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Customs Amendment Bill 2014

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2014

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

CUSTOMS AMENDMENT BILL 2014

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by authority of the Minister for Immigration and Border Protection,

the Honourable Scott Morrison MP)



CUSTOMS AMENDMENT BILL 2014

OUTLINE

1.                 The purpose of this Bill is to make a number of technical amendments to the Customs Act 1901 (the Act) to:

(a)   Allow class based authorisations to include future offices or positions that come into existence after the authorisation is given;

(b)   Extend Customs controls to those places at which ships and aircraft arrive in Australia in accordance with section 58 of the Act;

(c)   Provide greater flexibility in relation to the reporting of the arrival of ships and aircraft in Australia and reporting of stores and prohibited goods on such ships and aircraft;

(d)   Improve the application processes for several permissions under the Act.  These amendments will also support initiatives to enable online applications for these permissions;

(e)   Extend Customs powers of examination to the baggage of domestic passengers on international flights and voyages, and to domestic cargo that is carried on an international flight or voyage; and

(f)    Enhance the interaction of the infringement notice scheme with the claims process under the Act in relation to prohibited imports.

2.                 A reference to ‘Customs’ in this Explanatory Memorandum means the agency continued in existence under subsection 4(1) of the Customs Administration Act 1985 , that is the Australian Customs and Border Protection Service.

FINANCIAL IMPACT STATEMENT

3.                 The Bill has no financial impact.



Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

CUSTOMS AMENDMENT BILL 2014

 

 

The Customs Amendment Bill 2014 (the Bill) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

 

The Bill will make a number of technical amendments to the Customs Act 1901 (the Act) to:

 

·          Allow class based authorisations to include future offices or positions that come into existence after the authorisation is given;

 

·          Extend Customs controls to those places at which ships and aircraft arrive in Australia in accordance with section 58 of the Act;

 

·          Provide greater flexibility in relation to the reporting of the arrival of ships and aircraft in Australia and reporting of stores and prohibited goods on such ships and aircraft;

 

·          Improve the application processes for several permissions under the Act.  These amendments will also support initiatives to enable online applications for these permissions;

 

·          Extend Customs powers of examination to the baggage of domestic passengers on international flights and voyages, and to domestic cargo that is carried on an international flight or voyage; and

 

·          Enhance the interaction of the infringement notice scheme with the claims process under the Act in relation to prohibited imports.

 

Human rights implications

 

The Bill engages the right to the presumption of innocence and the right to protection against arbitrary and unlawful interference with privacy.

 

Presumption of Innocence

 

Article 14.2 of the International Covenant on Civil and Political Rights (ICCPR) provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.  It imposes on the prosecution the burden of proving a criminal charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. 

 

Under international law the term ‘criminal offence’ includes not only offences or penalties that are classified as a criminal offence under national law, but also other forms of penalties that may be designated as civil penalties under domestic law.  The approach under international and comparative human rights law is to consider the substance and effect of the proceedings, rather than the ‘label’ itself. 

 

The Bill engages the right to the presumption of innocence as it introduces a new strict liability offence in subsection 127(9) of the Act. 

 

Importantly, a strict liability offence will not violate the presumption of innocence if it pursues a legitimate aim and is reasonable, necessary and proportionate to that aim. 

 

Part VII of the Act contains provisions relating to ships’ and aircraft’s stores.  These stores are defined as goods that are for the use of the passengers and crew of a ship or aircraft that is on an international voyage or flight.

 

Pursuant to subsection 127(1) of the Act it is an offence of strict liability, punishable by 60 penalty units, to unship, unload or use ships’ stores or aircraft stores before the departure of the ship or aircraft from its last port of departure in Australia (otherwise than for the use of passengers or crew, or for the service, of the ship or aircraft) unless a Collector has consented to the unshipping, unloading or use. 

 

The Bill amends section 127 of the Act to change the reference from ‘consent’ to ‘approval’ and specifies how and in what form an application for approval should be made.  It also allows a Collector to impose conditions on an approval if the Collector considers it necessary for the protection of the revenue of Customs or for the purpose of ensuring compliance with the Customs Acts. 

 

The new offence in subsection 127(9) aims to stop people breaching conditions of an approval which are imposed for the protection of the revenue of Customs or for the purpose of ensuring compliance with Customs Acts.  Not having to prove fault elements in these circumstances aims to provide a deterrent for those seeking to engage in conduct that undermines the integrity of the Australian border and the collection of revenue.  Consistent with the offence in subsection 127(1) and other strict liability offences in Part VII of the Act, this offence will attract a penalty of 60 penalty units. 

 

The strict liability nature of this offence is reasonable and proportionate to achieving its aim as it is regulatory in nature.  The standard of proof for all Customs prosecutions under the Customs Act is a criminal standard, that is, beyond reasonable doubt.  Therefore, it remains incumbent on the prosecution to prove the physical elements of an offence (including strict liability offences) beyond a reasonable doubt.  In addition, defences under the Criminal Code Act 1995, such as honest and reasonable mistake of fact, are available to persons alleged to have committed a strict liability offence. 

 

Conclusion

 

For these reasons, this measure is compatible with the presumption of innocence set out in Article 14.2 of the ICCPR as it maintains all existing protections contained in Australian law and is reasonable, necessary and proportionate in achieving its intended aim.

 

The right to protection against arbitrary and unlawful interference with privacy

 

Article 17 of the ICCPR accords everyone the right to protection against arbitrary or unlawful interference with their privacy, family, home or correspondence.  Accordingly, interferences with the right to privacy will be permitted provided they are not arbitrary and are authorised by law.  In order for an interference with the right to privacy not to be ‘arbitrary’, the interference must be for a reason consistent with the ICCPR and be reasonable in the particular circumstances.  Reasonableness in this context incorporates notions of proportionality, appropriateness and necessity.  In essence, this will require that:

 

  • limitations serve a legitimate objective;

 

  • limitations adopt a means that is rationally connected to that objective; and

 

  • the means adopted are not more restrictive than they need to be to achieve that objective.

 

The examination of domestic goods (domestic cargo or personal effects/baggage of domestic travellers), including the potential examination of documents, engages the right to privacy contained in Article 17 of the ICCPR.

 

The amendment only gives examination powers for personal effects/baggage of domestic travellers and domestic cargo on a domestic leg of an international voyage or flight.  This is consistent with the potential border risks of intermingling of domestic cargo and imported or exported goods, and international and domestic travellers during embarkation or disembarkation processing, on the aircraft or ship and in-transit lounges.  No other domestic goods are affected.

 

In the exercise of the power to examine goods, an officer may do, or arrange for another officer or other person having the necessary experience to do, whatever is reasonably necessary to permit the examination of the goods.  Examples of what may be done to permit the examination of goods include (but are not limited to) the following:

 

·          opening any package in which goods are or may be contained;

·          using a device, such as an X-ray machine or ion scanning equipment, on the goods;

·          testing or analysing the goods;

·          measuring or counting the goods;

·          if the goods are a document - reading the document either directly or with the use of an electronic device;

·          using dogs to assist in examining the goods.

 

The examination of domestic goods will be conducted in line with existing procedures for the general powers of examination of goods under section 186 of the Act. The powers will only be used where assessed as necessary to mitigate border risks.

 

In relation to the potential examination of documents, the collection of personal information is protected under Australian law and this measure does not seek to affect or disapply any of the existing protections. 

 

Conclusion

This measure is compatible with human rights as, although it engages the right to privacy, the instrument maintains all existing protections contained in Australian law and does not seek to limit the right to privacy in any way.

 



CUSTOMS AMENDMENT BILL 2014

NOTES ON CLAUSES

Clause 1 - Short title

1.                 This clause provides for the Bill, when enacted, to be cited as the Customs Amendment Act 2014 .

Clause 2 - Commencement

2.                 This clause provides that the Act commences on the day after this Act receives the Royal Assent.

Clause 3 - Schedule(s)

3.                 This clause is the formal enabling provision for the Schedule to the Bill, providing that each Act specified in a Schedule is amended or repealed in accordance with the applicable items of the Schedule.  This Bill amends the Act.

4.                 The clause also provides that the other items of the Schedule have effect according to their terms.  This is a standard enabling clause for transitional, savings and application items in amending legislation. 



Schedule 1 - amendments

Customs Act 1901

Items 1 and 4 - Subsection 4(1) (at the end of the definition of authorised officer )

Background

5.                 The Chief Executive Officer of Customs (the CEO) can delegate any of his functions or powers under the Act to an officer of Customs or authorise an officer of Customs to be an authorised officer for the purposes of particular provisions in the Act. 

6.                 Currently, the CEO delegates his powers and functions under the Act to individuals (by name or position number) or to a class of offices or positions.  This is a settled position at law supported by section 34AA of the Acts Interpretation Act 1901 (AIA).  In effect, section 34AA of the AIA provides that a delegation:

(a)     may be made to an individual person or position or to a class of offices or positions; and

(b)     will apply to future offices or positions even if they do not come into existence until after the delegation is given.

7.                 There is no similar legislative provision in the AIA for statutory authorisations.

8.                 Therefore, while the CEO can currently authorise an individual (by name or position number) or a class of offices or positions to be an authorised officer for the purposes of particular provisions in the Act, unlike delegations, the law remains unsettled as to whether an authorisation will apply to future offices or positions within an authorised class that come into existence after the authorisation is given.

9.                 In the absence of legislative clarification (similar to that provided in section 34AA of the AIA for delegations), the Australian Customs and Border Protection Service (ACBPS) have treated class based authorisations as if they only apply to positions which are in existence and fall within the specified class at the time the instrument is made.  

10.              It is proposed to amend the definition of authorised officer in the Act so that authorisations can apply to offices or positions which come into existence after the authorisation to a class of offices is given.  This will preclude the need to update authorisation instruments on a regular basis to ensure that new offices are covered.

11.              Item 1 inserts a note at the end of the definition of authorised officer in subsection 4(1) of the Act to see subsection 4(1A).

12.              Item 4 amends the Act to insert a new subsection 4(1A) after subsection 4(1).  This new subsection provides that if the CEO gives an authorisation under the definition of authorised officer in subsection 4(1) and the authorisation is for officers of Customs from time to time holding, occupying or performing the duties of specified offices or positions to exercise the powers to perform the functions of an authorised officer under specified sections of the Act, then the authorisation will extend to such an office or position that comes into existence after the authorisation is given.

13.              This will provide the ACBPS with legislative clarification on the extent of statutory authorisations made under the Act, similar to that provided in section 34AA of the AIA for delegations.

Items 2, 3, 5, 25 and 26 - Goods on ships and aircraft subject to Customs control and amending the definitions of “designated place” and “Customs place”

Background

14.              Section 31 of the Act provides that all goods on board any ship or aircraft from a place outside Australia are subject to Customs control while the ship or aircraft is within the limits of any port or airport in Australia.  Under section 186 of the Act, all goods that are subject to Customs control may be examined by an officer of Customs. 

15.              Currently the Act does not extend Customs control to goods which are on board a ship or aircraft at a place other than a port or airport in Australia to which:

(a)   a ship or aircraft has been brought because of stress of weather or other reasonable cause under subsection 58(1) of the Act; or

(b)   the master of a ship or the pilot of an aircraft has received permission from a Collector to bring the ship or aircraft under subsection 58(2) of the Act.

16.              As a result, goods on board a ship or aircraft in these circumstances are not currently subject to Customs control and cannot, therefore, be examined by an officer of Customs under section 186. 

17.              Goods on board a ship or aircraft brought to a place other than a port or airport in Australia pose the same border risks as goods on board a ship or aircraft within the limits of any port or airport in Australia. 

18.              To ensure that border risks and intervention activities can be managed appropriately, it is proposed that Customs control be extended to goods on board a ship or aircraft at a place to which a ship or aircraft has been brought under subsections 58(1) or 58(2) of the Act. 

19.              Therefore, Item 5 repeals and substitutes section 31 of the Act to ensure that all goods on board a ship or aircraft from a place outside Australia are subject to Customs control while the ship or aircraft is:

(a)   within the limits of any port or airport in Australia; or

(b)   at a place to which a ship or aircraft has been brought because of stress of weather or other reasonable cause as mentioned in subsection 58(1); or

(c)   at a place that is the subject of a permission under subsection 58(2).

20.              To provide equivalence of search and examination powers under the Act, item 2 amends the definition of designated place under subsection 4(1) to insert a new paragraph (aa).  This new paragraph (aa) extends the definition of designated place to include a place where a ship or aircraft has been brought under stress of weather or other reasonable cause under subsection 58(1), while that ship or aircraft remains at that place.  A designated place is a place in which certain seizure, detention and personal search powers can be exercised under the Act. 

21.              Paragraph (f) in the definition of designated place includes a section 234AA place that is not a place, or part of a place, referred to in paragraph (a), (b), (c), (d) or (e).  Item 3 will extend the operation of paragraph (f) to include a reference to new paragraph (aa) mentioned above.

22.              Similar to item 2, to provide equivalence of search and examination powers under the Act, item 25 amends the definition Customs place under subsection 183UA(1) to include a place where a ship or aircraft has been brought under stress of weather or other reasonable cause under subsection 58(1), while that ship or aircraft remains at that place.  A Customs place is a place in which certain powers relating to the seizure, movement, examination and disposal of goods can be exercised under the Act. 

23.              Paragraph (i) in the definition of Customs place includes a section 234AA place that is not a place, or part of a place, referred to in paragraph (aa), (a), (b), (c), (d), (g) or (h).  Item 26 will extend the operation of paragraph (i) to include a reference to new paragraph (aaa) mentioned above.

24.              The definitions of designated place and Customs place already include a place that is the subject of a permission under subsection 58(2) of the Act.

Items 6 - 11 - Arrival reports and reports of stores and prohibited goods

Background

25.              Ships and aircraft that arrive in Australia from a place outside Australia must report particulars of their arrival to Customs under section 64AA of the Act.  In the case of a ship, this report must be made before the end of 24 hours (disregarding Saturdays, Sundays and holidays) after the ship’s arrival or before the issue of a Certificate of Clearance in respect of the ship and the port - whichever happens first.  In the case of an aircraft, the report must be made before the end of 3 hours after the aircraft’s arrival or before the issue of a Certificate of Clearance in respect of the aircraft and the airport - whichever happens first.

26.              Pursuant to section 64AAA of the Act, when a ship or aircraft has arrived at a port or airport in Australia, the operator must report to Customs particulars of the ship’s stores or aircraft’s stores and any prohibited goods contained in those stores at the time of arrival.

27.              Similar to the arrival report mentioned above, the stores and prohibited goods report  in relation to a ship, must be made before the end of 24 hours (disregarding Saturdays, Sundays and holidays) after the ship’s arrival or before the issue of a Certificate of Clearance in respect of the ship and the port - whichever happens first.  In relation to an aircraft, the report must be made before the end of 3 hours after the aircraft’s arrival or before the issue of a Certificate of Clearance in respect of the aircraft and the airport - whichever happens first.

28.              The current reporting timeframes in sections 64AA and 64AAA can pose difficulties for the processing of certain ships (including pleasure craft) and certain aircraft if the particulars of the arrival or stores and prohibited goods is not known or cannot be assessed by ACBPS efficiently. 

29.              In most instances the ACBPS conducts physical boarding and intervention activities of ships and aircraft at the time of arrival at the first port or airport in Australia.  However in some circumstances, it would be beneficial for ACBPS to be notified of particulars of the stores and prohibited goods including firearms, weapons and narcotics, before the arrival of the ship or aircraft. 

30.              As a result, items 6 - 11 propose amendments to sections 64AA and 64AAA of the Act by inserting additional provisions which allow the CEO to specify by way of legislative instrument, when a report must be made for certain ships or certain aircraft in certain circumstances before a specified time or before the occurrence of a specified event.  Such reports must be made in accordance with the legislative instrument, or if there is no legislative instrument, then as otherwise provided in sections 64AA and 64AAA.

31.              These amendments will enable ACBPS to specify different reporting timeframes for different circumstances. In particular, these amendments will ensure that ACBPS are notified of the arrival, stores and prohibited goods for certain ships or certain aircraft in certain circumstances at a more appropriate time and enable ACBPS to adequately assess risk and deploy necessary resources for boarding and intervention activities. 

Item 12 - 16 - Certificates of Clearance

Background

32.              Section 118 of the Act provides that the master of a ship or the pilot of an aircraft must not depart with the ship or aircraft from Australia without receiving from the Collector a Certificate of Clearance in respect of the ship or aircraft.  Subsection 118(2) provides that the master of a ship or the pilot of an aircraft may apply to the Collector for a Certificate of Clearance in respect of the ship or aircraft, and subsection 118(3) requires the application must be in writing and must contain such information as is prescribed in the regulations.  These requirements are set out in regulation 98D of the Customs Regulations 1926 , however this method of prescribing particulars is inconsistent with other application and reporting requirements under the Act, where details are set out in an approved form.

33.              As a result, items 12 - 16 propose to amend section 118 to:

(a)   remove the requirement for the regulations to prescribe particulars for an application for the Certificate of Clearance;

(b)   require applications to be made in writing, in an approved form, contain such information as the form requires and be signed in the manner indicated in the form; and

(c)   allow the CEO to approve different forms for applications to be made in different circumstances, by different kinds of master or owners of ships or pilots or owners of aircraft, or in respect of different kinds of ships or aircraft.

34.              These amendments will standardise the application processes in the Act by requiring applications for Certificates of Clearance to be in an approved form.  This supports ACBPS’ initiatives to streamline processes and eventually allow applicants to apply for these certificates online. 

Items 17 - 21 - Ships’ and Aircraft’s Stores

Background

35.              Part VII of the Act contains provisions in relation to dealing with ships’ and aircraft’s stores.  These stores are defined as goods that are for the use of the passengers and crew of a ship or aircraft that is on an international voyage or flight. 

36.              Pursuant to section 127 of the Act, consent must be sought from a Collector before goods can be unshipped, unloaded or used before the departure of the ship or aircraft from its last port of departure in Australia (otherwise than for the use of passengers or crew, or for the service, of the ship or aircraft). 

37.              While this section requires consent, it does not specify how and in what form an application for consent should be made, or whether the consent can be subject to conditions (if necessary) or consequences for failing to comply any such conditions. 

38.              To keep the terminology consistent with section 129, items 17 and 19 make minor amendments to subsection 127(3) and section 128 by substituting references of ‘consented to’ and ‘consent’ with ‘approved’ and ‘approval’ respectively.

39.              In addition, item 18 proposes to amend section 127 to:

(a)   provide that an approval under subsection 127(3) may be granted only on application by the master or owner of a ship or the pilot or owner of an aircraft in respect of the ship or aircraft;

(b)   require applications to be made in writing, in an approved form, contain such information as the form requires and be signed in the manner indicated in the form; 

(c)   allow the CEO to approve different forms for applications to be made in different circumstances, by different kinds of master or owners of ships or pilots or owners of aircraft, or in respect of different kinds of ships or aircraft;

(d)   allow Collectors to impose conditions on the approval which, in the opinion of the Collector, are necessary for the protection of the revenue of the Customs or for the purpose of ensuring compliance with the Customs Act; and

(e)   make it a strict liability offence punishable by 60 penalty units if a person is the holder of an approval and breaches a condition of the approval through act or omission. 

40.              In developing this offence, consideration was given to both the Senate Standing Committee for the Scrutiny of Bills Sixth Report of 2002 on Application of Absolute and Strict Liability Offences in Commonwealth Legislation and the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.

41.              Section 129 of the Act provides that ships’ or aircraft’s stores are not to be taken on board a ship or aircraft without the approval of a Collector.  While this section states that the master or owner of a ship or the pilot or owner of an aircraft may make application to a Collector for approval to take the stores on board, similar to section 127, there are no provisions dealing with how to apply for such approval.

42.              As a result, items 20 and 21 amend section 129 to:

(a)   require applications to be made in writing, in an approved form, contain such information as the form requires and be signed in the manner indicated in the form; and

(b)   allow the CEO to approve different forms for applications to be made in different circumstances, by different kinds of master or owners of ships or pilots or owners of aircraft, or in respect of different kinds of ships or aircraft.

43.              These amendments will standardise the application processes in the Act by requiring applications for these approvals to be in an approved form.  This supports ACBPS’ initiatives to streamline processes and eventually allow applicants to apply for these approvals online. 

Items 22 - 24 - Transfer of goods between certain vessels

Background

44.              Section 175 of the Act sets out restrictions on the transfer of goods between coastal ships and aircraft and ships and aircraft that are either on international voyages or flights or voyages or flights between places outside Australia.  However, these restrictions do not apply if a Collector has given permission to the owner or master of a coastal ship or the owner or pilot of a coastal aircraft (as the case requires) to the transfer of goods.

45.              Similar to section 127 mentioned above, section 175 does not contain any provisions dealing with how to apply for such permission or what form it must take.

46.              As a result, items 22 - 24 propose to amend section 175 to:

(a)   provide that a permission under subsection 175(3C) may be given only on application by the owner or master of a coastal ship or the owner or pilot of a coastal aircraft in respect of the ship or aircraft;

(b)   require applications to be made in writing, in an approved form, contain such information as the form requires and be signed in the manner indicated in the form; and

(c)   allow the CEO to approve different forms for applications to be made in different circumstances, by different kinds of owners or masters of coastal ships or owners or pilots of coastal aircraft, or in respect of different kinds of coastal ships or coastal aircraft.

47.              These amendments will standardise the application processes in the Act by requiring applications for these permissions to be in an approved form.  This supports ACBPS’ initiatives to streamline processes and eventually allow applicants to apply for these permissions online. 

Item 27 - After section 186

Background

48.              Domestic cargo, and domestic travellers and their personal effects, are carried on domestic legs of international flights or voyages between Australian ports or airports other than proclaimed ports or airports by approved ships or aircraft.  Domestic travellers on international flights or voyages access the Customs controlled areas of ports or airports and mix with international travellers prior to, during and after the domestic leg of the flight or voyage.

49.              Domestic cargo can currently be loaded and unloaded from a ship or aircraft on a domestic leg of an international voyage or flight without any authority or permission under the Act. 

50.              Section 30 of the Act describes goods subject to the control of Customs.  Currently, it does not extend Customs control to domestic goods which include domestic cargo or personal effects of domestic travellers, once they are loaded onto or unloaded from the international ship or aircraft. 

51.              Section 186 of the Act describes the general powers of examination of goods, but provides only for the examination of goods which are subject to the control of Customs.  It follows that, except in very limited circumstances, section 186 of the Act does not adequately provide for the examination of domestic goods on domestic legs of international flights and voyages. 

52.              The mixing of domestic goods and imported goods or goods for export presents risks for diversion of goods from one stream to the other, especially if goods are of a kind that if imported or exported would be prohibited or subject to border related duties and taxes.

53.              It is therefore proposed that the Act be amended to provide that domestic goods (which may be either domestic cargo carried on domestic legs of international flights or voyages or personal effects of domestic travellers on international flights or voyages) can be examined by an officer of Customs.

54.              Item 27 amends the Act by inserting new section 186AA after section 186.

55.              New subsection 186AA(1) provides that new section 186AA applies to a ship or aircraft in respect of a voyage or flight to a place in Australia from a place outside Australia, and to a ship or aircraft in respect of a voyage or flight to a place outside Australia from a place in Australia.  Therefore, this new section applies only in respect of international voyages and flights, and not purely domestic voyages and flights.

56.              New subsection 186AA(2) sets out one of the new examination powers in relation to domestic goods. This new power will apply in relation to goods to be loaded onto a ship or aircraft, where an officer of Customs has reason to believe that goods are to be loaded onto a ship or aircraft at an examinable place and the goods are to be unloaded at another examinable place on the same international voyage or flight.  For example, this new power would apply where an aircraft lands in Cairns on a flight from Tokyo which is due to finish in Sydney and takes on passengers and their luggage in Cairns for the domestic leg from Cairns to Sydney. 

57.              Under this new power, an officer of Customs can examine goods while the goods are at the examinable place and such goods will be subject to the control of Customs while they are being so examined.

58.              New subsection 186AA(8) defines examinable place for the purposes of new section 186AA to mean the following:

(a)   a port or airport in Australia (whether the first port or airport or any subsequent port or airport on the same voyage or flight);

(b)   a place to which a ship or aircraft has been brought because of stress of weather or other reasonable cause as mentioned in subsection 58(1);

(c)   a place that is the subject of a permission under subsection 58(2).

59.              New subsection 186AA(3) sets out the second new examination power in relation to domestic goods.  This new power will apply in relation to goods that have been unloaded from a ship or aircraft .  This new power applies where goods have been loaded on a ship or aircraft at an examinable place and the goods are unloaded from the ship or aircraft at another examinable place on the same voyage or flight.  In the same scenario as above, the new power would apply where an aircraft lands in Sydney from Tokyo via Cairns and is carrying goods that were loaded in Cairns for the domestic leg from Cairns to Sydney.  

60.              Under this new power, an officer of Customs can examine goods that have been unloaded from a ship or aircraft in the above circumstances.  Similar to above, such goods will also be subject to the control of Customs while they are being so examined.

61.              Under section 33 of the Act, it is an offence to move, alter or interfere with goods that are subject to the control of Customs.

62.              New subsection 186AA(4) sets out a provision similar to existing subsection subsection 186(1) of the Act, which provides that the expense of any examination under the new powers is to be borne by the owner of the goods.  It is expected that this would mainly be applicable in the cargo environment as opposed to the traveller’s environment.

63.              New subsection 186AA(5) sets out a provision similar to existing subsection 186(2), which allows an officer of Customs to do whatever is reasonably necessary to permit the examination of the goods.  The officer can also arrange for another officer of Customs or another person having the necessary experience to do these things.

64.              New subsection 186AA(6) sets out some examples of what may be done in the examination of goods, similar to existing subsection 186(3).

65.              New subsection 186AA(7) provides that section 186AA does not limit the application of any other provision of the Act that provides for goods to be subject to the control of Customs, nor any other provision that provides for the examination of goods.  Therefore, if an officer of Customs discovers imported goods while examining the domestic cargo, the imported goods would actually have been subject to Customs control from the time they were imported and not just while they were being examined.

66.              If the examination of goods under new section 186AA discovers that the goods are purely domestic goods, ACBPS will have no further powers in relation to the goods.  However, if as a consequence of the examination of the goods, a Customs officer detects that a possible offence under Commonwealth, Territory or State laws has been committed, information relating to this potential offence may be disclosed to the relevant Commonwealth or State Government agency for further action in accordance with section 16 of the Customs Administration Act 1985 .

Item 28 - Paragraph 186A(1)(a)

67.              Section 186A of the Act sets out the circumstances in which a document that is examined under section 186 may be copied and the circumstances in which an extract may be taken from such a document, and how such a copy or extract can be made or taken.      

68.              The amendment in item 28 will extend the operation of section 186A to include a document that is examined under new section 186AA.

Items 29 - 41 - Interaction of the new infringement notice scheme with the claims process under the Act

Background

69.              On 1 February 2014, a new Infringement Notice Scheme (the INS) in the Act commenced.   The INS allows for the issuing of an infringement notice in relation to strict or absolute liability offences under the Act which are prescribed in Schedule 1ABA of the Customs Regulations 1926 for the purposes of the INS.  One such offence is importing a prohibited import.

70.              Under the Act, prohibited imports can be seized and if this occurs then the claims process set out in Division 1 of Part XII of the Act is also triggered. 

71.              Since the commencement of the INS, a technical error has been identified in the interaction of the INS with the claims process when dealing with prohibited imports. 

72.              Under the INS subsection 243Y(1) provides that goods will be taken to be condemned as forfeited to the Crown if:

(a)   the goods are prohibited imports of a kind prescribed by a regulation for the purposes of this section. Section 11 of Schedule 1ABA of the Customs Regulations 1926 prescribes the Customs (Prohibited Imports) Regulations 1956 for this purpose;

(b)   a person pays a penalty to the Commonwealth under an infringement notice as an alternative to prosecution for an alleged contravention of paragraph 233(1)(b) (importing prohibited imports); and

(c)   the infringement notice has not been withdrawn.

73.              Under the Act if a seizure notice is served, a person has 30 days in which to make a claim for the return of their goods.  Pursuant to section 205C, if a claim for the return of goods may be made and is not made within 30 days after the day the seizure notice is served, then the goods will be condemned as being forfeited to the Crown. 

74.              However, pursuant to subsection 205B(1A) of the Act, a claim for the return of goods may not be made if goods have been taken to be condemned as forfeited to the Crown under subsection 243Y(1), set out above. 

75.              Therefore, the legal position in relation to goods can become uncertain if:

(a)   a seizure notice and an infringement notice have been issued for a paragraph 233(1)(b) offence (importing prohibited imports); and

(b)   the penalty in the infringement notice has been paid (noting that at this point, the goods are taken to be condemned as being forfeited to the Crown under subsection 243Y(1)); but

(c)   the infringement notice is later withdrawn.

76.              This legal uncertainty arises because:

(a)   prior to the withdrawal of the infringement notice, the goods would be taken to be condemned as forfeited to the Crown under subsection 243Y(1) which prevents a person from making a claim for return of the goods (subsection 205B(1A));

(b)   upon withdrawal of the infringement notice the goods could no longer be taken to be condemned as forfeited to the Crown under subsection 243Y(1); and

(c)   if, by the time the infringement notice is withdrawn a person is out of time to make a claim for the goods, then the goods could not be taken to be condemned under section 205C of the Act because the person would never have been entitled to make a claim for return of the goods.

77.              Therefore, items 29 - 41 amend the Act to:

(a)   clarify that the condemnation of goods under section 243Y will cease to apply if the infringement notice is withdrawn ( items 40 and 41 );

(b)   allow a person up to 30 days after the day notice of the withdrawal of the infringement notice is given to the person to make a claim for return of the goods if:

a.     goods have been seized under seizure warrant or under subsection 203B(2) or (2A), 203C(2), 203CA(3) or 203CB(2);

b.     a seizure notice has been served in relation to the goods;

c.     an infringement notice for an offence in relation to the importation of the goods has been given;

d.     the penalty in the infringement notice is paid within the period or time by which it is required to be paid; and

e.     the infringement notice is withdrawn ( item 35 );

(c)   provide a mechanism for the goods to be condemned as forfeited to the Crown if subsection 205B(1A) has ceased to apply in relation to the goods and no claim is made in accordance with paragraph (b) above ( item 35 );

(d)   provide a mechanism for goods to be dealt with under section 205D if subsection 205B(1A) has ceased to apply in relation to the goods and a claim for return of the goods is made ( items 36 and 37 ); and

(e)   provide a mechanism for compensation under section 205F in certain circumstances if the goods have been disposed of or destroyed.

Item 42 - Application and transitional provisions

78.              This item sets out the application provisions for each of the amendments in this Bill.

79.              The amendment in item 4 (which contains amendments to the definition of ‘authorised officer’) will apply in relation to:

(a)   an authorisation given or made on or after the commencement of that item; and

(b)   an authorisation given before the commencement of that item that was in force immediately before that commencement.

80.              Paragraph 31(b) of the Act, as amended in item 5 of this Bill will apply in relation to a ship or aircraft that is at a place on or after the commencement of this item, whether the ship or aircraft is brought to that place before, on or after that commencement.

81.              Paragraph 31(c) of the Act, as amended in item 5 of this Bill will apply in relation to a ship or aircraft that is at a place on or after the commencement of this item, whether the ship or aircraft is brought to that place, and whether the permission is given, before, on or after that commencement. 

82.              The amendments in items 12 to 16 (which contain amendments to section 118 of the Act) will apply in relation to an application made under subsection 118(2) or (5) of the Act on or after the commencement of those items.

83.              The amendments in items 17 and 18 (which contain amendments to section 127 of the Act) will apply in relation to an approval given under subsection 127(3) of the Act on or after the commencement of those items.

84.              A consent in force under subsection 127(3) of the Act immediately before the commencement of items 17 and 18 has effect on and after that commencement as if it were an approval in force under that subsection.

85.              The amendment in item 21 (which contains amendments to section 129 of the Act) will apply in relation to an application made under subsection 129(1) of the Act on or after the commencement of that item.

86.              The amendment in item 22 (which contains amendments to section 175 of the Act) will apply in relation to a permission given under subsection 175(3C) of the Act on or after the commencement of that item.

87.              The amendment in item 27 (which inserts new section 186AA of the Act) will apply in relation to a voyage or flight that begins on or after the commencement of that item. 

88.              The amendments made by items 29, 33 and 34 (which amend the claims process under sections 205A and 205C of the Act) will apply in relation to a seizure notice served on or after the commencement of those items.

89.              The amendments made by items 30, 31, 37, and 41 (which amend the claims process and infringement notice scheme under sections 205B, 205D and 243Y of the Act) will apply in relation to the withdrawal of an infringement notice on or after the commencement of those items, whether the infringement notice is given before, on or after that commencement.

90.              The amendment in item 35 (which amends 205C of the Act) will apply in relation to the withdrawal of an infringement notice on or after the commencement of that item, whether the infringement notice is given, and whether the seizure notice is served before, on or after that commencement.

91.              The amendment in item 36 (which amends 205D of the Act) will apply in relation to a claim for return of goods that is made on or after the commencement of that item.

92.              The amendment in item 38 (which amends 205F of the Act) will apply in relation to an application under subsection 205F(1) of the Act that is made on or after the commencement of that item.

93.              The amendments in items 39 and 40 (which amend 243Y of the Act) will apply in relation to a penalty that is paid on or after the commencement of those items, whether the infringement notice is given before, on or after that commencement.