Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Christopher Martin Ellison)Schedule 3 - reports on departing passengers and crew
Customs Act 1901
104. Before a ship or aircraft can leave Australia it must have a Certificate of Clearance (section 118 of the Customs Act refers).
105. Section 119 of the Customs Act provides, in part, that before any Certificate of Clearance is granted to a ship or aircraft, the master and owner of the ship or the pilot and owner of the aircraft shall answer questions relating to the ship or aircraft and its cargo, crew, passengers, stores and voyage and may be required to produce documents in relation to the ship or aircraft and its cargo.
106. The operator of a ship or aircraft that is departing from Australia is not required to report to Customs the people on board the ship or aircraft (in contrast with ships and aircraft arriving in Australia - see sections 64ACA and 64ACB of the Customs Act).
107. Customs has facilities in most airports and in one port to process passengers using electronic systems. In other places, Customs is required to collect information as people are processed, to send that information back to Customs House and await checks to be conducted. These checks may not be able to be completed prior to the ship or aircraft leaving Australia.
108. Further Customs is limited to asking questions about passengers and crew prior to the Certificate of Clearance being given. There is no power to ask questions about passengers and crew once the ship has departed Australia.
109. There is also no power to ask for documents in relation to departing passengers and crew at any time.
110. Item 1 inserts Part VB into the Customs Act. Division 1 of that Part will require operators of certain departing ships and aircraft to report the people on board the ship or aircraft. Division 2 will require the operator of any departing ship or aircraft to answer questions in relation to the passengers and crew on board the ship or aircraft and to produce documents in respect of those same people.
111. Subdivision A of Division 1 sets out the reporting requirements that will apply to certain prescribed ships or aircraft. Under Subdivision A operators of certain ships and aircraft will be required to provide 3 reports to Customs about the people on board the ship or aircraft at the time it departs a place as part of an international voyage or flight.
112. Subsection 106A(1) provides that Subdivision A applies to a ship or aircraft of a kind prescribed by regulations made for the purposes of that section, if the ship or aircraft is due to depart:
- 112.1.1.
- 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
- 112.1.2.
- from a place in Australia in the course of such a journey.
113. For example, if a cruise ship picks up passengers in Sydney and then Brisbane before departing Australia, the reporting obligations will apply in respect of Sydney (under the first paragraph) and Brisbane (under the second paragraph).
114. This will cover journeys that do not conclude outside Australia, for example a round trip cruise from Brisbane, to Vanuatu and back to Brisbane on one voyage.
115. Subsection 106A(2) allows regulations made to specify kinds of ships or aircraft by reference to particular matters, including any or all of the following:
- 115.1.1.
- the type, size or capacity of the ship or aircraft;
- 115.1.2.
- the kind of operation or service the aircraft or ship will be engaged in on the journey from Australia;
- 115.1.3.
- other circumstances relating to the ship or aircraft or its use or relating to the operator of the ship or aircraft.
116. It is expected that the following requirements will initially apply to passenger cruise vessels.
117. Sections 106B, 106C and 106D set out the three tiers of reporting requirements as follows:
- 117.1.1.
- the first report will have to be made between 72 and 48 hours before the time a ship or aircraft is due to depart a port or airport;
- 117.1.2.
- the second report will have to be made between 10 and 4 hours before the time the ship or aircraft is due to depart the port of airport;
- 117.1.3.
- a final report will be required before the ship or aircraft departs the port or airport.
118. Under paragraph 106B(1)(a), an operator will be required to report the people who at the time the report is made, are expected to be on board the ship or aircraft when it departs from the place. That report must be provided at least 48 hours before the time the ship or aircraft is due to depart from the place and must not be made more than 72 hours before that time.
119. In the example where a ship travels from Sydney to Brisbane before departing Australia, a report will be required at least 48 hours before the ship is due to depart from Sydney and another report will be required at least 48 hours before the ship is due to depart from Brisbane. The first report should contain a list of people expected to join the ship at Sydney and who are already on board and the Brisbane report should contain a list of people expected to join the ship at Brisbane.
120. The operator will be required to report all the people expected to be on board when the ship or aircraft departs the place, including domestic passengers. In the example above, the operator will have to report people embarking in Sydney who are disembarking in Brisbane. This will allow Customs to account for the international passengers.
121. Paragraph 106B(1)(b) provides that the report must identify people 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. When Customs receives this information it will be processed electronically and hence Customs does not want to receive information about a person twice. This paragraph will ensure that if a person is reported or required to be reported at one place, they should not be reported at any subsequent places. Due to the 24 hour period in which these reports must be made, there is a possibility that a report for a place that is a subsequent stop on a journey in Australia will be provided to Customs before a report for an earlier stop on that journey. Hence this provision ensures that if a person is going to be reported on a report for an earlier place but that report has not been made, the report in respect of a later place should not include the people who are to be identified in the report for the earlier place. For example, in the example where the journey starts at Sydney and goes on to Brisbane, the report in respect of Brisbane may be made earlier than the report for Sydney. The Brisbane report should not include anyone who will be reported on the Sydney report (even though the Sydney report has not been made).
122. If the operator of the ship or aircraft intentionally contravenes subsection 106B(1), they commit an offence punishable by a penalty of 120 penalty units (subsection 106B(2) refers).
123. If the operator of the ship or aircraft contravenes that subsection, they commit an offence punishable by a penalty of 60 penalty units. This is an offence of strict liability (subsections 106B(3) and (4) refer).
124. These offences are equivalent to the offences that apply in respect of obligations to report passengers and crew that are arriving in Australia (see sections 64ACA, 64ACB and 64ACD of the Customs Act).
125. In its response to the Scrutiny of Bills Committees comments on the Law and Justice Legislation Amendment (Application of Criminal Code) Bill 2000, the Attorney-General stated that a number of factors were taken into account in deciding whether an offence should be an offence of strict liability. One of those factors was whether the offence is wholly regulatory in nature including failure to comply with reporting or record-keeping requirements. Since the offence of failing to report persons expected to be on board a ship or aircraft is regulatory in nature it is proposed it be a strict liability offence.
126. Section 106C sets out the requirements for the second tier of reports.
127. Again this obligation will apply to prescribed ships and aircraft at all places that the ship or aircraft will visit in Australia as part of an international journey departing Australia.
128. The second tier of reports must be made between 10 and 4 hours before the ship is due to depart that place. The operator must report to Customs the persons who, at the time the report is made, are expected to be on board the ship or aircraft when it departs from the place (subparagraph 106C(1)(a)(i) refers).
129. This report should only identify those people who were not reported under section 106B (subparagraph 106C(1)(a)(ii) refers). If the operator failed to make the first report under section 106B in respect of a place, they must report all of the people expected to be on board when the ship or aircraft departs the place under this section.
130. Again the report should not include people who have been or will be reported in a report in respect of another place(subparagraph 106C(1)(a)(iii) refers).
131. If there are no additional people who have not been reported to Customs previously, the operator must report to Customs that there are no persons to report (paragraph 106C(1)(b) refers).
132. The same penalties will apply to a contravention of section 106B (subsections 106C(2), (3) and (4) refer).
133. Section 106D sets out the requirements for the third tier of reports.
134. Again this obligation will apply to prescribed ships and aircraft at all places that the ship or aircraft visits in Australia in the course of an international journey.
135. The third tier of reports must be made before the ship or aircraft departs that place. The operator must report to Customs the persons who will be on board the ship or aircraft when it departs from the place (subparagraph 106D(1)(a)(i) refers).
136. This report should only identify those people who were not reported under section 106B or 106C (subparagraph 106D(1)(a)(ii) refers). If the operator failed to make the first and second report under sections 106B and 106C in respect of a place, they must report all of the people who will be on board when the ship or aircraft departs the place.
137. Again the report should not include people who have been or will be reported in a report in respect of another place(subparagraph 106D(1)(a)(iii) refers).
138. If there are no additional people to report to Customs, the operator must report to Customs that there are no persons to report (paragraph 106D(1)(b) refers).
139. The same penalties that apply in respect of a contravention of section 106B will apply to a contraventionof section 106D (subsections 106D(2), (3) and (4) refer).
140. Subdivision B sets out an alternative reporting regime for persons expected to be on board a ship or aircraft when it departs a place in Australia as part of an international journey.
141. Customs is currently trialling the use of biometrics to assist the processing of people who are leaving Australia. The current technology is known as Smartgate. Subdivision B covers the reporting requirements that will be in place if and when Smartgate becomes operational.
142. It is expected that when Smartgate commences, operators will be required to report to Customs passengers at the time that they check-in for their flight or voyage. Crew may be required to be reported a certain time before the ship or aircraft departs.
143. Subsection 106E(1) provides that Subdivision B applies to a ship or aircraft of a kind prescribed by regulations made for the purposes of that section, if the ship or aircraft is due to depart:
- 143.1.1.
- 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
- 143.1.2.
- from a place in Australia in the course of such a journey.
144. Subsection 106E(2) sets out those matters that may be used to specify the kind of ships and aircraft in the regulations, in the same terms as subsection 106A(2).
145. When the kinds of ships and aircraft are prescribed, they will be a different class than those prescribed for the purposes of Subdivision A. That is, those operators required to report under this Subdivision will not be required to provide the three tiers of reports required under Subdivision B.
146. New section 106F will require the operator of a ship or aircraft subject to these requirements to report to Customs, in accordance with Subdivision C:
- 146.1.1.
- not later than the prescribed period or periods before the ship's or aircraft's departure from a place; or
- 146.1.2.
- at the time of a prescribed event or events; or
- 146.1.3.
- at the prescribed time or times.
147. As explained above, it is expected that the operator will be required to report passengers at the time that they check-in and crew not later than a period before the ship's or aircraft's departure.
148. Subdivision C sets out how reports are to be made to Customs
149. Subsection 106G(1) provides that a report made under Division 1 of Part VB must be made electronically or using a format or method approved by the CEO.
150. Under section 4 of the Customs Act, electronic, in relation to a communication, means the transmission of the communication by computer. If the CEO approves a system for the purposes of making these reports, and a person wants to communicate such reports electronically to Customs, they will have to do so using the approved system.
151. If the person does not want to transmit the report by computer, subparagraph 106G(1)(a)(ii) allows a report to be made to Customs using a format or method approved by the CEO. Since Customs requires information about people on board a ship or aircraft to be provided electronically in order to process it, it is expected that the CEO will allow the information to be provided under this subparagraph on a disk or cd-rom.
152. An approval of a system, format or method is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 (subsection 106G(5) refers). The CEO may approve different systems, formats or methods for different kinds of operators or in different circumstances (subsection 106G(4) refers).
153. Reports made under these provisions must contain the information set out in an approved statement. Section 4A of the Customs Act provides that an approved statement is a disallowable instrument.
154. Subsection 106G(2) provides that an operator who reports electronically under paragraph 106G(1)(a)(i) is taken to have reported to Customs when Customs sends an acknowledgement to the person who made the report (as identified in the report). This mirrors other reporting provisions in the Customs Act (see subsections 64ACE(2) and 119D(3)).
155. An operator who reports using a format or method approved under subparagraph 106G(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. For example, if the CEO approves the giving of reports on cd-rom, the operator will be taken to have reported when the cd-rom is given to a relevant Customs officer (subsection 106G(3) refers).
156. Section 106H sets out how a report is to be made if a system approved by the CEO is not working and the operator is not able to use the format or method approved by the CEO under subparagraph 106G(1)(a)(ii). In such circumstances the report must be made by document in writing, be in an approved form, contain the information required by the approved form, be signed in the manner specified by the approved form and be communicated to Customs by sending it to an officer doing duty in relation to the reporting of ships or aircraft.
157. Such report will be taken to be made when it is sent or given to Customs in the prescribed manner.
158. Section 106I allows the CEO to approve different statements and forms for reports:
- 158.1.1.
- made by different kinds of operators; or
- 158.1.2.
- relating to different kinds of ships or aircraft; or
- 158.1.3.
- made in different circumstances; or
- 158.1.4.
- made in relation to different classes of person expected to be on board a ship or aircraft.
159. It is expected that initially different reports will be needed for international passengers, domestic passengers and crew.
160. When Smartgate commences, it is possible that a different report will be required under Subdivision B.
Division 2 sets out the questioning and document production provisions.
161. Section 106J provides that a Customs officer may require the operator of a ship or aircraft that is due to depart Australia, is departing Australia, or has departed Australia to answer questions about the passengers or crew members who are expected to be on board, or who are on board or were on board, the ship or aircraft. An officer may also require the operator to produce documents about those same people.
162. This will replace Customs power to ask questions about passengers and crew members before a Certificate of Clearance is issued, so that those questions may be asked at any time and documents may also be required at any time.
163. It is proposed to rely on sections 243SA and 243SB of the Customs Act which will make it an offence to fail to answer a question or produce a document that an officer, pursuant to this power requires the person to answer or produce.
164. This provision contains a penalty of 30 penalty units. Section 243SC provides that a person who is required to answer a question under section 243SA or produce a document under section 243SB does not have to answer that question or produce the document if to do so would tend to incriminate the person or result in further attempts to obtain evidence that would tend to incriminate the person. A person may waive his or her rights under section 243SC.
165. This item amends paragraph 118(4)(a) of the Customs Act as contained in the Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001. This paragraph requires the master and owner of a ship or the pilot and owner of an aircraft that is departing Australia to answer certain questions, including about the passengers and crew.
166. This power will be replaced with an extended power as described above and hence this power in respect of passengers and crew will be repealed.
167. This item amends paragraph 119(1)(b) which requires the master and owner of a ship or the pilot and owner of an aircraft that is departing Australia to answer certain questions, including about passengers and crew.
168. This power will be replaced with an extended power described below and hence this power in respect of passengers and crew will be repealed.
169. Subsection 243SA(1) makes it an offence to fail to answer a question that an officer, pursuant to a power conferred on the officer by the Customs Act (other than subsection 214AH(2)), requires the person to answer.
170. Item 4 excludes questions asked under section 106J from the operation of subsection 243SA(1) as they will be covered by subsection 243SA(3) (see item 6 below).
171. Item 5 also amends subsection 243SA(1) to exclude from its operation new section 106J. This item will only operate if new section 106J commences after new section 195A.
Item 6 - At the end of section 243SA
172. Item 5 inserts subsection 243SA(3) into the Customs Act to provide that if:
- 172.1.
- an officer requires a person to answer a question under section 106J;
- 172.2.
- the officer informs the person of the officer's authority to ask the question; and
- 172.3.
- the officer informs the person that it may be an offence not to answer the question;
the person must not fail to answer the question.
173. The offence is subject to a penalty of 30 penalty units. This is not a strict liability offence.
174. Paragraph (a) is the same as subsection 243SA(1). Paragraphs (b) and (c) contain new requirements that will apply in relation to questions asked under section 106J. This will also apply to new section 195A when it commences.
Item 7 - Paragraph 243SA(3)(a)
175. This item inserts a reference to new section 106J into paragraph 243SA(3)(a). This item will only operate if new section 106J commences after new section 195A.