Australia: New Customs Legislation Affecting Cargo Reporters…

(Mondaq – Andrew Hudson, Hunt & Hunt)

On December 3, 2008, the Minister for Home Affairs introduced the new Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 (“Bill”) into Federal Parliament. The Bill delivers on some legislative reform which has been promised for some time. Further, the Bill also introduces a significant additional level of liability for those associated with goods under Customs’ control, possibly in part in response to the recent Federal Court decision in Drew v. Dibb.

The Bill addresses a wide variety of issues. However, the provisions which may be of immediate impact for those in industry are discussed below.

Arrival report and report of stores and prohibited goods
The Bill proposes to amend section 64AA of the Customs Act 1901 (“Act”) relating to time periods for the reporting of the arrival in Australia of ships and aircraft and the reporting of stores and prohibited goods on such ships or aircraft. Customs has agreed to amend the Act to disregard periods which occur on a Saturday. As a result, the “Arrival Report” and the “Stores and Prohibited Goods Report” will now always be required the next business day after the arrival of a ship in Australia.

Form of Infringement Notice
Schedule 2 to the Bill proposes to amend the “form” provisions regarding Infringement Notices so that they must include a statement to the effect that if a person pays the amount referred to in the Notice (and any associated underpaid duty), then a person cannot be prosecuted for the alleged offence and will not be regarded as having been convicted of the offence. Such a statement has been included in practice but the amendment will compel the words.

Timeliness of Cargo Reporting
The Act currently provides for “cargo reports” to be made within a prescribed period before the estimated time of arrival of an aircraft or vessel. That has caused problems for cargo reporters to get the required information in time for that report.

For some time, Customs has adopted the view that while it will monitor compliance of the timeliness of cargo reporting based on the legislative provisions (ie whether the cargo report is late according to estimated time of arrival), it would only take any compliance action if the cargo report was found to be made late if the time to report had been based on actual time of arrival. This is set out in ACN2007/03.

Customs had promised that it was proposing to introduce a legislative change to reflect the practice contained in ACN2007/03. To that end, schedule 3 to the Bill introduces a new subsection 64AB(14A). The effect of the new subsection would be to provide that notwithstanding that a cargo report may be late based on the estimated time of arrival, if the report, when made, was within the prescribed timeframe based on the actual time of arrival, then Customs would not be able to prosecute the relevant cargo reporter or issue an Infringement Notice. However, it does not provide that there has been no offence, leaving other compliance activity available to Customs. Read the complete article at here.