CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (NO. 2) 1989 NO. 24, 1989 CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (NO. 2) 1989 NO. 24, 1989 - TABLE OF PROVISIONS 1. Short title 2. Commencement 3. Principal Act 4. Interpretation 5. 6. Exemptions under Torres Strait treaty 7. Prohibition of the importation of goods 8. Prohibited exports 9. Manner of fixing duty 10. 11. When goods treated as the produce or manufacture of a country 12. Rebate of duty in respect of diesel fuel used for certain purposes 13. Interpretation 14. Renewal of licence 15. Investigation of matters relating to an agents licence 16. Interim suspension by Comptroller 17. National Customs Agents Licensing Advisory Committee 18. Power to board and search 19. Power to impound certain forfeited goods and release them on payment of duty and penalty 20. Forfeited ships and aircraft 21. Forfeited goods 22. 23. Customs offences 24. 25. Institution of prosecutions 26. Repeal of section 245A 27. Undertakings relating to tenders 28. Regulations 29. Review of decisions 30. Principal Act 31. Interpretation 32. 33. Entry for home consumption etc. 34. Interpretation 35. 36. Marking and labelling of containers and packages 37. Spoilt beer 38. Disposal of beer by Collector on cancellation etc. of licence 39. Rebate of duty in respect of diesel fuel used for certain purposes 40. Officers to have access to factories and approved places 41. Offences 42. Institution of prosecutions 43. Repeal of section 134A 44. Principal Act 45. Amendment of section 5 CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - LONG TITLE An Act to amend legislation relatingsto Customs and Excise, and for related purposes PART I-PRELIMINARY CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 1 Short title (Assented to 5 May 1989) 1. This Act may be cited as the Customs and Excise Legislation Amendment Act (No. 2) 1989. (Minister's second reading speech made in- House of Representatives on 7 November 1988 Senate on 25 November 1988) CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 2 Commencement 2. (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent. (2) Section 6 shall be taken to have commenced on 8 July 1988. (3) Paragraph 8 (1) (a) shall be taken to have commenced on 27 August 1987. (4) Section 18 shall be taken to have commenced on 15 October 1987. (5) Sections 19, 21, 23, 24, 29, 31 and 32 commence on 1 July 1989. (6) Sections 4, 9, 10 and 34 to 38 (inclusive) commence on 1 February 1989. (7) Part IV shall be taken to have commenced on the twenty-eighth day after the Off-shore Installations (Miscellaneous Amendments) Act 1982 received the Royal Assent. CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 3 Principal Act 3. In this Part, "Principal Act" means the Customs Act 1901*1*. *1* No. 6, 1901, as amended. For previous amendments, see No. 21, 1906; Nos. 9 and 36, 1910; No. 10, 1916; No. 41, 1920; No. 19, 1922; No. 12, 1923; No. 22, 1925; No. 6, 1930; Nos. 7 and 45, 1934; No. 7, 1935; No. 85, 1936; No. 54, 1947; No. 45, 1949; Nos. 56 and 80, 1950; No. 56, 1951; No. 108, 1952; No. 47, 1953; No. 66, 1954; No. 37, 1957; No. 54, 1959; Nos. 42 and 111, 1960; No. 48, 1963; Nos. 29, 82 and 133, 1965; No. 28, 1966; No. 54, 1967; Nos. 14 and 104, 1968; Nos. 12 and 134, 1971; No. 162, 1973; No. 216, 1973 (as amended by No. 20, 1974); Nos. 28 and 120, 1974; Nos. 56, 77 and 107, 1975; Nos. 41, 91 and 174, 1976; No. 154, 1977; Nos. 36 and 183, 1978; Nos. 92, 116, 177 and 180, 1979; Nos. 13, 15 and 110, 1980; Nos. 45, 64, 67, 152 and 157, 1981; Nos. 48, 51, 80, 108, 115 and 137, 1982; No. 81, 1982 (as amended by No. 39, 1983); Nos. 19, 39 and 101, 1983; Nos. 2, 22, 63, 72 and 165, 1984; Nos. 39, 40 and 175, 1985; Nos. 10, 34 and 149, 1986; Nos. 51, 76, 81, 104 and 141, 1987; Nos. 63, 66 and 76, 1988. CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 4 Interpretation 4. Section 4 of the Principal Act is amended by inserting in subsection (1) the following definition: " 'Beer' means any liquor on which, under the name of beer, any duty of Customs imposed by the Parliament is payable;". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 5 5. (1) Section 9 of the Principal Act is repealed and the following section is substituted: Delegation by Minister "9. (1) The Minister may, by signed instrument, delegate to an officer of Customs all or any of the functions and powers of the Minister under the Customs Acts. "(2) A function or power so delegated, when performed or exercised by the delegate, shall, for the purposes of the Customs Acts, be deemed to have been performed or exercised by the Minister. "(3) Paragraph 34AB (c) of the Acts Interpretation Act 1901 does not apply to a delegation under subsection (1).". (2) A delegation by the Minister under section 9 of the Principal Act and in force immediately before the commencement of this section continues in force after that commencement as if it were given under section 9 of the Principal Act as amended by subsection (1). CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 6 Exemptions under Torres Strait treaty 6. Section 30A of the Principal Act is amended by inserting in sub-subparagraph (4) (b) (ii) (B) "or flight" after "voyage". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 7 Prohibition of the importation of goods 7. Section 50 of the Principal Act is amended by inserting after paragraph (2) (a) the following paragraph: "(aa) by prohibiting the importation of goods in specified circumstances;". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 8 Prohibited exports 8. (1) Section 112 of the Principal Act is amended: (a) by inserting after paragraph (2) (a) the following paragraph: "(aa) by prohibiting the exportation of goods in specified circumstances;"; (b) by inserting after subsection (2A) the following subsections: "(2AB) It is a condition of any licence or permission to export goods, being a licence or permission granted under paragraph (2) (c) by the Minister for Defence or an authorised person within the meaning of subregulation 13B (1) or 13E (1) of the Customs (Prohibited Exports) Regulations after the commencement of this subsection, that the Minister for Defence may, at any time, by notice: (a) published: (i) in the Gazette; and (ii) in each State and internal Territory, in a newspaper circulating throughout that State or Territory; and (b) in writing given to the holder of the licence or permission; inform the holder that, with effect from a day specified in the notice, all goods to which the licence or permission relates, or such kinds of those goods as are specified in the notice, shall not be exported to a specified place because in the opinion of the Minister for Defence: (c) a situation in that place; or (d) a situation in another place to which there is a reasonable likelihood that such goods will be re-exported from that specified place; makes the exportation of such goods from Australia contrary to the national interest, and, where the Minister for Defence gives such a notice, the authority of the holder to export such goods to that specified place shall be taken to have been withdrawn until the Minister for Defence, by further notice in writing given to the holder, revokes the original notice. "(2AC) The day specified in a notice under subsection (2AB) shall be a day not earlier than the day on which the notice is published in the Gazette under subparagraph (2AB) (a) (i). "(2AD) Any failure to comply with the requirements of paragraph (2AB) (b) in relation to a notice under subsection (2AB) does not affect the validity of the notice.". (2) For the purpose of determining the validity of regulation 13G of the Customs (Prohibited Exports) Regulations, that regulation shall be taken to have been made under section 112 of the Principal Act as amended by subsection (1). CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 9 Manner of fixing duty 9. Section 136 of the Principal Act is amended by inserting "(other than beer that is entered for home consumption after 31 January 1989)" after "goods". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 10 10. After section 136 of the Principal Act the following section is inserted: Manner of determining volumes of, and fixing duty on, beer "137. (1) For the purposes of the Customs Acts in their application to beer that is entered for home consumption after 31 January 1989 in a bulk container, the container in which the beer is packaged shall be treated as containing: (a) if the volume of the contents of the container is nominated for the purpose of the entry, the beer is entered before 1 July 1991 and the actual volume of the contents of the container does not exceed 101.5% of the nominated volume-the nominated volume; (b) if the volume of the contents of the container is nominated for the purpose of the entry, the beer is entered before 1 July 1991 and the actual volume of the contents of the container exceeds 101.5% of the nominated volume-a volume equal to the sum of: (i) the nominated volume; and (ii) the volume by which the actual volume of the contents of the container exceeds 101.5% of the nominated volume; (c) if the volume of the contents of the container is nominated for the purpose of the entry, the beer is entered after 30 June 1991 and the actual volume of the contents of the container does not exceed 101% of the nominated volume-the nominated volume; (d) if the volume of the contents of the container is nominated for the purpose of the entry, the beer is entered after 30 June 1991 and the actual volume of the contents of the container exceeds 101% of the nominated volume-a volume equal to the sum of: (i) the nominated volume; and (ii) the volume by which the actual volume of the contents of the container exceeds 101% of the nominated volume; or (e) if the volume of the contents of the container is not nominated for the purpose of the entry-the actual volume of the contents of the container; and duty on beer so entered shall be fixed accordingly. "(2) For the purposes of the application of the Customs Acts in their application to beer that is entered for home consumption after 31 January 1989 in a container other than a bulk container, the container in which the beer is packaged shall be treated as containing: (a) if the volume of the contents of the container is indicated on a label printed on, or attached to, the container and the actual volume of the contents of the container does not exceed 101.5% of the volume so indicated-the volume so indicated; (b) if the volume of the contents of the container is indicated on a label printed on, or attached to, the container and the actual volume of the contents of the container exceeds 101.5% of the volume so indicated-a volume equal to the sum of: (i) the volume so indicated; and (ii) the volume by which the actual volume of the contents of the container exceeds 101.5% of the volume so indicated; or (c) if the volume of the contents of the container is not indicated on a label printed on, or attached to, the container-the actual volume of the contents of the container; and duty on beer so entered shall be fixed accordingly. "(3) In determining, for the purposes of this section, the volume of the contents of containers entered for home consumption, the Customs is not required to take a measurement of the contents of each container so entered but may employ such methods of sampling as are approved in writing by the Comptroller for the purpose. "(4) In this section: 'bulk container', in relation to beer, means a container that has the capacity to have packaged in it more than 2 litres of beer; 'container', in relation to beer, includes a bottle, a can or any other article capable of holding liquids.". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 11 When goods treated as the produce or manufacture of a country 11. Section 151 of the Principal Act is amended: (a) by omitting from subsection (12) "For the purposes of this Act" and substituting "Subject to subsection (12A), for the purposes of this Act"; (b) by inserting after subsection (12) the following subsection: "(12A) In its application to Christmas Island, to Cocos (Keeling) Islands and to Norfolk Island, subsection (12) shall have effect as if the reference to 75% in paragraph (b) of that subsection were a reference to 50%.". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 12 Rebate of duty in respect of diesel fuel used for certain purposes 12. Section 164 of the Principal Act is amended: (a) by omitting from subsection (4) "because only that" and substituting "only because"; (b) by inserting after subsection (4) the following subsection: "(4AA) Rebate is not payable to a person in respect of diesel fuel unless the application for the rebate: (a) is made in accordance with an approved form; (b) includes such information as is required by the form; (c) is signed and witnessed in the manner indicated in the form; and (d) is given to an officer."; (c) by omitting paragraphs (4A) (a), (b) and (c). CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 13 Interpretation 13. Section 180 of the Principal Act is amended by inserting in subsection (2) ", other than in subsection 181 (2), 183CC (5), 183CJ (1), 183CQ (4), (5) or (7) or 183CR (3) or in section 183CS, 183D, 183DA, 183DC, 183DD or 183S," after "Part". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 14 Renewal of licence 14. Section 183CJ of the Principal Act is amended by omitting subsection (1) and substituting the following subsection: "(1) Where a customs agent, within 2 months before the date on which his or her agents licence is due to expire, applies in writing to the Comptroller, or to a Collector of Customs for a State or Territory, for the renewal of the licence: (a) if the application is made to the Comptroller-the Comptroller or the Collector to whom the Comptroller refers the application; or (b) if the application is made to a Collector-the Comptroller or that Collector; shall, by writing, renew the licence unless: (c) the Comptroller has given an order under paragraph 183CS (1) (d) in relation to the licence; or (d) the customs agent is, because of section 183CK, not entitled to hold an agents licence.". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 15 Investigation of matters relating to an agents licence 15. Section 183CQ of the Principal Act is amended: (a) by omitting from paragraph (4) (b) "Comptroller" (first occurring) and substituting "person who gave the notice"; (b) by omitting from paragraph (4) (b) "(1) of section 183CS" and substituting "183CS (1)"; (c) by inserting in subsection (5) ", or a Collector of Customs for a State or Territory," after "Comptroller" (first occurring). CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 16 Interim suspension by Comptroller 16. Section 183CR of the Principal Act is amended by inserting in subsection (3) ", or by a Collector of Customs for a State or Territory," after "Comptroller" (first and second occurring). CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 17 National Customs Agents Licensing Advisory Committee 17. Section 183D of the Principal Act is amended: (a) by inserting in paragraph (2) (a) ", or a Collector of Customs for a State or Territory," after "Comptroller"; (b) by inserting in paragraph (2) (b) ", or a Collector of Customs for a State or Territory," after "Comptroller". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 18 Power to board and search 18. Section 187 of the Principal Act is amended by omitting "an resources installation" and substituting "a resources installation". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 19 Power to impound certain forfeited goods and release them on payment of duty and penalty 19. Section 209 of the Principal Act is amended: (a) by omitting from subsection (1) "(i),"; (b) by omitting paragraphs (a) and (b) from subsection (6) and substituting the following paragraphs: "(a) where the notice states that the goods were impounded under subsection (2)-an amount specified in the notice, being an amount equal to the amount of that duty that, in the opinion of the officer issuing the notice, the owner has sought to evade; or (b) where the notice states that the goods were impounded under subsection (3A)-an amount specified in the notice, being an amount equal to twice the amount of that duty that, in the opinion of the officer issuing the notice, the owner has sought to evade;". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 20 Forfeited ships and aircraft 20. Section 228 of the Principal Act is amended: (a) by omitting "250 tons registered tonnage" (wherever occurring) and substituting "80 metres in overall length"; (b) by omitting "$10,000" and substituting "$100,000"; (c) by adding at the end the following subsection: "(2) For the purposes of this section, the overall length of a ship shall be ascertained by measuring the distance between: (a) a vertical line passing through a point, being the foremost part of the stem; and (b) a vertical line passing through a point, being the aftermost part of the stern.". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 21 Forfeited goods 21. Section 229 of the Principal Act is amended by omitting paragraph (1) (i). CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 22 22. After section 233B of the Principal Act the following section is inserted: Evidence of analyst "233BA. (1) The Comptroller may appoint a person to be an analyst for the purposes of this Act. "(2) Subject to subsection (4), a certificate of an analyst stating that he or she has analysed or examined a substance, setting out the date on which the analysis or examination was carried out, describing the method employed in conducting the analysis or examination, and stating the result of the analysis or examination, is admissible in any proceeding under section 233B as prima facie evidence of the matters in the certificate and of the correctness of the result of the analysis or examination. "(3) For the purposes of this section, a document purporting to be a certificate referred to in subsection (2) shall, unless the contrary is established, be deemed to be such a certificate and to have been duly given. "(4) A certificate shall not be admitted in evidence under subsection (2) in proceedings for an offence unless the person charged with the offence or a solicitor who has appeared for the person in those proceedings has, at least 14 days before the certificate is sought to be so admitted, been given a copy of the certificate together with reasonable notice of the intention to produce the certificate as evidence in the proceedings. "(5) Subject to subsection (6), where, under subsection (2), a certificate of an analyst is admitted in evidence in a proceeding for an offence, the person charged with the offence may require the analyst to be called as a witness for the prosecution and the analyst may be cross-examined as if he or she had given evidence of the matters stated in the certificate. "(6) Subsection (5) does not entitle a person to require an analyst to be called as a witness for the prosecution unless: (a) the prosecutor has been given at least 4 days notice of the person's intention to require the analyst to be so called; or (b) the Court, by order, allows the person to require the analyst to be so called.". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 23 Customs offences 23. Section 234 of the Principal Act is amended: (a) by omitting paragraphs (1) (d), (e) and (f) and substituting the following paragraph: "(d) knowingly or recklessly: (i) make a statement to an officer that is false or misleading in a material particular; or (ii) omit from a statement made to an officer any matter or thing without which the statement is misleading in a material particular;"; (b) by omitting paragraph (2) (c) and substituting the following paragraph: "(c) subject to subsection (3), in the case of an offence against paragraph (1) (d), by a penalty not exceeding $5,000; or"; (c) by adding at the end the following subsection: "(3) Where a person is convicted of an offence against paragraph (1) (d) in relation to a statement made, or an omission from a statement made, in respect of the amount of duty payable on particular goods, a Court may, in relation to that offence, impose a penalty not exceeding the sum of $5,000 and twice the amount of the duty payable on those goods.". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 24 24. After Division 3 of Part XIII of the Principal Act the following Division is inserted: "Division 4-Penalty for making false statements etc. Penalty for making false statements etc. "243T. (1) Subject to section 243V, where: (a) a person, whether knowingly, recklessly or otherwise: (i) makes a statement to an officer that is false or misleading in a material particular; or (ii) omits from a statement made to an officer any matter or thing without which the statement is misleading in a material particular; and (b) the amount of duty properly payable on particular goods exceeds the amount of duty that would have been payable on those goods if the amount were determined on the basis that the statement was not false or misleading; the Comptroller may within 12 months after the statement was made, by notice in writing, require the owner of the goods (not being a person who is to be treated as the owner of the goods by reason of being an agent of the owner) to pay, within a period of 90 days after service of the notice, a penalty equal to twice the amount of the excess, or a penalty of $20, whichever is the greater. "(2) The notice may be served on the owner of the goods or on the agent of the owner. "(3) If an amount required to be paid in accordance with subsection (1) within a period of 90 days is not so paid it becomes, upon the expiration of that period, a debt due to the Commonwealth and may be recovered in a court of competent jurisdiction. "(4) Where a person in respect of whom a demand for payment of penalty in respect of particular goods has been made under subsection (1) makes application under subsection 273GA (2) for review of the decision as to the amount of duty payable on those goods: (a) the period commencing on the making of that application and ending on the final determination of the amount of duty by the Administrative Appeals Tribunal or by a Court on appeal from the Tribunal shall not be taken into account in computing the period of 90 days referred to in subsections (1) and (3); and (b) if it is determined, or ultimately determined, that the duty, or any part of the duty, demanded in respect of those goods is not payable, the demand for penalty shall thereupon be treated as if it were, and had always been, a demand for such amount, if any, as would be appropriate under subsection (1) having regard to that determination of the Tribunal or Court. "(5) Where the Comptroller serves a notice under subsection (2) in relation to a statement made, or an omission from a statement made, by a person, proceedings shall not be instituted under section 234 against that person in relation to that statement or omission. Remission of penalty "243U. (1) Where a penalty is payable under section 243T as a result of a statement, or an omission from a statement, the Comptroller may, on the basis of a written application made to the Comptroller within 30 days after the Controller served the notice under subsection 243T (2) in relation to the statement or the omission from the statement, by the person liable to pay the penalty, remit the whole or any part of that penalty. "(2) Within 30 days after receiving an application for remission of penalty the Comptroller shall inform the applicant of the Comptroller's decision in relation to the application. "(3) Where the Comptroller fails to inform the applicant of the decision within 30 days after receiving the application, the Comptroller shall, for the purposes of section 273GA, be taken to have decided not to remit penalty. "(4) In considering an application under subsection (1) to remit the whole or a part of a penalty payable in respect of a statement or an omission from a statement, being a statement or omission made by the applicant or by an agent of the applicant, the Comptroller shall have regard only to the following matters: (a) whether the applicant or the applicant's agent, as the case requires, had voluntarily admitted that the statement was, or was as a result of the omission, false or misleading; (b) the risk to the revenue occasioned by such a statement or omission; (c) the capacity of the applicant or of the applicant's agent, as the case requires, to avoid making such a statement or omission and the extent to which that capacity was exercised; (d) the history of the applicant or of the applicant's agent, as the case requires, in relation to the making of statements or omissions giving rise to convictions under paragraph 234 (1) (d) or to liability for penalty under section 243T. "(5) Where a decision of the Administrative Appeals Tribunal on an application under subsection 273GA (2) or of a Court on an appeal from such a decision will result in a lesser amount of duty being payable in respect of imported goods than the amount demanded by a Collector, or in no duty being payable in respect of those goods, the Comptroller shall remit any penalty paid under section 243T in respect of those goods to the extent necessary to give effect to that decision of the Tribunal or Court. Section 243T not to apply in certain cases "243V. (1) Where the owner of goods or the agent of the owner is uncertain whether particular information included in a statement made in respect of those goods might be regarded as false or misleading in a material particular, that owner or agent may, by writing included in the statement, nominate that information as information of which the owner or agent is uncertain and set out the reasons for that uncertainty, and, where the owner or agent does so, no penalty shall be imposed under section 243T in relation to that information. "(2) Where the owner of goods or the agent of the owner is uncertain whether, by reason of the omission of particular information from a statement made in respect of those goods, that statement might be regarded as misleading in a material particular, that owner or agent may, by writing included in the statement, specify the information that has been omitted and set out the reasons for uncertainty concerning the effect of its omission, and, where the owner or agent does so, no penalty shall be imposed under section 243T in relation to that omission.". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 25 Institution of prosecutions 25. (1) Section 245 of the Principal Act is amended: (a) by inserting in subsection (1) "by the Comptroller" after "instituted"; (b) by omitting from paragraph (1) (d) "or"; (c) by adding at the end of subsection (1) the following word and paragraph: "; or (f) in a court of summary jurisdiction of a State, of the Australian Capital Territory or of the Northern Territory"; (d) by omitting subsection (3); (e) by omitting from subsection (4) "subsection (3)" and substituting "paragraph (1) (f)". (2) Where, before the commencement of this section and section 26, a prosecution has been instituted under section 245 of the Principal Act by a person in the name of the Comptroller-General of Customs or of a Collector of Customs, that person may continue that prosecution after the commencement as if the amendments made by subsection (1) and the repeal effected by section 26 had not been made or effected. CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 26 Repeal of section 245A 26. Section 245A of the Principal Act is repealed. CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 27 Undertakings relating to tenders 27. Section 267 of the Principal Act is amended: (a) by omitting from subsection (1) all the words after paragraph (1) (b) and substituting the following: "the person will, during that period, or each of those periods, as the case may be, enter for home consumption under: (c) any of those items, or proposed items; or (d) any appropriate item, or proposed item, of a Customs Tariff that is not expressed to apply to goods as prescribed by by-law; that quantity of those goods, or the quantity of those goods having that value"; (b) by omitting from subsection (2) "by the Minister"; (c) by omitting from subsection (2) "subsection (2) of section 266" and substituting "subsection 266 (2)"; (d) by omitting from subsection (3) "by the Minister". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 28 Regulations 28. Section 270 of the Principal Act is amended by inserting after subsection (3) the following subsection: "(3A) Where, in any regulations made for the purposes of this Act, reference is made to the document known as the Australian Harmonized Export Commodity Classification published by the Australian Bureau of Statistics, that reference shall, unless the contrary intention appears in those regulations, be read as a reference to that document as so published and as in force from time to time.". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 29 Review of decisions 29. Section 273GA of the Principal Act is amended by inserting after paragraph (k) the following paragraph: "(ka) a decision of the Comptroller under subsection 243U (1): (i) not to remit a penalty payable under section 243T in respect of duty payable on goods; or (ii) to remit part only of such a penalty;". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 30 Principal Act 30. In this Part, "Principal Act" means the Excise Act 1901*2*. *2*No. 9, 1901, as amended. For previous amendments, see No. 26, 1918; No. 8, 1923; No. 44, 1934; No. 16, 1942; No. 88, 1947; No. 46, 1949; No. 55, 1952; No. 10, 1957; No. 49, 1958; No. 37, 1962; No. 49, 1963; No. 139, 1965; No. 93, 1966; Nos. 15 and 105, 1968; No. 23, 1972; Nos. 24 and 145, 1973; No. 216, 1973 (as amended by No. 20, 1974); No. 29, 1974; No. 91, 1976; No. 110, 1978; Nos. 11 and 50, 1979; No. 42, 1980; Nos. 61 and 65, 1981; Nos. 51, 80 and 108, 1982; No. 81, 1982 (as amended by No. 39, 1983); Nos. 39 and 101, 1983; Nos. 72 and 165, 1984; Nos. 39 and 175, 1985; No. 40, 1985 (as amended by No. 34, 1986); Nos. 10, 34 and 149, 1986; Nos. 81 and 104, 1987; No. 99, 1988; and No. 23, 1989. CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 31 Interpretation 31. Section 4 of the Principal Act is amended by inserting in subsection (1) the following definition: " 'Commonwealth authority' means an authority or body established for a purpose of the Commonwealth by or under a law of the Commonwealth (including an Ordinance of the Australian Capital Territory);". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 32 32. After section 54 of the Principal Act the following section is inserted: Liability of Commonwealth authorities to pay Excise duty "54A. (1) Subject to subsection (2), to the extent that, but for this section, an Act (whether enacted before, on or after 1 July 1989) would: (a) exempt a particular Commonwealth authority from liability to pay Excise duty; or (b) exempt a person from liability to pay Excise duty in relation to goods for use by a particular Commonwealth authority; then, by force of this section, the exemption has no effect. "(2) Subsection (1) does not apply to an exemption if: (a) the provision containing the exemption is enacted after 30 June 1989; and (b) the exemption expressly refers to Excise duty (however described).". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 33 Entry for home consumption etc. 33. Section 58 of the Principal Act is amended by inserting after subsection (1) the following subsection: "(1A) An entry in subsection (1): (a) shall be made in accordance with a form, or in a manner, approved by the Comptroller; (b) shall contain such information as is required by the Comptroller; (c) shall be signed or authorised in a manner required by the Comptroller; and (d) shall be lodged with, or transmitted to, the Customs.". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 34 Interpretation 34. Section 77A of the Principal Act is amended: (a) by omitting the definitions of "barrel", "half-hogshead", "hogshead", "kilderkin" and "vessel"; (b) by inserting in subsection (1) the following definitions: " 'bulk container' means a container that has the capacity to have packaged in it more than 2 litres of beer; 'container' includes a bottle, a can or any other article capable of holding liquids;". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 35 35. Section 77B of the Principal Act is repealed and the following section is substituted: Manner of determining volumes of, and fixing duty on, beer "77B. (1) For the purposes of the Excise Acts in their application to beer that is entered for home consumption after 31 January 1989 in a bulk container, the container in which the beer is packaged shall be treated as containing: (a) if the volume of the contents of the container is nominated for the purpose of the entry, the beer is entered before 30 June 1991 and the actual volume of the contents of the container does not exceed 101.5% of the nominated volume-the nominated volume; (b) if the volume of the contents of the container is nominated for the purpose of the entry, the beer is entered before 30 June 1991 and the actual volume of the contents of the container exceeds 101.5% of the nominated volume-a volume equal to the sum of: (i) the nominated volume; and (ii) the volume by which the actual volume of the contents of the container exceeds 101.5% of the nominated volume; (c) if the volume of the contents of the container is nominated for the purpose of the entry, the beer is entered after 30 June 1991 and the actual volume of the contents of the container does not exceed 101% of the nominated volume-the nominated volume; (d) if the volume of the contents of the container is nominated for the purpose of the entry, the beer is entered after 30 June 1991 and the actual volume of the contents of the container exceeds 101% of the nominated volume-a volume equal to the sum of: (i) the nominated volume; and (ii) the volume by which the actual volume of the contents of the container exceeds 101% of the nominated volume; or (e) if the volume of the contents of the container is not nominated for the purpose of the entry-the actual volume of the contents of the container; and duty on beer so entered shall be fixed accordingly. "(2) For the purposes of the application of the Excise Acts in their application to beer that is entered for home consumption after 31 January 1989 in a container other than a bulk container, the container in which the beer is packaged shall be treated as containing: (a) if the volume of the contents of the container is indicated on a label printed on, or attached to, the container and the actual volume of the contents of the container does not exceed 101.5% of the volume so indicated-the volume so indicated; (b) if the volume of the contents of the container is indicated on a label printed on, or attached to, the container and the actual volume of the contents of the container exceeds 101.5% of the volume so indicated-a volume equal to the sum of: (i) the volume so indicated; and (ii) the volume by which the actual volume of the contents of the container exceeds 101.5% of the volume so indicated; or (c) if the volume of the contents of the container is not indicated on a label printed on, or attached to, the container-the actual volume of the contents of the container; and duty on beer so entered shall be fixed accordingly. "(3) In determining, for the purposes of this section, the volume of the contents of containers entered for home consumption, the Customs is not required to take a measurement of the contents of each container so entered but may employ such methods of sampling as are approved in writing by the Comptroller for the purpose.". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 36 Marking and labelling of containers and packages 36. Section 77C of the Principal Act is amended: (a) by omitting "vessel" and substituting "container"; (b) by omitting "vessels" and substituting "containers". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 37 Spoilt beer 37. Section 77D of the Principal Act is amended by omitting "vessels" and substituting "containers". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 38 Disposal of beer by Collector on cancellation etc. of licence 38. Section 77F of the Principal Act is amended by omitting from subsections (1) and (3) "vessels" and substituting "containers". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 39 Rebate of duty in respect of diesel fuel used for certain purposes 39. Section 78A of the Principal Act is amended: (a) by omitting from subsection (4) "because only that" and substituting "only because"; (b) by inserting after subsection (4) the following subsection: "(4AA) Rebate is not payable to a person in respect of diesel fuel unless the application for the rebate: (a) is made in accordance with an approved form; (b) includes such information as is required by the form; (c) is signed and witnessed in the manner indicated in the form; and (d) is given to an officer."; (c) by omitting paragraphs (4A) (a), (b) and (c). CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 40 Officers to have access to factories and approved places 40. Section 86 of the Principal Act is amended by omitting from subsection (1) "vessels utensils" and substituting "containers, utensils,". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 41 Offences 41. Section 120 of the Principal Act is amended: (a) by omitting paragraphs (1) (vi), (vii) and (viii) and substituting the following paragraph: "(vi) knowingly or recklessly: (A) make a statement to an officer that is false or misleading in a material particular; or (B) omit from a statement made to an officer any matter or thing without which the statement is misleading in a material particular;"; (b) by omitting paragraph (2) (d) and substituting the following paragraph: "(d) subject to subsection (3), in the case of an offence against paragraph (1) (vi), by a penalty not exceeding $5,000."; (c) by adding at the end the following subsection: "(3) Where a person is convicted of an offence against paragraph (1) (vi) in relation to a statement made, or an omission from a statement made, in respect of the amount of duty payable on particular goods, a Court may, in relation to that offence, impose a penalty not exceeding the sum of $5,000 and twice the amount of the duty payable on those goods.". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 42 Institution of prosecutions 42. (1) Section 134 of the Principal Act is amended: (a) by inserting in subsection (1) "by the Comptroller" after "instituted"; (b) by omitting from paragraph (1) (d) "or" (last occurring); (c) by adding at the end of subsection (1) the following word and paragraph: "; or (f) in a court of summary jurisdiction of a State, of the Australian Capital Territory or of the Northern Territory"; (d) by omitting subsection (3); (e) by omitting from subsection (4) "subsection (3)" and substituting "paragraph (1) (f)". (2) Where, before the commencement of this section and section 43, a prosecution has been instituted under section 134A of the Principal Act by a person in the name of the Comptroller-General of Customs or of the Collector of Customs, that person may continue that prosecution, after the commencement, as if the amendments made by subsection (1) and the repeal effected by section 43 had not been made or effected. CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 43 Repeal of section 134A 43. Section 134A of the Principal Act is repealed. CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 44 Principal Act 44. In this Part, "Principal Act" means the Off-shore Installations (Miscellaneous Amendments) Act 1982*3*. *3*No. 51, 1982, as amended. For previous amendments, see No. 165, 1984. CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 45 Amendment of section 5 45. Section 5 of the Principal Act is amended by omitting "Part II" and substituting "Part I".