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This is a Bill, not an Act. For current law, see the Acts databases.
1998-99
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Customs
Legislation Amendment (Criminal Sanctions and Other Measures) Bill
1999
No. ,
1999
(Justice and
Customs)
A Bill for an Act to amend Customs
legislation to provide for special criminal sanctions in respect of the import
or export of certain goods, and for other purposes
ISBN: 0642 425434
Contents
The Parliament of Australia enacts:
This Act may be cited as the Customs Legislation Amendment (Criminal
Sanctions and Other Measures) Act 1999.
(1) Subject to subsections (2) and (3), this Act commences on the day on
which it receives the Royal Assent.
(2) Subject to subsection (3), the items of Schedules 1, 2 and 3 commence
on a day or days to be fixed by Proclamation.
(3) If an item of Schedule 1, 2 or 3 has not commenced within the period
of 6 months beginning on the day on which this Act receives the Royal Assent, it
commences on the first day after the end of that period.
Subject to section 2, each Act that is specified in a Schedule to this
Act is amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect according to
its terms.
1 Paragraph 90N(1)(a)
Omit “90S”, substitute “90T”.
2 After paragraph 90S(1)(a)
Insert:
(aa) the article is not an article to which section 90T applies;
and
3 After section 90S
Insert:
(1) This section applies to any article:
(a) that is in the course of the post between Australia and a place
outside Australia; and
(b) that is reasonably believed by a Customs officer to consist of, or
contain, drugs or other chemical compounds that are being carried in
contravention of a law of the Commonwealth relating to their importation into,
or exportation from, Australia.
(2) The article to which this section applies may be removed by a Customs
officer from the normal course of carriage following such procedures (if any) as
are prescribed for the purposes of this section and opened by a Customs
officer.
(3) A Customs officer who opens the article may examine the article to
check whether it consists of, or contains, such drugs or other chemical
compounds.
(4) Subject to section 90X, if the article is found not to consist of, or
contain:
(a) such drugs or other chemical compounds; or
(b) any other thing:
(i) on which Customs duty is payable; or
(ii) on which sales tax on imports is payable; or
(iii) that is being carried in contravention of a law of the Commonwealth
relating to its importation into, or exportation from, Australia;
the Customs officer who opened the article must close up the article, and
return it to the normal course of carriage following such procedures (if any) as
are prescribed for the purposes of this section.
(5) Subject to section 90X, if the article is found to consist of, or
contain, such drugs or other chemical compounds or such other thing, the article
and its contents must be dealt with in accordance with any applicable laws of
the Commonwealth relating to customs duty, sales tax, or imports or exports, as
the case requires.
(6) Regulations may be made for the purposes of this section that
determine the procedure:
(a) for removing an article from the normal course of carriage for the
purpose of its examination by a Customs officer; and
(b) for the return of an article to the normal course of
carriage.
4 Subsection 90V(2)
Omit “Before the article”, substitute “If the article is
opened by an authorised examiner (whether in the presence of a Customs officer
or not), then, before the article”.
5 After subsection 90V(2)
Insert:
(2A) If the article is opened under section 90T by a Customs officer,
then, before the article is returned to the normal course of carriage, the
Customs officer must cause to be endorsed on the cover of the article, or on a
label affixed to its cover, a notification that the article has been opened by
the Australian Customs Service and that explains briefly (by reference to
section 90T or otherwise) the purpose for which the article was
opened.
6 Subsection 90V(3)
After “subsection (2)”, insert “or (2A)”.
7 At the end of section
90ZC
Add:
(2) For the avoidance of doubt, the reference in subsection (1) to an act
done or omitted to be done in good faith in the exercise or performance, or the
purported exercise or performance, of a power or duty under this Part includes a
reference to an act done or omitted to be done in good faith by a Customs
officer in the exercise or performance, or the purported exercise or
performance, of a power or duty under section 90T or of a duty under subsection
90V(2A).
1 Paragraph 203R(1)(b)
Omit “60 days”, substitute “180 days”.
2 Paragraph 203S(1)(a)
Omit “60 days”, substitute “180 days”.
3 Paragraphs 205D(2)(b), (c), (d) and
(e)
Omit “60 days” (wherever occurring), substitute “180
days”.
4 Paragraph 205E(1)(a)
Omit “60 days”, substitute “180 days”.
5 Saving provision
Despite the amendment of sections 203R, 203S, 205D and 205E of the
Customs Act 1901 made by items 1, 2, 3 and 4, those provisions continue
to apply in relation to things seized before the day on which those items
commence as if the amendments made by those items had not been made.
6 Paragraph 210(1)(b)
After “233”, insert “or against subsection 233BAA(4) or
(5) or 233BAB(4) or (5)”.
Insert:
(1) If a Collector has reason to believe that goods found at a Customs
place:
(a) are not required to be, or are not able to be, entered for home
consumption; and
(b) have been abandoned by their owner;
the Collector may take steps to dispose of the goods in any manner he or
she thinks appropriate.
(2) For the purposes of subsection (1), a Collector is be taken to have
reason to believe that goods found at a Customs place have been abandoned if a
period prescribed for the purposes of this subsection, not exceeding 120 days,
has passed since the goods were found at that place and no person has claimed
ownership of the goods.
(3) If the Collector sells the goods, any expenses incurred by the Customs
in collecting and housing them and ultimately arranging for their disposal may
be offset against any money realised on their sale.
(4) Nothing in this provision prevents a person, at any time after the end
of the prescribed period in relation to particular goods found at a Customs
place, from seeking compensation for those goods in accordance with section
4AB.
(5) For the purposes of this section, the Collector must ensure that there
is created and maintained a record, in writing, specifying, in respect of
particular goods found at a Customs place:
(a) the date on which and place at which the goods were found;
and
(b) if the goods are subsequently disposed of—the date and manner of
their disposal; and
(c) if the goods are sold—the amount realised on their sale and any
amount offset against that amount in accordance with subsection (3).
8 After subparagraph
219R(1)(c)(ii)
Insert:
and (iii) the requirements of section 219RAA are met in respect of that
consent;
9 After subsection 219R(11)
Insert:
(11A) Prescribed equipment may be used in carrying out the external search
if and only if:
(a) consent to the use of the equipment in carrying out the search has
been given by the detainee and the requirements of section 219RAB are met;
or
(b) the person ordering the search under subsection 219R(2) directs that
the equipment may be used.
Note: Section 219RAC deals with regulations prescribing
equipment.
(11B) If use of the prescribed equipment involves samples from the
detainee’s body, the equipment may be used in the search only with samples
from the outer surface of the detainee’s hand.
(11C) To avoid doubt, the search may be continued without the use of the
prescribed equipment if the use of the equipment produces an indication that the
detainee is or may be carrying prohibited goods.
Insert:
(1) In inviting a detainee to consent to an external search, an officer of
Customs must have told the detainee:
(a) that, at the discretion of the Customs, a videotape or other
electronic record may be made of the external search; and
(b) that, if such a record is made, the record could be used in evidence
against the detainee in a court; and
(c) that, if such a record is made, a copy of the record will be provided
to the detainee; and
(d) that the invitation, and any giving of consent, was being or would be
itself recorded by audiotape, videotape or other electronic means or in
writing.
(2) The invitation to consent and any giving of consent must have been
recorded by audiotape, videotape or other electronic means or in
writing.
(3) The officer making the videotape or other electronic record must be of
the same sex as the detainee.
(4) If, in the absence of consent by the detainee to an external search,
an application is made for an order under subsection 219R(2) for an external
search, that order may authorise the making of a videotape or other electronic
record of the external search.
(5) If, in the course of carrying out an external search, an officer of
Customs or a police officer finds evidence that the detainee is unlawfully
carrying prohibited goods, that officer may, without the further consent of the
detainee, take a photograph of the prohibited goods on the detainee.
(1) In inviting a detainee to consent to the use of prescribed equipment
in an external search, an officer of Customs must have told the
detainee:
(a) what the prescribed equipment is; and
(b) the purpose for which the prescribed equipment would be used;
and
(c) that use of the prescribed equipment could produce evidence against
the detainee that could be used in a court; and
(d) what known risk (if any) would be posed to the detainee’s health
by use of the prescribed equipment; and
(e) the procedure for the use of the prescribed equipment; and
(f) that the prescribed equipment would be used by an officer of Customs
authorised to use the equipment; and
(g) that the search would be continued without the use of the prescribed
equipment should use of the equipment indicate that the detainee was or might be
carrying prohibited goods; and
(h) that the invitation, and any giving of consent, was being or would be
recorded by audiotape, videotape or other electronic means or in writing;
and
(i) that the detainee is entitled to a copy of that record.
(2) The invitation to consent and any consent must have been recorded by
audiotape, videotape or other electronic means or in writing.
(3) The prescribed equipment must be operated by an authorised officer who
is of the same sex as the detainee.
Note: Section 219RAD deals with authorisation of an officer
to operate equipment.
(1) For the purposes of subsection 219R(11A), the regulations may
prescribe only equipment that can produce an indication that a person is or may
be carrying prohibited goods on his or her body.
(2) Before the Governor-General makes a regulation prescribing equipment
for the purposes of subsection 219R(11A), the Minister must obtain from the CEO
a statement that:
(a) the equipment can safely be used to detect prohibited goods;
and
(b) use of the equipment poses no risk, or minimal risk, to the health of
a person whom the equipment is used to search; and
(c) a person does not require professional qualifications to operate the
equipment.
(3) Before making a statement described in subsection (2), the CEO must
consult the Commonwealth authorities (if any) that have expertise or
responsibilities relevant to the matters addressed by the statement.
The CEO may authorise an officer of Customs for the purposes of
subsection 219RAB(3) to use prescribed equipment only if the officer has
successfully completed the training specified in an approved statement
describing training in the operation of the equipment.
(1) If a detainee who is invited to consent:
(a) to an external search under section 219R; or
(b) to the use of prescribed equipment in the conduct of that external
search;
requests it, an officer of Customs must give the detainee, as soon as
reasonably practicable:
(c) a copy of the record of the invitation; and
(d) if the detainee gave consent—a copy of the record of the
detainee’s consent.
(2) If an order for the external search of a detainee is made under
subsection 219R(2), a copy of the order is to be given, as soon as reasonably
practicable:
(a) unless paragraph (b) applies—to the detainee; or
(b) if the detainee is in need of protection—to the person in whose
presence the external search is to be carried out.
(1) This section applies to any of the following produced in the course of
an external search of a detainee under section 219R:
(a) a videotape or other electronic record of the external
search;
(b) a photograph taken in the circumstances described in subsection
219RAA(5);
(c) any other photograph or image of the detainee’s body taken using
prescribed equipment the subject of a consent under section 219R;
(d) a sample from the outer surface of the detainee’s hand taken
using such prescribed equipment.
(2) The videotape or other electronic record of the external search, and
any photograph, image or sample referred to in paragraph (1)(b), (c) or (d),
must be destroyed as soon as practicable if:
(a) a period of 12 months has elapsed since the record was made, or the
photograph, image or sample was produced; and
(b) relevant proceedings have not been instituted or have been
discontinued.
(3) For the purposes of subsection (2), relevant proceedings
are proceedings:
(a) against the detainee; and
(b) relating to prohibited goods; and
(c) in respect of which the record, photograph, image or sample is
relevant.
(4) On application by an officer of Customs or the Director of Public
Prosecutions, a magistrate may extend the period of 12 months (or that period as
previously extended under this subsection) in relation to the videotape or other
electronic record of the external search or to a particular photograph, image or
sample, if the magistrate is satisfied that there are special reasons for doing
so.
(5) The videotape or other electronic record, and any photograph, image or
sample must be destroyed as soon as practicable if:
(a) the detainee is found to have committed a relevant offence but no
conviction is recorded; or
(b) the detainee is acquitted of a relevant offence and:
(i) no appeal is lodged against the acquittal; or
(ii) an appeal is lodged against the acquittal and the acquittal is
confirmed or the appeal is withdrawn;
unless there is pending an investigation into another relevant offence or a
proceeding against the detainee for another relevant offence.
(6) For the purpose of subsection (5), an offence is a relevant
offence if:
(a) it relates to prohibited goods; and
(b) the videotape or other electronic record, or the photograph, image or
sample, relates to the offence.
11 Application provision
The amendments of the Customs Act 1901 made by items 8, 9 and 10
apply only in relation to a person:
(a) who is detained under section 219Q of that Act; or
(b) to whom section 219R of that Act applies by force of section 219P of
that Act;
after the commencement of those items.
12 Paragraph 233AB(1)(a)
Omit “and not less than 2 times that amount”.
13 Paragraph 233AB(1)(b)
Omit “$50,000”, substitute “$100,000”.
14 Subparagraph
233AB(2)(a)(ii)
Repeal the subparagraph, substitute:
(ii) $100,000;
15 Paragraph 233AB(2)(b)
Omit “$50,000”, substitute “$100,000”.
16 Subsection 233BA(2)
After “233B”, insert “or 233BAA, or in any proceedings
for an offence against section 233BAB in so far as that section relates to
specified anti-personnel sprays or gases, radioactive substances, human body
tissue or human body fluid”.
17 After section 233B
Insert:
(1) Subject to subsection (3), the regulations may provide that:
(a) specified performance enhancing drugs; and
(b) specified non-narcotic drugs; and
(c) other specified goods;
constitute tier 1 goods.
(2) The regulations must not specify an item for the purposes of
subsection (1) unless:
(a) its importation is prohibited, either absolutely or on condition, by
the Customs (Prohibited Imports) Regulations; or
(b) its exportation is prohibited, either absolutely or on condition, by
the Customs (Prohibited Exports) Regulations.
(3) If the regulations made for the purposes of subsection (1) prescribe a
quantity of a drug specified for those purposes to be the critical quantity, the
specified drug does not constitute tier 1 goods unless it is of a quantity that
exceeds the critical quantity.
(4) A person is guilty of an offence against this subsection if:
(a) the person knowingly or recklessly imported goods; and
(b) the goods were tier 1 goods; and
(c) their importation:
(i) was prohibited under this Act absolutely; or
(ii) was prohibited under this Act unless the approval of a particular
person had been obtained and, at the time of the importation, that approval had
not been obtained.
Maximum penalty: A fine not exceeding $100,000 or imprisonment for 5 years,
or both.
(5) A person is guilty of an offence against this subsection if:
(a) the person knowingly or recklessly exported goods; and
(b) the goods were tier 1 goods; and
(c) their exportation:
(i) was prohibited under this Act absolutely; or
(ii) was prohibited under this Act unless the approval of a particular
person had been obtained and, at the time of the exportation, that approval had
not been obtained.
Maximum penalty: A fine not exceeding $100,000 or imprisonment for 5 years,
or both.
(6) A person convicted or acquitted of an offence against subsection (4)
or (5) in respect of particular conduct is not liable to any proceeding under
section 233 in respect of that conduct.
(1) The regulations may provide that:
(a) specified firearms, munitions and military warfare items of any kind
including combat vests and body armour; and
(b) specified knives, daggers and other like goods; and
(c) specified chemical compounds; and
(d) specified anti-personnel sprays and gases; and
(e) specified fissionable or radioactive substances; and
(f) specified human body tissue; and
(g) specified human body fluids; and
(h) items of child pornography; and
(i) counterfeit credit, debit and charge cards; and
(j) other specified goods;
constitute tier 2 goods.
(2) The regulations must not specify an item for the purposes of
subsection (1) unless:
(a) its importation is prohibited, either absolutely or on condition, by
the Customs (Prohibited Imports) Regulations; or
(b) its exportation is prohibited, either absolutely or on condition, by
the Customs (Prohibited Exports) Regulations.
(3) For the purposes of subsection (1) an item is to be taken to be an
item of child pornography if it is a document or other goods:
(a) that depicts a person:
(i) who is, or who appears to be, under 16 years of age; and
(ii) who is involved in a sexual pose or in sexual activity, whether or
not in the presence of other persons; and
(b) that is likely to cause offence to a reasonable adult.
(4) A person is guilty of an offence against this subsection if:
(a) the person knowingly or recklessly imported goods; and
(b) the goods were tier 2 goods; and
(c) their importation:
(i) was prohibited under this Act absolutely; or
(ii) was prohibited under this Act unless the approval of a particular
person had been obtained and, at the time of the importation, that approval had
not been obtained.
Maximum penalty: A fine not exceeding $250,000 or imprisonment for 10
years, or both.
(5) A person is guilty of an offence against this subsection if:
(a) the person knowingly or recklessly exported goods; and
(b) the goods were tier 2 goods; and
(c) their exportation:
(i) was prohibited under this Act absolutely; or
(ii) was prohibited under this Act unless the approval of a particular
person had been obtained and, at the time of the exportation, that approval had
not been obtained.
Maximum penalty: A fine not exceeding $250,000 or imprisonment for 10
years, or both.
(6) A person convicted or acquitted of an offence against subsection (4)
or (5) in respect of particular conduct is not liable to proceedings under
section 233 in respect of that conduct.
(1) In proceedings for an offence against subsection 233BAA(4) or (5) or
233BAB(4) or (5), a certificate of an authorised officer to the effect that the
person charged with the offence had not obtained, as at the time of the import
or export of the goods in respect of which the offence is alleged to have been
committed, approval for the import or export is admissible as prima facie
evidence that that approval had not been so obtained.
(2) For the purposes of this section, a document purporting to be a
certificate referred to in subsection (1) is, unless the contrary is
established, to be taken to be such a certificate and to have been duly
given.
(3) A certificate is not to be admitted in evidence under subsection (1)
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.
18 Paragraph 235(2)(c)
Omit “imprisonment for life”, substitute “a fine not
exceeding $750,000 or imprisonment for life, or both”.
19 Subparagraph
235(2)(d)(i)
Omit “$100,000”, substitute “$500,000”.
20 Subparagraph
235(2)(d)(ii)
Omit “$4,000”, substitute “$250,000”.
21 Subsections 245(2) and
(4)
Repeal the subsections.
Omit “a period of”, substitute “a specified period of not
more than”.