request
goods;
(b) cannot determine their identical
goods value;
(c) cannot determine their similar
goods value;
(d) cannot determine their deductive
(contemporary sales) value; and
(e) cannot
determine their deductive (later sales) value;
but can determine their deductive (derived goods sales)
value, their customs value is their deductive (derived goods sales) value.
(8) Where a Collector:
(a) cannot determine the transaction
value of exporter’s goods, not being computed valued goods;
(b) cannot determine their identical
goods value;
(c) cannot determine their similar
goods value;
(d) where they are request goods,
cannot determine any of their deductive values; and
(e) where they are not request goods:
(i) cannot determine their
deductive (contemporary sales) value; and
(ii) cannot
determine their deductive (later sales) value;
but can determine their computed value, their customs
value is their computed value.
(9) Where a
Collector:
(a) cannot determine the transaction
value of imported goods, being computed valued goods;
(b) cannot determine their identical
goods value; and
(c) cannot
determine their similar goods value;
their customs value is their computed value.
(10) Where a Collector:
(a) cannot determine the transaction
value of imported goods;
(b) cannot determine their identical
goods value;
(c) cannot determine their similar
goods value;
(d) where they are request goods,
cannot determine any of their deductive values;
(e) where they are not request goods:
(i) cannot determine their
deductive (contemporary sales) value; and
(ii) cannot determine their
deductive (later sales) value; and
(f) where
they are exporter’s goods, cannot determine their computed value;
their customs value is their fall‑back value.
160
Inability to determine a value of imported goods by reason of insufficient or
unreliable information
(1) Where a Collector is not satisfied that
there is sufficient reliable information available to the Collector, being
information of a kind referred to in subsection (2), to enable him or her
to determine a value of imported goods in accordance with a provision of this
Division for determining their customs value, the Collector may determine, in
writing, that he or she is not so satisfied and the Collector shall thereupon
be taken to be unable to determine that first‑mentioned value.
(2) Where a Collector is not satisfied that
there is sufficient reliable information available to the Collector to enable
him or her to determine the quantity and correctness of any amount that is
required to be taken into account in determining a value of those goods in
accordance with a provision of this Division for determining the customs value
of imported goods, then:
(a) where that amount would ordinarily
form part of their customs value under the particular valuation method set out
in that provision—the Collector shall determine, in writing, that he or she is
not so satisfied and the Collector shall thereupon be taken to be unable to use
that method;
(b) where that amount would ordinarily
be deducted from the amount that would otherwise be their customs value under
the particular valuation method set out in that provision:
(i) if the Collector
determines, in writing, that he or she is not so satisfied and that he or she
does not desire to use the method—the Collector shall thereupon be taken to be
unable to use that method; and
(ii) if the Collector
determines, in writing, that he or she is not so satisfied but that he or she
desires to use the method—the Collector may use the method but no deduction
shall be allowed on account of that amount.
161
Transaction value
(1) The transaction value of imported goods
is an amount equal to the sum of their adjusted price in their import sales
transaction and of their price related costs to the extent that those costs
have not been taken into account in determining the price of the goods.
(2) In this section:
adjusted price, in relation to imported
goods, means the price of the goods determined by a Collector who deducts from
the amount that, but for this subsection, would be the amount of that price,
such amounts as the Collector considers necessary to take account of the
following matters:
(a) deductible financing costs in
relation to the goods;
(b) any costs that the Collector is
satisfied:
(i) are payable for the
assembly, erection, construction or maintenance of, or any technical assistance
in respect of, the goods;
(ii) are incurred after
importation of the goods into Australia; and
(iii) are capable of being
accurately quantified by reference to the import sales transaction relating to
the goods;
(c) Australian inland freight and
Australian inland insurance in relation to the goods;
(d) deductible administrative costs in
relation to the goods;
(e) overseas freight and overseas
insurance in relation to the goods.
161A
Identical goods value
(1) The identical goods value of imported
goods is their value calculated as if the value of each of their units were:
(a) the unit price of comparable
identical goods; or
(b) if, because 2 or more lots of
goods are treated as comparable identical goods, there are 2 or more such unit
prices—the lower or lowest of those unit prices.
(2) In this section:
comparable identical goods, in relation to
imported goods, means identical goods that a Collector is satisfied:
(a) were exported to Australia about the same time as the imported goods; and
(b) either:
(i) were sold in the same,
or substantially the same, quantities, as the imported goods in an import sales
transaction at the same trade level as the import sales transaction of the
imported goods; or
(ii) are of a kind that
reasonable inquiry by the Collector has not shown to be so sold.
unit price, in relation to comparable
identical goods, means their transaction value:
(a) adjusted to such extent as a
Collector considers necessary so that that value is what it would have been if:
(i) their foreign inland
freight and foreign inland insurance had been what that freight and insurance
would have been if the goods had been transported, and only transported, over
the distances over which, and in the modes in which, the imported goods with
which they are comparable identical goods were transported;
(ii) the trade levels of
the import sales transactions of the comparable identical goods had been those
of the import sales transaction of the imported goods; and
(iii) the comparable
identical goods had been sold in their import sales transactions in the
quantity in which the imported goods were sold in their import sales
transaction; and
(b) divided by the number of units of
the comparable identical goods.
161B
Similar goods value
(1) The similar goods value of imported goods
is their value calculated as if the value of each of their units were:
(a) the unit price of comparable
similar goods; or
(b) if, because 2 or more lots of
goods are treated as comparable similar goods, there are 2 or more such unit
prices—the lower or lowest of those unit prices.
(2) In this section:
comparable similar goods, in relation to
imported goods, means similar goods that a Collector is satisfied:
(a) were exported to Australia about the same time as the imported goods; and
(b) either:
(i) were sold in the same,
or substantially the same, quantities, as the imported goods in an import sales
transaction at the same trade level as the import sales transaction of the
imported goods; or
(ii) are of a kind that
reasonable inquiry by the Collector has not shown to be so sold.
unit price, in relation to comparable similar
goods, means their transaction value:
(a) adjusted to such extent as a
Collector considers necessary so that that value is what it would have been if:
(i) their foreign inland
freight and foreign inland insurance had been what that freight and insurance
would have been if the goods had been transported, and only transported, over
the distances over which, and in the modes in which, the imported goods with
which they are comparable similar goods were transported;
(ii) the trade levels of
the import sales transactions of the comparable similar goods had been those of
the import sales transaction of the imported goods; and
(iii) the comparable similar
goods had been sold in their import sales transactions in the quantity in which
the imported goods were sold in their import sales transaction; and
(b) divided by the number of units of
the comparable similar goods.
161C
Deductive (contemporary sales) value
(1) The deductive (contemporary sales) value
of imported goods is their value calculated as if the value of each of their
units were the unit price of comparable goods sold in the reference sale or
sales.
(2) In this section:
contemporary sale, in relation to comparable
goods comparable with imported goods, means a sale known to a Collector of the
comparable goods in Australia in the condition in which they were imported,
being a sale:
(a) at about the same time as the time
of importation of the imported goods;
(b) at the first trade level at which
the comparable goods were sold after their importation;
(c) in circumstances where, in the
opinion of the Collector, the purchaser of the comparable goods:
(i) was not, at the time
of the sale, related to the vendor of the comparable goods; and
(ii) did not incur any
production assist costs in relation to the comparable goods; and
(d) that was, in the opinion of the
Collector, a sale of a sufficient number of units of comparable goods as to
permit an appropriate determination of their price per unit.
reference sale, in relation to comparable
goods, means:
(a) where there was only one
contemporary sale of the goods—that sale;
(b) where:
(i) there were 2 or more
such sales; and
(ii) the
comparable goods were sold in those sales at the one unit price;
each of those sales;
(c) where:
(i) there were 2 or more
such sales;
(ii) the comparable goods
were sold in those sales at 2 or more unit prices; and
(iii) a
higher number of units of comparable goods were sold in those sales at one of
those unit price than were sold in those sales at any other single particular
unit price;
the sale, or each of the sales,
in which comparable goods were sold at the particular unit price first‑mentioned
in subparagraph (iii);
(d) where:
(i) there were 2 or more
such sales;
(ii) the comparable goods
were sold in those sales at 2 or more unit prices; and
(iii) an
equal number of units of comparable goods were sold in those sales at each of
those unit prices;
the sale or sales in which the
comparable goods were sold at the lower or lowest of the unit prices; and
(e) where:
(i) there were 2 or more
such sales;
(ii) the comparable goods
were sold in those sales at 2 or more unit prices; and
(iii) an
equal number of units of comparable goods were sold in those sales at 2 or more
of those unit prices and that number was not exceeded by the number of units of
comparable goods sold in those sales at any other single particular unit price;
the sale, or sales, at which comparable
goods were sold at the lower or lowest of the unit prices first‑mentioned in subparagraph (iii).
unit price, in relation to comparable goods
sold in a contemporary sale, means the price of the goods in that sale:
(a) reduced by the sum of value unrelated
amounts, deductible administrative costs, and deductible financing costs, in
relation to the comparable goods; and
(b) divided by the number of units of
the comparable goods.
(3) The
following example illustrates the operation of paragraph (c) of the
definition of reference sale in subsection (2):
Facts:
There were 2 contemporary sales of 5 units of comparable
goods at a unit price of $100.
There were 6 contemporary sales of 3 units of comparable
goods at a unit price of $40.
There was one contemporary sale of 4 units of comparable
goods at a unit price of $40.
There was one contemporary sale of 7 units of comparable
goods at a unit price of $60.
There were 3 contemporary sales of 2 units of comparable
goods at a unit price of $60.
This means that:
10 units of comparable goods were sold in contemporary
sales at $100.
22 units of comparable goods were sold in contemporary
sales at $40.
13 units of comparable goods were sold in contemporary
sales at $60.
Result:
More units of comparable goods were sold in contemporary
sales at $40 than were sold in such sales at any other unit price.
Therefore, the reference sales are the sales at the unit
price of $40.
(4) The following example illustrates the
operation of paragraph (e) of the definition of reference sale
in subsection (2):
Facts:
There was one contemporary sale of 10 units of comparable
goods at a unit price of $60.
There were 2 contemporary sales of 2 units of comparable
goods at a unit price of $20.
There was one contemporary sale of 6 units of comparable
goods at a unit price of $20.
There were 8 contemporary sales of 1 unit of comparable
goods at a unit price of $80.
There was one contemporary sale of 5 units of comparable
goods at a unit price of $70.
There were 2 contemporary sales of 2 units of comparable
goods at a unit price of $70.
There were 2 contemporary sales of 1 unit of comparable
goods at a unit price of $50.
There were 2 contemporary sales of 4 units of comparable
goods at a unit price of $50.
Result:
An equal number of units of comparable goods (10) were
sold in contemporary sales at 3 unit prices ($60, $20, $50).
This number is not exceeded by 8 units of comparable goods
sold in contemporary sales at $80 or by 9 units of comparable goods sold in
contemporary sales at $70.
Therefore, reference sales are the sales at the unit price
of $20.
161D
Deductive (later sales) value
(1) The deductive (later sales) value of
imported goods is their value calculated as if the value of each of the units
were the unit price of comparable goods sold in the reference sale or sales.
(2) In this
section:
later sale, in relation to comparable goods
compared with imported goods, means a sale known to a Collector of the
comparable goods in Australia in the condition in which they were imported,
being a sale:
(a) during the 90 days that began on
the day of importation of the imported goods;
(b) at the first trade level at which
the comparable goods were sold after their importation;
(c) in circumstances where, in the
opinion of the Collector, the purchaser of the comparable goods:
(i) was not, at the time
of the sale, related to the vendor of the comparable goods; and
(ii) did not incur any
production assist costs in relation to the comparable goods; and
(d) was, in the opinion of the
Collector, a sale of a sufficient number of units of comparable goods as to
permit an appropriate determination of their price per unit.
reference sale,
in relation to comparable goods, means:
(a) where there was only one later
sale of the goods—that sale;
(b) where there were 2 or more such
sales and one of them was on an earlier day than the other or others—that sale;
or
(c) where there were 2 or more such
sales on a common day and no such sale occurred on an earlier day:
(i) if one of the sales on
the common day was of a higher number of units of the comparable goods than the
other or others on the common day—that sale of a higher number; or
(ii) if 2 or more of the
sales on the common day were of the same number of units of comparable goods
and no other sale on the common day was of a higher number of such
units—whichever of those 2 or more sales of the same number of units was the
sale in which comparable goods were sold at the lower or lowest unit price.
unit price, in
relation to comparable goods sold in a later sale, means the price of the goods
in that sale:
(a) reduced by the sum of value
unrelated amounts, deductible administrative costs, and deductible financing
costs, in relation to the comparable goods; and
(b) divided by the number of units of
the comparable goods.
161E
Deductive (derived goods sales) value
(1) The deductive (derived goods sales) value
of imported goods is their value calculated as if the value of each of their
units were the unit price of derived goods derived from them sold in the reference
sale or sales.
(2) In this
section:
derived goods, in relation to imported goods,
means the imported goods after they have been assembled, packaged or further
processed in Australia.
derived goods sale, in relation to derived
goods derived from imported goods, means a sale known to a Collector of derived
goods in Australia, being a sale:
(a) during the 90 days that began on
the day of importation of the imported goods;
(b) at the first trade level at which
the derived goods were sold after that importation;
(c) in circumstances where, in the
opinion of the Collector, the purchaser of the derived goods:
(i) was not related to the
vendor of the derived goods at the time of the sale; and
(ii) did not incur any
production assist costs in relation to the derived goods; and
(d) that was, in the opinion of the
Collector, a sale of a sufficient number of units of derived goods as to permit
an appropriate determination of the price per unit of the goods.
reference sale, in relation to derived goods,
means:
(a) where there was only one derived
goods sale—that sale;
(b) where:
(i) there were 2 or more
such sales; and
(ii) derived
goods were sold in those sales at the one unit price;
each of those sales;
(c) where:
(i) there were 2 or more
such sales;
(ii) the derived goods were
sold in those sales at 2 or more unit prices; and
(iii) a
higher number of units of derived goods were sold in those sales at one of
those unit prices than were sold in those sales at any other single particular
unit price;
the sale, or each of the sales,
in which derived goods were sold at the particular unit price first‑mentioned
in subparagraph (iii);
(d) where:
(i) there were 2 or more
such sales;
(ii) derived goods were
sold in those sales at 2 or more unit prices; and
(iii) an
equal number of units of derived goods were sold in those sales at each of
those unit prices;
the sale or sales in which the
derived goods were sold at the lower or lowest of the unit prices; and
(e) where:
(i) there were 2 or more
such sales;
(ii) derived goods were
sold in those sales at 2 or more unit prices; and
(iii) an
equal number of units of derived goods were sold in those sales at 2 or more of
those unit prices and that number was not exceeded by the number of units of
derived goods sold in those sales at any other single particular unit price;
the sale, or sales, at which
derived goods were sold at the lower or lowest of the unit prices first‑mentioned
in subparagraph (iii).
unit price, in relation to derived goods
derived from imported goods and sold in a derived goods sale, means the price
of the derived goods in that sale:
(a) reduced by the sum of:
(i) value unrelated
amounts, in relation to the derived goods;
(ii) deductible
administrative costs in relation to the derived goods;
(iii) deductible financing
costs in relation to the derived goods; and
(iv) the amount of the value
added to the derived goods that is attributable to the assembly, packaging or
further processing of the imported goods in Australia; and
(b) divided by the number of units of
the derived goods.
161F
Computed value
(1) The computed value of imported goods is
such part of the sum of the following amounts as a Collector considers should
be apportioned to their production:
(a) Australian arranged material
costs;
(b) Australian arranged subsidiary
costs;
(c) Australian arranged tooling costs;
(d) Australian arranged work costs;
(e) the value of all other goods used
in their production and not included in paragraphs (a) to (d), inclusive;
(f) the costs, charges and expenses
incurred by their producer in relation to their production and not included in paragraphs (a)
to (e), inclusive;
(g) the profit and expenses (including
all costs, direct or indirect, of marketing but not including costs and
expenses included in paragraphs (a) to (f), inclusive) that are usually
added to the sale for export to Australia of goods of the same class as the
imported goods from the country of export of the imported goods, being a sale
of goods by their producer to a purchaser who is not, at the time of sale,
related to the producer;
(h) packing costs for materials and
labour incurred in respect of the goods (including, but without limiting the
generality of the foregoing, costs of fumigating, cleaning, coating, wrapping
or otherwise preparing the goods for their exportation from a foreign country
or otherwise placing them in the condition in which they are imported into
Australia but not including the costs of any exempted pallet or exempted
container concerned in their exportation), being costs that are not included in
paragraphs (a) to (g), inclusive;
(j) foreign inland freight and
foreign inland insurance that is usually added to a sale referred to in paragraph (g)
and that is not included in paragraphs (a) to (h), inclusive.
(2) In this section, Australian arrange
material costs, Australian arranged subsidiary costs, Australian
arranged tooling costs and Australian arranged work costs,
in relation to imported goods, have the meanings that purchaser’s
material costs, purchaser’s subsidiary costs, purchaser’s
tooling costs and purchaser’s work costs respectively,
would have, in relation to imported goods, if the references in the 4 last‑mentioned
definitions to purchaser were references to a person in Australia.
161G
Fall‑back value
The fall‑back value of imported goods is
such value as a Collector determines, having regard to the other methods of
valuation under this Division in the order in which those methods would
ordinarily be considered under section 159 and of such other matters as
the Collector considers relevant, but not having regard to any of the following
matters:
(a) the selling price in Australia of goods produced in Australia;
(b) any system that provides for the
acceptance for Customs purposes of the higher of 2 alternative values;
(c) the price of goods on the domestic
market of the country from which the imported goods were exported;
(d) the cost of production of goods,
other than the computed value of identical goods or similar goods;
(e) the price of goods sold for export
to a country other than Australia and not imported into Australia;
(f) any system that provides for
minimum values for Customs purposes;
(g) arbitrary or fictitious values.
161H
When transaction value unable to be determined
(1) Without limiting section 160, a
Collector cannot determine the transaction value of imported goods for the
purposes of this Division, including, but without limiting the generality of
the foregoing, section 161A or 161B, if the Collector:
(a) after reasonable inquiry, is not
aware of any import sales transaction in relation to the goods;
(b) has, in accordance with subsection (3),
(5) or (7), decided that the transaction value of the goods cannot be
determined; or
(c) is satisfied that the disposition
or use of the goods by the purchaser is subject to restrictions, not being
restrictions of the following kinds:
(i) restrictions imposed
or required by, or by any public officer or authority acting in accordance
with, any law in force in Australia;
(ii) restrictions that
limit the geographical area in which the goods may be sold;
(iii) restrictions that do
not substantially affect the commercial value of the goods.
(2) Where, in relation to goods required to
be valued, a Collector:
(a) is satisfied that the purchaser
and the vendor of imported goods were, at the time of the goods’ import sales
transaction, related persons; and
(b) considers
that that relationship may have influenced the price of the goods;
the Collector shall, by notice in writing served,
personally or by post, on the purchaser of the goods:
(c) advise
the purchaser of:
(i) the view that the
Collector has formed of the possible effect on the price of the goods of the
relationship between the purchaser and the vendor;
(ii) the reasons for
forming that view; and
(iii) the fact that, because
of that view, the Collector may be required to decide under subsection (3)
that the transaction value of the goods cannot be determined; and
(d) invite the purchaser to put before
the Collector, within a period specified in the notice (not being a period of
less than 28 days), such further information as the purchaser considers might
serve to satisfy the Collector as to any of the matters set out in subsection (3).
(3) On the expiration of the period specified
in a notice under subsection (2), the Collector shall, unless the
purchaser of the imported goods has satisfied the Collector that:
(a) a relationship between the
purchaser and the vendor of the goods did not influence the price of the goods;
or
(b) the amount of the transaction
value that would be determined in respect of the goods if the purchaser and the
vendor had not been related at the time of the import sales transaction for the
goods divided by the number of the units of the goods closely approximates,
having regard to all relevant factors:
(i) the unit price within
the meaning of section 161A of identical goods that were exported to Australia about the same time as the imported goods;
(ii) the unit price within
the meaning of section 161B of similar goods that were exported to Australia about the same time as the imported goods;
(iii) the unit price of
identical goods or similar goods sold in a contemporary sale within the meaning
of section 161C as determined in accordance with that section; or
(iv) the
computed unit price of identical goods or similar goods that were imported into
Australia about the same time as the imported goods being the computed value of
those identical or similar goods determined in accordance with section 161F
divided by the number of units of those identical or similar goods;
be taken to be unable to determine the transaction value
of the goods.
(4) Where, in relation to goods required to
be valued, a Collector is of the opinion that the price at which the goods were
sold in their import sales transaction is different from the price at which
goods that are identical goods or similar goods to the first‑mentioned goods
would normally be sold in an import sales transaction similar to the first‑mentioned
import sales transaction, the Collector shall, by notice in writing served,
personally or by post, on the purchaser:
(a) advise the purchaser of the
Collector’s opinion; and
(b) require the purchaser to satisfy
the Collector, within the period specified in the notice, not being a period of
less than 28 days, that the price difference was not designed to obtain a
reduction of, or to avoid duty.
(5) On the expiration of the period specified
in a notice under subsection (4) in relation to imported goods, the
Collector shall, unless the purchaser of the goods to whom the notice was given
has satisfied the Collector as required by the notice, be taken to be unable to
determine the transaction value of the goods.
(6) Where, in relation to services provided
in respect of goods required to be valued, a Collector is of the opinion that
the services were provided in relation to the goods under the terms of their
import sales transaction at a price different from the price normally paid for
the provision of identical or similar services in relation to goods that are
identical goods or similar goods to the first‑mentioned goods, sold in an
import sales transaction similar to the first‑mentioned import sales
transaction, the Collector shall, by notice in writing served, personally or by
post, on the purchaser:
(a) advise the purchaser of the
Collector’s opinion; and
(b) require the purchaser to satisfy
the Collector, within the period specified in the notice, not being a period of
less than 28 days, that the price difference was not designed to obtain a
reduction of, or to avoid duty.
(7) On the expiration of the period specified
in a notice under subsection (6) in relation to imported goods, the
Collector shall, unless the purchaser of the goods to whom the notice was given
has satisfied the Collector as required by the notice, be taken to be unable to
determine the transaction value of the goods.
161J
Value of goods to be in Australian currency
(1) Where an amount that is, in accordance
with this Division, required to be taken into account for the purpose of
ascertaining a value of any imported goods is an amount in a currency other
than Australian currency, the amount to be so taken into account shall be the
equivalent in Australian currency of that amount, ascertained according to the
ruling rate of exchange in relation to that other currency in respect of the
day of exportation of the goods.
(2) For the purposes of this section, the CEO
may specify, by notice published in the Gazette:
(a) a rate that is to be deemed to be,
or to have been, the ruling rate of exchange, in relation to any currency, in
respect of a day, or of each day occurring during a period, preceding the day
of publication of the notice; or
(b) a
rate that is to be deemed to be, or to have been, the ruling rate of exchange,
in relation to any currency, in respect of each day occurring during a period
commencing on the day of publication of the notice, or on an earlier day
specified in the notice, and ending on the revocation of the notice;
after having regard:
(c) where the ruling rate of exchange
is specified in respect of a day—to commercial rates of exchange that prevailed
on or about that day;
(d) where the ruling rate of exchange
is specified in respect of a period commencing before the day of publication of
the notice—to commercial rates of exchange that prevailed during so much of
that period as preceded the day of publication of the notice; and
(e) where the ruling rate of exchange
is specified in respect of any other period—to commercial rates of exchange
that last prevailed before the publication of that notice.
(3) At any time, the ruling rate of exchange
in relation to a particular foreign currency, in respect of a particular day,
shall be:
(a) if a rate of exchange has been specified
at that time under subsection (2) as the ruling rate of exchange, in
relation to that currency, in respect of that day, or in respect of a period
that includes that day—the rate so specified; and
(b) if a rate of exchange has not been
so specified at that time—such a rate of exchange as the CEO determines to be
the ruling rate of exchange, in relation to that currency, in respect of that
day, after having regard to commercial rates of exchange prevailing on or about
that day and to such other matters as the CEO considers relevant.
(4) In this section:
day of exportation, in relation to imported
goods, means:
(a) where the goods were exported by
post from the place of export and a Collector is satisfied as to the day of
posting—that day;
(b) where
the goods departed or were transported from their place of export in any other
way and a Collector is satisfied as to the day of their departure or
transportation—that day; and
(c) in any other case—a day determined
by the Collector.
161K
Owner to be advised of value of goods
(1) Where the CEO or a Collector has
determined the customs value of goods in accordance with this Division, the CEO
or the Collector shall cause the value to be recorded on the entry in respect
of them or otherwise advise their owner of the amount.
(2) Where a Collector signifies, in a manner
prescribed by the regulations, his or her acceptance of an estimate of the
value of the goods, whether that estimate appears on the entry in respect of
those goods or in any other statement of information provided in respect of
those goods, the Collector shall, by so signifying, be taken for the purposes
of subsection (1) to have determined the customs value of the goods and to
have advised their owner of that amount.
(3) If, within 28 days after being advised
under subsection (1) of the customs value of goods determined in
accordance with this Division, an owner of the goods requests a Collector, in
writing, to give the owner particulars of the valuation, the Collector shall,
within 28 days after the making of the request, give the owner a notice in
writing setting out:
(a) the method by which the customs
value of the goods was determined;
(b) the findings of material questions
of fact relating to that determination, the evidence or other material on which
those findings were based and the reasons for that determination; and
(c) the calculations by which the
determination of the value was made and the information on which those
calculations were based.
(4) Nothing in this section requires, or
permits, the giving of information that:
(a) relates to the personal affairs or
business affairs of a person, other than the person making the request because
of which information was given; and
(b) is
information:
(i) that was supplied in
confidence;
(ii) the publication of
which would reveal a trade secret;
(iii) that was given in
compliance with a duty imposed by an enactment; or
(iv) the giving of which in
accordance with the request would be in contravention of an enactment, being an
enactment that expressly imposes on the person to whom the information was
given a duty not to divulge or communicate to any person, or to any person
other than a person included in a prescribed class of persons, or except in
prescribed circumstances, information of that kind.
(5) In this section, enactment
has the same meaning as in the Administrative Decisions (Judicial Review)
Act 1977.
161L
Review of determinations and other decisions
(1) At any time after the making of a
determination or other decision by an officer under this Division in relation
to goods, the CEO may review the determination or other decision and may:
(a) affirm the determination or other
decision;
(b) vary the determination or other
decision; or
(c) revoke the determination or other
decision and make any other determination or decision that is required to be
made for the purpose of determining the customs value of the goods in
accordance with this Division.
(2) Where, by reason that the CEO, under subsection (1),
has varied or revoked a determination or other decision of an officer or has
made a determination or other decision that is required to be made by reason of
the revocation of a determination or other decision of an officer:
(a) an amount of duty that was levied
is less than the amount that should have been levied; or
(b) an
amount of duty that was refunded is greater than the amount that should have
been refunded;
section 165 applies in relation to any demand by the
CEO for the payment of the amount of duty that is unpaid or the amount of
refund that was overpaid.
(3) In this section, officer
means a Collector or a delegate of the CEO.
Division 3—Payment and recovery of deposits, refunds, unpaid duty etc.
162
Delivery of goods upon giving of security or undertaking for payment of duty,
GST and luxury car tax
(1) Where goods the property of a person
included in a prescribed class of persons are imported or a person imports
goods included in a prescribed class or goods intended for a prescribed purpose
and intends to export those goods, the Collector may grant to the person
importing the goods permission to take delivery of those goods upon giving a
security or an undertaking, to the satisfaction of the Collector, for the
payment of:
(a) the duty, if any, on those goods;
and
(b) the GST payable on the taxable
importation (as defined in the GST Act), if any, that is associated with the
import of those goods; and
(c) if a taxable importation of a
luxury car (as defined in the Luxury Car Tax Act) is associated with the import
of those goods—the luxury car tax payable on that taxable importation.
(2) The regulations may prescribe provisions
to be complied with in relation to goods in respect of which permission has
been granted under the last preceding subsection.
(2A) Without limiting the generality of subsection (2),
regulations under that subsection may provide that conditions, restrictions or
requirements specified in the permission granted under subsection (1) in
relation to goods are to be complied with in relation to the goods.
(3) Where the Collector has granted
permission to a person to take delivery of goods upon giving a security or an
undertaking referred to in subsection (1), the duty (if any) is not
payable if:
(a) the provisions of the regulations
are complied with; and
(b) either:
(i) the goods are exported
within a period of 12 months after the date on which the goods were imported,
or within such further period as the CEO, on the application of the person who
imported the goods, allows; or
(ii) one or more of the
circumstances or conditions specified in the regulations apply in relation to
the goods;
and, if security was given by way of deposit of cash or of
an instrument transferable by delivery, the amount deposited or the instrument
shall be returned to the person by whom the security was given.
Note: In these circumstances, GST and luxury car tax
are not payable. See section 171‑5 of the GST Act and section 13‑25
of the Luxury Car Tax Act.
(4) If the circumstances described in paragraphs (3)(a)
and (b) do not exist in relation to the goods:
(a) the security may be enforced
according to its tenor; or
(b) if an undertaking to pay the
amount of the duty (if any), the GST (if any) and the luxury car tax (if any)
has been given, that amount may be recovered at any time in a court of
competent jurisdiction by proceedings in the name of the Collector.
162A
Delivery of goods on the giving of a general security or undertaking for
payment of duty, GST and luxury car tax
(1) The regulations may provide that:
(a) goods of a specified class;
(b) goods imported by persons of a
specified class;
(c) goods of a specified class
imported by persons of a specified class; or
(d) goods
imported for a specified purpose;
may, in accordance with this section, be brought into Australia on a temporary basis without payment of duty, GST or luxury car tax.
(1A) Without limiting the generality of subsection (1),
regulations under that subsection may be regulations that apply to goods if:
(a) the goods are specified in an
instrument authorised by the regulations; and
(b) conditions, restrictions or
requirements specified in that instrument are complied with in respect of the
goods.
(1B) Without limiting the generality of paragraph (1A)(b),
conditions, restrictions or requirements referred to in that paragraph that
apply to goods may specify, or relate to:
(a) the time during which the goods
may remain in Australia; or
(b) the purposes for which the goods
may be used while they are in Australia.
(2) The CEO may accept a security given by a
person for the payment of, or an undertaking by a person to pay, all of the
following in relation to specified goods that are described in regulations made
for the purposes of subsection (1) and that may be imported after a
particular date or during a particular period:
(a) the duty, if any, that may become
payable on the goods;
(b) the GST that may become payable on
the taxable importation (as defined in the GST Act), if any, that is associated
with the import of the goods;
(c) if a taxable importation of a
luxury car (as defined in the Luxury Car Tax Act) is associated with the import
of the goods—the luxury car tax that may become payable on that taxable
importation.
If the CEO accepts the security or undertaking, a
Collector may grant to a person who imports some or all of the specified goods
permission to take delivery of the goods without payment of duty, GST or luxury
car tax.
(2A) However, the Collector may grant permission
to take delivery of goods that:
(a) are covered by a security or
undertaking described in subsection (2); and
(b) are not accompanied by, and
described in, temporary admission papers issued in accordance with an agreement
between Australia and one or more other countries that provides for the
temporary importation of goods without payment of duty;
only if the person importing the goods applies to the
Collector for the permission in accordance with section 162AA.
(3) Goods delivered under this section shall,
for the purposes of this Act, be deemed to be entered for home consumption on
being so delivered.
(4) The regulations may prohibit a person to
whom goods are delivered under this section from dealing with the goods in a
manner, or in a manner other than a manner, specified in the regulations, or
from so dealing with the goods except with the consent of the CEO.
(5) Duty is not payable on goods delivered
under this section unless:
(a) the goods have been dealt with in
contravention of the regulations; or
(b) the goods are not exported:
(i) within such period,
not exceeding 12 months, after the date on which the goods were imported as is
notified to the person who imported the goods by the Collector when he or she
grants permission to take delivery of the goods; or
(ii) within such further
period as the CEO, on the application of the person who imported the goods and
of the person who gave the security or undertaking with respect to the goods,
allows;
and none of the circumstances or
conditions specified in the regulations apply in relation to the goods.
Note: GST and luxury car tax are not payable if duty
is not payable because of subsection (5) (or would not be payable because
of that subsection if it were otherwise payable). See section 171‑5 of the
GST Act and section 13‑25 of the Luxury Car Tax Act.
(5A) Despite subsection (5), duty is not
payable on goods brought into Australia for a purpose described in regulation
125A of the Customs Regulations 1926 and delivered under this section
unless:
(a) the goods are dealt with in
contravention of the regulations (whether made before or after the commencement
of this subsection); or
(b) the goods are not exported before
the end of:
(i) 31 December 2000; or
(ii) if the CEO specifies a
later day on the application of the person who imported the goods and the person
who gave the security or undertaking with respect to the goods—that later day;
and none of the circumstances or
conditions specified in the regulations mentioned in paragraph (5)(b)
apply in relation to the goods.
(6) A Collector may give permission for goods
delivered under this section to be taken on board a ship or aircraft for export
and, on permission being so given, the goods shall, for the purposes of this
Act, be deemed to be entered for export.
(6A) However, the Collector may give permission
to take aboard a ship or aircraft for export goods that were delivered under
this section as a result of an application described in subsection (2A)
only if the person proposing to export the goods applies to the Collector for
the permission in accordance with section 162AA.
(7) Where security under this section is
given by way of a payment of money or a deposit of an instrument transferable
by delivery, the money shall not be repaid or the instrument shall not be
returned, as the case may be, until:
(a) no duty is, or may become, payable
on goods to which the security relates that have been imported; and
(b) no GST is, or may become, payable
on the taxable importation (as defined in the GST Act), if any, that is
associated with the import of the goods; and
(c) no luxury car tax is, or may
become, payable on the taxable importation of a luxury car (as defined the
Luxury Car Tax Act), if any, that is associated with the import of the goods.
(8) If the circumstances described in paragraph (5)(a)
or (b) or (5A)(a) or (b) exist in relation to the goods:
(a) a security relating to the goods
may be enforced; and
(b) if an undertaking has been given
to pay the amount of the duty (if any), GST (if any) and luxury car tax (if
any) associated with the import of the goods—the amount may be recovered at any
time in a court of competent jurisdiction by proceedings in the name of:
(i) the CEO; or
(ii) the Regional Director
for a State or Territory.
162AA
Applications to deal with goods imported temporarily without duty
(1) This
section describes how to make an application that is:
(a) required by subsection 162A(2A)
for a permission under subsection 162A(2) to take delivery of goods; or
(b) required by subsection 162A(6A)
for a permission under subsection 162A(6) to take goods aboard a ship or
aircraft for export.
(2) An application may be communicated to
Customs by document or computer.
(3) An application communicated by document
must:
(a) be in an approved form; and
(b) include the information required by
the approved form; and
(c) be signed in the way indicated by
the approved form.
(4) An application communicated by computer
must:
(a) be communicated by computer in the
manner indicated in an approved statement relating to the application; and
(b) include the information indicated
in the approved statement; and
(c) identify the applicant in the way
indicated in the approved statement.
162B
Pallets used in international transport
(1) Where pallets are delivered under section 162A
and it would be a contravention of the Convention by the Commonwealth to
collect duty on the pallets, duty is not payable on the pallets.
(2) Where pallets are to be exported and it
would be a contravention of the Convention by the Commonwealth to require the
goods to be entered for export, the pallets may be exported without being
entered for export.
(3) This section is in addition to, and not
in derogation of, the provisions of subsections (5), (5A) and (6) of
section 162A.
(4) In this
section:
Convention means the European Convention on
Customs Treatment of Pallets used in International Transport signed in Geneva on 9 December 1960, as affected by any amendment that has come into force for Australia.
Note: The text of the Convention is set out in
Australian Treaty Series 1969 No. 26.
163
Refunds etc. of duty
(1) Refunds, rebates and remissions of duty
may be made:
(a) in respect of goods generally or
in respect of the goods included in a class of goods; and
(b) in such circumstances, and subject
to such conditions and restrictions (if any), as are prescribed, being
circumstances, and conditions and restrictions, that relate to goods generally
or to the goods included in the class of goods.
(1A) The regulations may prescribe the amount,
or the means of determining the amount, of any refund, rebate or remission of
duty that may be made for the purposes of subsection (1).
(1AA) Subject to subsection (1AD), the
regulations may prescribe:
(a) the manner of making application,
either by document or by computer, for such refunds, rebates or remissions; and
(b) the procedure to be followed by
Customs in dealing with such applications, including procedures for requesting
further information in relation to issues raised in such applications.
(1AB) Regulations made for the purposes of subsection (1AA)
that provide for the making of an application for a refund, rebate or remission
of duty by computer must indicate when that application is to be taken, for the
purposes of this Act, to have been communicated to Customs.
(1AC) Regulations made for the purposes of subsection (1AA)
that provide for the making of applications for refund, rebate or remission of
duty by computer may include contingency arrangements to deal with
circumstances where the computer system employed in relation to such
applications is down.
(1AD) The regulations may identify circumstances
where a person is entitled to a refund, rebate or remission of duty:
(a) without making an application at
all; or
(b) on making an application in
respect of which a refund application fee is not payable.
(1AE) For the avoidance of doubt, if, before or
after the commencement of this subsection, a person has:
(a) altered an electronic copy of an
import entry or a self‑assessed clearance declaration as a step in making an
application for a refund or rebate of duty in respect of goods covered by the
entry or declaration; or
(b) altered an electronic copy of an
import entry or a self‑assessed clearance declaration as such a step and paid
the application fee (if any) associated with the making of such an application;
but the person did not or does not, within the time
prescribed for making that application, communicate the altered import entry or
altered self‑assessed clearance declaration to Customs, either manually or,
after the commencement of this subsection, by computer, the person’s actions in
modifying that import entry or self‑assessed clearance declaration and paying
any such application fee are of no effect.
(2) For the purposes of this section and of
any regulations made for the purposes of this section, duty, in relation to
goods that have been, or are proposed to be, imported into Australia under
Schedule 3 to the Tariff includes an amount paid to a collector on account
of the duty that will become payable on those goods.
(3) For the purposes of this section and of
any regulations made for the purposes of this section, the amount of duty in
respect of which a person may seek a refund, rebate or remission of duty on
goods that are imported into Australia under item 41E of Schedule 4
to the Tariff is to be taken to be the sum of:
(a) the amount of money (if any) paid
as customs duty on the importation of those goods; and
(b) to the extent that duty credit
issued under the ACIS Administration Act 1999 has been offset against
customs duty that would otherwise have been payable in respect of those
goods—the amount of customs duty offset by the use of the credit.
164B
Refunds of export duty
Whenever goods in respect of which an
export duty of Customs has been paid are re‑imported or brought back to Australia, the CEO may direct the refund of so much of the duty paid on those goods as he
or she considers to be justified in the circumstances.
165
Recovery of unpaid duty etc.
(1) An amount of duty that is due and payable
in respect of goods:
(a) is a debt due to the Commonwealth;
and
(b) is payable by the owner of the
goods.
(2) An amount of drawback, refund or rebate
of duty that is overpaid to a person:
(a) is a debt due to the Commonwealth;
and
(b) is payable by the person.
Demand for payment
(3) The CEO may make, in writing, a
demand for payment of an amount that is a debt due to the Commonwealth under
subsection (1) or (2).
(4) A demand, under subsection (3), for
payment of an amount must specify the amount and include an explanation of how
it has been calculated.
(5) A demand, under
subsection (3), for payment of an amount must be made within 4 years from:
(a) if the amount is a debt due to the
Commonwealth under subsection (1)—the time the amount was to be paid by
under this Act; or
(b) if the amount is a debt due to the
Commonwealth under subsection (2)—the time the amount was paid;
unless the CEO is satisfied that the debt arose as the
result of fraud or evasion.
Recovery in court
(6) An amount that is a debt due to the
Commonwealth under subsection (1) or (2) may be sued for and recovered in
a court of competent jurisdiction by proceedings in the name of the Collector
if:
(a) the CEO has made a demand for
payment of the amount in accordance with this section; or
(b) the CEO is satisfied that the debt
arose as the result of fraud or evasion.
165A Refunds etc. may be
applied against unpaid duty
(1) If:
(a) an amount of duty is payable by a
person in respect of goods that have been delivered into home consumption; and
(b) the person would be entitled to an
amount of drawback, refund or rebate of duty in respect of the goods if the
amount of duty payable were paid;
then:
(c) the CEO may apply the amount of
the drawback, refund or rebate against the amount of duty payable; and
(d) the person is taken to have paid,
in respect of the goods, an amount of duty equal to the amount of drawback,
refund or rebate applied; and
(e) the amount of drawback, refund or
rebate applied is taken to have been paid to the person.
(2) If the CEO applies an amount of drawback,
refund or rebate against an amount of duty payable, the CEO must give the
person who would have been entitled to receive the amount of drawback, refund
or rebate written notice of:
(a) the amount of drawback, refund or
rebate applied; and
(b) if the amount of drawback, refund
or rebate applied is less than the amount of duty payable—the amount of duty
that is still payable by the person.
166 No
refund if duty altered
If any practice of the Customs relating
to classifying or enumerating any article for duty shall be altered so that
less duty is charged upon such article, no person shall thereby become entitled
to any refund on account of any duty paid before such alteration.
Division 4—Disputes as to duty
167
Payments under protest
(1) If any dispute arises as to the amount or
rate of duty payable in respect of any goods, or as to the liability of any
goods to duty, under any Customs Tariff, or under any Customs Tariff or Customs
Tariff alteration proposed in the Parliament (not being duty imposed under the Customs
Tariff (Anti‑Dumping) Act 1975), the owner of the goods may pay under
protest the sum demanded by the Collector as the duty payable in respect of the
goods, and thereupon the sum so paid shall, as against the owner of the goods,
be deemed to be the proper duty payable in respect of the goods, unless the
contrary is determined in an action brought in pursuance of this section.
(2) The owner may, within the times limited
in this section, bring an action against the Collector, in any Commonwealth or
State Court of competent jurisdiction, for the recovery of the whole or any
part of the sum so paid.
(3) Subject to subsection (3B), for the
purposes of this section, a payment is taken to be made under protest if, and
only if:
(a) the owner of the goods or the
agent of the owner gives Customs notice in accordance with
subsection (3A), by document or electronically, that the payment is made
under protest; and
(b) Customs receives the notice no later
than 7 days after the day the payment is made.
(3A) A notice given by an owner or agent under
subsection (3) must:
(a) contain the words paid under
protest; and
(b) identify the import declaration
that covers the goods to which the protest relates; and
(c) if the protest does not relate to
all the goods covered by the import declaration—describe the goods to which the
protest relates; and
(d) include a statement of the grounds
on which the protest is made; and
(e) be signed by the owner or the agent
of the owner.
(3B) If, under section 71DGA, an accredited
client pays an amount of accredited client monthly duty estimate in respect of
goods, then for the purposes of this section, the amount of duty that would be
payable in respect of the goods if the amount of accredited client monthly duty
estimate were not paid is taken to be paid under protest by the accredited
client if, and only if:
(a) the accredited client or the agent
of the accredited client gives Customs notice in accordance with subsection (3C),
by document or electronically, that the payment is made under protest; and
(b) Customs receives the notice no
later than 7 days after the accredited client payment day on which the amount
of duty would be payable on the goods under subsection 71DGB(1) if the amount
of accredited client monthly duty estimate were not paid.
(3C) A notice given by an accredited client or
agent under subsection (3B) must:
(a) contain the words paid under
protest; and
(b) identify the periodic declaration
that covers the goods to which the protest relates; and
(c) if the protest does not relate to
all the goods covered by the periodic declaration—describe the goods to which
the protest relates; and
(d) include a statement of the grounds
on which the protest is made; and
(e) be signed by the accredited client
or the agent of the accredited client.
(4) No action shall lie for the recovery of
any sum paid to the Customs as the duty payable in respect of any goods, unless
the payment is made under protest in pursuance of this section and the action
is commenced within the following times:
(a) In case the sum is paid as the
duty payable under any Customs Tariff, within 6 months after the date of the
payment; or
(b) In case the sum is paid as the
duty payable under a Customs Tariff or Customs Tariff alteration proposed in
the Parliament, within 6 months after the Act, by which the Customs Tariff or
Customs Tariff alteration proposed in the Parliament is made law, is assented
to.
(4A) No action lies for the recovery of any sum
paid to Customs under section 71DGA as an amount of accredited client
monthly duty estimate in respect of goods, unless:
(a) the amount of duty that would be
payable in respect of the goods if the amount of accredited client monthly duty
estimate were not paid has been taken under subsection (3B) to have been
paid under protest; and
(b) the action is commenced within the
following times:
(i) if the sum is paid as
an estimate of duty payable under any Customs Tariff—within 6 months after the
accredited client payment day on which the amount of duty would be payable on
the goods under subsection 71DGB(1) if the amount of accredited client monthly
duty estimate were not paid;
(ii) if the sum is paid as
an estimate of duty payable under a Customs Tariff or Customs Tariff alteration
proposed in the Parliament—within 6 months after the Act, by which the Customs
Tariff or Customs Tariff alteration proposed in the Parliament is made law, is
assented to.
(5) Nothing in this section shall affect any
rights or powers under section 163.
(6) In this section:
import declaration includes an import entry,
within the meaning of the unamended Customs Act, that was made under that Act.
unamended Customs Act has the meaning given
by section 4 of the Customs Legislation Amendment (Application of
International Trade Modernisation and Other Measures) Act 2004.
Part IX—Drawbacks
168
Drawbacks of import duty
(1) The regulations may make provision for
and in relation to allowing drawbacks of duty paid on goods imported into Australia.
(2) For the purposes of this section and of
any regulations made for the purposes of this section, the amount of duty paid
on goods that are imported into Australia under item 41E of Schedule 4
to the Tariff is to be taken to be the sum of:
(a) the amount of money (if any) paid
as customs duty on the importation of those goods; and
(b) to the extent that duty credit
issued under the ACIS Administration Act 1999 has been offset against
customs duty that would otherwise have been payable in respect of those
goods—the amount of customs duty offset by the use of the credit.
Part X—The coasting trade
175
Goods not to be transferred between certain vessels
(1) In this section:
Australian aircraft has the same meaning as
in the Civil Aviation Act 1988.
coastal aircraft means an aircraft that is
not currently engaged in making:
(a) an international flight; or
(b) a prescribed flight.
coastal ship means a ship that is not
currently engaged in making:
(a) an international voyage; or
(b) a prescribed voyage.
international flight and international
voyage have the same respective meanings as they have in Part VII.
prescribed flight in relation to an aircraft,
means a flight in the course of which the aircraft takes off from a place
outside Australia and lands at a place outside Australia and does not land at a
place in Australia.
prescribed voyage, in relation to a ship,
means a voyage in the course of which the ship:
(a) travels between places outside Australia; or
(b) travels from a place outside Australia and returns to that place;
and does not call at a place in Australia.
(2) The owner or master of a coastal ship
must not allow any goods to be transferred between the coastal ship and:
(a) a ship that is engaged in making
an international voyage or a prescribed voyage; or
(b) an
aircraft that is engaged in making an international flight or a prescribed
flight.
Penalty: 250 penalty units.
(2A) Subsection (2) applies to a coastal
ship that is an Australian ship if the ship is anywhere outside the territorial
sea of a foreign country.
(3) The owner or pilot of a coastal aircraft
must not allow any goods to be transferred between the coastal aircraft and:
(a) an aircraft that is engaged in
making an international flight or a prescribed flight; or
(b) a ship that is engaged in making
an international voyage or a prescribed voyage.
Penalty: 250 penalty units.
(3AA) Subsection (3) applies to a ship that is
an Australian ship if the ship is anywhere outside the territorial sea of a
foreign country.
(3A) A person who is:
(a) the owner or master of an
Australian ship that is currently engaged in making an international voyage or
a prescribed voyage; or
(b) the owner or pilot of an
Australian aircraft that is currently engaged in making an international flight
or prescribed flight;
must not allow any goods to be transferred between that
ship or aircraft and:
(c) a coastal ship; or
(d) a coastal aircraft.
Penalty: 250 penalty units.
(3AAA) Subsection (3A) applies to an Australian
ship described in paragraph (3A)(a) if the ship is anywhere outside the
territorial sea of a foreign country.
(3B) A person who is:
(a) the owner or master of a ship
(other than an Australian ship) that is currently engaged in making an
international voyage or a prescribed voyage; or
(b) the owner or pilot of an aircraft
(other than an Australian aircraft) that is currently engaged in making an
international flight or a prescribed flight;
must not allow any goods to be transferred between that
ship or aircraft and a coastal ship or coastal aircraft if the transfer takes
place in, or in the airspace above (as the case may be), the waters of the sea
within:
(c) the outer limits of the
territorial sea of Australia, including such waters within the limits of a
State or an internal Territory; or
(d) 500 metres of an Australian
resources installation or an Australian sea installation.
Penalty: 250 penalty units.
(3BA) For the purposes of subsections (2),
(3), (3A) and (3B), strict liability applies to such of the following physical
elements of circumstance as are relevant to the offence:
(a) that an aircraft is engaged in
making an international flight or a prescribed flight; or
(b) that a ship is engaged in making
an international voyage or a prescribed voyage.
(3C) Subsection (2), (3), (3A) or (3B) does
not apply if a Collector has given permission (for the transfer of the goods)
to:
(a) in the case of subsection (2)—the
owner or master of the coastal ship referred to in that subsection; and
(b) in the case of subsection (3)—the
owner or pilot of the coastal aircraft referred to in that subsection; and
(c) in the case of subsection (3A)
or (3B)—the owner or master of the coastal ship referred to in that subsection
or the owner or pilot of the coastal aircraft referred to in that subsection (as
the case requires).
(4) A Collector may, when giving permission
referred to in subsection (3C) or at any time while the permission is in
force, impose conditions in respect of the permission, being conditions that,
in the opinion of the Collector, are necessary for the protection of the
revenue or for the purpose of ensuring compliance with the Customs Acts, and
may, at any time, revoke, suspend, or vary, or cancel a suspension of, a
condition so imposed.
(5) A condition imposed in respect of a
permission under subsection (4) or a revocation, suspension, or variation,
or a cancellation of a suspension, of such a condition takes effect when a
notice, in writing, of the condition or of the revocation, suspension or
variation, or of the cancellation of the suspension, is served on the person to
whom the permission has been given or at such later time (if any) as is
specified in the notice.
(6) The Collector may revoke a permission
given under this section in relation to goods at any time before the goods are
transferred.
(7) If, in relation to the transfer of any
goods, a person required to comply with a condition imposed in respect of a
permission under subsection (4) fails to comply with the condition, he or
she is guilty of an offence against this Act punishable upon conviction by a
penalty not exceeding 100 penalty units.
(8) Subsection (7) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(9) Subsection (2), (3), (3A) or (3B)
does not apply to allowing a transfer of goods for the purpose of securing the
safety of a ship or an aircraft or saving life.
Part XI—Agents and customs brokers
Division 1—Preliminary
180
Interpretation
(1) In this Part, unless the contrary intention
appears:
broker’s licence means a licence to act as a
customs broker granted under section 183C (including such a licence
renewed under section 183CJ).
Committee means the National Customs Brokers
Licensing Advisory Committee continued in existence by subsection 183D(1).
corporate customs broker means a customs
broker that is a company or a partnership.
customs broker means a person who holds a
broker’s licence that is in force, and in relation to a place, means a person
who holds a broker’s licence to act as a customs broker at the place.
nominee, in relation to a customs broker,
means another customs broker whose name is endorsed on the broker’s licence
held by the first‑mentioned customs broker as a nominee of the first‑mentioned
customs broker.
person means a natural person, a company or a
partnership.
prescribed offence means:
(a) an offence against this Act; or
(b) an offence punishable under a law
of the Commonwealth (other than this Act), or by a law of a State or of a
Territory, by imprisonment for one year or longer.
(2) A reference in this Part, other than in
subsection 181(2), 183CC(5), 183CJ(1), 183CQ(4), (5) or (7) or 183CR(3) or in
section 183CS, 183D, 183DA, 183DC, 183DD or 183S, to the CEO shall be read
as including a reference to a Regional Director for a State or Territory.
Division 2—Rights and liabilities of agents
181
Authorised agents
(1) Subject to subsection (2), an owner
of goods may, in writing, authorize a person to be his or her agent for the
purposes of the Customs Acts at a place or places specified by the owner.
(2) Where the CEO, by notice published in the
Gazette, declares that a place specified in the notice is a place to
which this subsection applies, an owner of goods shall not authorize a person
to be his or her agent for the purposes of the Customs Acts at that place
unless that person is:
(a) a natural person who is an
employee of the owner and is not an employee of any other person; or
(b) a customs broker at that place.
(3) Where an owner of goods authorizes a
person to be his or her agent for the purposes of the Customs Acts at a place,
the owner may comply with the provisions of, or requirements under, the Customs
Acts at that place by:
(a) except where the agent is a
corporate customs broker—that agent; or
(b) where the agent is a customs
broker—a nominee of that agent who is a customs broker at that place.
(4) A person, other than the owner of goods
or a person who, in accordance with this section, may comply with the
provisions of, or requirements under, the Customs Acts on behalf of the owner
in relation to those goods, shall not:
(a) do any act or thing in relation to
the goods that is required or permitted to be done by the owner of the goods
under the Customs Acts; or
(b) represent that he or she is able
to do, or able to arrange to be done, any act or thing in relation to the goods
that is required or permitted to be done by the owner under the Customs Acts.
(4A) Subsection (2) does not apply to the
making of an export entry.
(5) A person who contravenes subsection (4)
is guilty of an offence punishable upon conviction by a penalty not exceeding
10 penalty units.
(6) Subsection (5) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
182
Authority to be produced
(1) Where a person claims to be the agent of
an owner of goods for the purposes of the Customs Acts at a place, an officer
may require that person to produce written authority from the owner authorizing
that person to be such an agent and, if that written authority is not produced,
the officer may refuse to recognize the authority of that person to act on
behalf of the owner at that place.
(2) Where a nominee of a customs broker
claims that that customs broker is the agent of an owner of goods for the
purposes of the Customs Acts at a place, an officer may require the nominee to
produce a copy of the written authority from the owner of the goods authorizing
the customs broker to be such an agent and, if that written authority is not produced,
the officer may refuse to recognize the authority of the nominee to act on
behalf of the owner at that place.
183
Agents personally liable
(1) Where a person is, holds himself or
herself out to be or acts as if he or she were the agent of an owner of goods
for the purposes of the Customs Acts, that person shall, for the purposes of
the Customs Acts (including liability to penalty), be deemed to be the owner of
those goods.
(2) Where a customs broker is the agent of an
owner of goods for the purposes of the Customs Acts and a person who is, holds
himself or herself out to be or acts as if he or she were a nominee of that
customs broker acts in relation to those goods, that person shall, for the
purposes of those Acts, (including liability to penalty), be deemed to be the
owner of those goods.
(3) Any act done, or representation made, by
a nominee of a customs broker for the purposes of the Customs Acts shall be
deemed to be an act done or, a representation made, by that customs broker.
(4) Nothing in this section shall be taken to
relieve any owner from liability.
183A
Principal liable for agents acting
(1) Where an agent of, or a nominee of a
customs broker that is an agent of, an owner of goods makes a declaration for
the purposes of this Act in relation to those goods, that declaration shall,
for the purposes of this Act (including the prosecution of an offence against
this Act), be deemed to be made with the knowledge and consent of the owner.
(2) Notwithstanding any other provision of
this Act, a person who is convicted of an offence by reason of the operation of
subsection (1) shall not be subject to a penalty of imprisonment.
Division 3—Licensing of customs brokers
183B
Interpretation
(1) In this Division, unless the contrary
intention appears, application means an application under section 183CA.
(2) For the purposes of this Division, a
person shall be taken to participate in the work of a customs broker if:
(a) he or she has authority as a
nominee of, or as an agent, officer or employee of, the customs broker, to do
any act or thing for the purposes of the Customs Acts on behalf of an owner of
goods; or
(b) he or she has authority to direct
a person who has authority referred to in paragraph (a) in the exercise of
that authority.
183C Grant
of licence
(1) Subject to this Part, the CEO may grant a
person a licence in writing, to be known as a broker’s licence, to act as a
customs broker at a place or places specified in the licence.
(2) A broker’s licence granted to a corporate
customs broker shall not specify a place as a place at which the corporate
customs broker may act as a customs broker unless the licence specifies as a
nominee of the corporate customs broker a customs broker at that place who, in
accordance with section 183CD, is eligible to be its nominee.
183CA
Application for licence
(1) An application for a broker’s licence
shall:
(a) be in writing; and
(b) specify the place or places at
which the applicant proposes to act as a customs broker; and
(c) where the application is made by a
company or a partnership—specify the person or each person who, if the licence
is granted, is to be its nominee; and
(ca) where the application is made by a
natural person—specify the person or each person (if any) who, if the licence
is granted, is to be a nominee of the applicant; and
(d) set out the name and address of
each person whom the CEO is required to consider for the purposes of
subparagraph 183CC(1)(a)(i) or paragraph 183CC(1)(b) or (c); and
(e) set out such particulars of the
persons and matters that the CEO is required to consider for the purposes of
subparagraph 183CC(1)(a)(ii) and section 183CD as will enable him or her
adequately to consider those matters; and
(f) contain such other information as
is prescribed.
(2) Where a person makes an application, he
or she shall not propose a person as his or her nominee at a place unless, at
the time the application is made, that person is eligible, or intends to take
all necessary action to ensure that, if a broker’s licence is granted to the
applicant, he or she will be eligible, to be a nominee of the applicant at that
place.
(3) A person shall not be proposed under paragraph (1)(c)
unless he or she has consented, in writing, to the proposal.
183CB
Reference of application to Committee
(1) Where the CEO receives an application, he
or she shall refer the application to the Committee for a report relating to
the application and shall not grant, or refuse to grant, a broker’s licence to
the applicant unless he or she has received and considered the report.
(2) Where the CEO refers an application to
the Committee under subsection (1), the Committee shall investigate the
matters that the CEO is required to consider in relation to the application
and, after its investigation, report to the CEO on those matters.
183CC
Requirements for grant of licence
(1) Where an application is made, the CEO
shall not grant a broker’s licence if, in his or her opinion:
(a) where the application is made by a
natural person:
(i) the applicant is not a
person of integrity; or
(ii) the applicant is not
qualified to be a customs broker; or
(iii) an employee of the
applicant who would participate in the work of the applicant if he or she were
a customs broker is not a person of integrity; or
(b) where the application is made by a
company:
(i) a director of the
company who would participate in the work of the company if it were a customs
broker is not a person of integrity; or
(ii) an officer or employee
of the company who would participate in the work of the company if it were a
customs broker is not a person of integrity; or
(iii) the company is not a
fit and proper company to hold a broker’s licence; or
(c) where the application is made by a
partnership:
(i) a partner in the
partnership is not a person of integrity; or
(ii) an employee of the
partnership who would participate in the work of the partnership if it were a
customs broker is not a person of integrity.
(2) For the purposes of subsection (1),
an applicant shall be taken to be qualified to be a customs broker if, and only
if:
(a) except where the applicant has
been exempted under subsection (3), the applicant has completed a course
of study or instruction approved under subsection (5); and
(b) the applicant has acquired
experience that, in the opinion of the CEO, fits the applicant to be a customs
broker.
(3) The CEO may, by writing signed by him or
her, exempt an applicant from the requirements of paragraph (2)(a) where,
having regard to the experience or training of the applicant, he or she
considers that it is appropriate to do so.
(4) The CEO shall, in determining whether a
person is a person of integrity for the purposes of subsection (1), have
regard to:
(a) any conviction of the person for a
prescribed offence committed within the 10 years immediately preceding the
making of the application;
(b) whether the person is an
undischarged bankrupt;
(c) any misleading statement made in
the application by or in relation to the person; and
(d) where any statement by the person
in the application was false—whether the person knew that the statement was
false.
(4A) The CEO shall, in determining whether a
company is a fit and proper company to hold a broker’s licence for the purposes
of subparagraph (1)(b)(iii), have regard to:
(a) any conviction of the company for
an offence against this Act committed within the 10 years immediately preceding
the making of the application and at a time when a person who is a director,
officer or shareholder of the company was a director, officer or shareholder of
the company;
(b) any conviction of the company for
an offence under a law of the Commonwealth, of a State or of a Territory that
is punishable by a fine of $5,000 or more, being an offence committed within
the 10 years immediately preceding the making of the application and at a time
when a person who is a director, officer or shareholder of the company was a
director, officer or shareholder of the company;
(c) whether a receiver of the
property, or part of the property, of the company has been appointed;
(ca) whether the company is under
administration within the meaning of the Corporations Act 2001;
(cb) whether the company has executed
under Part 5.3A of that Act a deed of company arrangement that has not yet
terminated;
(e) whether the company is being wound
up.
(5) The CEO may, after obtaining and
considering the advice of the Committee, approve, in writing, a course or
courses of study or instruction that fits or fit a person to be a customs
broker.
183CD
Eligibility to be nominee
A person is eligible to be the nominee
of a customs broker if, and only if:
(a) he or she is a natural person; and
(b) he or she is a customs broker; and
(c) he or she does not act as a
customs broker in his or her own right; and
(d) where the first‑mentioned customs
broker is a company—he or she is a director or an employee of the company; and
(e) where the first‑mentioned customs
broker is a partnership—he or she is a member or an employee of the
partnership; and
(g) he or she is not authorized to be
an agent in accordance with subsection 181(1); and
(h) he or she is a customs broker at a
place at which the first‑mentioned customs broker is a customs broker.
183CE
Original endorsement on licence
(1) Where the
CEO grants a broker’s licence, he or she shall:
(a) endorse on the licence the name of
the place or of each place at which the holder of the licence may act as a
customs broker; and
(b) endorse on the licence the name of
each customs broker who is a nominee of the licensee and opposite to each such
name the name of the place or of each place at which he or she acts as a
customs broker.
(2) The CEO shall not, in pursuance of subsection (1),
endorse a licence so as to show a person as a nominee of a customs broker at a
place if that person is not eligible to be a nominee of that customs broker at
that place.
183CF
Variation of licences
(1) Subject to subsection (3), the CEO
may, upon application in writing by a customs broker and the production of the
broker’s licence, vary the endorsements on the licence so that a place is
specified, or ceases to be specified, in the licence as a place at which the
holder of the licence may act as a customs broker.
(2) Subject to subsection (3), the CEO
may, upon application in writing by a customs broker and the production of its
broker’s licence, vary the endorsements on the licence so that a person is
specified, or ceases to be specified, in the licence as a nominee of the
customs broker.
(3) The CEO shall not vary the endorsements
on a licence so that the licence ceases to comply with subsection 183C(2).
(4) A person shall not be endorsed under subsection (2)
as a nominee of a customs broker unless he or she has consented, in writing, to
the endorsement.
183CG
Licence granted subject to conditions
(1) A broker’s licence is subject to the
condition that if:
(a) the holder of the licence is
convicted of a prescribed offence;
(b) in the case of a licence held by a
natural person—the holder of the licence becomes bankrupt; or
(c) in the case of a licence held by a
company:
(i) a receiver of the
property, or part of the property, of the company is appointed; or
(ii) an administrator of
the company is appointed under section 436A, 436B or 436C of the Corporations
Act 2001; or
(iii) the company executes a
deed of company arrangement under Part 5.3A of that Act; or
(iv) the
company begins to be wound up;
the holder of the licence shall, within 30 days after the
occurrence of the conviction, bankruptcy or event referred to in paragraph (c),
as the case requires, give the CEO particulars in writing of the conviction,
bankruptcy or event referred to in paragraph (c), as the case requires.
(2) A broker’s licence held by a natural
person is subject to the condition that the holder of the licence shall not act
as a customs broker in his or her own right at any time at which he or she is a
nominee of a customs broker.
(3) A broker’s licence held by a customs
broker is subject to the condition that if:
(a) a person not described in the
application for the licence as participating in the work of the customs broker
commences so to participate;
(b) a nominee of the customs broker
dies or ceases to act as nominee of the customs broker;
(c) a person who participates in the
work of the customs broker is convicted of a prescribed offence or becomes
bankrupt; or
(d) in the case of a licence held by a
partnership:
(i) a member of the
partnership is convicted of a prescribed offence or becomes bankrupt; or
(ii) there
is a change in the membership of the partnership;
the holder of the licence shall, within 30 days after the
occurrence of the event, change, conviction or bankruptcy, as the case
requires, give the CEO particulars in writing of that event, change, conviction
or bankruptcy, as the case requires.
(4) A broker’s licence held by a customs
broker is subject to the condition that the broker shall do all things
necessary to ensure that:
(a) all persons who participate in the
work of the customs broker are persons of integrity; and
(b) in the case of a licence held by a
partnership—all members of the partnership are persons of integrity.
(5) A broker’s licence is subject to such
other conditions (if any) as are prescribed.
(6) A broker’s licence is subject to such
other conditions (if any) as are specified in the licence, being conditions
considered by the CEO to be necessary or desirable for the protection of the
revenue or for the purpose of ensuring compliance with the Customs Acts.
(7) The CEO may, upon application in writing
by a customs broker and the production of the licence held by the customs
broker, vary the conditions specified in the licence by making an alteration
to, or an endorsement on, the licence.
(8) Where a customs broker fails to comply
with a condition of his or her licence the CEO may, by notice in writing served
on the customs broker, require the customs broker to comply with that condition
within the time specified in the notice.
183CH
Duration of licence
(1) A broker’s licence:
(a) comes into force on a date
specified in the licence or, if no date is so specified, the date on which it
is granted; and
(b) subject to this Part, remains in
force until the end of the licence expiry day next following the grant of the
licence but may be renewed in accordance with section 183CJ.
(1A) For the
purposes of this section:
(a) the
first licence expiry day is 31 December 2000; and
(b) the next licence expiry day
is 30 June 2003; and
(c) later licence expiry days
occur at intervals of 3 years after the last licence expiry day.
(2) A licence granted to a natural person
ceases to have effect on the death of that person.
183CJ
Renewal of licence
(1) Where a customs broker, within 2 months
before the date on which his or her broker’s licence is due to expire, applies
in writing to the CEO, or to a Regional Director for a State or Territory, for
the renewal of the licence:
(a) if the application is made to the
CEO—the CEO or the Regional Director to whom the CEO refers the application; or
(b) if
the application is made to a Regional Director—the CEO or that Regional
Director;
shall, by writing, renew the licence unless:
(c) the CEO has given an order under
paragraph 183CS(1)(d) in relation to the licence; or
(d) the customs broker is, because of
section 183CK, not entitled to hold a broker’s licence.
(2) A renewal of a licence shall not take
effect if, on or before the date on which the licence would, apart from the
renewal, expire, the licence is revoked.
(3) Where the licence held by a customs
broker has been suspended, subsection (1) applies as if the licence had
not been suspended, but the renewal of the licence does not have any force or
effect until the licence ceases to be suspended.
(4) Where the CEO renews a licence under subsection (1),
he or she may, in accordance with subsection 183CG(6), specify conditions
different from those specified in the original licence.
(5) Subject to this Part, a licence that has
been renewed continues in force until the first licence expiry day (as defined
in section 183CH) after the day on which the licence would have expired
apart from the renewal, but may be further renewed.
183CK
Security
(1) The CEO may, by notice in writing served
on a person making an application for a broker’s licence or a person who holds
a broker’s licence, require that person to give, within the time specified in
the notice, security in an amount determined by the CEO, not being an amount
exceeding the amount prescribed in respect of the prescribed class of
applicants or customs brokers to which the person belongs, by bond, guarantee
or cash deposit, or by any or all of those methods, for compliance by him or
her with the Customs Acts, for compliance with the conditions or requirements
to which the importation or exportation of goods is subject and generally for
the protection of the revenue and that person is not entitled to be granted or
to hold a broker’s licence, as the case may be, unless he or she gives security
accordingly.
(2) Where the amount of the security in force
in respect of a customs broker is less than the amount prescribed in respect of
the prescribed class of customs brokers to which the customs broker belongs,
the CEO may, by notice in writing to the customs broker, require the customs
broker to give, within such period as is specified in the notice, a fresh security
in lieu of the security in force under subsection (1) in an amount
specified in the notice, being an amount not exceeding the amount so
prescribed, and, if the customs broker fails to comply with the notice, the
customs broker shall not be entitled to hold a broker’s licence.
(3) Where, by virtue of subsection (1),
an applicant for a broker’s licence is not entitled to be granted the licence,
the CEO may refuse to grant the licence to the applicant.
(4) Where, by virtue of subsection (1)
or (2), a customs broker is not entitled to hold a broker’s licence, the CEO
may cancel the broker’s licence held by the customs broker.
(5) Regulations made for the purposes of this
section may prescribe different amounts in respect of different classes of
applicants or customs brokers and, without limiting the generality of the
foregoing, may prescribe different amounts in respect of applicants who are
natural persons and applicants that are partnerships or companies and in
respect of customs brokers who are natural persons and corporate customs
brokers.
183CL
Fees
(1) Such fees (if any) as are prescribed are
payable in respect of broker’s licences.
(2) Regulations made for the purposes of this
section may prescribe:
(a) different fees in respect of
different classes of customs brokers and, without limiting the generality of
the foregoing, may prescribe different fees in respect of customs brokers who
are natural persons and corporate customs brokers; and
(b) the time within which fees payable
under this section are to be paid.
(2A) The regulations may prescribe fees for
broker’s licences by reference to the period for which the licences are to
remain in force under paragraph 183CH(1)(b). This does not limit the ways in
which the regulations may prescribe fees for broker’s licences.
(3) Fees prescribed under subsection (1)
may include an amount calculated with regard to the cost of the establishment,
administration and operation of the Committee.
183CM
Nominees
For the purposes of this Part, a person
shall be taken to be a nominee of a customs broker from the time when the name
of the nominee is endorsed, in pursuance of paragraph 183CE(1)(b) or of section 183CF,
on the licence of the customs broker until the nominee dies or until the CEO
deletes the name of the nominee from that licence under section 183CP,
whichever occurs first.
183CN
Removal of nominee
(1) The CEO shall delete the name of a
nominee of a customs broker from the broker’s licence of that customs broker
if:
(a) the nominee dies; or
(b) the nominee ceases to hold a
broker’s licence; or
(c) the nominee ceases to act as
nominee of the customs broker; or
(d) the nominee requests the CEO, in
writing, to delete his or her name from the licence; or
(e) the name of the nominee is found
to have been endorsed on the licence in circumstances where the endorsement
should not have been made.
(2) Where the deletion of the name of a
nominee from a licence of a customs broker is required under subsection (1),
the customs broker shall forthwith deliver the licence to the CEO for the
purpose of having the deletion effected.
183CP
Notice to nominate new nominee
If the
broker’s licence of a customs agent ceases to comply with subsection 183C(2),
the CEO may, by notice in writing served on the customs broker, require the
customs broker to apply within such period as is specified in the notice, for
such variation of the endorsements on the licence as would result in the
licence complying with that subsection.
Division 4—Suspension, revocation and non‑renewal of licences
183CQ
Investigation of matters relating to a broker’s licence
(1) The CEO may give notice in accordance
with this section to a customs broker if the CEO has reasonable grounds to
believe that:
(a) the customs broker has been
convicted of a prescribed offence; or
(b) the customs broker, being a
natural person, is an undischarged bankrupt; or
(c) the customs broker, being a
company, is in liquidation; or
(d) the customs broker has ceased to
perform the duties of a customs broker in a satisfactory and responsible
manner; or
(e) the customs broker is guilty of
conduct that is an abuse of the rights and privileges arising from his or her
licence; or
(f) the customs broker has not,
within 28 days after the day prescribed for the payment of any fees, paid those
fees; or
(g) the customs broker made a false or
misleading statement in the application for the licence; or
(h) the customs broker has not
complied with a condition imposed on the grant or renewal of the licence and,
having been served with a notice under subsection 183CG(8) in relation to the
non‑compliance with that condition, the customs broker has not, within the time
specified in the notice, complied with that condition; or
(j) the
customs broker has not, within the time specified in a notice under section 183CP,
complied with that notice;
or it otherwise appears to the CEO to be necessary for the
protection of the revenue or otherwise in the public interest to give the
notice.
(2) Without limiting the generality of paragraph (1)(d),
a customs broker shall be taken, for the purposes of that paragraph, to have
ceased to perform the duties of a customs broker in a satisfactory and
responsible manner if the documents prepared by the customs broker for the
purposes of this Act contain errors that are unreasonable having regard to the
nature or frequency of those errors.
(3) Notice in accordance with this section to
a customs broker shall be in writing and shall be served, either personally or
by post, on the customs broker.
(4) A notice in accordance with this section
to a customs broker shall state:
(a) the grounds on which the notice is
given;
(b) that the person who gave the
notice intends forthwith to refer to the Committee, for investigation and
report to the CEO, the question whether the CEO should take action in relation
to the licence under subsection 183CS(1);
(c) the powers that the CEO may
exercise in relation to a licence under subsection 183CS(1); and
(d) the rights of the customs broker
under sections 183J and 183S to take part in the proceedings before the
Committee.
(5) Where the CEO, or a Regional Director for
a State or Territory, gives notice in accordance with this section to a customs
broker, the CEO or Regional Director shall refer the question whether the CEO should
take action in relation to the licence under subsection 183CS(1) to the
Committee, for investigation and report to the CEO.
(6) Where the CEO refers a question to the
Committee under subsection (5), the CEO shall give particulars to the
Committee of all the information in his or her possession that is relevant to
the question so referred.
(7) Where a question is referred to the
Committee under subsection (5), the Committee shall, as soon as
practicable, conduct an investigation and make a report on the question to the
CEO.
183CR
Interim suspension by CEO
(1) Where the CEO gives notice in accordance
with section 183CQ to a customs broker, the CEO may, if the CEO considers
it necessary for the protection of the revenue or otherwise in the public interest
to do so, suspend the licence of the customs broker pending the investigation
and report of the Committee.
(2) The CEO
may suspend the broker’s licence of a customs broker in pursuance of subsection (1)
by:
(a) including in the notice to the
customs broker in accordance with section 183CQ a statement to the effect
that the licence is suspended under that subsection; or
(b) giving further notice in writing
to the customs broker to the effect that the licence is suspended under that
subsection.
(3) A suspension of a licence by the CEO, or
by a Regional Director for a State or Territory, under subsection (1) has
effect until the suspension is revoked by the CEO, or by a Regional Director
for a State or Territory, or the CEO has dealt with the matter in accordance
with section 183CS, whichever first occurs.
(4) Where a broker’s licence is suspended
under this section, the CEO may at any time revoke the suspension.
183CS
Powers of CEO
(1) Where the CEO, after considering a report
under subsection 183CQ(7) in relation to a broker’s licence, is:
(a) satisfied in relation to the
licence as to any of the matters mentioned in paragraphs (a) to (j)
(inclusive) of subsection 183CQ(1); or
(b) satisfied
on any other grounds that it is necessary to do so for the protection of the
revenue or for the purpose of ensuring compliance with the Customs Acts;
he or she may, by notice to the customs broker:
(c) cancel the licence; or
(d) if the licence is about to
expire—order that the licence not be renewed; or
(e) reprimand the customs broker; or
(f) in a case where the licence is
not already suspended—suspend the licence for a period specified in the notice;
or
(g) in a case where the licence is
already suspended—further suspend the licence for a period specified in the
notice.
(2) Where the CEO, after considering a report
under subsection 183CQ(7) in relation to a broker’s licence, decides not to
take any further action in the matter, he or she shall, by notice in writing to
the customs broker, inform the customs broker accordingly, and, if the licence
of the customs broker is suspended, he or she shall revoke the suspension.
(3) A notice under subsection (1) shall:
(a) be in writing; and
(b) be served, either personally or by
post, on the holder of the licence.
(4) The period for which the CEO may suspend
or further suspend a licence under subsection (1) may be a period expiring
after the date on which the licence, if not renewed, would expire.
(5) Where the CEO orders under paragraph (1)(d)
that a licence not be renewed, he or she shall notify the appropriate Collector
accordingly.
183CT
Effect of suspension
(1) During a period in which a broker’s
licence held by a natural person is suspended under this Division:
(a) the person shall not act as a
customs broker;
(b) the person shall not act as a
nominee of a customs broker; and
(c) a nominee of the person shall not
act as such a nominee.
(2) During a period in which a broker’s
licence held by a corporate customs broker is suspended under this Division:
(a) the corporate customs agent shall
not act as a customs broker; and
(b) a nominee of the corporate customs
broker shall not act as such a nominee.
183CU
Service of notices
For the purposes of the application of
section 29 of the Acts Interpretation Act 1901 to the service by
post of a notice under this Division on a person who holds or held a broker’s
licence, such a notice posted as a letter addressed to that person at the last
address of that person known to the sender shall be deemed to be properly
addressed.
Division 5—National Customs Brokers Licensing Advisory Committee
183D
National Customs Brokers Licensing Advisory Committee
(1) The National Customs Agents Licensing
Advisory Committee in existence immediately before the commencement of this
subsection continues in existence as the National Customs Brokers Licensing
Advisory Committee.
(2) The functions of the Committee are:
(a) to investigate and report on
applications referred to it by the CEO, or a Regional Director for a State or
Territory, under section 183CB;
(b) to investigate and report on
questions referred to it by the CEO, or a Regional Director for a State or
Territory, under section 183CQ;
(c) to advise the CEO in relation to
the approval of courses of study under section 183CC; and
(d) where the CEO requests the
Committee to advise him or her on the standards that customs brokers should
meet in the performance of their duties and obligations as customs brokers—to
advise the CEO accordingly.
183DA
Constitution of Committee
(1) The Committee shall consist of the
following members:
(a) the Chair;
(b) a member to represent customs
brokers;
(c) a member to represent the
Commonwealth.
(2) The Chair shall be a person who:
(a) is or has been a Stipendiary,
Police, Special or Resident Magistrate of a State or Territory; or
(b) in the opinion of the CEO,
possesses special knowledge or skill in relation to matters that the Committee
is to advise or report on.
(3) A member referred to in paragraph (1)(a)
or (b) shall be appointed by the CEO for a period not exceeding 2 years but is
eligible for re‑appointment.
(4) The member referred to in paragraph (1)(b)
shall be appointed on the nomination of an organization that, in the opinion of
the CEO, represents customs brokers.
(5) The member referred to in paragraph (1)(c)
shall be the person for the time being holding, or performing the duties of,
the office in the Department that the CEO specifies, in writing signed by him
or her, to be the office for the purposes of this subsection.
(6) The appointment of a member is not
invalidated, and shall not be called in question, by reason of a deficiency or
irregularity in, or in connection with, his or her nomination or appointment.
183DB
Remuneration and allowances
(1) A member referred to in paragraph
183DA(1)(a) or (b) shall be paid such remuneration as is determined by the
Remuneration Tribunal, but if no determination of that remuneration by the
Tribunal is in operation, he or she shall be paid such remuneration as is
prescribed.
(2) A member referred to in paragraph
183DA(1)(a) or (b) shall be paid such allowances as are prescribed.
(3) This section has effect subject to the
Remuneration Tribunal Act 1973.
183DC
Acting Chair
(1) Subject to subsection (2), the CEO
may appoint a person to act as Chair:
(a) during a vacancy in the office of
Chair; or
(b) during any period, or during all
periods, when the Chair is absent from duty or from Australia or is for any
other reason, unable to perform the functions of his or her office.
(2) A person shall not be appointed to act as
Chair unless he or she is qualified, in accordance with subsection 183DA(2), to
be appointed as Chair.
(3) A person appointed to act as Chair shall
be paid such fees, allowances and expenses as the CEO determines.
183DD
Deputy member
(1) The CEO may appoint a person, on the
nomination of an organization referred to in subsection 183DA(4), to be the
deputy of the member referred to in paragraph 183DA(1)(b) during the pleasure
of the CEO and the person so appointed shall, in the event of the absence of
the member from a meeting of the Committee, be entitled to attend that meeting
and, when so attending, shall be deemed to be a member of the Committee.
(2) Where the CEO specifies an office in the
Department for the purposes of this subsection, the person for the time being
holding, or performing the duties of, that office shall be the deputy of the
member referred to in paragraph 183DA(1)(c) and that person shall, in the event
of the absence of that member from a meeting of the Committee, be entitled to
attend that meeting and, when so attending, shall be deemed to be a member of
the Committee.
(3) A deputy of the member referred to in
paragraph 183DA(1)(b) shall be paid such fees, allowances and expenses as the CEO
determines.
183E
Procedure of Committees
The regulations may make provision for
and in relation to the procedure of the Committee.
183F
Evidence
The Committee is not bound by legal
rules of evidence but may inform itself on a matter referred to it under this
Part in such manner as it thinks fit.
183G
Proceedings in private
The proceedings of the Committee shall
be held in private.
183H
Determination of questions before a Committee
All questions before the Committee shall
be decided according to the opinion of the majority of its members.
183J
Customs broker affected by investigations to be given notice
(1) Where an application is referred to the
Committee under section 183CB or a question is referred to the Committee
under section 183CQ, the Chair of the Committee shall cause a notice in
writing of the reference of the application or question to the Committee, and
of the time and place at which the Committee intends to hold an inquiry into
the application or question, to be served on the person making the application
or holding the licence to which the question relates, as the case may be, at
least ten days before the date of the inquiry.
(2) Subject to subsection (3), the
Committee shall afford the person on whom a notice has been served in pursuance
of subsection (1) an opportunity of examining witnesses, of giving
evidence and calling witnesses on his or her behalf and of addressing the
Committee.
(3) Where the person on whom notice has been
served in pursuance of subsection (1) fails to attend at the time and
place specified in the notice, the Committee may, unless it is satisfied that
the person is prevented by illness or other unavoidable cause from so
attending, proceed to hold the inquiry in his or her absence.
(4) Where an application is referred to the
Committee under section 183CB or a question is referred to the Committee
under section 183CQ, the Chair of the Committee may cause a notice in
writing of the reference of the application or question to the Committee, and
of the time and place at which the Committee intends to hold an inquiry into
the application or question, to be served on such other persons who, in the
opinion of the Chair, have a special interest in, or are specially affected by,
the inquiry.
183K
Summoning of witnesses
(1) The Chair of the Committee may, by
writing under his or her hand, summon a person to attend before the Committee
at a time and place specified in the summons and then and there to give
evidence and to produce any books, documents and writings in the person’s
custody or control which the person is required by the summons to produce.
(2) A person who has been summoned to attend
before the Committee as a witness shall appear and report himself or herself
from day to day, unless excused by the Committee.
(3) The Committee may inspect books,
documents or writings before it, and may retain them for such reasonable period
as it thinks fit, and may make copies of such portions of them as are relevant
to the inquiry.
183L
Service of notices and summonses
A notice or summons under this Part
shall be served by delivering it personally to the person to be served or by
sending it by prepaid registered letter addressed to the person at his or her
last known place of abode or business or by leaving it:
(a) at his or her last known place of
abode with some person apparently an inmate of that place and apparently not
less than 16 years of age; or
(b) at his or her last known place of
business with some person apparently employed at that place and apparently not
less than 16 years of age.
183N
Committee may examine upon oath or affirmation
(1) The Committee may examine on oath a
person appearing as a witness before the Committee, whether the witness has
been summoned or appears without being summoned, and for that purpose a member
of the Committee may administer an oath to a witness.
(2) Where a witness conscientiously objects
to take an oath, the witness may make an affirmation that he or she
conscientiously objects to take an oath and that he or she will state the
truth, the whole truth and nothing but the truth to all questions that are asked
of him or her.
(3) An affirmation so made is of the same
force and effect, and entails the same liabilities, as an oath.
183P
Offences by witness
(1) A person
summoned to attend before the Committee as a witness shall not:
(a) fail to attend, after payment or
tender to him or her of a reasonable sum for his or her expenses of attendance;
or
(b) refuse to be sworn or to make an
affirmation as a witness, or to answer any question when required to do so by a
member of the Committee; or
(c) refuse or fail to produce a book
or document which he or she was required by the summons to produce.
Penalty: 10 penalty units.
(2) Paragraphs (1)(a) and (c) do not
apply if the person has reasonable cause for the failure or refusal.
183Q
Statements by witness
A person is not excused from answering a
question or producing a book or document when required to do so under section 183P
on the ground that the answer to the question, or the production of the book or
document, might tend to incriminate the person or make him or her liable to a
penalty, but the person’s answer to any such question is not admissible in
evidence against him or her in proceedings other than proceedings for:
(a) an offence against paragraph
183P(b) or (c); or
(b) an offence in connection with the
making by him or her of a statement in an examination before the Committee
under section 183N.
183R
Witness fees
(1) A person who attends in obedience to a
summons to attend as a witness before the Committee is entitled to be paid
witness fees and travelling allowance according to the scale of fees and
allowances payable to witnesses in the Supreme Court of the State or Territory
in which he or she is required to attend or, in special circumstances, such
fees and allowances as the Chair of the Committee directs (less any amount
previously paid to the person for his or her expenses of attendance).
(2) The fees and allowances are payable:
(a) in the case of a witness summoned
at the request of the customs broker to whom the inquiry relates—by that
customs broker; and
(b) in any other case—by the
Commonwealth.
183S
Representation by counsel etc.
(1) In an inquiry before the Committee, the
customs broker to whom the inquiry relates and the CEO are each entitled to be
represented by a barrister or solicitor or, with the approval of the Committee,
by some other person.
(2) A barrister, solicitor or other person
appearing before the Committee may examine or cross‑examine witnesses and
address the Committee.
183T
Protection of members
(1) An action or proceeding, civil or
criminal, does not lie against a member of the Committee for or in respect of
an act or thing done, or report made, in good faith by the member of the
Committee in his or her capacity as a member.
(2) An act or thing shall be deemed to have
been done in good faith if the member or Committee by whom the act or thing was
done was not actuated by ill‑will to the person affected or by any other
improper motive.
183U
Protection of barristers, witnesses etc.
(1) A barrister, solicitor or other person
appearing before the Committee has the same protection and immunity as a
barrister has in appearing for a party in proceedings in the High Court.
(2) A witness summoned to attend or appearing
before the Committee has the same protection as a witness in proceedings in the
High Court.