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Customs and Excise Legislation Amendment Act (No. 2) 1989

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CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24, 1989
CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - TABLE OF PROVISIONS
TABLE OF PROVISIONS PART I-PRELIMINARYSection 1. Short title 2. Commencement PART II-AMENDMENTS OF THE CUSTOMS ACT 1901 3. Principal Act 4. Interpretation 5. Repeal of section 9 and substitution of new section: 9. Delegation by Minister 6. Exemptions under Torres Strait treaty 7. Prohibition of the importation of goods 8. Prohibited exports 9. Manner of fixing duty 10. Insertion of new section: 137. Manner of determining volumes of, and fixing duty on, beer 11. When goods treated as the produce or manufacture of a country 12. Rebate of duty in respect of diesel fuel used for certain purposes 13. Interpretation 14. Renewal of licence 15. Investigation of matters relating to an agents licence 16. Interim suspension by Comptroller 17. National Customs Agents Licensing Advisory Committee 18. Power to board and search 19. Power to impound certain forfeited goods and release them on payment of duty and penalty 20. Forfeited ships and aircraft 21. Forfeited goods 22. Insertion of new section: 233BA. Evidence of analyst 23. Customs offences 24. Insertion of new Division: Division 4-Penalty for making false statements etc. 243T. Penalty for making false statements etc. 243U. Remission of penalty 243V. Section 243T not to apply in certain cases 25. Institution of prosecutions 26. Repeal of section 245A 27. Undertakings relating to tenders 28. Regulations 29. Review of decisions PART III-AMENDMENTS OF THE EXCISE ACT 1901 30. Principal Act 31. Interpretation 32. Insertion of new section: 54A. Liability of Commonwealth authorities to pay Excise duty 33. Entry for home consumption etc. 34. Interpretation 35. Repeal of section 77B and substitution of new section: 77B. Manner of determining volumes of, and fixing duty on, beer 36. Marking and labelling of containers and packages 37. Spoilt beer 38. Disposal of beer by Collector on cancellation etc. of licence 39. Rebate of duty in respect of diesel fuel used for certain purposes 40. Officers to have access to factories and approved places 41. Offences 42. Institution of prosecutions 43. Repeal of section 134A PART IV-AMENDMENT OF OFF-SHORE INSTALLATIONS (MISCELLANEOUS AMENDMENTS) ACT 1982 44. Principal Act 45. Amendment of section 5 CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - LONG TITLE
An Act to amend legislation relatingsto Customs and Excise, and for related purposes CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - PART I
PART I-PRELIMINARY CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 1 Short title
(Assented to 5 May
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1989) 1. This Act may be cited as the Customs and Excise Legislation Amendment Act (No. 2) 1989. (Minister's second reading speech made in- House of Representatives on 7 November 1988 Senate on 25 November 1988) CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 2 Commencement
2. (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent. (2) Section 6 shall be taken to have commenced on 8 July 1988.
(3) Paragraph 8 (1) (a) shall be taken to have commenced on 27 August 1987.
(4) Section 18 shall be taken to have commenced on 15 October 1987.
(5) Sections 19, 21, 23, 24, 29, 31 and 32 commence on 1 July 1989.
(6) Sections 4, 9, 10 and 34 to 38 (inclusive) commence on 1 February 1989.
(7) Part IV shall be taken to have commenced on the twenty-eighth day after the Off-shore Installations (Miscellaneous Amendments) Act 1982 received the Royal Assent. CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - PART II PART II-AMENDMENTS OF THE CUSTOMS ACT 1901
CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 3 Principal Act
3. In this Part, "Principal Act" means the Customs Act 1901*1*. *1* No. 6, 1901, as amended. For previous amendments, see No. 21, 1906; Nos. 9 and 36, 1910; No. 10, 1916; No. 41, 1920; No. 19, 1922; No. 12, 1923; No. 22, 1925; No. 6, 1930; Nos. 7 and 45, 1934; No. 7, 1935; No. 85, 1936; No. 54, 1947; No. 45, 1949; Nos. 56 and 80, 1950; No. 56, 1951; No. 108, 1952; No. 47, 1953; No. 66, 1954; No. 37, 1957; No. 54, 1959; Nos. 42 and 111, 1960; No. 48, 1963; Nos. 29, 82 and 133, 1965; No. 28, 1966; No. 54, 1967; Nos. 14 and 104, 1968; Nos. 12 and 134, 1971; No. 162, 1973; No. 216, 1973 (as amended by No. 20, 1974); Nos. 28 and 120, 1974; Nos. 56, 77 and 107, 1975; Nos. 41, 91 and 174, 1976; No. 154, 1977; Nos. 36 and 183, 1978; Nos. 92, 116, 177 and 180, 1979; Nos. 13, 15 and 110, 1980; Nos. 45, 64, 67, 152 and 157, 1981; Nos. 48, 51, 80, 108, 115 and 137, 1982; No. 81, 1982 (as amended by No. 39, 1983); Nos. 19, 39 and 101, 1983; Nos. 2, 22, 63, 72 and 165, 1984; Nos. 39, 40 and 175, 1985; Nos. 10, 34 and 149, 1986; Nos. 51, 76, 81, 104 and 141, 1987; Nos. 63, 66 and 76, 1988. CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 4 Interpretation
4. Section 4 of the Principal Act is amended by inserting in subsection (1) the following definition: " 'Beer' means any liquor on which, under the name of beer, any duty of Customs imposed by the Parliament is payable;". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 5
5. (1) Section 9 of the Principal Act is repealed and the following section is substituted: Delegation by Minister "9. (1) The Minister may, by signed instrument, delegate to an officer of Customs all or any of the functions and powers of the Minister under the Customs Acts. "(2) A function or power so delegated, when performed or exercised by the delegate, shall, for the purposes of the Customs Acts, be deemed to have been performed or exercised by the Minister.
"(3) Paragraph 34AB (c) of the Acts Interpretation Act 1901 does not apply to a delegation under subsection (1).".
(2) A delegation by the Minister under section 9 of the Principal Act and in force immediately before the commencement of this section continues in force after that commencement as if it were given under section 9 of the Principal Act as amended by subsection (1). CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 6 Exemptions under Torres Strait treaty
6. Section 30A of the Principal Act is amended by inserting in sub-subparagraph (4) (b) (ii) (B) "or flight" after "voyage". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 7 Prohibition of the importation of goods
7. Section 50 of the Principal Act is amended by inserting after paragraph (2) (a) the following paragraph: "(aa) by prohibiting the importation of goods in specified circumstances;". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 8 Prohibited exports
8. (1) Section 112 of the Principal Act is amended: (a) by inserting after paragraph (2) (a) the following paragraph: "(aa) by prohibiting the exportation of goods in specified
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circumstances;"; (b) by inserting after subsection (2A) the following subsections: "(2AB) It is a condition of any licence or permission to export goods, being a licence or permission granted under paragraph (2) (c) by the Minister for Defence or an authorised person within the meaning of subregulation 13B (1) or 13E (1) of the Customs (Prohibited Exports) Regulations after the commencement of this subsection, that the Minister for Defence may, at any time, by notice: (a) published: (i) in the Gazette; and (ii) in each State and internal Territory, in a newspaper circulating throughout that State or Territory; and (b) in writing given to the holder of the licence or permission; inform the holder that, with effect from a day specified in the notice, all goods to which the licence or permission relates, or such kinds of those goods as are specified in the notice, shall not be exported to a specified place because in the opinion of the Minister for Defence: (c) a situation in that place; or (d) a situation in another place to which there is a reasonable likelihood that such goods will be re-exported from that specified place; makes the exportation of such goods from Australia contrary to the national interest, and, where the Minister for Defence gives such a notice, the authority of the holder to export such goods to that specified place shall be taken to have been withdrawn until the Minister for Defence, by further notice in writing given to the holder, revokes the original notice. "(2AC) The day specified in a notice under subsection (2AB) shall be a day not earlier than the day on which the notice is published in the Gazette under subparagraph (2AB) (a) (i). "(2AD) Any failure to comply with the requirements of paragraph (2AB) (b) in relation to a notice under subsection (2AB) does not affect the validity of the notice.". (2) For the purpose of determining the validity of regulation 13G of the Customs (Prohibited Exports) Regulations, that regulation shall be taken to have been made under section 112 of the Principal Act as amended by subsection (1). CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 9 Manner of fixing duty
9. Section 136 of the Principal Act is amended by inserting "(other than beer that is entered for home consumption after 31 January 1989)" after "goods". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 10
10. After section 136 of the Principal Act the following section is inserted:
Manner of determining volumes of, and fixing duty on, beer "137. (1) For the purposes of the Customs Acts in their application to beer that is entered for home consumption after 31 January 1989 in a bulk container, the container in which the beer is packaged shall be treated as containing: (a) if the volume of the contents of the container is nominated for the purpose of the entry, the beer is entered before 1 July 1991 and the actual volume of the contents of the container does not exceed 101.5% of the nominated volume-the nominated volume; (b) if the volume of the contents of the container is nominated for the purpose of the entry, the beer is entered before 1 July 1991 and the actual volume of the contents of the container exceeds 101.5% of the nominated volume-a volume equal to the sum of: (i) the nominated volume; and (ii) the volume by which the actual volume of the contents of the container exceeds 101.5% of the nominated volume; (c) if the volume of the contents of the container is nominated for the purpose of the entry, the beer is entered after 30 June 1991 and the actual volume of the contents of the container does not exceed 101% of the nominated volume-the nominated volume; (d) if the volume of the contents of the container is nominated for the purpose of the entry, the beer is entered after 30 June 1991 and the actual volume of the contents of the container exceeds 101% of the nominated volume-a volume equal to the sum of: (i) the nominated volume; and (ii) the volume by which the actual volume of the contents of the container exceeds 101% of the nominated volume; or (e) if the volume of the contents of the container is not nominated for the purpose of the entry-the actual volume of the contents of the container; and duty on beer so entered shall be fixed accordingly.
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"(2) For the purposes of the application of the Customs Acts in their application to beer that is entered for home consumption after 31 January 1989 in a container other than a bulk container, the container in which the beer is packaged shall be treated as containing: (a) if the volume of the contents of the container is indicated on a label printed on, or attached to, the container and the actual volume of the contents of the container does not exceed 101.5% of the volume so indicated-the volume so indicated; (b) if the volume of the contents of the container is indicated on a label printed on, or attached to, the container and the actual volume of the contents of the container exceeds 101.5% of the volume so indicated-a volume equal to the sum of: (i) the volume so indicated; and (ii) the volume by which the actual volume of the contents of the container exceeds 101.5% of the volume so indicated; or (c) if the volume of the contents of the container is not indicated on a label printed on, or attached to, the container-the actual volume of the contents of the container; and duty on beer so entered shall be fixed accordingly. "(3) In determining, for the purposes of this section, the volume of the contents of containers entered for home consumption, the Customs is not required to take a measurement of the contents of each container so entered but may employ such methods of sampling as are approved in writing by the Comptroller for the purpose.
"(4) In this section: 'bulk container', in relation to beer, means a container that has the capacity to have packaged in it more than 2 litres of beer; 'container', in relation to beer, includes a bottle, a can or any other article capable of holding liquids.". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 11 When goods treated as the produce or manufacture of a country
11. Section 151 of the Principal Act is amended: (a) by omitting from subsection (12) "For the purposes of this Act" and substituting "Subject to subsection (12A), for the purposes of this Act"; (b) by inserting after subsection (12) the following subsection: "(12A) In its application to Christmas Island, to Cocos (Keeling) Islands and to Norfolk Island, subsection (12) shall have effect as if the reference to 75% in paragraph (b) of that subsection were a reference to 50%.". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 12 Rebate of duty in respect of diesel fuel used for certain purposes
12. Section 164 of the Principal Act is amended: (a) by omitting from subsection (4) "because only that" and substituting "only because"; (b) by inserting after subsection (4) the following subsection: "(4AA) Rebate is not payable to a person in respect of diesel fuel unless the application for the rebate: (a) is made in accordance with an approved form; (b) includes such information as is required by the form; (c) is signed and witnessed in the manner indicated in the form; and (d) is given to an officer."; (c) by omitting paragraphs (4A) (a), (b) and (c). CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 13 Interpretation
13. Section 180 of the Principal Act is amended by inserting in subsection (2) ", other than in subsection 181 (2), 183CC (5), 183CJ (1), 183CQ (4), (5) or (7) or 183CR (3) or in section 183CS, 183D, 183DA, 183DC, 183DD or 183S," after "Part". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 14 Renewal of licence
14. Section 183CJ of the Principal Act is amended by omitting subsection (1) and substituting the following subsection: "(1) Where a customs agent, within 2 months before the date on which his or her agents licence is due to expire, applies in writing to the Comptroller, or to a Collector of Customs for a State or Territory, for the renewal of the licence: (a) if the application is made to the Comptroller-the Comptroller or the Collector to whom the Comptroller refers the application; or (b) if the application is made to a Collector-the Comptroller or that Collector; shall, by writing, renew the licence unless: (c) the Comptroller has given an order under paragraph 183CS (1) (d) in relation to the licence; or (d) the customs agent is, because of section 183CK, not entitled to hold an agents licence.".
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CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 15 Investigation of matters relating to an agents licence
15. Section 183CQ of the Principal Act is amended: (a) by omitting from paragraph (4) (b) "Comptroller" (first occurring) and substituting "person who gave the notice"; (b) by omitting from paragraph (4) (b) "(1) of section 183CS" and substituting "183CS (1)"; (c) by inserting in subsection (5) ", or a Collector of Customs for a State or Territory," after "Comptroller" (first occurring). CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 16 Interim suspension by Comptroller
16. Section 183CR of the Principal Act is amended by inserting in subsection (3) ", or by a Collector of Customs for a State or Territory," after "Comptroller" (first and second occurring). CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 17 National Customs Agents Licensing Advisory Committee
17. Section 183D of the Principal Act is amended: (a) by inserting in paragraph (2) (a) ", or a Collector of Customs for a State or Territory," after "Comptroller"; (b) by inserting in paragraph (2) (b) ", or a Collector of Customs for a State or Territory," after "Comptroller". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 18 Power to board and search
18. Section 187 of the Principal Act is amended by omitting "an resources installation" and substituting "a resources installation". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 19 Power to impound certain forfeited goods and release them on payment of duty and penalty
19. Section 209 of the Principal Act is amended: (a) by omitting from subsection (1) "(i),"; (b) by omitting paragraphs (a) and (b) from subsection (6) and substituting the following paragraphs: "(a) where the notice states that the goods were impounded under subsection (2)-an amount specified in the notice, being an amount equal to the amount of that duty that, in the opinion of the officer issuing the notice, the owner has sought to evade; or (b) where the notice states that the goods were impounded under subsection (3A)-an amount specified in the notice, being an amount equal to twice the amount of that duty that, in the opinion of the officer issuing the notice, the owner has sought to evade;". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 20 Forfeited ships and aircraft
20. Section 228 of the Principal Act is amended: (a) by omitting "250 tons registered tonnage" (wherever occurring) and substituting "80 metres in overall length"; (b) by omitting "$10,000" and substituting "$100,000"; (c) by adding at the end the following subsection: "(2) For the purposes of this section, the overall length of a ship shall be ascertained by measuring the distance between: (a) a vertical line passing through a point, being the foremost part of the stem; and (b) a vertical line passing through a point, being the aftermost part of the stern.". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 21 Forfeited goods
21. Section 229 of the Principal Act is amended by omitting paragraph (1) (i). CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 22
22. After section 233B of the Principal Act the following section is inserted: Evidence of analyst "233BA. (1) The Comptroller may appoint a person to be an analyst for the purposes of this Act. "(2) Subject to subsection (4), a certificate of an analyst stating that he or she has analysed or examined a substance, setting out the date on which the analysis or examination was carried out, describing the method employed in conducting the analysis or examination, and stating the result of the analysis or examination, is admissible in any proceeding under section 233B as prima facie evidence of the matters in the certificate and of the correctness of the result of the analysis or examination.
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"(3) For the purposes of this section, a document purporting to be a certificate referred to in subsection (2) shall, unless the contrary is established, be deemed to be such a certificate and to have been duly given.
"(4) A certificate shall not be admitted in evidence under subsection (2) 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.
"(5) Subject to subsection (6), where, under subsection (2), a certificate of an analyst is admitted in evidence in a proceeding for an offence, the person charged with the offence may require the analyst to be called as a witness for the prosecution and the analyst may be cross-examined as if he or she had given evidence of the matters stated in the certificate.
"(6) Subsection (5) does not entitle a person to require an analyst to be called as a witness for the prosecution unless: (a) the prosecutor has been given at least 4 days notice of the person's intention to require the analyst to be so called; or (b) the Court, by order, allows the person to require the analyst to be so called.". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 24 of 1989 - SECT 23 Customs offences
23. Section 234 of the Principal Act is amended: (a) by omitting paragraphs (1) (d), (e) and (f) and substituting the following paragraph: "(d) knowingly or recklessly: (i) make a statement to an officer that is false or misleading in a material particular; or (ii) omit from a statement made to an officer any matter or thing without which the statement is misleading in a material particular;"; (b) by omitting paragraph (2) (c) and substituting the following paragraph: "(c) subject to subsection (3), in the case of an offence against paragraph (1) (d), by a penalty not exceeding $5,000; or"; (c) by adding at the end the following subsection: "(3) Where a person is convicted of an offence against paragraph (1) (d) in relation to a statement made, or an omission from a statement made, in respect of the amount of duty payable on particular goods, a Court may, in relation to that offence, impose a penalty not exceeding the sum of $5,000 and twice the amount of the duty payable on those goods.".