AUSTRALIAN CUSTOMS AND BORDER PROTECTION
SERVICE PRACTICE STATEMENT
File No:
Practice Statement No:
PS2011/03
Published Date: 2 March 2011
Review Period:
Every 3 years
Availability:
Internal
Title:
Customs delegations and authorisations (Interim Policy)
.
Purpose:
To set out the process for making delegations and authorisations under
heads of power under the Customs Acts ensuring that:
a) the provision and issue of delegations and authorisations to
officers of Customs by the Minister for Home Affairs (
Minister) or
Chief Executive Officer of Customs (
CEO) respectively accord
with applicable legislative requirements; and
b) the exercise of those delegations and authorisations accords
with legislative requirements and the general law and do not
exceed any limits of authority defined by the Minister or CEO
respectively.
Owner:
Chief Operating Officer
Category:
Corporate
Contact:
National Manager, Legal Services Branch, 02 6275 6752
Summary of main points
Customs and Border Protection Practice Statements are endorsed policy and must be
followed by all Customs and Border Protection employees. This Practice Statement
outlines:
Powers and functions under Customs’ legislation
Customs delegations and authorisations
The process for making instruments of delegation and authorisation
Exercising legislative powers and functions
The electronic version published on the intranet is the current Practice
Statement.
RELEASED UNDER FREEDOM OF INFORMATION ACT 1982
Introduction Statement
Generally speaking legislation confers powers and functions on the Minister for Home
Affairs (Minister) and the Chief Executive Officer of Customs and Border Protection
(CEO). Vast numbers of actions and decisions are made by the Minister and the CEO
under various heads of power under the Customs Acts. Administration can only truly
be efficient and effective if the responsibility for certain actions and decisions are
devolved from department heads, CEO and Ministers. Delegations and authorisations
are the mechanisms that make this devolution of power lawful.
Definitions
Collector
means the CEO, the Regional Director for a State or Territory, or
any Officer of Customs doing duty in the matter in relation to
which the expression is used.
Customs Acts
means the
Customs Act 1901, the
Customs Administration Act
1985, any other Act and any instruments (including rules,
regulations or by-laws) made under the Customs Act, the
Customs Administration Act or any other Act, relating to Customs
in force within the Commonwealth or any part of the
Commonwealth.
Officer of Customs means a person employed by Customs and Border Protection or
authorised in writing by the CEO
Scope
This Practice Statement covers all operational delegations and statutory authorisations
made by the CEO or the Minister for Home Affairs under the Customs Acts and applies
to staff in all Divisions.
This Practice Statement excludes financial authorisations made under the
Financial
Management and Accountability Act 1997, Financial Management and Accountability
Regulations 1997 and the Financial Management and Accountability (Finance Minister
to Chief Executives) Delegation 2010, and human resources delegations made under
the
Public Service Act 1999.
For queries relating to delegations made by other agency heads/Ministers (under
legislation other than the Customs Acts) contact the relevant Customs and Border
Protection Branch from the list1 below:
•
For Australian Tax Office delegations see
Trade Revenue & Indirect Tax Policy,
Trade Services Branch,
Trade and Compliance Division;
•
For Immigration and Citizenship delegations
see Passengers Policy Branch,
Passengers Division;
•
For Restricted Goods/Regulation 13E Defence and Strategic Goods List
delegations
see Firearms and Weapons Section, Trade Policy and Regulation
Branch, Trade and Compliance Division;
1 Note that this list is current as at January 2011.
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•
For financial delegations under the
Financial Management and Accountability
Act 1997 see
Finance Governance and Compliance; and
•
For Human Resource delegations under the
Public Service Act 1999 see
People and Place Strategy and Policy Branch, People and Place Division.
Policy Statement
1. This Practice Statement sets out the Customs and Border Protection Policy
concerning:
Powers and functions under the Customs Acts;
Customs delegations and authorisations;
Delegation Instruments (and how to make and revoke them); and
Exercising a power or function.
Powers and functions under the Customs Acts
General Principles
2.
Powers and functions under the Customs Acts may be performed by the
following:
•
Minister;
•
CEO;
•
Collector;
•
Officers of Customs; and
•
Authorised Officers.
Sources of power
Ministerial Powers
3.
Section 9 of the Customs Act provides the Minister with the power to delegate,
by signed instrument, to an Officer of Customs all or any of the functions and
powers of the Minister under the Customs Acts. Under section 9, any power or
function exercised by the delegate is deemed to have been performed or
exercised by the Minister.
4.
Note – there are certain powers under anti-dumping provisions of the Customs
Act which cannot be delegated.
5.
In addition to powers delegated by the Minister under section 9 of the Customs
Act, there are similar delegation provisions in the legislation of other Ministers.
For example, Officers of Customs may be delegated powers and functions by
the Minister for Immigration and Citizenship under the
Migration Act 1958 or the
Commissioner of Taxation under the GST Acts.
CEO Powers
6.
The CEO has many powers and functions under the Customs Acts and several
other Commonwealth Acts. Section 14 of the Customs Administration Act 1985
provides the CEO with the power to delegate, by signed instrument, to an
officer or class of officers of Customs all or any of the functions and powers of
the CEO under the Customs Acts or any other law of the Commonwealth. Other
laws of the Commonwealth include but are not necessarily limited to the:
•
Australian Postal Corporation Act 1989
•
Copyright Act 1968
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•
Crimes Act 1914
•
Environment Protection and Biodiversity Conservation Act 1999
•
Financial Transactions Reports Act 1988
•
Fisheries Management Act 1991
•
Migration Act 1958
•
Narcotic Drugs Act 1967
•
National Health Act 1953
•
Olympic Insignia Protection Act 1987
•
Psychotropic Substances Act 1976
•
Quarantine Act 1908
•
Trade Marks Act 1995
Officers of Customs Powers 7.
The CEO can only delegate his or her powers and functions to Officers of
Customs. If it is necessary to delegate powers and functions to officers who are
not Officers of Customs (eg officers of Tax or Immigration) those officers must
first be made Officers of Customs in accordance with section 4(1) of the
Customs Act which provides that an Officer of Customs means, amongst other
things, a person authorised in writing by the CEO under the Customs Act to
perform all of the functions of an Officer of Customs.
Authorised Officers
8.
Subsection 4(1) of the Customs Act provides that an authorised officer means
an officer of customs authorised in writing by the CEO to exercise the powers or
perform the functions of an authorised officer under that section.
9.
Officers of Customs can also exercise powers and functions in their own right.
For example under section 186 of the Customs Act an Officer of Customs may
examine any goods subject to the control of Customs and Border Protection.
Customs Delegations and Authorisations
10.
There are two main ways in which an Officer of Customs can be delegated or
authorised to exercise powers and functions:
•
Delegations; and
•
Statutory authorisations.
Delegations
11.
A person can exercise a power or perform a function of another person if there
is an express power of delegation. If a person has been delegated a power or a
function, that power or function may be exercised by the delegate based on
their opinion, belief or state of mind. The exercise of a delegated power by a
delegate is an act of the delegate and not the person who delegated the power.
12.
This means that the person who delegated the power cannot:
•
Direct the delegate in the exercise of the delegate’s discretion; or
•
Make the exercise by the delegate of the power conditional on certain
events occurring, or on the delegate taking certain action.
13.
The person delegating the power can:
•
issue non-binding guidelines. However failure to comply with the guidelines
would not, of itself, invalidate a delegate’s exercise of power.
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•
Still exercise the power or perform the function.
14.
Delegations may be limited. For example, an officer may be delegated power
for a limited period of time.
15.
Under a delegation, the:
•
The delegate must exercise the power or perform the function based upon
their own opinion, belief or state of mind;
•
The exercise of a delegated power is an act of the delegate and not the
person who delegated the power;
•
The delegator cannot direct the delegate how to exercise the power or
perform the function;
•
The delegator can issue non-binding guidelines;
•
The delegator can still exercise the power or function notwithstanding that it
has been delegated to another person; and
•
The delegation can be limited.
Statutory Authorisations
16.
Some legislation provides for the appointment of authorised officers or the
authorisation of certain persons to exercise specified statutory powers. For
example, under the Customs Acts, particular functions and powers are
conferred on authorised officers. In such cases the authorised officer exercises
the power or function in his or her own right. As previously mentioned, an
authorised officer can also exercise powers and functions in their own right.
17.
The principles governing delegations described above apply equally to statutory
authorisations. The principles relating to delegates exercising their own
discretion, the form of instruments of delegation and the effect of a change of
person holding the office of the delegator apply equally to statutory
authorisations.
Instruments of Delegation and Authorisation
18.
There are a number of different forms of instruments of delegation and
authorisation. These include instruments of delegation based on:
•
Position Numbers;
•
Name; and
•
Class of officers.
Positions Numbers
19.
Instruments usually refer to the persons holding, occupying or from time to time
performing the duties of designated positions. This means that, as different
people occupy the same position they can exercise the delegation while
occupying that position. It is therefore important that you always check whether
the position you are currently in has a delegation. For example, when
performing higher duties it does not automatically follow that because the lower
position had been delegated powers and functions that those same powers and
functions are held by the higher position.
Name
20.
Sometimes powers and functions are delegated to a person by reference to that
person’s name. The CEO usually authorises an officer of Customs to exercise
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RELEASED UNDER FREEDOM OF INFORMATION ACT 1982
the relevant powers or perform the relevant functions by reference to the
officer’s name. This is generally because the powers or functions quite often
require specific training before they can be exercised (for example audit, search
etc). The officer of Customs will be able to exercise the power or perform the
function independently of the position that they are in. Usually such delegations
are revoked once the person moves to another area of Customs and Border
Protection where they no longer need to exercise the powers or perform the
functions.
Class of Officers
21.
Powers and functions may also be delegated to a class of officers (for example
all Level 3 officers in the Passengers Division). This type of delegation is often
simplest and most flexible but currently its use is not widespread across
Customs and Border Protection2.
How to make (and revoke) an Instrument of Delegation or Authorisation
22.
The LSB prepares all instruments of delegation and authorisation and all
instruments of revocation. The process of preparing instruments of delegation
or authorisation or the revocation of a delegation or authorisation is to:
•
Establish whether a delegation or authorisation or revocation of a delegation
or authorisation is required;
•
Confirm whether training is required/has been undertaken;
•
Obtain NM/ND approval;
•
Send a request for delegation or authorisation or revocation of a delegation
or authorisation together with the NM/ND approval to the LSB.
LSB will prepare the relevant instruments for the CEO’s or Minister’s approval
23.
Contact the LSB if you require an instrument of delegation or authorisation to be
either made or revoked.
24.
Once an instrument of delegation or authorisation, or an instrument of
revocation, has been signed by the CEO or Minister, the LSB will input the data
into People Soft, within 5 working days. A copy of the signed instrument will be
provided to the person requiring the delegation or authorisation or the
instrument of revocation. The LSB retains all original instruments.
Delegations by other Agency Heads
25.
Delegations by other agency heads or Ministers to officers of Customs are
prepared by the relevant agencies.
Exercising a power or function
26.
Officers of Customs - what to do before exercising a power or a function:
•
Check whether you have a delegation or authorisation;
•
Confirm that it is appropriate for you to exercise the delegation or
authorisation;
2 The more widespread use of this type of instrument is being considered as part of the implementation of
the new COMPASS system.
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•
Check whether there are any limits to the delegation or authorisation and
that what you are proposing to do falls within those limits;
•
Read all relevant administrative procedures and guidelines
27.
When exercising the power or performing the function under a delegation or
authorisation, it is extremely important to remember at all times that:
•
The decision is your own;
•
You must take into account all relevant considerations;
•
You must not take into account irrelevant matters;
•
Your decision must be reasonable, fair and unbiased; and
•
You must not seek to achieve an improper purpose or exhibit bad faith or
improper motive in exercising a discretion;
•
You may contact the LSB if you have any queries or concerns.
Key roles and responsibilities
The Legal Services Branch has responsibility for this Practice Statement.
Consultation
This Practice Statement is an interim policy statement that reflects existing practices. In
preparing this Practice Statement, all National Directors were consulted3:
Approval
Approved on
16 February 2011
By
Mike Pezzullo
Chief Operating Officer
Endorsed on
17 February 2011
By
Michael Carmody
Chief Executive Officer
3 Substantial consultation will be undertaken at the relevant time when this Practice Statement is reviewed
as part of the COMPASS implementation system.
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