2004-2005-2006 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Customs Legislation Amendment (Augmenting Offshore Powers and Other Measures) Bill 2006 No. , 2006 (Justice and Customs) A Bill for an Act to amend the law relating to customs, and for related purposes [Page Break] 1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 1 3 Schedule(s) ........................................................................................ 3 Schedule 1--Search powers on certain ships and aircraft 4 Part 1--Main amendments 4 Customs Act 1901 4 Part 2--Amendments contingent on the Law and Justice Legislation Amendment (Marking of Plastic Explosives) Act 2006 11 Customs Act 1901 11 Schedule 2--Agents and customs brokers 12 Customs Act 1901 12 Schedule 3--Recovery of duty 13 Part 1--Amendments 13 Customs Act 1901 13 Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001 17 Part 2--Application and transitional provisions 18 Schedule 4--Treatment of certain information given to Customs 19 Customs Act 1901 19 [Page Break] 1 customs, and for related purposes 2 The Parliament of Australia enacts: 3 1 Short title 4 This Act may be cited as the Customs Legislation Amendment 5 (Augmenting Offshore Powers and Other Measures) Act 2006. 6 2 Commencement 7 (1) Each provision of this Act specified in column 1 of the table 8 commences, or is taken to have commenced, in accordance with 9 column 2 of the table. Any other statement in column 2 has effect 10 according to its terms. 11 12 Customs Legislation Amendment (Augmenting Offshore Powers and Other Measures) Bill 2006 No. , 2006 1 [Page Break] Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 The day on which this Act receives the and anything in Royal Assent. this Act not elsewhere covered by this table 2. Schedule 1, The 28th day after the day on which this Act Part 1 receives the Royal Assent. 3. Schedule 1, The later of: Part 2 (a) immediately after the start of the 28th day after the day on which this Act receives the Royal Assent; and (b) immediately after the commencement of Schedule 2 to the Law and Justice Legislation Amendment (Marking of Plastic Explosives) Act 2006. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. 4. Schedule 2 The day after this Act receives the Royal Assent. 5. Schedule 3, The 28th day after the day on which this Act items 1 to 5 receives the Royal Assent. 6. Schedule 3, The later of: item 6 (a) immediately after the start of the 28th day after the day on which this Act receives the Royal Assent; and (b) immediately after the commencement of Schedule 5 to the Customs Legislation Amendment (Border Compliance and Other Measures) Act 2006. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. 7. Schedule 3, The later of: items 7 and 8 (a) the start of the 28th day after the day on which this Act receives the Royal Assent; and [Page Break] Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details (b) immediately after the commencement of Schedule 5 to the Customs Legislation Amendment (Border Compliance and Other Measures) Act 2006. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. 8. Schedule 3, The 28th day after the day on which this Act items 9 to 15 receives the Royal Assent. 9. Schedule 4 The 28th day after the day on which this Act receives the Royal Assent. Note: This table relates only to the provisions of this Act as originally 1 passed by both Houses of the Parliament and assented to. It will not be 2 expanded to deal with provisions inserted in this Act after assent. 3 (2) Column 3 of the table contains additional information that is not 4 part of this Act. Information in this column may be added to or 5 edited in any published version of this Act. 6 3 Schedule(s) 7 Each Act that is specified in a Schedule to this Act is amended or 8 repealed as set out in the applicable items in the Schedule 9 concerned, and any other item in a Schedule to this Act has effect 10 according to its terms. 11 [Page Break] Schedule 1--Search powers on certain ships 2 and aircraft 3 Part 1--Main amendments 4 Customs Act 1901 5 1 Subsection 4(1) (definition of Frisk search) 6 Repeal the definition, substitute: 7 frisk search means: 8 (a) a search of a person conducted by quickly running the hands 9 over the person's outer garments; and 10 (b) an examination of anything worn or carried by the person 11 that is conveniently and voluntarily removed by the person. 12 2 Subsection 183UA(1) (definition of frisk search) 13 Repeal the definition. 14 3 After paragraph 185(2)(ca) 15 Insert: 16 (cb) take possession of any goods (other than narcotic goods) 17 found on the ship or aircraft, and any documents produced 18 under paragraph (c) by a person found on the ship or aircraft, 19 if the officer has reasonable grounds to believe that the goods 20 or documents may afford evidence of the commission of a 21 relevant offence; and 22 (cc) if the officer takes possession of goods or documents under 23 paragraph (cb)--retain the goods or documents for such time 24 as the officer thinks necessary for the purposes of this Act, 25 Division 307 of the Criminal Code, or an Act prescribed 26 under a paragraph or subparagraph of subsection (7), as the 27 case may be; and 28 4 At the end of subsection 185(2) 29 Add: 30 Note: Section 185AA gives power to search a person found on a ship or 31 aircraft that has been boarded under paragraph 185(2)(a). 32 [Page Break] 1 Add: 2 Note: Section 185AA gives power to search a person placed on a ship or 3 aircraft under subsection 185(3AA). 4 6 At the end of section 185 5 Add: 6 (7) For the purposes of paragraph (2)(cb), goods found on a ship or 7 aircraft, or documents produced by a person found on a ship or 8 aircraft, may afford evidence of the commission of a relevant 9 offence only if: 10 (a) in a case where the ship is in Australia--the goods or 11 documents may afford evidence of the commission of an 12 offence, either in or outside Australia, against this Act, 13 Division 307 of the Criminal Code or an Act prescribed by 14 the regulations consistently with UNCLOS; or 15 (b) in a case where the ship is outside Australia--the goods or 16 documents may afford evidence of the commission of an 17 offence: 18 (i) in Australia against this Act, Division 307 of the 19 Criminal Code or an Act prescribed by the regulations 20 consistently with UNCLOS; or 21 (ii) in Australia's exclusive economic zone against an Act 22 prescribed by the regulations consistently with 23 UNCLOS; or 24 (c) in a case where the aircraft is in Australia--the goods or 25 documents may afford evidence of the commission of an 26 offence, either in or outside Australia, against this Act or 27 Division 307 of the Criminal Code. 28 7 At the end of subsection 185A(2) 29 Add: 30 Note: Section 185AA gives power to search a person found on a ship that 31 has been boarded under paragraph 185A(2)(a). 32 8 Subsections 185AA(1), (2) and (3) 33 Repeal the subsections, substitute: 34 [Page Break] 1 (1) A person may be searched for the purposes set out in 2 subsection (1A) if: 3 (a) the person is found on a ship or aircraft that has been boarded 4 under paragraph 185(2)(a); or 5 (b) the person has been placed on a ship or aircraft under 6 subsection 185(3AA). 7 (1A) If a person may be searched for the purposes set out in this 8 subsection, the person, the person's clothing and any property 9 under the immediate control of the person, may, without warrant, 10 be searched to find out whether the person is carrying, or there is 11 hidden on the person, in the clothing or in the property: 12 (a) a weapon or other thing capable of being used to inflict 13 bodily injury or to help the person escape; or 14 (b) a document, or other thing, that may afford evidence of the 15 commission of a relevant offence. 16 Note: Division 1B of Part XII provides search powers in respect of certain 17 persons suspected of unlawfully carrying prohibited goods. 18 (1B) For the purposes of subsection (1A), a document, or other thing 19 carried or hidden on a person, in a person's clothing or in a 20 person's property, may afford evidence of the commission of a 21 relevant offence only if: 22 (a) in a case where the person is found on a ship in Australia-- 23 the document or other thing may afford evidence of the 24 commission of an offence, either in or outside Australia, 25 against this Act, Division 307 of the Criminal Code or an Act 26 prescribed by the regulations consistently with UNCLOS; or 27 (b) in a case where the person is found on a ship outside 28 Australia--the document or other thing may afford evidence 29 of the commission of an offence: 30 (i) in Australia against this Act, Division 307 of the 31 Criminal Code or an Act prescribed by the regulations 32 consistently with UNCLOS; or 33 (ii) in Australia's exclusive economic zone against an Act 34 prescribed by the regulations consistently with 35 UNCLOS; or 36 (c) in a case where the person is found on an aircraft in 37 Australia--the document or other thing may afford evidence 38 [Page Break] 1 Australia, against this Act or Division 307 of the Criminal 2 Code. 3 People found on ships boarded under section 185A 4 (2) A person may be searched for the purpose set out in 5 subsection (2A) if the person is found on a ship that has been 6 boarded under paragraph 185A(2)(a). 7 (2A) If a person may be searched for the purpose set out in this 8 subsection, the person, the person's clothing and any property 9 under the immediate control of the person, may, without warrant, 10 be searched to find out whether the person is carrying, or there is 11 hidden on the person, in the clothing or in the property a weapon or 12 other thing capable of being used to inflict bodily injury. 13 Power to examine things found 14 (3) If a search is conducted under this section, an officer may examine 15 any thing found in the course of the search (including, if the thing 16 is a document, by reading the document directly or with the use of 17 an electronic device). 18 (3A) In exercising the power to examine things, an officer may do, or 19 arrange for another officer or other person having the necessary 20 experience to do, whatever is reasonably necessary to permit the 21 examination of the things. 22 (3B) However, when examining a thing found in the course of a search, 23 an officer must not damage the thing by forcing it, or a part of it, 24 open unless: 25 (a) the person being searched has been given a reasonable 26 opportunity to open the thing or part; or 27 (b) it is not reasonably practicable to give the person such an 28 opportunity. 29 Powers to take possession and retain things found 30 (3C) If, in the course of a search for a purpose set out in subsection (1A) 31 or (2A), a weapon, document or other thing referred to in that 32 subsection is found, then: 33 [Page Break] 1 may take possession of the weapon, document or thing; and 2 (b) in the case of a search conducted by a person who is not an 3 officer--the person must take possession of the weapon, 4 document or thing and give it to an officer; and 5 (c) an officer may retain the weapon, document or thing for such 6 time as the officer thinks necessary for the purposes of this 7 Act, Division 307 of the Criminal Code, or an Act prescribed 8 under a paragraph or subparagraph of subsection (1B), as the 9 case may be. 10 Note 1: The following heading to subsection 185AA(4) is inserted "Limit on removal of 11 clothing during search". 12 Note 2: The following heading to subsection 185AA(5) is inserted "Limit on who may conduct 13 search". 14 9 Subsection 185AA(6) 15 Repeal the subsection, substitute: 16 Protection if officers etc. act in good faith 17 (6) An action or proceeding, whether civil or criminal, does not lie 18 against an officer who conducts, or a person who (at the request of 19 an officer) conducts, a search under this section if the officer, or 20 person, acts in good faith and does not contravene subsection (7). 21 10 After subsection 185AA(7) 22 Insert: 23 Evidence may be used in prosecutions etc. 24 (7A) To avoid doubt, if, when exercising powers under this section, an 25 officer or other person who conducts a search under this section 26 obtains evidence of the commission of an offence against a law of 27 the Commonwealth, a State or a Territory, then that evidence may 28 be used, or given to another body for use, in: 29 (a) investigating the offence; or 30 (b) proceedings for the prosecution for the offence. 31 However, this subsection does not override or limit the operation 32 of a law of a State about the evidence that may be used in 33 proceedings for an offence against a law of that State. 34 [Page Break] 1 conduct search". 2 11 Subsection 185AA(8) 3 Repeal the subsection, substitute: 4 Definitions 5 (8) In this section: 6 officer means any of the following: 7 (a) an officer within the meaning of subsection 185(5); 8 (b) an officer within the meaning of subsection 185A(7). 9 12 At the end of section 185AA 10 Add: 11 References to person found on a ship or aircraft 12 (9) In this section, a reference to a person found on a ship or aircraft 13 includes a reference to a person suspected on reasonable grounds 14 by an officer of having landed from, or left, the ship or aircraft. 15 13 Subsection 219L(1B) 16 Repeal the subsection. 17 14 Subsection 219L(1C) 18 Repeal the subsection. 19 15 Subsection 219L(2) 20 Omit "(1), (1A), (1B) or (1C)", substitute "(1) or (1A)". 21 16 Before subsection 219M(1) 22 Insert: 23 (1A) If a person is detained under section 219L, an officer of Customs 24 may: 25 (a) carry out a frisk search of the person to determine whether 26 the person is unlawfully carrying prohibited goods; and 27 (b) recover any prohibited goods found in the course of the frisk 28 search. 29 [Page Break] 1 Repeal the subsection. 2 18 Section 219NA 3 Repeal the section. 4 19 Paragraph 219ZE(1)(ca) 5 Omit "in the circumstances referred to in subsection 219L(1) or (1A)". 6 20 Paragraph 219ZE(1)(cb) 7 Repeal the paragraph. 8 21 Application 9 The amendments made by items 3, 6, 8, 9, 10, 11 and 12 of this 10 Schedule apply in relation to ships and aircraft that are boarded on or 11 after the commencement of this item. 12 [Page Break] Part 2--Amendments contingent on the Law and 2 Justice Legislation Amendment (Marking of 3 Plastic Explosives) Act 2006 4 Customs Act 1901 5 22 Paragraph 185(2)(cc) 6 Before "Division 307", insert "section 72.13 or". 7 23 Paragraph 185(7)(a) 8 Before "Division 307", insert "section 72.13 or". 9 24 Subparagraph 185(7)(b)(i) 10 Before "Division 307", insert "section 72.13 or". 11 25 Paragraph 185(7)(c) 12 Before "Division 307", insert "section 72.13 or". 13 26 Paragraph 185AA(1B)(a) 14 Before "Division 307", insert "section 72.13 or". 15 27 Subparagraph 185AA(1B)(b)(i) 16 Before "Division 307", insert "section 72.13 or". 17 28 Paragraph 185AA(1B)(c) 18 Before "Division 307", insert "section 72.13 or". 19 29 Paragraph 185AA(3C)(c) 20 Before "Division 307", insert "section 72.13 or". 21 [Page Break] Schedule 2--Agents and customs brokers 2 3 Customs Act 1901 4 1 Subsection 183CD(1) 5 Omit "(1)" (first occurring). 6 2 Subsection 183CD(1) 7 Omit "Subject to this section, a", substitute "A". 8 3 Paragraph 183CD(1)(f) 9 Repeal the paragraph. 10 4 Paragraph 183CD(1)(h) 11 Omit "customs broker; and", substitute "customs broker.". 12 5 Paragraph 183CD(1)(j) 13 Repeal the paragraph. 14 6 Subsections 183CD(2), (3) and (4) 15 Repeal the subsections. 16 [Page Break] Schedule 3--Recovery of duty 2 Part 1--Amendments 3 Customs Act 1901 4 1 Section 153 5 Repeal the section. 6 2 Subsection 161L(2) 7 Omit all the words after paragraph (b), substitute: 8 section 165 applies in relation to any demand by the CEO for the 9 payment of the amount of duty that is unpaid or the amount of 10 refund that was overpaid. 11 3 Division 3 of Part VIII (heading) 12 Repeal the heading, substitute: 13 Division 3--Payment and recovery of deposits, refunds, 14 unpaid duty etc. 15 4 Section 165 16 Repeal the section, substitute: 17 165 Recovery of unpaid duty etc. 18 (1) An amount of duty that is due and payable in respect of goods: 19 (a) is a debt due to the Commonwealth; and 20 (b) is payable by the owner of the goods. 21 (2) An amount of drawback, refund or rebate of duty that is overpaid 22 to a person: 23 (a) is a debt due to the Commonwealth; and 24 (b) is payable by the person. 25 [Page Break] 1 (3) The CEO may make, in writing, a demand for payment of an 2 amount that is a debt due to the Commonwealth under 3 subsection (1) or (2). 4 (4) A demand, under subsection (3), for payment of an amount must 5 specify the amount and include an explanation of how it has been 6 calculated. 7 (5) A demand, under subsection (3), for payment of an amount must be 8 made within 4 years from: 9 (a) if the amount is a debt due to the Commonwealth under 10 subsection (1)--the time the amount was to be paid by under 11 this Act; or 12 (b) if the amount is a debt due to the Commonwealth under 13 subsection (2)--the time the amount was paid; 14 unless the CEO is satisfied that the debt arose as the result of fraud 15 or evasion. 16 Recovery in court 17 (6) An amount that is a debt due to the Commonwealth under 18 subsection (1) or (2) may be sued for and recovered in a court of 19 competent jurisdiction by proceedings in the name of the Collector 20 if: 21 (a) the CEO has made a demand for payment of the amount in 22 accordance with this section; or 23 (b) the CEO is satisfied that the debt arose as the result of fraud 24 or evasion. 25 165A Refunds etc. may be applied against unpaid duty 26 (1) If: 27 (a) an amount of duty is payable by a person in respect of goods 28 that have been delivered into home consumption; and 29 (b) the person would be entitled to an amount of drawback, 30 refund or rebate of duty in respect of the goods if the amount 31 of duty payable were paid; 32 then: 33 (c) the CEO may apply the amount of the drawback, refund or 34 rebate against the amount of duty payable; and 35 [Page Break] 1 amount of duty equal to the amount of drawback, refund or 2 rebate applied; and 3 (e) the amount of drawback, refund or rebate applied is taken to 4 have been paid to the person. 5 (2) If the CEO applies an amount of drawback, refund or rebate 6 against an amount of duty payable, the CEO must give the person 7 who would have been entitled to receive the amount of drawback, 8 refund or rebate written notice of: 9 (a) the amount of drawback, refund or rebate applied; and 10 (b) if the amount of drawback, refund or rebate applied is less 11 than the amount of duty payable--the amount of duty that is 12 still payable by the person. 13 5 Subsections 167(3) and (3A) 14 Repeal the subsections, substitute: 15 (3) For the purposes of this section, a payment is taken to be made 16 under protest if, and only if: 17 (a) the owner of the goods or the agent of the owner gives 18 Customs notice in accordance with subsection (3A), by 19 document or electronically, that the payment is made under 20 protest; and 21 (b) Customs receives the notice no later than 7 days after the day 22 the payment is made. 23 (3A) A notice given by an owner or agent under subsection (3) must: 24 (a) contain the words paid under protest; and 25 (b) identify the import declaration that covers the goods to which 26 the protest relates; and 27 (c) if the protest does not relate to all the goods covered by the 28 import declaration--describe the goods to which the protest 29 relates; and 30 (d) include a statement of the grounds on which the protest is 31 made; and 32 (e) be signed by the owner or the agent of the owner. 33 6 Subsection 167(3) 34 Omit "For", substitute "Subject to subsection (3B), for". 35 [Page Break] 1 Insert: 2 (3B) If, under section 71DGA, an accredited client pays an amount of 3 accredited client monthly duty estimate in respect of goods, then 4 for the purposes of this section, the amount of duty that would be 5 payable in respect of the goods if the amount of accredited client 6 monthly duty estimate were not paid is taken to be paid under 7 protest by the accredited client if, and only if: 8 (a) the accredited client or the agent of the accredited client 9 gives Customs notice in accordance with subsection (3C), by 10 document or electronically, that the payment is made under 11 protest; and 12 (b) Customs receives the notice no later than 7 days after the 13 accredited client payment day on which the amount of duty 14 would be payable on the goods under subsection 71DGB(1) 15 if the amount of accredited client monthly duty estimate were 16 not paid. 17 (3C) A notice given by an accredited client or agent under 18 subsection (3B) must: 19 (a) contain the words paid under protest; and 20 (b) identify the periodic declaration that covers the goods to 21 which the protest relates; and 22 (c) if the protest does not relate to all the goods covered by the 23 periodic declaration--describe the goods to which the protest 24 relates; and 25 (d) include a statement of the grounds on which the protest is 26 made; and 27 (e) be signed by the accredited client or the agent of the 28 accredited client. 29 8 After subsection 167(4) 30 Insert: 31 (4A) No action lies for the recovery of any sum paid to Customs under 32 section 71DGA as an amount of accredited client monthly duty 33 estimate in respect of goods, unless: 34 (a) the amount of duty that would be payable in respect of the 35 goods if the amount of accredited client monthly duty 36 [Page Break] 1 to have been paid under protest; and 2 (b) the action is commenced within the following times: 3 (i) if the sum is paid as an estimate of duty payable under 4 any Customs Tariff--within 6 months after the 5 accredited client payment day on which the amount of 6 duty would be payable on the goods under subsection 7 71DGB(1) if the amount of accredited client monthly 8 duty estimate were not paid; or 9 (ii) if the sum is paid as an estimate of duty payable under a 10 Customs Tariff or Customs Tariff alteration proposed in 11 the Parliament--within 6 months after the Act, by 12 which the Customs Tariff or Customs Tariff alteration 13 proposed in the Parliament is made law, is assented to. 14 9 At the end of section 167 15 Add: 16 (6) In this section: 17 import declaration includes an import entry, within the meaning of 18 the unamended Customs Act, that was made under that Act. 19 unamended Customs Act has the meaning given by section 4 of 20 the Customs Legislation Amendment (Application of International 21 Trade Modernisation and Other Measures) Act 2004. 22 10 Paragraph 273GA(1)(ja) 23 Repeal the paragraph, substitute: 24 (ja) a decision of the CEO under subsection 165(3) to make a 25 demand for payment of an amount of drawback, refund or 26 rebate of duty that was overpaid; 27 Customs Legislation Amendment and Repeal (International 28 Trade Modernisation) Act 2001 29 11 Item 45 of Schedule 3 30 Repeal the item. 31 [Page Break] Part 2--Application and transitional provisions 2 12 Transitional--item 1 3 The repeal of section 153 of the Customs Act 1901 made by item 1 of 4 this Schedule does not affect any proceedings brought under that section 5 before the commencement of this item. 6 13 Transitional--item 4 7 (1) This item applies to a demand made under section 165 of the old law. 8 (2) Section 165 of the new law has effect, on and after the commencement 9 time, as if the demand were a demand made under, and in accordance 10 with, that section. 11 (3) In this item: 12 commencement time means the time at which item 4 of this Schedule 13 commences. 14 new law means the Customs Act 1901 as amended by item 4 of this 15 Schedule. 16 old law means the Customs Act 1901 as in force before the 17 commencement time. 18 14 Application--items 5 and 9 19 The amendments made by items 5 and 9 of this Schedule apply in 20 relation to payments made on or after the commencement of those 21 items. 22 15 Application--items 6 to 8 23 The amendments made by items 6 to 8 of this Schedule apply in relation 24 to payments made on or after the commencement of those items. 25 [Page Break] Schedule 4--Treatment of certain information 2 given to Customs 3 4 Customs Act 1901 5 1 After subsection 234(2BB) 6 Insert: 7 (2BC) For the purposes of paragraph (1)(d), information provided to 8 Customs under section 71 in the circumstances mentioned in 9 section 71AAAB is taken to be a statement made to the CEO. 10 2 Subsection 234(2C) 11 Omit "or (2BB)", substitute ", (2BB) or (2BC)". 12 3 Application 13 The amendments made by this Schedule apply in relation to information 14 provided to Customs on or after the commencement of this Schedule. 15