CUSTOMS AMENDMENT REGULATIONS 2003 (NO. 5) 2003 NO. 186

Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS AMENDMENT REGULATIONS 2003 (NO. 5) 2003 NO. 186

EXPLANATORY STATEMENT

STATUTORY RULES 2003 No. 186

Issued by the Authority of the Minister for Justice and Customs

Customs Act 1901

Customs Amendment Regulations 2003 (No. 5)

Section 270 of the Customs Act 1901 (the Act) provides that the Governor-General may make regulations not inconsistent with the Act prescribing all matters which by the Act are required or permitted to be prescribed or as may be necessary or convenient to be prescribed for giving, effect to the Act or for the conduct of any business relating to the Customs.

The purpose of the Regulations is to prescribe the requirements and obligations on producers, manufacturers and exporters of goods exported to Singapore from Australia to comply with the Singapore-Australia Free Trade Agreement (SAFTA).

SAFTA is a wide-ranging agreement that provides Singapore and Australia with more liberal access to each other's goods, services and investments markets. SAFTA was signed on 17 February 2003 and is expected to enter into force early in the 2003-04 financial year subject to Australia's treaty process and the exchange of diplomatic letters.

Amendments to the Act insert new Division 4A of Part VI which contains provisions that apply to the producers, manufacturers and exporters of goods exported to Singapore for which a preferential tariff is to be claimed in Singapore.

New section 126AA of the Act provides that the regulations may prescribe the requirements on exporters relating to the making of declarations concerning, the export of goods to Singapore for which a preferential tariff is to be claimed. These requirements are prescribed in new regulation 105A of the Regulations. They include an obligation on an exporter to make a declaration prior to the export of goods to Singapore that the goods are the produce or manufacture of Australia, in accordance with SAFTA.

In addition, new section 126AB of the Act provides that the regulations may prescribe record keeping obligations that apply in relation to goods that are exported to Singapore and are claimed to be the produce or manufacture of Australia for the purpose of obtaining preferential treatment in Singapore. These obligations may be imposed on the producer, manufacturer or exporter of such goods. They are prescribed in new regulations 105B and 105C of the Regulations and specify the types of records that must be kept, the time for which the records must be kept and the manner in which the records must be kept. These obligations are consistent with record keeping obligations under the Act that currently apply to the owner of goods exported from Australia.

The proposed Regulations will commence on the commencement of Schedule 2 to the Customs Amendment Act (No. 1) 2003. This Schedule inserts new Division 4A of Part V1 of the Act and will commence when SAFTA enters into force.

Details of the Regulations are set out in the Attachment.

0304623A

ATTACHMENT

Customs Amendment Regulations 2003 (No. 5)

Regulation 1 - Name of Regulations

Regulation 1 provides that proposed Regulations are named the "Customs Amendment Regulations 2003 (No. 5)".

Regulation 2 - Commencement

Regulation 2 sets out when the proposed Regulations commence. It provides that these Regulations commence on the commencement of Schedule 2 to the Customs Amendment Act (No. 1) 2003. Schedule 2 inserts new Division 4A of Part VI of the Act and will commence when SAFTA enters into force.

Regulation 3 - Amendment of Customs Regulations 1926

Regulation 3 provides that Schedule 1 amends the Customs Regulations 1926 (the Regulations).

Schedule 1 Amendments

Item 1 - After regulation 105

Item 1 inserts new regulations 105A, 105B and 105C into the Regulations.

New regulation 105A Exports to Singapore - declaration by exporter

New subregulation 105A(1) provides that for section 126AA of the Act, this regulation sets out requirements on an exporter relating to the making of declarations concerning the export of goods to Singapore for which a preferential tariff is to be claimed. These requirements give effect to Articles 11.6 and 11.7 of Chapter 3 of SAFTA.

New subregulation 105A(2) sets out two requirements that must be fulfilled by an exporter that is not the producer or manufacturer of the goods before the exporter makes the declaration under subregulation 105A(3). If the exporter was the applicant for the Certificate of Origin that relates to the goods, the exporter must give the producer or manufacturer of the goods a copy of this Certificate. In addition, the exporter, whether or not the exporter was the applicant for the Certificate of Origin, must also obtain from the producer or manufacturer a written confirmation which must:

(a) specify evidence of the sale of the goods to the exporter;

(b) specify the Certificate of Origin in relation to the goods;

(d) state that the goods comply with the rule specified in that Certificate of Origin;

(e) specify the name, designation and signature of the representative of the producer or manufacturer; and

(f) specify the date that the confirmation was signed by the representative.

As a Certificate of Origin can be valid for multiple shipments over a two year period, an exporter that is not a producer or manufacturer needs confirmation from the producer or manufacturer that a particular shipment of goods meets the terms of the Certificate of Origin.

Subregulation 105A(3) sets out the requirement that the exporter must fulfil before the export of the goods. This requirement applies whether or not the exporter is the producer or manufacturer of the goods. The exporter must make a declaration which must:

(a) state that the goods are the produce or manufacture of Australia, in accordance with SAFTA;

(b) specify the exporter's invoice in relation to the goods;

(d) state that the goods comply with the rule specified in that Certificate of Origin;

(e) specify the name, designation and signature of the representative of the exporter; and

(f) specify the date that the declaration was signed by the representative.

As a Certificate of Origin can be valid for multiple shipments over a two year period, an exporter must declare that a particular shipment of goods meets the terms of the Certificate of Origin.

Subregulation 105A(4) contains two definitions for the purposes of this regulation. Certificate of Origin has the meaning given by section 153UA of the Act, which provides that it means a certificate that complies with the requirements of Annex 2 of SAFTA. SAFTA also has the meaning given by section 153UA of the Act, which provides that it means the Singapore-Australia Free Trade Agreement done at Singapore on 17 February 2003, as amended from time to time.

New regulation 105B Exports to Singapore record keeping (producer or manufacturer)

New subregulation 105B(1) provides that for section 126AB of the Act, this regulation sets out the record keeping obligations that apply in relation to goods that are exported to Singapore and are claimed to be the produce or manufacture of Australia for the purpose of obtaining a preferential tariff in Singapore. These obligations give effect to Article 13 of Chapter 3 of SAFTA. The obligations in this regulation apply to the producer or manufacturer of the goods, whether or not the producer or manufacturer is the exporter of the goods.

New subregulation 105B(2) sets out the records that must be kept by the producer or manufacturer as follows:

(a) records of the purchase of the goods;

(b) evidence that payment has been made for the goods;

(d) evidence of the value of the goods;

(e) records of the purchase of all materials that were purchased for use or consumption in the production or manufacture of the goods;

(f) evidence that payment has been made for those materials;

(g) evidence of the cost of those materials in the forTn sold to the producer or manufacturer;

(h) evidence of the value of those materials;

(i) records of the production or manufacture of the goods;

(j) a copy of the Certificate of Origin in relation to the goods;

(k) if the producer or manufacturer has given a confirmation mentioned in paragraph 105A(2)(b) in relation to the goods - a copy of the confirmation; and

(l) a copy of the declaration mentioned in paragraph 105A(3) if the producer or manufacturer is also the exporter of the goods.

New subregulation 105B(3) sets out the time period for which the records must be kept if the producer or manufacturer is also the exporter of the goods. The records must be kept for a period of at least 5 years starting on the date of the declaration relating to the goods mentioned in subregulation 105A(3).

New subregulation 105B(4) sets out the time period for which the records must be kept if the producer or manufacturer is not the exporter of the goods. The records must be kept for a period of at least 5 years starting on the date of the confirmation relating to the goods mentioned in subregulation 105A(2)(b).

New subregulation 105B(5) sets out the manner in which a record kept under this regulation is to be kept. A record may be kept in any place, whether or not in Australia, and the producer or manufacturer must ensure that:

(a) the record is kept in a form that would enable a determination of whether the goods are the produce or manufacture of Australia in accordance with SAFTA,

(b) if the record is not in English - the record is kept in a place and form that would enable an English translation to be readily made; and

(c) if the record is kept by mechanical or electronic means - the record is readily convertible into a hard copy in English.

Subregulation 105B(6) contains two definitions for the purposes of this regulation. Certificate of Origin has the meaning given by section 153UA of the Act, which provides that it means a certificate that complies with the requirements of Annex 2 of SAFTA. SAFTA also has the meaning given by section 153UA of the Act, which provides that it means the Singapore-Australia Free Trade Agreement done at Singapore on 17 February 2003, as amended from time to time.

New regulation 105C Exports to Singapore - record keeping (exporter that is not producer or manufacturer)

New subregulation 105C(1) provides that for section 126AB of the Act, this regulation sets out the record keeping obligations that apply in relation to goods that are exported to Singapore and are claimed to be the produce or manufacture of Australia for the purpose of obtaining a preferential tariff in Singapore. These obligations give effect to Article 13 of Chapter 3 of SAFTA. The obligations in this regulation apply to the exporter of the goods that is not also the producer or manufacturer of the goods.

New subregulation 105C(2) sets out the records that must be kept by the exporter as follows:

(a) records of the purchase of the goods by the exporter, including evidence that payment has been made for the goods;

(b) evidence of the purchase of the goods by the person to whom the goods are exported, including evidence that payment has been made for the goods;

(d) a copy of the declaration mentioned in subregulation 105A(3); and

(e) a copy of the Certificate of Origin in relation to the goods.

New subregulation 105C(3) sets out the time period for which the records must be kept by the exporter of the goods under this regulation. The records must be kept for a period of at least 5 years starting on the date of the declaration made by the exporter relating to the goods mentioned in subregulation 105A(3).

New subreGulation 105C(4) sets out the manner in which a record kept under this regulation is to be kept. A record may be kept in any place, whether or not in Australia, and the exporter must ensure that:

(a) the record is kept in a form that would enable a determination of whether the goods are the produce or manufacture of Australia in accordance with SAFTA;

(b) if the record is not in English - the record is kept in a place and form that would enable an English translation to be readily made; and

(c) if the record is kept by mechanical or electronic means - the record is readily convertible into a hard copy in English.

Subregulation 105C(5) contains two definitions for the purposes of this regulation. Certificate of Origin has the meaning given by section 153UA of the Act, which provides that it means a certificate that complies with the requirements of Annex 2 of SAFTA. SAFTA also has the meaning given by section 153UA of the Act, which provides that it means the Singapore-Australia Free Trade Agreement done at Singapore on 17 February 2003, as amended from time to time.