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Customs Legislation Amendment and Repeal (International Trade Modernisation) Bill 2001
Schedule 2 Penalties

   

Customs Act 1901

1A  Paragraph 234(1)(g)

Repeal the paragraph.

1B  Paragraph 234(2)(c)

Omit “$5,000”, substitute “100 penalty units”.

1C  Paragraph 234(2)(d)

Repeal the paragraph, substitute:

                     (d)  in the case of an offence against paragraph (1)(h), by a penalty not exceeding 10 penalty units.

1  Subsection 234(2A)

Omit “subsection 119D(3)”, substitute “section 119D”.

2  Subsection 234(4) (second occurring)

Renumber as subsection 234(4A).

3  Paragraph 234(8)(a)

After “71A”, insert “or 71DB”.

4  Division 4 of Part XIII (heading)

Repeal the heading, substitute:

Division 4 Provisions relating to certain strict liability offences

5  Sections 243T, 243U and 243V

Repeal the sections, substitute:

243SA   Failure to answer questions

             (1)  A person must not fail to answer a question that an officer, pursuant to a power conferred on the officer by this Act, requires the person to answer.

Penalty:  30 penalty units.

             (2)  An offence for a contravention of subsection (1) is an offence of strict liability.

243SB   Failure to produce documents or records

             (1)  A person must not fail to produce a document or record that an officer, pursuant to a power conferred on the officer by this Act other than a power conferred by section 71DA, 71DL, 114A or 118, requires the person to produce.

Penalty:  30 penalty units.

             (2)  An offence for a contravention of subsection (1) is an offence of strict liability.

243SC   Preservation of the privilege against self-incrimination

             (1)  Subject to subsection (2), a person who would, apart from this subsection, be required to:

                     (a)  answer a question under section 243SA; or

                     (b)  produce a document or record under section 243SB;

need not comply with the requirement if so complying would:

                     (c)  tend to incriminate the person; or

                     (d)  result in further attempts to obtain evidence that would tend to incriminate the person.

             (2)  Subsection (1) does not apply, and the person must comply with the requirement, if the person has waived his or her rights under that subsection.

243T   False or misleading statements resulting in loss of duty

             (1)  If:

                     (a)  a person:

                              (i)  makes to an officer a statement (other than a statement in a cargo report or an outturn report), in respect of particular goods, that is false or misleading in a material particular; or

                             (ii)  omits from a statement (other than a statement in a cargo report or an outturn report), in respect of particular goods, made to an officer any matter or thing without which the statement is false or misleading in a material particular; and

                     (b)  any of the following applies:

                              (i)  the amount of duty properly payable on the goods exceeds the amount of duty that would have been payable if the amount of duty were determined on the basis that the statement was not false or misleading;

                             (ii)  a refund of duty on the goods was paid that would not have been payable, or that exceeded the amount of the refund of duty that would have been payable, if the amount of the refund were determined on the basis that the statement was not false or misleading;

                            (iii)  a drawback of duty on the goods was paid that would not have been payable, or that exceeded the amount of the drawback of duty that would have been payable, if the amount of the drawback were determined on the basis that the statement was not false or misleading;

the owner of the goods (not being a person who is to be treated as the owner of the goods because that person is an agent of the owner) commits an offence.

             (2)  An offence against subsection (1) is an offence of strict liability.

             (3)  The penalty for a conviction for an offence against subsection (1) is an amount not exceeding:

                     (a)  if subparagraph (1)(b)(i) applies—the amount of the excess; or

                     (b)  if subparagraph (1)(b)(ii) applies—the refund that would not have been payable, or the amount of the excess, as the case may be; or

                     (c)  if subparagraph (1)(b)(iii) applies—the drawback that would not have been payable, or the amount of the excess, as the case may be.

             (4)  Subsection (1) does not apply to a statement made by a person to an officer if:

                     (a)  the person gives notice in writing to the officer, or to another officer doing duty in relation to the matter to which the statement relates, stating that the statement is false or misleading in a material particular or is false or misleading because of the omission of a matter or thing; and

                     (b)  no notice under section 214AD was given to the person after the statement was made and before the notice under paragraph (a) of this subsection was given.

             (5)  Subsection (1) does not apply to a statement made by a person to an officer if:

                     (a)  the statement specifies that the person is uncertain about information included in the statement, and considers that, as a result of including that information, the statement might be false or misleading in a material particular; and

                     (b)  the statement identifies the information whose inclusion might make the statement false or misleading in a material particular; and

                     (c)  the statement sets out the reasons why the person is uncertain about the identified information.

             (6)  Subsection (1) does not apply to a statement made by a person to an officer if:

                     (a)  the statement specifies that the person is uncertain whether, as a result of omitting information from the statement, the statement might be false or misleading in a material particular; and

                     (b)  the statement identifies the omission of information that might make the statement false or misleading in a material particular; and

                     (c)  the statement sets out the reasons for the person’s uncertainty about the effect of omitting the information.

243U   False or misleading statements not resulting in loss of duty

             (1)  A person commits an offence if:

                     (a)  the person:

                              (i)  makes to an officer a statement (other than a statement in a cargo report or an outturn report) that is false or misleading in a material particular; or

                             (ii)  omits from a statement (other than a statement in a cargo report or an outturn report) made to an officer any matter or thing without which the statement is false or misleading in a material particular; and

                     (b)  none of the following applies:

                              (i)  the amount of duty properly payable on particular goods exceeds the amount of duty that would have been payable if the amount of duty were determined on the basis that the statement was not false or misleading;

                             (ii)  a refund of duty on particular goods was paid that would not have been payable, or that exceeded the amount of the refund of duty that would have been payable, if the amount of the refund were determined on the basis that the statement was not false or misleading;

                            (iii)  a drawback of duty on particular goods was paid that would not have been payable, or that exceeded the amount of the drawback of duty that would have been payable, if the amount of the drawback were determined on the basis that the statement was not false or misleading.

             (2)  An offence against subsection (1) is an offence of strict liability.

             (3)  The penalty for a conviction for an offence against subsection (1) is an amount not exceeding 50 penalty units for each statement that is found by the court to be false or misleading.

             (4)  Subsection (1) does not apply to a statement made by a person to an officer if:

                     (a)  the person gives notice in writing to the officer, or to another officer doing duty in relation to the matter to which the statement relates, stating that the statement is false or misleading in a material particular or is false or misleading because of the omission of a matter or thing; and

                     (b)  no notice under section 214AD was given to the person after the statement was made and before the notice under paragraph (a) of this subsection was given.

             (5)  In this section:

statement does not include:

                     (a)  a statement made under Part XVA or XVB; or

                     (b)  a statement that a person who is or was a passenger on, or a member of the crew of, a ship or aircraft made in relation to his or her accompanied personal or household effects that were carried on the ship or aircraft.

243V   False or misleading statements in cargo reports or outturn reports

             (1)  A person commits an offence if the person:

                     (a)  makes to an officer a statement, in a cargo report or an outturn report, that is false or misleading in a material particular; or

                     (b)  omits from a statement, in a cargo report or an outturn report, made to an officer any matter or thing without which the statement is false or misleading in a material particular.

             (2)  An offence against subsection (1) is an offence of strict liability.

             (3)  The penalty for a conviction for an offence against subsection (1) is an amount not exceeding 50 penalty units.

243W   Electronic communications to Customs to be treated as statements to CEO

                   For the purposes of this Division, any electronic communication to Customs is taken to be a statement made to the CEO.

5A  Saving

Despite the repeal by item 5 of sections 243T, 243U and 243V of the Customs Act 1901 , those sections continue to apply in respect of statements made before the repeal.

6  At the end of Part XIII

Add:

Division 5 Penalties in lieu of prosecution for certain offences

243X   Application of Division

             (1)  This Division applies to an offence against, or an offence for a contravention of, subsection 33(2), (3) or (6), 64(13), 64AA(10), 64AAA(9), 64AAB(7), 64AAC(6), 64AB(10), 64ABAA(9), 71G(1), 74(6), 99(2) or (3), 102A(4), 113(1), 114B(7), 114D(1), 114E(1), 114F(2), 115(1), 116(2), 117AA(1), (2), (3) or (4), 117A(1), 118(1), 119(3), 126E(3), 126F(3), 243SA(1), 243SB(1), 243T(1), 243U(1) or 243V(1).

             (2)  A reference in subsection (1) to a subsection of a section of this Act is a reference to:

                     (a)  the subsection as inserted or substituted by the Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001 ; or

                     (b)  if the subsection so inserted or substituted is amended or replaced by a later Act—the subsection as so amended or replaced.

243Y   When an infringement notice can be served

             (1)  If the CEO has reasonable grounds to believe that a person has committed an offence, the CEO may cause an infringement notice to be served on the person in accordance with this Division.

             (2)  Subject to subsection (3), an infringement notice does not have any effect unless it is served within one year after the day on which the offence is alleged to have been committed.

             (3)  An infringement notice for an offence against subsection 243T(1) or 243U(1) that was detected as a result of the exercise of monitoring powers does not have any effect unless it is served within:

                     (a)  4 years after the day on which the false or misleading statement was made; or

                     (b)  one year after the day on which the offence was detected;

whichever period ends first.

243Z   Matters to be included in an infringement notice

             (1)  An infringement notice must:

                     (a)  state the name of the person on whom it is to be served; and

                     (b)  state that it is being served on behalf of the CEO; and

                     (c)  state:

                              (i)  the nature of the alleged offence; and

                             (ii)  the time (if known) and date on which, and the place at which, the offence is alleged to have been committed; and

                            (iii)  the maximum penalty that a court could impose for the alleged offence; and

                     (d)  if the alleged offence is an offence against section 243T and there is still any unpaid duty or any unrepaid refund or drawback of duty—state that the obligation to pay the duty or repay the refund or drawback continues despite the service of the infringement notice; and

                     (e)  specify a penalty that is payable under the notice in respect of the alleged offence; and

                      (f)  state that, if the person on whom the notice is served:

                              (i)  does not wish the matter to be dealt with by a court; and

                             (ii)  in the case of an alleged offence against section 243T—has paid any unpaid duty or any unrepaid refund or drawback of duty within the period of 28 days after the date of service of the notice;

                            the person may pay to the CEO, within the period of 28 days after the date of service of the notice, the amount of the penalty specified in the notice; and

                     (g)  state that the person may make written representations to the CEO seeking the withdrawal of the notice.

Note:          The CEO has power to extend periods stated in notices given under paragraph (1)(f) (see section 243ZE).

             (2)  If:

                     (a)  an infringement notice is served on a person in accordance with this Division in respect of an alleged offence for a contravention of subsection 243T(1) in respect of goods; and

                     (b)  the person applies under subsection 273GA(2) for review of the decision as to the amount of duty payable on the goods;

the period beginning on the making of the application and ending on the final determination of the amount of duty by a tribunal, or by a court on appeal from a tribunal, is not to be taken into account in working out the period of 28 days referred to in paragraph (1)(f).

             (3)  An infringement notice may contain any other matters that the CEO considers necessary.

             (4)  The penalty to be specified in an infringement notice under paragraph (1)(e) is:

                     (a)  if the infringement notice is given in respect of an alleged offence under subsection 243U(1)—the lesser of the following amounts:

                              (i)  10 penalty units;

                             (ii)  1 / 2 penalty unit for each material particular that is alleged to be false or misleading or each matter or thing that is alleged to have been omitted, as the case may be; or

                     (b)  otherwise—one-fifth of the maximum amount of the penalty that a court could impose for the offence.

243ZA   Withdrawal of infringement notice

             (1)  A person on whom an infringement notice has been served may make written representations to the CEO seeking the withdrawal of the notice.

             (2)  The CEO may withdraw an infringement notice served on a person (whether or not the person has made representations seeking the withdrawal) by causing written notice of the withdrawal to be served on the person within the period within which the penalty specified in the infringement notice is required to be paid.

             (3)  The matters to which the CEO may have regard in deciding whether or not to withdraw an infringement notice include, but are not limited to, the following:

                     (a)  whether the person has previously been convicted of an offence for a contravention of this Act;

                     (b)  the circumstances in which the offence specified in the notice is alleged to have been committed;

                     (c)  whether the person has previously been served with an infringement notice in respect of which the person paid the penalty specified in the notice;

                     (d)  any written representations made by the person.

             (4)  If:

                     (a)  the person pays the penalty specified in the infringement notice within the period within which the penalty is required to be paid; and

                     (b)  the notice is withdrawn after the person pays the penalty;

the CEO must refund to the person, out of money appropriated by the Parliament, an amount equal to the amount paid.

243ZB   What happens if unpaid duty or unrepaid refund or drawback and penalty are paid

             (1)  This section applies if:

                     (a)  an infringement notice is served on a person; and

                     (b)  the person pays the penalty specified in the notice before the end of the period referred to in paragraph 243Z(1)(f); and

                     (c)  where the alleged offence is an offence against section 243T—the person pays any unpaid duty, or any unrepaid refund or drawback, before the end of that period; and

                     (d)  the infringement notice is not withdrawn.

             (2)  Any liability of the person for the offence specified in the notice is taken to be discharged.

             (3)  Further proceedings cannot be taken against the person for the offence.

             (4)  The person is not regarded as having been convicted of the offence.

243ZC   More than one infringement notice may not be served for the same offence

                   This Division does not permit the service of more than one infringement notice on a person for the same offence.

243ZD   Infringement notice not required to be served

                   This Division does not:

                     (a)  require an infringement notice to be served on a person in relation to an offence; or

                     (b)  affect the liability of a person to be prosecuted for an offence if:

                              (i)  an infringement notice is not served on the person in relation to the offence; or

                             (ii)  an infringement notice served on the person in relation to the offence has been withdrawn; or

                     (c)  affect the liability of a person to be prosecuted for an offence if the person does not comply with an infringement notice served on the person in relation to the offence; or

                     (d)  limit the amount of the penalty that may be imposed by a court on a person convicted of an offence.

243ZE   CEO may extend period for payment of penalty

             (1)  The CEO may, by writing, extend, in relation to a particular person, the period referred to in paragraph 243Z(1)(f).

             (2)  The power of the CEO under subsection (1) to extend the period may be exercised before or after the end of the period.

             (3)  If the CEO extends a period under subsection (1), a reference in this Division, or in a notice or other instrument under this Division, to the period is taken, in relation to the person, to be a reference to the period as so extended.

7  Paragraph 273GA(1)(ka)

Repeal the paragraph.