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This is a Bill, not an Act. For current law, see the Acts databases.
1998
The Parliament of
the
Commonwealth of
Australia
THE
SENATE
Presented and read a first
time
Customs
Legislation Amendment Bill (No. 1) 1998
No.
,
1998
(Attorney-General)
A
Bill for an Act to amend legislation relating to Customs, and for related
purposes
ISBN: 0642
377367
Contents
A Bill for an Act to amend legislation relating to
Customs, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Customs Legislation Amendment Act (No. 1)
1998.
(1) Subject to subsections (2) and (3), this Act commences on the day on
which it receives the Royal Assent.
(2) The items of Schedules 1 and 2 commence on a day or days to be fixed
by Proclamation.
(3) If an item to which subsection (2) applies does not commence within 6
months after the day on which this Act receives the Royal Assent, that item
commences on the first day after the end of that period.
Subject to section 2, each Act that is specified in a Schedule to
this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
1 Subsection 4(1) (paragraph (b) of the
definition of Australian seabed)
Repeal the paragraph, substitute:
(b) part of:
(i) the seabed beneath the coastal area; or
(ii) the continental shelf of Australia.
2 Subsection 4(1)
Insert:
contiguous zone, in relation to Australia, means the
contiguous zone within the meaning of the Seas and Submerged Lands Act
1973, adjacent to the coast of Australia.
3 Subsection 4(1)
Insert:
designated place means:
(a) a port, airport or wharf that is appointed, and the limits of which
are fixed, under section 15; or
(b) a place that is the subject of a permission under subsection 58(2)
while the ship or aircraft to which the permission relates remains at that
place; or
(c) a boarding station that is appointed under section 15; or
(d) a place from which a ship or aircraft that is the subject of a
permission under section 175 is required to depart, between the grant of that
permission and the departure of the ship or aircraft; or
(e) a place to which a ship or aircraft that is the subject of a
permission under section 175 is required to return, while that ship or aircraft
remains at that place; or
(f) a section 234AA place that is not a place, or a part of a place,
referred to in paragraph (a), (b), (c), (d) or (e).
4 Subsection 4(1) (definition of
Documents)
Repeal the definition, substitute:
documents include:
(a) any paper or other material on which there is writing; and
(b) any paper or other material on which there are marks, figures, symbols
or perforations having a meaning for persons qualified to interpret them;
and
(c) any paper or other material on which a photographic image or any other
image is recorded; and
(d) any article or material from which sounds, images or writing is
capable of being produced with or without the aid of a computer or of some other
device.
5 Subsection 4(1) (definition of External
search)
Omit “or in the possession of”.
6 Subsection 4(1) (paragraph (c) of the
definition of Frisk search)
Repeal the paragraph, substitute:
(c) determine whether:
(i) if the search is conducted in circumstances described in subsection
219L(1) or (1A)—the person is unlawfully carrying any prohibited goods;
and
(ii) if the search is conducted in circumstances described in subsection
219L(1B)—the person is carrying any weapon or thing capable of being used
to inflict bodily injury on a person conducting a search under Division 1 of
Part XII; and
7 Subsection 4(1) (definition of
Goods)
Repeal the definition, substitute:
goods means movable personal property of any kind and,
without limiting the generality of the expression, includes documents, vessels
and aircraft.
8 Subsection 4(1)
Insert:
section 234AA place means a place that is identified under
section 234AA as a place of a kind referred to in that section.
9 Subsection 4(1)
Insert:
territorial sea, in relation to Australia,
means the territorial sea area whose outer limits are from time to time
specified in a Proclamation made by the Governor-General for the purposes of
section 7 of the Seas and Submerged Lands Act 1973.
10 Subsection 4(19)
Repeal the subsection, substitute:
(19) For the purposes of Part XII, a person will be taken to carry a
thing, including a thing constituting or containing special forfeited goods or
prohibited goods, on his or her body only if the thing constitutes, or is in or
under, clothing worn by the person.
(19A) In subsection (19), the reference to clothing worn by a person
includes a reference to any personal accessory or device that is worn by, or
attached to, the person.
11 Paragraph 4(20)(a)
Omit “17 years”, substitute “18 years”.
12 Subsections 5B(1), (2) and (4) and paragraph
(5)(b)
Insert “an adjacent area or” before “a coastal
area” (wherever occurring).
13 Section 32
Repeal the section.
14 Subsection 58A(1)
Omit “sea”.
15 Paragraph 58A(2)(a)
Repeal the paragraph, substitute:
(a) travels from an external place to:
(i) a sea installation installed in an adjacent area or in a coastal area;
or
(ii) a resources installation attached to the Australian seabed;
whether or not in the course of a longer journey; and
16 Paragraph 58A(3)(a)
Repeal the paragraph, substitute:
(a) are brought from an external place to:
(i) a sea installation installed in an adjacent area or in a coastal area;
or
(ii) a resources installation attached to the Australian seabed;
whether or not previously brought to that place from another place;
and
17 Paragraph 58A(4)(a)
Repeal the paragraph, substitute:
(a) travels from:
(i) a sea installation installed in an adjacent area or in a coastal area;
or
(ii) a resources installation attached to the Australian seabed;
whether or not in the course of a longer journey; and
18 Paragraph 58A(5)(a)
Repeal the paragraph, substitute:
(a) are sent from:
(i) a sea installation installed in an adjacent area or in a coastal area;
or
(ii) a resources installation attached to the Australian seabed;
whether or not the goods are sent on from that place; and
Note: The heading to section 58A is altered by omitting
“sea”.
19 Subsections 58A(6) and
(8)
Omit “a sea” (wherever occurring), substitute
“an”.
20 Subsection 59(1)
Omit all the words after paragraph (1)(a), substitute:
(b) any ship within:
(i) waters of the sea within the outer limits of the territorial sea of
Australia, including such waters within the limits of a State or an internal
Territory; or
(ii) the contiguous zone of Australia; or
(iii) 500 metres of an Australian resources installation or an Australian
sea installation;
to permit the master’s ship to be boarded for the purposes of this
Act.
Note: So far as concerns the boarding of ships in the
contiguous zone of Australia (other than Australian ships), this subsection is
limited by subsection (5A).
21 Subsection 59(2)
Omit all the words after paragraph (2)(a), substitute:
(b) any ship within:
(i) waters of the sea within the outer limits of the territorial sea of
Australia, including such waters within the limits of a State or an internal
Territory; or
(ii) the contiguous zone of Australia; or
(iii) 500 metres of an Australian resources installation or an Australian
sea installation;
to permit the master’s ship to be boarded for the purposes of this
Act.
Note: So far as concerns the boarding of ships in the
contiguous zone of Australia (other than Australian ships), this subsection is
limited by subsection (5A).
22 Subsection 59(3)
Omit “of him”.
23 Subparagraphs 59(4)(b)(ii) and
(iia)
Repeal the subparagraphs, substitute:
(ii) waters of the sea within the outer limits of the territorial sea of
Australia; or
24 Subsection 59(5)
Omit “of him”.
25 After subsection 59(5)
Insert:
(5A) The person in command of the ship or aircraft first-mentioned in
subsection (1) or (2) must not request the master of a ship (other than an
Australian ship) in the contiguous zone (contiguous zone ship) to
permit the contiguous zone ship to be boarded unless the first-mentioned person
has reasonable grounds to suspect that the contiguous zone ship:
(a) has been or is being used, or has been or is otherwise involved, in
the commission of an offence against this Act; or
(b) is about to be so used or to be otherwise so involved.
26 Subsection 73(1)
Omit “12 nautical miles of the base line of the territorial sea of
Australia or within 12 nautical miles of the coast of an island forming part of
Australia”, substitute “waters of the sea within the outer limits of
the territorial sea of Australia, including such waters within the limits of a
State or an internal Territory”.
27 At the end of paragraph
73(2)(a)
Add “or”.
28 Paragraphs 73(2)(b) and
(c)
Repeal the paragraphs, substitute:
(b) in, or flying over, waters of the sea within the outer limits of the
territorial sea of Australia.
29 Subsection 175(1)
Insert:
Australian aircraft has the same meaning as in the Civil
Aviation Act 1988.
30 Subsection 175(1)
Insert:
Australian ship has the same meaning as in the Shipping
Registration Act 1981.
31 Subsection 175(1)
Insert:
coastal aircraft means an aircraft that is not currently
engaged in making:
(a) an international flight; or
(b) a prescribed flight.
32 Subsection 175(1)
Insert:
coastal ship means a ship that is not currently engaged in
making:
(a) an international voyage; or
(b) a prescribed voyage.
33 Subsection 175(1) (definition of
prescribed aircraft)
Repeal the definition.
34 Subsection 175(1) (definition of
prescribed ship)
Repeal the definition.
35 Subsection 175(1) (definition of
prescribed voyage)
Repeal the definition, substitute:
prescribed voyage, in relation to a ship, means a voyage in
the course of which the ship:
(a) travels between places outside Australia; or
(b) travels from a place outside Australia and returns to that
place;
and does not call at a place in Australia.
36 Subsection 175(2)
Omit “prescribed ship shall not allow any goods to be transferred
between the prescribed ship”, substitute “coastal ship must not
allow any goods to be transferred between the coastal ship”.
37 Subsection 175(2)
(penalty)
Omit “$25,000”, substitute “250 penalty
units”.
38 Subsection 175(3)
Omit “prescribed aircraft shall not allow any goods to be transferred
between the prescribed aircraft”, substitute “coastal aircraft must
not allow any goods to be transferred between the coastal
aircraft”.
39 Subsection 175(3)
(penalty)
Omit “$25,000”, substitute “250 penalty
units”.
40 After subsection 175(3)
Insert:
(3A) Except with the permission of a Collector or for the purpose of
securing the safety of a ship or an aircraft or saving life, a person who
is:
(a) the owner or master of an Australian ship that is currently engaged in
making an international voyage or a prescribed voyage; or
(b) the owner or pilot of an Australian aircraft that is currently engaged
in making an international flight or prescribed flight;
must not allow any goods to be transferred between that ship or aircraft
and:
(c) a coastal ship; or
(d) a coastal aircraft.
Penalty: 250 penalty units.
(3B) Except with the permission of a Collector or for the purpose of
securing the safety of a ship or an aircraft or saving life, a person who
is:
(a) the owner or master of a ship (other than an Australian ship) that is
currently engaged in making an international voyage or a prescribed voyage;
or
(b) the owner or pilot of an aircraft (other than an Australian aircraft)
that is currently engaged in making an international flight or a prescribed
flight;
must not allow any goods to be transferred between that ship or aircraft
and a coastal ship or coastal aircraft if the transfer takes place in, or in the
airspace above (as the case may be), the waters of the sea within:
(c) the outer limits of the territorial sea of Australia, including such
waters within the limits of a State or an internal Territory; or
(d) 500 metres of an Australian resources installation or an Australian
sea installation.
Penalty: 250 penalty units.
(3C) For the purposes of this section, a reference to the permission of a
Collector in subsection (2), (3), (3A) or (3B) is a reference to a permission of
the Collector given to:
(a) in the case of subsection (2)—the owner or master of the coastal
ship referred to in that subsection; and
(b) in the case of subsection (3)—the owner or pilot of the coastal
aircraft referred to in that subsection; and
(c) in the case of subsection (3A) or (3B)—the owner or master of
the coastal ship referred to in that subsection or the owner or pilot of the
coastal aircraft referred to in that subsection (as the case
requires).
41 Subsection 175(4)
Omit “or (3)”, substitute “, (3), (3A) or
(3B)”.
42 Subsection 175(7)
Omit “$10,000”, substitute “100 penalty
units”.
43 Subsection 183UA(1) (paragraph (b) of the
definition of container)
Repeal the paragraph, substitute:
(b) any baggage; and
(c) any other thing that is or could be used for the carriage of goods,
whether or not designed for that purpose.
44 Subsection 183UA(1) (at the end of the
definition of Customs place)
Add:
; or (g) a place from which a ship or aircraft that is the subject of a
permission under section 175 is required to depart, between the grant of that
permission and the departure of the ship or aircraft; or
(h) a place to which a ship or aircraft that is the subject of a
permission under section 175 is required to return, while that ship or aircraft
remains at that place; or
(i) a section 234AA place that is not a place, or a part of a place,
referred to in paragraph (aa), (a), (b), (c), (d), (g) or (h).
45 Subsection 183UA(1)
Insert:
designated container means a container referred to in
paragraph (c) of the definition of container.
46 After subsection 185(2)
Insert:
(2A) Any exercise of the power of arrest referred to in subsection (2) in
the contiguous zone in relation to Australia is subject to the obligations of
Australia under international law, including obligations under any treaty or
convention or other agreement between Australia and another country or other
countries.
47 Section 186
Omit “open packages and examine weigh mark and seal”,
substitute “, subject to subsections (2) and (3),
examine”.
48 At the end of section
186
Add:
(2) In the exercise of the power to examine goods, the officer of Customs
may do, or arrange for another officer of Customs or other person having the
necessary experience to do, whatever is reasonably necessary to permit the
examination of the goods concerned.
(3) Without limiting the generality of subsection (2), examples of what
may be done in the examination of goods include the following:
(a) opening any package in which goods are or may be contained;
(b) using a device, such as an X-ray machine or ion scanning equipment, on
the goods;
(c) testing or analysing the goods;
(d) measuring or counting the goods;
(e) if the goods are a document—reading the document either directly
or with the use of an electronic device;
(f) using dogs to assist in examining the goods.
Note: The heading to section 186 is replaced by the heading
“General powers of examination of goods subject to Customs
control”.
(1) If:
(a) a document is examined under section 186; and
(b) as a result of that examination, an officer of Customs is satisfied
that the document or part of the document may contain information relevant to an
importation or exportation, or to a proposed importation or exportation, of
prohibited goods;
the officer of Customs may make a copy of, or take an extract from, the
document, or arrange for another officer of Customs or other person having the
necessary experience, to make such a copy or take such an extract.
(2) Without limiting the generality of subsection (1), a copy may be made
of, or an extract taken from, a document:
(a) by photocopying the document or a part of the document; or
(b) by photographing the document or a part of the document; or
(c) by electronically scanning the document or a part of the document;
or
(d) by making an electronic copy of information contained in the document
or a part of the document; or
(e) by making a written copy of information contained in the document or a
part of the document.
(1) If an activity undertaken in relation to the copying of a document, or
the taking of an extract from a document, causes its loss or destruction or
causes damage to the document, and the loss or destruction or the damage
occurred wholly or partly as a result of:
(a) insufficient care being exercised in selecting the person to undertake
the activity; or
(b) insufficient care being exercised by the person undertaking the
activity;
compensation for the damage is payable to the owner of the documents
concerned.
(2) Compensation is payable out of money appropriated by the Parliament
for the purpose.
(3) In this section, a reference either to the loss or destruction of a
document, or to damage to a document, includes a reference to the erasure or
addition of electronic data or the corruption of such data.
49 At the end of section
197
Add:
(6) A person in charge of a conveyance is guilty of an offence
if:
(a) the conveyance is about to leave a Customs place; and
(b) an officer of Customs requires the conveyance to stop; and
(c) the person does not stop the conveyance as so required.
Penalty: 45 penalty units
(7) This offence is an offence of strict liability.
50 Subsection 203B(1)
Repeal the subsection, substitute:
(1) This section applies in 2 circumstances, namely:
(a) in a circumstance where an authorised person suspects on reasonable
grounds that there are special forfeited goods:
(i) at, or in a container (other than a designated container in the
immediate physical possession of a person to whom subparagraph (b)(i) applies)
at, a Customs place; or
(ii) in, on, or in a container (other than a designated container in the
immediate physical possession of a person to whom subparagraph (b)(i) applies)
on, a conveyance at a Customs place; or
(b) in a circumstance where a person:
(i) is at a Customs place that is also a designated place; and
(ii) has a designated container, or has goods reasonably suspected by an
authorised person to be special forfeited goods, in his or her immediate
physical possession; but
(iii) is not carrying that container or those goods on his or her
body.
51 Subsection 203B(1)
(note)
Repeal the note, substitute:
Note 1: Container and designated
container have special definitions for the purposes only of this
Division.
Note 2: The baggage of a passenger entering or leaving
Australia or of the captain or crew of a vessel or aircraft so entering or
leaving is not a designated container
Note 3: To determine the question whether a person is
carrying a designated container, or goods reasonably suspected of being special
forfeited goods, on his or her body, see subsection 4(19).
52 Subsection 203B(2)
Omit “The authorised person”, substitute “In the
circumstance referred to in paragraph (1)(a), the authorised
person”.
53 Paragraphs 203B(2)(a) and
(b)
Omit “the special forfeited goods” (wherever occurring),
substitute “special forfeited goods”.
54 Subsection 203B(2)
Omit “the goods”, substitute “any goods that the
authorised person reasonably suspects are special forfeited
goods”.
55 After subsection 203B(2)
Insert:
(2A) In the circumstance referred to in paragraph (1)(b), an authorised
person who is an officer of Customs may, without warrant:
(a) search any designated container in the immediate physical possession
of the person to whom that paragraph applies; and
(b) seize any goods reasonably suspected by the authorised person of being
special forfeited goods (whether or not those goods are found as a result of
such a search).
(2B) An authorised person must not exercise the powers referred to in
subsection (2A) unless the person having immediate physical possession of the
container to be searched is present at the time when the container is
searched.
(2C) For the avoidance of doubt, the power of the authorised person under
subsection (2) to seize, without warrant, goods found as a result of a search
of, or at, a Customs place that are reasonably suspected of being special
forfeited goods includes the power to seize, without warrant, any goods
that:
(a) have been produced as a result of a frisk search of a person;
or
(b) have been discovered on the body of a person as a result of an
external search or an internal search of the person;
if the search is conducted under Division 1B at the Customs place and the
goods are reasonably so suspected.
56 Subsection 203B(3)
After “searching”, insert “under subsection (2) or
(2A)”.
57 Subsection 203B(4)
Omit “the search”, substitute “a search conducted under
subsection (2) or (2A)”.
58 Subparagraph
203C(1)(a)(ii)
Repeal the subparagraph, substitute:
(ii) in, on, or in a container on, a conveyance at a place other than a
Customs place; or
(iii) in a container in the immediate physical possession of, but not
carried on the body of, a person at a place other than a Customs place;
and
59 Paragraphs 203C(2)(a) and
(b)
Omit “the narcotic goods” (wherever occurring), substitute
“narcotic goods”.
60 After paragraph
203C(2)(b)
Insert:
or (c) search the container in the immediate physical possession of the
person for narcotic goods;
61 Subsection 203C(2)
Omit “the goods”, substitute “any goods that the
authorised person reasonably suspects are narcotic goods”.
62 After subsection 203C(2)
Insert:
(2A) For the avoidance of doubt, the power of the authorised person to
seize, without warrant, goods found at a place other than a Customs place that
are reasonably suspected of being narcotic goods includes the power to seize,
without warrant, any goods that:
(a) have been produced as a result of a frisk search of a person;
or
(b) have been discovered on the body of a person as a result of an
external search or an internal search of the person;
if the search is conducted under Division 1B at a place other than a
Customs place and the goods are reasonably so suspected.
63 Subsection 203C(3)
After “searching”, insert “under subsection
(2)”.
64 Subsection 203C(4)
Omit “the search”, substitute “a search conducted under
subsection (2)”.
65 Subsection 203D(2)
Repeal the subsection, substitute:
(2) An authorised person exercising a power under section 203B or 203C may
use such force as is necessary and reasonable in the circumstances, but must
not:
(a) forcibly remove any container or other goods from a person’s
physical possession; or
(b) damage any place, conveyance, container or other goods of which the
person is apparently in charge;
unless:
(c) the person has been given a reasonable opportunity to facilitate the
search by providing access to the place, conveyance, container or goods or by
opening the conveyance or container; or
(d) it is not possible to give that person such an opportunity.
66 Subdivision G (heading)
Repeal the heading, substitute:
67 Subsections 205(1) and 205B(1), section 205C,
subsections 205D(1), 205E(1), 206(1), (2) and (5) and 207(1), section 208D and
subsection 208DA(1) (definition of condemned goods)
After “203B(2)” (wherever occurring), insert “or
(2A)”.
Note: The heading to section 205E is altered by inserting
“or (2A)” after
“203B(2)”.
68 Subparagraph
219A(2)(c)(i)
After “203B(2)”, insert “or (2A)”.
69 Subsection 219L(1)
After “any prohibited goods”, insert “on his or her
body”.
70 Subsection 219L(1)
Omit “a place identified under section 234AA as a place of a kind
referred to in that section”, substitute “a designated
place”.
71 After subsection 219L(1)
Insert:
(1A) If:
(a) officers have boarded a ship, aircraft or installation under section
185 or 187 for the purpose of conducting a search, or exercising any other
power, under that section, in relation to that ship, aircraft or installation;
and
(b) a detention officer suspects on reasonable grounds that a person who
is on board the ship, aircraft or installation is unlawfully carrying prohibited
goods on his or her body;
the detention officer may detain the person for the purpose of being
searched under this Subdivision.
(1B) If:
(a) officers have boarded a ship or aircraft under section 185 for the
purpose of conducting a search, or exercising any other power, under that
section, in relation to that ship or aircraft; and
(b) a detention officer suspects on reasonable grounds that a
person:
(i) who is on board the ship or aircraft; or
(ii) who is about to board, or has boarded, a Customs vessel for a purpose
connected with the conduct of such a search or the exercise of such other
power;
is carrying on his or her body any weapon or thing that is capable of
being used to inflict bodily injury on an officer conducting that search or
exercising that other power;
the detention officer may detain the person for the purpose of being
searched under this Subdivision.
72 Subsection 219L(2)
Omit “subsection (1), a suspicion on reasonable grounds”,
substitute “subsection (1), (1A) or (1B), a suspicion on reasonable
grounds for the purposes of that subsection”.
73 Paragraph 219L(2)(e)
Repeal the paragraph, substitute:
(e) the contents of or appearance of any visible item carried by the
person or, if the person has baggage, of the person’s baggage, whether or
not carried by the person;
(f) the answers given by the person in relation to questions asked by an
officer of Customs in the exercise of powers under this Act, or the refusal or
failure of the person to answer such questions;
(g) the documents produced by the person in compliance with an obligation
under this Act, or the refusal or failure of the person to produce such
documents.
74 Subsection 219M(2)
After “frisk search”, insert “of a person who is detained
in a designated place that is a section 234AA place”.
75 At the end of section
219M
Add:
(3) If the detainee is detained at a designated place other than a section
234AA place, then, in the conduct of a frisk search of the detainee, the officer
conducting the search must use his or her best endeavours to give the detainee
as much personal privacy as the circumstances of the search allow.
(4) Before carrying out the frisk search of a person who is detained under
section 219L(1B), the officer of Customs must:
(a) inform the person that the person is being detained so that a search
for any weapon or thing capable of being used to inflict bodily injury on an
officer can be conducted; and
(b) inform the person:
(i) that the person must submit to the search; and
(ii) that if, as a result of the search, an officer of Customs finds any
thing, the officer may take possession of the thing so found; and
(iii) that if the person fails to submit to the search, or, having
submitted to the search, attempts to prevent an officer of Customs taking
possession of any thing found as a result of the search, an officer of Customs
may use reasonable force to conduct the search and to take possession of that
thing.
76 Section 219N
Repeal the section, substitute:
The officer of Customs carrying out a frisk search of a person detained
in the circumstances referred to in subsection 219L(1) or (1A) may require the
production of any thing found, as a result of that search, to be carried on the
body of the detainee in order to determine whether it is, or contains,
prohibited goods unlawfully carried by the detainee.
(1) If a person detained in the circumstances set out in subsection
219L(1B):
(a) refuses to submit to a frisk search by an officer of Customs under
this Subdivision; or
(b) having submitted to a frisk search, attempts to prevent an officer of
Customs taking possession of any thing found as a result of that search that
might be used to inflict bodily injury on an officer conducting a search, or
exercising any other power, under section 185;
the officer of Customs detaining the person may use reasonable force to
conduct that search or to take possession of that thing, as the case
requires.
(2) The officer of Customs who has taken possession of a thing under
subsection (1) may retain custody of the thing for so long only as is necessary
to permit the conduct of the search, or the exercise of that other power, under
section 185, without risk of injury.
(3) For the avoidance of doubt, an officer of Customs may, under section
203C, or under a warrant granted under section 203 or 203M, seize any prohibited
goods:
(a) that the officer would be authorised to seize under that section or
that warrant; and
(b) that, in the course of carrying out a frisk search of a person, are
found by the officer to be carried on the person’s body;
even though the person was detained for the purposes of the search in the
circumstances set out in subsection 219L(1B).
77 Section 219P
Omit “section 219L”, substitute “subsection 219L(1) or
(1A)”.
78 Subsection 219Q(1)
After “any prohibited goods”, insert “on his or her
body”.
79 Paragraph 219R(1)(b)
After “carrying prohibited goods”, insert “on his or her
body”.
80 Paragraph 219R(1)(d)
Repeal the paragraph, substitute:
(d) in any other case, the detention officer or police officer must, as
soon as practicable, apply to a Justice or, in the circumstances set out in
subsection (1A), to an authorised officer, for an order for an external search
of the detainee.
81 After subsection 219R(1)
Insert:
(1A) The detention officer or police officer may apply to an authorised
officer only if:
(a) the detainee has waived his or her right to have the application for
an order considered by a Justice; or
(b) a Justice is not reasonably available to consider such an
application.
82 Paragraph 219R(12)(d)
After “carried by the person”, insert “on his or her
body”.
83 After subsection
219ZC(2)
Insert:
(2A) Without otherwise limiting the application of subsection (2), the use
of force in actually conducting an external search of a detainee will be
regarded as reasonable and necessary:
(a) if an order has been made by a Justice under section 219R and the
detainee does not submit to the search; or
(b) if an order has been made under that section by an authorised officer
because a Justice was not reasonably available and the detainee does not submit
to the search.
84 After paragraph
219ZE(1)(c)
Insert:
(ca) if the detention is under Subdivision A in the circumstances referred
to in subsection 219L(1) or (1A)—no detention officer suspects on
reasonable grounds that the person is unlawfully carrying prohibited goods on
his or her body; or
(cb) if the detention is under Subdivision A in the circumstances referred
to in subsection 219L(1B)—no detention officer suspects on reasonable
grounds that the person is carrying on his or her body a weapon or thing capable
of being used to inflict bodily injury on an officer of Customs; or
85 Paragraph 219ZE(1)(d)
After “carrying prohibited goods”, insert “on his or her
body”.
86 After subsection
219ZL(4)
Insert:
(4A) No civil or criminal action is to be brought against a Justice in
respect of anything done, or omitted to be done, in performing the function of,
or a function connected with, making an order under section 219R.
87 After Part XII
Insert:
This Part deals with certain weapons on board a ship or an aircraft that
is in Australia after arriving in Australia from a place outside Australia. The
Part empowers an officer, under certain circumstances:
(a) to approve a storage place on the ship or aircraft for the purpose of
safekeeping the weapon; or
(b) to take the weapon into custody;
for a period that ends when the ship or aircraft departs from Australia or
otherwise ceases to be subject to this Part.
In this Part:
operator means:
(a) in relation to a ship—the owner or master of the ship;
and
(b) in relation to an aircraft—the owner or pilot of the
aircraft.
prohibited weapon means a thing that is a firearm, firearm
accessory, firearm part, firearm magazine or ammunition to which this Part
applies because of section 227D.
(1) This Part applies to a ship if:
(a) the ship is in Australia after undertaking a voyage to Australia from
a place outside Australia; and
(b) the ship is not a ship that is taken to have been imported into
Australia under subsection 49A(7).
(2) This Part applies to an aircraft if:
(a) the aircraft is in Australia after undertaking a flight to Australia
from a place outside Australia; and
(b) the aircraft is not an aircraft that is taken to have been imported
into Australia under subsection 49A(7).
(3) This Part ceases to apply to a ship when:
(a) the ship has departed from its last port in Australia for a place
outside Australia; or
(b) the ship is taken to have been imported into Australia under
subsection 49A(7).
(4) This Part ceases to apply to an aircraft when:
(a) the aircraft has departed from its last airport in Australia for a
place outside Australia; or
(b) the aircraft is taken to have been imported into Australia under
subsection 49A(7).
(5) If:
(a) this Part ceased to apply to a ship because the ship has departed from
its last port in Australia as mentioned in paragraph (3)(a); but
(b) the ship returns to Australia before completing a voyage to a place
outside Australia;
then, subject to paragraph (1)(b) and subsection (3), this Part applies to
the ship after it has so returned as if it has just undertaken a voyage to
Australia from a place outside Australia.
(6) If:
(a) this Part ceased to apply to an aircraft because the aircraft has
departed from its last airport in Australia as mentioned in paragraph (4)(a);
but
(b) the aircraft returns to Australia before completing a flight to a
place outside Australia;
then, subject to paragraph (2)(b) and subsection (4), this Part applies to
the aircraft after it has been so returned as if it has just undertaken a flight
to Australia from a place outside Australia.
This Part applies to any thing that is a firearm, firearm accessory,
firearm part, firearm magazine or ammunition if:
(a) it is on board a ship or an aircraft to which this Part applies; and
(b) it falls within column 2 of an item in Part 2 of Schedule 6 to
Regulation 4F of the Customs (Prohibited Imports) Regulations; and
(c) it does not meet the requirements that apply to that thing as
specified in column 3 of that item in that Part of that Schedule; and
(d) it is, or should have been, specified in a report given by the
operator under section 64AA as part of the stores, or personal effects of the
crew, of the ship or aircraft.
(1) An officer may, in writing, approve a place on board a ship or an
aircraft to which this Part applies as a place in which a prohibited weapon on
board that ship or aircraft must be stored while this Part applies to the ship
or aircraft.
(2) An officer must not give the approval unless the officer is satisfied
that:
(a) only the operator concerned may access the place; and
(b) the place is otherwise sufficiently secure for the purposes of
preventing persons from removing the weapon from the place.
Example: If a safe on board a ship is sought to be approved
under subsection (1), the approval may not be given if a person other than the
operator of the ship holds a key to the safe.
(3) An officer may place a fastening, or a lock, mark or seal on an
approved place for the purposes of preventing persons from accessing that
place.
(4) If an approval under subsection (1) is not revoked at an earlier time,
it continues to be in force until this Part ceases to apply to the ship or
aircraft concerned.
(5) While an approval under subsection (1) is in force in relation to a
prohibited weapon, a person must not, without written permission of an
officer:
(a) interfere in any way with any fastening, lock, mark or seal placed on
the approved place by an officer; or
(b) remove the weapon from the approved place.
Penalty: 45 penalty units.
(6) An offence against subsection (5) is an offence of strict
liability.
(1) If:
(a) this Part applies to a prohibited weapon on board a ship or aircraft;
and
(b) no approval under section 227E is in force in relation to a place on
board that ship or aircraft as the place for storing that weapon;
an officer must take custody of that weapon.
(2) Within 48 hours after taking custody of the weapon, an officer must
give a written notice to the operator of the ship or aircraft under this
section.
(3) The notice must be in an approved form.
(4) Without limiting subsection (3), the notice must identify the
prohibited weapon concerned.
(5) The CEO must ensure that a weapon taken into custody under this
section is:
(a) securely stored while it is in custody under this section;
and
(b) returned to the operator of the ship or aircraft concerned:
(i) if subparagraph (ii) does not apply—when the ship is at its last
port of call in Australia, or when the aircraft is at its last airport of call
in Australia, and after a Certificate of Clearance referred to in section 118
has been granted in relation to the departure of that ship from that port, or
the departure of the aircraft from that airport (as the case requires);
or
(ii) when this Part ceases to apply to the ship or aircraft because it is
taken to have been imported into Australia under subsection 49A(7).
(6) To avoid doubt, subsection (5) does not affect the power of an officer
to seize or otherwise deal with the weapon under this Act (including provisions
in this Act relating to prohibited goods) when this Part ceases to apply to the
ship or aircraft concerned.
(7) After a weapon is returned to the operator under subsection (5) and
before the ship or aircraft leaves Australia, the operator concerned must comply
with any conditions specified by the CEO in relation to the storage of that
weapon.
(1) If:
(a) an activity undertaken by or on behalf of Customs in relation to a
prohibited weapon taken into custody under this Part causes the loss or
destruction of, or damage to, that weapon; and
(b) the loss, destruction or damage occurred wholly or partly as a result
of:
(i) insufficient care being exercised in selecting the persons to
undertake the activity; or
(ii) insufficient care being exercised by the person undertaking that
activity;
compensation for the loss, destruction or damage is payable to the owner of
the weapon concerned.
(2) Compensation is payable out of money appropriated by the Parliament
for the purpose.
88 Section 278
Repeal the section.
1 Subsections 16(1), (2) and
(3)
Repeal the subsections, substitute:
Overview
(1) This section:
(a) prohibits the unauthorised disclosure and recording of certain
information held by the Australian Customs Service (see subsection (2));
and
(b) provides for a number of exceptions in relation to that prohibition
(see subsections (3) to (4)); and
(c) makes other provisions that relate to each of those exceptions
(including, in particular, the provisions on the disclosure of personal
information under subsections (7) to (10)).
Definitions
(1A) In this section:
AQIS means the operating group within the Department of
Primary Industries and Energy having responsibility in relation to the
administration of the Imported Food Control Act 1992 and the
Quarantine Act 1908.
authorised officer of AQIS means the Secretary to the
Department of Primary Industries and Energy or an officer of AQIS appointed by
the Secretary under the Imported Food Control Act 1992 to be an
authorised officer for the purpose of any provision of that Act.
authorised person means:
(a) the CEO; or
(b) a person performing duties in the Australian Customs Service as a
person employed or engaged by the Commonwealth, a Commonwealth agency, a State
or a State agency; or
(c) any of the following persons:
(i) a person engaged to provide goods or services to the Commonwealth
through the Australian Customs Service (whether or not under an agreement to
which the Commonwealth is a party);
(ii) if the person mentioned in subparagraph (i) is a body
corporate—a director, an employee or an agent, of that body
corporate;
(iii) if the person mentioned in subparagraph (i) is an
individual—an employee or an agent of that individual; or
(d) a person to whom the CEO has delegated a power or function of the CEO
under a law of customs or excise or any other law of the Commonwealth;
or
(e) a person authorised by the CEO to exercise a power or function of the
CEO under a law of customs or excise or under any other law of the
Commonwealth.
Commonwealth agency means any instrumentality or agency of
the Crown in right of the Commonwealth, and includes a department of the public
service of the Commonwealth and any body corporate in which the Commonwealth
holds a controlling interest, but does not include a Minister of the Crown in
right of the Commonwealth.
duties, in relation to an authorised person, means the duties
of the person in the capacity because of which he or she is an authorised person
and only includes such duties that are performed in or in connection with the
Australian Customs Service.
Example: In the case of an authorised person who is employed
by a State agency, the person’s duties, for the purposes of this section,
include only those duties performed in or in connection with the Australian
Customs Service as such an employee and does not include the person’s
other duties as an employee of that State agency.
food has the same meaning as in the Imported Food Control
Act 1992.
international organisation means:
(a) an international organisation within the meaning of the Diplomatic
Privileges and Immunities Act 1967; and
(b) any other international organisation prescribed by the regulations for
the purposes of this paragraph.
personal information has the same meaning as in the
Privacy Act 1988.
principal officer, in relation to a
Commonwealth agency or a State agency, means:
(a) if the agency is constituted by one person—that person;
and
(b) if the agency is constituted by more than one person—the person
who is entitled to preside at any meeting of the agency at which he or she is
present; and
(c) in any other case—the person holding, or performing the duties
of, the office of the head of that agency.
protected information means information that directly or
indirectly comes to the knowledge of, or into the possession of, an authorised
person while the authorised person is performing his or her duties (whether the
information is related to those duties or not).
State includes the Northern Territory and the Australian
Capital Territory.
State agency means any instrumentality or agency of the Crown
in right of a State, and includes a department of the public service of the
State and any body corporate in which the State holds a controlling interest,
but does not include a Minister of the Crown in right of the State, a municipal
corporation or any other local government body.
Prohibition against disclosure etc. of protected
information
(2) A person who is or has been an authorised person must not directly or
indirectly:
(a) make a record of any protected information; or
(b) disclose to any person any protected information;
except:
(c) as authorised by this section; or
(d) as required or authorised by any other law; or
(e) in the course of performing the person’s duties.
Penalty: Imprisonment for 2 years.
Authorised disclosure under this section
(3) Subject to subsections (7), (8) and (10), a person is authorised by
this section to carry out an act referred to in paragraph (2)(a) or (b) if it is
carried out:
(a) in accordance with an authorisation by the CEO that is referred to in
subsection (3A), (3B), (3C) or (3D); or
(b) as provided in subsection (3F) or (4).
CEO’s authorisation—Commonwealth agency
(3A) Subject to subsections (3E), (7), (8) and (10), if the CEO is
satisfied that:
(a) information or a class of information held by the Australian Customs
Service will be used by a Commonwealth agency for the purposes of that
agency’s functions; and
(b) the Commonwealth agency has undertaken not to use or further disclose
such information or class of information except for the purpose referred to in
paragraph (d) or otherwise as required or authorised by law;
the CEO may in writing:
(c) authorise the disclosure by an authorised person of the information or
the class of information to the principal officer of, or a person authorised to
act on behalf of, that agency; and
(d) specify the purpose for which the disclosure is authorised to be made
and the manner in which, or the conditions under which, the disclosure is to be
made (including the form in which the information is to be presented and the
mode of transmitting that information).
CEO’s authorisation—State agency for Commonwealth
purposes
(3B) Subject to subsections (3E), (7), (8) and (10), if the CEO is
satisfied that:
(a) information or a class of information held by the Australian Customs
Service will be used by a State agency for purposes relating to the carrying out
of a Commonwealth function by that agency; and
(b) the State agency has undertaken not to use or further disclose such
information or class of information except for the purpose referred to in
paragraph (d) or otherwise as required or authorised by law;
the CEO may in writing:
(c) authorise the disclosure by an authorised person of the information or
the class of information to the principal officer of, or a person authorised to
act on behalf of, that agency; and
(d) specify the purpose for which the disclosure is authorised to be made
and the manner in which, or the conditions under which, the disclosure is to be
made (including the form in which the information is to be presented and the
mode of transmitting that information).
CEO’s authorisation—State agency for State
purposes
(3C) Subject to subsections (3E), (7), (8) and (10), if the CEO is
satisfied that:
(a) information or a class of information held by the Australian Customs
Service will be used by a State agency for the purposes of the performance of
the functions of the State agency; and
(b) the State agency has undertaken not to use or further disclose such
information or class of information except for the purpose referred to in
paragraph (d) or otherwise as required or authorised by law;
the CEO may in writing:
(c) authorise the disclosure by an authorised person of the information or
the class of information to the principal officer of, or a person authorised to
act on behalf of, that agency; and
(d) specify the purpose for which the disclosure is authorised to be made
and the manner in which, or the conditions under which, the disclosure is to be
made (including the form in which the information is to be presented and the
mode of transmitting that information).
CEO’s authorisation—certain agreements
(3D) Subject to subsections (3E), (7), (8) and (10), if the CEO is
satisfied that:
(a) information or a class of information held by the Australian Customs
Service will be used in accordance with an agreement that has been entered into
by the Commonwealth or a Commonwealth agency and one or more of any of the
following:
(i) a foreign country;
(ii) an instrumentality or agency of a foreign country;
(iii) an international organisation; and
(b) the country, instrumentality, agency or organisation has undertaken
not to use or further disclose that information except for the purpose referred
to in paragraph (d) or otherwise as required or authorised by law;
the CEO may in writing:
(c) authorise the disclosure by an authorised person of the information or
the class of the information to a person authorised to act on behalf of that
country, instrumentality, agency or organisation; and
(d) specify the purpose for which the disclosure is authorised to be made
and the manner in which, or the conditions under which, the disclosure is to be
made (including the form in which the information is to be presented and the
mode of transmitting that information).
Specified purpose in an authorisation by the CEO
(3E) The CEO may only specify a purpose for the disclosure of information
or a class of information in an authorisation under subsection (3A), (3B), (3C)
or (3D) that:
(a) in the case of subsection (3A)—is related to the performance of
the functions of the Commonwealth agency concerned; and
(b) in the case of subsection (3B)—is related to the performance of
the Commonwealth function concerned; and
(c) in the case of subsection (3C)—is related to the performance of
the functions of the State agency concerned; and
(d) in the case of subsection (3D)—is related to the purpose of the
agreement concerned.
Note: The obligations under subsection (3E) is affected by
paragraph (8)(b) if the information concerned contains personal
information.
Authorised disclosure because of threat to health or life
(3F) A person may carry out an act referred to in paragraph (2)(a) or (b)
if there are reasonable grounds for that person to believe that:
(a) a serious and imminent threat to the health or life of a person or
persons exists or might exist; and
(b) it is necessary to carry out that act in order to avert or reduce that
threat.
Note 1: The following heading to subsection 16(4) is
inserted “Authorised disclosure of cargo reports
etc.”.
Note 2: The following heading to subsection 16(5) is
inserted “Prohibition against further
disclosure”.
Note 3: The following heading to subsection 16(6) is
inserted “Computer access to certain
information”.
2 Subsection 16(7)
Repeal the subsection, substitute:
Disclosure of personal information
(7) If:
(a) apart from this subsection, a person is authorised by this section to
carry out an act referred to in paragraph (2)(a) or (b) because of the operation
of subsection (3A), (3B), (3C), (3D) or (4); and
(b) the act involves the disclosure by that person to another person or to
a body of information (including a class of information) that contains personal
information;
then, despite the preceding provisions in this section, the person is not
to be taken to be authorised by this section to carry out that act
unless:
(c) the disclosure complies with subsection (8); and
(d) in the case of a disclosure of a class of information pursuant to an
authorisation under subsection (3A), (3B), (3C) or (3D)—the disclosure
also complies with subsection (10).
Requirements applicable to disclosure of information containing personal
information
(8) This subsection is complied with in relation to the disclosure of
information as referred to in subsection (7) if:
(a) the CEO is satisfied that the disclosure is necessary for a
permissible purpose referred to in a paragraph of subsection (9); and
(b) the purpose is specified as the purpose for which the disclosure is
authorised to be made in:
(i) an authorisation under subsection (3A), (3B), (3C) or (3D) that
applies to the disclosure; or
(ii) in the case of a disclosure under subsection (4)— a written
approval of that disclosure made by the CEO under this subsection; and
(c) the disclosure is made for that purpose.
Permissible purposes
(9) A purpose specified in any of the following paragraphs is a
permissible purpose for the purpose of subsection (8):
(a) the administration or enforcement of a law of the Commonwealth, of a
Territory or of another country that relates to:
(i) criminal law; or
(ii) a law imposing a pecuniary penalty or providing for the forfeiture of
property;
(b) in relation to a law referred to in paragraph (a), the prevention of
crime, or the detection or analysis of criminal conduct, in respect of that
law;
(c) the administration or enforcement of a law of a State that relates
to:
(i) criminal law; or
(ii) a law imposing a pecuniary penalty or providing for the forfeiture of
property;
(d) in relation to a law referred to in paragraph (c), the prevention of
crime, or the detection or analysis of criminal conduct, in respect of that
law;
(e) a purpose relating to the protection of public health, or the
prevention or elimination of risks to the life or safety of an individual or a
group of individuals;
(f) the collection of the public revenue of the Commonwealth, a Territory
or another country;
(g) the collection of the public revenue of a State;
(h) a purpose relating to a law of customs or excise;
(i) a purpose relating to immigration, quarantine or border control
between Australia or another country;
(j) the administration or enforcement of laws with respect to
commerce:
(i) between a State and another State; or
(ii) between a State and a Territory; or
(iii) between a Territory and another Territory; or
(iv) between Australia and another country;
(k) the administration or enforcement of laws with respect to commerce
within a State.
Additional requirements concerning classes of information
(10) This subsection is complied with in relation to a disclosure of a
class of information pursuant to an authorisation under subsection (3A), (3B),
(3C) or (3D) as referred to in subsection (7) if:
(a) the disclosure is made to a Commonwealth agency, State agency, a
foreign country, an instrumentality or agency of a foreign country or an
international organisation, that is specified in the regulations; and
(b) the class of information specified by the CEO in the authorisation is
specified in the regulations as a class of information that may be disclosed to
the agency, country, instrumentality or organisation concerned.
3 After section 16
Insert:
(1) This section applies for the purposes of a prosecution for:
(a) an offence created by a provision in this Act or the regulations;
or
(b) an offence created by section 5, 6, 7 or 7A or subsection 86(1) of the
Crimes Act 1914 that relates to an offence referred to in paragraph
(a).
(2) If it is necessary to prove the state of mind of a body corporate in
relation to particular conduct, it is enough to show that:
(a) the conduct was engaged in by a director, employee or agent of the
body corporate within the scope of his or her actual or apparent authority;
and
(b) the director, employee or agent had the state of mind.
(3) If:
(a) conduct is engaged in on behalf of a body corporate by a director,
employee or agent of the body corporate; and
(b) the conduct is within the scope of his or her actual or apparent
authority;
the conduct is taken, for the purposes of the prosecution of an offence
against this Act, to have been engaged in also by the body corporate unless the
body corporate establishes that it took reasonable precautions and exercised due
diligence to avoid the conduct.
(4) If it is necessary to establish the state of mind of an individual in
relation to particular conduct, it is enough to show that:
(a) the conduct was engaged in by an employee or agent of the individual
within the scope of his or her actual or apparent authority; and
(b) the employee or agent had the state of mind.
(5) If:
(a) conduct is engaged in on behalf of an individual by an employee or
agent of the individual; and
(b) the conduct is within the scope of his or her actual or apparent
authority;
the conduct is taken, for the purposes of the prosecution of an offence
referred to in subsection (1), to have been engaged in also by the individual,
unless the individual establishes that he or she took reasonable precautions and
exercised due diligence to avoid the conduct.
(6) If:
(a) an individual is convicted of an offence referred to in subsection
(1); and
(b) the individual would not have been convicted of the offence if
subsections (4) and (5) had not been enacted;
the individual is not liable to be punished by imprisonment for that
offence.
(7) In this section:
director, in relation to a body that:
(a) is incorporated for a public purpose by a law of the Commonwealth, of
a State or of a Territory; and
(b) is constituted by one or more members;
means the member, or any of the members, constituting the body.
engage in conduct includes fail or refuse to engage in
conduct.
state of mind, in relation to a person, includes:
(a) the person’s knowledge, intention, opinion, belief or purpose;
and
(b) the person’s reasons for the intention, opinion, belief or
purpose.