Customs Legislation Amendment (Criminal Sanctions and Other Measures) Act 2000
No. 23, 2000
Customs Legislation Amendment (Criminal Sanctions and Other Measures) Act 2000
No. 23, 2000
An Act to amend Customs legislation to provide for special criminal sanctions in respect of the import or export of certain goods, and for other purposes
Contents
1............ Short title............................................................................................ 1
2............ Commencement.................................................................................. 2
3............ Schedule(s).......................................................................................... 2
Schedule 1—Amendment of the Australian Postal Corporation Act 1989 3
Schedule 2—Amendment of the Customs Act 1901 7
Schedule 3—Amendment of the Customs Administration Act 1985 19
Customs Legislation Amendment (Criminal Sanctions and Other Measures) Act 2000
No. 23, 2000
An Act to amend Customs legislation to provide for special criminal sanctions in respect of the import or export of certain goods, and for other purposes
[Assented to 3 April 2000]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Customs Legislation Amendment (Criminal Sanctions and Other Measures) Act 2000.
2 Commencement
(1) Subject to subsections (2) and (3), this Act commences on the day on which it receives the Royal Assent.
(2) Subject to subsection (3), the items of Schedules 1, 2 and 3 commence on a day or days to be fixed by Proclamation.
(3) If an item of Schedule 1, 2 or 3 has not commenced within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
3 Schedule(s)
Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendment of the Australian Postal Corporation Act 1989
1 Paragraph 90N(1)(a)
Omit “90S”, substitute “90T”.
2 After paragraph 90S(1)(a)
Insert:
(aa) the article is not an article to which section 90T applies; and
3 After section 90S
Insert:
90T Articles reasonably believed to consist of, or contain, certain drugs or other chemical compounds
(1) This section applies to any article weighing 25 grams or more:
(a) that is in the course of post between Australia and a place outside Australia; and
(b) that is reasonably believed by a Customs officer to consist of, or contain, drugs or other chemical compounds that are being carried in contravention of a law of the Commonwealth relating to their importation into, or exportation from, Australia.
(2) The Customs officer may remove the article to which this section applies from the normal course of carriage and give it to a second Customs officer, following the procedures (if any) that are prescribed for the purposes of this section.
(3) That second Customs officer may open the article if:
(a) the second Customs officer performs duties at a higher classification than the first Customs officer; and
(b) the second Customs officer reasonably believes that the article consists of, or contains, drugs or other chemical compounds that are being carried in contravention of a law of the Commonwealth relating to their importation into, or exportation from, Australia; and
(c) the opening takes place in the presence of a third Customs officer.
(4) Having opened the article, that second Customs officer may, in the presence of that third Customs officer, examine the article to check whether it consists of, or contains, such drugs or other chemical compounds.
(5) Subject to section 90X, if the article is found not to consist of, or contain:
(a) such drugs or other chemical compounds; or
(b) any other thing:
(i) on which Customs duty is payable; or
(ii) on which sales tax on imports is payable; or
(iii) that is being carried in contravention of a law of the Commonwealth relating to its importation into, or exportation from, Australia;
the Customs officer who opened the article must close up the article, and return it to the normal course of carriage following such procedures (if any) as are prescribed for the purposes of this section.
(6) Subject to section 90X, if the article is found to consist of, or contain, such drugs or other chemical compounds or such other thing, the article and its contents must be dealt with in accordance with any applicable laws of the Commonwealth relating to customs duty, sales tax, or imports or exports, as the case requires.
(7) Regulations may be made for the purposes of this section that determine the procedure:
(a) for removing an article from the normal course of carriage for the purpose of its examination by a Customs officer; and
(b) for the return of an article to the normal course of carriage.
(8) The Australian Customs Service established under the Customs Administration Act 1985 must establish and maintain, in accordance with regulations made for the purposes of this section, a record setting out, in respect of each article that is removed from the normal course of carriage and opened for the purpose of its examination by a Customs officer:
(a) particulars of the article; and
(b) particulars of the nature of the examination of the article and its contents; and
(c) whether the article and its contents were, following the examination, dealt with according to law or returned to the normal course of carriage.
(9) Regulations made for the purposes of subsection (8) must specify:
(a) the place or places at which the record referred to in that subsection is required to be established and maintained; and
(b) the manner in which the record is to be kept; and
(c) the uses that can be made of information contained in the record.
4 Subsection 90V(2)
Omit “Before the article”, substitute “If the article is opened by an authorised examiner (whether in the presence of a Customs officer or not), then, before the article”.
5 After subsection 90V(2)
Insert:
(2A) If the article is opened under section 90T by a Customs officer, then, before the article is returned to the normal course of carriage, the Customs officer must cause to be endorsed on the cover of the article, or on a label affixed to its cover, a notification that the article has been opened by the Australian Customs Service and that explains briefly (by reference to section 90T or otherwise) the purpose for which the article was opened.
6 Subsection 90V(3)
After “subsection (2)”, insert “or (2A)”.
7 At the end of section 90ZC
Add:
(2) For the avoidance of doubt, the reference in subsection (1) to an act done or omitted to be done in good faith in the exercise or performance, or the purported exercise or performance, of a power or duty under this Part includes a reference to an act done or omitted to be done in good faith by a Customs officer in the exercise or performance, or the purported exercise or performance, of a power or duty under section 90T or of a duty under subsection 90V(2A).
Schedule 2—Amendment of the Customs Act 1901
1 Paragraph 203R(1)(b)
Omit “60 days”, substitute “120 days”.
2 Paragraph 203S(1)(a)
Omit “60 days”, substitute “120 days”.
3 Paragraphs 205D(2)(b), (c), (d) and (e)
Omit “60 days” (wherever occurring), substitute “120 days”.
4 Paragraph 205E(1)(a)
Omit “60 days”, substitute “120 days”.
5 Saving provision
Despite the amendment of sections 203R, 203S, 205D and 205E of the Customs Act 1901 made by items 1, 2, 3 and 4, those provisions continue to apply in relation to things seized before the day on which those items commence as if the amendments made by those items had not been made.
6 Paragraph 210(1)(b)
After “233B”, insert “or against subsection 233BAA(4) or (5) or 233BAB(5) or (6)”.
7 After section 218
Insert:
218A Disposal of certain abandoned goods
(1) If a Collector has reason to believe that goods found at a Customs place:
(a) are not required to be, or are not able to be, entered for home consumption; and
(b) have been abandoned by their owner;
the Collector may take steps to dispose of the goods in any manner he or she thinks appropriate.
(2) For the purposes of subsection (1), a Collector is be taken to have reason to believe that goods found at a Customs place have been abandoned if a period prescribed for the purposes of this subsection, not exceeding 120 days, has passed since the goods were found at that place and no person has claimed ownership of the goods.
(3) If the Collector sells the goods, any expenses incurred by the Customs in collecting and housing them and ultimately arranging for their disposal may be offset against any money realised on their sale.
(4) Nothing in this provision prevents a person, at any time after the end of the prescribed period in relation to particular goods found at a Customs place, from seeking compensation for those goods in accordance with section 4AB.
(5) For the purposes of this section, the Collector must ensure that there is created and maintained a record, in writing, specifying, in respect of particular goods found at a Customs place:
(a) the date on which and place at which the goods were found; and
(b) if the goods are subsequently disposed of—the date and manner of their disposal; and
(c) if the goods are sold—the amount realised on their sale and any amount offset against that amount in accordance with subsection (3).
8 After subparagraph 219R(1)(c)(ii)
Insert:
and (iii) the requirements of section 219RAA are met in respect of that consent;
9 After subsection 219R(11)
Insert:
(11A) Prescribed equipment may be used in carrying out the external search if, and only if, consent to the use of the equipment in carrying out the search has been given by the detainee and the requirements of section 219RAB are met.
Note: Section 219RAC deals with regulations prescribing equipment.
(11B) If use of the prescribed equipment involves samples from the detainee’s body, the equipment may be used in the search only with samples from the outer surface of the detainee’s hand.
(11C) To avoid doubt, the search may be continued without the use of the prescribed equipment if the use of the equipment produces an indication that the detainee is or may be carrying prohibited goods.
10 After section 219R
Insert:
219RAA Videotape record may be made of external search
(1) In inviting a detainee to consent to an external search, an officer of Customs must have told the detainee:
(a) that, at the discretion of the Customs, a videotape or other electronic record may be made of the external search; and
(b) that, if such a record is made, the record could be used in evidence against the detainee in a court; and
(c) that, if such a record is made, a copy of the record will be provided to the detainee; and
(d) that the invitation, and any giving of consent, was being or would be itself recorded by audiotape, videotape or other electronic means or in writing.
(2) The invitation to consent and any giving of consent must have been recorded by audiotape, videotape or other electronic means or in writing.
(3) The officer making the videotape or other electronic record must be of the same sex as the detainee.
(4) If, in the absence of consent by the detainee to an external search, an application is made for an order under subsection 219R(2) for an external search, that order may authorise the making of a videotape or other electronic record of the external search.
(5) If, in the course of carrying out an external search, an officer of Customs or a police officer finds evidence that the detainee is unlawfully carrying prohibited goods, that officer may, without the further consent of the detainee, take a photograph of the prohibited goods on the detainee.
219RAB Use of prescribed equipment for external search
(1) In inviting a detainee to consent to the use of prescribed equipment in an external search, an officer of Customs must have told the detainee:
(a) what the prescribed equipment is; and
(b) the purpose for which the prescribed equipment would be used; and
(c) that use of the prescribed equipment could produce evidence against the detainee that could be used in a court; and
(d) what known risk (if any) would be posed to the detainee’s health by use of the prescribed equipment; and
(e) the procedure for the use of the prescribed equipment; and
(f) that the prescribed equipment would be used by an officer of Customs authorised to use the equipment; and
(g) that the search would be continued without the use of the prescribed equipment should use of the equipment indicate that the detainee was or might be carrying prohibited goods; and
(h) that the invitation, and any giving of consent, was being or would be recorded by audiotape, videotape or other electronic means or in writing; and
(i) that the detainee is entitled to a copy of that record.
(2) The invitation to consent and any consent must have been recorded by audiotape, videotape or other electronic means or in writing.
(3) The prescribed equipment must be operated by an authorised officer who is of the same sex as the detainee.
Note: Section 219RAD deals with authorisation of an officer to operate equipment.
219RAC Prescribing equipment for use in external searches
(1) For the purposes of subsection 219R(11A), the regulations may prescribe only equipment that can produce an indication that a person is or may be carrying prohibited goods on his or her body.
(2) Before the Governor‑General makes a regulation prescribing equipment for the purposes of subsection 219R(11A), the Minister must obtain from the CEO a statement that:
(a) the equipment can safely be used to detect prohibited goods; and
(b) use of the equipment poses no risk, or minimal risk, to the health of a person whom the equipment is used to search; and
(c) a person does not require professional qualifications to operate the equipment.
(3) Before making a statement described in subsection (2), the CEO must consult the Commonwealth authorities (if any) that have expertise or responsibilities relevant to the matters addressed by the statement.
(4) If, before making a statement of the kind described in subsection (2), the CEO consults with Commonwealth authorities in accordance with subsection (3), the CEO must lay a copy of any advice received from those authorities in the course of that consultation before each House of the Parliament within 7 sitting days of that House after the day on which the statement is given to the Minister.
219RAD Authorising officers to use prescribed equipment for external search
The CEO may authorise an officer of Customs for the purposes of subsection 219RAB(3) to use prescribed equipment only if the officer has successfully completed the training specified in an approved statement describing training in the operation of the equipment.
219RAE Giving a record of invitation and consent or of order
(1) If a detainee who is invited to consent:
(a) to an external search under section 219R; or
(b) to the use of prescribed equipment in the conduct of that external search;
requests it, an officer of Customs must give the detainee, as soon as reasonably practicable:
(c) a copy of the record of the invitation; and
(d) if the detainee gave consent—a copy of the record of the detainee’s consent.
(2) If an order for the external search of a detainee is made under subsection 219R(2), a copy of the order is to be given, as soon as reasonably practicable:
(a) unless paragraph (b) applies—to the detainee; or
(b) if the detainee is in need of protection—to the person in whose presence the external search is to be carried out.
219RAF Records of results of external search
(1) This section applies to any of the following produced in the course of an external search of a detainee under section 219R:
(a) a videotape or other electronic record of the external search;
(b) a photograph taken in the circumstances described in subsection 219RAA(5);
(c) any other photograph or image of the detainee’s body taken using prescribed equipment the subject of a consent under section 219R;
(d) a sample from the outer surface of the detainee’s hand taken using such prescribed equipment.
(2) The videotape or other electronic record of the external search, and any photograph, image or sample referred to in paragraph (1)(b), (c) or (d), must be destroyed as soon as practicable if:
(a) a period of 12 months has elapsed since the record was made, or the photograph, image or sample was produced; and
(b) relevant proceedings have not been instituted or have been discontinued.
(3) For the purposes of subsection (2), relevant proceedings are proceedings:
(a) against the detainee; and
(b) relating to prohibited goods; and
(c) in respect of which the record, photograph, image or sample is relevant.
(4) On application by an officer of Customs or the Director of Public Prosecutions, a magistrate may extend the period of 12 months (or that period as previously extended under this subsection) in relation to the videotape or other electronic record of the external search or to a particular photograph, image or sample, if the magistrate is satisfied that there are special reasons for doing so.
(5) The videotape or other electronic record, and any photograph, image or sample must be destroyed as soon as practicable if:
(a) the detainee is found to have committed a relevant offence but no conviction is recorded; or
(b) the detainee is acquitted of a relevant offence and:
(i) no appeal is lodged against the acquittal; or
(ii) an appeal is lodged against the acquittal and the acquittal is confirmed or the appeal is withdrawn;
unless there is pending an investigation into another relevant offence or a proceeding against the detainee for another relevant offence.
(6) For the purpose of subsection (5), an offence is a relevant offence if:
(a) it relates to prohibited goods; and
(b) the videotape or other electronic record, or the photograph, image or sample, relates to the offence.
(7) The regulations must make provision in relation to the secure storage of any videotape or other electronic record of an external search, and of any photograph, image or sample referred to in paragraph (1)(b), (c) or (d) pending its ultimate destruction.
11 Application provision
The amendments of the Customs Act 1901 made by items 8, 9 and 10 apply only in relation to a person:
(a) who is detained under section 219Q of that Act; or
(b) to whom section 219R of that Act applies by force of section 219P of that Act;
after the commencement of those items.
12 Paragraph 233AB(1)(a)
Omit “and not less than 2 times that amount”.
13 Paragraph 233AB(1)(b)
Omit “$50,000”, substitute “$100,000”.
14 Subparagraph 233AB(2)(a)(ii)
Repeal the subparagraph, substitute:
(ii) $100,000;
15 Paragraph 233AB(2)(b)
Omit “$50,000”, substitute “$100,000”.
16 Subsection 233BA(2)
After “233B”, insert “or 233BAA, or in any proceedings for an offence against section 233BAB in so far as that section relates to specified anti‑personnel sprays or gases, radioactive substances, human body tissue or human body fluid”.
17 After section 233B
Insert:
233BAA Special offence relating to tier 1 goods
(1) Subject to subsection (3), the regulations may provide that:
(a) specified performance enhancing drugs; and
(b) specified non‑narcotic drugs; and
(c) other specified goods;
constitute tier 1 goods.
(2) The regulations must not specify an item for the purposes of subsection (1) unless:
(a) its importation is prohibited, either absolutely or on condition, by the Customs (Prohibited Imports) Regulations; or
(b) its exportation is prohibited, either absolutely or on condition, by the Customs (Prohibited Exports) Regulations.
(3) If the regulations made for the purposes of subsection (1) prescribe a quantity of a drug specified for those purposes to be the critical quantity, the specified drug does not constitute tier 1 goods unless it is of a quantity that exceeds the critical quantity.
(4) A person is guilty of an offence against this subsection if:
(a) the person knowingly or recklessly imported goods; and
(b) the goods were tier 1 goods; and
(c) their importation:
(i) was prohibited under this Act absolutely; or
(ii) was prohibited under this Act unless the approval of a particular person had been obtained and, at the time of the importation, that approval had not been obtained.
Maximum penalty: A fine not exceeding $100,000 or imprisonment for 5 years, or both.
(5) A person is guilty of an offence against this subsection if:
(a) the person knowingly or recklessly exported goods; and
(b) the goods were tier 1 goods; and
(c) their exportation:
(i) was prohibited under this Act absolutely; or
(ii) was prohibited under this Act unless the approval of a particular person had been obtained and, at the time of the exportation, that approval had not been obtained.
Maximum penalty: A fine not exceeding $100,000 or imprisonment for 5 years, or both.
(6) A person convicted or acquitted of an offence against subsection (4) or (5) in respect of particular conduct is not liable to any proceeding under section 233 in respect of that conduct.
233BAB Special offence relating to tier 2 goods
(1) The regulations may provide that:
(a) specified firearms, munitions and military warfare items of any kind including combat vests and body armour; and
(b) specified knives, daggers and other like goods; and
(c) specified chemical compounds; and
(d) specified anti‑personnel sprays and gases; and
(e) specified fissionable or radioactive substances; and
(f) specified human body tissue; and
(g) specified human body fluids; and
(h) items of child pornography or of child abuse material; and
(i) counterfeit credit, debit and charge cards; and
(j) other specified goods;
constitute tier 2 goods.
(2) The regulations must not specify an item for the purposes of subsection (1) unless:
(a) its importation is prohibited, either absolutely or on condition, by the Customs (Prohibited Imports) Regulations; or
(b) its exportation is prohibited, either absolutely or on condition, by the Customs (Prohibited Exports) Regulations.
(3) For the purposes of subsection (1) an item is to be taken to be an item of child pornography if it is a document or other goods:
(a) that depicts a person:
(i) who is, or who appears to be, under 16 years of age; and
(ii) who is involved in a sexual pose or in sexual activity, whether or not in the presence of other persons; and
(b) that is likely to cause offence to a reasonable adult.
(4) For the purposes of subsection (1), an item is taken to be an item of child abuse material if it is a document or other goods:
(a) that depicts a person:
(i) who is, or who appears to be, under 16 years of age; and
(ii) who is a victim of torture, cruelty or physical abuse; and
(b) that is likely to cause offence to a reasonable adult.
(5) A person is guilty of an offence against this subsection if:
(a) the person knowingly or recklessly imported goods; and
(b) the goods were tier 2 goods; and
(c) their importation:
(i) was prohibited under this Act absolutely; or
(ii) was prohibited under this Act unless the approval of a particular person had been obtained and, at the time of the importation, that approval had not been obtained.
Maximum penalty: A fine not exceeding $250,000 or imprisonment for 10 years, or both.
(6) A person is guilty of an offence against this subsection if:
(a) the person knowingly or recklessly exported goods; and
(b) the goods were tier 2 goods; and
(c) their exportation:
(i) was prohibited under this Act absolutely; or
(ii) was prohibited under this Act unless the approval of a particular person had been obtained and, at the time of the exportation, that approval had not been obtained.
Maximum penalty: A fine not exceeding $250,000 or imprisonment for 10 years, or both.
(7) A person convicted or acquitted of an offence against subsection (5) or (6) in respect of particular conduct is not liable to proceedings under section 233 in respect of that conduct.
233BAC Evidence relating to approval for import or export
(1) In proceedings for an offence against subsection 233BAA(4) or (5) or 233BAB(5) or (6), a certificate of an authorised officer to the effect that the person charged with the offence had not obtained, as at the time of the import or export of the goods in respect of which the offence is alleged to have been committed, approval for the import or export is admissible as prima facie evidence that that approval had not been so obtained.
(2) For the purposes of this section, a document purporting to be a certificate referred to in subsection (1) is, unless the contrary is established, to be taken to be such a certificate and to have been duly given.
(3) A certificate is not to be admitted in evidence under subsection (1) in proceedings for an offence unless the person charged with the offence or a solicitor who has appeared for the person in those proceedings has, at least 14 days before the certificate is sought to be so admitted, been given a copy of the certificate, together with reasonable notice of the intention to produce the certificate as evidence in the proceedings.
18 Paragraph 235(2)(c)
Omit “imprisonment for life”, substitute “a fine not exceeding $750,000 or imprisonment for life, or both”.
19 Subparagraph 235(2)(d)(i)
Omit “$100,000”, substitute “$500,000”.
20 Subparagraph 235(2)(d)(ii)
Omit “$4,000”, substitute “$250,000”.
21 Subsection 245(2)
Omit “$20,000” (wherever occurring), substitute “$40,000”.
22 Subsection 245(4)
Omit “$5,000” (wherever occurring), substitute “$20,000”.
Schedule 3—Amendment of the Customs Administration Act 1985
1 Subsection 6(1)
Omit “a period of”, substitute “a specified period of not more than”.
[Minister’s second reading speech made in—
House of Representatives on 24 November 1999
Senate on 13 March 2000]
(217/99)
