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This is a Bill, not an Act. For current law, see the Acts databases.
1996-97
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Fuel (Penalty
Surcharges) Administration Bill 1997
No.
, 1997
(Industry, Science and
Tourism)
A Bill for an Act to provide for the
administration of the Fuel Misuse (Penalty Surcharge) Act 1997,
the Fuel Sale (Penalty Surcharge) Act 1997 and the Fuel Blending
(Penalty Surcharge) Act 1997, and for related
purposes
9709920—999/23.6.1997—(99/97) Cat.
No. 96 9259 2 ISBN 0644 505532
Contents
A Bill for an Act to provide for the administration of
the Fuel Misuse (Penalty Surcharge) Act 1997, the Fuel Sale (Penalty
Surcharge) Act 1997 and the Fuel Blending (Penalty
Surcharge) Act 1997, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the Fuel (Penalty Surcharges) Administration
Act 1997.
This Act commences on the commencement of the Excise Tariff (Fuel
Rates Amendments) Act 1997.
(1) This Act sets up an administrative scheme in relation to the
collection of penalty surcharges imposed by the Fuel Misuse (Penalty
Surcharge) Act 1997, the Fuel Sale (Penalty Surcharge) Act 1997 and
the Fuel Blending (Penalty Surcharge) Act 1997.
(2) The object of this Act is, through the administrative scheme, and in
conjunction with amendments made by the Customs Tariff (Fuel Rates
Amendments) Act 1997, the Excise Tariff (Fuel Rates Amendment) Act
1997 and the Customs and Excise Legislation Amendment Act (No. 2)
1997, to make provision in relation to:
(a) discouraging certain activities that result in a loss to the revenue
in respect of customs and excise duties levied on certain petroleum products;
and
(b) where such activities have occurred—the capacity of the
Commonwealth to collect penalty surcharges mentioned in subsection
(1).
(1) In this Act, unless the contrary intention appears:
acquisition, in relation to fuel, includes:
(a) acquiring ownership of the fuel (whether by purchase, gift or
operation of law and whether the person who acquires ownership of the fuel also
acquires physical control of the fuel); and
(b) acquiring physical control of the fuel (whether the person acquiring
the physical control of the fuel also acquires ownership of the fuel).
Note: The acquisition of physical control is limited by
subsection (2).
Australia does not include an External Territory.
authorised officer, in relation to a particular provision of
this Act, means an officer of Customs, or other person, appointed by the CEO
under section 48 to be an authorised officer in respect of that
provision.
blend, in relation to 2 or more amounts of fuel, means to
combine these amounts, whether or not the resulting mixture is
homogeneous.
Customs Act means the Customs Act 1901.
Customs Tariff means the Customs Tariff Act
1995.
disposal, in relation to fuel, includes:
(a) sale or gift of the fuel (whether or not the person to whom the fuel
is sold or given also acquires physical control of the fuel); and
(b) passing physical control of the fuel to another person (whether or not
the person to whom physical control passes also acquires ownership of the fuel);
and
(c) loss of the fuel.
evidential material means a thing that:
(a) has been used or otherwise involved in the commission of an offence
against this Act; or
(b) will afford evidence of the commission of an offence against this
Act.
Excise Act means the Excise Act 1901.
Excise Tariff means the Excise Tariff Act
1921.
executing officer, in relation to a monitoring warrant or a
search warrant, means:
(a) an authorised officer named in the warrant by the magistrate issuing
it as being responsible for executing the warrant; or
(b) if that authorised person does not intend to be present at the
execution of the warrant—any authorised officer whose name has been
written in the warrant by the authorised officer so named; or
(c) another authorised officer whose name has been written in the warrant
by the authorised officer last named in the warrant.
fuel means:
(a) goods that have been entered for home consumption and that
fall:
(i) within a classification in subheading 2707, 2709 or 2710 of Schedule 3
to the Customs Tariff; or
(ii) within a subitem of item 11 or within item 12 of the Schedule to the
Excise Tariff; or
(b) a blend of goods to which paragraph (a) applies; or
(c) a blend of goods to which paragraph (a) applies and of goods
comprising a blend created under paragraph (b).
(d) a blend of goods to which paragraph (c) applies.
fuel record, in relation to a person dealing in fuel,
means:
(a) a type A record, a type B record or a type C record, within the
meaning of section 11, that is required to be created by the person;
or
(b) a movement record, within the meaning of section 15, that is required
to be carried by the person; or
(c) a notification required to be retained by the person under section
18.
magistrate means a magistrate of a State or
Territory.
marked fuel means fuel that contains at least the proportion
of the marker that is prescribed for the purposes of this Act as indicating
marked fuel.
marker means a chemical additive of a kind prescribed in
regulations made under the Excise Tariff to be a fuel marker for the purposes of
that Tariff.
monitoring warrant means a monitoring warrant issued under
section 27.
movement record has the meaning given by subsection
15(2).
occupier, in relation to premises that are a vehicle or a
vessel, means the person in charge of the vehicle or vessel.
person assisting, in relation to the executing officer of a
monitoring warrant or a search warrant, means:
(a) a person who is an authorised officer and who is assisting the
executing officer in the execution of the warrant; or
(b) a person who is not an authorised officer and who has been authorised
by the CEO to assist the executing officer in executing the warrant.
person dealing in fuel means:
(a) a person who is required to maintain a fuel record under Part 3;
or
(b) in the case of a person moving fuel from one place to another place in
a vessel or vehicle—a person who is required to carry a fuel record on the
vessel or vehicle under section 15.
premises means:
(a) in relation to Division 2 of Part 4:
(i) an area of land or any other place, whether or not it is enclosed or
built on; or
(ii) a building, wharf or other structure;
and includes a part of any such premises; and
(b) in relation to other provisions of this Act:
(i) an area of land or any other place, whether or not it is enclosed or
built on; or
(ii) a building, wharf or other structure; or
(iii) a vessel or vehicle;
and includes a part of any such premises.
search warrant means a search warrant issued under section
29.
seize includes secure against interference.
Territory does not include an External Territory.
thing includes substance.
this Act includes the regulations made under this
Act.
unmarked fuel means fuel that does not contain at least the
proportion of the marker that is prescribed for the purposes of this Act as
indicating marked fuel.
use, in relation to fuel, does not include blending that fuel
with other fuel.
vehicle includes a hovercraft, railway rolling stock or the
trailer of a road vehicle.
vessel means a ship, boat, raft or pontoon or any other thing
capable of carrying persons or goods through water, but does not include a
hovercraft.
warrant premises, in relation to a monitoring warrant or
search warrant, means the premises to which the warrant relates.
(2) For the purposes of this Act, a person is not taken to have acquired
physical control of fuel if the person merely has charge of the fuel in the
person’s capacity as an employee of another person who owns the
fuel.
(3) Expressions used in this Act that are defined for the purposes of the
Customs Act have the same meaning as in the Customs Act.
(4) Expressions used in this Act that are defined for the purposes of the
Excise Act (other than expressions that are also defined for the purposes of the
Customs Act) have the same meaning as in the Excise Act.
In spite of subsections 4(3) and (4) of this Act, fuel is entered
for home consumption when:
(a) the entry of the fuel (other than fuel to which paragraph (b) or (c)
applies) for home consumption under section 71A of the Customs Act is
communicated to Customs within the meaning of the Customs Act; or
(b) the fuel is delivered into home consumption in accordance with a
permission granted under section 69 of the Customs Act; or
(c) the fuel is taken into home consumption in accordance with a
permission granted under section 77D of the Customs Act; or
(d) the entry of the fuel (other than fuel to which paragraph (e) applies)
for home consumption under section 58 of the Excise Act is lodged under this
Act; or
(e) the fuel is delivered for home consumption in accordance with a
permission given under section 61C of the Excise Act.
(1) This Act does not extend to any of the External Territories.
(2) This Act binds the Crown in all of its capacities other than the Crown
in right of Norfolk Island.
(3) This Act does not make the Crown liable to be prosecuted for an
offence.
The purpose of this Part is to provide for the payment of penalty
surcharge for which a person has become liable under the Fuel Misuse (Penalty
Surcharge) Act 1997, the Fuel Sale (Penalty Surcharge) Act 1997 or
the Fuel Blending (Penalty Surcharge) Act 1997, and, in circumstances
where a person fails to pay that surcharge, to provide for penalties in respect
of that failure.
(1) Penalty surcharge imposed on a person under the Fuel Misuse
(Penalty Surcharge) Act 1997 in respect of the use of marked fuel in an
internal combustion engine is payable by the person before that use.
(2) Penalty surcharge imposed on a person under the Fuel Sale (Penalty
Surcharge) Act 1997 in respect of the sale of fuel for use in an internal
combustion engine is payable by the person before that sale.
(3) Penalty surcharge imposed on a person under the Fuel Blending
(Penalty Surcharge) Act 1997 in respect of the blending of marked and
unmarked fuel is payable by the person before that blending.
(1) A
person is guilty of an offence if:
(a) the person is liable to pay penalty surcharge under subsection 8(2);
and
(b) the person fails, before the event specified in that subsection, to
pay the penalty surcharge.
Penalty: A fine equal to 5 times the amount of the penalty surcharge or 500
penalty units, whichever is the greater.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(2) A person is guilty of an offence if:
(a) the person is liable to pay penalty surcharge under subsection 8(2);
and
(b) the person fails, before the event specified in that subsection, to
pay the penalty surcharge.
Penalty: A fine equal to the amount of the penalty surcharge or 100 penalty
units, whichever is the greater.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(3) Strict liability applies to subsection (2).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(4) A person is guilty of an offence if:
(a) the person is liable to pay penalty surcharge under subsection 8(1) in
a circumstance other than the circumstance set out in paragraph (7)(b); and
(b) the person fails, before the event specified in subsection 8(1), to
pay the penalty surcharge.
Penalty: A fine equal to 5 times the amount of the penalty surcharge or 500
penalty units, whichever is the greater.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(5) A person is guilty of an offence if:
(a) the person is liable to pay penalty surcharge under subsection 8(1) in
a circumstance other than the circumstance set out in paragraph (7)(b); and
(b) the person fails, before the event specified in subsection 8(1), to
pay the penalty surcharge.
Penalty: A fine equal to the amount of the penalty surcharge or 100 penalty
units, whichever is the greater.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(6) Strict liability applies to subsection (5).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(7) A person is guilty of an offence if:
(a) the person is liable to pay penalty surcharge under subsection 8(1);
and
(b) that liability arises because of the person’s use of the fuel in
an internal combustion engine of a vessel or vehicle having a fuel tank with a
capacity that does not exceed 120 litres or such greater capacity as the
regulations prescribe; and
(c) the person fails, before the event specified in subsection 8(1), to
pay the penalty surcharge.
Penalty: 2 penalty units.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(8) A person is guilty of an offence if:
(a) the person is liable to pay penalty surcharge under subsection 8(3) in
a circumstance other than the circumstance set out in paragraph (11)(b); and
(b) the person fails, before the event specified in subsection 8(3), to
pay the penalty surcharge.
Penalty: A fine equal to 5 times the amount of the penalty surcharge or 500
penalty units, whichever is the greater.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(9) A person is guilty of an offence if:
(a) the person is liable to pay penalty surcharge under subsection 8(3) in
a circumstance other than the circumstance set out in paragraph (11)(b); and
(b) the person fails, before the event specified in subsection 8(3), to
pay the penalty surcharge.
Penalty: A fine equal to the amount of the penalty surcharge or 100 penalty
units, whichever is the greater.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(10) Strict liability applies to subsection (9).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(11) A person is guilty of an offence if:
(a) the person is liable to pay penalty surcharge under subsection 8(3);
and
(b) that liability arises because the person blends fuel in the tank of a
vessel or vehicle powered by an internal combustion engine where that tank has a
capacity that does not exceed 120 litres or such greater capacity as the
regulations prescribe; and
(c) the person fails, before the event specified in subsection 8(3), to
pay the penalty surcharge.
Penalty: 2 penalty units.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(12) If a person is convicted of an offence against subsection (1), (2),
(4), (5), (7), (8), (9) or (11), the court may, in addition to imposing a
penalty under that subsection, order the person to pay to the Commonwealth the
amount of the penalty surcharge not paid by the person.
(1) This Part deals generally with the obligation of certain persons who
enter fuel for home consumption, and of certain persons who subsequently acquire
ownership, or physical control, of some or all of that fuel:
(a) to create and maintain records in relation to the entry or acquisition
of that fuel, its storage and its use, blending or disposal; and
(b) in relation to so much of that fuel as is disposed of to another
person—to notify the person to whom it is disposed of whether the fuel is
marked fuel or unmarked fuel.
(2) This Part also deals with the obligations of persons who have charge
of fuel in vessels or vehicles for movement purposes to carry records relating
to the movement of that fuel while the fuel is in transit from one place to
another.
In this Part:
type A record, in relation to fuel, means a record containing
the prescribed particulars in relation to:
(a) the entry of that fuel for home consumption; or
(b) the acquisition, by purchase, gift, operation of law or any other
means, of ownership of the fuel from another person (whether or not the person
acquiring ownership of the fuel also has physical control of the fuel);
or
(c) the acquisition of physical control of that fuel from another person
(whether or not the person acquiring physical control of the fuel also acquires
the ownership of the fuel).
type B record, in relation to fuel, means a record containing
the prescribed particulars in relation to the storage of the fuel by a person
having ownership or physical control of the fuel.
type C record, in relation to fuel, means a record containing
the prescribed particulars in relation to:
(a) the use of the fuel; or
(b) the blending of that fuel with other fuel; or
(c) the disposal of the fuel;
by a person by whom, or for whom, the fuel was entered for home
consumption, or who has subsequently acquired the ownership or physical control
of the fuel.
(1) A person is guilty of an offence if:
(a) the person enters goods for home consumption that, upon their entry,
will be fuel for the purposes of this Act; and
(b) the person fails, at or before the time of that entry, to create a
type A record in relation to the entry of that fuel.
Penalty: 10 penalty units.
(2) A person is guilty of an offence if:
(a) the person enters goods for home consumption that, upon their entry,
will be fuel for the purposes of this Act; and
(b) the person subsequently stores some or all of that fuel; and
(c) the person fails, at the time of so storing the fuel, to create a type
B record in relation to the storage of the fuel so stored.
Penalty: 10 penalty units.
(3) For the purposes of subsection (2), storage of fuel does not include
having charge of the fuel in a vessel or vehicle for the purpose of moving the
fuel from one place to another.
(4) A person is guilty of an offence if:
(a) the person enters goods for home consumption that, upon their entry,
will be fuel for the purposes of this Act; and
(b) the person subsequently uses, blends or disposes of some or all of
that fuel; and
(c) the person fails, at the time of so using, blending or disposing of
the fuel, to create a type C record in relation to the use, blending or disposal
of the fuel so used, blended or disposed of.
Penalty: 10 penalty units.
(5) A person who enters goods for home consumption that, upon their entry,
will be fuel for the purposes of this Act may, if the person disposes of some or
all of the fuel by transferring ownership or physical control to another person,
give a copy of the type C record relating to the fuel so disposed of to the
person who acquires ownership or physical control of that fuel.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility applying in respect of all
offences set out in subsections (1), (2) and (4).
(1) For the purposes of this section, a person is not to be taken to
acquire physical control of fuel if the person has taken charge of the fuel
solely for the purpose of transporting it from one place to another place
(whether or not the person is an employee of the owner of the fuel).
(2) A person is guilty of an offence if:
(a) the person acquires ownership or physical control of fuel;
and
(b) the person fails, at the time when the fuel enters the person’s
ownership or physical control, to create a type A record in relation to the
acquisition of ownership or physical control of the fuel.
Penalty: 10 penalty units.
(3) Without limiting the manner in which a type A record can be created,
if:
(a) a person (the acquirer) acquires ownership or physical
control of fuel; and
(b) the acquirer is given a copy of the type C record of the disposal of
that fuel to the acquirer; and
(c) the acquirer signs the copy or the copy bears an imprint of the
acquirer’s signature;
that copy of the type C record may, at the discretion of the acquirer, be
treated for all purposes as the acquirer’s type A record created in
relation to that fuel.
(4) A person is guilty of an offence if:
(a) the person acquires ownership or physical control of fuel;
and
(b) the person subsequently stores some or all of that fuel; and
(c) the person fails, at the time of so storing the fuel, to create a type
B record in relation to the storage of the fuel so stored.
Penalty: 10 penalty units.
(5) For the purposes of subsection (4), storage of fuel does not include
having charge of the fuel in a vessel or vehicle for the purpose of moving the
fuel from one place to another.
(6) A person is guilty of an offence if:
(a) the person acquires ownership or physical control of fuel;
and
(b) the person subsequently uses, blends or disposes of some or all of
that fuel; and
(c) the person fails, at the time of so using, blending or disposing of
the fuel, to create a type C record in relation to the use, blending or disposal
of the fuel so used, blended or disposed of.
Penalty: 10 penalty units.
(7) A person who acquires ownership or physical control of fuel may, if
the person disposes of some or all of the fuel by transferring ownership or
physical control of that fuel to another person, give a copy of the type C
record relating to that fuel so disposed of to the person who acquires ownership
or physical control of the fuel.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility applying in respect of all
offences set out in subsections (2), (4) and (6).
(1) Nothing in this Division requires the creation of:
(a) a type A record in relation to the acquisition of ownership or
physical control of fuel by a person if the fuel is acquired in an amount, or in
an amount in a particular circumstance, for which, under the regulations, no
record is required; or
(b) a type B record in relation to the storage of fuel if the fuel is
stored in an amount, or in an amount in a particular circumstance, for which,
under the regulations, no record is required; or
(c) a type C record in relation to the use of fuel by a person if the fuel
is used in an amount, or in an amount in a particular circumstance, for which,
under the regulations, no record is required; or
(d) a type C record in relation to the blending of fuel by a person if the
blended fuel is of an amount, or the blended fuel is of an amount and is blended
in a particular circumstance, for which, under the regulations, no record is
required; or
(e) a type C record in relation to the disposal of fuel by a person if the
fuel is disposed of in an amount, or in an amount in a particular circumstance,
for which, under the regulations, no record is required.
(2) Regulations made for the purposes of a paragraph of subsection (1) may
provide for different amounts in different circumstances.
(1) A person is guilty of an offence if:
(a) the person has charge of fuel in a vessel or vehicle for the purpose
of moving the fuel from one place to another (whether or not that person has
acquired physical control of the fuel for the purposes of this Act);
and
(b) the person moves the fuel in that vessel or vehicle; and
(c) while the fuel is being so moved, the person fails to carry on the
vessel or vehicle in which the fuel is moved a movement record in respect of the
fuel created by that person, or if that person is an employee, created by, or
for, that person’s employer.
Penalty: 10 Penalty units.
(2) For the purposes of subsection (1), movement record, in
relation to fuel, means a record or records containing particulars in relation
to:
(a) the amount of fuel being transported; and
(b) whether that fuel is marked fuel or unmarked fuel; and
(c) the place from which, and the place to which, the fuel is moved;
and
(d) the ownership of the fuel.
For the purposes of this Act, a movement record may be constituted by
commercial documents or a type A, B or C record that contains the requisite
particulars, or a combination of any such documents or records.
(3) Subsection (1) does not apply to movement of fuel if the fuel is of an
amount, or is of an amount and moved in particular circumstances, for which,
under the regulations, no movement record is required.
(4) A person is guilty of an offence if:
(a) the person is required at any time, under section 12 or 13, to create
a fuel record in respect of particular fuel; and
(b) the person creates that record; and
(c) the person fails to retain that record for 5 years.
Penalty: 10 penalty units.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility applying in respect of the
offences under this section.
(1) A person is guilty of an offence if:
(a) the person disposes of the ownership of fuel to another person
(whether or not physical control of the fuel passes to that other person);
and
(b) the first-mentioned person fails to provide a written statement to
that other person indicating whether the fuel is marked fuel or unmarked
fuel.
Penalty: 10 penalty units.
Note: A failure to provide a written statement as required
by this subsection may lead to a penalty surcharge liability under the Fuel
Sale (Penalty Surcharge) Act 1997.
(2) A person is guilty of an offence if:
(a) the person has physical control of fuel; and
(b) the person allows another person to take physical control of that
fuel; and
(c) the first-mentioned person fails, at the time of allowing physical
control to pass to that other person, to give the other person a written
statement indicating whether the fuel is marked fuel or unmarked fuel.
Penalty: 10 penalty units.
(3) For the purposes of subsection (2), a person is not to be taken to
have physical control of fuel if the person has charge of the fuel solely for
the purposes of moving the fuel from one place to another place (whether or not
the person is an employee of the owner of the fuel).
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility applying in respect of the
offences set out in subsections (1) and (2).
(1) Nothing in this Division requires a person to notify another person to
whom the ownership or physical control of fuel is transferred if the fuel so
transferred is of an amount, or is of an amount and is transferred in a
particular circumstance, for which, under the regulations, no notification is
required.
(2) Regulations made for the purposes of subsection (1) may provide for
different amounts in different circumstances.
(1) A person is guilty of an offence if:
(a) the person provides a notification indicating that particular fuel is
marked fuel or unmarked fuel; and
(b) the person fails to retain a copy of that notification for 5 years
after it is provided.
Penalty: 10 penalty units.
(2) A person is guilty of an offence if:
(a) the person is provided with a notification indicating that particular
fuel is marked fuel or unmarked fuel; and
(b) the person fails to retain that notification for 5 years after it is
provided.
Penalty: 10 penalty units.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility applying in respect of the
offences set out in subsections (1) and (2).
A person is guilty of an offence if:
(a) the person includes in a fuel record a statement that is false or
misleading in a material particular; or
(b) the person carries on a vessel or vehicle a movement record that the
person knows to be false or misleading in a material particular.
Penalty: 10 penalty units.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility applying in respect of an offence
under this section.
The purpose of this Part is to make provisions for and in relation to the
audit procedures in order to:
(a) ensure compliance with this Act; and
(b) obtain evidential material concerning any offence against this
Act.
If an authorised officer has reasonable grounds to believe that a person
is a person dealing in fuel, the authorised officer may, with the consent of the
person, request the person:
(a) to answer any question in relation to the fuel that is put to the
person by the authorised officer; and
(b) to produce to the authorised officer any fuel record that is required
to be maintained or carried by the person in relation to the fuel.
(1) If an authorised officer has reasonable grounds to believe that there
is, at any premises, a quantity of fuel, or a fuel storage facility, that
exceeds a limit prescribed by the regulations for the purposes of this section,
the authorised officer may enter the premises and exercise all or any of the
preliminary audit powers set out in section 26.
(2) An authorised officer may not, under subsection (1), enter any
premises unless the occupier of the premises, or another person apparently
representing the occupier, has consented to the entry.
(3) An authorised officer may not remain on any premises if the occupier
of the premises, or another person apparently representing the occupier,
requests the officer to leave.
(1) If an authorised officer has reasonable grounds to believe:
(a) that a vehicle is being used for the transportation of a quantity of
fuel that exceeds 1,000 litres; or
(b) that a vehicle is capable of carrying more than 1,000 litres of
fuel;
the authorised officer may:
(c) stop the vehicle; and
(d) with the consent of the person in charge, or apparently in charge, of
the vehicle, board the vehicle and exercise all or any of the preliminary audit
powers set out in section 26.
(2) An authorised officer may not continue to detain a vehicle, or remain
on board a vehicle, if the person in charge, or apparently in charge, of the
vehicle requests the officer to discontinue the exercise of his or her
powers.
(1) If an authorised officer has reasonable grounds to believe:
(a) that a vessel is being used for the transportation of fuel between
places within Australia; or
(b) that a vessel is capable of carrying more than 1,000 litres of
fuel;
the authorised officer may:
(c) stop the vessel; and
(d) with the consent of the person in charge, or apparently in charge, of
the vessel—board the vessel and exercise all or any of the preliminary
audit powers set out in section 26.
(2) An authorised officer may not continue to detain a vessel, or remain
on board a vessel, if the person apparently in charge of the vessel requests the
officer to discontinue the exercise of his or her powers.
(1) An authorised person is not entitled:
(a) to ask questions of a person, or request a person to produce fuel
records, under section 21; or
(b) to enter premises under section 22 and to exercise preliminary audit
powers on those premises; or
(c) to stop and board a vehicle under section 23 and to exercise
preliminary audit powers in relation to that vehicle; or
(d) to stop and board a vessel under section 24 and to exercise
preliminary audit powers in relation to that vessel;
unless the authorised officer produces his or her identity card to the
person referred to in paragraph (a) to the occupier or other person apparently
representing the occupier of the premises, or to the person in charge, or
apparently in charge, of the vehicle or vessel, as the case requires.
(2) Before obtaining the consent of a person for the purposes of this
section, the authorised officer must inform the person that he or she may refuse
to give consent.
(3) The entry of premises, the boarding of a vehicle or vessel, and the
exercise of preliminary audit powers on those premises or that vehicle or vessel
by an authorised officer by virtue of the consent of a person is not lawful
unless the person voluntarily consented to the entry or boarding, and to the
exercise of those powers.
In this Division, preliminary audit powers means:
(a) examining any fuel records produced in accordance with section 21;
or
(b) examining any facility that is, or might be, used for the storage of
fuel at the premises concerned in a quantity exceeding the limit prescribed for
the purposes of section 22; or
(c) so far as section 22 is concerned—examining any vessel or
vehicle or plant, found at the premises concerned, for the operation of which
fuel is required; or
(d) as far as section 23 is concerned—examining fuel that is being
transported by the vehicle concerned; or
(e) so far as section 24 is concerned—examining fuel that is being
transported by the vessel concerned; or
(f) taking samples of any fuel found in such a receptacle, vehicle, vessel
or plant.
(1) An authorised officer may apply to a magistrate for a monitoring
warrant in relation to particular premises.
(2) Subject to subsection (3), the magistrate may issue the monitoring
warrant if satisfied, by information on oath or affirmation, that it is
reasonably necessary that the authorised officer should have access to the
premises for the purpose of finding out whether this Act has been, or is being,
complied with.
(3) The magistrate must not issue the warrant unless the authorised
officer or someone else has given the magistrate, either orally (on oath or
affirmation) or by affidavit, any further information the magistrate may require
about the grounds on which the issue of the warrant is being sought.
(4) The warrant must:
(a) state the purpose for which the warrant is issued; and
(b) identify the premises to which the warrant relates; and
(c) name the authorised officer who is to be responsible for executing the
warrant; and
(d) authorise the executing officer and any person assisting that officer,
using such force as is necessary and reasonable, from time to time while the
warrant remains in force, to enter the premises and exercise monitoring powers
referred to in section 28; and
(e) if the premises identified in the warrant comprise or contain a vessel
or vehicle—authorise the executing officer and any person assisting that
officer to stop the vessel or vehicle (where necessary) for the purpose of
boarding it and exercising monitoring powers in relation to it as premises
identified in the warrant or as a part of such premises; and
(f) state whether an entry under the warrant is authorised to be made at
any time of the day or night or during specified hours of the day or night;
and
(g) specify the day (not more than 6 months after the issue of the
warrant) on which the warrant ceases to have effect.
(5) A magistrate of a particular State or Territory may issue a monitoring
warrant in respect of premises in another State or Territory.
(1) In this Division, monitoring powers, in relation to a
monitoring warrant, means:
(a) in relation to particular warrant premises—the following
powers:
(i) to search the premises; and
(ii) to take photographs (including video recordings) of the premises or
any thing at the premises that the executing officer or person assisting that
officer believes on reasonable grounds to be evidential material; and
(iii) to inspect, examine and take samples of, any fuel or other substance
on the premises; and
(iv) to examine anything on or in the premises where fuel is stored or
consumed, (for example, machinery on the premises); and
(v) to take extracts from, or make copies of, any fuel record, or any
other document apparently relating to fuel, that is found on the premises;
and
(vi) to take onto the premises any equipment or material reasonably
necessary for the purpose of exercising a power under subparagraph (i), (ii),
(iii), (iv) or (v); and
(b) in relation to any fuel record, or any other document apparently
relating to fuel, that is found on the premises—the powers described in
subsections (2) and (3); and
(c) in relation to any thing found on the premises during the execution of
the warrant that the executing officer or a person assisting that officer
believes on reasonable grounds to be evidential material in relation to the
commission of an offence against this Act—the power to seize the thing if
the officer or person assisting believes on reasonable grounds that seizure of
the thing is necessary to prevent its concealment, loss or destruction or its
use in committing an offence against this Act.
(2) The executing officer or a person assisting that officer has power to
operate equipment on the warrant premises to see whether:
(a) the equipment; or
(b) a disk, tape or other storage device that:
(i) is on the premises; and
(ii) can be used with or is associated with the equipment;
contains information that is relevant to determining whether the Act has
been, or is being, complied with.
(3) If the executing officer, or a person assisting that officer, after
operating equipment at the premises, finds that the equipment, or that a disk,
tape or other storage device on the premises, contains such information, he or
she has power:
(a) to operate the equipment or other facilities to put the information in
documentary form and copy the documents so produced; or
(b) if the information can be transferred to a disk, tape or other storage
device that:
(i) is brought to the premises; or
(ii) is at the premises and the use of which for the purpose has been
agreed to in writing by the occupier of the premises;
to operate the equipment or other facilities to copy the information to the
storage device and remove the storage device from the premises.
(1) An authorised officer may apply to a magistrate for a search warrant
in relation to particular premises.
(2) Subject to subsection (3), a magistrate may issue the warrant if
satisfied, by information on oath or affirmation, that there are reasonable
grounds for suspecting that there is, or there will be within the next 72 hours,
any evidential material on the premises.
(3) A magistrate must not issue the warrant unless the authorised officer
or someone else has given the magistrate, either orally (on oath or affirmation)
or by affidavit, any further information the magistrate may require about the
grounds on which the issue of the search warrant is being sought.
(4) If a magistrate issues a warrant, the magistrate must state in the
warrant:
(a) the offence to which the warrant relates; and
(b) a description of the warrant premises; and
(c) the kind of evidential material that is to be searched for under this
warrant; and
(d) the name of the authorised officer who is to be responsible for
executing the warrant; and
(e) the period for which the warrant remains in force, which must not be
more than 7 days; and
(f) whether the warrant may be executed at any time or only during
particular hours; and
(g) that the warrant authorises the seizure of a thing (other than
evidential material of the kind referred to in paragraph (c)) found at the
premises in the course of the search that the executing officer or a person
assisting that officer believes on reasonable grounds to be:
(i) evidential material in relation to an offence to which the warrant
relates; or
(ii) a thing relevant to another offence against this Act;
if the officer or person assisting believes on reasonable grounds that
seizure of the thing is necessary to prevent its concealment, loss or
destruction or its use in committing an offence against this Act.
(5) Paragraph (4)(e) does not prevent the issue of successive warrants in
relation to the same premises.
(6) If the application for the warrant is made under section 33, this
section applies as if:
(a) subsection (2) refers to 48 hours rather than 72 hours; and
(b) paragraph (4)(e) refers to 48 hours rather than 7 days.
(7) A magistrate of a particular State or Territory may issue a search
warrant in respect of a particular premises in another State or
Territory.
A search warrant authorises the executing officer and any person
assisting that officer:
(a) to enter the warrant premises; and
(b) if the warrant premises comprise or contain a vessel or
vehicle—to stop the vessel or vehicle (where necessary) and to board it
and exercise the powers referred to in paragraphs (c) to (f) as powers relating
to it as warrant premises or as a part of warrant premises; and
(c) to search the warrant premises for the evidential material of the kind
stated in the warrant; and
(d) to take photographs (including video recordings) of the warrant
premises and any thing found at the premises that the officer or person
assisting believes on reasonable grounds to be evidential material of that kind;
and
(e) to seize the thing believed to be the evidential material in relation
to the offence to which the warrant relates; and
(f) to seize another thing found on the warrant premises in the course of
the search that the officer or person assisting believes on reasonable grounds
to be:
(i) evidential material in relation to an offence to which the warrant
relates; or
(ii) evidential material in relation to another offence against this
Act;
if the officer or person assisting believes on reasonable grounds that
seizure of the thing is necessary to prevent its concealment, loss or
destruction or its use in committing an offence against this Act.
(1) An executing officer or a person assisting that officer may bring to
any warrant premises any equipment reasonably necessary for the examination or
processing of things found on the premises in order to determine whether they
are things that may be seized under the warrant.
(2) If:
(a) it is not practicable to examine or process the things on the warrant
premises; or
(b) the occupier of the premises consents in writing;
the things may be removed to another place so that the examination or
processing can be carried out in order to determine whether they are things that
may be seized under the search warrant.
(3) If things are removed to another place for examination or processing
under subsection (2), the executing officer or a person assisting that officer
must, if it is practicable to do so:
(a) inform the occupier of the address of the place and the time at which
the examination or processing will be carried out; and
(b) allow the occupier, or his or her representative, to be present during
the examination or processing.
(4) The executing officer or a person assisting that officer may operate
equipment already on the warrant premises to carry out the examination or
processing of a thing found on the premises in order to determine whether it is
a thing that may be seized under the search warrant if the officer or person
assisting believes on reasonable grounds that:
(a) the equipment is suitable for the examination or processing;
and
(b) the examination or processing can be carried out without damage to the
equipment or the thing.
(1) The executing officer or a person assisting that officer may operate
electronic equipment on the warrant premises to see whether evidential material
is accessible by doing so if the officer or person assisting believes on
reasonable grounds that the operation of the equipment can be carried out
without damage to the equipment.
(2) If the executing officer or a person assisting that officer, after
operating the equipment, finds that evidential material is accessible by doing
so, the officer or person assisting may:
(a) seize the equipment and any disk, tape or other associated device;
or
(b) if the material can, by using facilities on the premises, be put in
documentary form—operate the facilities to put the material in that form
and seize the documents so produced; or
(c) if the material can be transferred to a disk, tape or other storage
device that:
(i) is brought to the warrant premises; or
(ii) is on the warrant premises and the use of which for the purpose has
been agreed to in writing by the occupier of the premises;
operate the equipment or other facilities to copy the material to the
storage device and take the storage device from the premises.
(3) A person may seize equipment under paragraph (2)(a) only if:
(a) it is not practicable to put the material in documentary form as
mentioned in paragraph (2)(b) or to copy the material as mentioned in paragraph
(2)(c); or
(b) possession of the equipment by the occupier could constitute an
offence against this Act.
(4) If the executing officer or a person assisting that officer believes
on reasonable grounds that:
(a) evidential material may be accessible by operating electronic
equipment on the warrant premises; and
(b) expert assistance is required to operate the equipment; and
(c) if he or she does not take action under this subsection, the material
may be destroyed, altered or otherwise interfered with;
he or she may do whatever is necessary to secure the equipment, whether by
locking it up, placing a guard or otherwise.
(5) The executing officer or a person assisting that officer must give
notice to the occupier of the premises of his or her intention to seize
equipment and of the fact that the equipment may be secured for up to 24
hours.
(6) The equipment may be secured:
(a) for a period not exceeding 24 hours; or
(b) until the equipment has been operated by the expert;
whichever happens first.
(7) If the executing officer or a person assisting that officer believes
on reasonable grounds that the expert assistance will not be available within 24
hours, he or she may apply to a magistrate for an order for an extension of that
period.
(8) The executing officer or a person assisting that officer must give
notice to the occupier of the premises of his or her intention to apply for an
extension, and the occupier is entitled to be heard in relation to the
application.
(9) The provision of this Part relating to the issue of warrants apply,
with such modifications as are necessary to the issue of an
extension.
(1) An authorised officer may make an application to a magistrate for a
monitoring warrant or a search warrant by telephone, telex, facsimile or other
electronic means:
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in person
would frustrate the effective execution of the warrant.
(2) The magistrate may require communication by voice to the extent that
is practicable in the circumstances.
(3) An application under this section must include all information
required to be provided in an ordinary application for a monitoring warrant or a
search warrant, as the case requires, but the application may, if necessary, be
made before the information is sworn.
(4) If an application is made to a magistrate under this section and the
magistrate, after considering the information and having received and considered
such further information (if any) as the magistrate required, is satisfied
that:
(a) a warrant in the terms of the application should be issued urgently;
or
(b) the delay that would occur if an application were made in person would
frustrate the effective execution of the warrant;
the magistrate may complete and sign the same form of warrant that would be
issued under section 27 or 29, as the case requires.
(5) If the magistrate decides to issue the warrant, the magistrate is to
inform the applicant, by telephone, telex, facsimile or other electronic means,
of the terms of the warrant and the day on which and the time at which it was
signed.
(6) The applicant must then complete a form of warrant in terms
substantially corresponding to those given by the magistrate, stating on the
form the name of the magistrate and the day on which and the time at which the
warrant was signed.
(7) The applicant must, not later than the day after:
(a) the day of expiry of the warrant; or
(b) the day on which the warrant was executed or, in the case of a
monitoring warrant, first executed;
whichever is the earlier, give or transmit to the magistrate the form of
warrant completed by the applicant and, if the information referred to in
subsection (3) was not sworn, that information duly sworn.
(8) The magistrate is to attach to the documents provided under subsection
(7) the form of warrant completed by the magistrate.
(9) If:
(a) it is material, in any proceedings, for a court to be satisfied that
the exercise of a power under a warrant issued under this section was duly
authorised; and
(b) the form of warrant signed by the magistrate is not produced in
evidence;
the court is to assume, unless the contrary is proved, that the exercise of
the power was not duly authorised.
(1) Before any person proposes to enter premises under a monitoring
warrant or a search warrant, the executing officer must:
(a) announce that he or she is authorised to enter the premises;
and
(b) give any person at the premises an opportunity to allow entry to the
premises.
(2) The executing officer is not required to comply with subsection (1) if
he or she believes on reasonable grounds that immediate entry to the premises is
required to ensure:
(a) the safety of a person (including an authorised officer); or
(b) in the case of a search warrant—that the effective execution of
the warrant is not frustrated.
(1) If:
(a) a monitoring warrant or a search warrant in relation to premises is
being executed; and
(b) a person who is the occupier of the premises or another person who
apparently represents the occupier is present at the premises;
the executing officer:
(c) must identify himself or herself to the person by producing his or her
identity card; and
(d) make available to that person a copy of the warrant.
(2) The copy of the warrant need not include the signature of the
magistrate or the seal of the relevant court.
In executing a monitoring warrant or search warrant:
(a) the executing officer may obtain such assistance; and
(b) the executing officer or a person assisting that officer may use such
force against persons and things;
as is necessary and reasonable in the circumstances.
The occupier or a person apparently acting on behalf of the occupier of
premises to which a monitoring warrant or a search warrant relates must provide
the executing officer in relation to that warrant and any person assisting that
officer with all reasonable facilities and assistance for the effective exercise
of their powers.
Penalty: 10 penalty units.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(1) The executing officer who is on premises that he or she has entered
under a monitoring warrant or a search warrant may require an occupier of the
premises:
(a) to answer any questions put by the executing officer; and
(b) to provide, at a time and place convenient to the executing officer,
any fuel record required to be maintained by the person that is requested by the
executing officer; and
(c) if the warrant premises are a vessel or vehicle that is transporting
fuel from one place to another—to provide to the executing officer any
fuel record required to be carried by the occupier.
(2) A person is guilty of an offence if the person fails to comply with a
requirement under subsection (1).
Penalty: 10 penalty units.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(1) If:
(a) damage is caused to equipment as a result of it being operated as
mentioned in section 28, 31 or 32; or
(b) the data recorded on the equipment is damaged or programs associated
with its use are damaged or corrupted;
because:
(c) insufficient care was exercised in selecting the person who was to
operate the equipment; or
(d) insufficient care was exercised by the person operating the
equipment;
compensation for the damage or corruption is payable to the owner of the
equipment or the user of the data or programs concerned.
(2) For the purposes of subsection (1), damage to data includes damage by
erasure of data or addition of other data.
(3) Compensation is payable out of money appropriated by the Parliament
for the purpose.
(4) In determining the amount of compensation payable, regard is to be had
to whether the occupier of the premises and his or her employees and agents, if
they were available at the time, had provided any warning or guidance as to the
operation of the equipment that was appropriate in the circumstances.
(1) If:
(a) a monitoring warrant or a search warrant in relation to premises is
being executed; and
(b) a person who is the occupier of the premises or another person who
apparently represents the occupier is present at the premises;
then the person is entitled to observe the exercise of powers under the
warrant.
(2) The right to observe the exercise of powers ceases if the person
impedes the exercise of those powers.
(3) This section does not prevent the exercise of powers under the warrant
in 2 or more areas of the premises at the same time.
(1) Subject to subsection (2), if the executing officer in relation to a
monitoring warrant or a search warrant or a person assisting that officer
seizes, under the warrant:
(a) a document, film, computer file or other thing that can be readily
copied; or
(b) a storage device the information in which can be readily
copied;
the officer or person must give a copy of the thing or the information to
that person as soon as practicable after the seizure.
(2) Subsection (1) does not apply if:
(a) the thing that has been seized was seized under paragraph 32(2)(b) or
(c); or
(b) possession of the thing by the occupier could constitute an offence
against this Act.
(1) A thing seized under this Act may be retained until:
(a) the end of the period of 120 days after the seizure, or the end of
such extended period as is, or such extended periods as are, determined under
subsection (3); or
(b) if:
(i) proceedings for an offence against this Act have been instituted
within that period; and
(ii) the thing may have been used or otherwise involved in the commission
of the offence;
the proceedings (including any appeal to a court in relation to those
proceedings) are terminated.
(2) An authorised officer may apply to a magistrate for an extension of
the period during which the officer is entitled to retain the thing.
(3) If the magistrate is satisfied that the retention of the thing for an
extended period is warranted, the magistrate may make an order extending the
period during which the thing may be retained.
(4) Subsection (3) does not prevent a magistrate from granting 2 or more
successive extensions under that subsection of the period during which a
particular thing may be retained.
If:
(a) things are seized under this Act; and
(b) apart from this section, the Commonwealth is required to return the
things to the owner of the things; and
(c) the CEO cannot, despite making reasonable efforts, locate the
owner;
the CEO may dispose of the things in such manner as the CEO thinks
appropriate.
The CEO may authorise:
(a) things seized under this Act; or
(b) anything in, on or attached to the things;
to be released to their owner, or to the person from whose possession they
were seized, either:
(c) unconditionally; or
(d) on such condition as the CEO thinks fit.
Divisions 3, 4 and 5 do not affect the law relating to legal professional
privilege.
(1) The CEO may give directions in writing under this subsection
concerning:
(a) the circumstances in which the powers in this Part may be exercised;
and
(b) the officers of Customs who are entitled to exercise those powers; and
(c) the manner and frequency of reporting to the CEO concerning the
exercise of those powers.
(2) A direction given for the purposes of subsection (1) is a disallowable
instrument for the purposes of section 46A of the Acts Interpretation Act
1901.
An authorised officer may make information or a thing obtained under this
Part available to officers of other agencies if it is necessary to do so for the
purpose of enabling the agency to investigate or prosecute an offence to which
the information or thing relates.
(1) A person is guilty of an offence if the person removes a marker from,
or neutralises the presence of a marker in, fuel.
Penalty: 10 times the amount of excise duty applicable to the fuel if it
were entered under the Excise Act as unmarked fuel of a kind classified to
subparagraph 11(C)(2)(a) of the Schedule to the Excise Tariff or
500 penalty units, whichever is the greater.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(2) A person is guilty of an offence if the person removes a marker from,
or neutralises the presence of a marker in, fuel.
Penalty: 2 times the amount of excise duty applicable to the fuel if it
were entered under the Excise Act as unmarked fuel of a kind classified to
subparagraph 11(C)(2)(a) of the Schedule to the Excise Tariff or
100 penalty units, whichever is the greater.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(3) Strict liability applies to subsection (2).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(1) A conferral of functions on a magistrate under section 27, 29, 32, 33
or 42 (a specified provision) is a conferral on the magistrate in
the personal capacity of the magistrate and not as a court or a member of a
court and does not impose an obligation on the magistrate to perform the
functions.
(2) Without limiting subsection (1), a warrant issued, or an order made,
by a magistrate under any of the specified provisions has effect only by virtue
of this Act and is not taken, by implication, to be made by a court.
(3) A magistrate performing a function connected with the issue of a
warrant, or the making of an order, under any of the specified provisions has
the same protection and immunity as if he or she were performing that function
as, or as a member of, a court (being the court of which the magistrate is a
member).
(4) The Governor-General may make arrangements with the Governor of a
State, the Administrator of the Northern Territory or the Chief Minister of the
Australian Capital Territory for the performance, by all or any of the persons
who from time to time hold office as magistrates in that State or Territory, of
functions connected with the issuing of warrants, or the making of orders, under
a specified provision.
(1) The CEO may make a written determination that a specified officer of
Customs or other person is an authorised officer for the purposes of this Act.
The determination has effect accordingly.
Note: A person may be specified by name, by inclusion in a
specified class or in any other way.
(2) The Minister may issue a written certificate stating that a specified
person was at a specified time, or was at all times during a specified period,
an authorised officer for the purposes of this Act or of particular provisions
of this Act.
Note: A person may be specified by name, by inclusion in a
specified class or in any other way.
(3) In any proceedings relating to this Act, a certificate under
subsection (2) is prima facie evidence of the matters in the
certificate.
(4) A document purporting to be a certificate under subsection (3) must,
unless the contrary is established, be taken to be a certificate and to have
been properly given.
(1) The CEO may cause to be issued to each authorised officer an identity
card.
(2) An identity card must:
(a) be in a form approved in writing by the CEO; and
(b) incorporate a recent photograph of the person.
(3) A person who ceases to be an authorised officer must, as soon as
practicable after so ceasing, return his or her identity card to the
CEO.
(4) A person is guilty of an offence if:
(a) the person has been issued with an identity card; and
(b) the person fails to return the card as provided for in subsection
(3).
Penalty: 5 Penalty units.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility applying in respect of the offence
in this subsection.
Chapter 2 of the Criminal Code applies to all offences against
this Act.
The Governor General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.