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2010-2011-2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CUSTOMS AMENDMENT (SMUGGLED TOBACCO) BILL 2012
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Nicola Roxon MP)
CUSTOMS AMENDMENT (SMUGGLED TOBACCO) BILL 2012
OUTLINE
1. The purpose of this Bill is to amend the Customs Act 1901 (the Act) to
create criminal offences for the smuggling of tobacco products and for
the conveyance or possession of smuggled tobacco products where the
person conveying or possessing the goods knows they were smuggled.
2. A smuggling offence currently exists in section 233 of the Act and is
punishable by a pecuniary penalty of up to five times the duty evaded;
however this offence is no longer considered an effective deterrent as
many penalties currently imposed for tobacco smuggling are not paid.
3. On some occasions the investigation of the smuggling offence results in
the identification of sufficient evidence to warrant the pursuit of
fraud offences under the Criminal Code Act 1995 (Cth). In these cases
offences carry penalties of up to 10 years imprisonment.
4. These new offences combine the penalties of the existing smuggling and
fraud offences by providing a pecuniary penalty of up to five times the
duty evaded in addition to up to 10 years imprisonment. The inclusion of
the imprisonment penalty will provide a strong deterrent to criminals
and will demonstrate the seriousness of smuggling acts.
FINANCIAL IMPACT STATEMENT
Nil.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011
CUSTOMS AMENDMENT (SMUGGLED TOBACCO) BILL 2012
This Bill is compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human
Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The Bill will create new offences for the smuggling of tobacco products and
for the conveyance and possession of smuggled tobacco where the person
conveying or possessing the tobacco knows the tobacco products were
imported with the intent to defraud the revenue.
The existing ability for officers of Customs or the police to arrest a
person without warrant where they believe on reasonable grounds that the
person has committed or is committing certain offences will be extended to
the new offences.
Human rights implication
The Bill will create new criminal offences for the smuggling of tobacco.
The elements of the new offences are the same as those for the existing
smuggling offence in the Act. The new offences include a penalty of up to
10 years imprisonment in addition to a pecuniary penalty that is identical
to the pecuniary penalty available for the existing offence.
The provisions of the new offence do not engage any human rights. Although
a new criminal offence will be created, the Bill does not change any of the
existing human rights guarantees, for example the minimum guarantees in
criminal proceedings contained in the International Covenant on Civil and
Political Rights are maintained.
Conclusion
The Bill is compatible with human rights as it does not raise any human
rights issues.
The Attorney-General, the Honourable Nicola Roxon MP
CUSTOMS AMENDMENT (SMUGGLED TOBACCO) BILL 2012
NOTES ON CLAUSES
Clause 1 - Short title
1. This clause provides for the Bill, when enacted, to be cited as the
Customs Amendment (Smuggled Tobacco) Act 2012.
Clause 2 - Commencement
2. This clause provides for the Bill to commence on the day after the Act
receives the Royal Assent.
Clause 3 - Schedules
3. This clause is the formal enabling provision for the Schedule to the
Bill, providing that each Act specified in a Schedule is amended in
accordance with the applicable items of the Schedule. In this Bill the
Act being amended is the Customs Act 1901.
4. The clause also provides that the other items of the Schedules have
effect according to their terms. This is a standard enabling clause for
transitional, savings and application items in amending legislation. In
this Bill there is an application provision in item 2 of Schedule 1.
Schedule 1 - Amendments
Customs Act 1901
Item 1 - Subparagraph 210(1)(a)(iii)
5. This item will amend section 210 of the Act to include a reference to
the new offence provision inserted by item 2.
6. Section 210 of the Act allows an officer of Customs or police to arrest
a person without a warrant in certain circumstances. The effect of this
item will be to allow an officer of Customs or police to arrest a person
without warrant where the officer believes on reasonable grounds that
the person has committed or is committing an offence against new section
233BABAC relating to the smuggling of tobacco products.
7. Section 210 contains limits on the exercise of the power to arrest
without warrant. This power can only be exercised if an officer
believes on reasonable grounds that proceedings by summons against the
person would not achieve one or more of several purposes including
ensuring the appearance of the person before a court in respect of the
offence.
8. Section 210B requires the officer of Customs or police who arrests the
person without warrant to inform the person, at the time of the arrest,
of the offence for which the person is being arrested. In addition,
section 212 requires the officer of Customs or police to ensure the
person is delivered into the custody of a police officer or taken before
a magistrate as soon as practicable.
Item 2 - After section 233BABAC
9. This item inserts new section 233BABAD which creates new offences in
relation to smuggling tobacco products and the conveyance or possession
of smuggled tobacco products.
10. Section 233 of the Act already creates an offence for the smuggling of
any goods, and their conveyance and possession, including tobacco
products; however, these offences can only be prosecuted by way of a
Customs prosecution and is punishable by a penalty only. The new
offences created by this Act will be criminal offences punishable by up
to 10 years imprisonment or a fine, or both.
11. The elements of the new offences in section 233BABAD are the same as
those in current offences in section 233 as they relates to smuggled
tobacco products; however, the new offences are structured differently
in section 233BABAD in accordance with the standard approach to
formulating offences set out in the Criminal Code Act 1995 (Cth).
12. New subsection (1) will create an offence where a person imports
tobacco products with the intention of defrauding the revenue.
13. New subsection (2) will create an offence where a person conveys or
possesses tobacco products which the person knows were imported with the
intent to defraud the revenue. New subsection (3) provides that when
prosecuting a person under subsection (2) it is not necessary to prove
the identity of the person who imported the goods.
14. New subsection (4) provides that an offence against subsection (1) or
(2) is punishable by up to 10 years imprisonment, a fine calculated
under subsection (5), or both.
15. The amount of the fine payable in new subsection (5) is calculated as
either, if the court can determine the amount of the duty that would
have been payable on the tobacco products had the goods been entered for
home consumption, five times the amount of the duty that would have been
payable, or otherwise 1000 penalty units.
16. The amount of the fine payable, including the method for calculating
the amount, is the same as the amount of the penalty payable for a
smuggling offence under section 233 the Act.
17. New subsection (6) provides that a person convicted or acquitted of an
offence against new section 233BABAD is not liable for smuggling
proceedings under section 233 of the Act in respect of the same conduct.
This will ensure that a person cannot be prosecuted twice for the same
conduct, consistent with section 4C of the Crimes Act 1914.
18. New subsection (7) contains a definition of tobacco products. The
definition of tobacco products links to goods classified in Schedule 3
of the Customs Tariff Act 1995 (the Tariff Act). In particular, tobacco
products means goods classified to headings 2401, 2402 and 2403 of the
Tariff Act excluding subheadings 2402.90.00 and 2403.99.10. Subheadings
2402.90.00 and 2403.99.10 are excluded as goods classified by those
subheadings do not contain any tobacco.
19. The Tariff Act classifications include a broad range of tobacco
products including unmanufactured tobacco, tobacco refuse, cigars,
cheroots, cigarillos, cigarettes, other manufactured tobacco,
homogenised and reconstituted tobacco, and tobacco extracts and
essences.
Item 3 - Application provisions
20. Item 3 contains and application provision.
21. Subitem 3(1) provides that the new offence created by subsection
233BABAD(1) concerning the smuggling of tobacco will apply to goods
which have been imported on or after the commencement of this item,
being the day after the Royal Assent.
22. Subitem 3(2) provides that the new offence for the conveyance or
possession of smuggled tobacco in subsection 233BABAD(2) will apply in
relation to goods that are conveyed, or goods that are in a person's
possession, on or after commencement of the item whether or not the
goods were imported before, on or after commencement of the item.