Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Christopher Martin Ellison, MP)Schedule 6 - Passenger and crew reports
The amendments contained in this schedule provide for Customs and the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) to receive electronically advance information about air and sea passengers and crew travelling to Australia before they arrive at the airport or port. This will significantly enhance the ability of Customs and DIMIA to assess passengers and crew, prior to their arrival in Australia, for the risk they may present in relation to a range of Commonwealth laws.
The scheme that is established by the provisions of this Schedule provides for reports to be made by the operators of certain aircraft and ships to both Customs and DIMIA. However, to ensure that aircraft and ship operators do not have to duplicate their reports there is a new provision in the Customs Act that if an operator provides information to DIMIA under the Migration Act, that operator will not be required to provide the same information to Customs. In addition, DIMIA will be required to provide to Customs any information that it receives under the advance reporting provisions. Where the operators of aircraft and ships give information only to Customs (i.e., not to DIMIA) Customs will be required to give that information to DIMIA.
Part 1 - Main amendments
This is a technical drafting amendment to include a cross-reference in the definitions section of the Customs Act (section 4) to approved statements made under section 4A.
This item inserts in subsection 4(1) a definition of arrival in relation to ships and aircraft. This definition is to be inserted in the Customs Act by the Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001 (the ITM Act) parts of which have not yet commenced. There are time limits on the requirement to report passengers electronically which are determined by the estimated time of arrival of the ship or aircraft. The inclusion of a definition of arrival provides certainty as to when a ship or aircraft can be said to have arrived in Australia.
Item 3 - Subsection 4(1) (definition of electronic)
This item repeals and replaces the definition of electronic. This new definition is to be inserted in the Customs Act by the ITM Act parts of which have not yet commenced. The new definition covers all transmissions of communications by computer and not simply the transmission of reports by computer.
This item inserts a definition of operator in relation to a ship or aircraft for a particular flight or voyage. This definition is to be inserted in the Customs Act by the ITM Act parts of which have not yet commenced. The obligations to report passengers electronically are imposed on the operator of the ship or aircraft. This definition makes it clear who the operator of a ship or aircraft is.
Item 5 - Sections 64AC and 64AD
This item repeals existing sections 64AC and 64AD of the Customs Act which deal with passenger and crew reports (section 64AC) and communication with Customs (section 64AD) and inserts new provisions dealing with passenger reports (new section 64ACA), crew reports (section 64ACB) and communication of reports (section 64ACE). A separate provision dealing with offences is also inserted (new section 64ACD).
New section 64ACA imposes the general obligation on the operators of ships and aircraft that are due to arrive at a port or airport in Australia from outside Australia to report all passengers who will be on board the ship or aircraft at the time of its arrival at the port or airport. The reporting requirements imposed on operators vary depending on the type of operator (for example, whether a commercial passenger airline or passenger shipping line or a cargo ship or private plane or yacht).
New subsection 64ACA(2) requires the operators of all commercial passenger airlines and prescribed operators of commercial passenger vessels to report passengers electronically using an approved system.
This section applies to the operator of a ship if:
- 1.
- the ship is on a voyage for transporting people (that is, it is not a cargo ship)
- -
- that is provided for a fee payable by those using it; and
- -
- the operator is prescribed in the regulations.
So, the operators of passenger ships (such as cruise ships) must be prescribed in the regulations before the obligation to report electronically will apply.
The obligation is imposed on the operator of an aircraft if:
- 2.
- the flight is provided as part of an airline service that is:
- -
- provided for a fee payable by the passengers using it;
- -
- provided in accordance with fixed schedules to or from fixed terminals over specific routes; and
- -
- that is available to the general public on a regular basis.
This definition excludes from the obligation to report electronically the operators of private planes, charter aircraft and cargo aircraft which may incidentally carry a small number of passengers. These operators retain the option of reporting passengers electronically or by document.
New subsection 64ACA(2) also will involve the CEO approving, in writing, an electronic system for each of these operators. The instruments of approval of electronic systems are disallowable instruments (new subsection 64ACA(10)).
New subsection 64ACA(3) sets out how reporting is to occur if an approved electronic system is not working. In such a case, the operators may report either by document or electronically.
New subsection 64ACA(4) sets out the reporting requirements for operators of all other ships and aircraft. So, this subsection applies to cargo ships and private planes reporting their passengers to Customs.
New subsections 64ACA(5) and (6) set out the time limits in which reports must be made. These time limits are the same as those in the ITM Act.
For ships, the report must be given not later than:
- 3.
- if the journey from the last port before Australia is likely to take not less than 48 hours - 48 hours;
- 4.
- if the journey from the last port before Australia is likely to take less than 48 hours - 24 hours;
before the time stated in the impending arrival report (made under section 64) to be the estimated time of arrival.
For aircraft, the report must be given not later than:
- 5.
- if the journey from the last airport before Australia is likely to take not less than 3 hours - 3 hours;
- 6.
- if the journey from the last airport before Australia is likely to take less than 3 hours - one hour;
before the time stated in the impending arrival report (made under section 64) to be the estimated time of arrival.
New subsection 64ACA(7) sets out the other requirements for the making of a documentary report. These requirements are the same as those currently in the Customs Act (and as in the ITM Act).
New subsection 64ACA(8) sets out the other requirements for making an electronic report. These requirements are the same as those currently in the Customs Act (and as in the ITM Act).
New subsection 64ACA(9) makes it clear that the CEO may approve different forms for documentary reports and different statements for electronic reports in different circumstances, by different kinds of operators of ships or aircraft or in respect of different kinds of ships or aircraft. So, for example, the CEO may approve a different statement for certain types of cruise ship or for certain types of operators of passenger ships.
Under new subsection 64ACA(11), Customs must provide to the department administered by the Minister who administers the Migration Act 1958 (Migration Act) the information that is reported to Customs under this section (new section 64ACA).
New subsection 64ACA(12) sets out the purposes for which information is taken to be obtained by Customs under new section 64ACA of the Customs Act and new section 245L of the Migration Act 1958 . It provides that such information is taken to be obtained for the purposes of the administration of the Customs Act 1901 , the Migration Act 1958 , and any other law of the Commonwealth prescribed by the regulations for the purposes of this subsection.
New section 64ACB sets out the requirements for the making of crew reports. These provisions are the same as those in the ITM Act. No substantive changes have been made to these provisions although this provision differs from the counterpart provisions in the ITM Act in that under new subsection 64ACB(8), Customs must provide to the department administered by the Minister who administers the Migration Act 1958 (Migration Act) the information that is reported to Customs under this section (new section 64ACB).
New subsection 64ACC(1) provides that, if the same information is required under new section 64ACA or 64ACB and also under proposed new section 245L of the Migration Act, and the operator of the ship or aircraft concerned has reported the piece of information in relation to the passengers or crew as required by section 245L of the Migration Act then the operator is taken not to be required by section 64ACA or 64ACB of the Customs Act to report the same information in relation to those passengers and crew.
New subsection 64ACC(2) provides that subsection 64ACC(1) applies only if the report under the Migration Act relates to the arrival of the ship or aircraft at the same port or airport for which the Customs Act requires a report.
The purpose of new section 64ACC is to ensure that where both the Customs Act and the Migration Act oblige the operators of ships and aircraft to provide the same information in relation to crew and passengers, the operators are not required to give the same information on the same passengers and crew under the Customs Act.
New section 64ACD establishes the offences in relation to passenger and crew reports. New subsection 64ACD(1) makes it an offence for an operator to intentionally contravene new section 64ACA (requirement to report passengers) or to intentionally contravene new section 64ACB (requirement to give a crew report). So, if an operator is required to report passengers electronically, intentionally failing to do so will be an offence. Previously, these offences were contained in the reporting provisions themselves rather than in a stand alone section. The maximum penalty of 120 penalty units is the same as that provided for in the ITM Act.
As with the ITM Act, there are strict liability offences as well as intentional offences. Subsection 64ACD(2) makes it an offence for an operator to contravene new section 64ACA (requirement to report passengers) or to contravene new section 64ACB (requirement to give a crew report). Subsection 64ACD(3) makes it clear that offences against subsection 64ACD(2) are strict liability offences. As with the ITM Act, the maximum penalties for strict liability offences are only 60 penalty units.
New section 64ACE sets out how the various reports made under Subdivision A of Division 3 of the Customs Act (including passenger reports and crew reports) are to be communicated to Customs. These provisions are currently set out in section 64AD (which is repealed by this Act). This amendment is a technical consequential amendment to include cross-references to the new reporting provisions to be inserted by this Act. The substance of current section 64AD as amended by the ITM Act is not being changed.
This is a technical amendment which preserves the operation of regulations made under existing section 64AD of the Customs Act which provides for the communication of reports to Customs. Section 64AD is being repealed by this Schedule (and replaced by new section 64ACE). This amendment is to ensure that the regulations prescribing the manner of communication for other reports (such as impending arrival reports or documentary reports of cargo) which are not being amended by this Schedule continue to have effect as if they had been made under new section 64ACE.
These items contain technical amendments to section 64AE as result of the insertion of new reporting requirements.
This item inserts new Division 12B into the Migration Act.
New Division 12B introduces a reporting scheme that requires operators of aircraft and ships, to which the Division applies, to report on all passengers and crew who will be on board their aircraft or ship at the time of its arrival in Australia.
Division 12B Reporting on passengers and crew of aircraft and ships
New section 245I inserts a number of definitions for the purposes of new Division 12B.
Approved fall-back reporting system is defined to mean a system approved under new section 245K.
Approved primary reporting system is defined to mean a system approved under new section 245J.
Approved primary reporting system for crew is defined to mean, for an aircraft or ship of a kind to which this Division applies, the system approved under new section 245J for reporting on crew on an aircraft or ship of that kind.
Approved primary reporting system for passengers is defined to mean, for an aircraft or ship of a kind to which this Division applies, the system approved under new section 245J for reporting on passengers on an aircraft or ship of that kind.
Arrival is defined to mean:
- •
- in relation to an aircraft - the aircraft coming to a stop after landing; or
- •
- in relation to a ship - the securing of the ship for the loading or unloading of passengers, cargo or ships stores.
Kind of aircraft or ship to which this Division applies is defined to mean a kind of aircraft or ship specified in the Migration Regulations 1994 (the Migration Regulations) as a kind of aircraft or ship to which new Division 12B applies.
The note to this definition refers to new subsection 245I(2). New subsection 245I(2) defines kind for the purposes of new Division 12B (and or regulations and approvals made for the purposes of provisions of new Division 12B) to mean a kind of aircraft or ship that may be identified by reference to matters including all or any of the following:
- •
- the type, size or capacity of the aircraft or ship;
- •
- the kind of operation or service the aircraft or ship is engaged in on the flight or voyage to Australia;
- •
- other circumstances related to the aircraft or ship or its use, or related to the operator of the ship or aircraft.
Operator of an aircraft or ship for a particular flight or voyage is defined to mean:
- •
- the airline or shipping line responsible for the operation of the aircraft or ship for the flight or voyage; or
- •
- if there is no such airline or shipping line, or no such airline or shipping line that is represented by a person in Australia - the pilot of the aircraft or the master of the ship.
Section 245J Approval of primary reporting system
New section 245J requires the Secretary to approve primary reporting systems for the purposes of reporting under new Division 12B on passengers and crew on board aircraft or ships.
Under new subsection 245J(1) the Secretary must approve, in writing, a system for each kind of aircraft or ship to which new Division 12B applies. This system may be an electronic system or a system requiring reports to be provided in documentary form.
A kind of aircraft or ship to which new Division 12B applies will be specified in the Migration Regulations. Under new subsection 245I(2), a kind of aircraft or ship may be identified by reference to matters including all or any of the following:
- •
- the type, size or capacity of the aircraft or ship;
- •
- the kind of operation or service that the aircraft or ship is engaged in on the flight or voyage to Australia;
- •
- other circumstances related to the aircraft or ship or its use, or related to the operator of the aircraft or ship.
This means that there may be more than one primary reporting system approved by the Secretary under new subsection 245J(1).
Note 1 to new subsection 245J(1) makes it clear that the approval by the Secretary of a primary reporting system can be varied or revoked under subsection 33(3) of the Acts Interpretation Act 1901 .
Under subsection 33(3) of the Acts Interpretation Act 1901 , a power to make, grant or issue any instrument is to be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke or amend, or vary any such instrument. This is the case unless a contrary intention appears in the Act that confers the power.
Note 2 to new subsection 245J(1) highlights that it is likely that documentary systems will be phased out and all approved primary reporting systems will be electronic systems.
New subsection 245J(2) provides that when approving a primary reporting system under new subsection 245J(1), the Secretary may, for a kind of aircraft or ship:
- •
- approve a single system for reporting on both passengers and crew; or
- •
- approve one system for reporting on passengers, and another system for reporting on crew.
In effect, this means that there may also be more than one primary reporting system for a kind of aircraft or ship to which new Division 12B applies. That is, one primary reporting system for the purposes of reporting passengers on that kind of aircraft or ship and another primary reporting system for the purposes of reporting crew on that kind of aircraft or ship.
New subsection 245J(3) requires the instrument of approval of a system for reporting on passengers or crew to specify the information about passengers or crew that is to be reported by that system.
The kind of information that is likely to be specified in the instrument of approval is, for example, the names and date of birth of passengers or crew, their passport number and citizenship.
New subsection 245J(4) classifies an instrument of approval made under new section 245J, or a variation or revocation of such an instrument, as a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .
Section 245K Approval of fall-back reporting system
New section 245K requires the Secretary to approve fall-back reporting systems for the purposes of reporting under new Division 12B on passengers and crew on board aircraft or ships.
Under new subsection 245K(1), the Secretary must, in writing, approve one or more fall-back reporting systems. A fall-back reporting system may be an electronic system or a system requiring reports to be provided in documentary form.
The note to new subsection 245K(1) provides that the Secretarys approval of a fall-back reporting system can be varied or revoked under subsection 33(3) of the Acts Interpretation Act 1901 .
New subsection 245K(2) requires the instrument of approval of a fall-back reporting system to specify the information about passengers or crew that is to be reported by that system.
The kind of information that is likely to be specified in the instrument of approval is, for example, the names and date of birth of passengers or crew, their passport number and citizenship.
New subsection 245K(3) classifies an instrument of approval made under new section 245K, or a variation or revocation of such an instrument, as a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .
Section 245L Obligation to report on passengers and crew
New section 245L establishes a reporting scheme for operators of aircraft or ship obliged to report on passengers and crew who will be on board their aircraft or ship at the time of its arrival in Australia.
Aircraft and ships to which section applies
New subsection 245L(1) provides that new section 245L applies to an aircraft or ship of a kind to which new Division 12B applies that is due to arrive at an airport or port in Australia from a place outside Australia.
Broadly speaking, new subsection 245I(1) provides that a kind of aircraft or ship to which this Division applies is one specified in the Migration Regulations as a kind of aircraft or ship to which new Division 12B applies.
Obligation to report on passengers and crew
New subsection 245L(2) imposes an obligation on the operator of an aircraft or ship to which new Division 12B applies to:
- •
- report to the Department, using the approved primary reporting system for passengers, on the passengers who will be on board the aircraft or ship at the time of its arrival at the airport or port; and
- •
- report to the Department, using the approved primary reporting system for crew, on the crew who will be on board the aircraft or ship at the time of its arrival at the airport or port.
The Department is not a defined term in the Act. However, the Department to which the report must be made can be worked out with reference to section 19A of the Acts Interpretation Act 1901 .
Note 1 to new subsection 245L(2) makes it clear that the obligation:
- •
- in new subsection 245L(2) on operators to report to the Department; and
- •
- in new subsection 245L(6) on the Department to provide the information to the Australian Customs Service;
must be complied with even if the information concerned is personal information (as defined in the Privacy Act 1988 ).
Note 2 to new subsection 245L(2) refers to new section 245N, which makes it an offence for an operator to fail to comply with this obligation to report on passengers and crew.
New subsection 245L(3) provides that a report on passengers and crew under new subsection 245L(2) must include certain information relating to those passengers and crew who will be on board the aircraft or ship at the time of its arrival in Australia. This information is that which is specified in the instrument of approval in relation to the relevant approved primary reporting system.
New subsections 245L(4) and 245L(5) set out the deadlines for operators of aircraft or ships to report on passengers and crew who will be on board their aircraft or ship at the time of its arrival at the airport or port in Australia.
Under new subsection 245L(4), a report on passengers or crew on an aircraft must be given not later than:
- •
- if the flight from the last airport outside Australia is likely to take not less than 3 hours - 3 hours before the aircrafts likely time of arrival at the airport in Australia; or
- •
- if the flight to Australia from the last airport outside Australia is likely to take less than 3 hours - one hour before the aircrafts likely time of arrival at the airport in Australia.
Under new subsection 245L(5), a report on passengers or crew on a ship must be given not later than:
- •
- if the journey from the last port outside Australia is likely to take not less than 48 hours - 48 hours before the ships likely time of arrival at the port in Australia; or
- •
- if the journey from last port outside Australia is likely to take less than 48 hours - 24 hours before the ships likely time of arrival at the port in Australia.
New subsection 245L(6) requires the Department to provide, as soon as practicable, the information in a report under new section 245L, to the Australian Customs Service.
New subsection 245L(7) sets out the purposes for which information is taken to be obtained by the Department under new section 245L and subsection 64ACA(11) or 64ACB(8) of the Customs Act 1901 . It provides that such information is taken to be obtained for the purposes of the administration of the Migration Act 1958 , the Customs Act 1901 , and any other law of the Commonwealth prescribed by the regulations for the purposes of this subsection.
Section 245M Approved fall-back reporting system may be used in certain circumstances
New section 245M allows an approved fall-back reporting system to be used in certain circumstances to report on passengers and crew on board aircraft and ships.
New subsection 245M(1) provides that an approved fall-back reporting system may be used if the approved primary reporting system for reporting on passengers or crew on an aircraft or ship is an electronic system and, either:
- •
- the operator of the aircraft or ship cannot report on some or all of the passengers or crew (the relevant passengers or crew ) using the approved primary reporting system because the system is not working; or
- •
- the Secretary permits the operator of the aircraft or ship to report on some or all of the passenger or crew (the relevant passenger or crew ) using an approved fall-back reporting system.
New subsection 245M(2) makes it clear that the reporting scheme set out in new section 245L applies in relation to the relevant passengers or crew to be reported using the approved fall-back reporting system. It provides that new section 245L applies as if:
- •
- the reference in new paragraph 245L(2)(a) or (b) to the approved primary reporting system for passengers, or the approved primary reporting system for crew, were instead a reference to an approved fall-back reporting system; and
- •
- the reference in subsection 245L(3) to the information that is specified as mentioned in subsection 245J(3), in relation to the relevant approved primary reporting system were instead a reference to the information that is specified, as mentioned in subsection 245K(2), in relation to the approved fall-back reporting system that the operator uses in relation to the relevant passengers or crew.
Section 245N Offence for failure to comply with reporting obligations
New section 245N makes it an offence for an operator of an aircraft or ship to fail to report, using the relevant approved primary reporting system, on passengers or crew on board their aircraft or ship before its arrival in Australia.
Under new subsection 245N(1), an operator of an aircraft or ship who intentionally contravenes new subsection 245L(2) commits an offence punishable, on conviction, by a penalty not exceeding 120 penalty units.
Under new subsection 245N(2), an operator of an aircraft or ship who contravenes subsection 245L(2) commits an offence punishable, on conviction, by a penalty not exceeding 60 penalty units.
New subsection 245N(3) makes it clear that the offence in new subsection 245N(2) is an offence of strict liability.
The note to new subsection 245N(3) refers to section 6.1 of the Criminal Code . Section 6.1 of the Criminal Code Act 1995 provides that an offence of strict liability is an offence where there are no fault elements for any of the physical elements of the offence and the defence of mistake of fact is available.
Part 2 - Related amendments
Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001
These items are technical amendments which repeal items of the ITM Act which are being introduced by this Act (and therefore do not need to be repeated in the ITM Act).
Item 14 - Item 122 of Schedule 3
This item repeals item 122 of Schedule 3 to the ITM Act which would have inserted new sections 64AC, 64ACA and 64AD into the Customs Act. These new sections as contained in the ITM Act are no longer necessary because of the amendments that are going to be made to the Customs Act by this Act.
This item also inserts new items 122 and 122A in Schedule 3 of the ITM Act. Items 122 and 122A make consequential amendments to section 64ACE (communication of reports) which is being introduced in the Customs Act by this Act. This is because the ITM Act will introduce new reporting sections into the Customs Act that are not referred to in section 64ACE as contained in this Act (for example, new section 64AAA as contained in the ITM Act will require the operators of ships and aircraft to report stores and prohibited goods).
Item 15 - Items 124 and 125 of Schedule 3
This is a consequential amendment required because the amendments made by this Act are bringing forward certain amendments which were to be made to the Customs Act by the ITM Act.
Section 64AE imposes obligations on the master and owner of a ship or aircraft who are required to provide certain reports to Customs (such as impending arrival report, the arrival report, the cargo report etc) to answer questions and produce documents when asked or required by a Collector. Those reports are listed by reference to the section number that they are contained in. Since this Act makes consequential amendments to section 64AE, the amendments that have to be made by the ITM Act are now different.
These items contain consequential amendments to the definition of Commonwealth document in the Dictionary at the end of the Evidence Act 1995 as a result of the amendments being made by this Act.
Part 1 of that Dictionary defines Commonwealth document to include (amongst other things) a report of the crew and passengers on a ship or aircraft that has been communicated to the Australian Customs Service under section 64AC of the Customs Act. Under the amendment contained in this Act crew and passenger reports will no longer be required under section 64AC of the Customs Act. Passengers will be required to be reported under section 64ACA and crew under section 64ACB. The amendments to the definition reflect these changes.
This item inserts a new definition of a Commonwealth document. It provides that a report relating to the passengers or crew on an aircraft of ship that has been communicated to the Department administered by the Minister who administers the Migration Act 1958 under Division 12B of Part 2 of that Act is a Commonwealth document for the purposes of the Evidence Act 1995 .