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Import Processing Charges Amendment Bill 1999
Bills Digest No. 173 1998-99
Import Processing Charges Amendment Bill 1999
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal s tatus. Other sources should be consulted to determine the subsequent official status of the Bill.
Import Processin g Charges Amendment Bill 1999
Commencement: The amendments relating to definitions, the new screening charge and the saving provision commence on a date to be fixed by proclamation, or failing that, six months after the Bill receives Royal Assent. The amendment clarifying the definition of a ‘line’ in a cargo report is to take effect retrospectively from 26 February 1997 which was the day on which the Import Processing Charges Act 1997 received Royal Assent.
The reader is also referred to the Bills Digest on the Customs Amendment Bill (No. 2) 1999.
In 19 97 the Government introduced charges to recover the Australian Customs Service's costs of processing goods imported into Australia by air or sea. A screening charge for goods (other than prescribed goods) that are transported to Australia in the same ship or aircraft, and have a value not exceeding $250, was imposed by the Import Processing Charges Act 1997 and commenced on 26 February 1997.
Section 64ABC of the Customs Act 1901 (the Customs Act) states that a person is liable to pay a screening charge when they communicate to the Australian Customs Service (ACS) a documentary report or an electronic report that:
- is, or is part of, a cargo report of goods intended to be, or that have been, unloaded from an aircraft at a particular airport, and
- relates, in whole or part, to a consignment of goods that does not require entry(1), and
- provides particulars of the consignment, and
- identifies a person who has a beneficial interest in the goods in the consignment.
The rate of the screening charge is $2.40 for each l ine of the documentary or electronic report that is, or is part of, a cargo report, or a prescribed amount not exceeding $3.60.
Amendments proposed by the Customs Amendment Bill (No. 2) 1999 will introduce a new High Volume Low Value Reporting Scheme for bulk consignments of documents, such as company reports, financial statements, legal documents and personal correspondence, and for mail order consignments, where the value of each consignment does not exceed $250 and where the customs duty and sales tax payable does not exceed $50.
This Bill should be read in conjunction with the Customs Amendment Bill (No. 2) 1999.
Item 1 of Schedule 1 attempts to clarify the intention of the Import Processing Charges Act 1997 (the Principal Act) by referring to both a documentary report and an electronic report in the definition of a ‘line’ in a cargo report. This amendment is to take effect retrospectively from 26 February 1997 which was the day on which the Principal Act received the Royal Assent.
Items 2-5 add new definitions of ‘low value cargo’, ‘mail-order house’, ‘reportable document’ and ‘special reporter’ to conform with the definitions used in proposed new section 63A of the Customs Act.
Item 6 replaces Section 7 of the Principal Act and introduces the new screening charge for reports made under the new registration and reporting scheme proposed by the Customs Amendment Bill (No. 2) 1999. The amount of the new screening charge will be $45 for bulk consignments of low value sent from a mail-order house, or for low value consignments of reportable documents [ new paragraphs 7(b) and (c) ].
The purpose of new paragraph 7(a) is to ensure that a charge of $2.40 per line of a cargo report (or a prescribed amount not exceeding $3.60) will continue to apply unless, either
- new paragraphs 7(b), (c) or (d) of the Principal Act apply, or
- the exemption in new subsection 64ABC(1A) of the Customs Act (namely, reports of low value cargo made by special reporters in accordance with the prescribed reporting requirements) is met.
The re would appear to be a drafting error in this section of the Bill. New paragraphs 7(a), (b), (c) and (d) are alternatives and so the word ‘and’ at the end of paragraphs 7(a), (b) and (c) should read ‘or’.
The amount of the screening f ee should be related to, and be commensurate with the work involved by the ACS in providing the screening services. There have been a number of cases in the High Court and the Federal Court on this matter. In The General Practitioners Society in Australia and Others v. The Commonwealth of Australia(2) the High Court held that the fee provided by section 16C(2) of the Health Insurance Act 1973 was not a tax but a fee for services rendered, being the price which a medical practitioner seeking to become an 'approved' pathology practitioner must pay for having the application processed by the Minister.
In Air Caledonie International v. The Commonwealth(3) the High Court held that the fee which section 34A of the Migration Act 1958 purported to be exacted for immigration clearance of passengers was a tax, at least in so far as it related to passengers who were Australian citizens. The fee was to be collected by the international air operator who was made liable to pay it to the Commonwealth regardless of whether the fee had been or could be actually collected from the passenger. The fee had no relationship to the actual cost of processing.
On the criteria of these cases, if the charges for screening bulk consignments of cargo of low value are excessive in relation to Customs' costs in processing the cargoes, then the screening charges could be considered exactions in the nature of a tax. However, the amount of the fee could be designed so as to avoid this possible constitutional pitfall.(4)
- Section 6 8 of the Customs Act requires all goods imported into Australia to be entered. There are a number of exceptions to this requirement. Under paragraph 68(1)(f) of the Customs Act, if the goods are valued at less than $250, an entry is not required. The ACS screens the cargo report to identify consignments that may be released without an entry.
- (1979-80) 145 CLR 532.
- (1988) 165 CLR 462 F.C. 88/056.
- For a fuller discussion of these constitutional issues the reader is referred to:
Pulle, Bernard, 'Proposed c hanges to financing aged care: some tax and constitutional issues: possible implications of the 10 February 1997 Exposure Draft of the Aged Care Bill 1997', Current Issues Brief , No. 28 1996-97, p. 14-17.
6 May 1999
Bills Di gest Service
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