Senate

Customs Legislation Amendment (Airport, Port and Cargo Security) Bill 2004

Explanatory Memorandum

(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Christopher Martin Ellison)
This Explanatory Memorandum takes account of amendments made by the House of Representatives to the bill as introduced

Notes on clauses

Clause 1 - Short title

3. This clause provides for the Bill, when enacted, to be cited as the Customs Legislation Amendment (Airport, Port and Cargo Security) Act 2004.

Clause 2 - Commencement

4. Subclause (1) provides that each provision of this Act specified in column 1 of the table in that subclause commences or is taken to have commenced on the day or at the time specified in column 2 of the table.

5. Item 1 of the table provides that sections 1 to 3 and anything in this Act not elsewhere covered by the table will commence on the day on which the Act receives the Royal Assent.

6. Item 2 of the table provides that Schedule 1 commences on the day after this Act receives the Royal Assent. Schedule 1 allows Customs officers to detain people in certain circumstances. This commencement will ensure that these powers can be used as soon as possible.

7. Item 3 of the table provides that item 1 of Schedule 2 commences on the 28th day after the Act receives the Royal Assent.

8. Item 1 of Schedule 2 allows Customs officers to ask people in section 234AA places certain questions.

9. Item 4 of the table provides that item 2 of Schedule 2 commences at the same time as item 1 of Schedule 2 (ie 28 days after Royal Assent). However, if item 1 of Schedule 2 commences after, item 1 of Schedule 3, these provisions do not commence at all.

10. Item 5 of the table provides that item 3 of Schedule 2 commences at the same time as item 1 of Schedule 2 (ie 28 days after Royal Assent). However, if item 1 of Schedule 2 commences before, or at the same time as, item 1 of Schedule 3, item 3 of Schedule 2 does not commence at all.

11. Item 6 of the table provides that item 4 of Schedule 2 commences at the same time as item 1 of Schedule 2 (ie 28 days after Royal Assent). However, if item 1 of Schedule 2 commences after item 1 of Schedule 3, item 4 of Schedule 2 does not commence at all.

12. Item 7 of the table provides that item 5 of Schedule 2 commences at the same time as item 1 of Schedule 2 (ie 28 days after Royal Assent). However, if item 1 of Schedule 2 commences before, or at the same time as, item 1 of Schedule 3, item 5 of Schedule 2 does not commence at all.

13. The commencement of items 2 to 5 of Schedule 2 are explained in more detail below in the notes for Schedule 2.

14. Item 8 of the table provides that item 1 of Schedule 3 commences on a single day to be fixed by Proclamation. If any of the provisions do not commence within 6 months after this Act receives the Royal Assent, they commence on the first day after the end of that period. Item 1 of Schedule 3 contains the new reporting provisions in respect of departing passengers and crew. These obligations apply to prescribed kinds of ships and aircraft. Approved statements, formats or methods will also need to be in place before these provisions commence. This commencement will allow time for regulations to be made and for approvals to be put in place. Item 1 of Schedule 3 also contains new questioning and document production requirements.

15. Item 9 of the table provides that item 2 of Schedule 3 commences on the later of:

15.1.1.
the start of the day on which item 1 of Schedule 3 commences; or
15.1.2.
immediately after the start of the day on which item 62 of Schedule 3 to the Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001 (the International Trade Modernisation Act) commences.

16. Item 2 of Schedule 3 removes the questioning power in respect of passengers and crew that is contained in the International Trade Modernisation Act which has not yet commenced. If the new questioning power in item 1 of Schedule 3 to this Bill commences before the relevant parts of the International Trade Modernisation Act commence, the questioning power in the International Trade Modernisation Act will be removed when those parts of the International Trade Modernisation Act commence.

17. However, if the relevant parts of the International Trade Modernisation Act have commenced at the time item 1 of Schedule 3 commences, then the power to ask questions as contained in that Act will be repealed when the new power in item 1 of Schedule 3 to this Bill commences.

18. Item 10 of the table provides that item 3 of Schedule 3 commences at the same time as item 1 of Schedule 3. Item 3 of Schedule 3 repeals the existing power in the Customs Act to ask questions about passengers and crew which will be replaced by the broader power in item 1 of Schedule 3. This power is also being repealed and replaced by the International Trade Modernisation Act. If that occurs before, or at the same time as, item 1 of Schedule 3 commences, the amendment in item 3 of Schedule 3 is no longer necessary and will not commence at all.

19. Item 11 of the table provides that item 4 of Schedule 3 commences at the same time as item 1 of Schedule 3 (ie Proclamation). However, if item 1 of Schedule 2 commences before, or at the same time as, item 1 of Schedule 3, item 4 of Schedule 3 does not commence at all.

20. Item 12 of the table provides that item 5 of Schedule 3 commences on the later of the time that item 1 of Schedule 3 commences (ie Proclamation) and immediately after the commencement of item 1 of Schedule 2 (ie 28 days after Royal Assent). However, if item 1 of Schedule 2 commences after item 1 of Schedule 3, item 5 of Schedule 3 does not commence at all.

21. Item 13 of the table provides that item 6 of Schedule 3 commences at the same time as item 1 of Schedule 3 (ie 28 days after Royal Assent). However, if item1 of Schedule 2 commences before, or at the same time, as item 1 of Schedule 3, item 6 of Schedule 3 does not commence at all.

22. Item 14 of the table provides that item 7 of Schedule 3 commences on the later of the time that item 1 of Schedule 3 commences (ie Proclamation) and immediately after the commencement of item 1 of Schedule 2 (ie 28 days after Royal Assent). However, if item 1 of Schedule 2 commences after item 1 of Schedule 3, item 5 of Schedule 3 does not commence at all.

23. The commencement of items 4 to 7 of Schedule 3 are explained in more detail below in the notes for Schedule 2.

24. Item 15 of the table provides that Schedule 4 commences on the 28th day after the day on which the Act receives the Royal Assent. Schedule 4 allows Customs officers to stop conveyances in a Customs place.

25. Item 16 of the table provides that Schedule 5 commences on the day after Royal Assent of the Act. Schedule 5 allows the Chief Executive Officer of Customs to take into account certain security related matters when appointing or revoking the appointment of a port.

26. Item 17 of the table provides that items 1 to 3 of Schedule 5 commence at the same time as the provision covered by item 18 of the table, that is on a single day to be fixed by Proclamation.

27. However, if item 118 of Schedule 3 to the International Trade Modernisation Act commences before, or at the same time as, item 4 of Schedule 6, items 1 to 3 of Schedule 6 do not commence at all.

28. Items 1 to 3 of Schedule 5 amend impending arrival and cargo reporting requirements contained in the existing Customs Act. These reporting requirements are being replaced by item 118 of Schedule 3 to the International Trade Modernisation Act. If item 118 commences at or before the amendments in items 1 to 3 of Schedule 3, those amendments are no longer necessary and will not commence at all.

29. Item 18 of the table provides that item 4 of Schedule 6 commences on a single day to be fixed by Proclamation. If any of the provisions do not commence within 6 months after this Act receives the Royal Assent, they commence on the first day after the end of that period. Item 4 of Schedule 6 amends the timing requirements for passenger reports.

30. Item 19 of the table provides that items 5 to 12 of Schedule 6 commence on the later of:

30.1.1.
the time that item 4 of Schedule 6 commences; and
30.1.2.
immediately after the commencement of item 118 of Schedule 3 to the International Trade Modernisation Act.

31. Items 5 to 12 amend the impending arrival and cargo reporting requirements as contained in item 118 of Schedule 3 to the International Trade Modernisation Act.

32. If item 118 of Schedule 3 to the International Trade Modernisation Act has commenced before these amendments commence, these amendments will commence when item 4 of Schedule 6 is proclaimed to commence. If the International Trade Modernisation Amendments haven't commenced, these amendment will commence immediately after the commencement of item 118 of Schedule 3 to the International Trade Modernisation Act.

Clause 3 - Schedule(s)

33. This clause is the formal enabling provision for the Schedule to the Bill, providing that each Act specified in a Schedule is amended in accordance with the applicable items of the Schedule. In this Bill the Customs Act is being amended.

34. The clause also provides that the other items of the Schedules have effect according to their terms. This is a standard enabling clause for transitional, savings and application items in amending legislation.

Clause 4 - Application of amendments

35. This clause contains two application provisions.

36. Subclause 4(1) provides that the amendments made by Schedule 3 do not apply to a ship or aircraft in relation to a place from which, at the time those amendments commence, the ship or aircraft is due to depart in 72 hours or less.

37. Schedule 3 inserts new reporting provisions into the Customs Act which will require the operator of certain ships and aircraft departing Australia to report the people on board that ship or aircraft. The earliest a report may be given is 72 hours before departure from a place. This application provision will ensure that the new reporting provisions only apply to ships and aircraft who are departing a place more than 72 hours after the amendments commence and hence no operators will commit an offence due to their ship or aircraft departing 72 hours of less after the amendments commence.

38. Subclause 4(2) provides that to avoid doubt, the amendment in Schedule 5 does not affect the validity of an appointment made before the commencement of that Schedule. Schedule 5 allows the Chief Executive Officer of Customs to take certain security related matters into account when appointing or revoking the appointment of a port. This application provision makes it clear that this amendment does not affect any existing appointments.


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