Selanjutnya
MEMORANDUM OF UNDERSTANDING
BETWEEN
THE DIRECTORATE GENERAL OF CUSTOMS AND EXCISE
MINISTRY OF FINANCE OF THE REPUBLIC OF INDONESIA
AND
THE AUSTRALIAN CUSTOMS SERVICE
OF THE COMMONWEALTH OF AUSTRALIA
ON
CUSTOMS CO-OPERATION AND
MUTUAL ADMINISTRATIVE ASSISTANCE
IN CUSTOMS MATTERS
TABLE OF CONTENTS
Page No.
1
Preamble
Chapter I
: Definitions (Paragraph 1)
3
Chapter II
: Scope of Memorandum of Understanding (Paragraph 2)
4
Chapter Ill
: Scope of Assistance (Paragraph 3)
5
Chapter IV
: Special Instances of Assistance (Paragraph 4-8)
6
Chapter V
: Cross Border Co-Operation (Paragraph 9-1 0)
8
Chapter VI
: Experts and Witnesses (Paragraph 11)
9
Chapter VII
: Communication of Requests (Paragraph 12)
9
Chapter VIII
: Execution of Requests (Paragraph 13-17)
10
Chapter IX
: Confidentiality of Information (Paragraph 18)
12
Chapter X
: Protection of Personal Data (Paragraph 19)
12
Chapter XI
: Exemptions (Paragraph 20)
13
Chapter XII
:Costs (Paragraph 21)
13
Chapter XIII
: Implementation and Application of the Memorandum of
14
Understanding (Paragraph 22-23)
Chapter XIV
: Settlement of Disputes (Paragraph 24)
14
Chapter XV
: Final Provisions (Paragraph 25-27)
15
Annex
17
MEMORANDUM OF UNDERSTANDING
BETWEEN
THE DIRECTORATE GENERAL OF CUSTOMS AND EXCISE
MINISTRY OF FINANCE OF THE REPUBLIC OF INDONESIA
AND
THE AUSTRALIAN CUSTOMS SERVICE
OF THE COMMONWEALTH OF AUSTRALIA
ON
CUSTOMS CO-OPERATION AND
MUTUAL ADMINISTRATIVE ASSISTANCE
IN CUSTOMS MATTERS
Preamble
The Directorate General of Customs and Excise, Ministry of Finance of the Republic of
Indonesia and the Customs Administration of the Commonwealth of Australia, are the
parties to this Memorandum of Understanding.
CONSIDERING the importance of accurate assessment of Customs duties and other
taxes collected at importation or exportation and of ensuring proper
enforcement of specific measures of prohibition, restriction and control;
CONSIDERING that offences against Customs law are prejudicial to their economic,
commercial, fiscal, social, health, and cultural interests;
RECOGNISING the need for international co-operation in matters to ensure the proper
application and enforcement of their Customs law;
RECOGNISING the importance of Customs cooperation in counter terrorism and
fighting transnational crime;
1
CONVINCED that action against Customs offences can be made more effective by
close co-operation between their Customs Administrations;
HAVING REGARD TO the Recommendation on Mutual Administrative Assistance and
the Declaration on the Improvement of Customs Co-operation and Mutual
Administrative Assistance (the Cyprus Declaration), adopted in December
1953 and July 2000, respectively, by the Customs Co-operation Council, now
known as the World Customs Organization;
HAVING REGARD TO international conventions containing prohibitions, restrictions
and special measures of control in respect of specific goods;
HAVING REGARD ALSO TO the obligations imposed under international conventions
already accepted by, or applied to the parties;
PURSUANT TO THE prevailing laws and regulations in their respective countries;
Have come to the following understandings:
2
CHAPTER I
Definitions
Paragraph 1
For the purposes of this Memorandum of Understanding:
a) "Customs Administration" means:
for the Republic of Indonesia, the Directorate General of Customs and Excise
'
Ministry of Finance,
for the Commonwealth of Australia, the Australian Customs Service;
b) "Customs claim" means any amount of duties and taxes to which this
Memorandum of Understanding applies of increases, surcharges, overdue
payments, interests, costs and other charges pertaining to the said duties and
taxes that cannot be collected by one of the Parties;
c)
"Customs law" means any legal and administrative provisions applicable or
enforceable by either Customs Administration in connection with the importation,
exportation, trans-shipment, transit, storage, and movement of goods, including
legal and administrative provisions relating to measures of prohibition, restriction,
and control;
d) "Customs offence" means any violation or attempted violation of Customs law;
e) "information" means any data, whether or not processed or analysed, and
documents, reports, and other communications in any format, including electronic,
or certified or authenticated copies thereof;
f)
"official" means any Customs officer designated by either Customs Administration;
g) "persons" means both natural and legal persons, unless the context otherwise
requires;
3
h) "personal data" means
information or data which relates to a person whose
identity is disclosed in the information or data, or whose identity can be reasonably
ascertained from the information or data;
i)
"Requesting Administration" means the Customs Administration which requests
assistance;
j)
"Requested Administration" means the Customs Administration from which
assistance is requested.
CHAPTER II
Scope of the Memorandum of Understanding
Paragraph 2
1. The Customs Administrations will afford each other administrative assistance
under the terms set out in this Memorandum of Understanding, for the proper
application of Customs law and for the prevention, investigation and combating of
Customs offences, as well as for the recovery of customs claims.
2.
All assistance under this Memorandum of Understanding by either Customs
Administration will be afforded in accordance with its national legal and
administrative provisions and within the limits of the Customs Administration's
competence and available resources.
3. This Memorandum of Understanding covers mutual administrative assistance
between the Customs Administrations and is not intended to impact mutual legal
assistance
agreements
between
Commonwealth of Australia.
the
Republic
of
Indonesia
and
the
If mutual assistance is to be afforded by other
authorities of the Requested Administrations, the Requested Administration will
indicate those authorities and where known the relevant agreement or
arrangement applicable.
4
4.
The provisions of this Memorandum of Understanding will not give rise to a right
on the part of any person to impede the execution of a request.
5. Assistance will be refused if the request relates to the investigation of conduct
which could lead to the prosecution or punishment of a person for an offence in
respect of which the death penalty may be imposed or executed.
CHAPTER Ill
Scope of Assistance
Paragraph 3
Information for the Application and Enforcement of Customs Law
1. The Customs Administrations will provide each other, either on request or on their
own initiative, with information which helps to ensure proper application of
Customs law and the prevention, investigation and combating of Customs
offences. Such information may include:
(a) new Customs law enforcement techniques which have proved their
effectiveness;
(b) new trends, means or methods of committing Customs offences;
(c) goods known to be the subject of Customs offences, as well as transport and
storage methods used in respect of those goods;
(d) other customs matters related to mutual assistance and cooperation including
customs best practice procedures and relevant international standards.
2.
Assistance provided under this Memorandum of Understanding will, on request,
include the provision of information to ensure the correct determination of
Customs value and tariff classification.
3.
Either Customs Administration will, in making inquiries in its national territory on
behalf of the other Customs Administration, use all means available to provide the
requested assistance.
5
CHAPTER IV
Special Instances of Assistance
Paragraph 4
Information Relating to Customs Offences
1. The Customs Administrations will provide each other, either on request or on their
own initiative, with information on transactions, planned, ongoing, or completed
which constitute or appear to constitute a Customs offence.
2.
In serious cases that could involve substantial damage to the economy, public
health, public security or any other vital interest of either Customs Administration,
wherever and whenever possible, the Customs Administration will supply such
information on their own initiative without delay.
Paragraph 5
Particular Types of Information
1. On request, the Requested Administration, subject to its national legal and
administrative provisions,
will
provide the Requesting Administration with
information relative to:
(a) whether goods imported into the territory of the Requesting Administration
have
been
lawfully
exported
from
the
territory
of the
Requested
Administration;
(b) whether· goods exported from the territory of the Requesting Administration
have been lawfully imported into the territory of the Requested Administration
and the Customs procedure, if any, under which the goods have been placed.
2. On
request,
the
Requested
Administration
will
provide
the
Requesting
Administration with information relative to instances where the latter has reason to
doubt the information supplied by the person concerned in the Customs matter.
6
Paragraph 6
Notification
On request, the Requested Administration will notify a person, residing or incorporated
in the territory of the Requested Administration, of any formal decision concerning that
person taken by the Requesting Administration, in application of Customs law.
Paragraph 7
Surveillance and Information
On request, the Requested Administration will, within the limits of its competence and
available resources, maintain surveillance over and provide information on:
(a) goods either in transport or in storage known to have been used or suspected
of being used to commit Customs offences in the territory of the Requesting
Administration;
(b) means of transport known to have been used or suspected of being used to
commit Customs offences in the territory of the Requesting Administration;
(c) premises known to have been used or suspected of being used to commit
Customs offences in the territory of the Requesting Administration;
(d) persons known to have committed a Customs offence in the territory of the
Requesting Administration, or suspected of doing so, particularly those
moving into and out of the territory of the Requested Administration.
Paragraph 8
Controlled Delivery
On request, the Customs Administrations may, by mutual arrangement under
Paragraph 22, permit the movement of unlawful or suspect goods out of, through, or
into their territories, with the knowledge and under the control of the competent
authorities, for the purpose of investigating and combating Customs offences.
If
granting such permission is not within the competence of a Customs Administration,
that Customs Administration will endeavour to initiate cooperation with the national
authorities with such competence or will transfer the case to such an authority.
7
CHAPTERV
Cross Border Co-operation
Paragraph 9
Joint Regulatory Compliance. Control and Investigation Teams
1.
Notwithstanding Paragraphs 15 and 16, the Customs Administrations may, by
mutual arrangement under Paragraph 22, establish joint regulatory compliance,
control or investigation teams.
2.
Under such arrangements officials of each Customs Administration may, subject
to national legal and administrative requirements, engage in activities carried out
by the joint regulatory compliance, control or investigation teams in the territory
of the other Customs Administration with the authorisation of, and in accordance
with any conditions stipulated by, the other Customs Administration.
3.
Any such activity will cease as soon as the Customs Administration in whose
territory the activity is taking place so requests.
Paragraph 10
Information
1. Original information will only be requested in cases where certified or
authenticated copies would be insufficient and will be returned at the earliest
opportunity. The rights of the Requested Administration or third parties relating
thereto will remain unaffected.
2. Any information to be exchanged under this Memorandum of Understanding will
be accompanied by all relevant information for the interpretation and use thereof.
8
CHAPTER VI
Experts and Witnesses
Paragraph 11
On request, the Requested Administration may authorise its officials to appear before
a court or tribunal in the territory of the other Customs Administration as experts or
witnesses in the matter of a Customs offence. The Requested Administration may
seek undertakings in relation to the immunities the official may have when appearing
as an expert or witness.
CHAPTER VII
Communication of Requests
Paragraph 12
1. Requests for assistance under this Memorandum of Understanding will be
addressed directly to the Customs Administration.
Requests will be made in
writing or electronically, and will be accompanied by any information deemed
useful to comply with the request.
The Requested Administration may require
written confirmation of electronic requests. Where the circumstances so require,
requests may be made orally. Such requests will be confirmed in writing, including
by facsimile or email, as soon as possible.
2.
Requests made pursuant to sub-paragraph 1 of this Paragraph, will include the
following details:
(a) the name of the administration making the request;
(b) the name of the person authorised to make a request in accordance with subparagraph 4 of this paragraph;
(c) the Customs matter at issue, type of assistance requested, and reason for the
request;
(d) a brief description of the case under review and its administrative and legal
elements;
(e) the names, dates of birth and addresses of the persons to whom the request
relates, if known.
9
3.
Where the Requesting Administration requests that a certain procedure or
methodology be followed, the Requested Administration will comply with such
request subject to its national legal and administrative provisions.
4.
The information referred to in this Memorandum of Understanding will be
communicated to officials who are specially designated for this purpose by either
Customs Administration.
A list of those officials will be supplied to the other
Customs Administration in accordance with Paragraph 22 of this Memorandum of
Understanding.
CHAPTER VIII
Execution of Requests
Paragraph 13
Means of Obtaining Information
1. If the Requested Administration does not have the information requested, it will
initiate inquiries to obtain that information.
2. If the Requested Administration is not the appropriate authority to initiate inquiries
to obtain the information requested, it may, in addition to indicating the appropriate
authority and providing the contact details of the appropriate authority transmit the
request to this appropriate authority.
Paragraph 14
Presence of Officials in the Territory of the Other Party
1. On written request, officials specially designated by the Requesting Administration
may, with the authorisation of the Requested Administration and subject to
conditions the latter may impose, for the purpose of investigating a Customs
offence under the Requesting Administration's Customs laws or determining the
level of compliance with the Requesting Administration's legislative requirements:
10
(a) examine, in the offices of the Requested Administration, information in respect
of that Customs offence, and be supplied with copies thereof;
(b) observe an inquiry conducted by the Requested Administration in the territory
of the Requested Administration and relevant to that customs offence under
written request of the Requested administration.
Paragraph 15
Presence of Officials of the Requesting Administration at the Invitation of the
Requested Administration
Where the Requested Administration considers it useful or necessary for an official of
the Requesting Administration to be present when , pursuant to a request, measures of
assistance are carried out, it will inform the Requesting Administration. Where such a
request for assistance is made the Requesting Administration will make all efforts to
provide the assistance.
Paragraph 16
Presence of Officials - Advisory Role
Officials designated by the Requesting Administration to be present in the territory of
the Requested Administration, as provided for in Paragraphs 14 and 15, will have a
purely advisory role.
Paragraph 17
Arrangements for Visiting Officials
When officials of either Customs Administration are present in the territory of the other
Customs Administration under the terms of this Memorandum of Understanding, they
must at all times be able to furnish proof of their official capacity.
11
CHAPTER IX
Confidentiality of Information
Paragraph 18
1.
Subject to any additional requirements under Paragraph 19, any information
received under this Memorandum of Understanding will be used only by the
Customs Administrations and solely for the purposes of this Memorandum of
Understanding except in cases where the Customs Administration supplying the
information has authorised its use by other authorities or for other purposes.
2. Any information received under this Memorandum of Understanding will be treated
as confidential and will at least be subject to the same protection and
confidentiality as the same kind of information is subject to under the national law
of the Customs Administration where it is received.
3.
Nothing in this Memorandum requires a Customs Administration to provide
information, the disclosure of which may
(a) impede law enforcement;
(b) prejudice fair competition;
(c) prejudice the legitimate commercial interests, including the protection of
intellectual property, of the Customs Administrations or of other persons.
CHAPTER X
Protection of Personal Data
Paragraph 19
1.
Personal data exchange under this Memorandum of Understanding will not begin
until the Parties have mutually agreed, in accordance with Paragraph 22 of this
Memorandum of Understanding, that such data can be given appropriate
confidentiality and protection.
2.
In the context of this Paragraph, the Customs Administrations will provide each
other with their relevant legislation concerning the protection 0f personal data.
12
CHAPTER XI
Exemptions
Paragraph 20
1.
Where assistance under this Memorandum of Understanding might infringe upon
the sovereignty, security, public policy or any other substantive national interest of
a Customs Administration, or prejudice any legitimate commercial or professional
interests, assistance may be refused or provided subject to such terms or
conditions as the Requested Administration may require.
2.
Where the Requesting Administration would be unable to reciprocate if a similar
request were made by the Requested Administration, it will draw attention to that
fact in its request. Compliance with such a request will be at the discretion of the
Requested Administration.
3. Assistance may be postponed if there are grounds to believe that it will interfere
with an ongoing investigation, prosecution or proceeding.
In such a case the
Requested Administration will consult with the Requesting Administration to
determine if assistance can be given subject to such terms or conditions as the
Requested Administration may require.
4.
Where assistance is denied or postponed, reasons for the denial or postponement
will be given.
CHAPTER XII
Costs
Paragraph 21
1.
Subject to
sub-paragraphs
2 and
3 of this
Paragraph,
the
Customs
Administrations will waive all claims for reimbursement of costs incurred in the
execution of this Memorandum of Understanding.
2.
Unless otherwise agreed, the Requesting Administration will be responsible for
expenses, allowances and costs of experts, witnesses, travel and interpreters.
13
3.
If expenses of a substantial or extraordinary nature are or will be required to
execute a request, the Customs Administrations will consult to determine the
terms and conditions under which the request will be executed as well as the
manner in which the costs will be borne.
CHAPTER XIII
Implementation and Application of the Memorandum of Understanding
Paragraph 22
The Customs Administrations will jointly decide on detailed arrangements to facilitate
the application of this Memorandum of Understanding.
Paragraph 23
This Memorandum of Understanding is not intended to create legal relations. It relates
to the Customs territories of both parties as defined in their domestic legal
administrative provisions.
CHAPTER XIV
Settlement of Disputes
Paragraph 24
1. The Customs Administrations will endeavour to resolve disputes or other
difficulties concerning the interpretation or application of this Memorandum of
Understanding by mutual accord.
2.
The Customs Administration will also endeavour to resolve any disputes or
difficulties arising from or in relation to the application of their Customs law by
mutual accord.
3. Unresolved disputes or difficulties will be settled by diplomatic means.
14
CHAPTER XV
Final Provisions
Paragraph 25
Coming into Effect
This Memorandum of Understanding will come into effect on the date of signing.
Paragraph 26
Duration and Termination
1. This Memorandum of Understanding is intended to be of unlimited duration but
either Customs Administration may terminate it at any time by notification in
writing.
2. This memorandum of Understanding may be amended at any time by mutual
written consent of the parties.
3. The termination will take effect three months from the date of the notification of
denunciation to the other Customs Administration. Ongoing proceedings at the
time of termination will nonetheless be completed in accordance with the
provisions of this Memorandum of Understanding.
Paragraph 27
Review
The Customs Administrations will meet in order to review this Memorandum of
Understanding on request or at the end of five years from the date of its entry into
force, unless they notify each other in writing that no such review is necessary.
15
4JHOFE
4JHOFE
ANNEX 1
PROTECTION OF PERSONAL OAT A
Principles Relevant to the Commentary on Paragraph 19
1. Personal data exchanged under this Memorandum of Understanding may only be
used for the purpose indicated and according to any conditions the Customs
Administration providing that the data may require.
2. On request, the Customs Administration receiving personal data will inform the
Customs Administration which has provided that data of the use made of it and the
results achieved.
3. Personal data will only be transmitted to the other Customs Administration.
Transmission of personal data to any other authorities is only allowed after prior
approval by the Customs Administration providing the data concerned.
4. The Customs Administration transmitting personal data will ensure that this data is
accurate and up to date and not excessive in relation to the purposes for which it is
furnished. Any prohibitions under the national legal or administrative provisions of
either Customs Administrations have to be respected. If personal data transmitted
is found to be incorrect or should not have been exchanged, this will be notified
immediately. The Customs Administration that has received such data will amend
or delete it.
5. On request, any person concerned will be given information about the personal
data stored relating to him or her and its intended use. This obligation to provide
the person concerned with such information does not apply when the public
interest against giving the information exceeds the interest of the person
concerned to obtain that information. The right to obtain information is otherwise
17
subject to the national legal and administrative provisions applicable in the
Customs Administration where the request for information is made. The Customs
Administration that has provided the personal data concerned will be consulted
before a decision on a request for information by a person concerned is taken. If
the request for information is refused, the person concerned will have a remedy. If
the data appears to be inaccurate, not up to date or excessive, it will be amended
or deleted. If the data has been communicated to other bodies or persons, these
will be informed of the amendment or deletion.
6. If investigation based on personal data exchanged under this Memorandum of
Understanding cause damage to a natural person, the Customs Administration
that has used this personal data is responsible for this damage according to the
national
legal and
administrative
provisions applicable in
that Customs
Administration. That Custom Administration cannot disclaim the damage by stating
that the damage has been caused by the Customs Administration which provided
the personal data concerned.
7. Personal data transmitted under this Memorandum of Understanding will only be
kept as long as this is necessary to achieve the purposes for which this data is
exchanged.
When
providing
personal
data
under this
Memorandum
of
Understanding, either Customs Administration will specify any specify time limits
for deletion of this personal data.
8. The Customs Administration will record the transmission and receipt of personal
data under this Memorandum of Understanding.
9. The Customs Administration will take appropriate security measures to protect
personal data exchanged under this Memorandum of Understanding from
unauthorized, alteration or dissemination.
10. The access by any person to personal data stored relating to him or her on the
basis paragraph 5 of this Annex can be either direct or indirect, according to the
national, legal, and administrative provisions.
18
BETWEEN
THE DIRECTORATE GENERAL OF CUSTOMS AND EXCISE
MINISTRY OF FINANCE OF THE REPUBLIC OF INDONESIA
AND
THE AUSTRALIAN CUSTOMS SERVICE
OF THE COMMONWEALTH OF AUSTRALIA
ON
CUSTOMS CO-OPERATION AND
MUTUAL ADMINISTRATIVE ASSISTANCE
IN CUSTOMS MATTERS
TABLE OF CONTENTS
Page No.
1
Preamble
Chapter I
: Definitions (Paragraph 1)
3
Chapter II
: Scope of Memorandum of Understanding (Paragraph 2)
4
Chapter Ill
: Scope of Assistance (Paragraph 3)
5
Chapter IV
: Special Instances of Assistance (Paragraph 4-8)
6
Chapter V
: Cross Border Co-Operation (Paragraph 9-1 0)
8
Chapter VI
: Experts and Witnesses (Paragraph 11)
9
Chapter VII
: Communication of Requests (Paragraph 12)
9
Chapter VIII
: Execution of Requests (Paragraph 13-17)
10
Chapter IX
: Confidentiality of Information (Paragraph 18)
12
Chapter X
: Protection of Personal Data (Paragraph 19)
12
Chapter XI
: Exemptions (Paragraph 20)
13
Chapter XII
:Costs (Paragraph 21)
13
Chapter XIII
: Implementation and Application of the Memorandum of
14
Understanding (Paragraph 22-23)
Chapter XIV
: Settlement of Disputes (Paragraph 24)
14
Chapter XV
: Final Provisions (Paragraph 25-27)
15
Annex
17
MEMORANDUM OF UNDERSTANDING
BETWEEN
THE DIRECTORATE GENERAL OF CUSTOMS AND EXCISE
MINISTRY OF FINANCE OF THE REPUBLIC OF INDONESIA
AND
THE AUSTRALIAN CUSTOMS SERVICE
OF THE COMMONWEALTH OF AUSTRALIA
ON
CUSTOMS CO-OPERATION AND
MUTUAL ADMINISTRATIVE ASSISTANCE
IN CUSTOMS MATTERS
Preamble
The Directorate General of Customs and Excise, Ministry of Finance of the Republic of
Indonesia and the Customs Administration of the Commonwealth of Australia, are the
parties to this Memorandum of Understanding.
CONSIDERING the importance of accurate assessment of Customs duties and other
taxes collected at importation or exportation and of ensuring proper
enforcement of specific measures of prohibition, restriction and control;
CONSIDERING that offences against Customs law are prejudicial to their economic,
commercial, fiscal, social, health, and cultural interests;
RECOGNISING the need for international co-operation in matters to ensure the proper
application and enforcement of their Customs law;
RECOGNISING the importance of Customs cooperation in counter terrorism and
fighting transnational crime;
1
CONVINCED that action against Customs offences can be made more effective by
close co-operation between their Customs Administrations;
HAVING REGARD TO the Recommendation on Mutual Administrative Assistance and
the Declaration on the Improvement of Customs Co-operation and Mutual
Administrative Assistance (the Cyprus Declaration), adopted in December
1953 and July 2000, respectively, by the Customs Co-operation Council, now
known as the World Customs Organization;
HAVING REGARD TO international conventions containing prohibitions, restrictions
and special measures of control in respect of specific goods;
HAVING REGARD ALSO TO the obligations imposed under international conventions
already accepted by, or applied to the parties;
PURSUANT TO THE prevailing laws and regulations in their respective countries;
Have come to the following understandings:
2
CHAPTER I
Definitions
Paragraph 1
For the purposes of this Memorandum of Understanding:
a) "Customs Administration" means:
for the Republic of Indonesia, the Directorate General of Customs and Excise
'
Ministry of Finance,
for the Commonwealth of Australia, the Australian Customs Service;
b) "Customs claim" means any amount of duties and taxes to which this
Memorandum of Understanding applies of increases, surcharges, overdue
payments, interests, costs and other charges pertaining to the said duties and
taxes that cannot be collected by one of the Parties;
c)
"Customs law" means any legal and administrative provisions applicable or
enforceable by either Customs Administration in connection with the importation,
exportation, trans-shipment, transit, storage, and movement of goods, including
legal and administrative provisions relating to measures of prohibition, restriction,
and control;
d) "Customs offence" means any violation or attempted violation of Customs law;
e) "information" means any data, whether or not processed or analysed, and
documents, reports, and other communications in any format, including electronic,
or certified or authenticated copies thereof;
f)
"official" means any Customs officer designated by either Customs Administration;
g) "persons" means both natural and legal persons, unless the context otherwise
requires;
3
h) "personal data" means
information or data which relates to a person whose
identity is disclosed in the information or data, or whose identity can be reasonably
ascertained from the information or data;
i)
"Requesting Administration" means the Customs Administration which requests
assistance;
j)
"Requested Administration" means the Customs Administration from which
assistance is requested.
CHAPTER II
Scope of the Memorandum of Understanding
Paragraph 2
1. The Customs Administrations will afford each other administrative assistance
under the terms set out in this Memorandum of Understanding, for the proper
application of Customs law and for the prevention, investigation and combating of
Customs offences, as well as for the recovery of customs claims.
2.
All assistance under this Memorandum of Understanding by either Customs
Administration will be afforded in accordance with its national legal and
administrative provisions and within the limits of the Customs Administration's
competence and available resources.
3. This Memorandum of Understanding covers mutual administrative assistance
between the Customs Administrations and is not intended to impact mutual legal
assistance
agreements
between
Commonwealth of Australia.
the
Republic
of
Indonesia
and
the
If mutual assistance is to be afforded by other
authorities of the Requested Administrations, the Requested Administration will
indicate those authorities and where known the relevant agreement or
arrangement applicable.
4
4.
The provisions of this Memorandum of Understanding will not give rise to a right
on the part of any person to impede the execution of a request.
5. Assistance will be refused if the request relates to the investigation of conduct
which could lead to the prosecution or punishment of a person for an offence in
respect of which the death penalty may be imposed or executed.
CHAPTER Ill
Scope of Assistance
Paragraph 3
Information for the Application and Enforcement of Customs Law
1. The Customs Administrations will provide each other, either on request or on their
own initiative, with information which helps to ensure proper application of
Customs law and the prevention, investigation and combating of Customs
offences. Such information may include:
(a) new Customs law enforcement techniques which have proved their
effectiveness;
(b) new trends, means or methods of committing Customs offences;
(c) goods known to be the subject of Customs offences, as well as transport and
storage methods used in respect of those goods;
(d) other customs matters related to mutual assistance and cooperation including
customs best practice procedures and relevant international standards.
2.
Assistance provided under this Memorandum of Understanding will, on request,
include the provision of information to ensure the correct determination of
Customs value and tariff classification.
3.
Either Customs Administration will, in making inquiries in its national territory on
behalf of the other Customs Administration, use all means available to provide the
requested assistance.
5
CHAPTER IV
Special Instances of Assistance
Paragraph 4
Information Relating to Customs Offences
1. The Customs Administrations will provide each other, either on request or on their
own initiative, with information on transactions, planned, ongoing, or completed
which constitute or appear to constitute a Customs offence.
2.
In serious cases that could involve substantial damage to the economy, public
health, public security or any other vital interest of either Customs Administration,
wherever and whenever possible, the Customs Administration will supply such
information on their own initiative without delay.
Paragraph 5
Particular Types of Information
1. On request, the Requested Administration, subject to its national legal and
administrative provisions,
will
provide the Requesting Administration with
information relative to:
(a) whether goods imported into the territory of the Requesting Administration
have
been
lawfully
exported
from
the
territory
of the
Requested
Administration;
(b) whether· goods exported from the territory of the Requesting Administration
have been lawfully imported into the territory of the Requested Administration
and the Customs procedure, if any, under which the goods have been placed.
2. On
request,
the
Requested
Administration
will
provide
the
Requesting
Administration with information relative to instances where the latter has reason to
doubt the information supplied by the person concerned in the Customs matter.
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Paragraph 6
Notification
On request, the Requested Administration will notify a person, residing or incorporated
in the territory of the Requested Administration, of any formal decision concerning that
person taken by the Requesting Administration, in application of Customs law.
Paragraph 7
Surveillance and Information
On request, the Requested Administration will, within the limits of its competence and
available resources, maintain surveillance over and provide information on:
(a) goods either in transport or in storage known to have been used or suspected
of being used to commit Customs offences in the territory of the Requesting
Administration;
(b) means of transport known to have been used or suspected of being used to
commit Customs offences in the territory of the Requesting Administration;
(c) premises known to have been used or suspected of being used to commit
Customs offences in the territory of the Requesting Administration;
(d) persons known to have committed a Customs offence in the territory of the
Requesting Administration, or suspected of doing so, particularly those
moving into and out of the territory of the Requested Administration.
Paragraph 8
Controlled Delivery
On request, the Customs Administrations may, by mutual arrangement under
Paragraph 22, permit the movement of unlawful or suspect goods out of, through, or
into their territories, with the knowledge and under the control of the competent
authorities, for the purpose of investigating and combating Customs offences.
If
granting such permission is not within the competence of a Customs Administration,
that Customs Administration will endeavour to initiate cooperation with the national
authorities with such competence or will transfer the case to such an authority.
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CHAPTERV
Cross Border Co-operation
Paragraph 9
Joint Regulatory Compliance. Control and Investigation Teams
1.
Notwithstanding Paragraphs 15 and 16, the Customs Administrations may, by
mutual arrangement under Paragraph 22, establish joint regulatory compliance,
control or investigation teams.
2.
Under such arrangements officials of each Customs Administration may, subject
to national legal and administrative requirements, engage in activities carried out
by the joint regulatory compliance, control or investigation teams in the territory
of the other Customs Administration with the authorisation of, and in accordance
with any conditions stipulated by, the other Customs Administration.
3.
Any such activity will cease as soon as the Customs Administration in whose
territory the activity is taking place so requests.
Paragraph 10
Information
1. Original information will only be requested in cases where certified or
authenticated copies would be insufficient and will be returned at the earliest
opportunity. The rights of the Requested Administration or third parties relating
thereto will remain unaffected.
2. Any information to be exchanged under this Memorandum of Understanding will
be accompanied by all relevant information for the interpretation and use thereof.
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CHAPTER VI
Experts and Witnesses
Paragraph 11
On request, the Requested Administration may authorise its officials to appear before
a court or tribunal in the territory of the other Customs Administration as experts or
witnesses in the matter of a Customs offence. The Requested Administration may
seek undertakings in relation to the immunities the official may have when appearing
as an expert or witness.
CHAPTER VII
Communication of Requests
Paragraph 12
1. Requests for assistance under this Memorandum of Understanding will be
addressed directly to the Customs Administration.
Requests will be made in
writing or electronically, and will be accompanied by any information deemed
useful to comply with the request.
The Requested Administration may require
written confirmation of electronic requests. Where the circumstances so require,
requests may be made orally. Such requests will be confirmed in writing, including
by facsimile or email, as soon as possible.
2.
Requests made pursuant to sub-paragraph 1 of this Paragraph, will include the
following details:
(a) the name of the administration making the request;
(b) the name of the person authorised to make a request in accordance with subparagraph 4 of this paragraph;
(c) the Customs matter at issue, type of assistance requested, and reason for the
request;
(d) a brief description of the case under review and its administrative and legal
elements;
(e) the names, dates of birth and addresses of the persons to whom the request
relates, if known.
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3.
Where the Requesting Administration requests that a certain procedure or
methodology be followed, the Requested Administration will comply with such
request subject to its national legal and administrative provisions.
4.
The information referred to in this Memorandum of Understanding will be
communicated to officials who are specially designated for this purpose by either
Customs Administration.
A list of those officials will be supplied to the other
Customs Administration in accordance with Paragraph 22 of this Memorandum of
Understanding.
CHAPTER VIII
Execution of Requests
Paragraph 13
Means of Obtaining Information
1. If the Requested Administration does not have the information requested, it will
initiate inquiries to obtain that information.
2. If the Requested Administration is not the appropriate authority to initiate inquiries
to obtain the information requested, it may, in addition to indicating the appropriate
authority and providing the contact details of the appropriate authority transmit the
request to this appropriate authority.
Paragraph 14
Presence of Officials in the Territory of the Other Party
1. On written request, officials specially designated by the Requesting Administration
may, with the authorisation of the Requested Administration and subject to
conditions the latter may impose, for the purpose of investigating a Customs
offence under the Requesting Administration's Customs laws or determining the
level of compliance with the Requesting Administration's legislative requirements:
10
(a) examine, in the offices of the Requested Administration, information in respect
of that Customs offence, and be supplied with copies thereof;
(b) observe an inquiry conducted by the Requested Administration in the territory
of the Requested Administration and relevant to that customs offence under
written request of the Requested administration.
Paragraph 15
Presence of Officials of the Requesting Administration at the Invitation of the
Requested Administration
Where the Requested Administration considers it useful or necessary for an official of
the Requesting Administration to be present when , pursuant to a request, measures of
assistance are carried out, it will inform the Requesting Administration. Where such a
request for assistance is made the Requesting Administration will make all efforts to
provide the assistance.
Paragraph 16
Presence of Officials - Advisory Role
Officials designated by the Requesting Administration to be present in the territory of
the Requested Administration, as provided for in Paragraphs 14 and 15, will have a
purely advisory role.
Paragraph 17
Arrangements for Visiting Officials
When officials of either Customs Administration are present in the territory of the other
Customs Administration under the terms of this Memorandum of Understanding, they
must at all times be able to furnish proof of their official capacity.
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CHAPTER IX
Confidentiality of Information
Paragraph 18
1.
Subject to any additional requirements under Paragraph 19, any information
received under this Memorandum of Understanding will be used only by the
Customs Administrations and solely for the purposes of this Memorandum of
Understanding except in cases where the Customs Administration supplying the
information has authorised its use by other authorities or for other purposes.
2. Any information received under this Memorandum of Understanding will be treated
as confidential and will at least be subject to the same protection and
confidentiality as the same kind of information is subject to under the national law
of the Customs Administration where it is received.
3.
Nothing in this Memorandum requires a Customs Administration to provide
information, the disclosure of which may
(a) impede law enforcement;
(b) prejudice fair competition;
(c) prejudice the legitimate commercial interests, including the protection of
intellectual property, of the Customs Administrations or of other persons.
CHAPTER X
Protection of Personal Data
Paragraph 19
1.
Personal data exchange under this Memorandum of Understanding will not begin
until the Parties have mutually agreed, in accordance with Paragraph 22 of this
Memorandum of Understanding, that such data can be given appropriate
confidentiality and protection.
2.
In the context of this Paragraph, the Customs Administrations will provide each
other with their relevant legislation concerning the protection 0f personal data.
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CHAPTER XI
Exemptions
Paragraph 20
1.
Where assistance under this Memorandum of Understanding might infringe upon
the sovereignty, security, public policy or any other substantive national interest of
a Customs Administration, or prejudice any legitimate commercial or professional
interests, assistance may be refused or provided subject to such terms or
conditions as the Requested Administration may require.
2.
Where the Requesting Administration would be unable to reciprocate if a similar
request were made by the Requested Administration, it will draw attention to that
fact in its request. Compliance with such a request will be at the discretion of the
Requested Administration.
3. Assistance may be postponed if there are grounds to believe that it will interfere
with an ongoing investigation, prosecution or proceeding.
In such a case the
Requested Administration will consult with the Requesting Administration to
determine if assistance can be given subject to such terms or conditions as the
Requested Administration may require.
4.
Where assistance is denied or postponed, reasons for the denial or postponement
will be given.
CHAPTER XII
Costs
Paragraph 21
1.
Subject to
sub-paragraphs
2 and
3 of this
Paragraph,
the
Customs
Administrations will waive all claims for reimbursement of costs incurred in the
execution of this Memorandum of Understanding.
2.
Unless otherwise agreed, the Requesting Administration will be responsible for
expenses, allowances and costs of experts, witnesses, travel and interpreters.
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3.
If expenses of a substantial or extraordinary nature are or will be required to
execute a request, the Customs Administrations will consult to determine the
terms and conditions under which the request will be executed as well as the
manner in which the costs will be borne.
CHAPTER XIII
Implementation and Application of the Memorandum of Understanding
Paragraph 22
The Customs Administrations will jointly decide on detailed arrangements to facilitate
the application of this Memorandum of Understanding.
Paragraph 23
This Memorandum of Understanding is not intended to create legal relations. It relates
to the Customs territories of both parties as defined in their domestic legal
administrative provisions.
CHAPTER XIV
Settlement of Disputes
Paragraph 24
1. The Customs Administrations will endeavour to resolve disputes or other
difficulties concerning the interpretation or application of this Memorandum of
Understanding by mutual accord.
2.
The Customs Administration will also endeavour to resolve any disputes or
difficulties arising from or in relation to the application of their Customs law by
mutual accord.
3. Unresolved disputes or difficulties will be settled by diplomatic means.
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CHAPTER XV
Final Provisions
Paragraph 25
Coming into Effect
This Memorandum of Understanding will come into effect on the date of signing.
Paragraph 26
Duration and Termination
1. This Memorandum of Understanding is intended to be of unlimited duration but
either Customs Administration may terminate it at any time by notification in
writing.
2. This memorandum of Understanding may be amended at any time by mutual
written consent of the parties.
3. The termination will take effect three months from the date of the notification of
denunciation to the other Customs Administration. Ongoing proceedings at the
time of termination will nonetheless be completed in accordance with the
provisions of this Memorandum of Understanding.
Paragraph 27
Review
The Customs Administrations will meet in order to review this Memorandum of
Understanding on request or at the end of five years from the date of its entry into
force, unless they notify each other in writing that no such review is necessary.
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4JHOFE
4JHOFE
ANNEX 1
PROTECTION OF PERSONAL OAT A
Principles Relevant to the Commentary on Paragraph 19
1. Personal data exchanged under this Memorandum of Understanding may only be
used for the purpose indicated and according to any conditions the Customs
Administration providing that the data may require.
2. On request, the Customs Administration receiving personal data will inform the
Customs Administration which has provided that data of the use made of it and the
results achieved.
3. Personal data will only be transmitted to the other Customs Administration.
Transmission of personal data to any other authorities is only allowed after prior
approval by the Customs Administration providing the data concerned.
4. The Customs Administration transmitting personal data will ensure that this data is
accurate and up to date and not excessive in relation to the purposes for which it is
furnished. Any prohibitions under the national legal or administrative provisions of
either Customs Administrations have to be respected. If personal data transmitted
is found to be incorrect or should not have been exchanged, this will be notified
immediately. The Customs Administration that has received such data will amend
or delete it.
5. On request, any person concerned will be given information about the personal
data stored relating to him or her and its intended use. This obligation to provide
the person concerned with such information does not apply when the public
interest against giving the information exceeds the interest of the person
concerned to obtain that information. The right to obtain information is otherwise
17
subject to the national legal and administrative provisions applicable in the
Customs Administration where the request for information is made. The Customs
Administration that has provided the personal data concerned will be consulted
before a decision on a request for information by a person concerned is taken. If
the request for information is refused, the person concerned will have a remedy. If
the data appears to be inaccurate, not up to date or excessive, it will be amended
or deleted. If the data has been communicated to other bodies or persons, these
will be informed of the amendment or deletion.
6. If investigation based on personal data exchanged under this Memorandum of
Understanding cause damage to a natural person, the Customs Administration
that has used this personal data is responsible for this damage according to the
national
legal and
administrative
provisions applicable in
that Customs
Administration. That Custom Administration cannot disclaim the damage by stating
that the damage has been caused by the Customs Administration which provided
the personal data concerned.
7. Personal data transmitted under this Memorandum of Understanding will only be
kept as long as this is necessary to achieve the purposes for which this data is
exchanged.
When
providing
personal
data
under this
Memorandum
of
Understanding, either Customs Administration will specify any specify time limits
for deletion of this personal data.
8. The Customs Administration will record the transmission and receipt of personal
data under this Memorandum of Understanding.
9. The Customs Administration will take appropriate security measures to protect
personal data exchanged under this Memorandum of Understanding from
unauthorized, alteration or dissemination.
10. The access by any person to personal data stored relating to him or her on the
basis paragraph 5 of this Annex can be either direct or indirect, according to the
national, legal, and administrative provisions.
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