Senate

Explanatory Memorandum

(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Christopher Martin Ellison)

Outline and financial impact statement

1. The purpose of this Bill is to amend the Customs Act 1901 (the Customs Act) to:

1.1.1.

allow a Customs officer to detain a person at a designated place where the officer suspects that the person has committed or is committing a serious Commonwealth offence or a prescribed State or Territory offence;

1.1.2.

allow a Customs officer to detain a person at a designated place who is subject to a warrant relating to a Commonwealth offence or a prescribed State or Territory offence or is on bail subject to a condition that they do not leave Australia and the bail relates to a Commonwealth offence or a prescribed State or Territory offence;

1.1.3.

allow a Customs officer to ask people who are in section 234AA places certain questions in order to ascertain whether the person is authorised to be in the place;

1.1.4.

require operators of certain departing ships and aircraft to report to Customs the people on board the ship or aircraft;

1.1.5.

allow a Customs officer to stop a conveyance in a Customs place to check for appropriate documentation relating to goods under Customs control on or in the conveyance;

1.1.6.

allow the Chief Executive Officer of Customs to take into account certain security related matters when appointing or revoking the appointment of a port;

1.1.7.

require cargo reports to be provided before a ship or aircraft arrives at its first port or airport in Australia; and

1.1.8.

require impending arrival, cargo and passenger reports for ships to be provided before the start of a prescribed period.

Financial impact statement

2. The Bill has no financial impact.

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.

Schedule 1 - detaining persons for purposes of law enforcement co-operation

Item 1 - After Division 1B of the Part XII

39. Item 1 inserts new Division 1BA into Part XII of the Customs Act which will allow Customs officers to detain a person in two circumstances:

39.1.1.

where an officer suspects on reasonable grounds that the person has committed or is committing a serious Commonwealth offence or a prescribed State or Territory offence (new section 219ZJB); or

39.1.2.

where there is a warrant for the arrest of the person in relation to a Commonwealth offence or a prescribed State or Territory offence or the person is on bail subject to a condition that the person not leave Australia and the bail relates to a Commonwealth offence or a prescribed State or Territory offence (new section 219ZJN).

Subdivision A - Preliminary

New section 219ZJA

40. New section 219ZJA contains definitions for the purposes of Division 1BA as follows.

41. Commonwealth offence has the same meaning as in Part 1C of the Crimes Act 1914 (the Crimes Act). Currently, that is an offence against a law of the Commonwealth, other than an offence that is a service offence for the purposes of the Defence Force Discipline Act 1982.

42. This definition is proposed to be amended by item 9 of Schedule 3 to the Australian Federal Police and Other Legislation Amendment Bill 2003. It would be amended to include a State offence that has a federal aspect. Whether a State offence has a federal aspect would be determined in accordance with section 3AA of the Crimes Act (see item 6 of Schedule 3 to that Bill).

43. Frisk search has the same meaning as in Division 1 of Part XII of the Customs Act. This means:

43.1.

a search of a person conducted by quickly running the hands over the person's outer garments; and

43.2.

an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.

44. Ordinary search has the same meaning as in Division 1 of Part XII of the Customs Act. This means a search of a person or of articles in the possession of a person that may include:

44.1.

requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes or hat; and

44.2.

an examination of those items.

45. Prescribed State or Territory offence means an offence prescribed for the purposes of new section 219ZJAA.

46. Serious Commonwealth offence has the same meaning as in section 15HB of the Crimes Act. This means an offence against a law of the Commonwealth:

46.1.

that involves theft, fraud, tax evasion, currency violations, illegal drug dealings, illegal gambling, obtaining financial benefit by vice engaged in by others, extortion, money laundering, perverting the course of justice, bribery or corruption of, or by, an officer of the Commonwealth, an officer of a State or an officer of a Territory, bankruptcy and company violations, harbouring of criminals, forgery including forging of passports, armament dealings, illegal importation or exportation of fauna into or out of Australia, espionage, sabotage or threats to national security, misuse of a computer or electronic communications, people smuggling, slavery, piracy, the organisation, financing or perpetration of sexual servitude or child sex tourism, dealings in child pornography or material depicting child abuse, importation of prohibited imports or exportation of prohibited exports, or that involves matters of the same general nature as one or more of the foregoing or that is of any other prescribed kind; and

46.2.

that is punishable on conviction by imprisonment for a period of 3 years or more.

New section 219ZJAA

47. New subsection 219ZJAA(1) will allow State or Territory offences to be prescribed for the purposes of new Division 1BA. Those offences must be punishable on conviction by imprisonment for a term of at least 3 years. This will ensure that the power to detain will not be used to detain a person suspected of committing minor offences, eg parking infringements. It is expected that serious offences such as murder would be prescribed for this purpose. This also mirrors the imprisonment restriction in the definition of 'serious Commonwealth offence' in the Crimes Act.

48. New subsection 219ZJAA(2) provides that an offence must not be prescribed unless:

48.1. the Attorney-General of a State or Territory and the Minister responsible for the administration of that State's or Territory's police force (the Police Minister) have jointly requested the Minister that the offence be prescribed for the purposes of new Division 1BA; or

48.2. if the Attorney-General of the State or Territory is also the Police Minister of the State or Territory - the Attorney-General has requested the Minister that the offence be prescribed for the purposes of that Division.

49. This will ensure that Customs is focused on those offences that the relevant State or Territory Police Minister and Attorney-General consider serious enough that a person should be prevented from leaving a designated place (eg airport, port etc) if they have committed, or are committing, that offence, are on bail, subject to a condition that they not leave Australia, for that offence or are subject to an arrest warrant in respect of that offence.

Subdivision B - Powers to detain

New section 219ZJB

50. New subsection 219ZJB(1) allows a Customs officer to detain a person if the officer suspects on reasonable grounds that the person who is in a designated place has committed or is committing a serious Commonwealth offence or a prescribed State or Territory offence.

51. Designated place is defined in subsection 4(1) of the Customs Act to mean:

51.1.

a port, airport or wharf; or

51.2.

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

51.3.

a boarding station; or

51.4.

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

51.5.

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

51.6.

a section 234AA place that is not a place, or a part of a place, referred to above.

52. The power to detain may be exercised in respect of both incoming and outgoing passengers or crew at a designated place. The officer may form the suspicion based on answers given to questions asked by an officer, by things found on the person or in the persons baggage that have been searched under Division 1B of Part XII or section 186 of the Customs Act.

53. The suspicion may be based on information provided by another agency.

54. New subsection 219ZJB(2) requires the officer to advise a police officer of the person's detention as soon as practicable after detaining the person. The officer must then ensure that the person is delivered, as soon as practicable, into the custody of a police officer to be dealt with according to law (new subsection 219ZJB(3) refers). This may include the police officer arresting the person or questioning the person.

55. New subsection 219ZJB(4) provides that if an officer who is detaining a person under section 219ZJB ceases to have reasonable grounds to suspect that the person has committed, or was committing, a serious Commonwealth offence or a prescribed State or Territory offence, the officer must release the person from detention immediately.

New section 219ZJC

56. Subsection 3Y(1) of the Crimes Act provides that a "constable may, without warrant, arrest a person who has been released on bail if the constable believes on reasonable grounds that the person has contravened or is about to contravene a condition of a recognisance on which bail was granted to the person in respect of an offence, even though the condition was imposed in a State or Territory other than the one in which the person is."

57. It is often a condition of a person's bail that they not leave Australia. If a person is about to contravene such a condition, ie is about to leave Australia, they may be arrested by a constable under subsection 3Y(1).

58. Section 3 of the Crimes Act defines 'constable' to mean a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory. Customs officer are not constables for the purposes of the Crimes Act.

59. Hence if a person is about to leave Australia in contravention of his or her bail conditions, a Customs officer cannot arrest the person.

60. Similarly, Customs officers have no powers to arrest under a warrant for the arrest of the person. Therefore, if a person the subject of a warrant is about to leave Australia, Customs officers cannot prevent their departure.

61. Further a person who is subject to an arrest warrant may arrive in Australia and a Customs officer is not able to prevent the person's departure from their place of arrival, eg an airport, before a police officer arrives to arrest the person.

62. Under new section 219ZJC, an officer of Customs may detain such persons if the person is in a designated place, the officer has reasonable grounds to suspect that the person intends to leave the designated place and there is a warrant for the arrest of the person in relation to a Commonwealth offence or a prescribed State or Territory offence or the person is on bail subject to a condition that the person not leave Australia and the bail relates to a Commonwealth offence or a prescribed State or Territory offence.

63. Before an officer may detain a person, the officer must have reasonable grounds to suspect that the person intends to leave the designated place. In the case of people leaving the designated place on a journey leaving Australia, these grounds will usually include that the person has a ticket for a flight or voyage that is leaving Australia, the person has checked in for that flight or voyage and has come to the Customs barrier for outwards processing.

64. The warrant or bail must be in relation to a Commonwealth offence or a prescribed State or Territory offence.

65. Once the person has been detained, the Customs officer must advise a police officer (as defined in the Customs Act) of the person's detention as soon as practicable after detaining the person (subsection 219ZJC(2) refers).

66. Subsection 219ZJC(3) provides that the person is to be delivered, as soon as practicable, into the custody of a police officer to be dealt with according to law. If the person is on bail and was about to breach a bail condition, they will be arrested under section 3Y of the Crimes Act. If there was a warrant for the person's arrest, they will be arrested pursuant to that warrant.

67. Customs will be notified by police forces or other agencies that a person is on bail and it is a condition of that bail that a person not leave Australia or that there is a warrant for a person's arrest.

Subdivision C - Matters affecting detention generally

New section 219ZJD

68. This section inserts a power to search a person who has been detained under new Division 1BA under either section 219ZJB or section 219ZJC. Subsection 219ZJD(1) provides that an officer may, in relation to such a person,

68.1.

conduct either a frisk search or an ordinary search of the person;

68.2.

search the clothing that the person is wearing and any property under the person's immediate control, if the officer believes on reasonable grounds that it is necessary to do so

for the purpose of:

68.3.

determining whether there is concealed on the person, or in the person's clothing or property, a weapon or other thing capable of being used to inflict bodily injury or to assist the person to escape from detention; or

68.4.

in the case of a person detained under section 219ZJB, preventing the concealment, loss or destruction of evidence of, or relating to the offence concerned.

69. Subsection 219ZJD(2) provides that the search must be conducted as soon as practicable after the person is detained and by an officer of the same sex as the detained person.

70. Subsection 219ZJD(3) provides that an officer who conducts a search under this section may seize;

70.1.

any weapon or thing capable of being used to inflict bodily injury or to assist the person to escape from detention; and

70.2.

anything that the officer has reasonable grounds to believe is a thing:

a.

with respect to which an offence has been committed; or

b.

that will afford evidence of the commission of an offence; or

c.

that was used, or intended to be used, for the purposes of committing an offence.

71. Subsection 219ZJD(4) provides that an officer who seizes a weapon or other thing under subsection (3) must ensure that it is delivered to the police officer into whose custody the person is delivered under subsection 219ZJB(3).

72. The search and seizure powers set out in this section are similar to the search powers that are conferred on protective service officers.

New section 219ZJE

73. New subsection 219ZJE(1) provides that, without limiting subsection 4(4) of the Customs Administration Act 1985, the Chief Executive Officer of Customs may give directions in writing under that subsection:

73.1.

identifying places at which an officer is permitted to detain a person under new Division 1BA (whether by their character under this Act, the amenities available at the places or any other matters; and

73.2.

specifying such other matters relating to the detention of persons under new Division 1BA as the CEO considers appropriate.

74. Subsection 219ZJE(2) provides that a direction given for the purposes of subsection (1) is a disallowable instrument for the purposes of section 46A of the Act Interpretation Act 1901.

New section 219ZJF

75. New subsection 219ZJF(1) provides that an officer who detains a person under new Division 1BA must inform the person, at the time of the detention of the person, of the reason for the person's detention. However, subsection 219ZJF(2) provides that subsection (1) does not apply if the detained person, by their own actions, makes it impracticable for the officer to inform the person of the reason.

76. New subsection 219ZJF(3) provides that an officer exercising power under new Division 1BA in relation to a person must produce identification that he or she is an officer when requested by the person to do so.

New section 219ZJG

77. New subsection 219ZJG(1) provides that an officer exercising powers under new Division 1BA in relation to a person must not use more force, or subject the person to greater indignity, than is reasonable and necessary.

78. New subsection 219ZJG(2) provides that, without limiting the generality of subsection (1), an officer must not, in detaining or attempting to detain a person under Division 1BA or preventing or attempting to prevent a detained person from escaping from detention under Division 1BA, do an act likely to cause death or grievous bodily harm to the person. This is qualified by the circumstance where the officer believes on reasonable grounds that doing the act is necessary to protect life or prevent serious injury to the officer or another person.

New section 219ZJH

79. Subsection 219ZJH(1) provides that while a person is being taken to a particular place under Division 1BA (except under subsection (2)), the person is regarded as being detained under this Division.

80. Subsection 219ZJH(2) provides that if:

80.1.1.

a person detained under Division 1BA is released at any place other than the place at which he or she was first detained; and

80.1.2.

the person so requests;

the person must immediately be returned free of charge to the place of the first detention.

81. For example, if the person is detained at a wharf, taken to the nearest Customs House as this is the place that the CEO has directed that such people be taken and then released because the officer no longer has the relevant suspicion, the person may request that he or she be returned to the wharf.

Section 219ZJI

82. This section provides that section 219ZD of the Customs Act applies to an officer detaining a person under new Division 1BA as if the detention under the new Division were detention under Division 1B of Part XII of the Customs Act.

83. Section 219ZD of the Customs Act applies to a person who has been detained for a personal search and who, because of inadequate knowledge of the English language or for any other reason, is unable to communicate orally with reasonable fluency in the English language. In these circumstances, an officer must take all reasonable steps to ensure that a person competent to act as interpreter is present at all times during the person detention and acts as interpreter for the purposes of communication.

Schedule 2 - questions passengers etc and persons found in restricted places

Customs Act 1901

Item 1 - After section 195

84. Section 234A of the Customs Act prohibits people (except certain people such as passengers, crew, authorised persons) from entering, or being in, a section 234AA place.

85. Subsection 234AA(1) of the Customs Act sets out the places unauthorised people must not enter. The places are:

85.1.

places to be used by officers:

a.

for questioning, for the purposes of this Act or of any other law of the Commonwealth, passengers disembarking from or embarking on a ship or aircraft; or

b.

for examining, for such purposes, the personal baggage of such passengers; or

c.

as a holding place for such passengers; or

85.2.

certain areas of airports as notified in the Gazette by the Chief Executive Officer of Customs.

86. These places are defined in section 4 of the Customs Act to be 'section 234AA places'.

87. Section 234ABA provides that a Customs officer may direct a person to leave a section 234AA place if the officer reasonably believes that the person is in that place in contravention of section 234A.

88. However, Customs officers have no power to require a person who is in a section 234AA place to tell the officer who they are and why they are in the place particularly in order to determine if they are or are not authorised to be in the place.

89. Item 1 inserts new section 195A into the Customs Act to allow a Customs officer to ask and require a person in a section 234AA place to provide:

89.1.

the person's name;

89.2.

the person's reason for being in the section 234AA place; and

89.3.

evidence of the person's identity.

90. This will allow the Customs officer to decide whether they should direct the person to leave under section 234ABA.

91. 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.

92. 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.

Item 2 - Subsection 243SA(1)

93. 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.

94. Item 2 excludes questions asked under section 195A from the operation of subsection 243SA(1) as it will be covered by subsection 243SA(3) (see item 4 below).

Item 3 - Subsection 243SA(2)

95. Item 3 also amends subsection 243SA(1) to exclude questions asked under section 195A. Item 1 of Schedule 3 to this Bill will insert a power to ask operators about departing passengers and crew (new section 106J refers). Section 106J will also be excluded from the operation of subsection 243SA(1) and instead be subject to subsection 243SA(3).

Item 4 - At the end of section 243SA

96. Item 4 inserts subsection 243SA(3) into the Customs Act to provide that if:

96.1.

an officer requires a person to answer a question under section 195A;

96.2.

the officer informs the person of the officer's authority to ask the question; and

96.3.

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.

97. The offence is subject to a penalty of 30 penalty units. This is not a strict liability offence.

98. 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 195A. It will also apply to questions asked under section 106J when it commences.

Item 5 - Paragraph 243SA(3)(a)

99. Item 5 amends paragraph 243SA(3)(a) so that questions asked under section 195A are subject to subsection 243SA(3).

Commencement of items 2 to 5 of Schedule 2 and items 4 to 7 of Schedule 3

100. Item 1 of Schedule 3 to this Bill inserts new section 106J into the Customs Act which also contains a power to ask questions. It will also be excluded from the operation of subsection 243SA(1) and subject instead to new subsection 243SA(3) (ie an officer asking questions under new section 106J will be required to inform the person being questioned of the officer's authority to ask the question and that it may be an offence not to answer the question).

101. New section 106J will commence on Proclamation and new section 195A will commence on the 28th day after the Royal Assent. Hence, it is possible that new section 106J could commence before new section 195A or vice versa. The commencement of items 2 to 5 and items 4 to 7 of Schedule 3 take this into account as follows.

New section 195A commences before, or at the same time as, new section 106J

102. If new section 195A commence before, or at the same time as, new section 106J, items 3 and 5 of Schedule 2 and items 4 and 6 of Schedule 3 will not commence at all. Items 2 and 4 of Schedule 2 and items 5 and 7 of Schedule 3 will:

102.1.1.

exclude new section 195A from subsection 243SA(1) when that section commences (item 2 of Schedule 2);

102.1.2.

insert new subsection 243SA(3) which will apply to new sections 195A when that section commences (item 4 of Schedule 2);

102.1.3.

excludes new section 106J from subsection 243SA(1) when that section commences (or immediately after section 195A commences if all the sections commence at the same time) (item 5 of Schedule 3); and

102.1.4.

adds a reference to new section 106J to subsection 243SA(3) when new section 106J commences (or immediately after section 195A commences if all the sections commence at the same time) (item 7 of Schedule 3).

New section 195A commences after new section 106J

103. If new section 195A commences after new section 106J, items 2 and 4 of Schedule 2 and items 5 and 7 of Schedule 3 will not commence at all. Items 2 and 5 of Schedule 2 and items 4 and 6 of Schedule 3 will:

103.1.1.

exclude new section 106J from subsection 243SA(1) when that section commences (item 4 of Schedule 3);

103.1.2.

insert new subsection 243SA(3) which will apply to new section 106J when that section commences (item 6 of Schedule 3);

103.1.3.

exclude new sections 106J and 195A from subsection 243SA(1) when new section 195A commences (item 3 of Schedule 2); and

103.1.4.

include new section 195A in subsection 243SA(3) when that section commences (item 5 of Schedule 2).

Schedule 3 - reports on departing passengers and crew

Customs Act 1901

Item 3 - After Part VA

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.

Subdivision A

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.

New section 106A

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.

New section 106B

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.

New section 106C

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).

New section 106D

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).

Subdivision B

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.

New section 106E

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.

New section 106F

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.

Subdivision C

148. Subdivision C sets out how reports are to be made to Customs

New section 106G

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).

New section 106H

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.

New section 106I

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

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.

Item 2 - Paragraph 118(4)(a)

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.

Item 3 - Paragraph 119(1)(b)

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.

Item 4 - Subsection 243SA(1)

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).

Item 5 - Subsection 243SA(1)

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.

Schedule 4 - stopping conveyances in customs places

Customs Act 1901

176. Section 197 of the Customs Act allows a Customs officer to require a conveyance that is about to leave a Customs place to stop and to check to establish that there is appropriate documentation authorising the movement from the Customs place of any goods in or on the conveyance that are subject to the control of Customs.

177. A customs place is defined in section 183UA and includes:

177.1.1.

a place owned or occupied by Customs; or

177.1.2.

a port, airport or wharf that is appointed, and the limits of which are fixed, under section 15; or

177.1.3.

a place that is the subject of a permission under subsection 58(2); or

177.1.4.

a boarding station that is appointed under section 15; or

177.1.5.

a place described in a depot licence that is granted under section 77G; or

177.1.6.

a place described in a licence for warehousing goods that is granted under subsection 79(1); or

177.1.7.

a place that is approved, in writing, by the CEO as a place for the examination of international mail; or

177.1.8.

a section 234AA place that is not a place, or a part of a place, referred above.

178. A conveyance is defined in section 183UA as an aircraft, railway rolling stock, vehicle or vessel of any kind.

179. When section 197 was inserted into the Customs Act, Customs focus was on ensuring that imported goods that are subject to Customs control did not leave a Customs place into home consumption without an appropriate authority to deal and without duty having been paid on the goods or a movement permission having been granted.

180. Customs is increasing its focus on goods being exported, that is, goods coming into a Customs place rather than being removed from such a place. When the exports provisions of the Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001 commence, most goods being exported will need to be entered for export before they arrive at the wharf or airport of export. Further the arrival of such goods at a wharf or airport will need to be reported to Customs by the operator of the wharf or airport.

181. Whilst Customs officers may stop a conveyance leaving a Customs place for the purposes set out in section 197 there is no power to stop a conveyance that has entered a Customs place to ensure that there is appropriate documentation relating to the goods.

Item 1 - Subsection 197(1)

182. Item 1 amends subsection 197(1) so that Customs officers will be able to stop a conveyance that is in a Customs place.

Item 2 - Paragraph 197(1)(b)

Item 2 amends paragraph 197(1)(b) so that the power to check for appropriate documentation is not limited to documentation authorising the movement from the Customs place. The officer will be able to check that there is documentation authorising the movement of goods under Customs control.

Item 3 - Paragraph 197(6)(a)

Item 3 amends section 197 which provides that a person in charge of a conveyance commits an offence if:

182.1.

the conveyance is about to leave a Customs place; and

182.2.

an officer of Customs requires the conveyance to stop; and

182.3.

the person does not stop the conveyance as so required.

183. This item amends the paragraph (a) of this section so that it refers to conveyances in a Customs place to reflect the changes that will be made to subsection 197(1).

Schedule 5 - security regulated ports

Customs Act 1901

Item 1 - After subsection 15(1)

184. Section 15 of the Customs Act provides that the Chief Executive Officer of Customs (the CEO) may, by notice in the Gazette, appoint ports, airports, wharves and boarding stations. He or she must fix the limits of ports, airports and wharves. The CEO relies on subsection 33(3) of the Acts Interpretation Act 1901 to revoke such appointments.

185. Under the Customs Act, a ship may only come to a place that is not a port if there is permission for them to do so.

186. The Customs Act does not set out any criteria that the CEO must consider before making an appointment under section 15 or revoking an appointment pursuant to subsection 33(3) of the Acts Interpretation Act 1901 (the AI Act).

187. Item 1 inserts subsection 15(1A) into the Customs Act to allow the CEO to take the following into account when deciding whether to appoint a port:

187.1.1.

whether the port or any part of the port is a security regulated port (within the meaning of the Maritime Transport Security Act 2003 (the MTS Act)); and

187.1.2.

if so - whether the person designated under section 14 of the MTS Act as the port operator has a maritime security plan.

188. This will allow the CEO to take these security related matters into account when appointing or revoking an appointment of a port. Whilst the CEO may take these matters into account, he or she may decide to appoint a port even if it is not a security regulated port or it does not have a plan.

189. Section 13 of the MTS Act provides, in part, that the Secretary of the Department of Transport and Regional Services may, by notice published in the Gazette, declare that areas of a port intended for use either wholly or partly in connection with the movement, loading, unloading, maintenance or provisioning of security regulated ships comprise a security regulated port.

190. Section 42 of the MTS Act requires port operators, port facility operators and prescribed maritime industry participants to have maritime security plans. The Secretary may approve a plan under section 51 of the MTS Act. Section 52 sets out when a maritime security plan comes into force.

191. Under section 14 of the MTS Act, the Secretary may, by notice published in the Gazette, designate a person as the port operator for a security regulated port.

Schedule 6 - cargo reporting

Customs Act 1901

192. There are a number of reports that have to be provided to Customs before a ship that is on an international voyage arrives at a port in Australia. Currently these are the impending arrival, cargo, passenger and crew reports. These reports must be given not later than:

192.1.

if the journey from the last port outside Australia is likely to take not less than 48 hours-48 hours; or

192.2.

if the journey from the last port outside Australia is likely to take less than 48 hours-24 hours;

before the arrival of the ship (for impending arrival, cargo and crew reports) or the time stated in the report made under section 64 to be the estimated time of arrival of the ship (for the passenger reports).

193. When the International Trade Modernisation Act commences a report of the persons engaged to unload the cargo will also have to be provided to Customs before a ship arrives. Under the Trade Modernisation Act, the timing of the reports will also change as follows:

194. Impending arrival, crew and persons engaged to unload cargo reports must be given no later than:

194.1.

if the journey from the last port is likely to take not less than 48 hours-48 hours or such other period as is prescribed by the regulations; or

194.2.

if the journey from the last port is likely to take less than 48 hours:

a.

24 hours or such other period as is prescribed by the regulations; or

b.

if the journey is of a kind described in regulations made for the purposes of this subparagraph-such shorter period as is specified in those regulations.

195. Cargo reports will have to be made not later than:

195.1.

24 hours or such other period as is prescribed by the regulations; or

195.2.

if the journey from the last port 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 impending arrival report.

196. Passenger reports will remain subject to the current requirements as set out above.

197. As part of the Government's maritime security initiatives it is proposed to require some or all of these reports earlier than 48 hours before the ship arrives. Items 1 to 13 amend the current reporting requirements and those that will be inserted into the Customs Act by the International Trade Modernisation Act so that the timing of those reports will be prescribed. It is also proposed to allow voyages of a kind to be prescribed in the regulations and for those voyages the regulations will specify a shorter period in which a report has to be made. For example, this may cover voyages from Papua New Guinea to Australia.

198. It is also proposed to allow regulations to be made prescribing matters of a transitional nature (including prescribing any saving or application provisions) arising out the making of the regulations prescribing the times at which reports have to be made. For example, if the timing was increased to say 96 hours, a ship that was less than 96 hours from arrival would not be covered by the new timing but would continue to be covered by the 48 hours.

199. It is proposed to prescribe these matters, as they can be made with more certainty when the timing requirements are prescribed. It is also expected that this power to make transitional provisions in the regulations would be relied upon when these amendments commence, but also may be relied upon if the prescribed times are ever changed. It is expected that two types of transitional provisions will be prescribed. Depending on the times prescribed there may be a transitional provision for each amendment. The first will apply an amendment to ships arriving at or after a certain time (the transition time). The transition time will depend on the prescribed time. The second will save the existing provision, so that ships arriving before the transition time are subject to the current reporting requirements.

Part 1 - Pre-ITM provisions

Item 1 - Paragraphs 64(1)(a) and (b)

200. Under section 64 of the Customs Act, the master or owner of a ship that is due to arrive at a port in Australia (whether the first port or any subsequent port on the same voyage) must report its impending arrival to Customs.

201. Item 1 replaces paragraphs 64(1)(a) and (b) so that impending arrival reports in respect of a ship will have to be provided:

201.1.

not later than the start of the prescribed period before its arrival; or

201.2.

if the journey is of a kind described in regulations made for the purposes of paragraph 64(1)(b) - not later than such shorter period before its arrival as is specified in those regulations.

202. As a result of this amendment, because the timing of a crew report under section 64ACB is directly linked to the timing of an impending arrival report, a crew report will also be required to be made not later than the start of these prescribed periods.

Item 2 - At the end of section 64

203. Item 2 inserts the transitional regulation making power into existing section 64 of the Customs Act as explained in paragraphs 192 and 193.

Item 3 - Subsections 64AB(2) and (3)

204. Section 74 of the Customs Act provides that the master or owner of a ship or the pilot or owner of an aircraft must not unship goods at a port or airport otherwise than in accordance with a Collector's permit to unship the goods.

205. Subsection 64AB(2) of the Customs Act currently provides that before a Collector's permit is granted in respect of cargo on board a ship that is due to arrive at a port in Australia (whether the first port or any subsequent port on the same voyage), the master or owner of the ship must communicate to Customs a report of the cargo that is intended to be unshipped at the port:

205.1.1.

if the journey from the last port is likely to take not less than 48 hours - not later than 48 hours before ship's arrival at the port; and

205.1.2.

if the journey from the last port is likely to take less than 48 hours - not later than 24 hours before its arrival.

206. Subsection 64AB(3) contains the same requirement for aircraft arriving at an airport in Australia, but the report must be made:

206.1.1.

if the report is made by document - 3 hours after the arrival of the aircraft at the airport;

206.1.2.

if the report is made by computer - 2 hours before the arrival of the aircraft at the airport.

207. For example this means that when cargo is unshipped at a number of ports in Australia, a cargo report for each port is provided to Customs 48 or 24 hours before the ship's arrival at the relevant port. Each report will set out the cargo intended to be unshipped at the port which the report relates to. This means that Customs may not get a complete list of all cargo on the ship until 48 hours before its arrival at the last port. This may be some days after the ship has arrived at its first port in Australia.

208. However, there may be circumstances where a ship will stay in Australian waters for a considerable time between two ports of call, for example whilst waiting for a berth. This means that if it is intended to unship security related cargo (eg weapons) at the second port Customs would not be able to risk assess such cargo until 48 hours before its arrival in that port even though the ship may have been waiting outside the port limits for some longer time, or may have already visited another port with those unreported on board.

209. Item 3 replaces subsection 64AB(2) so that all the cargo on board the ship intended to be unshipped in Australia has to be reported to Customs before the ship arrives at its first port in Australia since it called at any port outside Australia. The timing requirements have also been changed so that the cargo report must be made:

209.1.

not later than the start of the prescribed period before its arrival at the first port; or

209.2.

if the voyage is of a kind described in regulations made for the purposes of paragraph 64B(2)(b) - not later than such shorter period before its arrival as is specified in those regulations.

210. Item 3 also inserts new subsection 64AB(2A) which contains the transitional regulation making power as explained in paragraphs 192 and 193.

211. That item also replaces subsection 64AB(3) so that all cargo on board an aircraft intended to be unshipped in Australia must be reported before the aircraft arrives at its first airport in Australia since it last departed from any airport outside Australia. The timing requirements have not otherwise changed for aircraft.

Item 4 - Subsection 64ACA(5)

212. Section 64ACA of the Customs Act requires the operator of a ship or aircraft to report to Customs the passengers on board the ship or aircraft when it arrives at a port or airport in Australia.

213. Item 4 replaces subsection 64ACA(5) so that the report in respect of a ship must be given not later than:

213.1.

the start of the prescribed period before its arrival; or

213.2.

if the journey is of a kind described in regulations made for the purposes of paragraph 64ACA(5)(b) - such shorter period before its arrival as is specified in those regulations.

214. New section 64ACA(5A) contains transitional regulation making provisions for section 64ACA as explained in paragraphs 192 and 193.

Part 2 - Post-ITM provisions

Item 5 - Paragraph 64(5)(b)

215. Item 5 amends section 64 of the Customs Act as replaced by the International Trade Modernisation Act. New section 64 will require the operator of a ship to report the ship's impending arrival in Australia to Customs.

216. Item 5 replaces new paragraph 64(5)(b) so the impending arrival report of a ship must be provided not later than:

216.1.

the start of the prescribed period before its arrival; or

216.2.

if the journey is of a kind described in regulations made for the purposes of subparagraph 64(5)(b)(ii) - such shorter period before its arrival as is specified in those regulations.

Item 6 - Subsection 64(6)

217. Item 6 inserts the transitional regulation making power, as explained in paragraphs 192 and 193, into section 64 of the Customs Act as inserted by the International Trade Modernisation Act.

Item 7 - Subsection 64AB(2)

218. Section 64AB of the Customs Act will be replaced by new section 64AB as contained in the International Trade Modernisation Act. New subsection 64AB(2) requires cargo reporters who have arranged goods to be carried on a ship or aircraft that are intended to be unloaded at a port or airport to report them to Customs. Again a report is required for each port or airport.

219. Item 7 replaces new subsection 64AB(2) so that the report must be made in respect of all of the cargo that is intended to be unloaded at any port or airport before the ship or aircraft arrives at its first port or airport in Australia since it last departed from a port or airport outside Australia.

Item 8 - Subparagraph 64AB(8)(a)(i)

220. Item 8 amends subparagraph 64AB(8)(a)(i) of the Customs Act as inserted by the International Trade Modernisation Act so that a cargo report will have to be provided no later than the start of the prescribed period. Subparagraph 64AB(8)(a)(ii) already allows shorter periods to be prescribed for voyages of a prescribed kind.

Item 9 - Subparagraph 64AB(8)(a)(ii)

221. Item 9 amends subparagraph 64AB(8)(a)(ii) of the Customs Act as inserted by the International Trade Modernisation Act so that it is clear that for prescribed kinds of voyages the report must be made before the start of the shorter prescribed period.

Item 10 - Paragraph 64AB(8)(a)

222. Item 10 amends new paragraph 64AB(8)(a) so that the report in respect of ships must be made no later than the start of prescribed periods before the estimated time of arrival of the ship at the first port in Australia since it last departed from a port outside Australia. As well as changing this provision so that it refers to the first port in Australia, this item removes the reference to the estimated time of arrival specified in the impending arrival report. This is because, under these new timing requirements, the cargo report may have to be made at the same time as the impending arrival report.

Item 11 - Paragraph 64AB(8)(b)

223. Item 11 amends new paragraph 64AB(8)(b) so that the report in respect of aircraft must be made no later than the start of the prescribed periods before the estimated time of arrival of the aircraft specified in the impending arrival report for the aircraft at the first airport in Australia since it last departed from an airport outside Australia. This makes the wording in respect of aircraft the same as for ships without changing the requirements for aircraft.

Item 12 - After subsection 64AB(8)

224. Item 12 inserts the transitional regulation making power, as explained in paragraphs 192 and 193, into section 64AB of the Customs Act as inserted by the International Trade Modernisation Act.