On 28 November 2012, the Minister for Home Affairs, Jason Clare,
introduced the Customs Amendment (Miscellaneous) Bill 2012
(the Bill) into the House of Representatives. These amendments were
canvassed in the Australian Customs and Border Protection Notice No
2012/67 of 29 November 2012.
The principal amendment creates a new strict liability offence
for bringing 'restricted goods' into Australia. A number of
minor amendments were also introduced which may affect
Part 1 of the Bill creates a new strict liability offence for
bringing 'restricted goods' into Australia. The maximum
penalty being proposed is 1,000 penalty units ($110,000.00).
The coverage of the 'restricted goods' definition will
be determined by regulation and drawn from Customs' list of
prohibited imports. Customs and Border Protection will be empowered
to declare a prohibited import a 'restricted good' without
the need for legislative amendment. As it will be a strict
liability offence, an individual will be deemed to have committed
the offence regardless of fault or intention.
It is already an offence to import prohibited goods per section
233(1)(b) of the Customs Act 1901. The key difference
between the current regime and the proposed regime is the need for
the intention to import. Under the current legislation, if a person
does not intend to import a prohibited item those goods cannot be
seized by Customs. Under the proposed legislation, an official will
be able to seize the restricted goods, regardless of whether or not
the individual intends to import them. This will have ramifications
for crew members who have restricted goods in their personal
In addition to the strict liability defences in the Criminal
Code, the Bill provides an exception. The exception will
permit an individual to bring in restricted goods into Australian
if they have the written permission of the Minister. This
highlights the importance of ensuring goods have not been declared
'restricted goods' by Customs and that written permission
has been obtained if they are.
VALUATION OF IMPORTED GOODS
Earlier this year we published an
article highlighting proposed amendments to the
"Production Assist Costs" provisions of the Customs
Act 1901. Hunt & Hunt also made a submission responding to
the Government's proposed changes.
Part 3 of the Bill before the House seeks to amend how imported
goods are valuated. Currently, costs are determined by the sum
paid. This means that the cost of acquisition is treated as zero
where goods were provided free of change by the buyer to the seller
and the material was acquired free of charge by the buyer from a
third party. If the proposed legislation is successful, costs of
those goods will be determined by their inherent value, not how
much was charged.
REPORTS OF CARGO REPORTERS
Under s64AAB, a cargo reporter must make a report within a
certain period. As per s64AA(3), this reporting period will depend
on the estimatedtime of arrival. Penalties may be awarded under
ss64AAB (6) and (7) if reports are not made within the requisite
Part 6 of the Bill will insert a new exception. A person will
not be prosecuted or issued with an infringement if the report of
the cargo reporters is made after the estimated time of arrival but
before theactual arrival of the ship.
Currently, the CEO of Customs and Border Protection can only
grant or refuse an application for a depot or warehouse licence.
The amendments in Part 5 the Bill will allow the CEO to request
further information from the applicant within a specified period.
Whilst this could have the effect of extending the overall process,
it is likely to decrease the need for numerous re-applications.
Part 8 of the Bill removes the redundant provisions of s64AB,
which refer to the general moratorium period. This period permitted
electronic or paper based reporting whilst the industry
transitioned to the integrated cargo system (ICS). This moratorium
period ended in October 2007 and importers are now required to
submit all cargo reports electronically.
The Bill also includes a number of other minor amendments. These
amendments will affect the importation of self-powered ships and
aircraft; repeal legislation which introduced the accredited client
program; and allow for the designation of Customs controlled areas
on 'crew only' transport.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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