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2008
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CUSTOMS AMENDMENT
(STRENGTHENING BORDER CONTROLS) BILL 2008
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Home Affairs,
the Honourable Bob Debus MP)
CUSTOMS AMENDMENT
(STRENGTHENING BORDER CONTROLS) BILL 2008
OUTLINE
1. The purpose of this Bill is to amend the Customs Act 1901 (the Customs Act) to:
allow a person to surrender certain prohibited imports that have not been
concealed; and
allow for the granting of post-importation permissions for certain prohibited
imports; and
allow infringement notices to be served for certain offences including
importing certain prohibited imports, and border security related offences;
and
enable Customs officers boarding a ship or aircraft to conduct personal
searches for, and take possession of, weapons or evidence of specified
offences.
FINANCIAL IMPACT STATEMENT
2. The Bill has no financial impact.
Page 2 Customs Amendment (Strengthening Border Controls) Bill 2008
CUSTOMS AMENDMENT (STRENGTHENING BORDER CONTROLS) BILL 2008
NOTES ON CLAUSES
Clause 1 - Short title
3. This clause provides for the Bill, when enacted, to be cited as the Customs
Amendment (Strengthening Border Controls) Act 2008.
Clause 2 - Commencement
4. Subclause (1) provides that each provision of this Act specified in column 1 of the
table in that subclause commences, or is taken to have commenced, on the day or
at the time specified in column 2 of the table. This subclause also provides that any
other statement in column 2 of the table has effect according to its terms.
5. Item 1 of the table provides that sections 1 to 3 and anything in this Act not
elsewhere covered by the table will commence on the day on which the Act receives
the Royal Assent.
6. Item 2 of the table provides that Schedule 1 commences on a single day to be fixed
by Proclamation. However, if any of the provision(s) do not commence within the
period of 6 months beginning on the day on which the Act receives Royal Assent,
the provision(s) will commence on the first day after the end of that period. The
proposed amendments in Schedule 1 require regulations to be made before the
amendments have any effect. It is, therefore, proposed to delay the commencement
of this Schedule to provide time for the regulations to be made.
7. Item 3 of the table provides that Schedule 2 commences on the 28th day after the
day on which this Act receives the Royal Assent.
8. Subclause (2) provides that column 3 of the table contains additional information
that is not part of the Act.
Clause 3 - Schedule(s)
9. This clause is the formal enabling provision for the Schedule to the Bill, providing
that each Act specified in a Schedule is amended in accordance with the applicable
items of the Schedule. In this Bill, the Customs Act is being amended.
10. The clause also provides that the other items of the Schedules have effect
according to their terms. This is a standard enabling clause for transitional, savings
and application items in amending legislation.
Customs Amendment (Strengthening Border Controls) Bill 2008 Page 3
SCHEDULE 1 - IMPORT CONTROLS
Customs Act 1901
Items 1 to 5 - Consequential amendments
11. Items 1 to 5 amend subsections 64AB(12) and 119B(2A), and
paragraphs 71AAAR(2)(a), 71H(2)(a) and 203(3)(e) of the Customs Act to insert the
words "Subdivision A of" before the words "Division 5". This will reflect the new
heading given to the provisions under current Division 5 of Part XIII (see item 19 of
this Schedule).
Items 6 to 13 - Consequential amendments to seizure provisions
12. Where Customs seizes prohibited imports without warrant, the Customs Act
contains provisions that oblige Customs to, among other things, issue a seizure
notice to the owner of the goods, provide the owner with an opportunity to make a
claim for return of the goods and, except in specified circumstances, return the
goods to the owner who has made such a claim.
13. When Customs issues the seizure notice, Customs may also issue an infringement
notice at the same time on the owner of the goods in respect of importing prohibited
imports, under new Subdivision B of Division 5 of Part XIII (as inserted by item 36 of
this Schedule). In that event, the provisions of the new infringement notice scheme
operate concurrently with the provisions relating to seizure.
14. Under new section 243ZK in new Subdivision B, the goods are taken to be
condemned as forfeited to the Crown if the following conditions (the section 243ZK
conditions) are satisfied:
a) an infringement notice for an offence in relation to the importation of the
goods has been served with the seizure notice; and
b) the penalty specified in the infringement notice is paid within the period
that, or by the time by which, the penalty is required to be paid; and
c) the infringement notice is not withdrawn.
This result requires the operation of certain seizure provisions to be ceased or
modified.
15. Items 6 to 8 amend section 205A of the Customs Act, which deals with matters to be
included in a seizure notice. Item 7 will require a new statement to be included in a
seizure notice that a claim for the return of the goods cannot be made if the
section 234ZK conditions are satisfied.
16. Items 6 and 8 will amend the existing matters to be included in a seizure notice to
account for the circumstance where the section 243ZK conditions are satisfied and a
claim for the return of goods cannot be made.
Page 4 Customs Amendment (Strengthening Border Controls) Bill 2008
17. Items 9 and 10 amend section 205B of the Customs Act, which relates to making a
claim for the return of goods seized. Item 10 inserts new subsection (1A) to provide
that a claim may not be made for the return of goods that have been taken to be
condemned as forfeited under new section 243ZK. Item 9 amends subsection (1) so
that subsection (1), which provides for an owner of seized goods to make a claim for
return, is subject to new subsection (1A).
18. Item 11 inserts a new paragraph (ba) into section 205C of the Customs Act, which
relates to the treatment of seized goods where no claim of return is made. The new
paragraph accounts for the circumstance where the section 243ZK conditions are
satisfied and a claim for return of the goods cannot be made. In that event,
section 205C will cease to apply.
19. Items 12 and 13 amend section 205D of the Customs Act, which deals with the
treatment of seized goods for which a claim for return is made. Item 12 inserts new
paragraph (aa) into subsection 205D(1) to account for the circumstance where the
section 243ZK conditions are satisfied and a claim for return of the goods cannot be
made. In that event and where the owner has not made a claim for return,
section 205D will cease to apply.
20. Item 13 inserts new paragraph (aa) into subsection 205D(2), which provides for the
return of the seized goods to the owner except in specified circumstances. The
effect of new paragraph (aa) is that goods seized do not have to be returned if they
have been condemned as forfeited to the Crown under section 243ZK, that is, the
section 243ZK conditions have been satisfied. This applies to the situation where a
person makes a claim for return of goods before the section 243ZK conditions are
satisfied.
Item 14 - After Subdivision GA of Division 1 of Part XII
21. This item amends the Customs Act by inserting new Subdivisions GB and GC into
Division 1 of Part XII.
22. The new regimes in these two Subdivisions, along with the new infringement notice
scheme in new Subdivision B of Division 5 of Part XIII (see item 36 of the Schedule
below), are designed to reduce the administrative burden involved in seizing
prohibited imports that are low value and low risk.
23. Presently, Customs must seize all prohibited imports under section 203B of the
Customs Act to prevent the entry of these goods into the community, which is a
time-consuming and resource intensive process. The proposed amendments to the
Customs Act will establish a tiered response allowing for the voluntary surrender of
the goods (new Subdivision GB), the seeking of a post-importation permission (new
Subdivision GC) or payment of a penalty under the new infringement notice scheme,
rather than automatic seizure of the goods.
Customs Amendment (Strengthening Border Controls) Bill 2008 Page 5
24. Seizure of goods (as opposed to surrender or the seeking of a post-importation
permission) will, of course, remain as an option in relation to the more serious
contraventions of the Customs Act that relate to the importation of prohibited
imports. This is an efficient and effective use of resources.
NEW SUBDIVISION GB - SURRENDER OF PRESCRIBED PROHIBITED IMPORTS
25. New Subdivision GB will insert a new regime which will allow for the surrender of
certain prohibited imports to Customs in specified circumstances. The decision to
allow such goods to be surrendered will be exercised in lieu of seizing the goods
without a warrant. The consequences of surrendering such goods will be that a
person will not be able to be prosecuted for an offence against the Customs Act in
relation to the importation of the goods, and the title to the goods will immediately
vest in the Crown.
26. The new surrender regime will not apply to all prohibited imports but only to those
prescribed by regulations. However, all prohibited imports, regardless of how they
are dealt with, will not be released into the community. The importation of prohibited
imports is prohibited under the Customs Act, and this position is not altered by the
introduction of these additional measures.
New section 209M - Application of Subdivision
27. New section 209M provides that new Subdivision GB applies to goods that are
prohibited imports of a kind prescribed by regulations made for the purposes of this
section.
28. Section 50 of the Customs Act provides, in part, that the Governor-General may, by
regulation, prohibit the importation of goods into Australia and that the power may
be exercised by prohibiting the importation of goods absolutely or by prohibiting the
importation of goods unless specified conditions or restrictions are complied with.
Section 51 of the Customs Act provides that goods, the importation of which is
prohibited under section 50, are prohibited imports.
29. The Customs (Prohibited Imports) Regulations 1956 (the PI Regulations) control the
importation of the goods specified in the various regulations and the Schedules to
the PI Regulations, by prohibiting importation absolutely, or by making importation
subject to a permission or licence. However, the new surrender regime will not
apply to all of the prohibited imports specified in the PI Regulations as it is not
considered appropriate that the importation of all prohibited imports should be
subject to the regime. The new regime will only apply to those prohibited imports
that are prescribed for its purposes. For example, it is anticipated that electronic fly
swatters, whose importation is prohibited under regulation 4 and Schedule 2 to the
PI Regulations, will be prescribed. Other appropriate prohibited imports will be
prescribed, balancing the threat posed to the community against the administrative
burden that the seizure regime places on Customs.
Page 6 Customs Amendment (Strengthening Border Controls) Bill 2008
New section 209N - Surrender of goods
30. New section 209N sets out the circumstances when the prescribed prohibited
imports would be able to be surrendered to an officer of Customs.
Subsection 209N(1) provides that an officer of Customs may, instead of seizing the
goods under section 203B of the Act, permit the person to surrender the goods to
the officer in a section 234AA place if:
a) the officer has reasonable grounds to believe that the goods:
(i) have been imported by the person;
(ii) have not been concealed from Customs by the person;
(iii) are accompanied personal or household effects of the person; and
b) the person has been informed, by the officer in writing, of the available
options for dealing with the goods and the consequences of exercising
each of these options; and
c) the person has indicated to Customs, in writing, that he or she intends to
surrender the goods; and
d) the officer has indicated to the person that the goods may be surrendered
to the officer.
31. It is proposed that this regime will only apply in a section 234AA place. These are
the places at airports and ports that are set aside for the questioning of passengers
and the examination of their personal baggage. As previously stated, this regime is
designed to reduce the administration associated with the processing of minor
contraventions of the PI Regulations and the airports and ports are the places where
most of these minor contraventions occur.
32. It is also proposed that the permission to surrender prescribed prohibited imports will
be granted entirely at the discretion of the officer of Customs. If the officer decides
that the circumstances of the importation require different action to be taken in
respect of the person and the goods, he or she may refuse to permit the goods to be
surrendered. For example, it may be appropriate to permit the goods to be
surrendered for a one-off contravention of the PI Regulations. However, if a person
regularly imports prescribed prohibited imports in contravention of the PI
Regulations, the officer may decide that other action, such as the seizure of the
goods, may be more appropriate.
33. It is also proposed that the permission to surrender the goods can only be given if
the goods have not been concealed from Customs. If, for example, the person
indicated on their Incoming Passenger Card (IPC) that they were bringing into
Australia a prohibited import and the IPC was presented to Customs, they would not
be considered as having concealed the goods from Customs. If, however, they
failed to indicate this on the IPC, they would be considered as having concealed the
goods from Customs and would not be permitted to surrender the goods. In that
Customs Amendment (Strengthening Border Controls) Bill 2008 Page 7
circumstance, the goods could either be the subject of an infringement notice under
the new regime or be seized by Customs.
34. It is important that a person is fully aware of the options available to them. Under
new Subdivision GC (discussed below), a person may also be given the option, at
the discretion of the officer of Customs, of seeking a post-importation permission in
respect of the goods. It is also important that a person is aware of the
consequences of surrendering the goods and that the person's intention to
surrender the goods is clearly indicated. In order to ensure this, all of these actions
must be in writing.
35. Subsection 209N(2) provides that without limiting the meaning of concealed in
subparagraph (1)(a)(ii), a person is taken to have concealed goods from Customs if
the person was required to give information about the goods to Custom in
accordance with section 71, 71K or 71L of the Customs Act and the person failed to
do so. The purpose of this provision is to make it clear that concealment of goods
extends beyond physical concealment to, for example, the failure to declare to
Customs in an IPC the fact that a person is bringing into Australia prohibited goods.
The information in an IPC is required to be given to Customs in accordance with
section 71 of the Customs Act.
New section 209P - Effect of surrender
36. New section 209P sets out the effects of the surrender under section 209N on the
goods and in relation to the person. This section provides that if the goods are
surrendered under section 209N:
a) proceedings cannot be brought for an offence against this Act in relation to
the importation of the goods; and
b) the goods are taken as condemned as forfeited to the Crown, such that title
to the goods immediately vests in the Commonwealth to the exclusion of all
other interests in the goods and the title cannot be called into question.
Therefore, a person will not be able to be prosecuted for the offence of importing a
prohibited import and they will also lose all title to the goods. The person will not be
able to make a claim for the return of the goods.
New section 209Q - Right of compensation in certain circumstances for goods
disposed of or destroyed.
37. New section 209Q sets out the compensation provisions if surrendered goods were
not prohibited imports but have been disposed or destroyed before this is
established.
38. Subsection 209Q(1) provides that despite the disposal or destruction of the goods
taken to be condemned as forfeited to the Crown because the goods have been
Page 8 Customs Amendment (Strengthening Border Controls) Bill 2008
surrendered under section 209N, a person may apply to a court of competent
jurisdiction under this section for compensation.
39. Subsection 209Q(2) provides that a right to compensation exists if:
a) the goods were not prohibited imports; and
b) the goods were not used or otherwise involved in the commission of an
offence; and
c) the person establishes, to the satisfaction of the court, that he or she is the
rightful owner of the goods.
40. Subsection 209Q(3) provides that if a right to compensation exists under subsection
(2), the court must order the payment by the Commonwealth to the person of an
amount equal to the market value of the goods at the time of their disposal or
destruction.
41. These provisions are similar to other compensation arrangements in the Customs
Act in relation to seized goods that have been disposed of or destroyed, for
example, section 205F.
New section 209R - Disposal of surrendered goods
42. New section 209R provides that all goods surrendered under section 209N must be
dealt with and disposed of in accordance with the directions of the Chief Executive
Officer of Customs. This provision is similar to other provisions dealing with the
disposal of goods that have been seized by Customs, for example, section 208D.
NEW SUBDIVISION GC - POST-IMPORTATION PERMISSION
43. New Subdivision GC of Division 1 of Part XII of the Customs Act will insert a new
regime which will allow for the granting or giving of post-importation permissions,
licences or other documents in respect of certain goods whose importation is
prohibited under the PI Regulations in specified circumstances.
44. As previously referred to, the importation of most goods in the PI Regulations is
prohibited unless a licence or permission to import the goods is obtained. In some
cases, other conditions or restrictions must also be complied with. For example, in
relation to the importation of certain firearms, a written confirmation is required from
the police of the State or Territory in which the firearm will be used, to the effect that
the importer holds a licence or authorisation according to the law of the State or
Territory to possess the firearm.
45. The licence or permission or other document must be obtained prior to the
importation of the goods. If it has not been obtained prior to importation, the goods
will be prohibited imports in accordance with section 51 of the Customs Act.
Prohibited imports are special forfeited goods under the Customs Act and will
become subject to the provisions of the Customs Act that apply to such goods,
Customs Amendment (Strengthening Border Controls) Bill 2008 Page 9
which include the power to seize the goods without a warrant when they are in a
Customs place. There are also offences in the Customs Act that apply to the
importation of prohibited imports.
46. For a variety of reasons, it is not always possible to obtain a licence or permission to
import goods before their importation. In some cases, a permit would also likely
have been granted had the importer been aware of the control prior to importing the
goods. Where the importer is acting in good faith, seizure and forfeiture of the goods
in these circumstances without an opportunity to apply for a permission appears
unreasonable.
47. Therefore, it is proposed to introduce a new regime whereby, in specified
circumstances, the owner of prohibited imports may apply for, and the decision
maker may in the exercise of their discretion grant or give, the required permission
to import the goods after the goods have been imported. The relevant goods will
remain in the custody of Customs at all times until the required permission is
granted or given.
48. If the required permission is not subsequently granted or given within the specified
period, the goods are taken to be seized and the normal seizure process will follow.
New section 209S - Definitions
49. New section 209S inserts definitions for the purposes of new Subdivision GC.
50. Subsection 209S(1) inserts the following definitions:
application period which for goods that have been detained under new
section 209U means the period that, in accordance with new subparagraph
209X(2)(d)(i), is specified in the detention notice identifying the goods.
detention notice which means a notice of a kind mentioned in new
section 209X.
grant period which for goods that have been detained under new section
209U means the period that, in accordance with new subparagraph
209X(2)(d)(ii), is specified in the detention notice identifying the goods.
51. New subsection 209S(2) provides that if regulations made under section 50 of the
Customs Act provide that the importation of goods is prohibited unless a licence,
permission, consent, approval or other document (however described) is granted or
given, then the licence, permission, consent, approval or other document is a
required permission to import the goods. This provision will eliminate the need
to list all of the different types of licences etc each time they are referred to in
Subdivision GC - instead this phrase will be used.
Page 10 Customs Amendment (Strengthening Border Controls) Bill 2008
New section 209T - Application of Subdivision
52. New section 209T sets out the goods to which new Subdivision GC applies. Similar
to new Subdivision GB, Subdivision GC will only apply to goods that are prohibited
imports of a kind prescribed by regulations made for the purposes of this section.
53. Goods to be prescribed for the purposes of this Subdivision are only those
determined by the agency responsible for the permission or control as being suitable
for post-importation consideration.
New section 209U - Power to detain goods
54. New section 209U sets out the circumstances in which an officer of Customs may
allow a person to apply for a required permission to import the goods after the goods
have been imported, in lieu of immediately seizing the goods.
55. Subsection 209U(1) provides that an officer of Customs may, instead of seizing
goods under section 203B, detain the goods if:
a) the goods are imported without one or more required permissions to import
the goods having been granted or given; and
b) any other conditions or restrictions specified in the regulations made under
section 50 in respect of the importation have been complied with; and
c) the officer has reasonable grounds to believe that:
(i) the goods have not been concealed from Customs by the person who
imported them; and
(ii) no application for any of the required permissions to import the goods
has previously been refused; and
d) if the goods are accompanied personal effects or household effects of the
person - the person:
(i) has been informed, by the officer in writing, of the available options for
dealing with the goods and the consequences of exercising each of
those options; and
(ii) has indicated to Customs, in writing, that he or she has applied, or
intends to apply, for each of the required permissions to import the
goods that have not already been granted.
56. Under paragraph 209U(1)(b), if there are any other conditions or restrictions which
must be complied with prior to the importation of the goods, other than obtaining the
required permission to import the goods, and these have not been complied with,
the new regime will not apply to the goods. For example, under regulation 4MA of
the PI Regulations, the importation of rough diamonds is prohibited unless the
diamonds are imported in a tamper resistant container. If this condition is not
complied with at the point of importation, the new regime will not apply to the goods.
Customs Amendment (Strengthening Border Controls) Bill 2008 Page 11
57. Similar to new Subdivision GB, the detention of prescribed prohibited imports in lieu
of seizure will be entirely at the discretion of the officer of Customs. If the officer
decides that the circumstances of the importation required different action to be
taken in respect of the person and the goods, he or she may refuse to detain the
goods. In addition, the officer's discretion could only be exercised if no application
for any of the required permissions to import the goods had previously been refused.
58. Similar also to new Subdivision GB, detention of the goods in lieu of seizure can
only occur if the goods have not been concealed from Customs. If, for example, the
person indicated on their Incoming Passenger Card (IPC) that they were bringing
into Australia a prohibited import and the IPC was presented to Customs, they would
not be considered as having concealed the goods from Customs. If, however, they
failed to indicate this on the IPC, they may be considered as having concealed the
goods from Customs and would not be permitted to seek the required permission to
import the goods. In that circumstance, the goods would either be subject to an
infringement notice or be seized by Customs.
59. Similar to new Subdivision GB, it is important that a person is fully aware of the
options available to them. If the goods are in a section 234AA place and are the
accompanied personal or household effects of the person, a person may also be
given the option of surrendering the goods under new Subdivision GB. (The
circumstances that trigger the operation of Subdivision GB are the same as those
that trigger the operation of Subdivision GC in respect of goods in a section 234AA
place that are the accompanied personal or household effects of the person). It is
also important that a person is aware of the consequences of seeking the required
permission to import the goods and that their intentions in respect of the goods are
clearly indicated. In order to ensure this, all of these actions must be in writing.
60. Subsection 209U(2) provides, similar to subsection 209N(2), that without limiting the
meaning of concealed in subparagraph (1)(c)(i), a person is taken to have
concealed goods from Customs if the person was required to give information about
the goods to Custom in accordance with section 71, 71K or 71L of the Customs Act
and the person failed to do so.
New section 209V - Detained goods to be secured
61. New section 209V set out the procedures for the storage of goods detained under
section 209U.
62. New subsection 209V(1) provides that in this section, approved place, in relation to
goods detained under section 209U, means a place approved by a Collector as a
place for the storage of goods of that kind.
63. New subsection 209V(2) provides that if an officer of Customs detains goods under
section 209U, the officer must, as soon as practicable, take the goods to an
approved place.
Page 12 Customs Amendment (Strengthening Border Controls) Bill 2008
64. Depending on the types of prohibited imports that are prescribed for the purposes of
new Subdivision GC, there may be more than one approved place approved under
section 209V.
New section 209W - Requirement to serve detention notice
65. New section 209W sets out the requirements in relation to detention notices for
goods detained under section 209U.
66. Subsection 209W(1) provides that if an officer of Customs detains goods under
section 209U, the officer must serve, within 7 days after the day on which the goods
were detained, a detention notice on:
a) the owner of the goods; or
b) if the owner cannot be identified after reasonable inquiry - the person in
whose possession or under whose control the goods were when they were
detained.
67. Subsection 209W(2) provides that the notice must be in writing and must be served:
a) personally or by post; or
b) if no person of the kind referred to in paragraph (1)(a) or (b) can be
identified after reasonable enquiry - by publishing a copy of the notice in a
newspaper circulating in the location in which the goods were detained.
68. Subsection 209W(3) provides that a detention notice may be served on a person
who is outside Australia.
69. As the detention notice may eventually serve as a seizure notice under new
subsection 209Z(3) below, it will be served in the same way that a seizure notice is
served under section 205 of the Customs Act.
New section 209X - Matters to be dealt with in a detention notice
70. New section 209X sets out the matters that will need to be dealt with in a detention
notice served under section 209W.
71. Subsection 209X(1) provides that a detention notice must set out the following:
a) a statement identifying the goods;
b) the day on which the goods were detained;
c) the ground, or each of the grounds, on which the goods were detained;
d) a statement that the goods will be taken to be seized if:
(i) written evidence, of the making of an application for each required
permission to import the goods that was not granted or given by the
Customs Amendment (Strengthening Border Controls) Bill 2008 Page 13
time the goods were imported, is not provided to Customs by the end
of a specified period (the application period); or
(ii) not all of the required permissions to import the goods are granted or
given by the end of a specified period (the grant period); or
(ii) during the application period or the grant period, the owner of the
goods notifies Customs, in writing, that an application for a required
permission to import the goods has been refused;
e) a statement that, if the goods are taken to be seized because written
evidence is not provided to Customs by the end of the application period,
the goods will be taken to be seized on the day after the end of the
application period;
f) a statement that, if the goods are taken to be seized because not all of the
required permissions to import the goods are granted, or given, by the end
of the grant period, the goods will be taken to be seized on the day after the
end of the grant period;
g) a statement that, if the goods are taken to be seized because during the
application period or the grant period the owner of the goods notifies
Customs, in writing, that an application for a required permission to import
the goods has been refused, the goods will be taken to be seized on the
day after Customs is so notified;
h) the ground, or each of the grounds, on which the goods will be taken to be
seized;
i) a statement that, if the goods are taken to be seized and a claim for the
return of the goods has not already been made, and is not made within 30
days after the day the goods are taken to be seized, the goods will be taken
to be condemned as forfeited to the Crown;
j) if the notice is to be served in a foreign country--a statement that the
person served, if that person has not yet made a claim for the return of the
goods, may not make such a claim unless he or she has first appointed in
writing an agent in Australia with authority to accept service of documents,
including process in any proceedings arising out of the matter.
72. As this detention notice may also serve as a seizure notice in relation to the goods
under 209Z(3) below, it will contain the same details that a seizure notice must
contain under section 205A of the Customs Act.
73. New subsection 209Z(2) provides that the application period specified in a detention
notice under subparagraph (1)(d)(i) must be the period that:
a) starts on the day that the notice is served; and
b) ends 30 days, or such other period as is prescribed by the regulations, after
that day.
Page 14 Customs Amendment (Strengthening Border Controls) Bill 2008
74. New subsection 209Z(3) provides that the grant period specified in a detention
notice under subparagraph (1)(d)(ii) must be the period that:
a) starts on the day written evidence of the making of an application for a
required permission to import the goods is first provided to Customs; and
b) ends 30 days, or such other period as is prescribed by the regulations, after
the first day on which written evidence, of the making of an application for
all of the required permissions to import the goods that were not granted or
given by the time the goods were imported, has been provided to Customs.
The effect of paragraph (a) is that if more than one required permission to import the
goods is required, the grant period will commence when written evidence of one of
the applications for that permission is provided to Customs. The effect of paragraph
(b) is that the grant period will end 30 days after written evidence of the making of
the last application for the required permission is provided to Customs. Therefore,
the grant period may be more than 30 days long.
New section 209Y - Effect of detaining goods
75. New section 209Y provides that while goods are detained under section 209U:
a) an application for a required permission to import the goods may be made;
and
b) a required permission to import the goods may be granted or given;
despite the goods having already been imported.
The effect of paragraph (b) is that the PI Regulations will be overridden to the extent
that they would have otherwise prevented a decision maker granting or giving a
required permission to import the goods after the goods had been imported.
New section 209Z - Evidence not provided or permission not granted or given
76. New section 209Z sets out the consequences of the failure to provide to Customs
written evidence of the making of an application for a required permission to import
the goods, and the failure to have the permission granted or given, in the specified
timeframes.
77. Subsection 209Z(1) provides that this section applies if:
a) goods have been detained under section 209U; and
b) a detention notice identifying the goods has been served; and
c) any of the following apply:
(i) written evidence, of the making of an application for each required
permission to import the goods that was not granted, or given, by the
time the goods were imported, has not been provided to Customs by
Customs Amendment (Strengthening Border Controls) Bill 2008 Page 15
the end of the application period for the goods (i.e. within 30 days after
the detention notice is served);
(ii) not all of the required permissions to import the goods have been
granted, or given, by the end of the grant period for the goods;
(iii) during the application period, or the grant period, for the goods, the
owner of the goods has notified Customs, in writing, that an application
for a required permission to import the goods has been refused. (In
this circumstance, it will not be necessary to wait until the end of the
application period or the grant period for this section to operate).
78. If one of these circumstances applies, and the goods are at an approved place
within the meaning of section 209V, subsection 209Z(2) provides that the goods
cease to be detained under section 209U and are taken to be seized under section
203B on:
a) if, during the application period, the owner of the goods notified Customs, in
writing, that an application for a required permission to import the goods
was refused--the day after Customs was so notified; or
b) if paragraph (a) does not apply and written evidence, of the making of an
application for each required permission to import the goods that was not
granted or given by the time the goods were imported, was not provided by
the end of the application period--the day after the end of the application
period; or
c) if paragraphs (a) and (b) do not apply and, during the grant period, the
owner of the goods notified Customs, in writing, that an application for a
required permission to import the goods was refused--the day after
Customs was so notified; or
d) if paragraphs (a), (b) and (c) do not apply and not all of the required
permissions to import the goods were granted, or given, by the end of the
grant period--the day after the end of the grant period.
Section 203B of the Act allows for the officer of Customs to seize without warrant
prohibited imports in a Customs place.
79. If a person finds out, either during the application period or the grant period, that the
application for a required permission to import the goods was refused, they can
inform Customs at that point and the goods will be seized under section 203B on the
day after the notification. However, the person may otherwise choose not to tell
Customs of this occurrence and simply wait out the application period or the grant
period. In that circumstance, the goods will be seized on the day after the end of the
relevant period.
Page 16 Customs Amendment (Strengthening Border Controls) Bill 2008
80. The onus at all times is on the person to provide written evidence to Customs, either
of the application for the required permission or of its granting or giving, within the
specified timeframes.
81. Subsection 209Z(3) provides that the detention notice is also taken to be a seizure
notice that:
a) is in accordance with section 205A; and
b) was served:
(i) under section 205 by the responsible person; and
(ii) on the day the goods are taken to be seized.
The fact that goods are seized by operation of this section means that the provisions
of the Customs Act that apply to goods seized under section 203B will now apply to
the goods. These provisions are set out in Subdivision G of Division 1 of Part XII of
the Customs Act and include the right for the owner of the goods to make a claim for
the return of the goods and provisions indicating when proceedings in respect of
offences involving the goods must be commenced.
New section 209ZA - Evidence provided and permission granted or given
82. New section 209ZA sets out the consequences of providing to Customs written
evidence of the making of an application for a required permission to import the
goods, and having the permission granted or given, in the specified timeframes.
83. Subsection 209ZA(1) provides that this section applies if:
a) goods have been detained under section 209U; and
b) a detention notice identifying the goods has been served; and
c) written evidence, of the making of an application for each required
permission to import the goods that was not granted, or given, by the time
the goods were imported, has been provided to Customs by the end of the
application period for the goods; and
d) all the required permissions to import the goods have been granted, or
given, on or before the end of the grant period for the goods.
84. Subsection 209ZA(2) provides that if all the circumstances are satisfied an officer of
Customs must return the goods to the owner.
85. Subsection 209ZA(3) provides that at the time the last required permission to import
the goods is granted or given, the goods cease to be prohibited imports.
86. Subsection 209ZA(4) provides that proceedings cannot be brought for an offence
against this Act in relation to the importation of the goods. Therefore, a person will
not be able to be prosecuted for the offence of importing a prohibited import.
Customs Amendment (Strengthening Border Controls) Bill 2008 Page 17
New section 209ZB - Service by post
87. New section 209ZB provides that for the purposes of the application of section 29 of
the Acts Interpretation Act 1901 to the service by post of a detention notice under
this Subdivision on a person, such a notice posted as a letter addressed to that
person at the last address of that person known to the sender is taken to be properly
addressed. Section 29 of the Acts Interpretation Act 1901 sets out when the service
of a document that is to be served by the post is effected and the time at which the
service is effected.
New section 209ZC - Liability for detention of goods
88. New section 209ZC provides that neither the Commonwealth nor an officer or other
person is under any liability in relation to the detention of any goods under this
Subdivision for which there was reasonable cause.
NEW SUBDIVISION B - PENALTIES IN LIEU OF PROSECUTION FOR OFFENCES
RELATING TO PROHIBITED IMPORTS, RESTRICTED AREAS
Items 15 to 18 - Consequential amendments
89. Items 15 to 18 amend subparagraphs 243T(4)(c)(i) and (d)(i) and
paragraphs 243T(4A)(b) and 243U(4A)(b) to insert the words "Subdivision A of"
before the words "Division 5". This will reflect the new heading given to the
provisions under current Division 5 of Part XIII (see item 19 of this Schedule below).
Item 19 - Before section 243X
90. The provisions of current Division 5 of Part XIII (including sections 243X to 243ZE)
of the Customs Act deals with the issue of infringement notices in lieu of prosecution
for offences relating to false and misleading statements, cargo reporting and the
movement of goods.
91. Item 19 of Schedule 1 inserts a new Subdivision A of Division 5 of Part XIII for these
provisions. This is to keep these current provisions separate from the new
provisions relating to the issue of infringement notices in lieu of prosecution for
offences relating to prohibited imports and restricted areas that will be located under
new Subdivision B of the Division 5 of Part XIII.
Items 20 to 35 - Consequential amendments
92. Items 20 to 35 contain amendments to provisions in existing Division 5 of Part XIII
as a result of the insertion of the new heading for these provisions.
93. Items 20, 21, 22, 26, 33, 34 and 35 substitute the references to "Division" in
sections 243ZC and 243ZD, subsections 243X(1), 243XA(1), 243Y(1) and 243ZE(3)
and paragraph 243Z(2)(a) with a reference to "Subdivision".
Page 18 Customs Amendment (Strengthening Border Controls) Bill 2008
94. Items 23, 24, 25, 27, 28, 29, 30, 31 and 32 make amendments to clarify that the
"infringement notice" mentioned in subsections 243Y(2) and (3), 243Z(1) and (3)
and 243ZA(1), (2) and (3) and paragraphs 243ZA(3)(c) and 243ZB(1)(a) are served
under Subdivision A of Division 5 of Part XIII, as opposed to new Subdivision B.
Item 36 - At the end of Division 5 of Part XIII
95. Item 36 inserts new Subdivision B of Division 5 of Part XIII. Subdivision B provides a
new scheme to enable the issue of infringement notices in lieu of prosecution for
offences relating to prohibited imports and restricted Customs areas.
New section 243ZF - Application of Subdivision B
96. New section 243ZF sets out the offences to which the new infringement notice
scheme in Subdivision B applies.
Prescribed prohibited imports
97. Paragraph 243ZF(a) provides that Subdivision B will apply to the offence of
importing goods that are prohibited imports of a kind prescribed for the purposes of
section 243ZF. This is similar to the application of the new surrender and
post-importation permissions regimes (see item 14 of this Schedule above).
98. Section 50 of the Customs Act provides, in part, that the Governor-General may, by
regulation, prohibit the importation of goods into Australia and that the power may
be exercised by prohibiting the importation of goods absolutely or by prohibiting the
importation of goods unless specified conditions or restrictions are complied with.
Section 51 of the Customs Act provides that goods, the importation of which is
prohibited under section 50, are prohibited imports.
99. The PI Regulations control the importation of the goods specified in the various
regulations and the Schedules to the PI Regulations, by prohibiting importation
absolutely, or by making importation subject to a permission or licence.
100. Paragraph 233(1)(b) of the Customs Act prohibits the importation of any prohibited
imports. A contravention of paragraph 233(1)(b) is an offence of strict liability.
101. The new Subdivision B will allow the issue of an infringement notice in lieu of
prosecution for the offence of contravening paragraph 233(1)(b), if the offence
relates to goods that are prohibited imports prescribed for the purposes of
section 243ZF.
102. The large range of goods that are controlled under the PI Regulations means that
the threat posed to the community of these goods also varies greatly. Appropriate
prohibited imports will be prescribed, balancing the threat posed to the community
against the administrative burden the seizure of such items places on Customs.
Customs Amendment (Strengthening Border Controls) Bill 2008 Page 19
103. Seizure, without issuing an infringement notice, will, of course, remain as an option
in relation to the more serious contraventions of the Customs Act that relate to the
importation of prohibited imports. This is an efficient and effective use of resources.
104. Together with the new surrender and post-importation permissions regime, this part
of the new infringement notice scheme is designed to reduce the administrative
burden that is involved in seizing prohibited imports that are low value and low risk.
In contrast with the new surrender and post-importation permissions regime, the
new infringement notice scheme will only apply to prescribed prohibited imports that
are concealed from Customs.
Restricted area offences
105. Subdivision B will also apply to an offence for a contravention of
subsections 234A(1) and 234AB(3) of the Customs Act. These offences relate to
restricted areas known as section 234AA places.
106. Section 234AA of the Customs Act allows a Collector of Customs to display a sign at
or near a place that is to be used by officers of Customs for the questioning of ship
or aircraft passengers, the examining of the personal baggage of such passengers
and as a holding place for such passengers.
107. In addition, a Collector of Customs may also display signs at or near that place that
indicate that the use of cameras, sound recorders and mobile phones or other
electronic forms of communication at the place by unauthorized persons is
prohibited. Such a place is defined as a section 234AA place.
108. It is an offence under subsection 234A(1) of the Customs Act to:
a) enter into, or be in, a section 234AA place; or
b) enter into, or be in, a ship, aircraft or wharf at which a ship is berthed, when
the personal baggage of a disembarking or embarking passenger is being
examined at or in the vicinity of the ship, aircraft or wharf.
109. It is an offence under subsection 234AB(3) of the Customs Act to fail to comply with
a direction by an officer of Customs not to use a camera, sound recorder or mobile
phone or other electronic forms of communication:
a) at a section 234AA place; or
b) at a place in a ship, aircraft or wharf at which a ship is berthed, when the
personal baggage of a disembarking or embarking passenger is being
examined at or in the vicinity of that place.
110. Subdivision B will allow an infringement notice to be issued in lieu of prosecution for
an offence under subsections 234A(1) or 234AB(3). Both subsections are offences
of strict liability and are relatively minor offences.
Page 20 Customs Amendment (Strengthening Border Controls) Bill 2008
New section 243ZG - Guidelines for serving infringement notices
111. New section 243ZG provides that the Chief Executive Officer of Customs must
make guidelines in respect of the administration of Subdivision B of Division 5 of
Part XIII to which the CEO must have regard when exercising powers under
Subdivision B.
New section 243ZH - When an infringement notice can be served
112. New section 243ZH sets out the circumstances under which an infringement notice
can be served, and related matters.
113. Under subsection 243ZH(1), if the CEO has reasonable grounds to believe that a
person has committed an offence to which Subdivision B applies, the CEO may
cause an infringement notice to be served in accordance with this Subdivision. For
an offence of importing prohibited imports, the CEO must also have reasonable
grounds to believe that the person concealed from Customs the goods to which the
offence relates.
114. Under subsection 243ZH(2), an infringement notice for the offence of importing
prohibited imports does not have any effect unless it is served:
a) if the person to be served is in a section 234AA placebefore the person
leaves the section 234AA place; or
b) if the person to be served is not in a section 234AA place and the goods to
which the offence relates have been seized under section 203B--with the
seizure notice issued under section 205 in respect of the goods.
115. Paragraph (a) relates to where the offence is detected during the examination of the
personal baggage of a passenger at the border. In this situation, the infringement
notice must be served before the passenger leaves the examination area. This
ensures that the offence is dealt with quickly and while the passenger is in contact
with Customs.
116. Paragraph (b) relates to where an offence is detected in respect of goods imported
through places other than section 234AA places. In this situation, Customs would
seize the goods under section 203B and issue a seizure notice under section 205.
At the same time, an infringement notice would be issued so that timeframes on the
notices run concurrently. This ensures that the time periods in relation to the
infringement notice process and the seizure notice process start at the same time,
which will facilitate the concurrent operation of the processes and minimise the time
taken to deal with the offence. Therefore, if the person fails to pay the Infringement
notice, the seizure notices ensures that the goods do not enter the community and
the person remains liable for the offence. While this provision is broad, the intention
is that this provision would only apply in respect of unaccompanied goods and
goods imported through the post.
Customs Amendment (Strengthening Border Controls) Bill 2008 Page 21
117. Subsection 243ZH(3) provides that an infringement notice for an offence related to
subsection 234A(1) or 234AB(3) does not have any effect unless it is served within
one year after the day on which the offence is alleged to have been committed.
118. Subsection 243ZH(4) provides that, without limiting the meaning of concealed in
paragraph 243ZH(1)(b), a person is taken to have concealed goods from Customs if
the person was required to give information about the goods to Customs in
accordance with section 71, 71K or 71L and the person failed to do so. For example,
if a passenger fails to declare a prohibited import on the Incoming Passenger Card,
he or she will be taken to have `concealed' that prohibited good from Customs.
New section 243ZI - Matters to be included in an infringement notice
119. New section 243ZI lists the matters to be included in an infringement notice served
under Subdivision B. Subsection 243ZI(1) provides that such a notice must:
a) state the name of the person on whom it is to be served; and
b) state that it is being served on behalf of the CEO; and
c) state:
(i) the nature of the alleged offence; and
(ii) the time (if known) and date on which, and the place at which, the
offence is alleged to have been committed; and
(iii) the maximum penalty that a court could impose for the alleged offence;
and
d) specify that a penalty of 2 penalty units is payable under the notice in
respect of the alleged offence; and
e) state that, if the person on whom the notice is served does not wish the
matter to be dealt with by a court, the person may pay to the CEO the
amount of the penalty specified in the notice:
(i) if the notice is served on the person in a section 234AA place and
relates to an alleged offence covered by paragraph 243ZF(a)--before
the person leaves the place for the first time after the notice is served;
or
(ii) in any other case--within 28 days after the date of service of the
notice; and
f) state that compliance with the notice is not an admission of guilt or liability;
and
g) if the notice relates to an alleged offence covered by paragraph 243ZF(a)--
state that, if the penalty specified in the notice is paid and the notice is not
withdrawn, the goods to which the offence relates will be taken to be
condemned as forfeited to the Crown such that:
Page 22 Customs Amendment (Strengthening Border Controls) Bill 2008
(i) the title to the goods immediately vests in the Commonwealth to the
exclusion of all other interests in the goods, and the title cannot be
called into question; and
(ii) a claim for the return of the goods cannot be made; and
(iii) if the penalty is paid after a claim for the return of the goods is made,
the goods cannot be returned; and
h) state that the person may make written representations to the CEO seeking
the withdrawal of the notice.
120. Under subsection 243ZI(2), an infringement notice served under this Subdivision
may contain any other matters that the CEO considers necessary.
New section 243ZJ - Withdrawal of infringement notices
121. New section 243ZJ provides for matters related to the withdrawal of infringement
notices. Subsection 243ZJ(1) enables a person on whom an infringement notice has
been served under Subdivision B to make written representations to the CEO
seeking the withdrawal of the notice.
122. Under subsection 243ZJ(2), the CEO may withdraw the infringement notice served
on a person (whether or not the person has made representations) by causing
written notice of the withdrawal to be served on the person within the time period
given for the payment of the infringement notice penalty.
123. Subsection 243ZJ(3) sets out some matters the CEO may have regard to in
deciding whether or not to withdraw an infringement notice served under Subdivision
B, including:
a) whether the person has previously been convicted of an offence for a
contravention of this Act;
b) the circumstances in which the offence specified in the notice is alleged to
have been committed;
c) whether the person has previously been served with an infringement notice
under this Subdivision in respect of which the person paid the penalty
specified in the notice; and
d) any written representations made by the person.
124. Subsection 243ZJ(4) requires that, where an infringement notice served under
Subdivision B on a person is withdrawn after that person has paid the infringement
notice penalty, the CEO must refund to that person an amount equal to the amount
paid.
Customs Amendment (Strengthening Border Controls) Bill 2008 Page 23
New section 243ZK - What happens if the infringement notice penalty is paid
125. New section 243ZK deals with the consequences of paying the infringement notice
penalty. Under subsection 243ZK(1), this section applies if an infringement notice is
served on a person under this Subdivision, the person pays the penalty within the
required time, and the notice is not withdrawn. In that event:
a) any liability of the person for the offence specified in the notice is
discharged (subsection (2));
b) further proceedings cannot be taken against the person for the offence
(subsection (3));
c) the person is not regarded as having been convicted of the offence
(subsection (4)); and
d) if the notice is for the offence of importing prescribed prohibited imports, the
goods are taken to be condemned as forfeited to the Crown, title to the
goods immediately vests in the Commonwealth to the exclusion of all other
interests in the goods, and the title cannot be called into question
(subsection (5)).
126. In addition, the operation of the provisions relating to the seizure process will be
ceased or modified as a result of the goods being taken to be condemned as
forfeited to the Crown. The relevant provisions will be amended to achieve the
desired outcome (see items 6 to 13 of this Schedule above).
New section 243ZL - More than one infringement notice may not be served for the
same offence
127. New section 243ZL clarifies that Subdivision B does not permit the service of more
than one infringement notice on a person for the same offence.
New section 243ZM - Infringement notice not required to be served
128. New section 243ZM clarifies the intended operation of Subdivision B. The section
makes it clear that Subdivision B does not:
a) require an infringement notice to be served on a person in relation to an
offence; or
b) affect the liability of a person to be prosecuted for an offence if:
(i) an infringement notice is not served on the person in relation to the
offence; or
(ii) an infringement notice served on the person in relation to the offence
has been withdrawn; or
c) affect the liability of a person to be prosecuted for an offence if the person
does not comply with an infringement notice served on the person in
relation to the offence; or
Page 24 Customs Amendment (Strengthening Border Controls) Bill 2008
d) limit the amount of the penalty that may be imposed by a court on a person
convicted of an offence.
New section 243ZN - Right of compensation in certain circumstances for goods
disposed of or destroyed
129. New section 243ZN sets out the compensation provisions if goods taken to be
condemned as forfeited under section 243ZK were not prohibited imports but have
been disposed or destroyed before this is established.
130. Subsection 243ZN(1) provides that despite the disposal or destruction of the goods
taken to be condemned as forfeited to the Crown under section 243ZK, a person
may apply to a court of competent jurisdiction under this section for compensation.
131. Subsection 243ZN(2) provides that a right to compensation exists if:
a) the goods were not prohibited imports; and
b) the goods were not used or otherwise involved in the commission of an
offence; and
c) the person establishes, to the satisfaction of the court, that he or she is the
rightful owner of the goods.
132. Subsection 243ZN(3) provides that if a right to compensation exists under
subsection (2), the court must order the payment by the Commonwealth to the
person of an amount equal to the market value of the goods at the time of their
disposal or destruction.
133. These provisions are similar to other compensation arrangements in the Customs
Act in relation to seized goods that have been disposed of or destroyed, for
example, section 205F.
New section 243ZO - Disposal of forfeited goods
134. New section 243ZO provides that all goods condemned as forfeited to the Crown
under Subdivision B must be dealt with and disposed of in accordance with the
directions of the Chief Executive Officer of Customs. This provision is similar to
other provisions dealing with the disposal of goods that have been seized by
Customs, for example, section 208D.
Item 37 - Application
135. Subclause (1) of item 37 provides that the provisions of new Subdivision GB
(relating to surrender of prescribed prohibited imports) and GC (relating to post-
importation permissions) of Division 1 of Part XII only apply in relation to goods
imported into Australia on or after the commencement of this item.
Customs Amendment (Strengthening Border Controls) Bill 2008 Page 25
136. Subclause (2) provides that the provisions of new Subdivision B of Division 5 of
Part XIII (relating to the infringement notice scheme for offences relating to
prohibited imports and restricted areas) only apply to offences alleged to have been
committed on or after the commencement of this item.
137. This ensures that the provisions of all three new Subdivisions do not have any
retrospective effect.
Page 26 Customs Amendment (Strengthening Border Controls) Bill 2008
SCHEDULE 2 - SEARCH POWERS ON CERTAIN SHIPS AND AIRCRAFT
Customs Act 1901
Background
138. Current Division 1 of Part XII of the Customs Act provides Customs officers with
certain powers that enable them to enforce the Customs Act, section 72.13 of the
Criminal Code (which relates to marking of plastic explosives), Division 307 of the
Criminal Code (that relate to serious drug offences) and any other prescribed Act
that Australia may enforce in accordance with the United Nations Law of the Sea
(UNCLOS) (the specified Acts), against ships found in Australia's various maritime
zones. The Migration Act 1958 and the Fisheries Management Act 1991 are two of
the Acts which have been so prescribed.
139. The scope of these maritime enforcement powers and the circumstances under
which they may be exercised depend on Australia's jurisdiction under UNCLOS in
the various maritime zones. The maritime zones include the territorial sea, the
contiguous zone, the safety zones around Australian resources installations or
Australian sea installations, and the exclusive economic zone.
140. In particular, these maritime powers allow Customs officers to board and search
ships suspected of being involved in a contravention against one or more of the
specified Acts. It also allows Customs officers to arrest without warrant any person
found on the ship who is reasonably suspected of being involved in an offence
against one or more of the specified Acts.
141. In exercising these powers, Customs officers have in recent times encountered
violent resistance from persons on board the ships and attempts to escape custody
and dispose of evidentiary material.
142. The provisions in this Schedule will amend Division 1 of Part XII of the Customs Act
to allow Customs officers to, immediately on boarding a ship suspected of being
involved in offences against the specified Acts, search for, examine, take
possession of and retain items that may be:
a) a weapon;
b) used to help a person escape detention; or
c) evidence of an offence against the specified Acts.
143. These amendments ensure the safety of Customs officers from possible attack while
investigating ships suspected of offences against the specified Acts as well as
preventing the possibility of evidence of an offence being thrown overboard before
the ship reaches Australia. Where a person may be arrested as a suspect for an
offence, the amendments would also minimise the opportunities for the suspect to
Customs Amendment (Strengthening Border Controls) Bill 2008 Page 27
escape custody. These new powers are complemented by provisions regarding the
proper manner in which such powers may be exercised.
144. Similar powers exist in the Fisheries Management Act 1991 that enable fisheries
officers to enforce fisheries offences in the maritime zones safely and more
effectively.
145. Customs officers also have similar powers to enforce the Customs Act and section
72.13 and Division 307 of the Criminal Code in relation to aircraft that is in Australia.
Therefore, this Schedule makes similar amendments to the enforcement powers of
Customs officers in relation to aircraft.
146. The provisions of this Schedule also make minor or consequential amendments to
other provisions of Division 1 of Part XII that relate to search powers.
Items 1 and 2 - Definition of frisk search
147. The term "frisk search" is currently defined in subsection 4(1) of the Customs Act for
the purposes of the Customs Act and in subsection 183UA(1) of the Customs Act for
the purposes of Division 1 of Part XII of the Customs Act.
148. Subsection 4(1) defines "frisk search" to mean:
(a) a quick search of the person by the rapid and methodical running
of hands over the person's outer garments; and
(b) an examination of anything worn by the person that can be
conveniently removed and is voluntarily removed by the person;
to:
(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) or (1C)--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
(d) recover any such goods;
149. By contrast, subsection 183UA(1) defines "frisk search" to mean:
(a) a search of a person conducted by quickly running the hands
over the person's outer garments; and
(b) an examination of anything worn or carried by the person that is
conveniently and voluntarily removed by the person;
Page 28 Customs Amendment (Strengthening Border Controls) Bill 2008
150. Paragraphs (a) and (b) of the two definitions are slightly different and this creates
confusion. Further, paragraphs (c) and (d) of the existing definition in subsection
4(1) go beyond defining the term. These paragraphs limit the purposes for which a
frisk search may be carried out and empower goods to be recovered as a result of
the search. These additional matters are more appropriately dealt with in a
substantive provision than in a definition provision.
151. To deal with these drafting issues, item 1 substitutes the definition of "Frisk search"
in subsection 4(1) with the definition of "frisk search" in current subsection 183UA(1)
and item 2 repeals the definition of "frisk search" in subsection 183UA(1).
152. This leaves a single new definition of "frisk search" in subsection 4(1) that applies to
the whole Customs Act and removes any confusion. This definition is preferred as it
is more consistent with the definition of "frisk search" in other Commonwealth
legislation, for example, the Crimes Act 1914 and the Excise Act 1901.
153. In addition, the matters that are dealt with in paragraphs (c) and (d) of the existing
definition of "frisk search" in subsection 4(1) are addressed in new inserted
subsection 219M(1A) (see item 16 below).
Item 3 - After paragraph 185(2)(ca)
154. The powers of officers under subsection 185(2) of the Customs Act include a power
to search a ship or aircraft and any goods on such a ship or aircraft, and to require
persons on the ship or aircraft to produce documents. These powers also include
powers to secure goods found and to take copies or extracts of documents found or
produced.
155. Subsection 185(4A) provides that evidence of the commission of an offence against
the law of the Commonwealth, a State or a Territory obtained in the exercise of
powers under section 185 may be used, or given to another body for use, in
investigating or prosecuting the offence. However, there is no explicit power in
section 185 that allows an officer to take possession of and retain goods found or
documents produced, where such goods or documents may be evidence of the
commission of an offence.
156. Item 3 inserts new paragraph 185(2)(cb), which give officers additional powers to
take possession of goods found or documents produced under subsection 185(2), if
an officer has reasonable grounds to believe such goods or documents may afford
evidence of the commission of a relevant offence. New subsection 185(7) sets out
the matters that determine if such goods or documents may afford evidence of the
commission of a relevant offence (see item 6 below).
157. This amendment makes it explicit that Customs can take possession of relevant
evidentiary material found or produced in the exercise of the powers under
subsection 185(2), for the purposes of investigating and prosecuting the relevant
offence. This amendment also aligns the existing powers under subsection 185(2)
Customs Amendment (Strengthening Border Controls) Bill 2008 Page 29
with the amended personal search power under section 185AA (see items 8 to 12
below).
158. The new paragraph 185(2)(cb) does not apply with respect to narcotic goods as
there is already an existing power under subsection 185(2)(e) to seize without
warrant any narcotic goods found as a result of a search under subsection 185(2).
Items 4 and 5 - Insertion of Notes
159. The amended personal search power under section 185AA applies to a person
found on a ship or aircraft boarded under paragraph 185(2)(a) and to a person
placed on a ship or aircraft under subsection 185(3AA).
160. Items 4 and 5 insert Notes at the end of subsection 185(2) and subsection 185(3AA)
linking these subsections to the amended personal search power under
section 185AA.
Item 6 - At the end of section 185
161. Item 6 inserts new subsection 185(7) that sets out, for the purposes of new
paragraph 185(2)(cb) (see item 3 above), the circumstances that satisfy the criteria
that "goods found or documents produced on a ship or aircraft may afford evidence
of the commission of a relevant offence".
162. In the case where the ship is in Australia, the criteria is satisfied only if the goods or
documents may afford evidence of the commission of an offence, either in or outside
Australia, against the Customs Act, section 72.13 or Division 307 of the Criminal
Code or an Act prescribed by the regulations.
163. In the case where the ship is outside Australia, the criteria is satisfied only if the
goods or documents may afford evidence of the commission of an offence:
a) in Australia against the Customs Act, section 72.13 or Division 307 of the
Criminal Code or an Act prescribed by the regulations;
b) in Australia's exclusive economic zone against an Act prescribed by the
regulations.
164. In the case where the aircraft is in Australia, the criteria is satisfied only if the goods
or documents may afford evidence of the commission of an offence, either in or
outside Australia, against the Customs Act or section 72.13 or Division 307 of the
Criminal Code.
165. The limits on the scope of the power to take possession of and retain evidentiary
material set out under new subsection 185(7) are in accordance with Australia's
jurisdiction under UNCLOS in the various maritime zones. Similar limits are applied
to the power to arrest a person found on board a ship under paragraph 185(2)(d)
Page 30 Customs Amendment (Strengthening Border Controls) Bill 2008
and the new power to conduct a personal search for evidentiary material under new
paragraph 185AA(1B).
Item 7 - At the end of subsection 185A(2)
166. The amended personal search power in 185AA (see items 8 to 12 below) will apply
to a person found on a ship boarded under paragraph 185A(2)(a). Item 7 inserts a
Note after subsection 185A(2) to link paragraph 185A(2)(a) to the amended
personal search power in section 185AA.
Items 8 to 12 - Amended search powers under section 185AA
167. Current section 185AA of the Customs Act allows an officer to search for, take
possession of and retain items on a person, or in that person's immediate control,
that could inflict bodily injury or help the person to escape.
168. However, these personal search powers can only be exercised where the person is
on a detained ship or aircraft, or where the person is on a detained ship or aircraft
and is being placed on another ship or aircraft for the purpose of moving him or her.
Further, the existing powers do not allow officers to search for and take possession
of potential evidentiary material.
169. Items 8 to 12 amend section 185AA to expand the scope of the personal search
powers and the circumstances under which these powers may be exercised.
Item 8 - Subsections 185AA(1), (2) and (3)
170. Item 8 repeals subsections 185AA(1), (2) and (3) and substitutes new
subsections 185AA(1), (1A), (1B), (2), (2A), (3), (3A), (3B) and (3C).
New subsections 185AA(1), (1A) and (1B)
171. Under new subsections 185AA(1) and (1A), if a person is:
a) found on a ship or aircraft boarded under section 185(2)(a); or
b) placed on a ship or aircraft under subsection 185(3AA),
the person and any clothing and other property within the immediate control of that
person may be searched for the purposes of finding out if that person is carrying or
hiding;
a) a weapon or thing capable of being used to inflict injury or help the person
escape; or
b) a document or other thing that the person conducting the search has
reasonable grounds to believe may afford evidence of the commission of a
relevant offence.
Customs Amendment (Strengthening Border Controls) Bill 2008 Page 31
172. New subsection 185AA(1B) sets out the circumstances in which a document or
other thing may afford evidence of the commission of a relevant offence, which
effectively limits the scope of the power to search for evidence. The circumstances
are the same as those set out in new subsection 185(7) for the purposes of new
paragraphs 185(2)(cb) and (cc) (see items 3 and 6 above).
New subsection 185AA(2) and (2A)
173. Under new subsections 185AA(2) and (2A), if a person is found on a ship boarded
under paragraph 185A(2)(a), the person and any clothing and other property within
the immediate control of that person may be searched for the purposes of finding
out if that person is carrying or hiding a weapon or thing capable of being used to
inflict injury.
174. Section 185A relates to the boarding of certain foreign ships by officers on the high
seas, where Australia has only very limited jurisdiction. In addition to the power to
board, the only other powers relate to establishing the identity of the ship and its
occupants. Generally, officers have no power to enforce any Australian law.
Consequently, the only purpose for which the personal search power may be
exercised on a ship boarded under section 185A is to search for weapons or
potential weapons.
New subsections 185AA(3), (3A) and (3B) - power to examine things found
175. New subsection 185AA(3) provides a new power for an officer to examine any thing
found in the course of a search under section 185AA. If the thing found is a
document, the examination may include reading the document, either directly or with
the help of an electronic device.
176. Under new subsection 185AA(3A) an officer may do, or arrange for another officer
or another person to do, whatever is reasonably necessary to permit the
examination of the thing or things being examined. A similar power exists in current
subsection 185(2C) in relation to the power to examine goods under current
paragraph 185(2)(b).
177. New subsection 185AA(3B) limits the scope of subsection 185AA(3A) by prohibiting
an officer from damaging a thing being examined by forcing it, or part of it, open
unless:
a) the person being searched has been given a reasonable opportunity to
open the thing of part of it; or
b) it is not reasonably practicable to give the person such an opportunity.
178. A similar limitation exists in current subsection 185(3C) in relation to the powers to
board, search and examine goods under section 185.
Page 32 Customs Amendment (Strengthening Border Controls) Bill 2008
New subsection 185AA(3C)
179. New subsection 185AA(3C) enables an officer, or other person conducting the
search, to take possession of:
a weapon or other thing capable of being used to inflict injury or help
the person escape; or
a document or other thing that may afford evidence of the commission
of a relevant offence,
that is found in the course of a search under new subsection 185AA(1A).
180. New subsection 185AA(3C) also enables an officer, or other person conducting the
search to take possession of a weapon or other thing capable of being used to inflict
injury that is found in the course of a search under new subsection 185AA(2A).
Existing subsections 185AA(4) and (5)
181. Existing subsection 185AA(4) makes it clear that section 185AA does not authorise
the removal of a person's clothing or to require a person to remove any of his or her
clothing, except the person's outer garments.
182. Existing subsection 185AA(5) provides that a search of a person or a person's
clothing under section 185AA must be conducted by an officer who is of the same
sex as the person. Where no officer of the same sex is available to conduct the
search, the search may be conducted by any other person of the same sex who is
requested by an officer to conduct the search and agrees to do so.
183. Existing subsections 185(4) and (5) continue to apply to a search under new
subsections (1A) or (2A).
Item 9 - Subsection 185AA(6)
184. Existing subsection 185AA(6) provides immunity against civil or criminal
proceedings to a person who conducts a search under section 185AA at the request
of an officer, if the person acts in good faith and in accordance with
subsection 185AA(7).
185. Existing subsection 185AA(7) prohibits an officer or other person who conducts a
search under section 185AA from using more force, or subjecting a person to
greater indignity, than is reasonably necessary in order to conduct the search.
186. Item 9 repeals and substitutes subsection 185AA(6). New subsection 185AA(6)
retains the current immunity and extends it under the same conditions to an officer,
who conducts a search, or person who conducts the search at the request of an
officer, under section 185AA.
Customs Amendment (Strengthening Border Controls) Bill 2008 Page 33
Item 10 - After subsection 185AA(7)
187. Item 10 inserts new subsection 185AA(7A). Under new subsection 185AA(7A), if an
officer who conducts a search under section 185AA obtains evidence of the
commission of an offence against a law of the Commonwealth, a State or a
Territory, that evidence may be used, or given to another body for use, in
investigating or prosecuting the relevant offence. New subsection 185AA(7A) does
not override or limit the laws of evidence of a State relating to proceedings for an
offence against a law of that State.
188. Existing subsection 185(4A) is a similar provision applying to evidence obtained
during the exercise of search powers under section 185.
Item 11 - Subsection 185AA(8)
189. The term "officer" is defined separately for sections 185 and 185A in existing
subsections 185(5) and 185A(7) respectively. Existing subsection 185AA(8)
provides that for section 185AA, "officer" has the same meaning as it has in section
185. This is because existing personal search powers in section 185AA relate to
persons who are on board a ship or aircraft detained under section 185(3) or who
have been placed on board a ship or aircraft under section 185(3AA).
190. Item 11 repeals and substitutes existing subsection 185AA(8). Under new
subsection 185AA(8), "officer" in section 185AA means an officer within the meaning
of subsection 185(5) or subsection 185A(7). This reflects the fact that the personal
search powers in new subsections 185AA(1A) and (2A) apply in respect of persons
found on ships or aircraft boarded under paragraph 185(2)(a) as well as ships
boarded under section 185A(2)(a).
Item 12 - At the end of section 185AA
191. Item 12 inserts new subsection 185AA(9), which extends the scope of the phrase "a
person found on a ship or aircraft" in section 185AA to include a person suspected
on reasonable grounds by an officer of having landed from, or left, the ship or
aircraft.
192. New subsection 185AA(9) is based on existing subsection 185(6) that applies with
respect to the same phrase in section 185.
Item 13 - After section 185AA
193. Item 13 inserts new section 185AAA which sets out the circumstances in which
Customs can retain, or be required to return, a relevant item where possession of
the item has been taken under new paragraph 185(2)(cb) or new subsection
185AA(3C).
194. Under new subsection 185AAA(1), Customs must return such an item if either the
reason for the item's retention by Customs no longer exists or it is decided that the
Page 34 Customs Amendment (Strengthening Border Controls) Bill 2008
item is not to be used in evidence, or a period of 60 days after the item was taken
possession of, ends (whichever is the earlier). However, Customs is not required to
return the item if is other forfeited or forfeitable to the Commonwealth or if the item is
the subject of a dispute as to ownership.
195. Under new subsection 185AAA(2), Customs must take all reasonable steps to return
an item that Customs is required to return. However, the item does not have to be
returned if, before the end of the 60 day period referred to in subsection (1),
proceedings were instituted in which the relevant item may be evidence, and those
proceedings have not been completed. In addition, Customs is not required to
return an item if an extension of the 60 day period has been granted under new
subsection 185AAA(4), or Customs is otherwise authorised to retain, destroy or
dispose of the item.
196. Under new subsections 185AAA(3), (4) and (5), Customs may apply to a magistrate
for, and the magistrate may grant, an extension of the 60 day period referred to in
subsection 185AAA(1). (Under these sections, a magistrate may also grant an
extension of a previously extended time period.)
197. New subsection 185AAA(6) defines the term "relevant item" for the purposes of new
section 185AAA. A relevant item basically means goods, documents, weapons and
any other things taken possession of under new paragraph 185(2)(cb) and new
subsection 185AA(3C). However, it does not include narcotic goods taken
possession of under subsection 185AA(3C) which means that narcotic goods do not
have to be returned by Customs to a person under section 185AAA.
Items 14 and 15 - Subsections 219L(1B) and (1C)
198. Items 14 and 15 repeal existing subsections 219L(1B) and (1C) respectively. These
two subsections enable a detention officer to detain a person for the purposes of
conducting a frisk search under section 219M, in circumstances where a ship or
aircraft has been boarded under section 185. A frisk search is a type of personal
search.
199. The scope of the personal search powers under new subsection 185AA(1A) are
slightly more robust than a frisk search. Further, the circumstances in which these
new powers can be exercised, as set out in subsection 185AA(1), completely
overlap the circumstances in which a person may be detained for the purpose of a
frisk search under subsections 219L(1B) or (1C). Therefore, the new
subsections 185AA(1) and (1A) render subsections 219L(1B) and (1C) redundant
and these redundant provisions are to be repealed.
Item 16 - Subsection 219L(2)
200. Item 16 omits references to subsections 219L(1B) and (1C) in subsection 219L(2)
as a consequence of the repeal of subsections 219(1B) and (1C).
Customs Amendment (Strengthening Border Controls) Bill 2008 Page 35
Item 17 - Before subsection 219M(1)
201. Existing section 219M sets out the manner in which a frisk search of a person
detained under section 219L is to be conducted. However, although the power to
conduct such a search is implied on the reading of sections 219L and 219M, there is
no explicit power in either section to conduct a frisk search.
202. Item 17 inserts new subsection 219M(1A). New subsection 219M(1A) provides an
express power for a Customs officer to conduct a frisk search on a person detained
under section 219L for purpose of determining if the person is unlawfully carrying
prohibited goods. This purpose is consistent with the remaining circumstances
under subsections 219L(1) and (1A) in which a person can be detained following the
repeal of subsections 219L(1B) and (1C). Both circumstances relate to where a
detention officer suspects on reasonable grounds a person of carrying prohibited
goods.
203. New subsection 219M(1A) also provides a power to recover any prohibited goods
found in the course of the frisk search.
Items 18 to 21 - Consequential amendments
204. Items 18 to 21 repeal subsection 219M(4), section 219NA and paragraph
219ZE(1)(cb) and make amendments to paragraph 219ZE(1)(ca) as a consequence
of the repeal of subsections 219L(1B) and (1C) by items 14 and 15 of Schedule 1.
Item 22 - Application
205. Item 22 provides that the amendments made in items 3, 6, 8, 9, 10, 11 and 12 that
relate to the new search powers apply in relation to ships and aircraft that are
boarded on or after the commencement of this item.
Page 36 Customs Amendment (Strengthening Border Controls) Bill 2008
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