Prepared by the Office of Parliamentary Counsel, Canberra
Customs Act 1901
No. 6, 1901
Compilation No. 145
Compilation date: 1 July 2017
Includes amendments up to: Act No. 19, 2017
Registered: 12 July 2017
This compilation is in 4 volumes
Volume 1: sections 1–183U
Volume 2: sections 183UA–269SK
Volume 3: sections 269SM–277A
Schedule
Volume 4: Endnotes
Each volume has its own contents
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About this compilation
This compilation
This is a compilation of the Customs Act 1901 that shows the text of the law as
amended and in force on 1 July 2017 (the compilation date).
The notes at the end of this compilation (the endnotes) include information
about amending laws and the amendment history of provisions of the compiled
law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the
compiled law. Any uncommenced amendments affecting the law are accessible
on the Legislation Register (www.legislation.gov.au). The details of
amendments made up to, but not commenced at, the compilation date are
underlined in the endnotes. For more information on any uncommenced
amendments, see the series page on the Legislation Register for the compiled
law.
Application, saving and transitional provisions for provisions and
amendments
If the operation of a provision or amendment of the compiled law is affected by
an application, saving or transitional provision that is not included in this
compilation, details are included in the endnotes.
Editorial changes
For more information about any editorial changes made in this compilation, see
the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as
modified but the modification does not amend the text of the law. Accordingly,
this compilation does not show the text of the compiled law as modified. For
more information on any modifications, see the series page on the Legislation
Register for the compiled law.
Self-repealing provisions
If a provision of the compiled law has been repealed in accordance with a
provision of the law, details are included in the endnotes.
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Contents
Part XII—Officers 1
Division 1—Powers of officers 1
Subdivision A—Preliminary 1
183UA Definitions.........................................................................1
183UB Law relating to legal professional privilege not
affected..............................................................................7
183UC Comptroller-General of Customs may give
directions concerning the exercise of powers under
this Division ......................................................................7
183UD Judges who may issue seizure warrants for goods
in transit.............................................................................8
Subdivision B—General regulatory powers 8
186 General powers of examination of goods subject to
customs control .................................................................8
186AA General powers of examination of goods loaded
onto or unloaded from ships or aircraft .............................9
186A Power to make copies of, and take extracts from,
documents in certain circumstances ................................11
186B Compensation for damage caused by copying.................12
187 Power to board and search...............................................12
188 Boarding..........................................................................13
189 Searching.........................................................................14
189A Officers may carry arms in certain circumstances ...........14
190 Securing goods ................................................................16
191 Seals etc. not to be broken...............................................16
192 Seals etc. on ship or aircraft in port bound to
another port within Commonwealth ................................16
193 Officers may enter and remain upon coasts etc. ..............17
194 Ships on service may be moored in any place .................18
195 Power to question passengers etc. ...................................19
195A Power to question persons found in restricted areas ........19
196C Power to question persons claiming packages.................20
197 Power to stop conveyances about to leave a
Customs place .................................................................21
Subdivision C—Search warrants in respect of things believed to
be evidential material 22
198 When search warrants can be issued ...............................22
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199 The things that are authorised by a search warrant ..........24
200 Use of equipment to examine or process things ..............26
201 Use of electronic equipment on or in premises................27
201A Person with knowledge of a computer or a
computer system to assist access etc. ..............................29
201B Accessing data held on other premises—
notification to occupier of that premises..........................30
202 Compensation for damage to equipment or data .............31
202A Copies of seized things to be provided ............................31
Subdivision D—Seizure of goods believed to be forfeited goods 32
203 When seizure warrants for forfeited goods can be
issued...............................................................................32
203A The things that are authorised by seizure warrants
for forfeited goods...........................................................35
203B Seizure without warrant of special forfeited goods,
or of evidential material relating to special
forfeited goods, at a Customs place.................................36
203C Seizure without warrant of narcotic goods or of
evidential material relating to narcotic goods at
other places......................................................................39
203CA Seizure without warrant of certain goods on ship
or aircraft in the Protected Zone ......................................40
203CB Seizure without warrant of certain other goods in
the Protected Zone...........................................................41
203D How an authorised person is to exercise certain
powers .............................................................................43
Subdivision DA—Seizure of certain goods in transit 43
203DA When seizure warrants for goods in transit can be
issued...............................................................................43
203DB The things that are authorised by seizure warrants
for goods in transit...........................................................45
Subdivision E—Provisions applicable both to search and seizure
warrants 46
203E Conduct of ordinary searches and frisk searches .............46
203F Announcement before entry ............................................46
203G Details of warrant to be given to occupier .......................46
203H Occupier entitled to be present during search or
seizure .............................................................................47
203HA Requirement to provide name or address etc...................48
203J Availability of assistance and use of force in
executing a warrant .........................................................49
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203K Specific powers available to executing officers...............50
203L Use of animals in executing a warrant.............................51
203M Warrants by telephone or other electronic means............51
203N Receipts for things seized under warrant .........................52
203P Offence for making false statements in warrants.............53
203Q Offences relating to telephone warrants ..........................53
Subdivision F—Dealing with things seized as evidential material 54
203R Retention of things seized as evidential material.............54
203S Magistrate may permit a thing seized as evidential
material to be retained .....................................................54
Subdivision G—Dealing with goods seized as forfeited goods 55
203SA Subdivision does not apply to seized transit goods .........55
203T Seizure of protected objects.............................................56
204 Seized goods to be secured..............................................56
205 Requirement to serve seizure notices ..............................57
205A Matters to be dealt with in seizure notices.......................58
205B Claim for return of goods seized .....................................59
205C Treatment of goods seized if no claim for return is
made ................................................................................60
205D Treatment of goods seized if a claim for return is
made—general ................................................................60
205E Magistrate may permit goods seized to be retained.........64
205EA Treatment of goods seized if a claim for return is
made—suspected prohibited psychoactive
substances........................................................................65
205EB Extending the period for instituting proceedings
for recovery of suspected prohibited psychoactive
substances........................................................................66
205EC Proceedings for recovery of suspected prohibited
psychoactive substances ..................................................67
205F Right of compensation in certain circumstances for
goods disposed of or destroyed .......................................68
205G Effect of forfeiture...........................................................68
206 Immediate disposal of certain goods ...............................69
207 Immediate disposal of narcotic goods .............................71
208 Release of goods on security ...........................................72
208C Service by post ................................................................73
208D Disposal of forfeited goods .............................................74
208DA Disposal of narcotic-related goods other than
narcotic goods .................................................................74
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208E Sales subject to conditions...............................................76
209 Power to impound certain forfeited goods and
release them on payment of duty and penalty..................76
209A Destruction or concealment of evidential material
or forfeited goods ............................................................78
Subdivision GA—Dealing with goods in transit seized under a
section 203DA warrant 79
209B Subdivision applies to seized transit goods .....................79
209C Seized goods to be secured..............................................79
209D Requirement to serve seizure notices ..............................79
209E Matters to be dealt with in seizure notices.......................80
209F Application for return of seized goods ............................80
209G Status of goods seized if no application for return
is made ............................................................................81
209H Right of compensation for certain goods disposed
of or destroyed.................................................................81
209I Effect of forfeiture...........................................................82
209J Immediate disposal of unsafe goods................................82
209K Disposal of forfeited goods .............................................84
209L Service by post ................................................................84
Subdivision GB—Surrender of prescribed prohibited imports 84
209M Application of Subdivision..............................................84
209N Surrender of goods ..........................................................84
209P Effect of surrender...........................................................85
209Q Right of compensation in certain circumstances for
goods disposed of or destroyed .......................................85
209R Disposal of surrendered goods ........................................86
Subdivision GC—Post-importation permission 86
209S Definitions.......................................................................86
209T Application of Subdivision..............................................87
209U Power to detain goods .....................................................87
209V Detained goods to be secured ..........................................88
209W Requirement to serve detention notice ............................88
209X Matters to be dealt with in detention notices ...................88
209Y Effect of detaining goods.................................................90
209Z Evidence not provided or permission not granted
or given ...........................................................................90
209ZA Evidence provided and permission granted or
given................................................................................92
209ZB Service by post ................................................................92
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209ZC Liability for detention of goods .......................................93
Subdivision H—Arrest and related matters 93
210 Power of arrest without warrant ......................................93
210A Use of force in making arrest ..........................................94
210B Person to be informed of grounds of arrest......................95
211 Power to conduct a frisk search of an arrested
person ..............................................................................95
211A Power to conduct an ordinary search of an arrested
person ..............................................................................96
212 How arrested person to be dealt with ..............................96
213 Requirement to provide name etc. ...................................96
Subdivision HA—Information about people working in restricted
areas or issued with security identification cards 97
213A Providing an authorised officer with information
about people working in restricted areas .........................97
213B Provision of information about people issued with
security identification cards.............................................99
Subdivision J—General powers to monitor and audit 100
214AA Occupier of premises.....................................................100
214AB What are monitoring powers? .......................................101
214AC Monitoring officers........................................................103
214ACA Monitoring officer to notify occupier of premises
of the occupier’s rights and obligations.........................104
214AD Notice of proposal to exercise monitoring powers ........104
214AE Exercise of monitoring powers with consent.................104
214AF Exercise of monitoring powers under a warrant ............105
214AG Warrants may be granted by telephone or other
electronic means ............................................................107
214AH Monitoring officer may ask questions ...........................108
214AI Monitoring officer may ask for assistance.....................108
214AJ Compensation for damage to electronic equipment.......109
214B Powers of officers for purposes of Customs Tariff
(Anti-Dumping) Act 1975 ..............................................110
Subdivision JA—Powers to monitor and audit—Australia-United
States Free Trade Agreement 112
214BAA Simplified outline..........................................................112
214BAB Definitions.....................................................................112
214BAC AUSFTA verification powers........................................113
214BAD Appointment of verification officers .............................115
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214BAE Verification officers may enter premises and
exercise AUSFTA verification powers with
consent ..........................................................................116
214BAF US customs officials may accompany verification
officers ..........................................................................118
214BAG Availability of assistance in exercising AUSFTA
verification powers ........................................................118
214BAH Verification officer may ask questions ..........................119
214BAI Verification officer may ask for assistance....................119
214BAJ Verification officer may disclose information to
US .................................................................................119
214BAK Operation of electronic equipment at premises .............119
214BAL Compensation for damage to electronic equipment.......119
Subdivision K—Miscellaneous 121
214BA Nature of functions of magistrate under
sections 203S and 205E.................................................121
215 Collector may impound documents ...............................121
217 Translations of foreign invoices ....................................121
218 Samples .........................................................................122
218A Disposal of certain abandoned goods ............................122
Division 1B—Detention and search of suspects 124
Subdivision A—Detention and frisk search of suspects 124
219L Detention for frisk search ..............................................124
219M Frisk search ...................................................................125
219N Power to require the production of things .....................126
219P Persons to whom section 219R applies .........................126
Subdivision B—Detention and external search of suspects 126
219Q Detention for external search.........................................126
219R External search ..............................................................127
219RAA Videotape record may be made of external search ........131
Subdivision C—Detention and internal search of persons
suspected of internally concealing substances etc. 132
219RA Certain Judges and Magistrates eligible to give
orders under this Subdivision ........................................132
219S Initial detention .............................................................132
219SA Internal non-medical scan using prescribed
equipment......................................................................133
219SB Seeking detention order following invitation to
consent to internal non-medical scan.............................133
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219T Initial order for detention...............................................134
219U Renewal of order for detention......................................135
219V Arrangement for internal medical search.......................136
219W Detention under this Subdivision ..................................139
219X Detainee becoming in need of protection ......................140
219Y Applications for orders under this Subdivision .............141
219Z Internal medical search by medical practitioner ............142
Subdivision CA—Prescribed equipment for external searches and
internal non-medical scans 143
219ZAA Use of prescribed equipment for external search or
internal non-medical scan..............................................143
219ZAB Prescribing equipment for use in external searches
and internal non-medical scans......................................145
219ZAC Authorising officers to use prescribed equipment
for external search or internal non-medical scan ...........146
219ZAD Giving a record of invitation and consent, or a
copy of order .................................................................146
219ZAE Records of results of external search or internal
non-medical scan...........................................................147
Subdivision D—Detention generally 149
219ZA Detention officers ..........................................................149
219ZB Detention places ............................................................149
219ZC Detention under this Division........................................150
219ZD Detainees not fluent in English......................................151
219ZE Release from, or cessation of, detention ........................151
Subdivision E—Medical practitioners 152
219ZF Conduct of internal medical search ...............................152
219ZG Medical practitioner may take action to preserve
detainee’s life ................................................................153
219ZH Medical practitioner to answer questions and
prepare report ................................................................153
219ZJ Proceedings against medical practitioners.....................154
Division 1BA—Detention and search of persons for purposes of
law enforcement co-operation 155
Subdivision A—Preliminary 155
219ZJA Definitions.....................................................................155
219ZJAA Prescribed State or Territory offences ...........................155
Subdivision B—Powers to detain 156
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219ZJB Detention of person suspected of committing
serious Commonwealth offence or prescribed State
or Territory offence .......................................................156
219ZJC Detention of person subject to warrant or bail
condition........................................................................157
219ZJCA Detention of person for national security or
security of a foreign country..........................................158
Subdivision C—Matters affecting detention generally 159
219ZJD Search of person detained under this Division ..............159
219ZJE Comptroller-General of Customs must give
directions about detaining persons under this
Division.........................................................................161
219ZJF Detainees to be given reasons for detention and
shown identification on request .....................................161
219ZJG Use of force in relation to detention ..............................161
219ZJH Moving detained persons...............................................162
219ZJI Detainees not fluent in English......................................162
219ZJJ Detention of minors.......................................................162
Division 1C—Judges and Magistrates 165
219ZK Nature of functions of Judge or Magistrate ...................165
219ZL Protection of Judge or Magistrate..................................165
Division 2—Protection to officers 167
220 Reasonable cause for seizure a bar to action .................167
221 Notice of action to be given...........................................167
222 Defect in notice not to invalidate...................................167
223 No evidence to be produced but that contained in
notice.............................................................................168
224 Officer may tender amends ...........................................168
225 Commencement of proceedings against officers ...........168
226 Time for commencing action.........................................168
227 Security may be required...............................................169
Division 3—Evidence 170
227AA Evidence may be used in prosecutions etc.....................170
Part XIIA—Special provisions relating to prohibited items 171 227A Overview of Part ...........................................................171
227B Definitions.....................................................................171
227C Ships and aircraft to which this Part applies..................171
227D Items to which this Part applies.....................................173
227E Approved storage for prohibited items ..........................173
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227F Officer may take custody of items.................................174
227G Compensation for damage etc. to items.........................175
Part XIII—Penal Provisions 177
Division 1—Forfeitures 177
228 Forfeited ships and aircraft ............................................177
228A Forfeited resources installations ....................................179
228B Forfeited sea installations ..............................................179
229 Forfeited goods..............................................................179
229A Proceeds of drug trafficking liable to forfeiture ............182
230 Forfeited packages and goods .......................................185
Division 2—Penalties 186
231 Assembly for unlawful purposes ...................................186
232A Rescuing goods and assaulting officers .........................186
233 Smuggling and unlawful importation and
exportation.....................................................................187
233A Master not to use or allow use of ship for
smuggling etc. ...............................................................188
233AB Penalties for offences against sections 233 and
233A..............................................................................188
233BAA Special offence relating to tier 1 goods .........................189
233BAB Special offence relating to tier 2 goods .........................191
233BABAA UN-sanctioned goods ....................................................195
233BABAB Special offences for importation of UN-sanctioned
goods .............................................................................196
233BABAC Special offences for exportation of UN-sanctioned
goods .............................................................................198
233BABAD Smuggling etc. tobacco products...................................201
233BABAE Offence for bringing restricted goods into
Australia ........................................................................202
233BABAF Using information held by the Commonwealth.............203
233BABA Protection from criminal responsibility .........................204
233BAC Evidence relating to approval for import or export .......204
233BA Evidence of Analyst ......................................................205
233C Offence for giving false or misleading information
in relation to UN-sanctioned goods ...............................206
234 Customs offences ..........................................................208
234AA Places set aside for purposes of Act ..............................210
234A Unauthorised entry to places and on ships, aircraft
or wharves .....................................................................211
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234AB Unauthorised use of cameras and sound recorders ........213
234ABA Officers may direct unauthorised persons to leave
restricted areas...............................................................215
236 Aiders and abettors........................................................215
237 Attempts ........................................................................215
239 Penalties in addition to forfeitures.................................215
240 Commercial documents to be kept ................................216
240AA Authorised officer may require person to produce
commercial documents..................................................220
240AB Verifying communications to Department ....................221
240AC Authorised officer may require person to produce
record ............................................................................223
Division 3—Recovery of pecuniary penalties for dealings in
narcotic goods 224
243A Interpretation .................................................................224
243AB Effective control of property .........................................227
243B Pecuniary penalties........................................................228
243C Assessment of pecuniary penalty ..................................229
243CA Court may lift corporate veil etc....................................232
243D Presumption of illegality of importation........................233
243E Court may make restraining order against property.......234
243F Court may make further orders......................................237
243G Official Trustee to discharge pecuniary penalty ............241
243H Revocation of order under section 243E .......................245
243J Pecuniary penalty a charge on property.........................246
243K Contravention of restraining orders ...............................247
243L Sale of property before bankruptcy ...............................248
243M Duties of the Official Trustee after receiving
notice of presentation of creditor’s petition etc. ............249
243N Protection of Official Trustee from personal
liability in certain cases .................................................250
243NA Indemnification of Official Trustee ...............................251
243NB Indemnification of Official Receivers etc......................252
243P Costs etc. payable to Official Trustee............................252
243Q Notices ..........................................................................253
243R Reduction of pecuniary penalty.....................................253
243S Jurisdiction of the Court ................................................254
Division 4—Provisions relating to certain strict liability offences 255
243SA Failure to answer questions ...........................................255
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243SB Failure to produce documents or records.......................256
243SC Preservation of the privilege against
self-incrimination ..........................................................256
243T False or misleading statements resulting in loss of
duty................................................................................256
243U False or misleading statements not resulting in loss
of duty ...........................................................................260
243V False or misleading statements in cargo reports or
outturn reports ...............................................................263
243W Electronic communications to Department to be
treated as statements to Comptroller-General of
Customs.........................................................................264
Division 5—Infringement notices 265
243X Infringement notices—general ......................................265
243Y Infringement notices—forfeiture of goods that are
prohibited imports if infringement notice paid ..............265
243Z Infringement notices—right of compensation in
certain circumstances for goods disposed of or
destroyed .......................................................................266
Part XIV—Customs prosecutions 267 244 Meaning of Customs prosecution ..................................267
245 Institution of prosecutions .............................................267
247 Prosecutions in accordance with practice rules .............268
248 State Court practice .......................................................268
249 Commencement of prosecutions ...................................268
250 Information to be valid if in words of Act .....................268
250A Property in goods subject to customs control ................269
251 No objection for informality..........................................269
252 Conviction not to be quashed ........................................269
253 Protection to witnesses ..................................................269
254 Defendant competent witness........................................270
255 Averment of prosecutor sufficient .................................270
256 Proof of proclamation etc. .............................................271
257 Conduct by directors, employees or agents ...................271
259 Collector may levy on goods in his or her
possession......................................................................272
261 Imprisonment not to release penalty..............................272
263 Parties may recover costs ..............................................273
264 Application of penalties.................................................273
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Part XV—Tenders for rights to enter goods for home
consumption at concessional rates 274 265 Interpretation .................................................................274
266 Tender schemes .............................................................274
267 Undertakings relating to tenders....................................275
268 Transfers of rights to enter goods for home
consumption at concessional rates of duty ....................277
269 Revocation or variation of undertaking .........................278
269A Recovery of penalties ....................................................278
Part XVA—Tariff concession orders 279
Division 1—Preliminary 279
269B Interpretation .................................................................279
269C Interpretation—core criteria ..........................................281
269D Interpretation—goods produced in Australia ................281
269E Interpretation—the ordinary course of business ............282
Division 2—Making and processing TCO applications 284
269F Making a TCO application ............................................284
269FA The applicant’s obligation .............................................285
269G Withdrawing a TCO application....................................285
269H Screening the application ..............................................286
269HA Comptroller-General of Customs may reject a
TCO application in relation to goods referred to in
section 269SJ.................................................................287
269J Applications taken to be lodged in certain
circumstances ................................................................287
269K Processing a valid application .......................................288
269L Amendment of TCO applications..................................289
269M Comptroller-General of Customs may invite
submissions or seek other information, documents
or material .....................................................................291
269N Reprocessing of TCO applications ................................292
Division 3—Making and operation of TCOs 295
269P The making of a standard TCO .....................................295
269Q The making of a TCO for goods requiring repair ..........296
269R Notification of TCO decisions.......................................297
269S Operation of TCOs ........................................................297
269SA Consequence of commencement or cessation of
production before TCO decision ...................................298
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Division 4—Revocation of TCOs 299
269SB Request for revocation of TCOs....................................299
269SC Processing requests for revocation of TCOs..................300
269SD Revocation at the initiative of
Comptroller-General of Customs ..................................301
269SE Notification of revocation decisions..............................304
269SF Comptroller-General of Customs may seek
information, documents or material relating to
revocation......................................................................304
269SG Effect of revocation on goods in transit and capital
equipment on order........................................................305
Division 5—Miscellaneous 307
269SH Internal review...............................................................307
269SHA Administrative Appeals Tribunal Review of
reconsideration decisions...............................................310
269SJ TCOs not to apply to goods described by reference
to their end use or certain goods....................................311
269SK TCOs not to contravene international agreements .........312
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Officers Part XII
Powers of officers Division 1
Section 183UA
Customs Act 1901 1
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Part XII—Officers
Division 1—Powers of officers
Subdivision A—Preliminary
183UA Definitions
(1) In this Division, unless the contrary intention appears:
authorised person means:
(a) in relation to an application for, or for the execution of, a
search warrant—an officer of Customs; and
(b) in relation to an application for, or for the execution of, a
seizure warrant in respect of goods referred to in
paragraph (a) of the definition of forfeited goods:
(i) an officer of Customs; or
(ii) an officer of police; or
(iii) a member of the Defence Force; and
(c) in relation to an application for, or for the execution of, a
seizure warrant in respect of goods referred to in
paragraph (c) of the definition of forfeited goods—an officer
of Customs; and
(d) in relation to the exercise of powers under section 203B or
203C:
(i) an officer of Customs; or
(ii) an officer of police; or
(iii) a member of the Defence Force; and
(da) in relation to the exercise of powers under section 203CA or
203CB:
(i) an officer of Customs; or
(ii) a maritime officer who is exercising maritime powers
under the Maritime Powers Act 2013 in relation to a
ship or aircraft to which section 203CA of this Act
applies; or
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Division 1 Powers of officers
Section 183UA
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(iii) an officer of police; or
(iv) a member of the Defence Force; and
(e) in relation to an application for, or the execution of, a seizure
warrant under section 203DA—an officer of Customs.
baggage means goods:
(a) that are carried by or for a traveller, including the captain and
crew members, on board the same ship or aircraft as the
traveller; or
(b) that a traveller intended to be so carried.
container includes:
(a) a trailer or other like receptacle, whether with or without
wheels, that is used for the movement of goods from one
place to another; and
(b) any baggage; and
(c) any other thing that is or could be used for the carriage of
goods, whether or not designed for that purpose.
conveyance means an aircraft, railway rolling stock, vehicle or
vessel of any kind.
Customs place means:
(aa) a place owned or occupied by the Commonwealth for use for
the purposes of the Customs Acts; or
(a) a port, airport or wharf that is appointed, and the limits of
which are fixed, under section 15; or
(aaa) 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), while that ship or aircraft remains at that
place; or
(b) a place that is the subject of a permission under
subsection 58(2); or
(c) a boarding station that is appointed under section 15; or
(d) a place described in a depot licence that is granted under
section 77G; or
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(e) a place described in a licence for warehousing goods that is
granted under subsection 79(1); or
(f) a place approved in an instrument under subsection (2) as a
place for the examination of international mail; or
(g) a place from which a ship or aircraft that is the subject of a
permission under section 175 is required to depart, between
the grant of that permission and the departure of the ship or
aircraft; or
(h) a place to which a ship or aircraft that is the subject of a
permission under section 175 is required to return, while that
ship or aircraft remains at that place; or
(i) a section 234AA place that is not a place, or a part of a place,
referred to in paragraph (aa), (a), (aaa), (b), (c), (d), (g) or (h).
data held in a computer includes:
(a) data held in any removable data storage device for the time
being held in a computer; or
(b) data held in a data storage device on a computer network of
which the computer forms a part.
data storage device means a thing containing, or designed to
contain, data for use by a computer.
designated container means a container referred to in
paragraph (c) of the definition of container.
evidential material, in relation to an offence, whether the offence
is indictable or summary, means a thing relevant to the offence,
including such a thing in electronic form.
executing officer, in relation to a search warrant or to a seizure
warrant, means:
(a) an authorised person named in the warrant by the judicial
officer issuing it as being responsible for executing the
warrant; or
(b) if that authorised person does not intend to be present at the
execution of the warrant—any authorised person whose
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name has been written in the warrant by the authorised
person so named; or
(c) another authorised person whose name has been written in
the warrant by the authorised person last named in the
warrant.
forfeited goods means goods described as forfeited to the Crown
under:
(a) section 228, 228A, 228B, 229, 229A or 230 of this Act; or
(c) section 7, 10, 11 or 13 of the Commerce (Trade Descriptions)
Act 1905.
judicial officer means:
(a) in relation to a search warrant, or to a seizure warrant under
section 203:
(i) a magistrate; or
(ii) a justice of the peace or other person employed in a
court of a State or Territory who is authorised to issue
search warrants; or
(b) in relation to a seizure warrant under section 203DA:
(i) a Judge of the Federal Court of Australia or of the
Supreme Court of the Australian Capital Territory in
relation to whom a consent under subsection 183UD(1),
and a nomination under subsection 183UD(2), are in
force; or
(ii) a Judge of the Supreme Court of a State in respect of
whom an appropriate arrangement in force under
section 11 is applicable; or
(iii) a Judge of the Supreme Court of the Northern Territory
who is not a Judge referred to in subparagraph (i) and in
respect of whom an appropriate arrangement in force
under section 11 is applicable.
occupier, in relation to premises that are a conveyance or a
container, means the person having charge of the conveyance or
container.
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offence means:
(a) an offence against this Act; or
(b) an offence against the Commerce (Trade Descriptions) Act
1905; or
(c) an offence against section 72.13 or Division 307 or 361 of
the Criminal Code.
ordinary search means a search of a person or of articles in the
possession of a person that may include:
(a) requiring the person to remove his or her overcoat, coat or
jacket and any gloves, shoes or hat; and
(b) an examination of those items.
person assisting, in relation to a search warrant or to a seizure
warrant, means:
(a) a person who is an authorised person and who is assisting in
the execution of the warrant; or
(b) a person who is not an authorised person and who has been
authorised by the Comptroller-General of Customs to assist
in executing the warrant.
premises includes a place, a conveyance or a container.
prohibited psychoactive substance means a psychoactive
substance (within the meaning of Part 9.2 of the Criminal Code)
that:
(a) is not a substance to which subsection 320.2(2) of the
Criminal Code applies; and
(b) has been imported into Australia.
prohibited serious drug alternative means a substance:
(a) the presentation of which includes an express or implied
representation that the substance is a serious drug alternative
(within the meaning of Part 9.2 of the Criminal Code); and
(b) that is not a substance to which subsection 320.3(3) of the
Criminal Code applies; and
(c) that has been imported into Australia.
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search warrant means a warrant issued under section 198.
seizable item means anything that would present a danger to a
person or that could be used to assist a person to escape from
lawful custody.
seizure notice means:
(a) in relation to Subdivision G—a notice of the kind mentioned
in section 205A; and
(b) in relation to Subdivision GA—a notice of the kind
mentioned in section 209E.
seizure warrant means a warrant issued under section 203 or
203DA.
special forfeited goods means:
(a) forfeited goods referred to in paragraph 229(1)(a) that:
(i) are narcotic goods; or
(ii) are a prohibited psychoactive substance; or
(iii) are a prohibited serious drug alternative; or
(iv) consist of a border controlled precursor; or
(b) forfeited goods referred to in paragraph 229(1)(b), (da), (e),
(n) or (na).
terrorist act has the meaning given by section 100.1 of the
Criminal Code.
warrant premises means premises in relation to which a search
warrant or a seizure warrant is in force.
(2) For the purposes of paragraph (f) of the definition of Customs
place in subsection (1), the Comptroller-General of Customs may,
by legislative instrument, approve a place as a place for the
examination of international mail.
(2AA) For the purposes of this Part, an offence against section 6 of the
Crimes Act 1914 that relates to an offence against section 72.13 of
the Criminal Code is taken to be an offence against section 72.13
of the Criminal Code.
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Section 183UB
Customs Act 1901 7
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(2A) For the purposes of this Part, an offence against section 6 of the
Crimes Act 1914 that relates to an offence against Division 307 or
361 of the Criminal Code is taken to be an offence against that
Division.
(3) For the purposes of this Part:
(a) an offence against section 141.1, 142.1, 142.2 or 149.1 of the
Criminal Code that relates to this Act is taken to be an
offence against this Act; and
(aa) an offence against section 141.1, 142.1, 142.2 or 149.1 of the
Criminal Code that relates to section 72.13 of the Criminal
Code is taken to be an offence against section 72.13 of the
Criminal Code; and
(b) an offence against section 141.1, 142.1, 142.2 or 149.1 of the
Criminal Code that relates to Division 307 or 361 of the
Criminal Code is taken to be an offence against that
Division.
183UB Law relating to legal professional privilege not affected
This Division does not affect the law relating to legal professional
privilege.
183UC Comptroller-General of Customs may give directions
concerning the exercise of powers under this Division
The Comptroller-General of Customs may, by legislative
instrument, give directions concerning:
(a) the circumstances in which the powers in this Division may
be exercised; and
(b) the officers of Customs who are entitled to exercise those
powers; and
(c) the manner and frequency of reporting to the
Comptroller-General of Customs concerning the exercise of
those powers.
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Section 183UD
8 Customs Act 1901
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183UD Judges who may issue seizure warrants for goods in transit
(1) A Judge of the Federal Court of Australia or of the Supreme Court
of the Australian Capital Territory may, by writing, consent to be
nominated by the Minister under subsection (2).
(2) The Minister may, by writing, nominate a Judge of a court referred
to in subsection (1) in relation to whom a consent is in force under
that subsection to be a judicial officer for the purposes of
paragraph (b) of the definition of judicial officer in
subsection 183UA(1).
Subdivision B—General regulatory powers
186 General powers of examination of goods subject to customs
control
(1) Any officer may, subject to subsections (2) and (3), examine any
goods subject to customs control, and the expense of the
examination including the cost of removal to the place of
examination shall be borne by the owner.
(2) In the exercise of the power to examine goods, the officer of
Customs may do, or arrange for another officer of Customs or
other person having the necessary experience to do, whatever is
reasonably necessary to permit the examination of the goods
concerned.
(3) Without limiting the generality of subsection (2), examples of what
may be done in the examination of goods include the following:
(a) opening any package in which goods are or may be
contained;
(b) using a device, such as an X-ray machine or ion scanning
equipment, on the goods;
(c) testing or analysing the goods;
(d) measuring or counting the goods;
(e) if the goods are a document—reading the document either
directly or with the use of an electronic device;
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Customs Act 1901 9
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(f) using dogs to assist in examining the goods.
(4) Goods that are subject to customs control under section 31 do not
cease to be subject to customs control merely because they are
removed from a ship or aircraft in the course of an examination
under this section.
186AA General powers of examination of goods loaded onto or
unloaded from ships or aircraft
(1) This section applies in relation to the following:
(a) a ship or aircraft in respect of a voyage or flight to a place in
Australia from a place outside Australia;
(b) a ship or aircraft in respect of a voyage or flight to a place
outside Australia from a place in Australia.
Goods to be loaded onto the ship or aircraft
(2) If:
(a) an officer has reason to believe that goods are to be loaded
onto the ship or aircraft at an examinable place; and
(b) the goods are to be unloaded at another examinable place on
the same voyage or flight;
then:
(c) any officer may, subject to subsections (5) and (6), examine
the goods while the goods are at the examinable place
mentioned in paragraph (a); and
(d) the goods are subject to customs control while the goods are
being so examined.
Goods unloaded from the ship or aircraft
(3) If:
(a) goods are loaded onto the ship or aircraft at an examinable
place; and
(b) the goods are unloaded from the ship or aircraft at another
examinable place on the same voyage or flight;
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then:
(c) any officer may, subject to subsections (5) and (6), examine
the goods while the goods are at the examinable place
mentioned in paragraph (b); and
(d) the goods are subject to customs control while the goods are
being so examined.
Rules relating to examination of goods
(4) The expense of an examination referred to in subsection (2) or (3),
including the cost of removal to the place of examination, is to be
borne by the owner of the goods.
(5) 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.
(6) Without limiting subsection (5), examples of what may be done in
the examination of goods include the following:
(a) opening any package in which goods are or may be
contained;
(b) using a device, such as an X-ray machine or ion scanning
equipment, on the goods;
(c) testing or analysing the goods;
(d) measuring or counting the goods;
(e) if the goods are a document—reading the document either
directly or with the use of an electronic device;
(f) using dogs to assist in examining the goods.
No limit on other provisions
(7) This section does not:
(a) limit the application of any other provision of this Act that
provides for goods to be subject to customs control; and
(b) limit the application of any other provision of this Act that
provides for the examination of goods.
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Section 186A
Customs Act 1901 11
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Definition
(8) In this section:
examinable place means 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).
186A Power to make copies of, and take extracts from, documents in
certain circumstances
(1) If:
(a) a document is examined under section 186 or 186AA; and
(b) as a result of that examination, an officer of Customs is
satisfied that the document or part of the document may
contain information relevant to:
(i) an importation or exportation, or to a proposed
importation or exportation, of prohibited goods; or
(ii) the commission or attempted commission of any other
offence against this Act or of any offence against a
prescribed Act; or
(iii) the performance of functions under section 17 of the
Australian Security Intelligence Organisation Act 1979;
or
(iv) the performance of functions under section 6 of the
Intelligence Services Act 2001; or
(v) security (within the meaning of section 4 of the
Australian Security Intelligence Organisation Act
1979);
the officer of Customs may make a copy of, or take an extract
from, the document, or arrange for another officer of Customs or
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Section 186B
12 Customs Act 1901
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other person having the necessary experience, to make such a copy
or take such an extract.
(2) Without limiting the generality of subsection (1), a copy may be
made of, or an extract taken from, a document:
(a) by photocopying the document or a part of the document; or
(b) by photographing the document or a part of the document; or
(c) by electronically scanning the document or a part of the
document; or
(d) by making an electronic copy of information contained in the
document or a part of the document; or
(e) by making a written copy of information contained in the
document or a part of the document.
186B Compensation for damage caused by copying
(1) If an activity undertaken in relation to the copying of a document,
or the taking of an extract from a document, causes its loss or
destruction or causes damage to the document, and the loss or
destruction or the damage occurred wholly or partly as a result of:
(a) insufficient care being exercised in selecting the person to
undertake the activity; or
(b) insufficient care being exercised by the person undertaking
the activity;
compensation for the damage is payable to the owner of the
documents concerned.
(2) Compensation is payable out of money appropriated by the
Parliament for the purpose.
(3) In this section, a reference either to the loss or destruction of a
document, or to damage to a document, includes a reference to the
erasure or addition of electronic data or the corruption of such data.
187 Power to board and search
An officer may:
(a) board any ship or aircraft;
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Section 188
Customs Act 1901 13
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(b) board any Australian resources installation:
(i) that is subject to customs control;
(ii) at which there is a ship or aircraft that has come to the
installation from a place outside Australia; or
(iii) on which an officer has reasonable grounds to believe
there are goods that are subject to customs control;
(c) board a resources installation (other than an Australian
resources installation) in respect of which permission under
section 5A has been granted;
(d) board any Australian sea installation:
(i) that is subject to customs control;
(ii) at which there is a ship or aircraft that has come to the
installation from parts beyond the seas; or
(iii) on which an officer has reasonable grounds to believe
there are goods that are subject to customs control;
(e) board a sea installation (other than an Australian sea
installation) in respect of which permission under section 5B
has been granted;
(f) search any ship or aircraft or an installation of the kind
referred to in paragraph (b), (c), (d) or (e); or
(g) secure any goods on any ship or aircraft or on any installation
of the kind referred to in paragraph (b), (c), (d) or (e).
188 Boarding
(1) The power of an officer to board shall extend to staying on board
any ship, aircraft or installation and the Collector may station an
officer on board any ship, aircraft or installation, and the master or
pilot shall provide sleeping accommodation in the cabin and
suitable and sufficient food for such officer.
Penalty: 30 penalty units.
(2) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
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Section 189
14 Customs Act 1901
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189 Searching
The power of an officer to search shall extend to every part of any
ship, aircraft or installation, and shall authorize the opening of any
package, locker, or place and the examination of all goods.
189A Officers may carry arms in certain circumstances
(1) Subject to any directions from the Comptroller-General of
Customs, an authorised arms issuing officer:
(a) may issue approved firearms and other approved items of
personal defence equipment to officers authorised to carry
arms, for the purpose of enabling the safe exercise, by such
officers, of powers conferred on them under this Act or any
other Act; and
(b) must take all reasonable steps to ensure that approved
firearms, and other approved items of personal defence
equipment, that are available for issue under paragraph (a),
are kept in secure storage at all times when not required for
use.
(2) The Comptroller-General of Customs may, by legislative
instrument, give directions relating to the deployment of approved
firearms and other approved items of personal defence equipment
under this section. The directions may deal with:
(a) the circumstances in which approved firearms and other
approved items of personal defence equipment may be
issued; and
(b) the circumstances in which such firearms and other items of
equipment are to be recalled; and
(c) the circumstances in which such firearms and other items of
equipment can be used and the manner of their use; and
(d) the nature of the secure storage of such firearms and other
items of equipment when recalled; and
(e) any other matters relating to the deployment of such firearms
and other items of equipment the Comptroller-General of
Customs thinks appropriate.
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Section 189A
Customs Act 1901 15
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(3) An officer is not required under, or by reason of, a law of a State or
Territory:
(a) to obtain a licence or permission for the possession or use of
an approved firearm or approved item of personal defence
equipment; or
(b) to register such a firearm or other item of equipment.
(4) Nothing in this section affects the operation of any other provision
of, or of the regulations under, this Act to the extent that that
provision relates to the use of firearms in circumstances other than
the circumstances referred to in this section.
(5) In this section:
approved firearm means a firearm of a kind declared by the
regulations to be an approved firearm for the purposes of this
section.
approved item of personal defence equipment means an
extendable baton, an oleoresin capsicum spray or anti-ballistic
clothing, and includes any other item that is declared by the
regulations to be an approved item of personal defence equipment
for the purposes of this section.
authorised arms issuing officer means an officer of Customs
authorised under subsection (6) to exercise the powers or perform
the functions of an authorised arms issuing officer under this
section.
officer authorised to carry arms means an officer of Customs
authorised under subsection (7) to use approved firearms and
approved items of personal defence equipment issued by an
authorised arms issuing officer for the purpose specified in
paragraph (1)(a).
(6) The Comptroller-General of Customs may, by writing, authorise an
officer of Customs to exercise the powers or perform the functions
of an authorised arms issuing officer under this section.
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Section 190
16 Customs Act 1901
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(7) The Comptroller-General of Customs may, by writing, authorise an
officer of Customs to use approved firearms and approved items of
personal defence equipment issued by an authorised arms issuing
officer for the purpose specified in paragraph (1)(a).
190 Securing goods
The power of an officer to secure any goods shall extend to
fastening down hatchways and other openings into the hold and
locking up, sealing, marking or otherwise securing any goods.
191 Seals etc. not to be broken
(1) No fastening, lock, mark, or seal placed by an officer upon any
goods or upon any door hatchway opening or place upon any ship,
aircraft or installation shall be opened, altered, broken or erased
whilst the goods upon which the fastening, lock, mark, or seal is
placed or which are intended to be secured thereby shall remain
subject to customs control.
Penalty: 60 penalty units.
(2) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) Subsection (1) does not apply to an opening, alteration, breaking or
erasure by authority.
Note: For by authority, see subsection 4(1).
192 Seals etc. on ship or aircraft in port bound to another port
within Commonwealth
(1) No fastening, lock, mark, or seal placed by an officer upon any
goods or upon any door, hatchway, opening, or place for the
purpose of securing any stores upon any ship or aircraft which has
arrived in any port or airport from parts beyond the seas and which
is bound to any other port or airport within the Commonwealth
shall be opened, altered, broken, or erased; and if any ship or
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Section 193
Customs Act 1901 17
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aircraft enters any port or airport with any such fastening, lock,
mark, or seal opened, altered, broken, or erased contrary to this
section, the master or pilot commit an offence against this Act.
Penalty: 60 penalty units.
(2) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) Subsection (1) does not apply to an opening, alteration, breaking or
erasure by authority.
Note: For by authority, see subsection 4(1).
193 Officers may enter and remain upon coasts etc.
(1) An officer of Customs may, for the purpose of performing the
officer’s duties and functions as an officer, and a person assisting
an officer of Customs may, for the purpose of assisting the officer
to perform those duties and functions, enter and remain upon any
part of the following:
(a) the coast, including but not limited to:
(i) the shores, banks and beaches of the coast; and
(ii) any man-made structure in or on the coast;
(b) a port, bay or harbour, including but not limited to:
(i) the shores, banks and beaches of the port, bay or
harbour; and
(ii) any man-made structure in or on the port, bay or
harbour;
(c) an airport (including an airport that has not been appointed
under section 15) or airstrip;
(d) a lake or river, including but not limited to:
(i) the shores, banks and beaches of the lake or river; and
(ii) any man-made structure in or on the lake or river;
(e) for the purpose of entering and remaining upon a place
mentioned in paragraph (a), (b), (c), or (d)—an area of land
or water that is adjacent to that place.
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Section 194
18 Customs Act 1901
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For this purpose, reasonable means, including reasonable force,
may be used by the officer or the person assisting the officer.
(2) A person commits an offence if:
(a) the person is an owner, occupier or operator of any of the
places mentioned in subsection (1); and
(b) the person is present at the place mentioned in subsection (1)
at the time the officer, or the person assisting an officer, is
exercising, or attempting to exercise, his or her powers under
this section; and
(c) the person does not provide the officer, or the person
assisting the officer, with all reasonable facilities and
assistance, including a means of access to the place, that the
person is reasonably capable of providing.
Penalty: 30 penalty units.
194 Ships on service may be moored in any place
(1) The officer in charge of a ship employed in the service of the
Australian Border Force (within the meaning of the Australian
Border Force Act 2015) may:
(a) moor, or haul up and moor, the ship to:
(i) any part of the coast or the shores, banks or beaches of
any port, bay, harbour, lake or river; or
(ii) any man-made structure at or in any of the places
mentioned in subparagraph (i); or
(iii) any man-made structure anywhere in the territorial sea
of Australia, the contiguous zone of Australia, or the
exclusive economic zone of Australia; and
(b) remain at the mooring as long as the officer considers
necessary.
(2) A person commits an offence if:
(a) the person is an owner, occupier or operator of any of the
places mentioned in paragraph (1)(a); and
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Section 195
Customs Act 1901 19
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(b) the person does not provide the officer with all reasonable
facilities and assistance that the person is reasonably capable
of providing; and
(c) the person does not do so in circumstances where the officer
is exercising, or attempting to exercise, his or her powers
under this section.
Penalty: 30 penalty units.
195 Power to question passengers etc.
(1) An officer of Customs may question:
(a) any person who is on board a ship or an aircraft or an
installation of the kind referred to in paragraph 187(b), (c),
(d) or (e); or
(b) any person who has, or who the officer has reason to believe
has, got off a ship or out of an aircraft; or
(c) any person who the officer has reason to believe is about to
board a ship or an aircraft;
as to whether that person or any child or other person
accompanying him or her has on his or her person, in his or her
baggage or otherwise with him or her any:
(d) dutiable goods; or
(e) excisable goods; or
(f) prohibited goods.
(2) A person shall answer questions put to him or her in pursuance of
subsection (1).
Penalty: 30 penalty units.
(3) Subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
195A Power to question persons found in restricted areas
If a person is in a section 234AA place, an officer may ask the
person for, and require the person to provide:
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Section 196C
20 Customs Act 1901
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(a) the person’s name; and
(b) the person’s reason for being in the section 234AA place; and
(c) evidence of the person’s identity.
Note: Failing to answer a question or produce a document when required to
do so by an officer may be an offence (see sections 243SA and
243SB). However, a person does not have to answer if doing so would
tend to incriminate the person (see section 243SC).
196C Power to question persons claiming packages
(1) Before an officer of Customs decides whether or not to authorise
the delivery into home consumption of goods referred to in
section 71, the officer may:
(a) request the person to state his or her full name and residential
address; and
(b) ask the person whether he or she is the owner of the goods;
and
(c) where the person states that he or she is not the owner of the
goods, request the person to state the full name and
residential address of the owner of the goods; and
(d) request the person to produce evidence of the correctness of
the information given by him or her in compliance with a
request made of him or her in pursuance of paragraph (a) or
(c).
(2) A person shall not refuse or fail to comply with a request made of
him or her, or to answer a question put to him or her, in pursuance
of subsection (1).
Penalty: 10 penalty units.
(2A) Subsection (2) does not apply if the person has a reasonable
excuse.
(3) Where a person refuses or fails to comply with a request made of
him or her, or to answer a question put to him or her, by an officer
of Customs in pursuance of subsection (1), the officer may:
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(a) detain the person for the purposes of establishing his or her
identity; or
(b) if the officer believes on reasonable grounds that there is no
reasonable excuse for the person refusing or failing to so
comply, detain the person and take him or her, without undue
delay, before a magistrate to be charged with an offence
against subsection (2).
(4) In this section, owner, in relation to goods, means a person who
has an interest in the goods.
197 Power to stop conveyances about to leave a Customs place
(1) If a conveyance is in a Customs place, an officer of Customs may:
(a) require the conveyance to stop; and
(b) check to establish that there is appropriate documentation
authorising the movement of any goods in or on the
conveyance that are subject to customs control within the
meaning of section 30.
(2) For the purposes of subsection (1), an officer of Customs may
question the person apparently in charge of the conveyance about
any goods in, on, or in a container on, the conveyance.
(3) The power in paragraph (1)(b) includes a power to give directions
relating to:
(a) the unloading of any goods from the conveyance; or
(b) their movement to a particular part of the Customs place for
further examination.
(4) If a direction under subsection (3) is not complied with, an officer
of Customs may do what is necessary to give effect to the direction
or to arrange for it to be done.
(5) An officer of Customs must not detain a conveyance under this
section for longer than is necessary and reasonable to exercise the
powers conferred by this section.
(6) A person in charge of a conveyance commits an offence if:
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(a) the conveyance is in a Customs place; and
(b) an officer of Customs requires the conveyance to stop; and
(c) the person does not stop the conveyance as so required.
Penalty: 60 penalty units.
(7) This offence is an offence of strict liability.
Subdivision C—Search warrants in respect of things believed to
be evidential material
198 When search warrants can be issued
(1) A judicial officer may issue a warrant to search premises if the
judicial officer is satisfied by information on oath that there are
reasonable grounds for suspecting that there is, or within the next
72 hours there will be, any evidential material, other than
evidential material that is also a forfeited good, on or in the
premises.
(2) If:
(a) the person applying for the warrant has, at any time
previously, applied for a warrant relating to the search of, or
the seizure of goods that are on or in, the same premises; and
(b) the premises are not a Customs place;
the person must state particulars of those applications and their
outcome in the information.
(3) If a judicial officer issues a warrant, the judicial officer is to state
in the warrant:
(a) the offence to which the warrant relates; and
(b) a description of the premises to which the warrant relates;
and
(c) the kind of evidential material that is to be searched for under
the warrant; and
(d) the name of the authorised person who, unless he or she
inserts the name of another authorised person in the warrant,
is to be responsible for executing the warrant; and
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(e) the time at which the warrant expires (see subsection (3A));
and
(f) whether the warrant may be executed at any time or only
during particular hours.
(3A) The time stated in the warrant under paragraph (3)(e) as the time at
which the warrant expires must be a time that is not later than the
end of the seventh day after the day on which the warrant is issued.
Example: If a warrant is issued at 3 pm on a Monday, the expiry time specified
must not be later than midnight on Monday in the following week.
(4) The judicial officer is also to state in the warrant:
(a) that it authorises the seizure of things (other than evidential
material of the kind referred to in paragraph (3)(c)) found on
or in the premises in the course of the search that the
executing officer or a person assisting believes on reasonable
grounds:
(i) to be evidential material in relation to an offence to
which the warrant relates or to another offence, or to be
evidential material (within the meaning of the Proceeds
of Crime Act 2002) or tainted property (within the
meaning of that Act); and
(ii) not to be forfeited goods;
if the executing officer or person assisting believes on
reasonable grounds that seizure of the things is necessary to
prevent their concealment, loss or destruction or their use in
committing an offence; and
(b) whether the warrant authorises an ordinary search or a frisk
search of a person who is at or near the premises when the
warrant is executed, if the executing officer or a person
assisting suspects on reasonable grounds that the person has
any evidential material or seizable items in his or her
possession.
(5) Paragraph (3)(e) and subsection (3A) do not prevent the issue of
successive warrants in relation to the same premises.
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(6) If the application for the warrant is made under section 203M, this
section (other than subsection (3A)) applies as if:
(a) subsection (1) referred to 48 hours rather than 72 hours; and
(b) paragraph (3)(e) required the judicial officer to state in the
warrant the period for which the warrant is to remain in
force, which must not be more than 48 hours.
(7) A judicial officer of a particular State or Territory may issue a
warrant in respect of the search of premises in another State or
Territory.
(8) This section is not to be taken to limit any power of search granted
to an officer of Customs under any other provision of a law of the
Commonwealth.
199 The things that are authorised by a search warrant
(1) A search warrant that is in force in relation to premises authorises
the executing officer or a person assisting:
(a) to enter the warrant premises; and
(b) to search for and to record fingerprints found on or in the
premises, and take samples of things (other than human
biological fluid or tissue) found on or in the premises for
forensic purposes; and
(c) to search the premises for the kind of evidential material
specified in the warrant, and to seize things of that kind
found on or in the premises; and
(d) to seize other things found on or in the premises in the course
of the search that the executing officer or a person assisting
believes on reasonable grounds:
(i) to be evidential material in relation to an offence to
which the warrant relates or to another offence, or to be
evidential material (within the meaning of the Proceeds
of Crime Act 2002) or tainted property (within the
meaning of that Act); and
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(ii) not to be forfeited goods;
if the executing officer or person assisting believes on
reasonable grounds that seizure of the things is necessary to
prevent their concealment, loss or destruction or their use in
committing an offence; and
(e) if the warrant so allows:
(i) to conduct an ordinary search or a frisk search of a
person at or near the premises if the executing officer or
a person assisting suspects on reasonable grounds that
the person has any evidential material or seizable items
in his or her possession; and
(ii) to seize any such material or items found in the course
of the search.
(2) Without limiting the generality of the powers conferred by a
warrant issued in respect of premises that are not a conveyance or a
container, the warrant extends to every conveyance or container on
the premises.
(3) Without limiting the generality of the powers conferred by a
warrant issued in respect of premises that are a conveyance, the
warrant:
(a) permits entry of the conveyance, wherever it is; and
(b) extends to every container on the conveyance.
(4) A warrant issued in respect of premises that are a container permits
entry of the container, wherever it is, to the extent that it is of a size
permitting entry.
(5) If the warrant states that it may be executed only during particular
hours, the warrant must not be executed outside those hours.
(6) If the warrant authorises an ordinary search or a frisk search of a
person, a search of the person different to that so authorised must
not be done under the warrant.
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200 Use of equipment to examine or process things
(1) The executing officer or a person assisting may bring to the
warrant premises any equipment reasonably necessary for the
examination or processing of a thing found on or in the premises in
order to determine whether it is a thing that may be seized under
the warrant.
(2) A thing found at the premises may be moved to another place for
examination or processing in order to determine whether it may be
seized under a warrant if:
(a) both of the following apply:
(i) it is significantly more practicable to do so having
regard to the timeliness and cost of examining or
processing the thing at another place and the availability
of expert assistance;
(ii) there are reasonable grounds to believe that the thing
contains or constitutes evidential material; or
(b) the occupier of the premises consents in writing.
(3) If a thing is moved to another place for the purpose of examination
or processing under subsection (2), the executing officer must, if it
is practicable to do so:
(a) inform the occupier of the address of the place and the time
at which the examination or processing will be carried out;
and
(b) allow the occupier or his or her representative to be present
during the examination or processing.
(3A) The thing may be moved to another place for examination or
processing for no longer than 72 hours.
(3B) An executing officer may apply to a judicial officer for one or
more extensions of that time if the executing officer believes on
reasonable grounds that the thing cannot be examined or processed
within 72 hours or that time as previously extended.
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(3C) The executing officer must give notice of the application to the
occupier of the premises, and the occupier is entitled to be heard in
relation to the application.
(4) The executing officer or a person assisting may operate equipment
already on or in the warrant premises to carry out the examination
or processing of a thing found on or in the premises in order to
determine whether it is a thing that may be seized under the
warrant if the executing officer or person assisting believes on
reasonable grounds that:
(a) the equipment is suitable for the examination or processing;
and
(b) the examination or processing can be carried out without
damage to the equipment or the thing.
201 Use of electronic equipment on or in premises
(1) The executing officer or a person assisting may operate electronic
equipment at the warrant premises to access data (including data
not held at the premises) if he or she believes on reasonable
grounds that:
(a) the data might constitute evidential material; and
(b) the equipment can be operated without damaging it.
Note: An executing officer can obtain an order requiring a person with
knowledge of a computer or computer system to provide assistance:
see section 201A.
(1A) If the executing officer or person assisting believes on reasonable
grounds that any data accessed by operating the electronic
equipment might constitute evidential material, he or she may:
(a) copy the data to a disk, tape or other associated device
brought to the premises; or
(b) if the occupier of the premises agrees in writing—copy the
data to a disk, tape or other associated device at the premises;
and take the device from the premises.
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(1B) If:
(a) the executing officer or person assisting takes the device
from the premises; and
(b) the Comptroller-General of Customs is satisfied that the data
is not required (or is no longer required) for:
(i) investigating an offence against the law of the
Commonwealth, a State or a Territory; or
(ii) judicial proceedings or administrative review
proceedings; or
(iii) investigating or resolving a complaint under the
Ombudsman Act 1976 or the Privacy Act 1988;
the Comptroller-General of Customs must arrange for:
(c) the removal of the data from any device subject to customs
control; and
(d) the destruction of any other reproduction of the data subject
to customs control.
(2) If the executing officer or a person assisting, after operating the
equipment, finds that evidential material is accessible by doing so,
he or she may:
(a) seize the equipment and any disk, tape or other associated
device; or
(b) if the material can, by using facilities on or in the premises,
be put in documentary form—operate the facilities to put the
material in that form and seize the documents so produced.
(3) The executing officer or a person assisting may seize equipment
under paragraph (2)(a) only if it is not practicable to copy the
material as mentioned in subsection (1A) or to put the material in
documentary form as mentioned in paragraph (2)(b).
(4) If the executing officer or a person assisting believes on reasonable
grounds that:
(a) evidential material may be accessible by operating electronic
equipment on or in the premises; and
(b) expert assistance is required to operate the equipment; and
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(c) if he or she does not take action under this subsection, the
material may be destroyed, altered or otherwise interfered
with;
he or she may do whatever is necessary to secure the equipment,
whether by locking it up, placing a guard or otherwise.
(5) The executing officer or a person assisting must give notice to the
occupier of the premises of his or her intention to secure equipment
and of the fact that the equipment may be secured for up to 24
hours.
(6) The equipment may be secured:
(a) for a period not exceeding 24 hours; or
(b) until the equipment has been operated by the expert;
whichever first occurs.
(7) If the executing officer or a person assisting believes on reasonable
grounds that the expert assistance will not be available within 24
hours, he or she may apply to a judicial officer for an extension of
that period.
(8) The executing officer or a person assisting must give notice to the
occupier of the premises of his or her intention to apply for an
extension, and the occupier is entitled to be heard in relation to the
application.
(9) The provisions of this Subdivision relating to the issue of warrants
apply, with such modifications as are necessary, to the issuing of
an extension.
201A Person with knowledge of a computer or a computer system to
assist access etc.
(1) An executing officer may apply to a magistrate for an order
requiring a specified person to provide any information or
assistance that is reasonable and necessary to allow the officer to
do one or more of the following:
(a) access data held in, or accessible from, a computer that is on
warrant premises;
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(b) copy the data to a data storage device;
(c) convert the data into documentary form.
(2) The magistrate may grant the order if the magistrate is satisfied
that:
(a) there are reasonable grounds for suspecting that evidential
material is held in, or is accessible from, the computer; and
(b) the specified person is:
(i) reasonably suspected of having committed the offence
stated in the relevant warrant; or
(ii) the owner or lessee of the computer; or
(iii) an employee of the owner or lessee of the computer; and
(c) the specified person has relevant knowledge of:
(i) the computer or a computer network of which the
computer forms a part; or
(ii) measures applied to protect data held in, or accessible
from, the computer.
(3) A person commits an offence if the person fails to comply with the
order.
Penalty: 6 months imprisonment.
201B Accessing data held on other premises—notification to
occupier of that premises
(1) If:
(a) data that is held on premises other than the warrant premises
is accessed under subsection 201(1); and
(b) it is practicable to notify the occupier of the other premises
that the data has been accessed under a warrant;
the executing officer must:
(c) do so as soon as practicable; and
(d) if the executing officer has arranged, or intends to arrange,
for continued access to the data under subsection 201(1A) or
(2)—include that information in the notification.
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(2) A notification under subsection (1) must include sufficient
information to allow the occupier of the other premises to contact
the executing officer.
202 Compensation for damage to equipment or data
(1) If:
(a) damage is caused to equipment as a result of it being
operated as mentioned in section 200 or 201; or
(b) the data recorded on or accessible from the equipment is
damaged;
and the damage was caused as a result of:
(c) insufficient care being exercised in selecting the person who
was to operate the equipment; or
(d) insufficient care being exercised by the person operating the
equipment;
compensation for the damage is payable to the owner of the
equipment or the user of the data concerned.
(2) For the purposes of subsection (1), damage to data includes
damage by erasure of data or addition of other data.
(3) Compensation is payable out of money appropriated by the
Parliament for the purpose.
(4) In determining the amount of compensation payable, regard is to
be had to whether the occupier of the premises and his or her
employees and agents, if they were available at the time, had
provided any warning or guidance as to the operation of the
equipment that was appropriate in the circumstances.
202A Copies of seized things to be provided
(1) Subject to subsection (2), if the executing officer or a person
assisting seizes, under a warrant relating to premises:
(a) a document, film, computer file or other thing that can be
readily copied; or
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(b) a storage device, the information in which can be readily
copied;
the executing officer or person assisting must, if requested to do so
by the occupier of the premises or another person who apparently
represents the occupier and who is present when the warrant is
executed, give a copy of the document, film, computer file, thing
or information to that person as soon as practicable after the
seizure.
(2) Subsection (1) does not apply if:
(a) the thing that has been seized was seized under
subsection 201(1A) or paragraph 201(2)(b); or
(b) possession by the occupier of the document, film, computer
file, thing or information could constitute an offence.
Subdivision D—Seizure of goods believed to be forfeited goods
203 When seizure warrants for forfeited goods can be issued
(1) A judicial officer may issue a warrant to seize goods on or in
particular premises if the judicial officer is satisfied by information
on oath that an authorised person:
(a) has reasonable grounds for suspecting that the goods:
(i) are forfeited goods; and
(ii) are, or within the next 72 hours will be, on or in the
premises; and
(b) has demonstrated the necessity, in all the circumstances, for
seizure of the goods.
(2) Subsection (1) does not apply to the seizure of goods under
section 203B, 203C, 203CA or 203CB.
(3) In considering whether the authorised person has demonstrated the
necessity, in all the circumstances, for seizure of the goods, the
judicial officer may have regard to, but is not limited to,
consideration of the following factors:
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(a) the seriousness or otherwise of any offence by reason of the
commission of which the goods are believed to be forfeited
goods;
(b) the circumstances in which any such offence is believed to
have been committed;
(c) the pecuniary or other penalty that might be imposed for any
such offence;
(d) the nature, quality, quantity and estimated value of the goods;
(e) whether an infringement notice might be given for any such
offence;
(f) the inconvenience or cost to any person having a legal or
equitable interest in the goods if they were seized.
(4) If:
(a) the person applying for the warrant has, at any time
previously, applied for a warrant relating to the search of, or
seizure of goods that are on or in, the same premises; and
(b) the premises are not a Customs place;
the person must state particulars of those applications and their
outcome in the information.
(5) If a judicial officer issues a warrant, the judicial officer is to state
in the warrant:
(a) a description of the goods to which the warrant relates; and
(b) a description of the premises on or in which the goods are
believed to be located; and
(c) the name of the authorised person who, unless that authorised
person inserts the name of another authorised person in the
warrant, is to be responsible for executing the warrant; and
(d) the time at which the warrant expires (see subsection (5A));
and
(e) whether the warrant may be executed at any time or only
during particular hours.
(5A) The time stated in the warrant under paragraph (5)(d) as the time at
which the warrant expires must be a time that is not later than the
end of the seventh day after the day on which the warrant is issued.
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Example: If a warrant is issued at 3 pm on a Monday, the expiry time specified
must not be later than midnight on Monday in the following week.
(6) The judicial officer is also to state in the warrant:
(a) that it authorises the seizure of goods (other than forfeited
goods of the kind referred to in paragraph (5)(a)) found on or
in the premises in the course of the search that the executing
officer or a person assisting believes on reasonable grounds
to be special forfeited goods; and
(b) whether the warrant authorises an ordinary search or a frisk
search of a person who is at or near the premises when the
warrant is executed, if the executing officer or a person
assisting suspects on reasonable grounds that the person has
any forfeited goods of the kind referred to in
paragraph (5)(a), special forfeited goods or seizable items in
his or her possession; and
(c) whether the warrant authorises an ordinary search or a frisk
search of a person who is at or near the premises when the
warrant is executed, if the executing officer or a person
assisting suspects on reasonable grounds that the person has
in his or her possession any relevant evidential material.
(7) Paragraph (5)(d) and subsection (5A) do not prevent the issue of
successive warrants in relation to the same premises.
(8) If the application for the warrant is made under section 203M, this
section (other than subsection (5A)) applies as if:
(a) subsection (1) referred to 48 hours rather than 72 hours; and
(b) paragraph (5)(d) required the judicial officer to state in the
warrant the period for which the warrant is to remain in
force, which must not be more than 48 hours.
(9) A judicial officer of a particular State or Territory may issue a
warrant in respect of the seizure of goods on or in premises in
another State or Territory.
(10) In this section:
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relevant evidential material means evidential material in relation
to an offence by reason of the commission of which goods are
believed to be:
(a) forfeited goods of the kind referred to in paragraph (5)(a); or
(b) special forfeited goods.
203A The things that are authorised by seizure warrants for
forfeited goods
(1) A seizure warrant that is in force under section 203 in relation to
premises authorises the executing officer or a person assisting:
(a) to enter the warrant premises; and
(b) to search for the goods described in the warrant; and
(c) to seize the goods described in the warrant; and
(d) to seize other goods:
(i) that are found on or in the premises in the course of
searching for the goods the subject of the warrant; and
(ii) that the executing officer or a person assisting believes
on reasonable grounds to be special forfeited goods; and
(e) if the warrant so allows:
(i) to conduct an ordinary search or a frisk search of a
person at or near the premises if the executing officer or
a person assisting suspects on reasonable grounds that
the person has any goods that are goods the subject of
the warrant, special forfeited goods or seizable items in
his or her possession; and
(ii) to seize any such goods or items found in the course of
that search; and
(f) if the warrant so allows:
(i) to conduct an ordinary search or a frisk search of a
person who is at or near the premises if the executing
officer or a person assisting suspects on reasonable
grounds that the person has in his or her possession any
relevant evidential material; and
(ii) to seize any relevant evidential material found in the
course of that search.
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(2) Without limiting the generality of the powers conferred by a
warrant issued in respect of premises that are not a conveyance or a
container, the warrant extends to every conveyance or container on
the premises.
(3) Without limiting the generality of the powers conferred by a
warrant issued in respect of premises that are a conveyance, the
warrant:
(a) permits entry of the conveyance, wherever it is; and
(b) extends to every container on the conveyance.
(4) A warrant issued in respect of premises that are a container permits
entry of the container, wherever it is, to the extent that it is of a size
permitting entry.
(5) If the warrant states that it may be executed only during particular
hours, the warrant must not be executed outside those hours.
(6) If the warrant authorises an ordinary search or a frisk search of a
person, a search of the person different to that so authorised must
not be done under the warrant.
(7) In this section:
relevant evidential material means evidential material in relation
to an offence by reason of the commission of which goods are
believed to be:
(a) goods that are the subject of the warrant; or
(b) special forfeited goods.
203B Seizure without warrant of special forfeited goods, or of
evidential material relating to special forfeited goods, at a
Customs place
(1) This section applies in 2 circumstances, namely:
(a) in a circumstance where an authorised person suspects on
reasonable grounds that there are special forfeited goods:
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(i) at, or in a container (other than a designated container in
the immediate physical possession of a person to whom
subparagraph (b)(i) applies) at, a Customs place; or
(ii) in, on, or in a container (other than a designated
container in the immediate physical possession of a
person to whom subparagraph (b)(i) applies) on, a
conveyance at a Customs place; or
(b) in a circumstance where a person:
(i) is at a Customs place that is also a designated place; and
(ii) has a designated container, or has goods reasonably
suspected by an authorised person to be special forfeited
goods, in his or her immediate physical possession; but
(iii) is not carrying that container or those goods on his or
her body.
Note 1: Container and designated container have special definitions for the
purposes only of this Division.
Note 2: The baggage of a passenger entering or leaving Australia or of the
captain or crew of a vessel or aircraft so entering or leaving is not a
designated container.
Note 3: To determine the question whether a person is carrying a designated
container, or goods reasonably suspected of being special forfeited
goods, on his or her body, see subsection 4(19).
(2) In the circumstance referred to in paragraph (1)(a), the authorised
person may, without warrant:
(a) search the Customs place, or the container at that place, for
special forfeited goods; or
(b) stop and detain at the Customs place the conveyance and
search it and any container on it for special forfeited goods;
as the case requires, and seize any goods that the authorised person
reasonably suspects are special forfeited goods if the authorised
person finds them there.
(2A) In the circumstance referred to in paragraph (1)(b), an authorised
person who is an officer of Customs may, without warrant:
(a) search any designated container in the immediate physical
possession of the person to whom that paragraph applies; and
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(b) seize any goods reasonably suspected by the authorised
person of being special forfeited goods (whether or not those
goods are found as a result of such a search).
(2B) An authorised person must not exercise the powers referred to in
subsection (2A) unless the person having immediate physical
possession of the container to be searched is present at the time
when the container is searched.
(2C) For the avoidance of doubt, the power of the authorised person
under subsection (2) to seize, without warrant, goods found as a
result of a search of, or at, a Customs place that are reasonably
suspected of being special forfeited goods includes the power to
seize, without warrant, any goods that:
(a) have been produced as a result of a frisk search of a person;
or
(b) have been discovered on the body of a person as a result of
an external search or an internal search of the person;
if the search is conducted under Division 1B at the Customs place
and the goods are reasonably so suspected.
(3) If, in the course of searching under subsection (2) or (2A) for
special forfeited goods, an authorised person finds a thing that the
authorised person believes on reasonable grounds is evidential
material relating to an offence committed in respect of those
special forfeited goods, the authorised person may, without
warrant, seize that thing whether or not the authorised person has
found any such special forfeited goods.
(4) For the purposes of a search conducted under subsection (2) or
(2A), the authorised person may question any person apparently in
charge of the place, conveyance or container about any goods or
thing at the place, in or on the conveyance, or in the container.
(5) The authorised person must exercise his or her powers subject to
section 203D.
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Section 203C
Customs Act 1901 39
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203C Seizure without warrant of narcotic goods or of evidential
material relating to narcotic goods at other places
(1) This section applies if:
(a) an authorised person suspects on reasonable grounds that
there are special forfeited goods that are narcotic goods:
(i) at, or in a container at, a place other than a Customs
place; or
(ii) in, on, or in a container on, a conveyance at a place
other than a Customs place; or
(iii) in a container in the immediate physical possession of,
but not carried on the body of, a person at a place other
than a Customs place; and
(b) it is necessary to exercise a power under this section in order
to prevent such goods from being concealed, lost or
destroyed.
Note: Container has a special definition for the purposes only of this
Division.
(2) The authorised person may, without warrant:
(a) search the place or any container at the place for narcotic
goods; or
(b) stop and detain the conveyance about to leave the place, and
search it and any container on it for narcotic goods; or
(c) search the container in the immediate physical possession of
the person for narcotic goods;
as the case requires, and seize any goods that the authorised person
reasonably suspects are narcotic goods if the authorised person
finds them there.
(2A) For the avoidance of doubt, the power of the authorised person to
seize, without warrant, goods found at a place other than a
Customs place that are reasonably suspected of being narcotic
goods includes the power to seize, without warrant, any goods that:
(a) have been produced as a result of a frisk search of a person;
or
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40 Customs Act 1901
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(b) have been discovered on the body of a person as a result of
an external search or an internal search of the person;
if the search is conducted under Division 1B at a place other than a
Customs place and the goods are reasonably so suspected.
(3) If, in the course of searching under subsection (2) for special
forfeited goods that are narcotic goods, an authorised person finds
a thing that the authorised person believes on reasonable grounds is
evidential material relating to an offence committed in respect of
those goods, the authorised person may, without warrant, seize that
thing whether or not the authorised person has found those goods.
(4) For the purposes of a search conducted under subsection (2), the
authorised person may question any person apparently in charge of
the place, conveyance or container about any goods or thing at the
place, in or on the conveyance, or in the container.
(5) The authorised person must exercise his or her powers subject to
section 203D.
203CA Seizure without warrant of certain goods on ship or aircraft
in the Protected Zone
(1) This section applies to a ship if:
(a) the ship is outside the territorial sea of a foreign country; and
(b) the ship could be boarded under the Maritime Powers Act
2013; and
(c) the ship is exempt from any provision of the Customs Acts
under subsection 30A(3) of this Act or the voyage of the ship
is exempt from any such provision under subsection 30A(5)
of this Act.
Note: Section 30A gives effect to provisions of the Torres Strait Treaty in
relation to certain traditional activities.
(2) This section applies to an aircraft if:
(a) the aircraft has landed in Australia as a result of a maritime
officer requiring the person in charge of the aircraft to land
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Section 203CB
Customs Act 1901 41
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the aircraft under subsection 55(7) of the Maritime Powers
Act 2013; and
(b) in the case of an Australian aircraft—the requirement is made
when the aircraft is over anywhere except a foreign country;
and
(c) in the case of an aircraft that is not an Australian aircraft—
the requirement is made when the aircraft is over Australia;
and
(d) the flight of the aircraft is exempt from any provision of the
Customs Acts under subsection 30A(5) of this Act.
Note: Section 30A gives effect to provisions of the Torres Strait Treaty in
relation to certain traditional activities.
(3) An authorised person may seize without warrant any goods (other
than narcotic goods) on the ship or aircraft that the authorised
person reasonably suspects are special forfeited goods.
Note: For seizure of narcotic goods without warrant, see section 203C of this
Act and subparagraph 67(1)(b)(ii) of the Maritime Powers Act 2013.
(4) If, in the course of searching the ship or aircraft, an authorised
person finds a thing that he or she believes on reasonable grounds
is evidential material relating to an offence committed in respect of
special forfeited goods, the authorised person may, without
warrant, seize that thing.
(5) The authorised person must exercise his or her powers subject to
section 203D.
203CB Seizure without warrant of certain other goods in the
Protected Zone
(1) This section applies if an authorised person suspects on reasonable
grounds that:
(a) goods are:
(i) at, or in a container at, a place that is near a ship or
aircraft to which paragraph 203CA(1)(c) or (2)(d)
applies; or
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42 Customs Act 1901
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(ii) in, on, or in a container on, a conveyance at such a
place; or
(iii) in a container in the immediate physical possession of,
but not carried on the body of, a person at such a place;
and
(b) the goods:
(i) in the case of an arriving ship or aircraft—have been
unloaded from that ship or aircraft; or
(ii) in the case of a leaving ship or aircraft—will be loaded
onto that ship or aircraft; and
(c) the goods are special forfeited goods (other than narcotic
goods).
(2) The authorised person may, without warrant:
(a) search the place or any container at the place for special
forfeited goods (other than narcotic goods); or
(b) stop and detain the conveyance about to leave the place, and
search it and any container on it for such goods; or
(c) search the container in the immediate physical possession of
the person for such goods;
as the case requires, and seize any goods that the authorised person
reasonably suspects are special forfeited goods (other than narcotic
goods) if the authorised person finds them there.
Note: For seizure of narcotic goods without warrant, see section 203C of this
Act and subparagraph 67(1)(b)(ii) of the Maritime Powers Act 2013.
(3) If, in the course of searching under subsection (2) for special
forfeited goods, an authorised person finds a thing that he or she
believes on reasonable grounds is evidential material relating to an
offence committed in respect of those goods, the authorised person
may, without warrant, seize that thing whether or not the
authorised person has found those goods.
(4) For the purposes of a search conducted under subsection (2), the
authorised person may question any person apparently in charge of
the place, conveyance or container about any goods or thing at the
place, in or on the conveyance, or in the container.
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Section 203D
Customs Act 1901 43
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(5) The authorised person must exercise his or her powers subject to
section 203D.
203D How an authorised person is to exercise certain powers
(1) An authorised person who exercises powers under section 203B,
203C, 203CA or 203CB in relation to a conveyance must not
detain the conveyance for longer than is necessary and reasonable
to exercise those powers.
(2) An authorised person exercising powers under section 203B, 203C,
203CA or 203CB may use such force as is necessary and
reasonable in the circumstances, but must not:
(a) forcibly remove any container or other goods from a person’s
physical possession; or
(b) damage any place, conveyance, container or other goods of
which the person is apparently in charge;
unless:
(c) the person has been given a reasonable opportunity to
facilitate the exercise of the powers by providing access to
the place, conveyance, container or goods or by opening the
conveyance or container; or
(d) it is not possible to give that person such an opportunity.
Subdivision DA—Seizure of certain goods in transit
203DA When seizure warrants for goods in transit can be issued
(1) A judicial officer may issue a warrant to seize goods on or in
particular premises if the judicial officer is satisfied by information
on oath that the Minister has reasonable grounds for suspecting
that:
(a) the goods are, or within the next 72 hours will be, on or in the
premises; and
(b) the goods have been or will be brought into Australia on a
ship or aircraft and are intended to be kept on board the ship
or aircraft for shipment on to a place outside Australia,
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Section 203DA
44 Customs Act 1901
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without being imported into Australia or exported from
Australia; and
(c) the goods satisfy either or both of the following
subparagraphs:
(i) the goods are connected, whether directly or indirectly,
with the carrying out of a terrorist act, whether a
terrorist act has occurred, is occurring or is likely to
occur;
(ii) the existence or the shipment of the goods prejudices, or
is likely to prejudice, Australia’s defence or security or
international peace and security.
(2) If a judicial officer issues a warrant, the judicial officer is to state
in the warrant:
(a) a description of the goods to which the warrant relates; and
(b) a description of the premises on or in which the goods are
believed to be located; and
(c) the name of the authorised person who, unless that authorised
person inserts the name of another authorised person in the
warrant, is to be responsible for executing the warrant; and
(d) the time at which the warrant expires (see subsection (3));
and
(e) whether the warrant may be executed at any time or only
during particular hours.
(3) The time stated in the warrant under paragraph (2)(d) as the time at
which the warrant expires must be a time that is not later than the
end of the seventh day after the day on which the warrant is issued.
Example: If a warrant is issued at 3 pm on a Monday, the expiry time specified
must not be later than midnight on Monday in the following week.
(4) The judicial officer is also to state in the warrant that it authorises
the seizure of goods found on or in the premises in the course of
the search that the executing officer or a person assisting believes
on reasonable grounds to be special forfeited goods.
(5) Paragraph (2)(d) and subsection (3) do not prevent the issue of
successive warrants in relation to the same premises.
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Section 203DB
Customs Act 1901 45
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(6) If the application for the warrant is made under section 203M, this
section (other than subsection (3)) applies as if:
(a) subsection (1) referred to 48 hours rather than 72 hours; and
(b) paragraph (2)(d) required the judicial officer to state in the
warrant the period for which the warrant is to remain in
force, which must not be more than 48 hours.
(7) A judicial officer of a particular State or Territory may issue a
warrant in respect of the seizure of goods on or in premises in
another State or Territory.
203DB The things that are authorised by seizure warrants for goods
in transit
(1) A seizure warrant that is in force under section 203DA in relation
to premises authorises the executing officer or a person assisting:
(a) to enter the warrant premises; and
(b) to search for the goods described in the warrant; and
(c) to seize the goods described in the warrant; and
(d) to seize other goods:
(i) that are found on or in the premises in the course of
searching for the goods the subject of the warrant; and
(ii) that the executing officer or a person assisting believes
on reasonable grounds to be special forfeited goods.
(2) Without limiting the generality of the powers conferred by a
warrant issued in respect of premises that are not a conveyance or a
container, the warrant extends to every conveyance or container on
the premises.
(3) Without limiting the generality of the powers conferred by a
warrant issued in respect of premises that are a conveyance, the
warrant:
(a) permits entry of the conveyance, wherever it is; and
(b) extends to every container on the conveyance.
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Section 203E
46 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
(4) A warrant issued in respect of premises that are a container permits
entry of the container, wherever it is, to the extent that it is of a size
permitting entry.
(5) If the warrant states that it may be executed only during particular
hours, the warrant must not be executed outside those hours.
Subdivision E—Provisions applicable both to search and
seizure warrants
203E Conduct of ordinary searches and frisk searches
An ordinary search or a frisk search of a person under this Division
must, if practicable, be conducted by a person of the same sex as
the person being searched.
203F Announcement before entry
(1) The executing officer must, before any person enters premises
under a search warrant or a seizure warrant:
(a) announce that he or she is authorised to enter the premises;
and
(b) give any person at the premises an opportunity to allow entry
to the premises.
(2) The executing officer is not required to comply with subsection (1)
if he or she believes on reasonable grounds that immediate entry to
the premises is required to ensure:
(a) the safety of a person (including the executing officer); or
(b) that the effective execution of the warrant is not frustrated.
203G Details of warrant to be given to occupier
(1) If a search warrant or a seizure warrant in relation to premises is
being executed and the occupier of the premises or another person
who apparently represents the occupier is present at the place
where the warrant is executed, the executing officer or a person
assisting must make available to that person a copy of the warrant.
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Section 203H
Customs Act 1901 47
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(2) If a person is searched under a warrant in relation to premises, the
executing officer or a person assisting must show the person a copy
of the warrant.
(3) The executing officer must identify himself or herself to the person
at the place where the warrant is executed.
(4) At the time of executing the warrant, the executing officer or a
person assisting:
(a) is not required to have in his or her possession or under his or
her immediate control the original warrant; but
(b) must have in his or her possession or under his or her
immediate control a copy of the warrant.
(5) In this section:
a copy of the warrant means:
(a) in relation to a warrant issued under section 198, 203 or
203DA—a copy that includes the signature of the judicial
officer who issued the warrant; and
(b) in relation to a warrant issued under section 203M—a
completed form of warrant that includes the name of the
judicial officer who issued the warrant.
203H Occupier entitled to be present during search or seizure
(1) If a search warrant or a seizure warrant in relation to premises is
being executed and the occupier of the premises or another person
who apparently represents the occupier is present at the place
where the warrant is executed, the person is, subject to Part IC of
the Crimes Act 1914, entitled to observe the search or seizure being
conducted.
(2) The right to observe the search or seizure being conducted ceases if
the person impedes the search or seizure.
(3) This section does not prevent 2 or more areas of the premises being
searched at the same time.
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Section 203HA
48 Customs Act 1901
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203HA Requirement to provide name or address etc.
Request to provide name or address etc.
(1) If:
(a) a search warrant or seizure warrant in relation to premises is
being executed; and
(b) the designated warrant officer believes on reasonable grounds
that a person who is at or near the premises may be able to
assist the officer in the execution of the warrant;
the officer may request the person to provide his or her name or
address, or name and address, to the officer.
Offence—person’s refusal or failure to comply with request etc.
(2) A person commits an offence if:
(a) a designated warrant officer:
(i) has made a request of the person under subsection (1);
and
(ii) has informed the person of the reason for the request;
and
(iii) has complied with any request that the person has made
under paragraph (4)(b); and
(b) the person refuses or fails to comply with the request, or
gives a name or address that is false in a material particular.
Penalty: 5 penalty units.
(3) Subsection (2) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (3) (see subsection 13.3(3) of the Criminal Code).
Offence—designated warrant officer’s refusal or failure to comply
with request etc.
(4) A designated warrant officer commits an offence if:
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Section 203J
Customs Act 1901 49
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(a) the officer makes a request of a person under subsection (1);
and
(b) the person requests the officer to provide to the person:
(i) his or her name or the address of his or her place of
duty; or
(ii) his or her name and that address; or
(iii) if the officer is not in uniform and it is practicable for
the officer to provide the evidence—evidence that he or
she is an officer; and
(c) the officer refuses or fails to comply with the request, or
gives a name or address that is false in a material particular.
Penalty: 5 penalty units.
Definition
(5) In this section:
designated warrant officer, in relation to a search warrant or
seizure warrant, means:
(a) the executing officer; or
(b) a person who is an authorised person and who is assisting in
the execution of the warrant.
203J Availability of assistance and use of force in executing a
warrant
In executing a search warrant or a seizure warrant:
(a) the executing officer may obtain such assistance; and
(b) the executing officer, or a person who is an authorised person
and who is assisting in executing the warrant, may use such
force against persons and things;
as is necessary and reasonable in the circumstances.
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Section 203K
50 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
203K Specific powers available to executing officers
(1) In executing a search warrant or a seizure warrant in relation to
premises, the executing officer or a person assisting may:
(a) for a purpose incidental to the execution of the warrant; or
(b) if the occupier of the premises consents in writing;
take photographs or video recordings of the premises or of things
on or in the premises.
(2) If a search warrant or a seizure warrant in relation to premises is
being executed, the executing officer and the persons assisting
may, if the warrant is still in force, complete the execution of the
warrant after all of them temporarily cease its execution and leave
the premises:
(a) for not more than one hour; or
(b) for a longer period if the occupier of the premises consents in
writing.
(3) If:
(a) the execution of a search warrant or of a seizure warrant is
stopped by an order of a court; and
(b) the order is later revoked or reversed on appeal; and
(c) the warrant is still in force;
the execution of the warrant may be completed.
(4) If:
(a) the execution of a search warrant or of a seizure warrant is
stopped by an order of a court; and
(b) the order is later revoked or reversed on appeal; and
(c) the warrant has ceased to be in force;
the court revoking or reversing the order may reissue the warrant
for a further period not exceeding 7 days.
(5) The court must not exercise the power under subsection (4) unless
it is satisfied of the matters set out in subsection 198(1), 203(1) or
203DA(1).
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Section 203L
Customs Act 1901 51
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203L Use of animals in executing a warrant
In executing a search warrant or a seizure warrant in relation to
premises, the executing officer or a person assisting may bring to
the premises any animals reasonably necessary for locating things
the subject of the warrant.
203M Warrants by telephone or other electronic means
(1) An authorised person may apply to a judicial officer for a search
warrant or for a seizure warrant by telephone, telex, fax or other
electronic means:
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in
person would frustrate the effective execution of the warrant.
(2) The judicial officer:
(a) may require communication by voice to the extent that it is
practicable in the circumstances; and
(b) may make a recording of the whole or any part of any such
communication by voice.
(3) An application under this section must include all information
required to be provided in an ordinary application for a search
warrant or for a seizure warrant, but the application may, if
necessary, be made before the information is sworn.
(4) If an application is made to a judicial officer under this section and
the judicial officer, after considering the information and having
received and considered such further information (if any) as the
judicial officer required, is satisfied that:
(a) a search warrant or a seizure warrant in the terms of the
application should be issued urgently; or
(b) the delay that would occur if an application were made in
person would frustrate the effective execution of the warrant;
the judicial officer may complete and sign the same form of
warrant that would be issued under section 198, 203 or 203DA.
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Section 203N
52 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
(5) If the judicial officer decides to issue the warrant, the judicial
officer is to inform the applicant, by telephone, telex, fax or other
electronic means, of the terms of the warrant and the day on which
and the time at which it was signed.
(6) The applicant must then complete a form of warrant in terms
substantially corresponding to those given by the judicial officer,
stating on the form the name of the judicial officer and the day on
which and the time at which the warrant was signed.
(7) The applicant must, not later than the day after:
(a) the day of expiry of the warrant; or
(b) the day on which the warrant was executed;
whichever is the earlier, give or transmit to the judicial officer the
form of warrant completed by the applicant and, if the information
referred to in subsection (3) was not sworn, that information duly
sworn.
(8) The judicial officer must:
(a) attach to the documents provided under subsection (7) the
form of warrant signed by the judicial officer; and
(b) give or transmit to the applicant the attached documents.
(9) If:
(a) it is material, in any proceedings, for a court to be satisfied
that the exercise of a power under a warrant issued under this
section was duly authorised; and
(b) the form of warrant signed by the judicial officer is not
produced in evidence;
the court is to assume, unless the contrary is proved, that the
exercise of the power was not duly authorised.
203N Receipts for things seized under warrant
(1) If a thing is seized under a search warrant or a seizure warrant, the
executing officer or a person assisting must provide a receipt for
the thing.
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Section 203P
Customs Act 1901 53
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(2) If 2 or more things are seized, they may be covered in the one
receipt.
203P Offence for making false statements in warrants
A person must not make, in an application for a search warrant or
for a seizure warrant, a statement that the person knows to be false
or misleading in a material particular.
Penalty: Imprisonment for 2 years.
203Q Offences relating to telephone warrants
(1) A person must not:
(a) state in a document that purports to be a form of warrant
under section 203M the name of a judicial officer; or
(b) state on a form of warrant under that section a matter that, to
the person’s knowledge, departs in a material particular from
the form authorised by the judicial officer; or
(c) purport to execute, or present to a person, a document that
purports to be a form of warrant under that section that the
person knows:
(i) has not been approved by a judicial officer under that
section; or
(ii) departs in a material particular from the terms
authorised by a judicial officer under that section; or
(d) give to a judicial officer a form of warrant under that section
that is not the form of warrant that the person purported to
execute.
Penalty: Imprisonment for 2 years.
(2) Paragraph (1)(a) does not apply if the judicial officer named in the
warrant issued it.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (2) (see subsection 13.3(3) of the Criminal Code).
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Section 203R
54 Customs Act 1901
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Subdivision F—Dealing with things seized as evidential
material
203R Retention of things seized as evidential material
(1) Subject to any law of the Commonwealth, a State or a Territory
permitting the retention, destruction or disposal of a thing seized as
evidential material by an officer of Customs under a search warrant
or by an authorised person under subsection 203B(3), 203C(3),
203CA(4) or 203CB(3), the officer or authorised person must
return it if:
(a) the reason for its seizure no longer exists or it is decided that
it is not to be used in evidence; or
(b) 120 days after its seizure:
(i) proceedings in respect of which the thing may afford
evidence have not been started; and
(ii) an order permitting the thing to be retained has not been
made under section 203S; and
(iii) an order of a court of the Commonwealth or of a State
or Territory permitting the retention, destruction or
disposal of the thing has not been made;
whichever first occurs.
(2) For the purposes of this section, the return of a thing requires its
return to the person reasonably believed to be the owner of the
thing in a condition as near as practicable to the condition in which
it was seized.
203S Magistrate may permit a thing seized as evidential material to
be retained
(1) If a thing is seized as evidential material by an officer of Customs
under a search warrant, or by an authorised person under
subsection 203B(3), 203C(3), 203CA(4) or 203CB(3), and:
(a) before the end of 120 days after the seizure; or
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(b) before the end of a period previously specified in a
magistrate’s order under this section;
proceedings in respect of which the thing may afford evidence
have not been started:
(c) if the thing is seized by an officer of Customs under a search
warrant—an officer of Customs may apply to a magistrate
for an order that the thing be retained; or
(d) if the thing is seized by an authorised person under
subsection 203B(3), 203C(3), 203CA(4) or 203CB(3)—an
authorised person may apply to a magistrate for an order that
the thing be retained.
(2) If the magistrate is satisfied:
(a) that it is necessary for the retention of the thing be continued:
(i) for the purposes of an investigation as to whether an
offence has been committed; or
(ii) to enable evidence of an offence to be assembled for the
purposes of a prosecution; and
(b) that there has been no avoidable delay in conducting the
investigation or assembling the evidence concerned;
the magistrate may order that the thing be retained for a period
specified in the order.
(3) Before making the application, the officer of Customs or the
authorised person must:
(a) take reasonable steps to discover who has an interest in the
retention of the thing; and
(b) if it is practicable to do so, notify each person who the officer
believes to have such an interest of the proposed application.
Subdivision G—Dealing with goods seized as forfeited goods
203SA Subdivision does not apply to seized transit goods
This Subdivision does not apply to goods that have been seized
under a seizure warrant under section 203DA, except for goods
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Section 203T
56 Customs Act 1901
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seized under paragraph 203DB(1)(d) (which covers goods
suspected of being special forfeited goods).
Note: For seized transit goods, see Subdivision GA.
203T Seizure of protected objects
(1) In this section:
inspector has the same meaning as in the Act.
Minister means the Minister administering the Act.
the Act means the Protection of Movable Cultural Heritage Act
1986.
(2) Where:
(a) the Minister is of the opinion that a particular object may
become forfeited by virtue of section 9 of the Act; or
(b) a foreign country has requested the return of a particular
object exported from that country and the Minister is of the
opinion that the object may become liable to forfeiture by
virtue of section 14 of the Act;
the Minister may issue a notice in writing to the
Comptroller-General of Customs to that effect.
(3) An officer may seize a protected object or any object that the
officer believes on reasonable grounds is a protected object, being
an object that is subject to customs control.
(4) Where an officer seizes an object under subsection (3), the officer
shall forthwith deliver the object into the custody of an inspector.
204 Seized goods to be secured
(1) In this section:
approved place, in relation to goods, means a place approved by a
Collector as a place for the storage of goods of that kind.
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(2) If an officer of Customs seizes any goods other than
narcotic-related goods under a seizure warrant or under
section 203B, 203CA or 203CB, the officer must, as soon as
practicable, take those goods to an approved place.
(3) If a person other than an officer of Customs seizes any goods other
than narcotic-related goods under a seizure warrant or under
section 203B, 203CA or 203CB, the person must, as soon as
practicable, deliver the goods into the custody of an officer of
Customs.
(4) If a person other than a member of the Australian Federal Police
seizes:
(a) any narcotic-related goods under a seizure warrant or under
section 203B, 203CA or 203CB; or
(b) any narcotic goods under section 203C;
the person must, as soon as practicable, deliver the goods into the
custody of a member of the Australian Federal Police.
(5) If goods are delivered to an officer of Customs under
subsection (3), the officer must:
(a) if paragraph (b) does not apply—as soon as practicable,
deliver the goods to an approved place; or
(b) if the goods are delivered to the officer at an approved
place—leave the goods at that place.
205 Requirement to serve seizure notices
(1) After goods have been seized under a seizure warrant or under
subsection 203B(2) or (2A), 203C(2), 203CA(3) or 203CB(2), the
responsible person must serve, within 7 days after the seizure, a
seizure notice on the owner of the goods or, if the owner cannot be
identified after reasonable inquiry, on the person in whose
possession or under whose control the goods were when they were
seized.
(2) Subsection (1) applies whether or not a claim for the return of the
goods seized has been made under section 205B.
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Section 205A
58 Customs Act 1901
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(3) The notice must be in writing and must be served:
(a) personally or by post; or
(b) if no person of the kind referred to in subsection (1) can be
identified after reasonable inquiry—by publishing a copy of
the notice in a newspaper circulating in the location in which
the goods were seized.
(4) A seizure notice may be served on a person who is outside
Australia.
(5) In this section:
responsible person means:
(a) in relation to goods other than narcotic-related goods—the
officer of Customs who seized the goods or to whom the
goods were delivered under subsection 204(3); or
(b) in relation to narcotic-related goods—the member of the
Australian Federal Police who seized the goods or to whom
the goods were delivered under subsection 204(4).
205A Matters to be dealt with in seizure notices
A seizure notice must set out the following:
(a) a statement identifying the goods;
(b) the day on which they were seized;
(c) the ground, or each of the grounds, on which they were
seized;
(d) the effect of sections 205B and 205C; and
(e) if the notice is to be served in a foreign country—a statement
that the person served, if that person has not yet made a claim
for the return of the goods, may not make such a claim unless
he or she has first appointed in writing an agent in Australia
with authority to accept service of documents, including
process in any proceedings arising out of the matter.
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Section 205B
Customs Act 1901 59
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205B Claim for return of goods seized
(1) Subject to subsections (1A) and (1B), if goods are seized under a
seizure warrant or under subsection 203B(2) or (2A), 203C(2),
203CA(3) or 203CB(2), the owner of the goods may, whether or
not a seizure notice has yet been served on the owner, make a
claim to the appropriate person for the return of the goods.
(1A) A claim may not be made for the return of goods that have been
taken to be condemned as forfeited to the Crown under
subsection 243Y(1).
(1B) Subsection (1A) ceases to apply in relation to the goods if
subsection 243Y(1) ceases to apply in relation to the goods because
of the operation of subsection 243Y(4).
(2) A claim:
(a) must be in writing in an approved form; and
(b) must specify the grounds on which the claim is made; and
(c) if it is made by a person who does not reside or have a place
of business in Australia, must:
(i) appoint an agent in Australia with authority to accept
service of documents, including process in any
proceedings, arising out of the matter; and
(ii) specify the address of the agent for service; and
(iii) be accompanied by the written consent of the agent
signed by the agent, agreeing to act as agent.
(3) In this section:
appropriate person means:
(a) in relation to goods other than narcotic-related goods—the
Comptroller-General of Customs; and
(b) in relation to narcotic-related goods:
(i) the Commissioner of Police; or
(ii) a Deputy Commissioner of Police.
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Section 205C
60 Customs Act 1901
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205C Treatment of goods seized if no claim for return is made
(1) If:
(a) goods have been seized under a seizure warrant or under
subsection 203B(2) or (2A), 203C(2), 203CA(3) or
203CB(2); and
(b) a seizure notice has been served; and
(c) at the end of 30 days after the day the notice was served, no
claim has been made for the return of the goods and
subsection 205B(1A) has not applied in relation to the goods;
the goods are taken to be condemned as forfeited to the Crown.
(2) If:
(a) goods have been seized under a seizure warrant or under
subsection 203B(2) or (2A), 203C(2), 203CA(3) or
203CB(2); and
(b) a seizure notice has been served; and
(c) an infringement notice for an offence in relation to the
importation of the goods has been given; and
(d) the penalty specified in the infringement notice is paid within
the period within which, or by the time by which, the penalty
is required to be paid; and
(e) the infringement notice is withdrawn and, as a result,
subsection 205B(1A) ceases to apply in relation to the goods;
and
(f) at the end of 30 days after the day notice of the withdrawal of
the infringement notice is given to the person, no claim has
been made for the return of the goods;
the goods are taken to be condemned as forfeited to the Crown.
205D Treatment of goods seized if a claim for return is made—
general
(1) This section applies if:
(a) goods are seized under a seizure warrant or under
subsection 203B(2) or (2A), 203C(2), 203CA(3) or
203CB(2); and
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(aa) a claim for the return of the goods may be made under
section 205B; and
(b) before the end of the 30-day period referred to in
paragraph 205C(1)(c) or (2)(f), a claim is made under
section 205B for return of the goods.
(1A) However, this section does not apply in relation to goods seized on
the belief or suspicion that they are a prohibited psychoactive
substance.
(2) The authorised person who seized the goods must, subject to any
law of the Commonwealth, a State or a Territory permitting their
retention, destruction or disposal, return the goods unless:
(a) the goods have been dealt with under section 206 or 207; or
(aa) the goods have been taken to be condemned as forfeited to
the Crown under subsection 243Y(1); or
(b) not later than 120 days after the claim for their return is
made, proceedings in respect of an offence involving the
goods have been commenced and, on completion of the
proceedings, a court has made an order for condemnation of
the goods as forfeited to the Crown; or
(c) not later than 120 days after the claim for their return is
made:
(i) an order permitting the goods to be retained for a
specified period has been made under section 205E; and
(ii) before the end of that specified period, proceedings in
respect of an offence involving the goods have been
commenced and, on completion of the proceedings, a
court has made an order for condemnation of the goods
as forfeited to the Crown; or
(d) not later than 120 days after the claim for their return is
made:
(i) an order permitting the goods to be retained for a
specified period has been made under section 205E; and
(ii) before the end of that specified period proceedings have
been commenced before a court of summary jurisdiction
for a declaration that the goods are special forfeited
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Section 205D
62 Customs Act 1901
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goods and, on completion of the proceedings, a court
has made an order for condemnation of the goods as
forfeited to the Crown; or
(e) if the goods were seized as special forfeited goods—not later
than 120 days after the claim for their return is made,
proceedings before a court of summary jurisdiction for a
declaration that the goods are special forfeited goods have
been commenced and, on completion of the proceedings, a
court has made an order for condemnation of the goods as
forfeited to the Crown.
Note: Subsection (9) gives special forfeited goods a wider meaning for the
purposes of this section.
(2A) Paragraph (2)(aa) ceases to apply in relation to the goods if
subsection 243Y(1) ceases to apply in relation to the goods because
of the operation of subsection 243Y(4).
(3) If:
(a) goods seized otherwise than as special forfeited goods have
not been dealt with under section 206; and
(b) proceedings of the kind referred to in paragraph (2)(b) or (c)
are commenced in respect of an offence involving the goods;
and
(c) on completion of the proceedings, the court:
(i) finds that the offence is proved; and
(ii) is satisfied, in all the circumstances of the case, that it is
appropriate that an order be made for condemnation of
the goods as forfeited to the Crown;
the court must make an order to that effect.
Note: Subsection (9) gives special forfeited goods a wider meaning for the
purposes of this section.
(4) If:
(a) goods seized as special forfeited goods have not been dealt
with under section 206 or 207; and
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(b) proceedings of the kind referred to in paragraph (2)(b) or (c)
are commenced in respect of an offence involving the goods;
and
(c) on completion of the proceedings, the court is satisfied that
the goods are special forfeited goods;
the court must make an order for condemnation of the goods as
forfeited to the Crown, whether or not the court finds the offence
proved.
Note: Subsection (9) gives special forfeited goods a wider meaning for the
purposes of this section.
(5) Subject to subsection (6) if:
(a) goods seized as special forfeited goods have not been dealt
with under section 206 or 207; and
(b) proceedings of the kind referred to in paragraph (2)(d) or (e)
are commenced in respect of the goods; and
(c) on completion of the proceedings, the court is satisfied that
the goods are special forfeited goods;
the court must declare the goods to be special forfeited goods and
make an order for condemnation of the goods as forfeited to the
Crown.
Note: Subsection (9) gives special forfeited goods a wider meaning for the
purposes of this section.
(6) A court must not make an order for condemnation of goods under
subsection (5) if proceedings for an offence involving the goods
have been commenced.
(7) If the finding of a court in proceedings under paragraph (2)(b), (c),
(d) or (e) in respect of goods that have not been dealt with under
section 206 or 207 may be taken on appeal to another court, the
goods are not to be returned under subsection (2), or disposed of
under section 208D or 208DA, while that appeal may be made, or,
if it is made, until the completion of that appeal.
(8) For the purposes of this section, the return of goods requires their
return to the person reasonably believed to be the owner of the
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Section 205E
64 Customs Act 1901
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goods in a condition as near as practicable to the condition in
which they were seized.
(9) In this section:
offence means an offence against any law of the Commonwealth, a
State or a Territory.
special forfeited goods includes goods that are forfeited under
section 7, 10, 11 or 13 of the Commerce (Trade Descriptions) Act
1905.
(10) In this section, a reference to completion of proceedings includes a
reference to completion of any appeal process arising from those
proceedings.
205E Magistrate may permit goods seized to be retained
(1) If goods are seized under a seizure warrant or under
subsection 203B(2) or (2A), 203C(2), 203CA(3) or 203CB(2) and:
(a) before the end of 120 days after the making of a claim for
their return; or
(b) before the end of the period previously specified in a
magistrate’s order under this section;
proceedings of the kind referred to in paragraph 205D(2)(b) have
not been started, an authorised person may apply to a magistrate
for an order that the goods be retained.
(2) If the magistrate is satisfied that:
(a) it is necessary that the retention of the goods continue while
evidence of the offence to which the proceedings referred to
in paragraph 205D(2)(b) relate is assembled; and
(b) there has been no avoidable delay in assembling that
evidence;
the magistrate may order that the goods be retained for a period
specified in the order.
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Section 205EA
Customs Act 1901 65
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(3) Before making the application, the authorised person must:
(a) take reasonable steps to discover who has an interest in the
retention of the goods; and
(b) if it is practicable to do so, notify each person who the officer
believes to have such an interest of the proposed application.
(4) This section does not apply in relation to goods seized on the belief
or suspicion that they are a prohibited psychoactive substance.
205EA Treatment of goods seized if a claim for return is made—
suspected prohibited psychoactive substances
(1) This section applies if:
(a) goods are seized under a seizure warrant or under
subsection 203B(2) or (2A), 203CA(3) or 203CB(2); and
(b) the goods are seized on belief or suspicion that they are a
prohibited psychoactive substance; and
(c) a claim for the return of the goods may be made under
section 205B; and
(d) not later than 30 days after the day the seizure notice was
served, a claim is made under section 205B for return of the
goods.
(2) The authorised person who seized the goods must, subject to any
law of the Commonwealth, a State or a Territory permitting their
retention, destruction or disposal, return the goods unless:
(a) the goods have been dealt with under section 206; or
(b) not later than 30 days after the day the claim is made, the
Comptroller-General of Customs gives the claimant a written
notice stating that the goods will be condemned as forfeited if
the claimant does not, within 30 days after receiving the
notice, institute proceedings against the Commonwealth:
(i) to recover the goods; or
(ii) for a declaration that the goods are not forfeited.
(3) A notice under paragraph (2)(b):
(a) must be served personally or by post; and
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Section 205EB
66 Customs Act 1901
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(b) may be served on a person who is outside Australia.
(4) The goods are condemned as forfeited to the Crown if:
(a) the claimant does not institute proceedings of a kind referred
to in paragraph (2)(b) within the period of 30 days after
receiving the notice under that paragraph (or within that
period as extended, or further extended, under
section 205EB); or
(b) the claimant institutes such proceedings within that period (or
within that period as extended or further extended), and at the
end of the proceedings there is not:
(i) an order for the claimant to recover the goods; or
(ii) an order for the Commonwealth to pay the claimant the
market value of the goods at the time they were
disposed of or destroyed, if they have been disposed of
or destroyed before the end of the proceedings; or
(iii) a declaration that the goods are not forfeited.
(5) For the purposes of subsection (4), if the proceedings go to
judgment, they end:
(a) at the end of the period for lodging an appeal against the
judgment, if no appeal is lodged within that period; or
(b) when the appeal lapses or is finally determined, if an appeal
is lodged against the judgment within that period.
(6) For the purposes of this section, the return of goods requires their
return to the person reasonably believed to be the owner of the
goods in a condition as near as practicable to the condition in
which they were seized.
205EB Extending the period for instituting proceedings for recovery
of suspected prohibited psychoactive substances
(1) A person who has been given a notice under
paragraph 205EA(2)(b) in relation to goods may, before the end of
the applicable period under paragraph 205EA(4)(a), apply to a
magistrate for an extension, or a further extension, of the period.
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Section 205EC
Customs Act 1901 67
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(2) If the magistrate is satisfied that:
(a) it is necessary that the retention of the goods continue while
information is assembled relating to whether the goods are a
prohibited psychoactive substance; and
(b) there has been no avoidable delay in assembling that
information;
the magistrate may order that the period be extended, or further
extended, for a period specified in the order.
205EC Proceedings for recovery of suspected prohibited
psychoactive substances
(1) Proceedings of a kind referred to in paragraph 205EA(2)(b) may be
instituted or continued even if the goods to which the proceedings
relate are disposed of or destroyed.
(2) In proceedings of a kind referred to in paragraph 205EA(2)(b):
(a) the Commonwealth bears the onus of proving that the goods
to which the proceedings relate were imported; and
(b) the person instituting the proceedings bears the onus of
proving that the goods:
(i) are not a psychoactive substance; or
(ii) are a substance to which, because of subsection 320.2(2)
of the Criminal Code, section 320.2 of the Criminal
Code does not apply.
(3) If:
(a) the goods to which proceedings of a kind referred to in
paragraph 205EA(2)(b) relates have been disposed of or
destroyed before the end of the proceedings; and
(b) the court hearing the proceedings decides that, apart from the
disposal or destruction, it would have ordered that the goods
be returned to a person;
the court must order the Commonwealth to pay the person an
amount equal to the market value of the goods at the time they
were disposed of or destroyed.
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Section 205F
68 Customs Act 1901
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205F Right of compensation in certain circumstances for goods
disposed of or destroyed
(1) Despite the disposal or destruction of goods taken to be condemned
as forfeited to the Crown because no claim for their return or
recovery was made, a person may apply to a court of competent
jurisdiction under this section for compensation.
(2) A right to compensation exists if:
(a) the goods are not special forfeited goods within the meaning
of section 205D; and
(b) the goods were not used or otherwise involved in the
commission of an offence; and
(c) the person establishes, to the satisfaction of the court:
(i) that he or she is the rightful owner of the goods; and
(ii) that there were circumstances providing a reasonable
excuse for the failure to claim the goods before the end
of the 30-day period referred to in paragraph 205C(1)(c)
or (2)(f) (as the case may be).
(3) If a right to compensation exists under subsection (2), the court
must order the payment by the Commonwealth to the person of an
amount equal to:
(a) if the goods have been sold—the proceeds of the sale; and
(b) if the goods have been destroyed—the market value of the
goods at the time of their destruction.
205G Effect of forfeiture
When goods are, or are taken to be, condemned as forfeited to the
Crown, the title to the goods immediately vests in the
Commonwealth to the exclusion of all other interests in the goods,
and the title cannot be called into question.
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Section 206
Customs Act 1901 69
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206 Immediate disposal of certain goods
Perishable goods and live animals
(1) If:
(a) goods are seized under a seizure warrant or under
subsection 203B(2) or (2A), 203CA(3) or 203CB(2); and
(b) the goods are perishable goods or live animals; and
(c) the Comptroller-General of Customs is satisfied that the
retention of the goods would constitute:
(i) a danger to public health; or
(ii) if the goods are live animals—a danger to the health of
other animals or a danger to plants or to agricultural
produce;
the Comptroller-General of Customs may cause the goods to be
dealt with in such manner as he or she considers appropriate
(including the destruction of the goods).
Dangerous goods
(1A) If:
(a) goods are seized under a seizure warrant or under
subsection 203B(2) or (2A), 203CA(3) or 203CB(2); and
(b) the Comptroller-General of Customs is satisfied that the
retention of the goods would constitute a danger to public
health or safety;
the Comptroller-General of Customs may cause the goods to be
dealt with in such manner as he or she considers appropriate
(including the destruction of the goods).
Unseaworthy vessels
(2) If:
(a) goods are seized under a seizure warrant or under
subsection 203B(2) or (2A), 203CA(3) or 203CB(2); and
(b) the goods are a vessel in the possession of an officer of
Customs; and
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(c) the Comptroller-General of Customs is satisfied that the
vessel is so unseaworthy that its custody or maintenance is
impracticable;
the Comptroller-General of Customs may cause the goods to be
dealt with in such manner as he or she considers appropriate
(including the destruction of the goods).
Prohibited psychoactive substances and prohibited serious drug
alternatives
(2A) If:
(a) goods are seized under a seizure warrant or under
subsection 203B(2) or (2A), 203CA(3) or 203CB(2); and
(b) the Comptroller-General of Customs is satisfied that the
goods are a prohibited psychoactive substance or a prohibited
serious drug alternative;
the Comptroller-General of Customs may cause the goods to be
dealt with in such manner as he or she considers appropriate
(including the destruction of the goods).
Notice
(3) As soon as practicable, but not later than 7 days after the goods
referred to in subsection (1), (1A), (2) or (2A) have been dealt
with, the Comptroller-General of Customs must give or publish a
notice in accordance with subsection (5).
(4) The notice must be in writing and must be served:
(a) personally or by post on the owner of the goods or, if the
owner cannot be identified after reasonable inquiry, on the
person in whose possession or under whose control the goods
were when they were seized; or
(b) if no person of the kind referred to in paragraph (a) can be
identified after reasonable inquiry—by publishing a copy of
the notice in a newspaper circulating in the location in which
the goods were seized.
(5) The notice must:
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(a) identify the goods; and
(b) state that the goods have been seized under a seizure warrant
or under subsection 203B(2) or (2A), 203CA(3) or 203CB(2)
and give the reason for the seizure; and
(c) state that the goods have been dealt with under
subsection (1), (1A), (2) or (2A) and specify the manner in
which they have been so dealt with and the reason for doing
so; and
(d) set out the terms of subsection (6).
Right to recover market value of goods
(6) If goods are dealt with in accordance with subsection (1), (1A), (2)
or (2A), the owner of the goods may bring an action against the
Commonwealth in a court of competent jurisdiction for the
recovery of the market value of the goods at the time they were so
dealt with.
(7) A right to recover the market value of the goods at the time they
were dealt with in accordance with subsection (1), (1A), (2) or
(2A) exists if:
(a) the goods are not special forfeited goods within the meaning
of section 205D; and
(b) the goods were not used or otherwise involved in the
commission of an offence; and
(c) the owner of the goods establishes, to the satisfaction of the
Court, that the circumstances for them to be so dealt with did
not exist.
(8) If a person establishes a right to recover the market value of the
goods at the time they were dealt with, the Court must order the
payment by the Commonwealth of an amount equal to that value at
that time.
207 Immediate disposal of narcotic goods
(1) If:
(a) goods are seized:
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(i) under a seizure warrant; or
(ii) under subsection 203B(2) or (2A), 203C(2), 203CA(3)
or 203CB(2); or
(iii) under section 67 of the Maritime Powers Act 2013; and
(b) the goods are reasonably believed by the Commissioner of
Police or a Deputy Commissioner of Police to be special
forfeited goods that are narcotic goods;
the Commissioner or Deputy Commissioner may cause the goods
to be dealt with in such manner as he or she considers appropriate
(including the destruction of the goods).
(2) If goods are dealt with in accordance with subsection (1), the
owner of the goods may bring an action against the
Commonwealth in a court of competent jurisdiction for the
recovery of the market value of the goods at the time they were so
dealt with.
(3) A right to recover the market value of the goods at the time they
were dealt with in accordance with subsection (1) exists if:
(a) the goods are not special forfeited goods; and
(b) the goods were not used or otherwise involved in the
commission of an offence; and
(c) the owner of the goods establishes, to the satisfaction of the
Court, that the circumstances for them to be so dealt with did
not exist.
(4) If a person establishes a right to recover the market value of the
goods at the time they were dealt with in accordance with
subsection (1) or (2), the Court must order the payment by the
Commonwealth of an amount equal to that value at that time.
208 Release of goods on security
(1) This section applies to goods:
(a) that have been seized under a seizure warrant; and
(b) that are not special forfeited goods; and
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(c) that are not taken to be forfeited to the Crown under
section 205C; and
(d) in respect of which proceedings have not yet been brought by
the Commonwealth under section 205D.
(2) The owner of the goods may apply to a court of summary
jurisdiction for an order that the goods be released to the owner on
provision to the Comptroller-General of Customs of security for an
amount determined by the court in accordance with subsection (4).
(3) In determining whether or not to order the release of the goods on
provision of a security, the court may have regard to:
(a) the impact that the continued retention of the goods would
have on the economic interests of third parties; and
(b) whether the continued retention of the goods would prevent
the provision of services by third parties which would place
at risk the health, safety or welfare of the community; and
(c) any other like matters that the court considers relevant.
(4) For the purposes of this section, the security to be provided in
respect of the goods is security for an amount determined by the
court that does not exceed the sum of:
(a) the market value of the goods at the time when the order is
made; and
(b) the costs incurred by the Commonwealth for storage of the
goods from the time of their seizure until the time of their
release under this section;
reduced by the amount of any duty that has been paid on the goods.
(5) If the security is given, the Comptroller-General of Customs is to
release the goods to the applicant.
208C Service by post
For the purposes of the application of section 29 of the Acts
Interpretation Act 1901 to the service by post of a seizure notice
under section 205 or a notice under subsection 206(3) on a person,
such a notice posted as a letter addressed to that person at the last
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Section 208D
74 Customs Act 1901
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address of that person known to the sender shall be deemed to be
properly addressed.
208D Disposal of forfeited goods
All goods seized under a seizure warrant, under
subsection 203B(2) or (2A), 203C(2), 203CA(3) or 203CB(2) or
under section 67 of the Maritime Powers Act 2013 that are taken to
be condemned as forfeited to the Crown under section 205C or that
are so condemned under section 205D or 205EA shall be dealt with
and disposed of in accordance with:
(a) in the case of goods other than narcotic-related goods—the
directions of the Comptroller-General of Customs; or
(b) in the case of narcotic goods—the directions of the
Commissioner of Police or a Deputy Commissioner of
Police; or
(c) in the case of narcotic-related goods other than narcotic
goods—in accordance with section 208DA.
208DA Disposal of narcotic-related goods other than narcotic goods
(1) In this section:
condemned goods means goods seized under a seizure warrant or
under subsection 203B(2) or 2A, 203C(2), 203CA(3) or 203CB(2):
(a) that are taken to be condemned as forfeited to the Crown
under section 205C; or
(b) that are so condemned under section 205D.
Official Trustee means the Official Trustee in Bankruptcy.
prescribed officer means an SES employee, or acting SES
employee, in the Attorney-General’s Department.
(2) All condemned goods that are narcotic-related goods (other than
narcotic goods) must, subject to any direction given under
subsection (4) in relation to those goods, be transferred to the
Official Trustee to be dealt with under subsection (3).
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(3) Where goods are transferred to the Official Trustee under
subsection (2), the Official Trustee must, as soon as practicable:
(a) if the goods are money—credit the amount of the money to
the Confiscated Assets Account as required by section 296 of
the Proceeds of Crime Act 2002; and
(b) if the goods are not money:
(i) sell or otherwise dispose of the goods; and
(ii) apply the proceeds of the sale or disposition in
accordance with subsection (3A); and
(iii) credit an amount equal to the remainder of those
proceeds to the Confiscated Assets Account as required
by section 296 of the Proceeds of Crime Act 2002.
(3A) The proceeds of the sale or disposition of condemned goods
transferred to the Official Trustee under subsection (2) must be
applied in payment of:
(a) the Official Trustee’s remuneration; and
(b) the other costs, charges and expenses of the kind referred to
in section 243P that are payable to, or incurred by, the
Official Trustee in connection with the sale or disposition;
and
(c) if the goods were seized by, or delivered into the custody of,
a member of the Australian Federal Police under a seizure
warrant, or under section 203B, 203C, 203CA, 203CB or
204—the costs, charges and expenses incurred by, or on
behalf of, the Commonwealth in connection with the
transportation, storage, custody and control of the goods
before their transferral to the Official Trustee.
(4) If condemned goods consist of, or include, narcotic-related goods
(other than narcotic goods), the Attorney-General, or a prescribed
officer authorised by the Attorney-General for the purposes of this
section, may, at any time before the condemned goods are sold or
otherwise disposed of under subsection (2), direct that those
narcotic-related goods be disposed of, or otherwise dealt with, as
specified in the direction.
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Section 208E
76 Customs Act 1901
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208E Sales subject to conditions
Where a ship or aircraft is sold under section 206 or sold or
otherwise disposed of under section 208D, the ship or aircraft may
be sold or disposed of subject to conditions, including, without
limiting the generality of the foregoing:
(a) a condition that, before the expiration of a period specified in
the condition, the ship or aircraft is to be exported from
Australia; or
(b) a condition that, before the expiration of a period specified in
the condition, the ship or aircraft is to be broken up.
209 Power to impound certain forfeited goods and release them on
payment of duty and penalty
(1) This section applies to dutiable goods that are forfeited by virtue of
paragraph 229(1)(a), (g), (o), (p), (q) or (qa) (including forfeited by
virtue of the operation of any of those paragraphs and section 230),
other than goods that are prohibited imports.
(2) Subject to subsection (3), an officer may impound goods instead of
obtaining a seizure warrant to seize them if:
(a) the goods are in a Customs place; and
(b) either:
(i) the goods are goods to which this section applies; or
(ii) the officer has reason to believe that the goods are
goods to which this section applies.
(3) An officer must not exercise the power to impound goods under
subsection (2) if, in the opinion of the officer, the amount of duty
sought to be evaded in respect of the goods exceeds $5,000.
(4) Goods impounded under this section shall be taken to such place of
security as the Collector directs.
(5) Where an officer impounds goods under this section, he or she
shall as soon as is practicable, but not later than 7 days after the
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day on which the goods were impounded, serve on the owner of
the goods, either personally or by post, a notice in writing:
(a) identifying:
(i) if the goods are an article—the article; or
(ii) if the goods consist of separate articles—each of those
articles; or
(iii) in any other case—the goods;
and stating that the article, articles or goods have been
impounded under subsection (2); and
(b) setting out the amount of duty demanded in respect of the
article, each of the articles, or the goods, identified in the
notice; and
(c) setting out the date on which the goods were impounded; and
(d) setting out the terms of, or adequate particulars of the
provisions of, subsections (6) and (7); and
(e) specifying the address at which payment under subsection (6)
may be made in respect of the goods.
(6) Where the owner of an article or goods identified in a notice served
under subsection (5) pays to the Collector, at the address for
payment shown in the notice and within 21 days after the day on
which the notice was served, the duty demanded in respect of the
article or goods (not being a payment under protest in accordance
with section 167) together with an amount of penalty equal to:
(a) if the goods were found in the course of a search of the
baggage of a person who has arrived in Australia from a
place outside Australia—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) if paragraph (a) does not apply to the goods—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;
the following provisions apply:
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(c) the Collector shall authorize the delivery of the article or
goods to the owner;
(d) the article ceases, or the goods cease, to be forfeited; and
(e) proceedings shall not be brought for an offence against this
Act in relation to the importation of the article or goods.
(7) Where the owner of an article or goods identified in a notice served
under subsection (5) does not pay duty and penalty in respect of the
article or goods in accordance with subsection (6), the article or
goods are taken:
(a) to have been seized under a seizure warrant at the end of 21
days after the notice is served; and
(b) to have been so seized by the officer who served the notice
under subsection (5).
(9) Neither the Commonwealth nor an officer or other person is under
any liability in relation to the impounding of any goods under this
section for which there was reasonable cause.
(10) For the purpose of the application of section 29 of the Acts
Interpretation Act 1901 to the service by post on the owner of
goods of a notice under subsection (5), such a notice posted as a
letter addressed to the owner at his or her last address known to the
officer required to serve the notice shall be deemed to be properly
addressed.
(11) A reference in this section to the baggage of a person who has
arrived in Australia shall be read as including a reference to goods
on his or her person or otherwise with him or her.
(12) A reference in this section to a search of the baggage of a person
shall be read as including a reference to a search of such part of the
baggage of a person as is available for search at a particular time.
209A Destruction or concealment of evidential material or forfeited
goods
A person must not:
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(a) destroy, or render incapable of identification, a document or
thing that is, or may be, evidential material or a forfeited
good; or
(b) render illegible or indecipherable such a document or thing;
or
(c) place or conceal on his or her body, or in any clothing worn
by the person, such a document or thing;
with the intention of preventing it from being seized by an
authorised person in the exercise of the person’s powers under a
search warrant, a seizure warrant or section 203B, 203C, 203CA or
203CB.
Penalty: Imprisonment for 2 years.
Subdivision GA—Dealing with goods in transit seized under a
section 203DA warrant
209B Subdivision applies to seized transit goods
This Subdivision applies to goods that have been seized under a
seizure warrant under section 203DA, except for goods seized
under paragraph 203DB(1)(d) (which covers goods suspected of
being special forfeited goods).
Note: For other kinds of seized goods, see Subdivision G.
209C Seized goods to be secured
An officer of Customs who seizes any goods to which this
Subdivision applies must, as soon as practicable, take the goods to
a place approved by a Collector as a place for the storage of goods
of that kind.
209D Requirement to serve seizure notices
(1) The officer must serve, within 7 days after the seizure, a seizure
notice on the owner of the goods or, if the owner cannot be
identified after reasonable inquiry, on the person in whose
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80 Customs Act 1901
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possession or under whose control the goods were when they were
seized.
(2) Subsection (1) applies whether or not an application for the return
of the goods seized has been made under section 209F.
(3) The notice must be in writing and must be served:
(a) personally or by post; or
(b) if no person of the kind referred to in subsection (1) can be
identified after reasonable inquiry—by publishing a copy of
the notice in a newspaper circulating in the location in which
the goods were seized.
(4) A seizure notice may be served on a person who is outside
Australia.
209E Matters to be dealt with in seizure notices
A seizure notice must set out the following:
(a) a statement identifying the goods;
(b) the day on which they were seized;
(c) the ground, or each of the grounds, on which they were
seized;
(d) a statement that, if an application for the return of the goods
has not already been made, and is not made within 30 days
after the day the notice is served, the goods will be taken to
be condemned as forfeited to the Crown.
209F Application for return of seized goods
(1) The owner of the goods may, whether or not a seizure notice has
yet been served on the owner, apply to a court of competent
jurisdiction for the return of the goods.
(2) An application must be made no later than 30 days after a seizure
notice is issued in respect of the goods.
(3) If the court finds that:
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(a) the goods are not goods of the kind mentioned in
subsection 203DA(1); and
(b) the goods were not used or otherwise involved in the
commission of an offence against any law of the
Commonwealth, a State or a Territory; and
(c) the person is the rightful owner of the goods;
the court must order that the goods be returned to the owner.
(4) Goods required to be so returned are required to be returned in a
condition as near as practicable to the condition in which they were
seized.
(5) If the court finds otherwise than as mentioned in subsection (3), the
goods are condemned as forfeited to the Crown.
209G Status of goods seized if no application for return is made
If:
(a) a seizure notice has been served; and
(b) at the end of 30 days after the day on which the notice was
served, no application has been made for return of the goods;
the goods are condemned as forfeited to the Crown.
209H Right of compensation for certain goods disposed of or
destroyed
(1) Despite the disposal or destruction of goods taken to be condemned
as forfeited to the Crown because no application for their return
was made, a person may apply to a court of competent jurisdiction
under this section for compensation.
(2) A right to compensation exists if:
(a) the goods are not goods of the kind mentioned in
subsection 203DA(1); and
(b) the goods were not used or otherwise involved in the
commission of an offence against any law of the
Commonwealth, a State or a Territory; and
(c) the person establishes, to the satisfaction of the court:
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(i) that he or she is the rightful owner of the goods; and
(ii) that there were circumstances providing a reasonable
excuse for the failure to apply for the return of the
goods not later than 30 days after the day the seizure
notice was served.
(3) If a right to compensation exists under subsection (2), the court
must order the payment by the Commonwealth to the person of an
amount equal to:
(a) if the goods have been sold—the proceeds of the sale; and
(b) if the goods have been destroyed or otherwise disposed of—
the goods’ market value at the time of their destruction or
disposal.
209I Effect of forfeiture
When goods are condemned as forfeited to the Crown under this
Subdivision, the title to the goods immediately vests in the
Commonwealth to the exclusion of all other interests in the goods,
and the title cannot be called into question.
209J Immediate disposal of unsafe goods
(1) If the Comptroller-General of Customs is satisfied that the
retention of goods seized would constitute a danger to public health
or safety, the Comptroller-General of Customs may cause the
goods to be dealt with in such manner as he or she considers
appropriate (including the destruction of the goods).
(2) As soon as practicable, but not later than 7 days after the goods
have been dealt with, the Comptroller-General of Customs must
give or publish a notice in accordance with subsection (4).
(3) The notice must be in writing and must be served:
(a) personally or by post on the owner of the goods or, if the
owner cannot be identified after reasonable inquiry, on the
person in whose possession or under whose control the goods
were when they were seized; or
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(b) if no person of the kind referred to in paragraph (a) can be
identified after reasonable inquiry—by publishing a copy of
the notice in a newspaper circulating in the location in which
the goods were seized.
(4) The notice must:
(a) identify the goods; and
(b) state that the goods have been seized under a seizure warrant
under section 203DA and give the reason for the seizure; and
(c) state that the goods have been dealt with under subsection (1)
and specify the manner in which they have been so dealt with
and the reason for doing so; and
(d) set out the terms of subsection (5).
(5) If goods are dealt with in accordance with subsection (1), the
owner of the goods may bring an action against the
Commonwealth in a court of competent jurisdiction for the
recovery of the market value of the goods at the time they were so
dealt with.
(6) A right to recover the market value of the goods at the time they
were dealt with in accordance with subsection (1) exists if:
(a) the goods were not goods of the kind mentioned in
subsection 203DA(1); and
(b) the goods were not used or otherwise involved in the
commission of an offence against any law of the
Commonwealth, a State or a Territory; and
(c) the owner of the goods establishes, to the satisfaction of the
Court, that the circumstances for them to be so dealt with did
not exist.
(7) If a person establishes a right to recover the market value of the
goods at the time they were dealt with, the Court must order the
payment by the Commonwealth of an amount equal to that value at
that time.
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Section 209K
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209K Disposal of forfeited goods
(1) All goods that are condemned as forfeited to the Crown under this
Subdivision must be dealt with and disposed of in accordance with
the directions of the Comptroller-General of Customs.
(2) In particular, the Comptroller-General of Customs may direct that
the goods be given to a relevant authority of a foreign country in
order that the goods be used in an investigation or prosecution
under the laws of that country.
(3) Subsection (2) does not limit the generality of subsection (1).
209L Service by post
For the purposes of the application of section 29 of the Acts
Interpretation Act 1901 to the service by post of a seizure notice
under section 209D or a notice under subsection 209J(3) on a
person, such a notice posted as a letter addressed to that person at
the last address of that person known to the sender is taken to be
properly addressed.
Subdivision GB—Surrender of prescribed prohibited imports
209M Application of Subdivision
This Subdivision applies to goods that are prohibited imports of a
kind prescribed by regulations made for the purposes of this
section.
209N Surrender of goods
(1) An officer of Customs may, instead of seizing goods under
section 203B, permit a person to surrender the goods to the officer
in a section 234AA place if:
(a) the officer has reasonable grounds to believe that the goods:
(i) have been imported by the person; and
(ii) have not been concealed from the officer by the person;
and
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Section 209P
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(iii) are accompanied personal or household effects of the
person; and
(b) the person has been informed by the officer, in writing, of the
available options for dealing with the goods and the
consequences of exercising each of those options; and
(c) the person has indicated to the officer, in writing, that he or
she intends to surrender the goods; and
(d) the officer has indicated to the person that the goods may be
surrendered to the officer.
(2) Without limiting the meaning of concealed in
subparagraph (1)(a)(ii), a person is taken to have concealed goods
from an officer of Customs if the person was required to give
information about the goods to the Department in accordance with
section 71, 71K or 71L and the person failed to do so.
209P Effect of surrender
If goods are surrendered under section 209N:
(a) proceedings cannot be brought for an offence against this Act
in relation to the importation of the goods; and
(b) the goods are taken to be condemned as forfeited to the
Crown, such that the title to the goods immediately vests in
the Commonwealth to the exclusion of all other interests in
the goods, and the title cannot be called into question.
209Q Right of compensation in certain circumstances for goods
disposed of or destroyed
(1) Despite the disposal or destruction of goods taken to be condemned
as forfeited to the Crown because the goods have been surrendered
under section 209N, a person may apply to a court of competent
jurisdiction under this section for compensation.
(2) A right to compensation exists if:
(a) the goods were not prohibited imports; and
(b) the goods were not used or otherwise involved in the
commission of an offence; and
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Section 209R
86 Customs Act 1901
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(c) the person establishes, to the satisfaction of the court, that he
or she is the rightful owner of the goods.
(3) If a right to compensation exists under subsection (2), the court
must order the payment by the Commonwealth to the person of an
amount equal to the market value of the goods at the time of their
disposal or destruction.
209R Disposal of surrendered goods
All goods surrendered under section 209N must be dealt with and
disposed of in accordance with the directions of the
Comptroller-General of Customs.
Subdivision GC—Post-importation permission
209S Definitions
(1) In this Subdivision:
application period, for goods that have been detained under
section 209U, means the period that, in accordance with
subparagraph 209X(1)(d)(i), is specified in the detention notice
identifying the goods.
detention notice means a notice of the kind mentioned in
section 209X.
grant period, for goods that have been detained under
section 209U, means the period that, in accordance with
subparagraph 209X(1)(d)(ii), is specified in the detention notice
identifying the goods.
(2) If regulations made under section 50 provide that the importation
of goods is prohibited unless a licence, permission, consent,
approval or other document (however described) is granted or
given, then the licence, permission, consent, approval or other
document is a required permission to import the goods.
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Section 209T
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209T Application of Subdivision
This Subdivision applies to goods that are prohibited imports of a
kind prescribed by regulations made for the purposes of this
section.
209U Power to detain goods
(1) An officer of Customs may, instead of seizing goods under
section 203B, detain the goods if:
(a) the goods have been imported without one or more required
permissions to import the goods having been granted or
given; and
(b) any other conditions or restrictions specified in regulations
made under section 50 in respect of the importation of the
goods have been complied with; and
(c) the officer has reasonable grounds to believe that:
(i) the goods have not been concealed from the officer by
the person who imported them; and
(ii) no application for any of the required permissions to
import the goods has previously been refused; and
(d) if the goods are accompanied personal or household effects
of the person—the person:
(i) has been informed by the officer, in writing, of the
available options for dealing with the goods and the
consequences of exercising each of those options; and
(ii) has indicated to the officer, in writing, that he or she has
applied, or intends to apply, for each of the required
permissions to import the goods that have not already
been granted or given.
(2) Without limiting the meaning of concealed in
subparagraph (1)(c)(i), a person is taken to have concealed goods
from an officer of Customs if the person was required to give
information about the goods to the Department in accordance with
section 71, 71K or 71L and the person failed to do so.
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Section 209V
88 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
209V Detained goods to be secured
(1) In this section:
approved place, in relation to goods detained under section 209U,
means a place approved by a Collector as a place for the storage of
goods of that kind.
(2) If an officer of Customs detains goods under section 209U, the
officer must, as soon as practicable, take those goods to an
approved place.
209W Requirement to serve detention notice
(1) If an officer of Customs detains goods under section 209U, the
officer must serve, within 7 days after the day on which the goods
were detained, a detention notice on:
(a) the owner of the goods; or
(b) if the owner cannot be identified after reasonable inquiry—
the person in whose possession or under whose control the
goods were when they were detained.
(2) The notice must be in writing and must be served:
(a) personally or by post; or
(b) if no person of the kind referred to in paragraph (1)(a) or (b)
can be identified after reasonable inquiry—by publishing a
copy of the notice in a newspaper circulating in the location
in which the goods were detained.
(3) A detention notice may be served on a person who is outside
Australia.
209X Matters to be dealt with in detention notices
(1) A detention notice must set out the following:
(a) a statement identifying the goods;
(b) the day on which the goods were detained;
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Section 209X
Customs Act 1901 89
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(c) the ground, or each of the grounds, on which the goods were
detained;
(d) a statement that the goods will be taken to be seized if:
(i) written evidence of the making of an application for
each required permission to import the goods that was
not granted, or given, by the time the goods were
imported is not provided to the Department by the end
of a specified period (the application period); or
(ii) not all of the required permissions to import the goods
are granted, or given, by the end of a specified period
(the grant period); or
(iii) during the application period or the grant period, the
owner of the goods notifies the Department, in writing,
that an application for a required permission to import
the goods has been refused;
(e) a statement that, if the goods are taken to be seized because
written evidence is not provided to the Department by the
end of the application period, the goods will be taken to be
seized on the day after the end of the application period;
(f) a statement that, if the goods are taken to be seized because
not all of the required permissions to import the goods are
granted, or given, by the end of the grant period, the goods
will be taken to be seized on the day after the end of the grant
period;
(g) a statement that, if the goods are taken to be seized because
during the application period or the grant period the owner of
the goods notifies the Department, in writing, that an
application for a required permission to import the goods has
been refused, the goods will be taken to be seized on the day
after the Department is so notified;
(h) the ground, or each of the grounds, on which the goods will
be taken to be seized;
(i) a statement that, if the goods are taken to be seized and a
claim for the return of the goods has not already been made,
and is not made within 30 days after the day the goods are
taken to be seized, the goods will be taken to be condemned
as forfeited to the Crown;
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Section 209Y
90 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
(j) if the notice is to be served in a foreign country—a statement
that the person served, if that person has not yet made a claim
for the return of the goods, may not make such a claim unless
he or she has first appointed in writing an agent in Australia
with authority to accept service of documents, including
process in any proceedings arising out of the matter.
(2) The application period specified in a detention notice under
subparagraph (1)(d)(i) must be the period that:
(a) starts on the day that the notice is served; and
(b) ends 30 days, or such other period as is prescribed by the
regulations, after that day.
(3) The grant period specified in a detention notice under
subparagraph (1)(d)(ii) must be the period that:
(a) starts on the day written evidence of the making of an
application for a required permission to import the goods is
first provided to the Department; and
(b) ends 30 days, or such other period as is prescribed by the
regulations, after the first day on which written evidence of
the making of an application for all of the required
permissions to import the goods that were not granted, or
given, by the time the goods were imported has been
provided to the Department.
209Y Effect of detaining goods
While goods are detained under section 209U:
(a) an application for a required permission to import the goods
may be made; and
(b) a required permission to import the goods may be granted or
given;
despite the goods having already been imported.
209Z Evidence not provided or permission not granted or given
(1) This section applies if:
(a) goods have been detained under section 209U; and
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Section 209Z
Customs Act 1901 91
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(b) a detention notice identifying the goods has been served; and
(c) any of the following apply:
(i) written evidence of the making of an application for
each required permission to import the goods that was
not granted, or given, by the time the goods were
imported has not been provided to the Department by
the end of the application period for the goods;
(ii) not all of the required permissions to import the goods
have been granted, or given, by the end of the grant
period for the goods;
(iii) during the application period, or the grant period, for the
goods, the owner of the goods has notified the
Department, in writing, that an application for a
required permission to import the goods has been
refused.
(2) If the goods are at an approved place within the meaning of
section 209V, they cease to be detained under section 209U and are
taken to be seized under section 203B on:
(a) if, during the application period, the owner of the goods
notified the Department, in writing, that an application for a
required permission to import the goods was refused—the
day after the Department was so notified; or
(b) if paragraph (a) does not apply and written evidence of the
making of an application for each required permission to
import the goods that was not granted, or given, by the time
the goods were imported was not provided to the Department
by the end of the application period—the day after the end of
the application period; or
(c) if paragraphs (a) and (b) do not apply and, during the grant
period, the owner of the goods notified the Department, in
writing, that an application for a required permission to
import the goods was refused—the day after the Department
was so notified; or
(d) if paragraphs (a), (b) and (c) do not apply and not all of the
required permissions to import the goods were granted, or
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Section 209ZA
92 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
given, by the end of the grant period—the day after the end
of the grant period.
(3) The detention notice is also taken to be a seizure notice that:
(a) is in accordance with section 205A; and
(b) was served:
(i) under section 205 by the responsible person; and
(ii) on the day the goods are taken to be seized.
209ZA Evidence provided and permission granted or given
(1) This section applies if:
(a) goods have been detained under section 209U; and
(b) a detention notice identifying the goods has been served; and
(c) written evidence of the making of an application for each
required permission to import the goods that was not granted,
or given, by the time the goods were imported has been
provided to the Department by the end of the application
period for the goods; and
(d) all of the required permissions to import the goods have been
granted, or given, on or before the end of the grant period for
the goods.
(2) An officer of Customs must return the goods to the owner.
(3) At the time the last required permission to import the goods is
granted or given, the goods cease to be prohibited imports.
(4) Proceedings cannot be brought for an offence against this Act in
relation to the importation of the goods.
209ZB Service by post
For the purposes of the application of section 29 of the Acts
Interpretation Act 1901 to the service by post of a detention notice
under this Subdivision on a person, such a notice posted as a letter
addressed to that person at the last address of that person known to
the sender is taken to be properly addressed.
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Section 209ZC
Customs Act 1901 93
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209ZC Liability for detention of goods
Neither the Commonwealth nor an officer or other person is under
any liability in relation to the detention of any goods under this
Subdivision for which there was reasonable cause.
Subdivision H—Arrest and related matters
210 Power of arrest without warrant
(1) An officer of Customs or police may without warrant arrest a
person if the officer believes on reasonable grounds that:
(a) the person has committed or is committing one or more of
the following offences:
(i) an offence against subsection 33(1) or 33(5);
(ii) an offence against section 33C, 231 or 233;
(iii) an offence against subsection 233BAA(4) or (5),
233BAB(5) or (6), 233BABAB(1), 233BABAC(1) or
233BABAD(1) or (2);
(iv) an offence against section 72.13 or Division 307 or 361
of the Criminal Code;
(v) an offence against section 308.2 of the Criminal Code
where the substance involved in the offence is
reasonably suspected of having been imported into
Australia, or being intended for export from Australia,
in contravention of this Act;
(vi) an offence against section 147.1, 147.2 or 149.1 of the
Criminal Code in relation to an officer of Customs; and
(b) proceedings by summons against the person would not
achieve one or more of the following purposes:
(i) ensuring the appearance of the person before a court in
respect of the offence;
(ii) preventing a repetition or continuation of the offence or
the commission of another offence;
(iii) preventing the concealment, loss or destruction of
evidence relating to the offence;
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Section 210A
94 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
(iv) preventing harassment of, or interference with, a person
who may be required to give evidence in proceedings in
respect of the offence;
(v) preventing the fabrication of evidence in respect of the
offence;
(vi) preserving the safety or welfare of the person.
(2) A person commits an offence if the person resists, obstructs or
prevents the arrest of any person under this section.
Penalty: 10 penalty units.
(3) If:
(a) a person has been arrested for an offence under
subsection (1); and
(b) before the person is charged with the offence, the officer of
Customs or police in charge of the investigation ceases to
believe on reasonable grounds:
(i) that the person committed the offence; or
(ii) that holding the person in custody is necessary to
achieve a purpose referred to in paragraph (1)(b);
the person must be released.
(4) An officer of Customs or police may without warrant arrest a
person whom he or she believes on reasonable grounds has escaped
from lawful custody to which the person is still liable under this
Subdivision.
210A Use of force in making arrest
(1) An officer of Customs or police must not, in the course of arresting
a person under section 210, use more force, or subject the person to
greater indignity, than is necessary and reasonable to make the
arrest or to prevent the escape of the person after the arrest.
(2) Without limiting the operation of subsection (1), an officer of
Customs or police must not, in the course of arresting a person
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Section 210B
Customs Act 1901 95
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
under section 210, do anything that is likely to cause the death of,
or grievous bodily harm to, the person unless:
(a) the officer believes on reasonable grounds that doing that
thing is necessary to protect life or to prevent serious injury
to another person (including the officer); or
(b) if the person is attempting to escape arrest by fleeing:
(i) the officer believes on reasonable grounds that doing
that thing is necessary to protect life or to prevent
serious injury to another person (including the officer);
and
(ii) the person has, if practicable, been called on to
surrender and the officer believes on reasonable grounds
that the person cannot be apprehended in any other
manner.
210B Person to be informed of grounds of arrest
(1) An officer of Customs or police who arrests a person under
section 210 must inform the person, at the time of the arrest, of the
offence for which the person is being arrested.
(2) It is sufficient if the person is informed of the substance of the
offence, and it is not necessary that this be done in language of a
precise or technical nature.
(3) Subsection (1) does not apply to the arrest of the person if:
(a) the person should, in the circumstances, know the substance
of the offence for which he or she is being arrested; or
(b) the person’s actions make it impracticable for the officer to
inform the person of the offence for which he or she is being
arrested.
211 Power to conduct a frisk search of an arrested person
An officer of Customs or police who arrests a person under
section 210, or who is present at such an arrest, may, if the officer
suspects on reasonable grounds that it is prudent to do so in order
to ascertain whether the person is carrying any seizable items:
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Section 211A
96 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
(a) conduct a frisk search of the person at or soon after the time
of arrest; and
(b) seize any seizable items found as a result of the search.
211A Power to conduct an ordinary search of an arrested person
An officer of Customs or police who arrests a person under
section 210, or who is present at such an arrest, may, if the officer
suspects on reasonable grounds that the person is carrying:
(a) evidential material in relation to the offence for which the
person is arrested or another offence; or
(b) a seizable item;
conduct an ordinary search of the person at or soon after the time
of arrest, and seize any such thing found as a result of the search.
212 How arrested person to be dealt with
An officer of Customs who arrests a person under section 210 must
ensure that the person is either:
(a) delivered into the custody of a police officer; or
(b) taken before a magistrate or bail justice;
as soon as practicable to be dealt with according to law.
213 Requirement to provide name etc.
(1) An officer of Customs or police may request a person arrested
under section 210 to provide his or her name or address, or name
and address, to the officer if the person’s name or address is, or
name and address are, unknown to the officer.
(2) A person commits an offence if:
(a) an officer of Customs or police:
(i) has made a request of a person under subsection (1); and
(ii) has complied with any request that the person has made
under paragraph (4)(b); and
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Section 213A
Customs Act 1901 97
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(b) the person refuses or fails to comply with the request, or
gives a name or address that is false in a material particular.
Penalty: 5 penalty units.
(3) Subsection (2) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (3) (see subsection 13.3(3) of the Criminal Code).
(4) An officer of Customs or police commits an offence if:
(a) the officer makes a request of a person under subsection (1);
and
(b) the person requests the officer to provide to the person:
(i) his or her name or the address of his or her place of
duty; or
(ii) his or her name and that address; or
(iii) if he or she is not in uniform and it is practicable for the
officer to provide the evidence—evidence that he or she
is an officer; and
(c) the officer refuses or fails to comply with the request, or
gives a name or address that is false in a material particular.
Penalty: 5 penalty units.
Subdivision HA—Information about people working in
restricted areas or issued with security identification
cards
213A Providing an authorised officer with information about people
working in restricted areas
(1) A person who employs or engages a restricted area employee must,
within 7 days after doing so, provide to an authorised officer the
required identity information in respect of the employee.
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Section 213A
98 Customs Act 1901
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(2) If a person (the employer):
(a) employs or engages another person after the commencement
of this section; and
(b) at a later time the other person becomes a restricted area
employee of the employer;
the employer must, within 7 days after that later time, provide to an
authorised officer the required identity information in respect of
the employee.
(3) If:
(a) a person (the employer) employed or engaged another person
before the commencement of this section; and
(b) the other person is a restricted area employee of the
employer; and
(c) an authorised officer suspects on reasonable grounds that the
other person has committed, or is likely to commit, an
offence against a law of the Commonwealth;
the authorised officer may, in writing, request the employer to
provide to the authorised officer, within 7 days after receiving the
request, the required identity information in respect of the
employee. The employer must comply with the request.
(4) A person does not comply with an obligation under subsection (1),
(2) or (3) to provide information unless the person provides the
information:
(a) in writing; or
(b) in such other form as the Comptroller-General of Customs
determines in writing.
(5) A person commits an offence if the person fails to comply with
subsection (1), (2) or (3).
Penalty: 30 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(7) In this section:
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Section 213B
Customs Act 1901 99
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required identity information, in relation to a person, means any
one or more of the following:
(a) the name and address of the person;
(b) the person’s date and place of birth;
(c) any other information prescribed by the regulations.
restricted area employee means a person whose duties include
working in an area covered by a notice under
subsection 234AA(3), but does not include a person who is issued
with a security identification card.
security identification card means a card of a kind specified in the
regulations.
213B Provision of information about people issued with security
identification cards
(1) If a person has issued a security identification card to another
person in respect of an airport appointed under section 15, an
issuing authority in relation to the card must, within 7 days after
the card is issued, provide to an authorised officer the required
identity information in respect of the other person.
(2) If:
(a) before the commencement of this section, a person issued a
security identification card to another person in respect of an
airport appointed under section 15; and
(b) an authorised officer suspects on reasonable grounds that the
other person has committed, or is likely to commit, an
offence against a law of the Commonwealth;
the authorised officer may, in writing, request an issuing authority
in relation to the card to provide to the authorised officer, within 7
days after receiving the request, the required identity information
in respect of the other person. The issuing authority must comply
with the request.
(2A) If a person has issued a security identification card to another
person in respect of an airport appointed under section 15, an
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Section 214AA
100 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
authorised officer may, at any time, in writing, request an issuing
authority in relation to the card to provide to the authorised officer,
within 7 days after receiving the request, information for the
purposes of updating required identity information previously
provided in respect of the other person under subsection (1) or this
subsection. The issuing authority must comply with the request.
(2B) If a security identification card expires or is revoked, an issuing
authority in relation to the card must notify an authorised officer of
the expiry or revocation within 7 days after it occurs.
(3) A person does not comply with an obligation under subsection (1),
(2), (2A) or (2B) to provide information unless the person provides
the information:
(a) in writing; or
(b) in such other form as the Comptroller-General of Customs
determines in writing.
(4) In this section:
issuing authority, in relation to a security identification card,
means any of the following:
(a) the person who issued the card;
(b) a person who is authorised to perform the functions, or
exercise the powers, of the person who issued the card.
required identity information has the meaning given by
section 213A.
security identification card has the meaning given by
section 213A.
Subdivision J—General powers to monitor and audit
214AA Occupier of premises
In this Subdivision:
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Section 214AB
Customs Act 1901 101
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occupier of premises includes a person who is apparently in charge
of the premises.
214AB What are monitoring powers?
Monitoring powers
(1) For the purposes of this Subdivision, the following are monitoring
powers:
(a) the power to search premises;
(b) the power to take photographs (including a video recording),
or make sketches, of premises or anything at premises;
(c) the power to inspect, examine, count, measure, weigh, gauge,
test or analyse, and take samples of, anything in or on
premises;
(d) the power to inspect any document or record in or on
premises;
(e) the power to take extracts from, or make copies of, any
document or record in or on premises;
(f) the power to take into or onto premises any equipment or
material reasonably necessary for the purpose of exercising a
power under paragraph (a), (b), (c), (d) or (e);
(g) the power to test and operate record-keeping, accounting,
computing or other operating systems of any kind that are at
premises and may be used to generate or record information
or documents of a kind that may be communicated to the
Department;
(h) the power to secure a thing that:
(i) is found during a search of premises; and
(ii) a monitoring officer believes on reasonable grounds
affords evidence of the commission of an offence
against a Customs-related law and may be lost,
destroyed or tampered with;
until a warrant is obtained to seize the thing or 72 hours
elapses after the securing of the thing, whichever first occurs;
(i) the powers in subsections (2) and (3).
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Section 214AB
102 Customs Act 1901
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Power to operate equipment to check information
(2) For the purposes of this Subdivision, monitoring powers include
the power to operate equipment at premises to see whether:
(a) the equipment; or
(b) a disk, tape or other storage device that:
(i) is at the premises; and
(ii) can be used with the equipment or is associated with it;
contains information that is relevant to assessing:
(c) whether a person is complying with a Customs-related law;
or
(d) whether a person’s record-keeping, accounting, computing or
other operating systems of any kind accurately record and
generate information to enable compliance with a
Customs-related law; or
(e) the correctness of information communicated by a person to
the Department (whether in documentary or other form).
Power to copy information found by operating equipment
(3) For the purposes of this Subdivision, monitoring powers include
the following powers in relation to information described in
subsection (2) that is found in the exercise of the power under that
subsection:
(a) the power to operate facilities at the premises to put the
information in documentary form and copy the documents so
produced;
(b) the power to operate facilities at the premises to transfer the
information to a disk, tape or other storage device:
(i) that is brought to the premises for the exercise of the
power; or
(ii) that is at the premises and the use of which for the
purpose has been agreed in writing by the occupier of
the premises;
(c) the power to remove from the premises a disk, tape or other
storage device to which the information has been transferred
in exercise of the power under paragraph (b).
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Section 214AC
Customs Act 1901 103
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214AC Monitoring officers
Who is a monitoring officer?
(1) A monitoring officer is an officer who is authorised by the
Comptroller-General of Customs under this section to enter
premises and exercise monitoring powers (whether the
authorisation applies generally, during a specified period or in or
on specified premises).
Who may be authorised to be a monitoring officer
(2) The Comptroller-General of Customs must not authorise an officer
to enter premises and exercise monitoring powers unless the
Comptroller-General of Customs is satisfied that the officer is
suitably qualified, because of the officer’s abilities and experience,
to exercise those powers.
Authorising officers to exercise monitoring powers
(3) The Comptroller-General of Customs may authorise in writing an
officer to enter premises and exercise monitoring powers:
(a) generally; or
(b) during a specified period; or
(c) in or on specified premises; or
(d) during a specified period in or on specified premises.
Availability of assistance and use of force in exercising monitoring
powers
(4) In entering premises and exercising monitoring powers:
(a) a monitoring officer may obtain such assistance; and
(b) a monitoring officer or a person assisting a monitoring
officer may use such force against things;
as is necessary and reasonable in the circumstances.
Monitoring powers to be used only as authorised
(5) This Subdivision does not allow:
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Section 214ACA
104 Customs Act 1901
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(a) an officer who is authorised to enter premises and exercise
monitoring powers during a specified period to enter the
premises or exercise the powers at a time outside that period;
or
(b) an officer who is authorised to enter, and exercise monitoring
powers in or on, specified premises to enter, or to exercise
the powers in or on, other premises.
214ACA Monitoring officer to notify occupier of premises of the
occupier’s rights and obligations
Before exercising monitoring powers in respect of premises, a
monitoring officer must give to the occupier of the premises a
written notice setting out the occupier’s rights and obligations
under this Subdivision.
214AD Notice of proposal to exercise monitoring powers
Before seeking consent under section 214AE to enter premises and
exercise monitoring powers there, a monitoring officer may give to
the occupier of the premises written notice stating that the officer
wishes to enter the premises and exercise monitoring powers and
specifying the period from the giving of the notice during which
the officer wishes to exercise the powers.
Note: If the occupier had, before a notice is given under section 214AD,
made to the Department a statement that was false or misleading, a
voluntary notification made by the occupier after the notice is given is
not a defence to a prosecution for an offence against section 243T or
243U in respect of the statement.
214AE Exercise of monitoring powers with consent
(1) A monitoring officer may enter, and exercise monitoring powers in
or on, premises to the extent that it is reasonably necessary for the
purpose of assessing:
(a) whether a person is complying with a Customs-related law;
or
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Section 214AF
Customs Act 1901 105
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(b) whether a person’s record-keeping, accounting, computing or
other operating systems of any kind accurately record and
generate information to enable compliance with a
Customs-related law; or
(c) the correctness of information communicated by a person to
the Department (whether in documentary or other form).
(2) However, a monitoring officer must not enter premises under this
section unless the occupier of the premises has consented to the
monitoring officer entering, and exercising monitoring powers in
or on, the premises.
(3) Before obtaining such a consent, a monitoring officer must tell the
occupier of the premises that he or she can refuse consent.
(4) A consent may be expressed to be limited to entry to, and the
exercise of monitoring powers in or on, the premises to which the
consent relates during a particular period unless the consent is
withdrawn before the end of that period.
(5) A consent that is not limited as mentioned in subsection (4) has
effect in relation to any entry to, and any exercise of monitoring
powers in or on, the premises to which the consent relates until the
consent is withdrawn.
(6) Before a monitoring officer enters premises or exercises any
monitoring powers, he or she must produce his or her identity card
to the occupier.
(7) A monitoring officer must leave the premises if the occupier
withdraws the consent.
(8) A consent, or a withdrawal of consent, does not have effect unless
the consent or withdrawal is in writing.
214AF Exercise of monitoring powers under a warrant
(1) A monitoring officer may apply to a magistrate for a warrant under
this section in relation to particular premises.
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Section 214AF
106 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
(2) The magistrate must issue a warrant if satisfied, by information on
oath or affirmation, that it is reasonably necessary that the
monitoring officer should have access to the premises for the
purpose of assessing:
(a) whether a person is complying with a Customs-related law;
or
(b) whether a person’s record-keeping, accounting, computing or
other operating systems of any kind accurately record and
generate information to enable compliance with a
Customs-related law; or
(c) the correctness of information communicated by a person to
the Department (whether in documentary or other form).
(3) If the magistrate requires further information about the grounds on
which the issue of the warrant is applied for, he or she must not
issue the warrant until the monitoring officer or someone else has
given the magistrate the further information, either orally (on oath
or affirmation) or by affidavit.
(4) The warrant must:
(a) state the purpose for which the warrant is issued; and
(b) identify the premises to which the warrant relates; and
(c) name the monitoring officer who is responsible for executing
the warrant; and
(d) authorise any monitoring officer named in the warrant to
enter the premises and exercise monitoring powers from time
to time while the warrant remains in force, with such
assistance, and using such force against things, as are
necessary and reasonable; and
(e) state the hours during which entry under the warrant is
authorised to be made; and
(f) specify the day (not more than 6 months after the day of issue
of the warrant) on which the warrant ceases to have effect.
(5) A magistrate in a particular State or Territory may issue a warrant
in respect of premises in another State or Territory.
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Section 214AG
Customs Act 1901 107
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214AG Warrants may be granted by telephone or other electronic
means
(1) A monitoring officer may apply to a magistrate for a warrant in
relation to premises by telephone, telex, fax or other electronic
means (of any kind):
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in
person would frustrate the effective execution of the warrant.
(2) The magistrate may require communication by voice to the extent
that is practicable in the circumstances.
(3) An application under this section must include all information
required to be provided in an application for a warrant under
section 214AF but the application may, if necessary, be made
before the information is sworn.
(4) The magistrate must complete and sign the same form of warrant
used under section 214AF as soon as he or she:
(a) has considered the information included in the application
under this section, and the further information (if any)
required by him or her; and
(b) is satisfied that:
(i) a warrant in the terms of the application should be
issued urgently; or
(ii) the delay that would occur if an application were made
in person would frustrate the effective execution of the
warrant.
(5) If the magistrate decides to issue the warrant, the magistrate is to
tell the applicant, by telephone, telex, fax or other electronic
means, of the terms of the warrant and the day and time when it
was signed.
(6) The applicant must then complete a form of warrant in terms
substantially corresponding to those given by the magistrate,
stating on the form the name of the magistrate and the day and time
when the warrant was signed.
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Section 214AH
108 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
(7) The applicant must give or send to the magistrate the form of
warrant completed by the applicant and, if the information referred
to in subsection (3) was not sworn, that information duly sworn.
The applicant must do so not later than the day after the earlier of
the following days:
(a) the day of expiry of the warrant;
(b) the day on which the warrant was first executed.
(8) The magistrate is to attach to the documents provided under
subsection (7) the form of warrant completed by the magistrate.
(9) If:
(a) it is material, in any proceedings, for a court to be satisfied
that the exercise of a power under a warrant issued under this
section was duly authorised; and
(b) the form of warrant signed by the magistrate is not produced
in evidence;
the court is to assume, unless the contrary is proved, that the
exercise of the power was not duly authorised.
214AH Monitoring officer may ask questions
(1) If a monitoring officer is in or on premises that he or she entered
with the consent of the occupier of the premises, the officer may
request the occupier to answer any questions put by the monitoring
officer, but the occupier is not obliged to comply with the request.
(2) If a monitoring officer is in or on premises that he or she has
entered under a warrant issued under section 214AF or 214AG, the
officer may require any person on the premises to answer any
questions put by the monitoring officer.
Note: Failure to answer a question put under this subsection may be an
offence. See section 243SA.
214AI Monitoring officer may ask for assistance
(1) If a monitoring officer is in or on premises that he or she entered
with the consent of the occupier of the premises under
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Customs Act 1901 109
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section 214AE, the officer may request the occupier to provide
reasonable assistance to the officer at any time while the officer is
entitled to remain in or on the premises, but the occupier is not
obliged to comply with the request.
(2) If a monitoring officer is in or on premises that he or she entered
under a warrant issued under section 214AF or 214AG, the officer
may require the occupier to provide reasonable assistance to the
officer at any time while the officer is entitled to remain on the
premises.
(3) The monitoring officer may request or require the assistance for the
purpose of the exercise of monitoring powers by the officer in
relation to the premises.
(4) A person must not fail to comply with a requirement made of the
person under subsection (2).
Penalty: 30 penalty units.
(5) An offence against subsection (4) is an offence of strict liability.
214AJ Compensation for damage to electronic equipment
(1) This section applies if:
(a) damage is caused to equipment as a result of it being
operated as mentioned in subsection 214AB(2); or
(b) the data recorded on the equipment is damaged or programs
associated with its use are damaged or corrupted;
because:
(c) insufficient care was exercised in selecting the person who
was to operate the equipment; or
(d) insufficient care was exercised by the person operating the
equipment.
(2) The Commonwealth must pay to the owner of the equipment, or
the user of the data or programs, such reasonable compensation for
the damage or corruption as they agree on.
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Section 214B
110 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
(3) However, if the owner or user and the Commonwealth fail to
agree, the owner or user may institute proceedings against the
Commonwealth in the Federal Court of Australia for such
reasonable amount of compensation as the Court determines.
(4) In determining the amount of compensation payable, regard is to
be had to whether the occupier of the premises or the occupier’s
employees and agents, if they were available at the time, provided
any appropriate warning or guidance on the operation of the
equipment.
(5) Compensation is payable out of money appropriated by the
Parliament.
(6) For the purposes of subsection (1), damage to data includes
damage by erasure of data or addition of other data.
214B Powers of officers for purposes of Customs Tariff
(Anti-Dumping) Act 1975
(1) For the purposes of the Customs Tariff (Anti-Dumping) Act 1975
an authorized officer may, at all reasonable times, enter premises
where there are kept any accounts, books or other records relating
to goods exported to Australia or manufactured or produced, or
sold, in Australia and may inspect any such accounts, books,
documents or other records and make and retain copies of, or take
and retain extracts from, any such accounts, books, documents or
other records.
(2) Where an authorized officer proposes to enter any premises under
subsection (1), he or she shall, if requested to do so by the occupier
or person in charge of the premises, produce for inspection written
evidence of the fact that he or she is an authorized officer and, if he
or she fails to do so, he or she is not authorized to enter the
premises.
(3) The occupier or person in charge of premises referred to in
subsection (1) shall provide the authorized officer with all
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Section 214B
Customs Act 1901 111
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
reasonable facilities and assistance for the effective exercise of his
or her powers under subsection (1).
Penalty: 10 penalty units.
(4) An authorized officer may, by notice signed by him or her, require
a person whom he or she believes to be capable of giving
information that is relevant to the operation of the Customs Tariff
(Anti-Dumping) Act 1975 and relates to goods exported to
Australia or manufactured or produced, or sold, in Australia to
attend before him or her at the time and place specified in the
notice and there to answer questions and produce to him or her
such accounts, books, documents or other records in relation to
goods exported to Australia or manufactured or produced, or sold,
in Australia as are referred to in the notice.
(5) An authorized officer may make and retain copies of, or take and
retain extracts from, any accounts, books, documents or other
records produced in pursuance of subsection (4).
(6) A person is not excused from answering a question or producing
any accounts, books, documents or other records when required to
do so under subsection (4) on the grounds that the answer to the
question, or the production of the accounts, books, documents or
other records, might tend to incriminate the person or make him or
her liable to a penalty, but the person’s answer to any such
question or the production by him or her of any such accounts,
books, documents or other records is not admissible in evidence
against him or her in proceedings other than proceedings for an
offence against this section or proceedings in respect of the falsity
of any such answer.
(7) An authorized officer may examine, on oath or affirmation, a
person attending before him or her in pursuance of subsection (4)
and, for that purpose, may administer an oath or affirmation to that
person.
(8) The oath or affirmation to be made by a person for the purposes of
subsection (7) is an oath or affirmation that the answers he or she
will give to questions asked of him or her will be true.
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Section 214BAA
112 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
(9) A person shall not refuse or fail:
(a) to attend before an authorized officer; or
(b) to make an oath or an affirmation; or
(c) to answer a question or produce an account, book, document
or other record;
when so required in pursuance of this section.
Penalty: 10 penalty units.
(10) Subsection (9) does not apply if the person has a reasonable
excuse.
Subdivision JA—Powers to monitor and audit—
Australia-United States Free Trade Agreement
214BAA Simplified outline
The following is a simplified outline of this Subdivision:
• This Subdivision allows certain officers (verification officers) to enter premises, and to exercise certain powers (AUSFTA
verification powers) in or on the premises, for the purpose of
verifying information relating to the export, production or
transportation of textile and clothing goods that are exported
to the US.
• However, verification officers may only enter premises under this Subdivision with the occupier’s consent.
• In entering premises and exercising AUSFTA verification powers, verification officers may be accompanied by US
customs officials, but only with the occupier’s consent.
214BAB Definitions
In this Subdivision:
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Section 214BAC
Customs Act 1901 113
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
Agreement means the Australia-United States Free Trade
Agreement done at Washington DC on 18 May 2004, as amended
from time to time.
Note: In 2004 the text of the Agreement was accessible through the website
of the Department of Foreign Affairs and Trade.
AUSFTA verification powers has the meaning given by
section 214BAC.
Harmonized System has the same meaning as in section 153YA.
occupier of premises includes a person who is apparently in charge
of the premises.
textile and clothing goods means goods that are classified to:
(a) subheading 4202.12, 4202.22, 4202.32 or 4202.92 of
Chapter 42 of the Harmonized System; or
(b) any of Chapters 50 to 63 of the Harmonized System; or
(c) heading 7019 of Chapter 70 of the Harmonized System; or
(d) subheading 9409.90 of Chapter 94 of the Harmonized
System.
US means the United States of America.
US customs official means a person representing the customs
administration of the US.
verification officer means a person authorised under
section 214BAD to enter premises and to exercise AUSFTA
verification powers.
214BAC AUSFTA verification powers
(1) For the purposes of this Subdivision, the following are the
AUSFTA verification powers:
(a) the power to search premises;
(b) the power to take photographs (including a video recording),
or make sketches, of premises or anything at premises;
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114 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
(c) the power to inspect, examine, count, measure, weigh, gauge,
test or analyse, and take samples of, anything in or on
premises;
(d) the power to inspect any document or record in or on
premises;
(e) the power to take extracts from, or make copies of, any
document or record in or on premises;
(f) the power to take into or onto premises any equipment or
material reasonably necessary for the purpose of exercising a
power under paragraph (a), (b), (c), (d) or (e);
(g) the power to test and operate record-keeping, accounting,
computing or other operating systems of any kind that are at
premises and may be used to generate or record information
or documents of a kind that may be communicated to the
Department;
(h) the powers in subsections (2) and (3).
Operation of equipment
(2) For the purposes of this Subdivision, the AUSFTA verification
powers include the power to operate equipment at premises to see
whether:
(a) the equipment; or
(b) a disk, tape or other storage device that:
(i) is at the premises; and
(ii) can be used with the equipment or is associated with it;
contains information that is relevant to the verification of
information relating to the export, production or transportation of
textile and clothing goods that are exported to the US.
Removing documents and disks etc.
(3) For the purposes of this Subdivision, the AUSFTA verification
powers include the following powers in relation to information
described in subsection (2) that is found in the exercise of the
power under that subsection:
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Section 214BAD
Customs Act 1901 115
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(a) the power to operate equipment or other facilities at the
premises to put the information in documentary form and
remove the documents so produced;
(b) the power to operate equipment or other facilities at the
premises to transfer the information to a disk, tape or other
storage device:
(i) that is brought to the premises for the exercise of the
power; or
(ii) that is at the premises and the use of which for the
purpose has been agreed in writing by the occupier of
the premises;
and to remove the disk, tape or other storage device from the
premises.
214BAD Appointment of verification officers
(1) The Comptroller-General of Customs may, by writing, authorise an
officer to enter premises, and to exercise AUSFTA verification
powers in or on premises, for the purposes of this Subdivision.
Who may be authorised to be a verification officer
(2) The Comptroller-General of Customs must not do so unless the
Comptroller-General of Customs is satisfied that the officer is
suitably qualified, because of the officer’s abilities and experience,
to exercise AUSFTA verification powers.
Form of authorisation
(3) An authorisation may apply:
(a) generally; or
(b) during a specified period; or
(c) in or on specified premises; or
(d) during a specified period in or on specified premises.
AUSFTA verification powers to be used only as authorised
(4) This Subdivision does not allow:
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Section 214BAE
116 Customs Act 1901
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(a) an officer who is authorised to enter premises and exercise
AUSFTA verification powers during a specified period to
enter the premises or exercise the powers at a time outside
that period; or
(b) an officer who is authorised to enter specified premises and
to exercise AUSFTA verification powers in or on the
premises to enter other premises or to exercise the powers in
or on the other premises.
214BAE Verification officers may enter premises and exercise
AUSFTA verification powers with consent
(1) A verification officer may enter premises, and exercise AUSFTA
verification powers in or on the premises, to the extent that it is
reasonably necessary for the purpose of verifying information
relating to the export, production or transportation of textile and
clothing goods that are exported to the US.
Occupier’s consent required
(2) However, a verification officer must not enter premises under this
section unless the occupier of the premises consents to the officer
entering the premises and exercising AUSFTA verification powers
in or on the premises.
(3) Before obtaining a consent under subsection (2), a verification
officer must give to the occupier of the premises a written notice
stating:
(a) that the officer wishes to enter the premises and exercise
AUSFTA verification powers in or on the premises; and
(b) the period during which the officer wishes to exercise the
powers; and
(c) the name of any US customs official who the officer
proposes will accompany the officer.
(4) Before obtaining a consent under subsection (2), a verification
officer must tell the occupier of the premises that the occupier may
refuse consent.
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Section 214BAE
Customs Act 1901 117
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(5) An occupier of premises may express a consent to be limited to
entry to the premises, and to the exercise of AUSFTA verification
powers in or on the premises, during a particular period unless the
occupier withdraws the consent before the end of that period.
(6) An occupier’s consent that is not so limited has effect in relation to
any entry to the premises, and to any exercise of AUSFTA
verification powers in or on the premises, until the occupier
withdraws the consent.
Verification officer must leave premises if consent withdrawn
(7) A verification officer must leave the premises if the occupier
withdraws the consent.
Consent to be voluntary
(8) A consent of a person does not have effect for the purposes of this
section unless it is voluntary.
Consent, or withdrawal of consent, to be in writing
(9) A consent of a person, or a withdrawal of consent by a person,
does not have effect for the purposes of this section unless it is in
writing.
Notice setting out the occupier’s rights and obligations
(10) Before exercising AUSFTA verification powers in respect of
premises, a verification officer must give to the occupier of the
premises a written notice setting out the occupier’s rights and
obligations under this Subdivision.
Production of identity card
(11) Before a verification officer enters premises or exercises any
AUSFTA verification powers, he or she must produce his or her
identity card to the occupier.
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Section 214BAF
118 Customs Act 1901
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214BAF US customs officials may accompany verification officers
Occupier’s consent required
(1) In entering premises and exercising AUSFTA verification powers,
a verification officer may be accompanied by one or more US
customs officials, but only if the officer obtains the consent of the
occupier of the premises to those officials accompanying the
officer.
(2) Before obtaining such a consent, a verification officer must tell the
occupier of the premises that the occupier may refuse consent.
US customs officials must leave premises if consent withdrawn
(3) The US customs officials must leave the premises if the occupier
withdraws the consent.
Consent to be voluntary
(4) A consent of a person does not have effect for the purposes of this
section unless it is voluntary.
Consent, or withdrawal of consent, to be in writing
(5) A consent of a person, or a withdrawal of consent by a person,
does not have effect for the purposes of this section unless it is in
writing.
214BAG Availability of assistance in exercising AUSFTA
verification powers
In entering premises and exercising AUSFTA verification powers,
a verification officer may obtain such assistance as is necessary
and reasonable in the circumstances.
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Section 214BAH
Customs Act 1901 119
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214BAH Verification officer may ask questions
(1) If a verification officer is in or on premises that he or she entered
under this Subdivision, the officer may request the occupier to
answer any questions put by the officer.
(2) The occupier is not obliged to comply with the request.
214BAI Verification officer may ask for assistance
(1) If a verification officer is in or on premises that he or she entered
under this Subdivision, then, while the officer is entitled to remain
in or on the premises, the officer may request the occupier to
provide reasonable assistance to the officer for the purpose of the
officer’s exercise of AUSFTA verification powers in or on the
premises.
(2) The occupier is not obliged to comply with the request.
214BAJ Verification officer may disclose information to US
A verification officer may disclose any information obtained in
exercising AUSFTA verification powers to a US customs official
for the purpose of a matter covered by Article 4.3 of the
Agreement.
214BAK Operation of electronic equipment at premises
A person may operate electronic equipment at premises in order to
exercise a power under this Subdivision only if he or she believes
on reasonable grounds that the operation of the equipment can be
carried out without damage to the equipment.
214BAL Compensation for damage to electronic equipment
(1) This section applies if:
(a) as a result of equipment being operated as mentioned in
section 214BAC:
(i) damage is caused to the equipment; or
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120 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
(ii) the data recorded on the equipment is damaged; or
(iii) programs associated with the use of the equipment, or
with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person
who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating
the equipment.
(2) The Commonwealth must pay the owner of the equipment, or the
user of the data or programs, such reasonable compensation for the
damage or corruption as the Commonwealth and the owner or user
agree on.
(3) However, if the owner or user and the Commonwealth fail to
agree, the owner or user may institute proceedings in the Federal
Court of Australia for such reasonable amount of compensation as
the Court determines.
(4) In determining the amount of compensation payable, regard is to
be had to whether the occupier of the premises, or the occupier’s
employees and agents, if they were available at the time, provided
any appropriate warning or guidance on the operation of the
equipment.
(5) Compensation is payable out of money appropriated by the
Parliament.
(6) For the purposes of subsection (1):
damage, in relation to data, includes damage by erasure of data or
addition of other data.
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Section 214BA
Customs Act 1901 121
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Subdivision K—Miscellaneous
214BA Nature of functions of magistrate under sections 203S and
205E
(1) A function of making an order conferred on a magistrate by
section 203S or 205E is conferred on the magistrate in a personal
capacity and not as a court or a member of a court.
(2) Without limiting the generality of subsection (1), an order made by
a magistrate under section 203S or 205E has effect only by virtue
of this Act and is not taken, by implication, to be made by a court.
(3) A magistrate performing a function of, or connected with, making
an order under section 203S or 205E has the same protection and
immunity as if he or she were performing that function as, or as a
member of, a court (being the court of which the magistrate is a
member).
(4) The Governor-General may make arrangements with the Governor
of a State, the Chief Minister of the Australian Capital Territory or
the Administrator of the Northern Territory for the performance, by
all or any of the persons who from time to time hold office as
magistrates in that State or Territory, of the function of making
orders under section 203S or 205E.
215 Collector may impound documents
The Collector may impound or retain any document presented in
connexion with any entry or required to be produced under this
Act, but the person otherwise entitled to such document shall in
lieu thereof be entitled to a copy certified as correct by the
Collector and such certified copy shall be received in all courts as
evidence and of equal validity with the original.
217 Translations of foreign invoices
If any document in a foreign language be presented to any officer
for any purpose connected with the Customs Acts, the Collector
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Section 218
122 Customs Act 1901
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may require to be supplied with an English translation to be made
at the expense of the owner by such person as the Collector may
approve or to be verified as he or she may require.
218 Samples
Samples of any goods under customs control may for any purpose
deemed necessary by the Collector be taken utilized and disposed
of by any officer in manner prescribed.
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 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
Commonwealth 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.
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Section 218A
Customs Act 1901 123
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(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).
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Section 219L
124 Customs Act 1901
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Division 1B—Detention and search of suspects
Subdivision A—Detention and frisk search of suspects
219L Detention for frisk search
(1) Where a detention officer suspects on reasonable grounds that a
person is unlawfully carrying any prohibited goods on his or her
body, an officer of Customs may, while a person is at a designated
place, detain the person at the place for the purposes of being
searched under this Subdivision.
(1A) If:
(a) officers have boarded a ship, aircraft or installation under
section 187 for the purpose of conducting a search, or
exercising any other power, under that section, in relation to
that ship, aircraft or installation; and
(b) a detention officer suspects on reasonable grounds that a
person who is on board the ship, aircraft or installation is
unlawfully carrying prohibited goods on his or her body;
the detention officer may detain the person for the purpose of being
searched under this Subdivision.
(2) Without limiting the generality of subsection (1) or (1A), a
suspicion on reasonable grounds for the purposes of that subsection
includes a suspicion reasonably formed on the basis of any of the
following:
(a) the person’s travel itinerary, including plans in relation to
places that have been visited or are intended to be visited by
the person;
(b) declarations or statements made under a law of the
Commonwealth by the person in the course of arriving in or
departing from Australia;
(c) documents in the person’s possession, including passports,
visas or tickets;
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Section 219M
Customs Act 1901 125
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(d) unusual behaviour of the person observed by or reported to
an officer of Customs;
(e) the contents of or appearance of any visible item carried by
the person or, if the person has baggage, of the person’s
baggage, whether or not carried by the person;
(f) the answers given by the person in relation to questions asked
by an officer of Customs in the exercise of powers under this
Act, or the refusal or failure of the person to answer such
questions;
(g) the documents produced by the person in compliance with an
obligation under this Act, or the refusal or failure of the
person to produce such documents.
219M Frisk search
(1A) If a person is detained under section 219L, an officer of Customs
may:
(a) carry out a frisk search of the person to determine whether
the person is unlawfully carrying prohibited goods; and
(b) recover any prohibited goods found in the course of the frisk
search.
(1) A frisk search of a person detained under section 219L is not to be
carried out unless it is carried out:
(a) as soon as practicable after the detainee is detained; and
(b) by an officer of Customs who is of the same sex as the
detainee.
(2) Before carrying out the frisk search of a person who is detained in
a designated place that is a section 234AA place, the officer of
Customs must:
(a) advise the detainee of the detainee’s right to request that the
search be carried out in an area of the place of detention that
would, in the opinion of the Comptroller-General of
Customs, provide adequate personal privacy to the detainee
during the search; and
(b) if the detainee so requests, take the detainee to such an area.
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Section 219N
126 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
(3) If the detainee is detained at a designated place other than a
section 234AA place, then, in the conduct of a frisk search of the
detainee, the officer conducting the search must use his or her best
endeavours to give the detainee as much personal privacy as the
circumstances of the search allow.
219N Power to require the production of things
The officer of Customs carrying out a frisk search of a person
detained in the circumstances referred to in subsection 219L(1) or
(1A) may require the production of any thing found, as a result of
that search, to be carried on the body of the detainee in order to
determine whether it is, or contains, prohibited goods unlawfully
carried by the detainee.
219P Persons to whom section 219R applies
Section 219R applies to a person detained under
subsection 219L(1) or (1A) if:
(a) the detainee refuses to submit to a frisk search under this
Subdivision; or
(b) the detainee, having submitted to the frisk search, refuses to
produce a thing that he or she is required to produce under
section 219N.
Subdivision B—Detention and external search of suspects
219Q Detention for external search
(1) Where a detention officer or police officer suspects on reasonable
grounds that a person is unlawfully carrying any prohibited goods
on his or her body, an officer of Customs or police officer may
detain the person for the purposes of being searched under this
Subdivision.
(2) Where a person is so detained, an officer of Customs or police
officer must, as soon as practicable, take the person to:
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Section 219R
Customs Act 1901 127
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(a) a detention place that the officer considers suitable for the
detention of the person for the purposes of this Subdivision;
or
(b) a place (other than a detention place):
(i) if the person is detained by a detention officer—that, in
the opinion of the Comptroller-General of Customs,
affords adequate personal privacy to the person; or
(ii) if the person is detained by a police officer—that, in the
police officer’s opinion, affords adequate personal
privacy to the person.
219R External search
External search by consent or order
(1) Where:
(a) by force of section 219P, this section applies to a person
detained under section 219L; or
(b) a detention officer or police officer suspects on reasonable
grounds that a person detained under section 219Q is
unlawfully carrying prohibited goods on his or her body;
then:
(c) if:
(i) there are reasonable grounds to believe that the detainee
is not in need of protection; and
(ii) the detainee consents to be searched; and
(iii) the requirements of section 219RAA are met in respect
of that consent;
an officer of Customs or police officer must, as soon as
practicable, carry out an external search of the detainee; or
(d) in any other case, the detention officer or police officer must,
as soon as practicable, apply to a Justice or, in the
circumstances set out in subsection (1A), to an authorised
officer, for an order for an external search of the detainee.
(1A) The detention officer or police officer may apply to an authorised
officer only if:
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(a) the detainee has waived his or her right to have the
application for an order considered by a Justice; or
(b) a Justice is not reasonably available to consider such an
application.
Making an order for an external search
(2) Subject to subsection (3), the person to whom an application is
made may order that an external search of the detainee be carried
out.
Note: A copy of the order is to be given to the detainee (or the person in
whose presence the external search is to be carried out) under
section 219ZAD.
(3) The person must not make such an order unless he or she is
satisfied that there are reasonable grounds for suspecting that the
detainee is unlawfully carrying prohibited goods.
Order for release of detainee
(4) Where the person does not make such an order, he or she must
order that the detainee be released immediately.
Detainee in need of protection
(5) If an external search of the detainee is ordered and the person
making the order is satisfied that the detainee is in need of
protection, the person must order that the search be carried out in
the presence of:
(a) the detainee’s legal guardian; or
(b) a specified person (not being an officer of Customs or a
police officer) who is capable of representing the detainee’s
interests in relation to the search.
(6) So far as is practicable, a person mentioned in an order under
subsection (5) as the person in whose presence an external search
is to be carried out must be acceptable to the detainee.
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Section 219R
Customs Act 1901 129
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Communicating with others
(7) Subject to subsection (8), the detainee may at any time
communicate with another person.
(8) An officer of Customs or police officer may stop the detainee from
communicating with another person if the officer believes on
reasonable grounds that such communication should be stopped in
order to:
(a) safeguard the processes of law enforcement; or
(b) protect the life and safety of any person.
Carrying out external search
(9) Where:
(a) an external search of the detainee is ordered; and
(b) a detention officer or police officer still suspects on
reasonable grounds that the detainee is unlawfully carrying
prohibited goods;
the detention officer or police officer must ensure that an external
search of the detainee is carried out as soon as practicable.
(10) The search must be carried out:
(a) by an officer of Customs or a police officer; and
(b) in accordance with the order and this section.
(11) An external search of the detainee is to be carried out by a person
who is of the same sex as the detainee.
External search using prescribed equipment
(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 219ZAA are met.
Note 1: Section 219ZAB deals with regulations prescribing equipment.
Note 2: A detainee may be given, under section 219ZAD, a copy of the record
of the invitation to consent and any consent of the detainee.
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Section 219R
130 Customs Act 1901
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Note 3: Any photograph or image taken using the prescribed equipment must
be destroyed in accordance with section 219ZAE.
(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.
Note: Any samples taken must be destroyed in accordance with
section 219ZAE.
(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.
Questioning a detainee
(12) While:
(a) a person is detained under section 219L and, by force of
section 219P, this section applies to the person; or
(b) a person is detained under section 219Q;
a detention officer or police officer may question the person:
(c) for the purpose of carrying out an external search of the
person under this section; or
(d) concerning any prohibited goods found to have been illegally
carried by the person on his or her body as a result of the
carrying out of an external search of the person under this
section.
(13) The detention officer or police officer must not question the
detainee under subsection (12) unless the detention officer or
police officer has informed the detainee:
(a) that the detainee is not obliged to answer any questions asked
of him or her; and
(b) that anything said by him or her may be used in evidence;
and
(c) of his or her right to communicate with another person.
Meaning of authorised officer
(14) In this section:
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Section 219RAA
Customs Act 1901 131
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authorised officer means an officer of Customs who is a member
of a class of officers of Customs declared by the
Comptroller-General of Customs to be authorised officers in
relation to particular circumstances or places.
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 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.
Note: Any videotape or electronic record made of an external search must be
destroyed in accordance with section 219ZAE.
(2) The invitation to consent and any giving of consent must have been
recorded by audiotape, videotape or other electronic means or in
writing.
Note: A detainee may be given, under section 219ZAD, a copy of the record
of the invitation to consent and any consent of the detainee.
(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
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Section 219RA
132 Customs Act 1901
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further consent of the detainee, take a photograph of the prohibited
goods on the detainee.
Note: Any photograph taken must be destroyed in accordance with
section 219ZAE.
Subdivision C—Detention and internal search of persons
suspected of internally concealing substances etc.
219RA Certain Judges and Magistrates eligible to give orders under
this Subdivision
(1) A Judge of the Federal Court of Australia, of the Supreme Court of
the Australian Capital Territory or of the Family Court of Australia
may, by writing, consent to be nominated by the Minister under
subsection (2).
(2) The Minister may, by writing, nominate a Judge of a court referred
to in subsection (1) in relation to whom a consent is in force under
that subsection to be a Division 1B Judge.
219S Initial detention
(1) If a detention officer or police officer suspects on reasonable
grounds that a person is internally concealing a suspicious
substance, an officer of Customs or police officer may detain the
person for the purposes of:
(a) carrying out an internal non-medical scan under
section 219SA; or
(b) enabling an application to be made under section 219T for an
order for the person to be detained.
(2) If the person is so detained, an officer of Customs or police officer:
(a) must, as soon as practicable, take the person to the nearest
detention place that the officer considers suitable for the
detention of the person for the purposes of this Subdivision;
and
(b) may detain the person at that place for those purposes.
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Section 219SA
Customs Act 1901 133
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Note: See also subsections 219Z(3) to (6) for places at which a person can
be detained if an internal medical search of the person is carried out.
219SA Internal non-medical scan using prescribed equipment
(1) If a person has been detained under section 219S, an officer of
Customs may carry out an internal non-medical scan of the person,
as soon as practicable, if:
(a) there are reasonable grounds to believe that the detainee is
not in need of protection; and
(b) the detainee consents to an internal non-medical scan using
equipment prescribed for the purposes of this subsection; and
(c) the requirements of section 219ZAA are met in inviting the
detainee to so consent.
(2) An internal non-medical scan of a detainee must be carried out:
(a) using equipment prescribed for the purposes of
subsection (1); and
(b) by an officer who is authorised for the purposes of
subsection 219ZAA(3) to use that equipment.
Note 1: The officer must also be the same sex as the detainee (see
subsection 219ZAA(3)).
Note 2: Any photograph or image taken using the prescribed equipment must
be destroyed in accordance with section 219ZAE.
219SB Seeking detention order following invitation to consent to
internal non-medical scan
If a person has been detained under section 219S, the
Comptroller-General of Customs or a police officer must, as soon
as practicable, apply for an order under section 219T that the
detainee be detained if:
(a) the detainee has been invited to consent to an internal
non-medical scan using equipment prescribed for the
purposes of subsection 219SA(1); and
(b) any of the following apply:
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(i) the detainee does not consent to the internal
non-medical scan;
(ii) the internal non-medical scan of the detainee is begun
but not completed, and a detention officer or police
officer suspects on reasonable grounds that the detainee
is internally concealing a suspicious substance;
(iii) after carrying out the internal non-medical scan of the
detainee, a detention officer or police officer suspects
on reasonable grounds that the detainee is internally
concealing a suspicious substance; and
(c) subsection 219V(2) does not apply (consent to internal
medical search).
Note 1: An officer of Customs or a police officer must arrange for an internal
medical search of the detainee by a medical practitioner if
subsection 219V(2) applies.
Note 2: The detainee must be released under section 219ZE if no detention
officer suspects on reasonable grounds that the detainee is concealing
a suspicious substance.
219T Initial order for detention
(1A) This section applies if:
(a) a person is detained under section 219S; and
(b) subsection 219V(2) does not apply (consent to internal
medical search); and
(c) for a person who has been invited to consent to an internal
non-medical scan using prescribed equipment—the
Comptroller-General of Customs or a police officer is
required, under section 219SB, to apply for an order under
this section.
(1) The Comptroller-General of Customs or a police officer must, as
soon as practicable, apply:
(a) if there are reasonable grounds to suspect that the person is in
need of protection—to a Division 1B Judge; or
(b) in any other case—to a Division 1B Judge or a Division 1B
Magistrate;
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Section 219U
Customs Act 1901 135
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for an order that the detainee be detained.
(2) Subject to subsection (3), the Judge or Magistrate may order that
the detainee be detained under this section for a period of 48 hours
from:
(a) the time at which the detention began; or
(b) the time at which the order is made;
as the Judge or Magistrate thinks fit.
(3) The Judge or Magistrate must not make such an order unless he or
she is satisfied that there are reasonable grounds for suspecting that
the detainee is internally concealing a suspicious substance.
(4) Where the Judge or Magistrate does not make such an order, he or
she must order that the detainee be released immediately.
(5) Where:
(a) a Judge or Magistrate orders that a detainee be detained
under this section; and
(b) the Judge or Magistrate is satisfied that the detainee is in
need of protection;
the Judge or Magistrate must appoint a person (not being an officer
of Customs or police officer) to represent the detainee’s interests in
relation to this Division until the detainee is no longer in need of
protection.
(6) So far as is practicable, a person so appointed must be acceptable
to the detainee.
219U Renewal of order for detention
(1) Where:
(a) a person is being detained under an order under section 219T;
and
(b) a detention officer or police officer decides that a further
period of detention is necessary in order to determine
whether the person is internally concealing a suspicious
substance;
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Section 219V
136 Customs Act 1901
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the Comptroller-General of Customs or a police officer may apply:
(c) if there are reasonable grounds to suspect that the detainee is
in need of protection—to a Division 1B Judge; or
(d) in any other case—to a Division 1B Judge or a Division 1B
Magistrate;
for an order that the detainee be further detained.
(2) Subject to subsection (3), the Judge or Magistrate may order that
the detainee be further detained under this section for a period of
48 hours from the end of the period for which the unexpired order
is in force.
(3) The Judge or Magistrate must not make such an order unless he or
she is satisfied that there are reasonable grounds for suspecting that
the detainee is internally concealing a suspicious substance.
(4) Where the Judge or Magistrate does not make such an order, he or
she must order that, at the end of the period for which the
unexpired order is in force, the detainee be released immediately.
219V Arrangement for internal medical search
Application of section
(1) This section applies only so long as a detention officer or police
officer suspects on reasonable grounds that the detainee is
internally concealing a suspicious substance.
Consent to internal medical search
(2) If:
(a) there are no reasonable grounds to believe that the detainee is
in need of protection; and
(b) the detainee signs a written consent to an internal medical
search;
an officer of Customs or police officer must, as soon as practicable,
arrange for an internal medical search of the detainee.
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Section 219V
Customs Act 1901 137
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Note: A detainee may be given, under section 219ZAD, a copy of the
consent of the detainee.
Application for order for internal medical search
(3) If:
(a) there are no reasonable grounds to believe that the detainee is
in need of protection; and
(b) the detainee has been detained under section 219U; and
(c) the detainee has not signed a written consent to an internal
medical search;
the Comptroller-General of Customs or a police officer must,
before the end of the period of detention under that section, apply
to a Division 1B Judge for an order for an internal medical search
of the detainee.
(4) If there are reasonable grounds to believe that the detainee is in
need of protection, the Comptroller-General of Customs or a police
officer must:
(a) if a person has been appointed under subsection 219T(5) or
219X(3) to represent the detainee’s interests in relation to
this Division and that person consents to an internal medical
search of the detainee—as soon as practicable after the
consent is given; or
(b) if paragraph (a) does not apply, and the detainee has been
detained under section 219U—before the end of the period of
that detention;
apply to a Division 1B Judge for an order for an internal medical
search of the detainee.
Extension of detention period
(5) After the end of a period of detention under section 219S, 219T or
219U, the detainee may be further detained by force of this
subsection:
(a) if subsection (2) applies—until the internal medical search is
completed; or
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138 Customs Act 1901
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(b) if subsection (3) or (4) applies—until an order under this
section is granted.
Order for internal medical search
(6) Subject to subsections (9) and (10), the Judge may order that:
(a) an internal medical search of the detainee be carried out, the
search to start:
(i) if consent to the search has been given under
paragraph (4)(a)—as soon as practicable after the order
is made and no later than a time specified in the order;
or
(ii) in any other case—no sooner than the end of the period
of detention under section 219U, but as soon as
practicable after the end of that period and no later than
a time specified in the order; and
(b) the detainee be detained for so long as is reasonably
necessary for the internal medical search to be completed.
Order for release
(7) Where the Judge does not make such an order, he or she must order
that the detainee be released immediately.
Extension of time for starting internal medical search
(8) Subject to subsections (9) and (10), on an application made by the
Comptroller-General of Customs or a police officer within the time
specified in an order under paragraph (6)(a), or the time as
extended under this subsection, the Judge may extend that time.
Limitation on making order
(9) The Judge must not make an order under subsection (6), or grant
an extension of time under subsection (8), unless he or she is
satisfied that there are reasonable grounds for suspecting that the
detainee is internally concealing a suspicious substance.
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Section 219W
Customs Act 1901 139
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Time for starting internal medical search
(10) Subject to subsection (11), the time specified in an order under
paragraph (6)(a), including that time as extended under
subsection (8), must not be later than 48 hours after:
(a) if the detainee is being detained under section 219S, 219T or
219U—the end of the period of that detention; or
(b) if the detainee is being detained under subsection (5)—the
time when that detention began.
(11) If the Judge is satisfied that the detainee will refuse, or has refused,
to submit to an internal medical search in spite of an order having
been made under subsection (6), the time specified in the order
under paragraph (6)(a), including that time as extended under
subsection (8), is to be such time as the Judge considers
appropriate in order to allow an internal medical search to be
carried out.
219W Detention under this Subdivision
(1) A person detained under this Subdivision may at any time:
(a) consult a lawyer; or
(b) subject to subsection (3), communicate with another person.
(2) Where a person detained under this Subdivision wishes to consult a
lawyer, an officer of Customs or police officer must arrange for the
person to consult a lawyer of the person’s choice.
(3) An officer of Customs or police officer may stop a person so
detained from communicating with another person if the officer
believes on reasonable grounds that such communication should be
stopped in order to:
(a) safeguard the processes of law enforcement; or
(b) protect the life and safety of any person.
(4) While a person is being detained under an order under this
Subdivision, or has consented to an internal search under this
Subdivision, a detention officer or police officer may ask the
person such questions as are reasonable:
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Section 219X
140 Customs Act 1901
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(a) to determine whether the person is internally concealing a
suspicious substance; or
(b) concerning any such substance found to have been internally
concealed by the person.
(5) The detention officer or police officer must not question the
detainee under subsection (4) unless the detention officer or police
officer has informed the detainee:
(a) that the detainee is not obliged to answer any questions asked
of him or her; and
(b) that anything said by him or her may be used in evidence;
and
(c) of his or her right to consult a lawyer or communicate with
another person.
(6) While the person is detained under an order made under this
Subdivision:
(a) subject to section 219ZG, the person is to be detained at a
detention place; and
(b) the detention is to be conducted with such medical
supervision as is specified in an order relating to the person’s
detention under this Subdivision; and
(c) the detainee, his or her representative or (where applicable) a
person appointed under subsection 219T(5) or 219X(3) to
represent the detainee’s interests in relation to this Division
may at any time apply to:
(i) if the order was made by a Judge—a Division 1B Judge;
or
(ii) if the order was made by a Magistrate—a Division 1B
Judge or a Division 1B Magistrate;
for the order to be revoked.
219X Detainee becoming in need of protection
(1) If:
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Section 219Y
Customs Act 1901 141
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(a) at any time while a person is being detained under this
Subdivision, there are reasonable grounds to believe that the
detainee has become in need of protection; and
(b) until that time, the detainee has not been treated under this
Subdivision as being in need of protection;
the Comptroller-General of Customs or a police officer must, as
soon as practicable, apply for an order under this section.
(2) The application is to be made:
(a) if the person is being detained under an order made by a
Division 1B Judge or Division 1B Magistrate—to such a
Judge or Magistrate, as the case may be; or
(b) if not—to a Division 1B Judge.
(3) The Judge or Magistrate must, if satisfied that the detainee is in
need of protection, appoint a person (not being an officer of
Customs or a police officer) to represent the detainee’s interests in
relation to this Division until the detainee is no longer in need of
protection.
(4) So far as is practicable, a person so appointed must be a person
acceptable to the detainee.
219Y Applications for orders under this Subdivision
(1) A detainee must be given adequate opportunity to obtain legal
advice and legal representation in relation to an application for an
order under this Subdivision.
(2) An application under this Subdivision may be made orally or in
writing and, subject to subsection (5), must be made in person, and
on oath or affirmation, at a hearing before the relevant Judge or
Magistrate.
(3) Subject to subsection (4), the detainee has the right to be present at,
to make submissions to, and to be represented before, any hearing
before the Judge or Magistrate.
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Section 219Z
142 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
(4) The Judge or Magistrate, to the extent that he or she thinks
necessary to:
(a) safeguard the processes of law enforcement; or
(b) protect the life and safety of any person;
may:
(c) restrict the rights under subsection (3) of the detainee to hear
or have access to evidence presented by or on behalf of the
Comptroller-General of Customs or a police officer; or
(d) order that a witness not be required to answer a question or to
produce a document.
(5) Where it is not practicable to make an application under this
Subdivision in person, the application may be made by telephone
or any other appropriate method of communication, and:
(a) if the Judge or Magistrate so requires—the detainee or the
detainee’s representative is to be given an opportunity to
make submissions to the Judge or Magistrate by the same
method of communication; and
(b) as soon as practicable after making the application, the
Comptroller-General of Customs or a police officer must
give the Judge or Magistrate a statutory declaration setting
out the facts and reasons supporting the application.
219Z Internal medical search by medical practitioner
(1) An internal medical search is to be carried out by a medical
practitioner.
(2) Where the detainee is in need of protection, the search is to be
carried out in the presence of the person appointed under
subsection 219T(5) or 219X(3).
(3) Subject to subsection (5), the search is to be carried out at a place
that:
(a) is specified in regulations made for the purposes of this
subsection; or
(b) is provided with the technical, paramedical and other services
prescribed for the purposes of this subsection.
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Section 219ZAA
Customs Act 1901 143
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(4) If the person is not being detained at such a place, an officer of
Customs or police officer must, as soon as practicable:
(a) take the person to the nearest such place that the officer
considers, on reasonable grounds, to be suitable for the
search; and
(b) continue the person’s detention at that place.
(5) The recovery, during the search, of a substance or thing internally
concealed by the detainee is to be carried out at a place that:
(a) is specified in regulations made for the purposes of this
subsection; or
(b) is provided with the technical, paramedical and other services
prescribed for the purposes of this subsection.
(6) If the person is not being detained at such a place, an officer of
Customs or police officer must:
(a) take the person to the nearest such place that the officer
considers, on reasonable grounds, to be suitable for the
recovery; and
(b) continue the person’s detention at that place.
Subdivision CA—Prescribed equipment for external searches
and internal non-medical scans
219ZAA Use of prescribed equipment for external search or internal
non-medical scan
Requirements in inviting consent
(1) In inviting a detainee to consent to the use of prescribed equipment
in an external search, or to an internal non-medical scan using
prescribed equipment, an officer of Customs must tell the detainee
the following:
(a) what the prescribed equipment is;
(b) the purpose for which the prescribed equipment would be
used;
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Section 219ZAA
144 Customs Act 1901
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(c) that use of the prescribed equipment could produce evidence
against the detainee that could be used in a court;
(d) what known risk (if any) would be posed to the detainee’s
health by use of the prescribed equipment;
(e) the procedure for the use of the prescribed equipment;
(f) that the prescribed equipment would be used by an officer of
Customs authorised to use the equipment;
(g) in the case of an external search—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;
(h) in the case of an internal non-medical scan—that an order
may be sought for the detainee to be detained, and for an
internal medical search of the detainee to be carried out, if:
(i) the detainee does not consent to the internal
non-medical scan; or
(ii) after carrying out an internal non-medical scan of the
detainee, a detention officer or police officer suspects
on reasonable grounds that the detainee is internally
concealing a suspicious substance;
(i) in any case—that the invitation, and any giving of consent,
was being or would be recorded by audiotape, videotape or
other electronic means or in writing;
(j) that the detainee is entitled to a copy of those records.
Note: A detainee may be given, under section 219ZAD, a copy of the record
of the invitation to consent and any consent of the detainee.
(2) The invitation to consent and any consent must be recorded by
audiotape, videotape or other electronic means or in writing.
Equipment to be operated by officer of same sex as detainee
(3) The prescribed equipment must be operated by an authorised
officer who is of the same sex as the detainee.
Note: Section 219ZAC deals with authorisation of an officer to operate
equipment.
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Section 219ZAB
Customs Act 1901 145
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219ZAB Prescribing equipment for use in external searches and
internal non-medical scans
Equipment that may be prescribed for 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.
Equipment that may be prescribed for internal non-medical scans
(2) For the purposes of subsection 219SA(1), the regulations may
prescribe only equipment that can produce an indication that a
person is or may be internally concealing a suspicious substance.
(2A) Any equipment prescribed under subsection (2) must be configured
so that the equipment’s use, when carrying out an internal
non-medical scan, is limited to that necessary to produce an
indication that a person is or may be internally concealing a
suspicious substance.
Requirement for statement from Comptroller-General of Customs
(3) Before the Governor-General makes a regulation prescribing
equipment for the purposes of subsection 219R(11A) or 219SA(1),
the Minister must obtain from the Comptroller-General of Customs
a statement that:
(a) the equipment can safely be used to detect prohibited goods
or suspicious substances (as the case requires); 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.
Consultation with relevant authorities
(4) Before making a statement under subsection (3), the
Comptroller-General of Customs must consult any Commonwealth
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Section 219ZAC
146 Customs Act 1901
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authorities (if any) that have expertise or responsibilities relevant
to the matters addressed by the statement.
(5) The Comptroller-General of Customs must table, before each
House of the Parliament, a copy of any advice received under
subsection (4) within 7 sitting days of that House after the day on
which the statement is given to the Minister.
219ZAC Authorising officers to use prescribed equipment for
external search or internal non-medical scan
(1) The Comptroller-General of Customs may authorise an officer of
Customs for the purposes of subsection 219ZAA(3) to use
prescribed equipment only if the officer has successfully completed
the training, specified in writing by the Comptroller-General of
Customs, in the operation of that equipment.
(2) The specification made under subsection (1) is not a legislative
instrument.
219ZAD Giving a record of invitation and consent, or a copy of
order
Record of invitation to consent and consent
(1) If the detainee requests it, an officer of Customs must give the
detainee, as soon as reasonably practicable:
(a) a copy of the record of an invitation to consent:
(i) to an external search under section 219R; or
(ii) to the use of prescribed equipment in the conduct of an
external search; or
(iii) to an internal non-medical scan using prescribed
equipment; and
(b) if the detainee gave consent—a copy of the record of the
detainee’s consent.
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Section 219ZAE
Customs Act 1901 147
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
(2) If a detainee requests it, an officer of Customs must give the
detainee, as soon as reasonably practicable, a copy of the record of
the detainee’s consent to an internal medical search.
Copy of order for external search
(3) If an order for an 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.
219ZAE Records of results of external search or internal
non-medical scan
(1) This section applies to any of the following (the search record)
produced in the course of an external search of a detainee under
section 219R, or an internal non-medical scan of a detainee:
(a) a videotape or other electronic record of an external search of
the detainee;
(b) a photograph or image of the detainee’s body taken using
equipment prescribed for the purposes of
subsection 219R(11A) or 219SA(1);
(c) a photograph taken in the circumstances described in
subsection 219RAA(5);
(d) a sample from the outer surface of the detainee’s hand taken
using equipment prescribed for the purposes of
subsection 219R(11A).
Requirement for search record to be destroyed
(2) A search record must be destroyed as soon as practicable if:
(a) a period of 12 months has elapsed since the search record
was made or produced (subject to subsection (3)); and
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Section 219ZAE
148 Customs Act 1901
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(b) proceedings against the detainee, relating to prohibited goods
or suspicious substances, in respect of which the search
record is relevant:
(i) have not been instituted; or
(ii) have been discontinued.
(3) A magistrate may extend the period of 12 months (or that period as
previously extended under this subsection) referred to in
paragraph (2)(a) in relation to a search record if:
(a) an officer of Customs or the Director of Public Prosecutions
applies for the extension; and
(b) the magistrate is satisfied that there are special reasons for
doing so.
(4) A search record must (subject to subsection (5)) be destroyed as
soon as practicable if:
(a) the detainee is found to have committed a relevant offence
(see subsection (7)) 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.
Retention of search record pending destruction
(5) Despite subsection (4), a search record may be retained if:
(a) an investigation is pending into another relevant offence (see
subsection (7)); or
(b) a proceeding is pending against the detainee for another
relevant offence.
(6) The regulations must provide for the secure storage of any search
record pending its ultimate destruction.
Meaning of relevant offence
(7) For the purposes of this section, an offence is a relevant offence, in
relation to a search record, if:
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Section 219ZA
Customs Act 1901 149
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(a) the offence relates to prohibited goods or a suspicious
substance; and
(b) the search record relates to the offence.
Subdivision D—Detention generally
219ZA Detention officers
(1) The Comptroller-General of Customs may, by signed instrument,
declare a class of officers of Customs to be detention officers for
the purposes of Subdivision A.
(2) The Comptroller-General of Customs may, by signed instrument,
declare a class of officers of Customs to be detention officers for
the purposes of Subdivision B.
(3) The Comptroller-General of Customs may, by signed instrument,
declare a class of officers of Customs to be detention officers for
the purposes of Subdivision C.
219ZB Detention places
(1) A place that is:
(a) prescribed for the purposes of this subsection; or
(b) provided with amenities that satisfy standards prescribed for
the purposes of this subsection;
is a detention place for the purposes of Subdivision B.
(2) A place that is:
(a) prescribed for the purposes of this subsection; or
(b) provided with amenities that satisfy standards prescribed for
the purposes of this subsection;
is a detention place for the purposes of Subdivision C.
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Section 219ZC
150 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
219ZC Detention under this Division
(1) An officer of Customs or police officer exercising powers under
this Division in relation to a person must produce identification as
such an officer when requested by the person to do so.
(2) An officer of Customs or police officer exercising powers under
this Division in relation to a person must not use more force, or
subject the person to greater indignity, than is reasonable and
necessary.
(2A) Without otherwise limiting the application of subsection (2), the
use of force in actually conducting an external search of a detainee
will be regarded as reasonable and necessary:
(a) if an order has been made by a Justice under section 219R
and the detainee does not submit to the search; or
(b) if an order has been made under that section by an authorised
officer because a Justice was not reasonably available and the
detainee does not submit to the search.
(3) While a person is being taken to a particular place under this
Division (except under subsection 219ZE(3)) the person is
regarded as being detained under this Division.
(4) While a person is being detained under this Division, the person is
regarded as being in the custody of:
(a) if the person is being detained by an officer of Customs—the
Comptroller-General of Customs; or
(b) if the person is being detained by a member of the Australian
Federal Police—the Commissioner of Police; or
(c) if the person is being detained by a member of the Police
Force of a State or Territory—the person who holds, in
relation to that Police Force, the same office as the
Commissioner of Police holds in relation to the Australian
Federal Police.
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Section 219ZD
Customs Act 1901 151
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
219ZD Detainees not fluent in English
(1) Where an officer of Customs or police officer detaining a person
under this Division has reasonable cause to believe that the person
is unable, because of inadequate knowledge of the English
language or for any other reason, to communicate orally with
reasonable fluency in the English language, the officer must take
all reasonable steps to ensure that, at all times during the person’s
detention when communication with or by the person is to take
place, a person competent to act as an interpreter is present and
acts as interpreter for the purposes of the communication.
(2) Subsection (1) does not apply if the person detained and the person
with whom he or she is communicating are able:
(a) to communicate in a language other than the English
language with reasonable fluency; or
(b) to communicate satisfactorily by any other means.
219ZE Release from, or cessation of, detention
(1) In spite of any other provision of this Division, but subject to
subsection (2) and section 219ZG, where a person is detained
under this Division and:
(a) an order is made under this Division that the person be
released; or
(b) an order for the detention of the person is revoked; or
(c) an order for the detention of the person has ended and
subsection 219V (5) does not apply; or
(ca) if the detention is under Subdivision A—no detention officer
suspects on reasonable grounds that the person is unlawfully
carrying prohibited goods on his or her body; or
(d) if the detention is under Subdivision B—no detention officer
suspects on reasonable grounds that the person is unlawfully
carrying prohibited goods on his or her body; or
(e) if the detention is under Subdivision C—no detention officer
suspects on reasonable grounds that the person is internally
concealing a suspicious substance; or
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Section 219ZF
152 Customs Act 1901
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(f) an internal medical search of the person is completed;
the detention, and any search, of the person under this Division
must cease immediately.
(2) Subsection (1) does not prevent a further application of this
Division, or the detention of the person under any law other than
this Division.
(3) If:
(a) the detainee is released at any place other than the place at
which he or she was first detained; and
(b) the detainee so requests;
the detainee must immediately be returned free of charge to the
place of the first detention.
Subdivision E—Medical practitioners
219ZF Conduct of internal medical search
(1) Subject to subsection (2), a medical practitioner may, in carrying
out an internal medical search of a detainee under section 219Z,
use any medical procedure or apparatus that the medical
practitioner considers to be reasonably safe in the circumstances.
(2) The medical practitioner must not use any medical procedure
involving surgical incision unless he or she considers it necessary
to do so because the detainee’s life is at risk.
(3) If the medical practitioner:
(a) suspects on reasonable grounds during the internal medical
search that the detainee is internally concealing a substance
or thing; and
(b) lacks sufficient expertise to recover it;
he or she must, as soon as practicable, arrange for another medical
practitioner having that expertise to do so.
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Section 219ZG
Customs Act 1901 153
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219ZG Medical practitioner may take action to preserve detainee’s
life
(1) A medical practitioner may take such measures in relation to a
detainee, including removal to another place, as the medical
practitioner considers necessary because the detainee’s life is at
risk, including measures involving surgical incision or exploration.
(2) While the detainee is being so removed to a place, and while he or
she is at that place:
(a) he or she may be detained under this subsection; and
(b) time is not to be taken to run under an order made under
Subdivision C.
219ZH Medical practitioner to answer questions and prepare report
(1) Subject to subsection (4), at any time during the period during
which a medical practitioner is involved in doing anything under
this Division, an officer of Customs or police officer may ask the
medical practitioner questions relating to whether an internal
search of the detainee should be carried out, the manner in which
such a search is being carried out or the results of such a search,
and the medical practitioner must answer those questions to the
best of his or her ability.
(2) As soon as practicable after completing anything done under this
Division, the medical practitioner or medical practitioners involved
must give to the chief officer of the person who detained the
detainee a written report under subsection (3).
(3) The report is to be in accordance with directions given by the chief
officer concerned.
(4) Subsections (1), (2) and (3) are not limited by any law relating to
privilege or confidentiality.
(5) A report prepared under subsection (3) and given to a chief officer
under subsection (2) is, in any proceedings under this Act, prima
facie evidence of the facts stated in the report.
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Section 219ZJ
154 Customs Act 1901
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(6) In this section:
chief officer means:
(a) in relation to an officer of Customs—the
Comptroller-General of Customs; or
(b) in relation to a member of the Australian Federal Police—the
Commissioner of Police; or
(c) in relation to a member of the Police Force of a State or
Territory—the person who holds, in relation to that Police
Force, the same office as the Commissioner of Police holds
in relation to the Australian Federal Police.
219ZJ Proceedings against medical practitioners
Proceedings, other than proceedings concerning negligently
causing injury, do not lie against a medical practitioner, or any
person assisting or providing facilities to a medical practitioner, in
respect of anything done by the medical practitioner under this
Division.
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1BA
Section 219ZJA
Customs Act 1901 155
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Division 1BA—Detention and search of persons for
purposes of law enforcement co-operation
Subdivision A—Preliminary
219ZJA Definitions
In this Division, unless the contrary intention appears:
Commonwealth offence has the same meaning as in Part 1C of the
Crimes Act 1914.
frisk search has the same meaning as in Division 1 of Part XII.
national security has the same meaning as in the National Security
Information (Criminal and Civil Proceedings) Act 2004.
ordinary search has the same meaning as in Division 1 of Part XII.
prescribed State or Territory offence means an offence prescribed
for the purposes of section 219ZJAA.
serious Commonwealth offence means an offence against a law of
the Commonwealth that is punishable on conviction by
imprisonment for 12 months or more.
219ZJAA Prescribed State or Territory offences
(1) The regulations may prescribe offences against the laws of a State
or a Territory that are punishable on conviction by imprisonment
for a term of at least 3 years.
(2) An offence against a law of a State or Territory must not be
prescribed unless:
(a) the Attorney-General of that State or Territory and the
Minister (Police Minister) responsible for the administration
of that State’s or Territory’s police force have jointly
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Section 219ZJB
156 Customs Act 1901
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requested the Minister that the offence be prescribed for the
purposes of this Division; or
(b) if the Attorney-General of the State or Territory is also the
Police Minister of the State or Territory—the
Attorney-General has requested the Minister that the offence
be prescribed for the purposes of this Division.
Subdivision B—Powers to detain
219ZJB Detention of person suspected of committing serious
Commonwealth offence or prescribed State or Territory
offence
(1) An officer may detain a person if:
(a) the person is in a designated place; and
(b) the officer has reasonable grounds to suspect that the person
has committed, is committing or intends to commit a serious
Commonwealth offence or a prescribed State or Territory
offence.
(2) The officer must advise a police officer of the person’s detention as
soon as practicable after detaining the person.
(3) An officer who is detaining a person under this section must ensure
that the person is made available, as soon as practicable, to a police
officer to be dealt with according to law.
(4) If an officer who is detaining a person under this section ceases to
have reasonable grounds to suspect that the person has committed,
was committing or was intending to commit a serious
Commonwealth offence or a prescribed State or Territory offence,
the officer must release the person from detention immediately.
(5) Subject to subsection (7), if a person is detained under this section
for a period of greater than 2 hours, an officer who is detaining the
person under this section must inform the person of the right of the
person to have a family member or another person notified of the
person’s detention.
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Section 219ZJC
Customs Act 1901 157
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(6) Where a person detained under this section wishes to have a family
member or another person notified of the person’s detention, the
officer must take all reasonable steps to notify the family member
or another person.
(7) An officer who is detaining the person under this section may
refuse to notify a family member or another person of the person’s
detention if the officer believes on reasonable grounds that such
notification should not be made in order to:
(a) safeguard national security, the security of a foreign country
or the processes of law enforcement; or
(b) protect the life and safety of any person.
Note: In relation to references in this section to family member, see also
section 4AAA.
219ZJC Detention of person subject to warrant or bail condition
(1) An officer may detain a person if:
(a) the person is in a designated place; and
(b) the officer has reasonable grounds to suspect that the person
intends to leave the designated place; and
(c) either:
(i) there is a warrant for the arrest of the person in relation
to a Commonwealth offence or a prescribed State or
Territory offence; or
(ii) the person is on bail in relation to a Commonwealth
offence or a prescribed State or Territory offence and
subject to a bail condition (however expressed) that, if
complied with, prevents the person from leaving
Australia.
(2) The officer must advise a police officer of the person’s detention as
soon as practicable after detaining the person.
(3) An officer who is detaining a person under this section must ensure
that the person is delivered, as soon as practicable, into the custody
of a police officer to be dealt with according to law.
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Section 219ZJCA
158 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
(4) Subject to subsection (6), if a person is detained under this section
for a period of greater than 45 minutes, an officer who is detaining
the person under this section must inform the person of the right of
the person to have a family member or another person notified of
the person’s detention.
(5) Where a person detained under this section wishes to have a family
member or another person notified of the person’s detention, the
officer must take all reasonable steps to notify the family member
or another person.
(6) An officer who is detaining the person under this section may
refuse to notify a family member or another person of the person’s
detention if the officer believes on reasonable grounds that such
notification should not be made in order to:
(a) safeguard national security, the security of a foreign country
or the processes of law enforcement; or
(b) protect the life and safety of any person.
Note: In relation to references in this section to family member, see also
section 4AAA.
219ZJCA Detention of person for national security or security of a
foreign country
(1) An officer may detain a person if:
(a) the person is in a designated place; and
(b) the officer is satisfied on reasonable grounds that the person
is, or is likely to be, involved in an activity that is a threat to
national security or the security of a foreign country.
(2) An officer who is detaining a person under this section must
(subject to subsection (3)) ensure that the person is made available,
as soon as practicable, to a police officer in person to be dealt with
according to law.
(3) An officer who is detaining a person under this section must
release the person from that detention immediately if:
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Detention and search of persons for purposes of law enforcement co-operation Division
1BA
Section 219ZJD
Customs Act 1901 159
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(a) the officer ceases to be satisfied on reasonable grounds that
the person is, or is likely to be, involved in an activity that is
a threat to national security or the security of a foreign
country; or
(b) the person is made available to a police officer under
subsection (2); or
(c) a police officer indicates that the police force to which the
police officer belongs has no interest in the person.
(4) Subject to subsection (6), if a person is detained under this section
for more than 2 hours, an officer who is detaining the person under
this section must inform the person of the right of the person to
have a family member or another person notified of the person’s
detention.
(5) Where a person detained under this section wishes to have a family
member or another person notified of the person’s detention, the
officer must take all reasonable steps to notify the family member
or the other person.
(6) An officer who is detaining the person under this section may
refuse to notify a family member or another person of the person’s
detention if the officer believes on reasonable grounds that such
notification should not be made in order to:
(a) safeguard national security, the security of a foreign country
or the processes of law enforcement; or
(b) protect the life and safety of any person.
Note: In relation to references in this section to family member, see also
section 4AAA.
Subdivision C—Matters affecting detention generally
219ZJD Search of person detained under this Division
(1) An officer may, in relation to a person detained under this
Division:
(a) conduct a frisk search or an ordinary search of the person;
and
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Division 1BA Detention and search of persons for purposes of law enforcement co-
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Section 219ZJD
160 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
(b) search the clothing that the person is wearing and any
property under the person’s immediate control, if the officer
believes on reasonable grounds that it is necessary to do so;
for the purposes of:
(c) determining whether there is concealed on the person, or in
the person’s clothing or property, a weapon or other thing
capable of being used to inflict bodily injury or to assist the
person to escape from detention; or
(d) in the case of a person detained under section 219ZJB—
preventing the concealment, loss or destruction of evidence
of, or relating to, the offence concerned; or
(e) in the case of a person detained under section 219ZJCA—
preventing the concealment, loss or destruction of material of
interest for national security or the security of a foreign
country.
(2) A search under this section must be conducted:
(a) as soon as practicable after the person is detained; and
(b) by an officer of the same sex as the detained person.
(3) An officer who conducts a search under this section may seize:
(a) any weapon or thing mentioned in paragraph (1)(c); and
(b) anything the officer has reasonable grounds to believe is a
thing:
(i) with respect to which an offence has been committed; or
(ii) that will afford evidence of the commission of an
offence; or
(iii) that was used, or intended to be used, for the purpose of
committing an offence; or
(iv) that is of interest for national security or the security of
a foreign country.
(4) An officer who seizes a weapon or other thing under subsection (3)
must ensure that it is made available to:
(a) the police officer to whom the person is made available under
subsection 219ZJB(3) or 219ZJCA(2); or
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Detention and search of persons for purposes of law enforcement co-operation Division
1BA
Section 219ZJE
Customs Act 1901 161
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(b) the police officer into whose custody the person is delivered
under subsection 219ZJC(3).
219ZJE Comptroller-General of Customs must give directions about
detaining persons under this Division
The Comptroller-General of Customs must, by legislative
instrument, give directions:
(a) identifying places at which an officer is permitted to detain a
person under this Division (whether by their character under
this Act, the amenities available at the places or any other
matters); and
(b) specifying such other matters relating to the detention of
persons under this Division as the Comptroller-General of
Customs considers appropriate.
219ZJF Detainees to be given reasons for detention and shown
identification on request
(1) An officer who detains a person under section 219ZJB or 219ZJC
must inform the person, at the time the officer detains the person,
of the reason for the person’s detention.
(2) Subsection (1) does not apply if the person, by the person’s own
actions, makes it impracticable for the officer to inform the person
of the reason.
(3) An officer exercising powers under this Division in relation to a
person must produce identification that he or she is an officer when
requested by the person to do so.
219ZJG Use of force in relation to detention
(1) An officer exercising powers under this Division in relation to a
person must not use more force, or subject the person to greater
indignity, than is reasonable and necessary.
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Division 1BA Detention and search of persons for purposes of law enforcement co-
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Section 219ZJH
162 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
(2) Without limiting the generality of subsection (1), an officer must
not, in detaining or attempting to detain a person under this
Division, or preventing or attempting to prevent a detained person
from escaping from detention under this Division, do an act likely
to cause death or grievous bodily harm to the person, unless the
officer believes on reasonable grounds that doing the act is
necessary to protect life or prevent serious injury to the officer or
any other person.
219ZJH Moving detained persons
(1) While a person is being taken to a particular place under this
Division (except under subsection (2)), the person is regarded as
being detained under this Division.
(2) If:
(a) a person detained under this Division is released at any place
other than the place at which he or she was first detained; and
(b) the person so requests;
the person must immediately be returned free of charge to the place
of the first detention.
219ZJI Detainees not fluent in English
Section 219ZD applies to an officer detaining a person under this
Division as if the detention under this Division were detention
under Division 1B of this Part.
Note: Section 219ZD requires the officer to take reasonable steps to ensure
that a competent interpreter is available for the purposes of
communication.
219ZJJ Detention of minors
(1) Subject to subsection (2), an officer who under this Division
detains a person who is known or believed to be a minor must:
(a) inform the minor of the right for a parent or guardian or
person described in paragraph (c) to be notified of the
minor’s detention; and
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1BA
Section 219ZJJ
Customs Act 1901 163
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(b) upon the request of the minor, take all reasonable steps to
notify such person and inform them of:
(i) the fact that the minor has been detained; and
(ii) the place in which the minor is being held; and
(iii) the place to which the minor is to be transferred by
police, if that place is known at the time of contacting
the minor’s parent or guardian; and
(iv) the reason for the minor’s detention, unless the minor is
detained under section 219ZJCA; and
(c) if a parent or guardian is not acceptable to the detained minor
under this subsection, the detained minor may request that
another person who is capable of representing the interests of
the minor be notified.
(2) An officer who under this Division detains a person who is known
or believed to be a minor may refuse to notify a parent or guardian
or person described in paragraph (1)(c) of the person’s detention if
the officer believes on reasonable grounds that such notification
should not be made in order to:
(a) safeguard national security, the security of a foreign country
or the processes of law enforcement; or
(b) protect the life and safety of any person.
(3) If at the time of notifying the parent or guardian, the officer is not
aware of the place referred to in subparagraph (1)(b)(iii), the
officer must:
(a) contact the parent or guardian or other person described in
paragraph (1)(c) immediately after that place becomes known
to the officer; and
(b) inform the parent or guardian of that place.
(4) An officer who under this Division detains a person who is known
or believed to be a minor must, at the time of advising a police
officer of the minor’s detention in accordance with
subsection 219ZJB(2) or 219ZJC(2), advise the police officer of
the fact that the detained person is a minor, or is believed to be a
minor.
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Division 1BA Detention and search of persons for purposes of law enforcement co-
operation
Section 219ZJJ
164 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
(5) For the purposes of this section, a minor is considered to be any
person under the age of 18 years.
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Officers Part XII
Judges and Magistrates Division 1C
Section 219ZK
Customs Act 1901 165
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
Division 1C—Judges and Magistrates
219ZK Nature of functions of Judge or Magistrate
(1) Where this Part confers on a Judge or Magistrate the function of
issuing a warrant or giving an order, the function is so conferred on
the Judge or Magistrate in a personal capacity and not as a court or
a member of a court.
(2) Without limiting the generality of subsection (1), a warrant or
order issued or given by a Judge or Magistrate under this Part has
effect only by virtue of this Act and is not to be taken by
implication to be issued or given by a court.
219ZL Protection of Judge or Magistrate
(1) A Judge of the Federal Court of Australia, of the Supreme Court of
the Australian Capital Territory or of the Family Court of Australia
has, in performing a function of, or connected with, issuing a
warrant or giving an order under this Part, the same protection and
immunity as a Justice of the High Court has in relation to
proceedings in the High Court.
(2) A Judge of the Supreme Court of a State, or a Judge of the
Supreme Court of the Northern Territory who is not a Judge
referred to in subsection (1), has, in performing a function of, or
connected with, issuing a warrant or giving an order under this
Part, the same protection and immunity as if he or she were
performing that function as that Supreme Court or as a member of
that Supreme Court.
(3) A Magistrate performing a function of, or connected with, issuing a
warrant or giving an order under this Part has the same protection
and immunity as if he or she were performing that function as a
Magistrates Court or as a member of a Magistrates Court.
(3A) A Judge, or acting Judge, of the Local Court of the Northern
Territory performing a function of, or connected with, issuing a
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Division 1C Judges and Magistrates
Section 219ZL
166 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
warrant or giving an order under this Part has the same protection
and immunity as if he or she were performing that function as that
Local Court or as a Judge of that Local Court.
(4A) No civil or criminal action is to be brought against a Justice in
respect of anything done, or omitted to be done, in performing the
function of, or a function connected with, making an order under
section 219R.
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Protection to officers Division 2
Section 220
Customs Act 1901 167
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
Division 2—Protection to officers
220 Reasonable cause for seizure a bar to action
No person shall be liable for any seizure under this Act for which
there shall have been reasonable cause, and when any claimant
recovers any ship aircraft or goods seized or any proceeds thereof
and at the same time reasonable cause for the seizure is found such
finding shall bar all proceedings against all persons concerned in
the seizing.
221 Notice of action to be given
No proceedings shall be commenced against any officer for
anything done in execution of or by reason of his or her office until
one month next after notice in writing shall have been delivered to
him or her or left at his or her usual place of abode by the plaintiff,
or the plaintiff’s attorney or agent, in which notice shall be clearly
stated the cause and nature of the proceeding and the court in
which the same is intended to be instituted, the name and place of
abode of the plaintiff and the name and place of business of such
attorney or agent unless the Supreme Court of a State, the Supreme
Court of the Australian Capital Territory or the Supreme Court of
the Northern Territory of Australia has granted leave to the
plaintiff to proceed without notice, which leave the Court may
grant on such terms as it thinks just.
222 Defect in notice not to invalidate
No notice under the last preceding section shall be deemed invalid
by reason of any defect or inaccuracy therein unless the Court is of
opinion that the defect or inaccuracy would prejudice the defendant
in his or her defence and the Court may give leave to amend such
notice as it thinks just.
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Division 2 Protection to officers
Section 223
168 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
223 No evidence to be produced but that contained in notice
Upon any proceeding instituted in pursuance of such notice the
plaintiff shall not be at liberty to advance any evidence of any
cause of action except such as has been distinctly stated in such
notice nor shall the plaintiff be entitled to a verdict without proving
on the trial that such notice has been duly served.
224 Officer may tender amends
It shall be lawful for any officer to whom notice of proceeding
shall have been given at any time within one month after such
notice to tender amends to the plaintiff, or to the plaintiff’s attorney
or agent, and in case such amends be not accepted to plead such
tender in defence either alone or with other defences and if the
amends tendered shall be found to have been sufficient no costs
shall be recovered against an officer and he or she shall be entitled
to costs if he or she shall have brought the amount into court when
entering his or her defence.
225 Commencement of proceedings against officers
Every proceeding against any officer shall except as mentioned in
the next section be commenced within 6 months after its cause
shall have arisen and not afterwards and the venue shall be local
and the defendant may plead the general issue and give any special
matter in evidence.
226 Time for commencing action
(1) No proceeding whether against an officer or otherwise for anything
done for the protection of the revenue in relation to any Customs
Tariff or Customs Tariff alteration proposed in the Parliament shall
except as mentioned in the next section be commenced before the
close of the session in which such Tariff or Tariff alteration is
proposed or before the expiration of 12 months after such Tariff or
Tariff alteration is proposed, whichever first happens.
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Protection to officers Division 2
Section 227
Customs Act 1901 169
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
(2) No proceeding, whether against an officer or otherwise, for
anything done for the protection of the revenue in relation to a
Customs Tariff or Customs Tariff alteration that is intended to be
proposed in accordance with a notice under section 273EA shall,
except as provided in the next succeeding section, be commenced
before:
(a) the seventh sitting day of the House of Representatives after
the date of publication of the notice, or the day on which the
period of 6 months from the date of publication of the notice
expires, whichever is the earlier day; or
(b) where, on or before the earlier of the days referred to in the
last preceding paragraph, a Customs Tariff or Customs Tariff
alteration that would validate the thing so done is proposed in
the Parliament—the close of the session in which the
Customs Tariff or Customs Tariff alteration is so proposed,
or the expiration of 12 months after the Customs Tariff or
Customs Tariff alteration is so proposed, whichever first
happens.
227 Security may be required
The Supreme Court of a State, the Supreme Court of the Australian
Capital Territory or the Supreme Court of the Northern Territory of
Australia on the application of any person who desires to
commence any proceeding mentioned in the last section against an
officer may require the officer to give security to the satisfaction of
the Court to abide the result of the proceeding and in default of the
giving of such security may sanction the immediate
commencement of the proceeding.
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Part XII Officers
Division 3 Evidence
Section 227AA
170 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
Division 3—Evidence
227AA Evidence may be used in prosecutions etc.
(1) To avoid doubt, if, when exercising powers under this Act, an
officer obtains evidence of the commission of an offence against
Part 9.1 of the Criminal Code, then that evidence may be used, or
given to another body for use, in:
(a) investigating the offence; or
(b) proceedings for the prosecution for the offence.
(2) To avoid doubt, if, when exercising powers under this Act, an
officer obtains evidence of the commission of an offence against
Subdivision B of Division 72 of the Criminal Code, then that
evidence may be used, or given to another body for use, in:
(a) investigating the offence; or
(b) proceedings for the prosecution for the offence.
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Special provisions relating to prohibited items Part XIIA
Section 227A
Customs Act 1901 171
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
Part XIIA—Special provisions relating to
prohibited items
227A Overview of Part
This Part deals with certain items on board a ship or an aircraft that
is in Australia after arriving in Australia from a place outside
Australia. The Part empowers an officer, under certain
circumstances:
(a) to approve a storage place on the ship or aircraft for the
purpose of safekeeping the item; or
(b) to take the item into custody;
for a period that ends when the ship or aircraft departs from
Australia or otherwise ceases to be subject to this Part.
227B Definitions
In this Part:
operator means:
(a) in relation to a ship—the owner or master of the ship; and
(b) in relation to an aircraft—the owner or pilot of the aircraft.
prohibited item means a thing to which this Part applies because of
section 227D.
227C Ships and aircraft to which this Part applies
(1) This Part applies to a ship if:
(a) the ship is in Australia after undertaking a voyage to
Australia from a place outside Australia; and
(b) the ship is not a ship that is taken to have been imported into
Australia under subsection 49A(7).
(2) This Part applies to an aircraft if:
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Section 227C
172 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
(a) the aircraft is in Australia after undertaking a flight to
Australia from a place outside Australia; and
(b) the aircraft is not an aircraft that is taken to have been
imported into Australia under subsection 49A(7).
(3) This Part ceases to apply to a ship when:
(a) the ship has departed from its last port in Australia for a place
outside Australia; or
(b) the ship is taken to have been imported into Australia under
subsection 49A(7).
(4) This Part ceases to apply to an aircraft when:
(a) the aircraft has departed from its last airport in Australia for a
place outside Australia; or
(b) the aircraft is taken to have been imported into Australia
under subsection 49A(7).
(5) If:
(a) this Part ceased to apply to a ship because the ship has
departed from its last port in Australia as mentioned in
paragraph (3)(a); but
(b) the ship returns to Australia before completing a voyage to a
place outside Australia;
then, subject to paragraph (1)(b) and subsection (3), this Part
applies to the ship after it has so returned as if it has just
undertaken a voyage to Australia from a place outside Australia.
(6) If:
(a) this Part ceased to apply to an aircraft because the aircraft has
departed from its last airport in Australia as mentioned in
paragraph (4)(a); but
(b) the aircraft returns to Australia before completing a flight to a
place outside Australia;
then, subject to paragraph (2)(b) and subsection (4), this Part
applies to the aircraft after it has been so returned as if it has just
undertaken a flight to Australia from a place outside Australia.
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Section 227D
Customs Act 1901 173
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227D Items to which this Part applies
This Part applies to any thing if:
(a) it is on board a ship or an aircraft to which this Part applies;
and
(b) its importation is:
(i) prohibited absolutely by the Customs (Prohibited
Imports) Regulations 1956; or
(ii) prohibited by those regulations unless a licence,
permission, consent, approval or other document
(however described) is granted or given, and such a
licence, permission, consent, approval or other
document has not been granted or given; and
(c) either:
(i) it is, or should have been, specified in a report given by
the operator under section 64AAA as part of the stores
of the ship or aircraft; or
(ii) it is part of the personal effects of the crew of the ship
or aircraft.
227E Approved storage for prohibited items
(1) An officer may, in writing, approve a place on board a ship or an
aircraft to which this Part applies as a place in which a prohibited
item on board that ship or aircraft must be stored while this Part
applies to the ship or aircraft.
(2) An officer must not give the approval unless the officer is satisfied
that:
(a) only the operator concerned may access the place; and
(b) the place is otherwise sufficiently secure for the purposes of
preventing persons from removing the item from the place.
Example: If a safe on board a ship is sought to be approved under subsection (1),
the approval may not be given if a person other than the operator of
the ship holds a key to the safe.
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Section 227F
174 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
(3) An officer may place a fastening, or a lock, mark or seal on an
approved place for the purposes of preventing persons from
accessing that place.
(4) If an approval under subsection (1) is not revoked at an earlier
time, it continues to be in force until this Part ceases to apply to the
ship or aircraft concerned.
(5) While an approval under subsection (1) is in force in relation to a
prohibited item, a person must not:
(a) interfere in any way with any fastening, lock, mark or seal
placed on the approved place by an officer; or
(b) remove the item from the approved place.
Penalty: 60 penalty units.
(6) An offence against subsection (5) is an offence of strict liability.
(7) Subsection (5) does not apply if the person has the written
permission of an officer for the interference or removal.
227F Officer may take custody of items
(1) If:
(a) this Part applies to a prohibited item on board a ship or
aircraft; and
(b) no approval under section 227E is in force in relation to a
place on board that ship or aircraft as the place for storing
that item;
an officer must take custody of that item.
(2) Within 48 hours after taking custody of the item, an officer must
give a written notice to the operator of the ship or aircraft under
this section.
(3) The notice must be in an approved form.
(4) Without limiting subsection (3), the notice must identify the
prohibited item concerned.
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Section 227G
Customs Act 1901 175
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
(5) The Comptroller-General of Customs must ensure that an item
taken into custody under this section is:
(a) securely stored while it is in custody under this section; and
(b) returned to the operator of the ship or aircraft concerned:
(i) if subparagraph (ii) does not apply—when the ship is at
its last port of call in Australia, or when the aircraft is at
its last airport of call in Australia, and after a Certificate
of Clearance referred to in section 118 has been granted
in relation to the departure of that ship from that port, or
the departure of the aircraft from that airport (as the case
requires); or
(ii) when this Part ceases to apply to the ship or aircraft
because it is taken to have been imported into Australia
under subsection 49A(7).
(6) To avoid doubt, subsection (5) does not affect the power of an
officer to seize or otherwise deal with the item under this Act
(including provisions in this Act relating to prohibited goods) when
this Part ceases to apply to the ship or aircraft concerned.
(7) After an item is returned to the operator under subsection (5) and
before the ship or aircraft leaves Australia, the operator concerned
must comply with any conditions specified by the
Comptroller-General of Customs in relation to the storage of that
item.
227G Compensation for damage etc. to items
(1) If:
(a) an activity undertaken by or on behalf of the Commonwealth
in relation to a prohibited item taken into custody under this
Part causes the loss or destruction of, or damage to, that item;
and
(b) the loss, destruction or damage occurred wholly or partly as a
result of:
(i) insufficient care being exercised in selecting the persons
to undertake the activity; or
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Section 227G
176 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
(ii) insufficient care being exercised by the person
undertaking that activity;
compensation for the loss, destruction or damage is payable to the
owner of the item concerned.
(2) Compensation is payable out of money appropriated by the
Parliament for the purpose.
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Penal Provisions Part XIII
Forfeitures Division 1
Section 228
Customs Act 1901 177
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
Part XIII—Penal Provisions
Division 1—Forfeitures
228 Forfeited ships and aircraft
(1) The following ships, boats and aircraft shall be forfeited to the
Crown:
(a) Any ship or aircraft used in smuggling, or knowingly used in
the unlawful importation, exportation, or conveyance of any
prohibited imports or prohibited exports.
(b) Any ship the master of which has failed to facilitate, by all
reasonable means, the boarding of his or her ship, under the
Maritime Powers Act 2013, in circumstances set out in
subsection (2) or (3).
(c) Any aircraft failing to land at an airport or landing field for
boarding upon its pilot being required to land the aircraft,
under the Maritime Powers Act 2013, in circumstances set
out in subsection (4), (5) or (6).
(d) Any ship or aircraft from which goods are thrown overboard
staved or destroyed to prevent seizure by an officer of
Customs.
(e) Any ship or aircraft found within any port or airport with
cargo on board and afterwards found light or in ballast or
with the cargo deficient and the master or pilot of which is
unable to lawfully account for the difference.
(f) Any ship or aircraft which on being boarded is found to be
constructed, adapted, altered or fitted in any manner for the
purpose of concealing goods.
(2) The circumstances are:
(a) the ship is a foreign ship; and
(b) the ship is on the landward side of the outer edge of
Australia’s territorial sea; and
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Division 1 Forfeitures
Section 228
178 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
(c) the boarding is for the purposes of this Act or an Act
prescribed by the regulations, or for the purposes of
determining whether a contravention, or an attempted
contravention, in Australia of section 72.13 or Division 307
of the Criminal Code is occurring.
(3) The circumstances are:
(a) the ship is an Australian ship; and
(b) the ship is outside the territorial sea of any foreign country;
and
(c) the boarding is for the purposes of this Act or an Act
prescribed by the regulations, or for the purposes of
determining whether a contravention, or an attempted
contravention, in Australia of section 72.13 or Division 307
of the Criminal Code is occurring.
(4) The circumstances are:
(a) either:
(i) the aircraft is an Australian aircraft over anywhere
except a foreign country; or
(ii) the aircraft is a foreign aircraft over Australia; and
(b) the requirement to land is made:
(i) in relation to the operation of this Act; and
(ii) because the pilot of the aircraft has failed to comply
with a requirement made in the exercise of aircraft
identification powers.
(5) The circumstances are:
(a) either:
(i) the aircraft is an Australian aircraft over anywhere
except a foreign country; or
(ii) the aircraft is a foreign aircraft over Australia; and
(b) an authorising officer reasonably suspects that the aircraft is
or has been involved in a contravention, or attempted
contravention, of this Act or section 72.13 or Division 307 of
the Criminal Code.
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(6) The circumstances are:
(a) either:
(i) the aircraft is an Australian aircraft over anywhere
except a foreign country; or
(ii) the aircraft is a foreign aircraft over Australia; and
(b) an authorising officer reasonably suspects that the aircraft is
carrying goods satisfying either or both of the following
subparagraphs:
(i) the goods are connected, whether directly or indirectly,
with the carrying out of a terrorist act, whether a
terrorist act has occurred, is occurring or is likely to
occur;
(ii) the existence or the shipment of the goods prejudices, or
is likely to prejudice, Australia’s defence or security or
international peace and security.
(7) In this section:
terrorist act has the meaning given by section 100.1 of the
Criminal Code.
228A Forfeited resources installations
Any overseas resources installation that becomes attached to the
Australian seabed without the permission of the
Comptroller-General of Customs given under subsection 5A(2)
shall be forfeited to the Crown.
228B Forfeited sea installations
Any overseas sea installation that becomes installed in a coastal
area without the permission of the Comptroller-General of
Customs given under subsection 5B(2) shall be forfeited to the
Crown.
229 Forfeited goods
(1) The following goods shall be forfeited to the Crown:
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(a) All goods (not being objects forfeited, or liable to forfeiture,
under the Protection of Movable Cultural Heritage Act 1986)
which are smuggled, or unlawfully imported, exported, or
conveyed.
(b) All prohibited imports.
(ba) All goods the importation of which has been prohibited
unless a licence or permission containing conditions or
requirements has been granted and those conditions or
requirements have not been complied with.
(bb) Any goods sold under section 206 or 209J or sold or
otherwise disposed of under section 208D or 209K subject to
a condition that has not been complied with.
(c) All goods imported or exported in any ship boat or aircraft in
which goods are prohibited to be imported or exported.
(d) All dutiable goods found on any ship boat or aircraft being
unlawfully in any place.
(da) All restricted goods brought into Australia other than in
accordance with a permission under
subsection 233BABAE(2).
(e) All goods found on any ship or aircraft after arrival in any
port or airport and not being specified or referred to in the
cargo report made under section 64AB and not being
baggage belonging to the crew or passengers and not being
satisfactorily accounted for.
(f) All goods in respect of which bulk is unlawfully broken.
(g) All goods subject to customs control that are moved, altered
or interfered with except as authorized by this Act.
(h) All goods which by this Act are required to be moved or
dealt with in any way and which shall not be moved or dealt
with accordingly.
(j) Any carriage or animal used in smuggling or in the unlawful
importation, exportation, or conveyance of any goods.
(m) All goods not being passengers’ baggage found on any ship
or aircraft after clearance and not specified or referred to in
the Outward Manifest and not accounted for to the
satisfaction of the Collector.
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(n) All prohibited exports put on any ship boat or aircraft for
export or brought to any wharf or place for the purpose of
export.
(na) All goods that are the subject of a notice under
subsection 112BA(1) and are put on any ship or aircraft for
export or are brought to any wharf or place for the purpose of
export.
(o) All dutiable goods concealed in any manner.
(p) Any package having concealed therein goods not enumerated
in the entry or being so packed as to deceive the officer.
(q) All dutiable goods found in the possession or in the baggage
of any person who has got out of, landed from or gone on
board any ship boat or aircraft and who has denied that he or
she has any dutiable goods in his or her possession, or who
when questioned by an officer has not fully disclosed that
such goods are in his or her possession or baggage.
(qa) If unaccompanied personal or household effects of a person
are imported into Australia—all dutiable goods that are found
among those effects, where the person has denied that there
are any dutiable goods among the effects, or after having
been questioned by an officer has not fully disclosed that
there are such goods among the effects.
(r) All goods offered for sale on the pretence that the same are
prohibited or smuggled goods.
(1A) In spite of subsection (1), goods are not forfeited to the Crown
merely because they are imported or exported in contravention of
the Motor Vehicle Standards Act 1989.
(2) Notwithstanding section 228, this section applies in relation to
ships, boats and aircraft as well as other goods.
(3) In spite of subsection (1), goods are not forfeited to the Crown
merely because they are imported or exported in contravention of
the Hazardous Waste (Regulation of Exports and Imports) Act
1989.
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229A Proceeds of drug trafficking liable to forfeiture
(1) In this section, unless the contrary intention appears:
cheque includes a bill, promissory note or other security for
money.
goods includes cheques, but does not include moneys in the form
of cash.
moneys means moneys in the form of cash.
(2) This section applies to:
(a) moneys or goods in the possession or under the control of a
person, being moneys or goods that came into his or her
possession or under his or her control by reason of:
(i) the person selling or otherwise dealing in, or agreeing to
sell or otherwise deal in, narcotic goods imported into
Australia in contravention of this Act; or
(ii) the person importing, or agreeing to import, narcotic
goods into Australia in contravention of this Act; or
(iii) the person exporting, or agreeing to export, narcotic
goods from Australia in contravention of this Act; or
(iv) the person keeping or having kept, or agreeing to keep,
in his or her possession narcotic goods imported into
Australia in contravention of this Act; or
(v) the person conspiring with another person or other
persons to import any narcotic goods into Australia in
contravention of this Act or to export any narcotic
goods from Australia in contravention of this Act; or
(vi) the person aiding, abetting, counselling or procuring, or
being in any way knowingly concerned in, the sale of,
or other dealing in, narcotic goods imported into
Australia in contravention of this Act, the importation of
narcotic goods into Australia in contravention of this
Act, the exportation of narcotic goods from Australia in
contravention of this Act or the keeping in the
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possession of any person of narcotic goods imported
into Australia in contravention of this Act;
(b) moneys in the possession or under the control of a person
that were paid to him or her for the sale of goods that were,
immediately before the sale, goods to which this section
applied; and
(c) goods in the possession or under the control of a person that
were purchased or otherwise acquired by him or her with or
out of moneys to which this section applied.
Note: Goods are imported or exported in contravention of this Act if they are
imported or exported in breach of a prohibition under this Act: see
subsection 4(4A).
(3) Where a person who obtained possession or control of a cheque, or
was paid moneys by a cheque, in any of the circumstances set out
in paragraph (2)(a) or (b) receives, in respect of the cheque,
moneys in the form of cash, the moneys so received shall, for the
purposes of subsection (2), be deemed to be moneys that came into
his or her possession or under his or her control, or were paid to
him or her, in the circumstances in which he or she obtained
possession or control of the cheque, or was paid the moneys by the
cheque.
(4) Where a person who purchases or otherwise acquires goods pays
the whole or substantially the whole of the amount paid by him or
her for the goods by means of a cheque that came into his or her
possession or under his or her control as set out in paragraph (2)(a),
the goods shall, for the purposes of subsection (2), be deemed to
have come into his or her possession or under his or her control in
the circumstances in which the cheque came into his or her
possession or under his or her control.
(5) For the purposes of paragraph (2)(c), goods shall not be taken to
have been purchased with or out of moneys to which this section
applied unless the whole, or substantially the whole, of the moneys
paid for the goods were moneys to which this section applied.
(6) For the purposes of section 203, moneys or goods to which this
section applies shall be deemed to be forfeited goods and, upon
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moneys or goods to which this section applies being seized under a
seizure warrant, they shall, for the purposes of sections 204 to
208E (inclusive) and Part XIV, be deemed to be forfeited goods,
and those provisions apply accordingly.
(7) Where, in any proceedings for the condemnation or recovery of
moneys or goods to which this section applies and which have
been seized under a seizure warrant, the Court is satisfied that the
relevant narcotic goods are goods reasonably suspected of having
been imported into Australia in contravention of this Act, the Court
shall, for the purposes of the proceedings, treat the narcotic goods
as narcotic goods which have been imported into Australia in
contravention of this Act unless it is established to the satisfaction
of the Court that the narcotic goods were not imported into
Australia or were not imported into Australia in contravention of
this Act.
(8) Without limiting any powers that are conferred on a Court by the
provisions of this Act specified in subsection (6) and
notwithstanding any other provision of this Act:
(a) where moneys or goods in the possession or under the control
of a person are seized under a seizure warrant, a Court in
which proceedings are brought for the condemnation or
recovery of the moneys or goods shall, if it is satisfied that
the moneys or goods were, at the time when they were so
seized, owned by another person who, when he or she
became the owner of the moneys or goods, did not know, and
had no reason to suspect, that the moneys or goods had come
into the possession or under the control of the first-mentioned
person in circumstances referred to in subsection (2), direct
that the moneys or goods be delivered to that other person;
and
(b) where moneys or goods in the possession or under the control
of the licensee of a warehouse are seized under a seizure
warrant, a Court in which proceedings are brought for the
condemnation or recovery of the moneys or goods shall
direct that the moneys or goods be delivered to the licensee if
it is satisfied that:
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(i) the moneys came into the possession or under the
control of the licensee by reason of his or her storing in
the warehouse narcotic goods imported into Australia in
contravention of this Act or by reason of his or her
selling goods that were acquired by him or her with or
out of any such moneys; or
(ii) the goods were purchased or otherwise acquired by him
or her out of moneys that so came into his or her
possession or under his or her control;
as the case may be, and is also satisfied that the licensee did
not know that the goods stored in the warehouse were
narcotic goods or that they had been imported into Australia
in contravention of this Act.
230 Forfeited packages and goods
The forfeiture of any goods shall extend to the forfeiture of the
packages in which the goods are contained and the forfeiture of
any package under section 229 shall extend to all goods packed or
contained in the package.
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231 Assembly for unlawful purposes
(1) All persons to the number of 2 or more assembled with the
intention of:
(a) importing prohibited imports; or
(b) smuggling; or
(c) preventing the seizure, or rescuing after seizure, of any
prohibited imports or smuggled goods;
commit an offence punishable upon conviction by imprisonment
for a period not exceeding 2 years.
(2) This section does not apply to, or in relation to, narcotic goods.
(2A) This section does not apply to, or in relation to, unmarked plastic
explosives.
Note: Section 72.13 of the Criminal Code creates an offence of importing or
exporting unmarked plastic explosives.
(3) An offence against this section is punishable upon summary
conviction.
Note: Most offences dealing with the importation and exportation of
narcotic goods are located in Part 9.1 of the Criminal Code.
232A Rescuing goods and assaulting officers
Whoever:
(a) rescues any goods which have been seized, or, before or at or
after seizure, staves, breaks or destroys any goods or
documents relating thereto with the intention of preventing
the seizure thereof or the securing of the same or the proof of
any offence; or
(b) assaults, resists, molests, obstructs or endeavours to
intimidate any person assisting an officer in the execution of
the officer’s duty;
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commits an offence and shall be liable, upon summary conviction,
to a fine not exceeding 5 penalty units or to imprisonment for any
period not exceeding 2 years.
233 Smuggling and unlawful importation and exportation
(1) A person shall not:
(a) smuggle any goods; or
(b) import any prohibited imports; or
(c) export any prohibited exports; or
(d) unlawfully convey or have in his or her possession any
smuggled goods or prohibited imports or prohibited exports.
(1AA) A person who contravenes subsection (1) commits an offence
punishable upon conviction:
(a) in the case of an offence against paragraph (1)(a) or an
offence against paragraph (1)(d) in relation to smuggled
goods—as provided by subsection 233AB(1); or
(b) in any other case—as provided by subsection 233AB(2).
(1AB) Subsection (1AA) is an offence of strict liability, to the extent that
it relates to paragraphs (1)(b), (c) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
(2) It shall not be lawful for any person to convey or have in his or her
possession without reasonable excuse (proof whereof shall lie upon
him or her) any smuggled goods or prohibited imports.
(3) It shall not be lawful for any person to convey or have in his or her
possession any prohibited exports with intent to export them or
knowing that they are intended to be unlawfully exported.
(4) Merchandise on board a ship or aircraft calling at any port or
airport in Australia, but intended for and consigned to some port or
airport or place outside Australia, shall not be deemed to be
unlawfully imported into Australia if the goods are specified on the
ship’s or aircraft’s manifest and are not transhipped or landed in
Australia or are transhipped or landed by authority.
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(5) This section does not apply to, or in relation to, narcotic goods.
(6) The Minister must lay before each House of the Parliament, not
later than the first sitting day of that House after 1 October each
year, a report about any conduct by officers of Customs that, apart
from subsection 233BABA(1), would constitute an offence against
a law of the Commonwealth or of a State or Territory relating to
the possession or conveyance, or facilitation of the conveyance, of
prohibited imports, prohibited exports or smuggled goods.
233A Master not to use or allow use of ship for smuggling etc.
(1) The master of a ship or the pilot of an aircraft shall not
intentionally use his or her ship or aircraft, or intentionally suffer
her to be used, in smuggling, or in the importation of any goods in
contravention of this Act, or in the exportation or conveyance of
any goods in contravention of this Act.
(1A) Subsection (1) does not apply if the goods smuggled, imported,
exported or conveyed are narcotic goods.
Note: Most offences dealing with the importation and exportation of
narcotic goods are located in Part 9.1 of the Criminal Code.
(1B) Subsection (1) does not apply if the goods smuggled, imported,
exported or conveyed are unmarked plastic explosives.
Note: Section 72.13 of the Criminal Code creates an offence of importing or
exporting unmarked plastic explosives.
(2) A person who contravenes subsection (1) commits an offence
punishable upon conviction:
(b) in the case of an offence committed in relation to the
smuggling of goods—as provided by subsection 233AB(1);
or
(c) in any other case—as provided by subsection 233AB(2).
233AB Penalties for offences against sections 233 and 233A
(1) Where an offence is punishable as provided by this subsection, the
penalty applicable to the offence is:
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(a) where the Court can determine the amount of the duty that
would have been payable on the smuggled goods to which
the offence relates if those goods had been entered for home
consumption on:
(i) where the date on which the offence was committed is
known to the Court—that date; or
(ii) where that date is not known to the Court—the date on
which the prosecution for the offence was instituted;
a penalty not exceeding 5 times the amount of that duty; or
(b) where the Court cannot determine the amount of that duty, a
penalty not exceeding 1,000 penalty units.
(2) Where an offence is punishable as provided by this subsection, the
penalty applicable to the offence is:
(a) where the Court can determine the value of the goods to
which the offence relates, a penalty not exceeding:
(i) 3 times the value of those goods; or
(ii) 1,000 penalty units;
whichever is the greater; or
(b) where the Court cannot determine the value of those goods—
a penalty not exceeding 1,000 penalty units.
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
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(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 commits an offence against this subsection if:
(a) the person intentionally imported goods; and
(b) the goods were tier 1 goods and the person was reckless as to
that fact; 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.
Penalty: Imprisonment for 5 years or 1,000 penalty units, or both.
(4A) Subject to subsection (4B), absolute liability applies to
paragraph (4)(c).
Note: For absolute liability, see section 6.2 of the Criminal Code.
(4B) For the purposes of an offence against subsection (4), strict liability
applies to the physical element of circumstance of the offence, that
an approval referred to in subparagraph (4)(c)(ii) had not been
obtained at the time of the importation.
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) A person commits an offence against this subsection if:
(a) the person intentionally exported goods; and
(b) the goods were tier 1 goods and the person was reckless as to
that fact; and
(c) their exportation:
(i) was prohibited under this Act absolutely; or
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(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.
Penalty: Imprisonment for 5 years or 1,000 penalty units, or both.
(5A) Subject to subsection (5B), absolute liability applies to
paragraph (5)(c).
Note: For absolute liability, see section 6.2 of the Criminal Code.
(5B) For the purposes of an offence against subsection (5), strict liability
applies to the physical element of circumstance of the offence, that
an approval referred to in subparagraph (5)(c)(ii) had not been
obtained at the time of the exportation.
Note: For strict liability, see section 6.1 of the Criminal Code.
(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.
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(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 taken to be an item of
child pornography if it is a document or other goods:
(a) that depicts a person, or a representation of a person, who is,
or appears to be, under 18 years of age and who:
(i) is engaged in, or appears to be engaged in, a sexual pose
or sexual activity (whether or not in the presence of
other persons); or
(ii) is in the presence of a person who is engaged in, or
appears to be engaged in, a sexual pose or sexual
activity;
and does this in a way that reasonable persons would regard
as being, in all the circumstances, offensive; or
(b) the dominant characteristic of which is the depiction, for a
sexual purpose, of:
(i) a sexual organ or the anal region of a person who is, or
appears to be, under 18 years of age; or
(ii) a representation of such a sexual organ or anal region;
or
(iii) the breasts, or a representation of the breasts, of a
female person who is, or appears to be, under 18 years
of age;
in a way that reasonable persons would regard as being, in all
the circumstances, offensive; or
(c) that describes a person who is, or is implied to be, under 18
years of age and who:
(i) is engaged in, or is implied to be engaged in, a sexual
pose or sexual activity (whether or not in the presence
of other persons); or
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(ii) is in the presence of a person who is engaged in, or is
implied to be engaged in, a sexual pose or sexual
activity;
and does this in a way that reasonable persons would regard
as being, in all the circumstances, offensive; or
(d) that describes:
(i) a sexual organ or the anal region of a person who is, or
is implied to be, under 18 years of age; or
(ii) the breasts of a female person who is, or is implied to
be, under 18 years of age;
and does this in a way that reasonable persons would regard
as being, in all the circumstances, offensive.
(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, or a representation of a person, who:
(i) is, or appears to be, under 18 years of age; and
(ii) is, or appears to be, a victim of torture, cruelty or
physical abuse;
and does this in a way that reasonable persons would regard
as being, in all the circumstances, offensive; or
(b) that describes a person who:
(i) is, or is implied to be, under 18 years of age; and
(ii) is, or is implied to be, a victim of torture, cruelty or
physical abuse;
and does this in a way that reasonable persons would regard
as being, in all the circumstances, offensive.
(4A) The matters to be taken into account in deciding for the purposes of
subsections (3) and (4) whether reasonable persons would regard a
particular document or other goods as being, in all the
circumstances, offensive, include:
(a) the standards of morality, decency and propriety generally
accepted by reasonable adults; and
(b) the literary, artistic or educational merit (if any) of the
material; and
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(c) the general character of the material (including whether it is
of a medical, legal or scientific character).
(5) A person commits an offence against this subsection if:
(a) the person intentionally imported goods; and
(b) the goods were tier 2 goods and the person was reckless as to
that fact; 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.
Penalty: Imprisonment for 10 years or 2,500 penalty units, or
both.
(5A) Subject to subsection (5B), absolute liability applies to
paragraph (5)(c).
Note: For absolute liability, see section 6.2 of the Criminal Code.
(5B) For the purposes of an offence against subsection (5), strict liability
applies to the physical element of circumstance of the offence, that
an approval referred to in subparagraph (5)(c)(ii) had not been
obtained at the time of the importation.
Note: For strict liability, see section 6.1 of the Criminal Code.
(6) A person commits an offence against this subsection if:
(a) the person intentionally exported goods; and
(b) the goods were tier 2 goods and the person was reckless as to
that fact; 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.
Penalty: Imprisonment for 10 years or 2,500 penalty units, or
both.
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(6A) Subject to subsection (6B), absolute liability applies to
paragraph (6)(c).
Note: For absolute liability, see section 6.2 of the Criminal Code.
(6B) For the purposes of an offence against subsection (6), strict liability
applies to the physical element of circumstance of the offence, that
an approval referred to in subparagraph (6)(c)(ii) had not been
obtained at the time of the exportation.
Note: For strict liability, see section 6.1 of the Criminal Code.
(7) A person punished for an offence against subsection (5) or (6) in
respect of particular conduct cannot be punished, in respect of that
conduct, for an offence against:
(a) section 233; or
(b) Division 361 of the Criminal Code (about international
firearms trafficking).
Note: A similar provision for the opposite case to paragraph (b) is set out in
section 361.6 of the Criminal Code.
233BABAA UN-sanctioned goods
(1) The regulations may prescribe specified goods as UN-sanctioned
goods.
(2) Regulations made for the purposes of subsection (1) may provide
that specified goods are only UN-sanctioned goods if:
(a) they are imported from, or exported to, a specified place; or
(b) the origin, or the final destination, of the goods is a specified
place; or
(c) other specified circumstances apply in relation to the goods.
(3) The regulations must not prescribe goods for the purposes of
subsection (1) unless:
(a) either:
(i) the importation of the goods is prohibited, either
absolutely or on condition, by the Customs (Prohibited
Imports) Regulations 1956; or
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(ii) the exportation of the goods is prohibited, either
absolutely or on condition, by the Customs (Prohibited
Exports) Regulations 1958; and
(b) the regulation under which that importation or exportation is
prohibited gives effect to a decision that:
(i) the Security Council has made under Chapter VII of the
Charter of the United Nations; and
(ii) Article 25 of the Charter requires Australia to carry out;
in so far as that decision requires Australia to apply measures
not involving the use of armed force.
Note: Articles 39 and 41 of the Charter provide for the Security Council to
decide what measures not involving the use of armed force are to be
taken to maintain or restore international peace and security.
(4) For the purposes of paragraph (3)(b), a regulation may be taken to
give effect to a decision:
(a) whether or not it is made for the sole purpose of giving effect
to the decision; and
(b) whether or not it has any effect in addition to giving effect to
the decision.
233BABAB Special offences for importation of UN-sanctioned goods
Offence for individuals
(1) An individual commits an offence if:
(a) the individual intentionally imported goods; and
(b) the goods were UN-sanctioned goods and the individual was
reckless as to that fact; 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.
(2) Subject to subsection (3), absolute liability applies to
paragraph (1)(c).
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Note: For absolute liability, see section 6.2 of the Criminal Code.
(3) For the purposes of an offence against subsection (1), strict liability
applies to the physical element of circumstance of the offence, that
an approval referred to in subparagraph (1)(c)(ii) had not been
obtained at the time of the importation.
Note: For strict liability, see section 6.1 of the Criminal Code.
Penalty for individuals
(4) An offence under subsection (1) is punishable on conviction by
imprisonment for not more than 10 years or a fine not exceeding
the amount worked out under subsection (5), or both.
(5) For the purposes of subsection (4), the amount is:
(a) if the Court can determine the value of the goods to which
the offence relates—whichever is the greater of the
following:
(i) 3 times the value of the goods; or
(ii) 2,500 penalty units;
(b) if the Court cannot determine the value of those goods—
2,500 penalty units.
Offence for bodies corporate
(6) A body corporate commits an offence if:
(a) the body corporate imported goods; and
(b) the goods were UN-sanctioned 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.
(7) Subsection (6) does not apply if the body corporate proves that it
took reasonable precautions, and exercised due diligence, to avoid
contravening that subsection.
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Note: The body corporate bears a legal burden in relation to a matter in
subsection (7) (see section 13.4 of the Criminal Code).
(8) Strict liability applies to paragraphs (6)(a) and (b).
Note: For strict liability, see section 6.1 of the Criminal Code.
(9) Subject to subsection (10), absolute liability applies to
paragraph (6)(c).
Note: For absolute liability, see section 6.2 of the Criminal Code.
(10) For the purposes of an offence against subsection (6), strict liability
applies to the physical element of circumstance of the offence, that
an approval referred to in subparagraph (6)(c)(ii) had not been
obtained at the time of the importation.
Note: For strict liability, see section 6.1 of the Criminal Code.
Penalty for bodies corporate
(11) An offence under subsection (6) is punishable on conviction by a
fine not exceeding:
(a) if the Court can determine the value of the goods to which
the offence relates—whichever is the greater of the
following:
(i) 3 times the value of the goods;
(ii) 10,000 penalty units; or
(b) if the Court cannot determine the value of those goods—
10,000 penalty units.
Person not liable to other proceedings
(12) A person convicted or acquitted of an offence against
subsection (1) or (6) in respect of particular conduct is not liable to
proceedings under section 233 in respect of that conduct.
233BABAC Special offences for exportation of UN-sanctioned goods
Offence for individuals
(1) An individual commits an offence if:
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(a) the individual intentionally exported goods; and
(b) the goods were UN-sanctioned goods and the individual was
reckless as to that fact; 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.
(2) Subject to subsection (3), absolute liability applies to
paragraph (1)(c).
Note: For absolute liability, see section 6.2 of the Criminal Code.
(3) For the purposes of an offence against subsection (1), strict liability
applies to the physical element of circumstance of the offence, that
an approval referred to in subparagraph (1)(c)(ii) had not been
obtained at the time of the exportation.
Note: For strict liability, see section 6.1 of the Criminal Code.
Penalty for individuals
(4) An offence under subsection (1) is punishable on conviction by
imprisonment for not more than 10 years or a fine not exceeding
the amount worked out under subsection (5), or both.
(5) For the purposes of subsection (4), the amount is:
(a) if the Court can determine the value of the goods to which
the offence relates—whichever is the greater of the
following:
(i) 3 times the value of the goods;
(ii) 2,500 penalty units; or
(b) if the Court cannot determine the value of those goods—
2,500 penalty units.
Offence for bodies corporate
(6) A body corporate commits an offence if:
(a) the body corporate exported goods; and
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(b) the goods were UN-sanctioned 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.
(7) Subsection (6) does not apply if the body corporate proves that it
took reasonable precautions, and exercised due diligence, to avoid
contravening that subsection.
Note: The body corporate bears a legal burden in relation to a matter in
subsection (7) (see section 13.4 of the Criminal Code).
(8) Strict liability applies to paragraphs (6)(a) and (b).
Note: For strict liability, see section 6.1 of the Criminal Code.
(9) Subject to subsection (10), absolute liability applies to
paragraph (6)(c).
Note: For absolute liability, see section 6.2 of the Criminal Code.
(10) For the purposes of an offence against subsection (6), strict liability
applies to the physical element of circumstance of the offence, that
an approval referred to in subparagraph (6)(c)(ii) had not been
obtained at the time of the exportation.
Note: For strict liability, see section 6.1 of the Criminal Code.
Penalty for bodies corporate
(11) An offence under subsection (6) is punishable on conviction by a
fine not exceeding:
(a) if the Court can determine the value of the goods to which
the offence relates—whichever is the greater of the
following:
(i) 3 times the value of the goods;
(ii) 10,000 penalty units; or
(b) if the Court cannot determine the value of those goods—
10,000 penalty units.
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Person not liable to other proceedings
(12) A person convicted or acquitted of an offence against
subsection (1) or (6) in respect of particular conduct is not liable to
proceedings under section 233 in respect of that conduct.
233BABAD Smuggling etc. tobacco products
(1) A person commits an offence if:
(a) the person imports goods; and
(b) the goods are tobacco products; and
(c) the person imports the goods with the intention of defrauding
the revenue.
(2) A person commits an offence if:
(a) the person conveys, or has in the person’s possession, goods;
and
(b) the goods are tobacco products; and
(c) the person knows that the goods were imported with intent to
defraud the revenue.
(3) In a prosecution for an offence against subsection (2), it is not
necessary to prove the identity of the person who imported the
goods.
(4) An offence against subsection (1) or (2) is punishable on
conviction by imprisonment for not more than 10 years, a fine not
exceeding the amount worked out under subsection (5), or both.
(5) For the purposes of subsection (4), the amount is:
(a) if the Court can determine the amount of the duty that would
have been payable on the goods if the goods had been
entered for home consumption on:
(i) if the day on which the offence was committed is known
to the Court—that day; or
(ii) if that day is not known to the Court—the day on which
the prosecution for the offence was instituted;
5 times the amount of that duty; or
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(b) otherwise—1,000 penalty units.
(6) A person convicted or acquitted of an offence against
subsection (1) or (2) in respect of particular conduct is not liable to
proceedings under section 233 in respect of that conduct.
(7) In this section:
tobacco products means goods classified to heading 2401, 2402 or
2403 of Schedule 3 to the Customs Tariff Act 1995 (except goods
classified to subheading 2402.90.00 or 2403.99.10 of that
Schedule).
233BABAE Offence for bringing restricted goods into Australia
(1) A person commits an offence of strict liability if:
(a) the person brings goods into Australia; and
(b) the goods are restricted goods.
Penalty: 1,000 penalty units.
Note: For strict liability, see section 6.1 of the Criminal Code.
(2) Subsection (1) does not apply if the person brings the goods into
Australia in accordance with a written permission given by the
Minister for the purposes of this subsection.
(3) For the purposes of this Act, restricted goods are goods:
(a) that, if imported, would be prohibited imports; and
(b) that are prescribed by the regulations for the purposes of this
definition.
(4) This section has effect only for purposes related to external affairs,
including:
(a) for purposes related to giving effect to an international
agreement to which Australia is a party; and
(b) for purposes related to addressing matters of international
concern.
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233BABAF Using information held by the Commonwealth
Using information to commit offence
(1) A person commits an offence if:
(a) the person obtains information; and
(b) the information is restricted information; and
(c) the person uses the information to commit an offence against
a law of the Commonwealth, a State or a Territory.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(2) In a prosecution for an offence against subsection (1), it is not
necessary to prove that the defendant knew that the offence was an
offence against a law of the Commonwealth, a State or a Territory.
Disclosing information to another person
(3) A person commits an offence if:
(a) the person obtains information; and
(b) the information is restricted information; and
(c) the person discloses the information to another person; and
(d) the person is not authorised or required under:
(i) this Act; or
(ii) the Australian Border Force Act 2015;
to make that disclosure.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(4) In this section:
restricted information means information:
(a) held in a computer owned, leased or operated by the
Commonwealth for use for the purposes of the Customs
Acts; and
(b) to which access is restricted by an access control system
associated with a function of the computer.
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233BABA Protection from criminal responsibility
(1) An officer of Customs who, in the course of duty, possesses or
conveys, or facilitates the conveyance of, prohibited imports,
prohibited exports, smuggled goods or restricted goods is not
criminally responsible for an offence against a law of the
Commonwealth or of a State or Territory relating to the possession,
conveyance or facilitation of the conveyance of such goods.
(2) A person who:
(a) possesses or conveys, or facilitates the conveyance of,
prohibited imports, prohibited exports, smuggled goods or
restricted goods; and
(b) in doing so is acting in accordance with written instructions
referring to this section issued by an officer of Customs
acting in the course of duty;
is not criminally responsible for an offence against a law of the
Commonwealth or of a State or Territory relating to the possession,
conveyance or facilitation of the conveyance of such goods.
233BAC Evidence relating to approval for import or export
(1) In proceedings for an offence against subsection 233BAA(4) or
(5), 233BAB(5) or (6), 233BABAB(1) or (4) or 233BABAC(1) or
(4), 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
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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.
233BA Evidence of Analyst
(1) The Comptroller-General of Customs may appoint a person to be
an analyst for the purposes of this Act or Part 9.1 of the Criminal
Code.
(2) Subject to subsection (4), in any proceedings for an offence against
section 233BAA or Part 9.1 of the Criminal Code, or in any
proceedings for an offence against section 233BAB, 233BABAB
or 233BABAC, in so far as that section relates to specified
anti-personnel sprays or gases, radioactive substances, human body
tissue or human body fluid, a certificate of an analyst in an
approved form stating, in respect of a substance in relation to
which the offence is alleged to have been committed:
(a) that the analyst signing the certificate is appointed under
subsection (1); and
(b) when and from whom the substance was received; and
(c) what, if any, labels or other means of identifying the
substance accompanied it when it was received; and
(d) what container or containers the substance was contained in
when it was received; and
(e) a description, and the weight, of the substance received; and
(f) when the substance, or a portion of it, was analysed; and
(g) a description of the method of analysis; and
(h) the results of the analysis; and
(j) how the substance was dealt with after handling by the
analyst, including details of:
(i) the quantity retained; and
(ii) the name of the person, if any, to whom any retained
quantity was given; and
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(iii) measures taken to secure any retained quantity;
is admissible as prima facie evidence of the matters in the
certificate and of the correctness of the result of the analysis.
(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.
233C Offence for giving false or misleading information in relation
to UN-sanctioned goods
Individuals
(1) An individual commits an offence if:
(a) an application is made in respect of UN-sanctioned goods
under:
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(i) the Customs (Prohibited Imports) Regulations 1956; or
(ii) the Customs (Prohibited Exports) Regulations 1958;
and
(b) the application is made in an approved form; and
(c) the individual signed the form; and
(d) information contained in, or information or a document
accompanying, the form:
(i) is false or misleading; or
(ii) omits any matter or thing without which the information
or document is misleading.
Penalty: Imprisonment for 10 years or 2,500 penalty units, or
both.
Bodies corporate
(2) A body corporate commits an offence if:
(a) an application is made by or on behalf of the body corporate;
and
(b) the application is in an approved form; and
(c) the application is made in respect of UN-sanctioned goods
under:
(i) the Customs (Prohibited Imports) Regulations 1956; or
(ii) the Customs (Prohibited Exports) Regulations 1958;
and
(d) information contained in, or information or a document
accompanying, the form:
(i) is false or misleading; or
(ii) omits any matter or thing without which the information
or document is misleading.
Penalty: 12,500 penalty units.
(3) Subsection (1) or (2) does not apply:
(a) as a result of subparagraph (1)(d)(i) or (2)(d)(i)—if the
information or document is not false or misleading in a
material particular; or
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(b) as a result of subparagraph (1)(d)(ii) or (2)(d)(ii)—if the
information or document did not omit any matter or thing
without which the information or document is misleading in
a material particular.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (3) (see subsection 13.3(3) of the Criminal Code).
234 Customs offences
(1) A person shall not:
(a) Evade payment of any duty which is payable;
(b) Obtain any drawback, refund, rebate or remission which is
not payable;
(d) do any of the following:
(i) intentionally make or cause to be made a statement to an
officer, reckless as to the fact that the statement is false
or misleading in a material particular;
(ii) intentionally omit or cause to be omitted from a
statement made to an officer any matter or thing,
reckless as to the fact that without the matter or thing
the statement is misleading in a material particular;
(iii) intentionally give information to another person,
knowing that the information is false or misleading in a
material particular and that the other person or someone
else will include the information in a statement to an
officer;
(iv) intentionally give information to another person,
knowing that the information is misleading in a material
particular because of the omission of other information
that the person has and that the other person or someone
else will include the information in a statement to an
officer;
(h) Sell or offer for sale, any goods upon the pretence that such
goods are prohibited imports or smuggled goods.
(2) A person who contravenes subsection (1) commits an offence
punishable upon conviction:
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(a) in the case of an offence against paragraph (1)(a), by:
(i) where the Court can determine the amount of the duty
on goods the payment of which would have been
evaded by the commission of the offence if the goods
had been entered for home consumption on:
(A) where the date on which the offence was
committed is known to the Court—that date; or
(B) where that date is not known to the Court—the
date on which prosecution for the offence was
instituted;
a penalty not exceeding 5 times the amount of that duty
and not less than 2 times that amount; or
(ii) where the Court cannot determine the amount of that
duty, a penalty not exceeding 500 penalty units;
(b) in the case of an offence against paragraph (1)(b), by a
penalty not exceeding 5 times the amount of drawback,
refund, rebate or remission that was obtained by the
commission of the offence and not less than 2 times that
amount;
(c) subject to subsection (3), in the case of an offence against
paragraph (1)(d), by a penalty not exceeding 250 penalty
units; or
(d) in the case of an offence against paragraph (1)(h), by a
penalty not exceeding 10 penalty units.
(2A) Where an export entry, a submanifest, an outward manifest or a
withdrawal of such an entry, submanifest or manifest is taken,
under section 119D, to have been communicated to the
Department, then, for the purposes of paragraph (1)(d), the part of
the communication constituting the transmission to the Department
is treated as a statement made to the Comptroller-General of
Customs.
(2B) Where an import entry, a withdrawal of such an entry, or a return
for the purposes of subsection 69(8), subsection 70(7) or
section 105C is taken, under section 71L, to have been
communicated to the Department, then, for the purposes of
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paragraph (1)(d), the part of the communication constituting the
transmission to the Department is treated as a statement made to
the Comptroller-General of Customs.
(2BA) If an application for a refund, rebate or remission of duty is taken,
under regulations made for the purposes of subsection 163(1AB),
to have been communicated to the Department, then, for the
purposes of paragraph (1)(d), the part of the communication
constituting the transmission to the Department is treated as a
statement made to the Comptroller-General of Customs.
(2BC) For the purposes of paragraph (1)(d), information provided to the
Department under section 71 in the circumstances mentioned in
section 71AAAB is taken to be a statement made to the
Comptroller-General of Customs.
(2C) Nothing in subsection (2A), (2B), (2BA) or (2BC) is to be taken to
affect the operation of any of the provisions of section 183.
(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 100 penalty units and twice the amount of the
duty payable on those goods.
234AA Places set aside for purposes of Act
(1) Where a place:
(a) is to be used by officers:
(i) for questioning, for the purposes of this Act or of any
other law of the Commonwealth, passengers or crew
disembarking from or embarking on a ship or aircraft;
or
(ii) for examining, for such purposes, the personal baggage
of such passengers or crew; or
(iii) as a holding place for such passengers or crew; or
(b) is covered by a notice under subsection (3);
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a Collector, or a person authorized by a Collector to do so, may
cause signs to be displayed at or near the place that identify the
place and state that entry into it by unauthorized persons is
prohibited by this Act.
(2) Where a sign is displayed in relation to a place under
subsection (1), a Collector, or a person authorized by a Collector to
do so, may cause signs to be displayed at or near the place that
identify the place and indicate (whether in words or images) that
the use of:
(a) cameras or sound recorders; or
(b) mobile phones or other electronic forms of communication;
at the place by unauthorized persons is prohibited by this Act.
(3) The Comptroller-General of Customs may publish a notice in the
Gazette specifying, as an area to which this section applies, an area
of a port, or an airport, appointed under section 15.
(4) An area specified in such a notice must comprise one or more of
the following areas:
(a) areas that are used by, or frequented by, passengers who have
arrived in Australia until they have passed through the last
point at which they or their baggage are normally subject to
processing by officers;
(b) areas that are used by, or frequented by, passengers who are
about to depart Australia after they have passed through the
first point at which they are normally subject to processing
by officers;
(c) areas that are in the vicinity of areas referred to in
paragraph (a) or (b).
234A Unauthorised entry to places and on ships, aircraft or wharves
(1) A person shall not:
(a) enter into, or be in, a place in relation to which a sign is
displayed under subsection 234AA(1); or
(b) enter on or be in or on:
(i) a ship;
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(ii) an aircraft;
(iii) the wharf at which, or the part of a wharf adjacent to
which, a ship is berthed;
at a time when goods being the personal baggage of
passengers or crew disembarking from, or embarking on that
ship or aircraft are being examined, for the purposes of this
Act, at or in the vicinity of the ship, aircraft, wharf or part of
a wharf.
Penalty: 60 penalty units.
(1AA) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(1A) Subsection (1) does not apply if the person:
(a) enters into or is in the place, by the authority of a Collector;
or
(ab) is the holder of a security identification card (within the
meaning of section 213A) who:
(i) enters into, or is in, the place for the purposes of his or
her employment; and
(ii) is not subject to a direction under subsection (1B); or
(b) enters on or is in or on, the ship, aircraft, wharf or the part of
a wharf, by the authority of a Collector; or
(c) is a member of a crew disembarking from, or embarking on,
a ship or aircraft; or
(d) is a passenger disembarking from, or embarking on, a ship or
aircraft; or
(e) is included in a class of persons whom the
Comptroller-General of Customs determines, in writing, to
be exempt from this section.
(1B) A Collector may, at any time, by written notice given to a person
who is the holder of a security identification card (within the
meaning of section 213A), direct the person not to enter into, or be
in or on:
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(a) a place in relation to which a sign is displayed under
subsection 234AA(1); or
(b) any of the following:
(i) a ship;
(ii) an aircraft;
(iii) the wharf at which, or the part of a wharf adjacent to
which, a ship is berthed;
at a time when goods being the personal baggage of
passengers or crew disembarking from, or embarking on that
ship or aircraft are being examined, for the purposes of this
Act, at or in the vicinity of the ship, aircraft, wharf or part of
a wharf.
(2) Subsection (1) does not prohibit a person who has, or is a member
of an authority which has, the management or control of a wharf or
wharves or an airport or airports from entering on, or being in or
on, a place, ship, aircraft, wharf or part of a wharf for the purposes
of that management or control.
(3) In any proceedings for the prosecution of a person for an offence
against subsection (1), evidence that a sign stating that entry into a
place is prohibited by this Act was displayed at or near that place is
prima facie evidence that the sign was so displayed in accordance
with subsection 234AA(1).
234AB Unauthorised use of cameras and sound recorders
(1) An officer may direct a person, including a passenger
disembarking from, or embarking on, a ship or aircraft:
(a) not to use:
(i) a camera or sound recorder; or
(ii) a mobile phone or other electronic form of
communication;
at a place in relation to which a sign is displayed under
subsection 234AA(2); or
(b) not to operate a camera, or use an appliance to record or
transmit sound, at a place (being a place that is part of a ship,
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of an aircraft or of a wharf) at a time when the personal
baggage of passengers or crew disembarking from, or
embarking on, a ship or aircraft, is being examined, for the
purposes of this Act, at or in the vicinity of that place.
(2) Where an officer gives to a person a direction under subsection (1),
the officer shall inform that person that failure to comply with that
direction is an offence under this Act.
(3) A person shall not fail to comply with a direction given to that
person by an officer in accordance with subsection (1).
Penalty: 30 penalty units.
(3A) Subsection (3) does not apply if the person has a reasonable
excuse.
(3B) Subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(4) In any proceedings for the prosecution of a person for an offence
against subsection (3), evidence that a sign indicating that the use
of:
(a) cameras or sound recorders; or
(b) mobile phones or other electronic forms of communication;
at a place is prohibited by this Act was displayed at or near that
place is prima facie evidence that the sign was so displayed in
accordance with subsection 234AA(2).
(5) In this section, camera includes any device for making or
transmitting, or designed for use in the making or transmission of,
images of objects.
(6) For the purposes of this section, a person shall be taken to use an
appliance to transmit sound at a place if, and only if, the person
uses the appliance to transmit sound, other than sound coming
from the appliance, from the place to another place.
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234ABA Officers may direct unauthorised persons to leave
restricted areas
(1) An officer may direct a person to leave a place in relation to which
a sign is displayed under subsection 234AA(1) if the officer
reasonably believes that the person is in that place in contravention
of section 234A.
(2) The officer may, either acting alone or with the assistance of one or
more other officers or protective service officers, use reasonable
force to remove the person from the area if the person refuses to
leave when so directed.
(3) However, in removing the person, the officer (and the persons
assisting) must not use more force, or subject him or her to greater
indignity, than is necessary or reasonable.
(4) In this section:
protective service officer means a protective service officer within
the meaning of the Australian Federal Police Act 1979.
236 Aiders and abettors
For the purposes of a Customs prosecution (within the meaning of
section 244), whoever aids abets counsels or procures or by act or
omission is in any way directly or indirectly concerned in the
commission of any offence against this Act shall be deemed to
have committed such offence and shall be punishable accordingly.
237 Attempts
For the purposes of a Customs prosecution (within the meaning of
section 244), any attempt to commit an offence against this Act
shall be an offence against this Act punishable as if the offence had
been committed.
239 Penalties in addition to forfeitures
All penalties shall be in addition to any forfeiture.
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240 Commercial documents to be kept
Keeping commercial documents
(1) A person who is the owner of goods imported into Australia shall
keep all the relevant commercial documents relating to the goods
that came into that person’s possession or control before, or come
into that person’s possession or control on or after, the entry of
those goods for any purpose, being documents that are necessary to
enable a Collector to satisfy himself or herself of the correctness of
the particulars shown in the entry until:
(a) if the goods are not ultimately entered for home
consumption—the goods cease to be subject to customs
control; and
(b) if the goods are entered, or ultimately entered, for home
consumption—the expiration of the period of 5 years after
the goods are so entered.
Penalty: 30 penalty units.
(1AA) A person who is the owner of goods imported into Australia must
keep all the relevant commercial documents relating to the goods:
(a) that come into the person’s possession or control before, or
come into the person’s possession or control on or after, a
return is given to the Department under section 69, 70 or
105C in relation to those goods; and
(b) that are necessary to enable a Collector to satisfy himself or
herself of the correctness of the particulars shown in the
return;
until the end of the period of 5 years after the giving of the return.
Penalty: 30 penalty units.
(1A) A person who is the owner of goods exported from Australia must
keep all the relevant commercial documents relating to the goods
that:
(a) come into the person’s possession or control at any time; and
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(b) are necessary to enable a Collector to satisfy himself or
herself as to the correctness of information communicated
by, or on behalf of, the person to the Department (whether in
documentary or other form);
for the period of 5 years after the time when the goods were
exported from Australia.
Penalty: 30 penalty units.
(1B) A person who, in Australia:
(a) causes goods to be imported into, or exported from,
Australia; or
(b) receives goods that have been imported into, or are to be
exported from, Australia;
must keep all the relevant commercial documents that come into
the person’s possession or control at any time and relate to the
goods concerned or to their carriage to or from Australia, being
documents that are necessary to enable a Collector to satisfy
himself or herself:
(c) whether the person is complying with a Customs-related law;
or
(d) as to the correctness of information communicated by, or on
behalf of, the person to the Department (whether in
documentary or other form);
for the period of 5 years from the time when the goods were
imported into, or exported from, Australia.
Penalty: 30 penalty units.
(1C) Subsections (1), (1AA), (1A) and (1B) are offences of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Certified true copies of commercial documents
(2) Where, in accordance with the requirement of any law of the
Commonwealth or of a State or Territory or with ordinary
commercial practice a document that would, but for this
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subsection, be required to be kept in accordance with
subsection (1), (1AA), (1A) or (1B), is required by that law or
practice to be surrendered to another person, this section shall be
taken to be complied with if, at all times after the document is so
surrendered and during the period that the document would have
been required to be kept, a true copy of the document, certified in
accordance with subsection (3), is kept in its stead.
(3) Where a person is required to surrender a commercial document
referred to in subsection (1), (1AA), (1A) or (1B) to another person
for a reason set out in subsection (2), the first-mentioned person
may make a true copy of the document and, if the first-mentioned
person does so, and attaches to the copy a certificate, signed by the
first-mentioned person:
(a) to the effect:
(i) that the copy is a true copy of the original document;
and
(ii) that the original document has been surrendered to that
other person for that reason; and
(b) providing particulars of the reason referred to in
subparagraph (a)(ii);
the certified copy shall be treated by the Comptroller-General of
Customs or a Collector, and shall be admissible in all courts, as if it
were the original document.
Place, manner and form for keeping and storing commercial
documents
(4) A person who is required by this section to keep a commercial
document relating to particular goods may keep the document at
any place (which may be a place outside Australia) and, subject to
subsection (5), may keep the document in any form or store it in
any manner.
(5) A person referred to in subsection (4) must:
(a) keep the document in such a manner as will enable a
Collector readily to ascertain whether the goods have been
properly described for the purpose of importation or
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exportation, as the case requires, and, in the case of goods
entered for home consumption, properly valued or rated for
duty; and
(b) if the document is in a language other than the English
language—keep the document in such a way that a
translation of the document into the English language can
readily be made; or
(c) if the document is a record of information kept by a
mechanical, electronic or other device—keep the record in
such a way that a document setting out in the English
language the information recorded or stored can be readily
produced.
Penalty: 30 penalty units.
(5A) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Informing authorised officer of whereabouts of commercial
document
(6) An authorised officer may, by written notice given to a person who
is required under this section to keep a commercial document,
require the person to inform the officer within a reasonable period,
and in a manner specified in the notice, of the whereabouts of the
document.
(6A) If:
(a) a notice is given to a person under subsection (6); and
(b) the person fails to comply with the notice;
the person commits an offence of strict liability punishable, on
conviction, by a penalty not exceeding 30 penalty units.
Note: For strict liability, see section 6.1 of the Criminal Code.
Altering and defacing commercial documents
(6B) A person who is required to keep a commercial document must not
alter or deface the document.
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Penalty: 30 penalty units.
(6BA) Subsection (6B) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(6C) A document is not taken to be altered or defaced for the purposes
of subsection (6B) merely because a notation or marking is made
on it in accordance with ordinary commercial practice.
Exceptions to requirements to keep commercial documents
(7) This section shall not require the keeping of any commercial
documents:
(a) by a company that has gone into liquidation and that has been
dissolved;
(b) by a class of persons that is declared by the regulations to be
a class to which this section does not apply; or
(c) of a kind declared by the regulations to be commercial
documents to which this section does not apply.
240AA Authorised officer may require person to produce
commercial documents
(1) An authorised officer may, by written notice given to a person who
is required under section 240 to keep a commercial document,
require the person to produce, either at the business premises in
Australia of the person or at a place in Australia specified in the
notice, and within a period specified in the notice, for inspection by
an authorised officer:
(a) if the document is in writing—the document; or
(b) if the document is a record of information kept by a
mechanical, electronic or other device—the information.
Note 1: A person who keeps a record of information by means of a
mechanical, electronic or other device must comply with a
requirement made under subsection (1) by producing the information
in a document setting out the information in a form the authorised
officer can understand. See section 25A of the Acts Interpretation Act
1901.
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Note 2: Failure to produce a commercial document following a requirement
made under subsection (1) is an offence. See section 243SB.
(2) The period that may be specified in a notice given under
subsection (1) must not be less than 14 days after the notice is
given.
240AB Verifying communications to Department
Scope and purpose
(1) This section applies to a person who makes a communication
(however described) to the Department under this Act or gives
someone else information for inclusion in such a communication.
(1A) The regulations may provide that specified communications, or
specified kinds of communications, are exempt from this section.
(2) The purpose of this section is to help officers of Customs to verify
the content of communications made to the Department and to
trace information included in communications made to the
Department to its source.
Requirements to keep records
(3) If the person makes the communication to the Department, the
person must keep, in accordance with this section, for the period of
5 years after the communication is made, a record that verifies the
contents of the communication.
Penalty: 30 penalty units
(3A) If the person (the giver) gives information to another person (the
recipient) for the recipient or someone else to include in a
communication to the Department, the giver must keep, in
accordance with this section, for 5 years after the information is
given, one or more records that:
(a) either verify the information or, if the giver was given the
information by someone else, verify that the giver was given
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that information and identify the person who gave it to the
giver; and
(b) verify the fact that the giver gave the information to the
recipient; and
(c) identify the recipient.
Penalty: 30 penalty units.
(3B) Subsections (3) and (3A) are offences of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Place, manner and form for keeping and storing records
(4) A person who is required by this section to keep a record may keep
the record at any place (which may be a place outside Australia)
and, subject to subsection (5), may keep the record in any form or
store it in any manner.
(5) A person referred to in subsection (4) must:
(a) if the record is in a language other than the English
language—keep the record in such a way that a translation of
the record into the English language can readily be made; or
(b) if the record is kept by a mechanical, electronic or other
device—keep the record in such a way that a document
setting out in the English language the information recorded
or stored can be readily produced.
Informing authorised officer of whereabouts of record
(6) An authorised officer may, by written notice given to a person who
is required under this section to keep a record, require the person to
inform the officer within a reasonable period, and in a manner
specified in the notice, of the whereabouts of the record.
(7) If:
(a) a notice is given to a person under subsection (6); and
(b) the person fails to comply with the notice;
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the person commits an offence of strict liability punishable, on
conviction, by a penalty not exceeding 30 penalty units.
Note: For strict liability, see section 6.1 of the Criminal Code.
Interaction with section 240
(8) To avoid doubt, this section does not affect the operation of
section 240.
Note: Section 240 requires owners of imported or exported goods, and
certain persons who deal with such goods, to keep for 5 years relevant
commercial documents relating to the goods.
240AC Authorised officer may require person to produce record
(1) An authorised officer may, by written notice given to a person who
is required under section 240AB to keep a record, require the
person to produce, either at the business premises in Australia of
the person or at a place in Australia specified in the notice, and
within a period specified in the notice, for inspection by an
authorised officer:
(a) if the record is in writing—the record; or
(b) if the record is kept by a mechanical, electronic or other
device—the information contained in the record.
Note 1: A person who keeps a record of information by means of a
mechanical, electronic or other device must comply with a
requirement made under subsection (1) by producing the information
in a document setting out the information in a form the authorised
officer can understand. See section 25A of the Acts Interpretation Act
1901.
Note 2: Failure to produce a record following a requirement made under
subsection (1) is an offence. See section 243SB.
(2) The period that may be specified in a notice given under
subsection (1) must not be less than 14 days after the notice is
given.
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Section 243A
224 Customs Act 1901
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Division 3—Recovery of pecuniary penalties for dealings in
narcotic goods
243A Interpretation
(1) In this Division, unless the contrary intention appears:
benefit includes service or advantage.
cheque includes a bill, promissory note or other security for
money.
Court means the Federal Court of Australia.
dealing, in relation to property of a person, includes:
(a) if a debt is owed to that person—making a payment to any
person in reduction of the amount of the debt;
(b) removing the property from Australia; and
(c) receiving or making a gift of the property.
effective control, in relation to property, or an interest in property,
has the meaning given by section 243AB.
interest, in relation to property, means:
(a) a legal or equitable estate or interest in the property; or
(b) a right, power or privilege in connection with the property;
whether present or future and whether vested or contingent.
moneys means moneys in the form of cash.
Official Trustee means the Official Trustee in Bankruptcy.
pecuniary penalty means a pecuniary penalty referred to in
section 243B.
penalty amount, in relation to an order under section 243B against
a person, means the amount that the person is liable to pay the
Commonwealth under the order.
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petition means a petition under the Bankruptcy Act 1966.
police officer means:
(a) a member or special member of the Australian Federal
Police; or
(b) a member of the police force of a State or Territory.
property means real or personal property of every description,
whether situated in Australia or elsewhere and whether tangible or
intangible and includes an interest in any such real or personal
property.
restraining order means an order made under
paragraph 243E(2)(c).
trustee in bankruptcy means:
(a) in relation to a bankruptcy—the trustee of the estate of the
bankrupt; or
(b) in relation to a composition or scheme of arrangement under
Division 6 of Part IV of the Bankruptcy Act 1966—the
trustee of the composition or scheme of arrangement; or
(c) in relation to a personal insolvency agreement under Part X
of the Bankruptcy Act 1966—the trustee of the agreement; or
(d) in relation to the estate of a deceased person in respect of
which an order has been made under Part XI of the
Bankruptcy Act 1966—the trustee of the estate.
(2) Where a person who has obtained possession or control of a
cheque, or was paid moneys by a cheque, in any of the
circumstances set out in subsection (3), receives, in respect of the
cheque, moneys in the form of cash, the moneys so received shall,
for the purposes of this Division, be deemed to be moneys that
came into his or her possession or under his or her control, or were
paid to him or her, in the circumstances in which he or she
obtained possession or control of the cheque, or was paid the
moneys by the cheque.
(3) For the purposes of this Division, a person shall be taken to engage
in a prescribed narcotics dealing if:
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(a) he or she sells or otherwise deals in, or agrees to sell or
otherwise deal in, narcotic goods imported into Australia in
contravention of this Act; or
(b) he or she imports, or agrees to import, narcotic goods into
Australia in contravention of this Act; or
(c) he or she exports, or agrees to export, narcotic goods from
Australia in contravention of this Act; or
(d) he or she keeps, or agrees to keep, in his or her possession
narcotic goods imported into Australia in contravention of
this Act; or
(e) he or she conspires with another person or other persons to
import any narcotic goods into Australia, or to export any
narcotic goods from Australia, in contravention of this Act;
or
(f) he or she aids, abets, counsels or procures, or is in any way
knowingly concerned in, the sale of, or other dealing in,
narcotic goods imported into Australia in contravention of
this Act, the importation of narcotic goods into Australia, or
the exportation of narcotic goods from Australia, in
contravention of this Act, or the keeping in the possession of
any person of narcotic goods imported into Australia in
contravention of this Act.
Note: Goods are imported or exported in contravention of this Act if they are
imported or exported in breach of a prohibition under this Act: see
subsection 4(4A).
(4) A reference in this Division to a benefit derived by a person
includes a reference to:
(a) a benefit derived, directly or indirectly, by the person; and
(b) a benefit derived, directly or indirectly, by another person at
the request or direction of the first person.
(4A) A reference in this Division to the property of a person includes a
reference to property in respect of which the person has a
beneficial interest.
(5) Where, upon application being made to the Court under
subsection 243E(1) and supported by an affidavit made by a police
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officer or an officer of Customs stating that he or she believes that
any property is the property of a person, the Court makes a
restraining order against that property, for the purposes of this
Division, the property shall, while that order applies to the
property, be deemed to be the property of that person.
(6) A reference in this Division to a proceeding for the recovery of a
pecuniary penalty shall be read as a reference to a proceeding
instituted under section 243B for an order under subsection (1) of
that section.
243AB Effective control of property
(1) Property, or an interest in property, may be subject to the effective
control of a person within the meaning of this Division whether or
not the person has:
(a) a legal or equitable estate or interest in the property; or
(b) a right, power or privilege in connection with the property.
(2) Without limiting the generality of any other provision of this
Division, in determining:
(a) whether or not property, or an interest in property, is subject
to the effective control of a person; or
(b) whether or not there are reasonable grounds to believe that
property, or an interest in property, is subject to the effective
control of a person;
regard may be had to:
(c) shareholdings in, debentures over or directorships of a
company that has an interest (whether direct or indirect) in
the property;
(d) a trust that has a relationship to the property; and
(e) family, domestic and business relationships between persons
having an interest in the property, or in companies of the kind
referred to in paragraph (c) or trusts of the kind referred to in
paragraph (d), and other persons.
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(3) For the purposes of paragraph (2)(e), family relationships are taken
to include (without limitation) relationships between persons
covered by section 4AAA.
243B Pecuniary penalties
(1) Subject to subsection (7), the Minister, the Commissioner of
Police, the Comptroller-General of Customs or the Director of
Public Prosecutions may institute a proceeding in the Court, on
behalf of the Commonwealth, for an order that a person pay a
pecuniary penalty to the Commonwealth in respect of:
(a) a particular prescribed narcotics dealing engaged in by him or
her; or
(b) prescribed narcotics dealings engaged in by him or her
during a particular period.
(2) If, in a proceeding instituted under subsection (1), the Court is
satisfied that the person in relation to whom the order is sought:
(a) has engaged in a particular prescribed narcotics dealing; or
(b) has, during a particular period, engaged in prescribed
narcotics dealings;
the Court shall assess, in accordance with section 243C, the value
of the benefits derived by the person by reason of his or her having
engaged in that dealing, or in prescribed narcotics dealings during
that period, as the case may be, and order the person to pay to the
Commonwealth a pecuniary penalty equal to the value as so
assessed.
(3) The Court may order a person to pay a pecuniary penalty under
subsection (2) in relation to a particular prescribed narcotics
dealing, or prescribed narcotics dealings during a particular period,
whether or not the person has been convicted of an offence, or
proceedings have been instituted in respect of any offence,
committed in relation to that dealing or any of those dealings and
whether or not any moneys or other goods have been seized under
section 229A in relation to that dealing or any of those dealings.
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(4) An amount payable by a person to the Commonwealth in
accordance with an order made under subsection (2) shall, for all
purposes, be deemed to be a civil debt due by the person to the
Commonwealth.
(5) An order made by the Court under subsection (2) may be enforced
as if it were an order made by the Court in civil proceedings
instituted by the Commonwealth against the person to recover a
debt due by the person to the Commonwealth.
(6) This section applies to and in relation to moneys that come, or
other property that comes, into the possession or under the control
of a person either within or outside Australia, and to benefits that
are provided for a person either within or outside Australia.
(7) A proceeding under subsection (1) may be commenced:
(a) if the proceeding relates to a particular prescribed narcotics
dealing engaged in by a person after the commencement of
this section—within 6 years after that dealing took place; or
(b) if the proceeding relates to prescribed narcotics dealings
during a particular period, being a period that commenced
after the commencement of this section—within 6 years after
the end of that period.
243C Assessment of pecuniary penalty
(1) In this section, a reference to the defendant in relation to a
proceeding under section 243B shall be read as a reference to a
person against whom an order is sought in that proceeding.
(2) In a proceeding under section 243B, the value of the benefits
derived by the defendant by reason of his or her having engaged in
a particular prescribed narcotics dealing, or in prescribed narcotics
dealings during a particular period shall be assessed by the Court
having regard to the evidence before the Court concerning all or
any of the following matters:
(a) the moneys, or the value of the property other than moneys,
that came into the possession or under the control of:
(i) the defendant; or
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(ii) another person at the request or by the direction of the
defendant;
by reason of the defendant’s having engaged in that dealing
or in prescribed narcotics dealings during that period;
(b) the value of any benefit, other than a benefit of the kind
referred to in paragraph (a) that was provided for:
(i) the defendant; or
(ii) another person at the request or by the direction of the
defendant;
by reason of the defendant’s having engaged in that dealing
or in prescribed narcotics dealings during that period;
(c) in the case of a prescribed narcotics dealing that consisted of
selling or otherwise dealing in narcotic goods—the market
value, at the time of the dealing, of similar or substantially
similar narcotic goods;
(d) in the case of a prescribed narcotics dealing that consisted of
the doing of any act or thing other than selling or otherwise
dealing in narcotic goods—the amount that was, or the range
of amounts that were, at the time the dealing occurred,
ordinarily paid for the doing of a similar or substantially
similar act or thing;
(e) the value of the defendant’s property before, during and after
he or she engaged in that dealing, or before, during and after
that period, as the case may be;
(f) the defendant’s income and expenditure before, during and
after he or she engaged in that dealing, or before, during and
after that period, as the case may be.
(3) Where evidence is given in a proceeding under section 243B that
the value of the defendant’s property during or after the defendant
engaged in a particular prescribed narcotics dealing, or during, or
after the end of, a particular period during which he or she engaged
in prescribed narcotics dealings, exceeded the value of the
defendant’s property before he or she engaged in that dealing, or
before the commencement of that period, then, for the purposes of
subsection (2) of that section, the Court shall, subject to
subsection (4), treat the value of benefits derived by the defendant
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by reason of his or her having engaged in that dealing or in
prescribed narcotics dealings during that period as being not less
than the amount of the greatest excess.
(4) Where, after evidence has been given in a proceeding under
section 243B that the value of the defendant’s property during or
after the defendant engaged in a particular prescribed narcotics
dealing, or during, or after the end of, a particular period, exceeded
the value of the defendant’s property before he or she engaged in
that dealing, or before the commencement of that period, the
defendant satisfies the Court that the whole or a part of the excess
was due to certain causes, being causes unrelated to his or her
having engaged in that prescribed narcotics dealing, or in
prescribed narcotics dealings during that period, as the case may
be:
(a) if the defendant so satisfies the Court in respect of the whole
of the excess—subsection (3) does not apply to the excess; or
(b) if the defendant so satisfies the Court in respect of a part of
the excess—subsection (3) applies to and in relation to the
excess as if it were reduced by the amount of that part.
(5) In a proceeding under section 243B, a police officer or an officer
of Customs who is experienced in the investigation of narcotics
offences may testify:
(a) with respect to the amount that, to the best of his or her
information, knowledge and belief, was the market value of
narcotic goods at a particular time or during a particular
period; or
(b) with respect to the amount, or the range of amounts, that, to
the best of his or her information, knowledge and belief, was
the amount, or range of amounts, ordinarily paid at a
particular time or during a particular period for the doing of
an act or thing (not being the selling or other dealing in
narcotic goods) comprising a prescribed narcotics dealing;
notwithstanding any rule of law or practice relating to hearsay
evidence, and his or her testimony is prima facie evidence of the
matters testified to.
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(6) In calculating, for the purposes of a proceeding under
section 243B, the value of benefits derived by the defendant by
reason of his or her having engaged in a particular prescribed
narcotics dealing, or in prescribed narcotics dealings during a
particular period, any expenses or outgoings of the defendant in
connection with that dealing, or those dealings, shall be
disregarded.
(7) The Court, in quantifying the value of a benefit for the purposes of
this section, may treat as the value of the benefit the value that the
benefit would have had if derived at the time when the valuation is
being made and, without limiting this, may have regard to any
decline in the purchasing power of money between the time when
the benefit was derived and the time when the valuation is being
made.
(8) For the purposes of this section, where property of a person vests
in a trustee in bankruptcy, the property shall be taken to continue to
be the property of the person.
243CA Court may lift corporate veil etc.
(1) Where the Court is assessing the value of benefits derived by a
person (in this section called the defendant) because of engaging
in a particular prescribed narcotics dealing, or in prescribed
narcotics dealings during a particular period, the Court may treat as
property of the defendant any property that, in the opinion of the
Court, is subject to the effective control of the defendant.
(2) Where the Court makes, or has made, an order (in this section
called a pecuniary penalty order) that the defendant pay a
pecuniary penalty under section 243B, the Court may:
(a) on application by the Minister, the Commissioner of Police,
the Comptroller-General of Customs or the Director of Public
Prosecutions; and
(b) if the Court is of the opinion that particular property is
subject to the effective control of the defendant;
make an order declaring that the whole, or a specified part, of that
property is available to satisfy the pecuniary penalty order.
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Customs Act 1901 233
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(3) Where the Court declares that property is available to satisfy a
pecuniary penalty order:
(a) the order may be enforced against the property as if it were
the defendant’s; and
(b) a restraining order may be made in respect of the property as
if it were the defendant’s property.
(4) Where the Minister, the Commissioner of Police, the
Comptroller-General of Customs or the Director of Public
Prosecutions makes an application for an order under
subsection (2) that property is available to satisfy a pecuniary
penalty order against the defendant:
(a) the person (in this paragraph called the applicant) who
makes the application shall give written notice of the
application to the defendant and to any person who the
applicant has reason to believe may have an interest in the
property; and
(b) the defendant and any person who claims an interest in the
property may appear and adduce evidence at the hearing of
the application.
243D Presumption of illegality of importation
Where, in a proceeding under section 243B against a person, the
Court is satisfied that the narcotic goods in relation to which the
person is alleged to have engaged in a prescribed narcotics dealing
or in prescribed narcotics dealings are goods reasonably suspected
of having been imported into Australia in contravention of this Act,
the Court shall, for the purposes of the proceeding, treat the
narcotic goods as narcotic goods which have been imported into
Australia in contravention of this Act unless it is established to the
satisfaction of the Court that the narcotic goods were not imported
into Australia or were not imported into Australia in contravention
of this Act.
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243E Court may make restraining order against property
(1) Where the Minister, the Commissioner of Police, the
Comptroller-General of Customs or the Director of Public
Prosecutions has instituted a proceeding under section 243B for an
order that a person (in this section referred to as the defendant) pay
a pecuniary penalty in relation to a particular prescribed narcotics
dealing, or in relation to prescribed narcotics dealings during a
particular period, the Minister, the Commissioner of Police, the
Comptroller-General of Customs or the Director of Public
Prosecutions may make application to the Court, ex parte, for an
order under paragraph (2)(c) against one or more of the following:
(a) specified property of the defendant;
(b) all the property of the defendant (including property acquired
after the making of the order);
(d) all the property of the defendant (including property acquired
after the making of the order) other than specified property;
(e) specified property of a person other than the defendant.
(1A) The application under subsection (1) may be made:
(a) where the Court makes the order under section 243B—at any
time before the liability of the defendant in respect of the
pecuniary penalty has been discharged; or
(b) in any other case—at any time before the proceeding under
section 243B is finally disposed of.
(2) Where:
(a) an application under subsection (1) is supported by:
(i) an affidavit of a police officer or an officer of Customs
stating that he or she believes that:
(A) the defendant has engaged in the prescribed
narcotics dealing to which the proceeding under
section 243B relates, or in prescribed narcotics
dealings during the period to which that
proceeding relates; and
(B) benefits were derived by the defendant by
reason of the defendant’s having engaged in
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that prescribed narcotics dealing, or in
prescribed narcotics dealings during that period,
as the case may be;
and setting out the grounds on which he or she holds
those beliefs; and
(ii) if the application seeks an order against specified
property of the defendant—an affidavit of a police
officer or an officer of Customs stating that he or she
believes that the property is the property of the
defendant and setting out the grounds on which he or
she holds that belief; and
(b) the Court considers that, having regard to the matters
contained in that affidavit or those affidavits, there are
reasonable grounds for holding those beliefs;
the Court:
(c) shall, subject to subsection (2A), make an order:
(i) directing that the property, or such part of the property
as is specified in the order, is not to be disposed of, or
otherwise dealt with, by any person, except in such
manner and in such circumstances (if any) as are
specified in the order; and
(ii) if the Court is satisfied that the circumstances so
require—direct the Official Trustee to take custody and
control of the property, or such part of the property as is
specified in the order; and
(d) may, subject to subsection (3), include in the order such
provision (if any) in relation to the operation of the order as
the Court thinks fit.
(2A) Where an application under subsection (1) seeks an order under
paragraph (2)(c) against specified property of a person other than
the defendant, the Court shall not make the order unless:
(a) the application is supported by an affidavit of a police officer
or an officer of Customs stating that the officer believes that
the property is subject to the effective control of the
defendant; and
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(b) the Court considers that, having regard to the matters
contained in that affidavit, there are reasonable grounds for
holding that belief.
(3) Paragraph (2)(d) does not authorize the Court to include in the
order a provision postponing the operation of the order.
(4) Without limiting the power of the Court under paragraph (2)(d),
the order against property:
(a) may set out conditions subject to which the order is to apply
to all of that property, or to a specified part of that property;
(b) may make provision for a review of the operation of the
order by the Court; and
(c) may make provision for meeting the reasonable living and
business expenses of the defendant out of that property, or
out of a specified part of that property.
(4A) The Court shall not make provision of the kind referred to in
paragraph (4)(c) unless it is satisfied that the defendant cannot
meet the expenses concerned out of property that is not subject to
the order.
(5) The Court may refuse to make the order if the Commonwealth
refuses or fails to give to the Court such undertakings as the Court
deems appropriate with respect to the payment of damages or
costs, or both, in relation to the making and operation of the order.
(6) For the purposes of an application under subsection (1), the
Minister, the Commissioner of Police, the Comptroller-General of
Customs or the Director of Public Prosecutions may, on behalf of
the Commonwealth, give to the Court such undertakings with
respect to the payment of damages or costs, or both, as are required
by the Court.
(7) Notwithstanding anything contained in the Bankruptcy Act 1966,
moneys that have come into the possession, or under the control, of
the Official Trustee in accordance with an order made under
subsection (2) shall not be paid into the Common Investment Fund
established in pursuance of section 20B of that Act.
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(8) Where the Official Trustee is given a direction under
subparagraph (2)(c)(ii) in relation to property, the Official Trustee
may do anything that is reasonably necessary for the purpose of
preserving the property including, without limiting the generality
of this:
(a) becoming a party to any civil proceedings affecting the
property;
(b) ensuring that the property is insured;
(c) if the property consists, wholly or partly, of securities or
investments—realising or otherwise dealing with the
securities or investments; and
(d) if the property consists, wholly or partly, of a business:
(i) employing, or terminating the employment of, persons
in the business; and
(ii) doing any other thing that is necessary or convenient for
carrying on the business on a sound commercial basis.
(9) Where the Official Trustee is given a direction under
subparagraph (2)(c)(ii) in relation to shares in a company, the
Official Trustee is entitled:
(a) to exercise the rights attaching to the shares as if it were the
registered holder of the shares; and
(b) to do so to the exclusion of the registered holder.
(10) Neither paragraph (8)(c) nor subsection (9) limits the generality of
the other.
(11) In proceedings dealing with an application for an order under
paragraph (2)(c), a witness shall not be required to answer a
question or to produce a document if the Court is satisfied that the
answering of the question or the production of the document may
prejudice the investigation of, or the prosecution of a person for, an
offence.
243F Court may make further orders
(1AA) In this section:
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defendant has the same meaning as in section 243E.
(1) Where the Court makes, or has made, a restraining order (in this
section called the original order) against property of a person (in
this section called the owner), the Court may, at the time it makes
the original order or at any subsequent time, make such orders in
relation to that property as the Court considers just and, without
limiting the power so conferred on the Court, the Court may, at any
time or from time to time, make an order:
(a) varying the original order in respect of the property to which
it relates or any provision included in the original order by
virtue of paragraph 243E(2)(d);
(b) regulating the manner in which the Official Trustee may
exercise its powers or perform its duties under the original
order;
(c) determining any question relating to the property to which
the original order relates, including any question relating to
the liabilities of the owner, and the exercise of the powers, or
the performance of the duties, of the Official Trustee, with
respect to the property to which the original order relates;
(d) directing:
(i) the owner; or
(ii) if the owner is not the defendant—the defendant; or
(iii) if the owner or the defendant is a body corporate—a
director of the body corporate specified by the Court;
to give to the Minister, the Commissioner of Police, the
Comptroller-General of Customs, the Director of Public
Prosecutions or the Official Trustee, within a period specified
in the order, a statement verified by the oath of the person
making the statement, setting out such particulars of the
property, or dealings with the property, of the owner or
defendant as the Court thinks proper;
(e) for the examination on oath before the Court or Registrar of
the Court of any person, including:
(i) the owner; or
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(ii) the defendant;
about the affairs (including the nature and location of any
property) of:
(iii) anyone else who is either the owner or the defendant, or
both; and
(iv) if the person to be examined is either the owner or
defendant, or both—that person;
(ea) directing the owner or another person to do any act or thing
necessary or convenient to be done to enable the Official
Trustee to take custody and control of the property in
accordance with the original order; or
(f) with respect to the carrying out of any undertaking with
respect to the payment of damages or costs given by the
Commonwealth in connection with the making of the original
order.
(2) An application for an order under subsection (1) may be made:
(a) by the Official Trustee;
(b) by the Minister, the Commissioner of Police, the
Comptroller-General of Customs or the Director of Public
Prosecutions;
(c) by the owner; or
(d) with the leave of the Court, by any other person.
(2A) Where:
(a) the Court made the original order against the property in
reliance on the engaging by a person (in this subsection
called the defendant) in a prescribed narcotics dealing or
prescribed narcotics dealings during a particular period; and
(b) another person having an interest in the property applies to
the Court for a variation of the order to exclude the interest
from the order;
the Court shall grant the application if satisfied that the interest is
not subject to the effective control of the defendant.
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(3) Where:
(a) a person is examined before the Court, or the Registrar of the
Court, under an order made under subsection (1); or
(b) an order made under subsection (1) directs a person to
furnish a statement to the Minister, the Commissioner of
Police, the Comptroller-General of Customs, the Director of
Public Prosecutions or the Official Trustee;
the person is not excused from:
(c) answering a question when required to do so by the Court, or
by the Registrar of the Court; or
(d) furnishing the statement, or setting out particulars in the
statement;
as the case may be, on the ground that the answer to the question,
or the statement or particulars, might tend to incriminate the person
or make the person liable to a forfeiture or penalty.
(3A) Where a person:
(a) is examined before the Court, or the Registrar of the Court;
or
(b) furnishes a statement to the Minister, the Commissioner of
Police, the Comptroller-General of Customs, the Director of
Public Prosecutions or the Official Trustee;
under an order made under subsection (1), then:
(c) a statement or disclosure made by the person in answer to a
question put in the course of the examination; or
(d) the statement so furnished;
as the case may be, and any information, document or thing
obtained as a direct or indirect consequence of the statement or
disclosure referred to in paragraph (c), or of the statement referred
to in paragraph (d), is not admissible against the person in any civil
or criminal proceeding except:
(e) a proceeding for giving false testimony in the course of the
examination, or in respect of the falsity of the statement, as
the case may be; or
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(f) a proceeding for the recovery of a pecuniary penalty, for the
purpose only of facilitating the assessment of the amount of
the pecuniary penalty.
(4) In this section, unless the contrary intention appears:
(a) references to the original order shall be read as including
references to the original order as varied under this section;
and
(b) references to the Registrar of the Court shall be read as
including references to a Deputy Registrar of the Court, a
District Registrar of the Court and a Deputy District
Registrar of the Court.
(5) In proceedings dealing with an application for an order under
subsection (1), a witness is not required to answer a question or to
produce a document if the Court is satisfied that the answering of
the question or the production of the document may prejudice the
investigation of, or the prosecution of a person for, an offence.
243G Official Trustee to discharge pecuniary penalty
(1) Where:
(a) the Court makes an order under section 243B that a person
pay a pecuniary penalty in relation to a particular prescribed
narcotics dealing or in relation to prescribed narcotics
dealings during a particular period; and
(b) at the time when the order is made, property is subject to a
restraining order made, in reliance on the prescribed narcotics
dealing or prescribed narcotics dealings, against:
(i) property of the person; or
(ii) property of another person in relation to which an order
under subsection 243CA(2) is made;
the Court may include in the order under section 243B a direction
to the Official Trustee to pay the Commonwealth, in accordance
with this section, an amount equal to the penalty amount out of that
property.
(2) Where:
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(a) the Court makes an order under section 243B for a person to
pay a pecuniary penalty in relation to a prescribed narcotics
dealing or prescribed narcotics dealings during a particular
period; and
(b) a restraining order is subsequently made against:
(i) property of the person; or
(ii) property of another person in relation to which an order
under subsection 243CA(2) is made;
in reliance on the prescribed narcotics dealing or prescribed
narcotics dealings;
the Court may include in the restraining order a direction to the
Official Trustee to pay the Commonwealth, in accordance with this
section, an amount equal to the penalty amount out of that
property.
(2A) If:
(a) the Court has made an order under section 243B that a person
pay a pecuniary penalty in relation to a prescribed narcotics
dealing or prescribed narcotics dealings during a particular
period; and
(b) a restraining order is in force against:
(i) property of the person; or
(ii) property of another person in relation to which an order
under subsection 243CA(2) is in force;
the Court may, on application by the Minister, the Commissioner
of Police, the Comptroller-General of Customs or the Director of
Public Prosecutions, direct the Official Trustee to pay the
Commonwealth, in accordance with this section, an amount equal
to the penalty amount out of the property.
(3) For the purposes of enabling the Official Trustee to comply with a
direction given by the Court under subsection (1), (2) or (2A), the
Court may, in the order in which the direction is given or by a
subsequent order:
(a) direct the Official Trustee to sell or otherwise dispose of such
of the property that is subject to the restraining order as the
Court specifies; and
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(b) appoint an officer of the Court or any other person to execute
any deed or instrument in the name of a person who owns or
has an estate, interest or right in the property and to do any
act or thing necessary to give validity and operation to the
deed or instrument.
(4) The execution of the deed or instrument by the person appointed
by an order under subsection (3) has the same force and validity as
if the deed or instrument had been executed by the person who
owned or had the estate, interest or right in the property.
(5) Where the Official Trustee is given a direction under
subsection (1), (2) or (2A) in relation to property, the Official
Trustee shall not:
(a) if the property is money—apply the money in accordance
with subsection (6) until the end of the appeal period; and
(b) if the property is not money—sell or otherwise dispose of the
property until the end of the appeal period.
(6) Where the Official Trustee is given a direction under
subsection (1), (2) or (2A) in relation to property, the Official
Trustee shall, as soon as practicable after the end of the appeal
period:
(a) if the property is money:
(i) apply the money in payment of the costs, charges,
expenses and remuneration, of the kind referred to in
subsection 243P(1), incurred or payable in connection
with the restraining order and payable to the Official
Trustee under the regulations; and
(ii) subject to subsection (7), credit an amount equal to the
remainder of the money to the Confiscated Assets
Account as required by section 296 of the Proceeds of
Crime Act 2002; and
(b) if the property is not money:
(i) sell or otherwise dispose of the property;
(ii) apply the proceeds of the sale or disposition in payment
of the costs, charges, expenses and remuneration of the
kind referred to in subsection 243P(1), incurred or
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payable in connection with the restraining order or the
sale or disposition and payable to the Official Trustee
under the regulations; and
(iii) subject to subsection (7), credit an amount equal to the
remainder of those proceeds to the Confiscated Assets
Account as required by section 296 of the Proceeds of
Crime Act 2002.
(7) Where the amounts to which subparagraph (6)(a)(ii) or (b)(iii)
applies exceeds the penalty amount, the Official Trustee must:
(a) credit to the Confiscated Assets Account as required by
section 296 of the Proceeds of Crime Act 2002 an amount
equal to the penalty amount; and
(b) pay the balance to the person whose property was subject to
the restraining order.
(8) Where the Official Trustee credits, in accordance with a direction
under this section, an amount to the Confiscated Assets Account as
required by section 296 of the Proceeds of Crime Act 2002 in
satisfaction of a person’s liability under an order under
section 243B, the person’s liability under the order shall, to the
extent of the payment be deemed to be discharged.
(9) Where:
(a) a restraining order is made against property in reliance on a
particular prescribed narcotics dealing engaged in by the
person or prescribed narcotics dealings engaged in by the
person during a particular period; and
(b) before or after the restraining order is made, an order under
section 243B has been or is made against the person in
reliance on the prescribed narcotics dealing or prescribed
narcotics dealings;
the appeal period in respect of the property is the period ending:
(c) if the period provided for the lodging of an appeal against the
making of the order under section 243B has ended without
such an appeal having been lodged—at the end of that
period; or
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Section 243H
Customs Act 1901 245
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(d) if an appeal against the making of the order under
section 243B has been lodged—when the appeal lapses or is
finally determined.
243H Revocation of order under section 243E
(1) Where, after a restraining order has been made in relation to a
proceeding for the recovery of a pecuniary penalty:
(a) no pecuniary penalty is imposed upon the determination of
that proceeding;
(b) the pecuniary penalty imposed upon the determination of that
proceeding is paid; or
(c) the Court is satisfied that it is, in all the circumstances,
proper to do so;
the Court may, upon application being made to it by a person
authorized to make an application under section 243F, revoke that
order.
(2) The revocation of a restraining order that was made in relation to a
proceeding for the recovery of a pecuniary penalty does not
prevent the Court from making a further restraining order in
relation to that proceeding.
(3) Without limiting the powers of the Court to make an order under
subsection (1), the Court may revoke a restraining order upon the
applicant:
(a) giving security satisfactory to the Court for the payment of
any pecuniary penalty that may be imposed on him or her in
the relevant proceeding; or
(b) giving undertakings satisfactory to the Court concerning the
property of the applicant.
(4) Where the Court revokes or has revoked a restraining order, the
Court may make such order or orders as it deems proper for or in
relation to the discharge of the Official Trustee concerned from all
liability in respect of the exercise by it of the powers conferred on
it, and the performance by it of the duties imposed on it, under this
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Section 243J
246 Customs Act 1901
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Division in respect of the property of the person to whom the
restraining order related.
243J Pecuniary penalty a charge on property
(1) Where the Court makes, in relation to a proceeding (in this section
referred to as the relevant proceeding) for the recovery of a
pecuniary penalty from a person, a restraining order against
property, upon the making of the order, there is created, by force of
this section, a charge, on all the property to which the order relates,
to secure the payment to the Commonwealth of any pecuniary
penalty that the person may be ordered to pay in the relevant
proceeding.
(2) Where a charge is created by subsection (1) on any property of a
person upon the making of a restraining order, the charge ceases to
have effect in respect of the property:
(a) upon the order ceasing to apply to the property by reason of
the variation or revocation of the order; or
(b) upon the determination of the relevant proceeding by way of
the refusal of the Court to make an order for the payment of a
pecuniary penalty by the person; or
(c) upon payment by the person of any pecuniary penalty that he
or she has been ordered to pay in the relevant proceeding; or
(d) upon the person becoming a bankrupt; or
(e) upon the sale or other disposition of the property:
(i) in pursuance of a direction of the Court under
section 243G; or
(ii) by the owner of the property with the consent of the
Court or of the Official Trustee; or
(f) upon the sale of the property to a bona fide purchaser for
value who, at the time of purchase, has no notice of the
charge;
whichever first occurs.
(3) The charge created on property by subsection (1):
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(a) is subject to every charge or encumbrance to which the
property was subject immediately before the order was made;
(b) has priority over all other encumbrances whatsoever; and
(c) subject to subsection (2), is not affected by any change of
ownership of the property.
(4) Where a charge is created by subsection (1) on property of a
particular kind and the provisions of any law of the
Commonwealth or of a State or Territory provide for the
registration of title to, or charges over, property of that kind, the
Official Trustee or the person who applied for the restraining order
against that property may cause the charge so created to be
registered under the provisions of that law and, if the Official
Trustee or the person who applied for the restraining order, as the
case may be, does so, a person who purchases or otherwise
acquires the property after the registration of the charge shall, for
the purposes of subsection (2), be deemed to have notice of the
charge.
243K Contravention of restraining orders
(1) A person who intentionally contravenes a restraining order by
disposing of, or otherwise dealing with, property that is subject to
the restraining order commits an offence.
Penalty: Imprisonment for 5 years.
(2) Where:
(a) a restraining order is made against property;
(b) the property is disposed of, or otherwise dealt with, in
contravention of the restraining order; and
(c) the disposition or dealing was either not for sufficient
consideration or not in favour of a person who acted in good
faith;
the Minister, the Commissioner of Police, the Comptroller-General
of Customs or the Director of Public Prosecutions may apply to the
Court for an order that the disposition or dealing be set aside.
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Section 243L
248 Customs Act 1901
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(3) Where an application is made under subsection (2) in relation to a
disposition or dealing, the Court may make an order:
(a) setting the disposition or dealing aside as from the day on
which it took place; or
(b) setting the disposition or dealing aside as from the day of the
order under this subsection and declaring the respective
rights of any persons who acquired interests in the property
on or after the day on which the disposition or dealing took
place and before the day of the order under this subsection.
243L Sale of property before bankruptcy
(1) Where:
(a) the Commonwealth has, within 6 months before the
presentation of a petition, or after the presentation of a
petition, against a person, received moneys from the Official
Trustee or an Official Receiver in pursuance of a direction
under section 243G in relation to the liability of the person to
pay a pecuniary penalty; and
(b) the person subsequently becomes a bankrupt on, or by virtue
of the presentation of, the petition;
the Commonwealth shall pay to the trustee in the bankruptcy an
amount equal to the amount paid to the Commonwealth in
accordance with the direction, less the taxed costs of the Minister,
the Commissioner of Police, the Comptroller-General of Customs
or the Director of Public Prosecutions in respect of the making of
the direction under section 243G.
(2) Where the Commonwealth has paid to the trustee in bankruptcy an
amount in accordance with subsection (1), the Commonwealth may
prove in the bankruptcy for its debt as an unsecured creditor as if
the order under section 243G had not been made.
(3) Notwithstanding anything contained in the Bankruptcy Act 1966, a
person who purchases in good faith, property of a person who,
after the purchase, becomes a bankrupt, under a sale of the
property in pursuance of a direction given under section 243G
acquires a good title to it as against the trustee in the bankruptcy.
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Section 243M
Customs Act 1901 249
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243M Duties of the Official Trustee after receiving notice of
presentation of creditor’s petition etc.
(1) Where, after the Official Trustee has been directed under
subsection 243G(1) or (2) to pay an amount to the Commonwealth
in relation to the liability of a person to pay a pecuniary penalty,
notice in writing of the presentation of a creditor’s petition against
the person is given to the Official Trustee, the Official Trustee:
(a) shall refrain from taking action to sell property of the person
in pursuance of any direction to do so contained in an order
under that section; and
(b) shall not pay any moneys in pursuance of the direction to do
so contained in the first-mentioned order;
until the petition has been dealt with by a bankruptcy court or has
lapsed.
(2) Where, after the Official Trustee has been directed under
subsection 243G(1) or (2) to pay an amount to the Commonwealth
in relation to the liability of a person to pay a pecuniary penalty,
notice in writing of the reference to a bankruptcy court of a
debtor’s petition against the person is given to the Official Trustee,
the Official Trustee:
(a) shall refrain from taking action to sell property of the person
in pursuance of any direction to do so contained in an order
under that section; and
(b) shall not pay any moneys in pursuance of the direction to do
so contained in the first-mentioned order;
until a bankruptcy court has dealt with the petition.
(3) Where a person who is liable to pay a pecuniary penalty becomes a
bankrupt (whether on a creditor’s petition or otherwise), any
property of the person in the possession, or under the control, of
the Official Trustee in accordance with an order made under this
Division shall be deemed to be in the possession, or under the
control, of the Official Trustee as, or on behalf of, the trustee of the
estate of the bankrupt, and not otherwise.
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Section 243N
250 Customs Act 1901
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(4) In this section, bankruptcy court means a court having jurisdiction
in bankruptcy under the Bankruptcy Act 1966.
243N Protection of Official Trustee from personal liability in certain
cases
(1) Where:
(a) the Court has made a restraining order directing the Official
Trustee to take custody and control of property of a person;
(b) the Official Trustee has taken custody and control of any
property in the possession, or on the premises, of the person
without notice of any claim by another person in respect of
that property; and
(c) the person did not, at the date of the order, have any
beneficial interest in the property referred to in paragraph (b);
the Official Trustee is not personally liable for any loss or damage
arising from its having taken custody and control of the property
sustained by a person claiming the property or an interest in the
property, or for the cost of proceedings taken to establish a claim to
the property or to an interest in the property, unless the court in
which the claim is made is of the opinion that the Official Trustee
has been guilty of negligence in respect of the taking of custody
and control of the property.
(2) Where the Official Trustee has, in accordance with a restraining
order, taken custody and control of property of a person specified
in the order, the Official Trustee is not personally liable for any
loss or damage arising from its having taken custody and control of
the property (being loss or damage sustained by some other person
claiming the property or an interest in the property), or for the cost
of proceedings taken to establish a claim to the property, or to an
interest in the property, unless the court in which the claim is made
is of the opinion that the Official Trustee has been guilty of
negligence in respect of the taking of custody and control of the
property.
(3) The Official Trustee is not personally liable for any rates, land tax
or municipal or other statutory charges imposed by or under a law
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Section 243NA
Customs Act 1901 251
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of the Commonwealth or of a State or Territory upon or in respect
of property of which it has been directed by a restraining order to
take custody and control, being rates, land tax or municipal or
other statutory charges that fall due on or after the date of that
order, except to the extent, if any, of the rents and profits received
by the Official Trustee in respect of that property on or after the
date of that order.
(4) Where the Official Trustee who has been directed by a restraining
order to take custody and control of a business carried on by a
person carries on that business, the Official Trustee is not
personally liable for any payment in respect of long service leave
for which the person was liable or for any payment in respect of
long service leave to which a person employed by the Official
Trustee in its capacity of manager of the business, or the legal
personal representative of such a person, becomes entitled after the
date of that order.
243NA Indemnification of Official Trustee
(1) The Commonwealth is by force of this subsection liable to
indemnify the Official Trustee against any personal liability
(including any personal liability as to costs) incurred by it for any
act done, or omitted to be done, by it in the exercise, or purported
exercise, of its powers and duties under this Division.
(2) Nothing in subsection (1) affects:
(a) any right that the Official Trustee has, apart from that
subsection, to be indemnified in respect of any personal
liability referred to in that subsection; or
(b) any other indemnity given to the Official Trustee in respect
of any such personal liability.
(3) Where the Commonwealth makes a payment in accordance with
the indemnity referred to in subsection (1), the Commonwealth has
the same right of reimbursement in respect of the payment
(including reimbursement under another indemnity given to the
Official Trustee) as the Official Trustee would have if the Official
Trustee had made the payment.
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Section 243NB
252 Customs Act 1901
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243NB Indemnification of Official Receivers etc.
(1) The Commonwealth shall indemnify a person to whom this
subsection applies against any liability incurred by the person:
(a) for any act done negligently, or negligently omitted to be
done, by the person in the performance of the person’s duties
in relation to this Division; or
(b) for any act done by the person in good faith in the purported
performance of the person’s duties in relation to this
Division.
(2) Subsection (1) applies to:
(a) persons who are Official Receivers under the Bankruptcy Act
1966;
(b) persons who perform any of the duties of such an Official
Receiver in relation to this Division; or
(c) persons who assist such an Official Receiver in the
performance of the Official Receiver’s duties in relation to
this Division.
243P Costs etc. payable to Official Trustee
(1) The regulations may make provision for or in relation to:
(a) the costs, charges and expenses incurred in connection with;
and
(b) the Official Trustee’s remuneration in respect of;
the performance or exercise by the Official Trustee of functions,
duties or powers under this Division.
(2) An amount equal to each amount of remuneration that the Official
Trustee receives under the regulations shall be paid to the
Commonwealth.
(3) Where there are no regulations in relation to a matter referred to in
subsection (1):
(a) the regulations referred to in section 288 of the Proceeds of
Crime Act 2002 shall apply, so far as they are applicable, and
with appropriate changes, in relation to the matter; and
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Section 243Q
Customs Act 1901 253
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(b) a reference in this Division (other than in this subsection) to
regulations in relation to the matter shall be taken to be a
reference to the regulations referred to in section 288 of the
Proceeds of Crime Act 2002.
243Q Notices
(1) Subject to subsection (2), where the Court makes a restraining
order, or an order under section 243CA or 243F, against a person’s
property, the person who applied for the order (in this section
called the applicant) shall give the person written notice of the
order.
(2) Where:
(a) the Court makes a restraining order against a person’s
property; and
(b) the Court is satisfied that it would be in the public interest to
delay giving notice of the order to the person;
the Court may order that giving the person notice of the order be
delayed for such period as is specified in the order under this
subsection and the applicant shall give the person notice of the
restraining order as soon as practicable after the end of the period
specified.
243R Reduction of pecuniary penalty
(1) Where, before the Court makes an order directing a person to pay a
pecuniary penalty in respect of a particular prescribed narcotics
dealing engaged in by him or her, or of prescribed narcotics
dealings engaged in by him or her during a particular period, any
property of the person to which section 229A applied by reason of
that prescribed narcotics dealing, or of a prescribed narcotics
dealing during that period, had been seized as forfeited goods:
(a) if, before the imposition of the penalty, the property had been
condemned or was deemed to have been condemned—the
penalty shall be deemed to be reduced by an amount equal to
the value of the property at the time when it was seized; and
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Section 243S
254 Customs Act 1901
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(b) if, after the imposition of the penalty and before the penalty
is paid, the property is condemned or is deemed to be
condemned or the person consents to the forfeiture of the
property—the liability of the person in respect of the penalty
shall be deemed to be reduced by an amount equal to the
value of the property at the time when it was seized; and
(c) if the penalty is paid before the property is condemned or is
to be deemed to be condemned—the Commonwealth is liable
to pay to the person an amount equal to the value of the
property at the date of its seizure.
(2) After a pecuniary penalty is imposed on a person in respect of a
particular prescribed narcotics dealing engaged in by the person, or
of prescribed narcotics dealings engaged in by him or her during a
particular period, property of the person to which section 229A
applies by virtue of that dealing, or of such a dealing during that
period, shall not be seized as forfeited goods.
(3) The Court may make an order, in respect of property to which
section 229A applies, being property that has been seized as
forfeited goods, determining the value, at the time when it was
seized, of that property for the purposes of this section.
243S Jurisdiction of the Court
Jurisdiction is conferred on the Court to hear and determine
applications under this Division.
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Section 243SA
Customs Act 1901 255
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Division 4—Provisions relating to certain strict liability
offences
243SA Failure to answer questions
(1) A person must not fail to answer a question that an officer,
pursuant to a power conferred on the officer by this Act (other than
section 106J or 195A or subsection 214AH(2)), requires the person
to answer.
Penalty: 30 penalty units.
(2) A person must not fail to answer a question that a monitoring
officer, pursuant to subsection 214AH(2), requires the person to
answer, if:
(a) the person is the occupier of the relevant premises, or a
representative of the occupier whom the occupier has
nominated to a monitoring officer to answer questions under
that subsection; or
(b) the person is not covered by paragraph (a) and no other
person of the kind mentioned in that paragraph is present at
the premises and available to answer questions put by the
monitoring officer.
Penalty: 30 penalty units.
(3) If:
(a) an officer requires a person to answer a question under
section 106J or 195A; and
(b) the officer informs the person of the officer’s authority to ask
the question; and
(c) the officer informs the person that it may be an offence not to
answer the question;
the person must not fail to answer the question.
Penalty: 30 penalty units.
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Section 243SB
256 Customs Act 1901
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(4) Subsections (1), (2) and (3) are offences of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
243SB Failure to produce documents or records
(1) A person must not fail to produce a document or record that an
officer, pursuant to a power conferred on the officer by this Act
other than a power conferred by section 71AAAO, 71DA, 71DL,
114A or 118, requires the person to produce.
Penalty: 30 penalty units.
(2) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
243SC Preservation of the privilege against self-incrimination
(1) Subject to subsection (2), a person who would, apart from this
subsection, be required to:
(a) answer a question under section 243SA; or
(b) produce a document or record under section 243SB;
need not comply with the requirement if so complying would:
(c) tend to incriminate the person; or
(d) result in further attempts to obtain evidence that would tend
to incriminate the person.
(2) Subsection (1) does not apply, and the person must comply with
the requirement, if the person has waived his or her rights under
that subsection.
243T False or misleading statements resulting in loss of duty
(1) A person commits an offence if:
(a) the person:
(i) makes, or causes to be made, to an officer a statement
(other than a statement in a cargo report or an outturn
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Section 243T
Customs Act 1901 257
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report) that is false or misleading in a material
particular; or
(ii) omits, or causes to be omitted, from a statement (other
than a statement in a cargo report or an outturn report)
made to an officer any matter or thing without which the
statement is false or misleading in a material particular;
and
(b) either of the following applies:
(i) the amount of duty properly payable on the goods
exceeds the amount of duty that would have been
payable if the amount of duty were determined on the
basis that the statement was not false or misleading;
(ii) the amount that would have been payable as a refund or
drawback of duty on the goods if that amount had been
determined on the basis that the statement was not false
or misleading exceeds the amount of refund or
drawback properly payable (which may be nil).
(2) An offence against subsection (1) is an offence of strict liability.
(3) An offence against subsection (1) is punishable on conviction by a
fine not exceeding the greater of:
(a) 60 penalty units; and
(b) the amount of the excess.
(3A) For the purposes of this section, a person is taken to cause to be
made a statement (other than a statement in a cargo report or
outturn report) that is false or misleading in a material particular if:
(a) the person gives information that is false or misleading in a
material particular to another person for inclusion in a
statement (other than a statement in a cargo report or outturn
report) by the other person or someone else to an officer; and
(b) the other person or someone else makes such a statement
including the information to an officer.
This subsection does not limit the ways in which a person may
cause such a statement to be made.
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Section 243T
258 Customs Act 1901
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(3B) For the purposes of this section, a person is taken to cause to be
made an omission (a punishable omission) from a statement (other
than a statement in a cargo report or outturn report) of a matter or
thing without which the statement is false or misleading in a
material particular, if:
(a) the person gives to another person, for inclusion in a
statement (other than a statement in a cargo report or an
outturn report) by the other person or someone else to an
officer, information that is false or misleading in a material
particular because of an omission of other information that
the person has; and
(b) the other person or someone else makes such a statement
including the information to an officer.
This subsection does not limit the ways in which a person may
cause a punishable omission to be made.
(4) Subsection (1) does not apply if:
(a) a person (other than an officer) voluntarily gives written
notice (an error notice) to an officer doing duty in relation to
the matter to which the statement relates, indicating that:
(i) the statement is false or misleading in a material
particular; or
(ii) the statement is false or misleading in a material
particular because of the omission of a matter or thing;
and
(b) between the making of the statement and the person giving
the error notice, a notice under section 214AD had not been
given to:
(i) a person who made the statement or caused it to be
made (the defendant); or
(ii) a person who omitted, or caused to be omitted, from the
statement a matter or thing without which the statement
was false or misleading (the defendant); and
(c) if subparagraph (1)(b)(i) would apply apart from this
subsection—the duty properly payable on the goods is paid
in full before either of the following happens:
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(i) an infringement notice is given to the defendant for an
offence against subsection (1);
(ii) proceedings are commenced against the defendant for
an offence against subsection (1); and
(d) if subparagraph (1)(b)(ii) would apply apart from this
subsection and an amount of refund or drawback exceeding
the amount (if any) properly payable has been paid before the
time either of the following happens:
(i) an infringement notice is given to the defendant for an
offence against subsection (1);
(ii) proceedings are commenced against the defendant for
an offence against subsection (1);
the excess has been repaid before that time.
(4A) For the purposes of paragraph (4)(a), the error notice is taken not to
be given voluntarily if it is given after:
(a) an officer exercises a power under a Customs-related law to
verify information in the statement; or
(b) an infringement notice is served under Subdivision A of
Division 5 on the defendant for an offence against
subsection (1); or
(c) proceedings are commenced against the defendant for an
offence against subsection (1).
(5) Subsection (1) does not apply to a statement made by a person to
an officer if:
(a) the statement specifies that the person is uncertain about
information included in the statement, and considers that, as
a result of including that information, the statement might be
false or misleading in a material particular; and
(b) the statement identifies the information whose inclusion
might make the statement false or misleading in a material
particular; and
(c) the statement sets out the reasons why the person is uncertain
about the identified information.
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Section 243U
260 Customs Act 1901
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(6) Subsection (1) does not apply to a statement made by a person to
an officer if:
(a) the statement specifies that the person is uncertain whether,
as a result of omitting information from the statement, the
statement might be false or misleading in a material
particular; and
(b) the statement identifies the omission of information that
might make the statement false or misleading in a material
particular; and
(c) the statement sets out the reasons for the person’s uncertainty
about the effect of omitting the information.
243U False or misleading statements not resulting in loss of duty
(1) A person commits an offence if:
(a) the person:
(i) makes, or causes to be made, to an officer a statement
(other than a statement in a cargo report or an outturn
report) that is false or misleading in a material
particular; or
(ii) omits, or causes to be omitted, from a statement (other
than a statement in a cargo report or an outturn report)
made to an officer any matter or thing without which the
statement is false or misleading in a material particular;
and
(b) neither of the following applies:
(i) the amount of duty properly payable on particular goods
exceeds the amount of duty that would have been
payable if the amount of duty were determined on the
basis that the statement was not false or misleading;
(ii) the amount that would have been payable as a refund or
drawback of duty on the goods if that amount had been
determined on the basis that the statement was not false
or misleading exceeds the amount of refund or
drawback properly payable (which may be nil).
(2) An offence against subsection (1) is an offence of strict liability.
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Section 243U
Customs Act 1901 261
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(3) The penalty for a conviction for an offence against subsection (1)
is an amount not exceeding 60 penalty units for each statement that
is found by the court to be false or misleading.
(3A) For the purposes of this section, a person is taken to cause to be
made a statement (other than a statement in a cargo report or
outturn report) that is false or misleading in a material particular if:
(a) the person gives information that is false or misleading in a
material particular to another person for inclusion in a
statement (other than a statement in a cargo report or outturn
report) by the other person or someone else to an officer; and
(b) the other person or someone else makes such a statement
including the information to an officer.
This subsection does not limit the ways in which a person may
cause such a statement to be made.
(3B) For the purposes of this section, a person is taken to cause to be
made an omission (a punishable omission) from a statement (other
than a statement in a cargo report or outturn report) of a matter or
thing without which the statement is false or misleading in a
material particular, if:
(a) the person gives to another person, for inclusion in a
statement (other than a statement in a cargo report or an
outturn report) by the other person or someone else to an
officer, information that is false or misleading in a material
particular because of an omission of other information that
the person has; and
(b) the other person or someone else makes such a statement
including the information to an officer.
This subsection does not limit the ways in which a person may
cause a punishable omission to be made.
(4) Subsection (1) does not apply to a statement if:
(a) a person (other than an officer) voluntarily gives written
notice (an error notice) to an officer doing duty in relation to
the matter to which the statement relates, indicating that:
(i) the statement is false or misleading in a material
particular; or
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262 Customs Act 1901
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(ii) the statement is false or misleading in a material
particular because of the omission of a matter or thing;
and
(b) between the making of the statement and the person giving
the error notice, a notice under section 214AD had not been
given to either of the following:
(i) a person who made the statement or caused it to be
made;
(ii) a person who omitted, or caused to be omitted, from the
statement a matter or thing without which the statement
was false or misleading.
(4A) For the purposes of paragraph (4)(a), the error notice is taken not to
be given voluntarily if it is given after:
(a) an officer exercises a power under a Customs-related law to
verify information in the statement; or
(b) an infringement notice for an offence against subsection (1)
is given to:
(i) a person who made the statement or caused it to be
made; or
(ii) a person who omitted, or caused to be omitted, from the
statement a matter or thing without which the statement
was false or misleading; or
(c) proceedings are commenced against a person described in
subparagraph (b)(i) or (ii) of this subsection for an offence
against subsection (1).
(5) In this section:
statement does not include:
(a) a statement made under Part XVA or XVB; or
(b) a statement that a person who is or was a passenger on, or a
member of the crew of, a ship or aircraft made in relation to
his or her accompanied personal or household effects that
were carried on the ship or aircraft.
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Section 243V
Customs Act 1901 263
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243V False or misleading statements in cargo reports or outturn
reports
(1) A person commits an offence if the person:
(a) makes, or causes to be made, to an officer a statement, in a
cargo report or an outturn report, that is false or misleading in
a material particular; or
(b) omits, or causes to be omitted, from a statement, in a cargo
report or an outturn report, made to an officer any matter or
thing without which the statement is false or misleading in a
material particular.
(2) An offence against subsection (1) is an offence of strict liability.
(3) The penalty for a conviction for an offence against subsection (1)
is an amount not exceeding 60 penalty units.
(4) For the purposes of subsection (1), a person is taken to cause to be
made a statement described in paragraph (1)(a) if:
(a) the person gives information that is false or misleading in a
material particular to another person for inclusion in a
statement, in a cargo report or an outturn report, by the other
person or someone else to an officer; and
(b) the other person or someone else makes a statement
including the information to an officer, in a cargo report or an
outturn report.
This subsection does not limit the ways in which a person may
cause to be made a statement described in paragraph (1)(a).
(5) For the purposes of subsection (1), a person is taken to cause an
omission described in paragraph (1)(b) to be made if:
(a) the person gives to another person, for inclusion in a
statement, in a cargo report or an outturn report, by the other
person or someone else to an officer, information that is false
or misleading in a material particular because of an omission
of other information that the person has; and
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Section 243W
264 Customs Act 1901
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(b) the other person or someone else makes a statement
including the information to an officer, in a cargo report or an
outturn report.
This subsection does not limit the ways in which a person may
cause an omission described in paragraph (1)(b) to be made.
243W Electronic communications to Department to be treated as
statements to Comptroller-General of Customs
For the purposes of this Division, any electronic communication to
the Department is taken to be a statement made to the
Comptroller-General of Customs.
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Penal Provisions Part XIII
Infringement notices Division 5
Section 243X
Customs Act 1901 265
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
Division 5—Infringement notices
243X Infringement notices—general
(1) A regulation may make provision enabling a person who is alleged
to have committed an offence of strict liability or of absolute
liability against this Act to pay to the Commonwealth a penalty
specified in a notice (an infringement notice) as an alternative to
prosecution.
(2) The penalty must not exceed either:
(a) one-quarter of the maximum fine that a court could impose
on the person as a penalty for that offence; or
(b) subject to subsection (3), whichever of the following applies:
(i) 15 penalty units if the person is an individual;
(ii) 75 penalty units if the person is a body corporate.
Note: Because of subsection 4B(3) of the Crimes Act 1914, the maximum
penalty that may be specified in accordance with paragraph (a) in an
infringement notice given to a body corporate may be 5 times greater
than the maximum penalty that may be specified in accordance with
that paragraph in an infringement notice given to an individual.
(3) Paragraph (2)(b) does not apply if:
(a) the penalty for the offence may be determined wholly or
partly by reference to:
(i) an amount of duty that may be, or would have been,
payable; or
(ii) the value of particular goods; and
(b) it is possible to determine that amount or that value.
243Y Infringement notices—forfeiture of goods that are prohibited
imports if infringement notice paid
(1) Goods are 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; and
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Section 243Z
266 Customs Act 1901
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(b) a person pays a penalty to the Commonwealth under an
infringement notice as an alternative to prosecution for an
offence for a contravention of paragraph 233(1)(b)
(importing prohibited imports) in relation to the goods.
(2) In addition:
(a) the title to the goods immediately vests in the
Commonwealth to the exclusion of all other interests in the
goods; and
(b) the title cannot be called into question.
(3) The goods must be dealt with and disposed of in accordance with
the directions of the Comptroller-General of Customs.
(4) Subsections (1) and (2) cease to apply if the infringement notice is
withdrawn.
243Z Infringement notices—right of compensation in certain
circumstances for goods disposed of or destroyed
(1) Despite the disposal or destruction of goods taken to be condemned
as forfeited to the Crown under subsection 243Y(1), a person may
apply to a court of competent jurisdiction for compensation under
this section.
(2) A right to compensation exists if:
(a) the goods were not prohibited imports; and
(b) the goods were not used or otherwise involved in the
commission of an offence; and
(c) the person establishes, to the satisfaction of the court, that he
or she is the rightful owner of the goods.
(3) If a right to compensation exists under subsection (2), the court
must order the payment by the Commonwealth to the person of an
amount equal to the market value of the goods at the time of their
disposal or destruction.
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Customs prosecutions Part XIV
Section 244
Customs Act 1901 267
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
Part XIV—Customs prosecutions
244 Meaning of Customs prosecution
Customs prosecutions are proceedings:
(a) for the recovery of penalties under this Act, other than
pecuniary penalties referred to in section 243B; or
(b) for the condemnation of ships, aircraft or goods seized as
forfeited.
245 Institution of prosecutions
(1) Customs prosecutions may be instituted by the
Comptroller-General of Customs by action, information or other
appropriate proceeding:
(a) in the Supreme Court of a State;
(b) in the Supreme Court of the Australian Capital Territory;
(c) in the Supreme Court of the Northern Territory;
(d) in a County Court or District Court of a State;
(e) in a Local Court, being a Local Court of full jurisdiction, of
South Australia or of the Northern Territory; or
(f) in a court of summary jurisdiction of a State, of the
Australian Capital Territory or of the Northern Territory.
(2) Where a Customs prosecution for a pecuniary penalty that, but for
this section, would exceed 400 penalty units is instituted in a Court
referred to in paragraph (1)(d) or (e), the amount of that penalty
that exceeds 400 penalty units shall be taken to have been
abandoned.
(4) Where a Customs prosecution for a pecuniary penalty that, but for
this subsection, would exceed 200 penalty units is instituted in a
court referred to in paragraph (1)(f), the amount of that penalty that
exceeds 200 penalty units shall be taken to have been abandoned.
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Section 247
268 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
247 Prosecutions in accordance with practice rules
Every Customs prosecution in a court referred to in
subsection 245(1) may be commenced prosecuted and proceeded
with in accordance with any rules of practice (if any) established
by the Court for Crown suits in revenue matters or in accordance
with the usual practice and procedure of the Court in civil cases or
in accordance with the directions of the Court or a Judge.
248 State Court practice
Subject to the provisions of this Act the provisions of the law
relating to summary proceedings in force in the State or Territory
where the proceedings are instituted shall apply to all Customs
prosecutions before a Court of summary jurisdiction in a State or
Territory, and an appeal shall lie from any conviction order for
condemnation or order of dismissal to the Court and in the manner
provided by the law of the State or Territory where such conviction
or order is made for appeals from convictions or orders of
dismissal, and notwithstanding anything to the contrary in the law
of the State or Territory, an appeal shall lie from an order of
dismissal to any court to which and in the manner in which an
appeal lies from a conviction.
249 Commencement of prosecutions
Customs prosecutions may be instituted at any time within 5 years
after the cause thereof.
250 Information to be valid if in words of Act
All informations summonses other originating processes
convictions condemnations and warrants shall suffice if the offence
or forfeiture is set forth as nearly as may be in the words of this
Act.
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Section 250A
Customs Act 1901 269
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250A Property in goods subject to customs control
Where in any proceedings on behalf of the Commonwealth in
relation to any goods subject to customs control it is necessary to
allege any property in the goods, the goods may be alleged to be
the property of the Collector without mentioning his or her name.
251 No objection for informality
No objection shall be taken or allowed to any information,
summons or other originating process for any alleged defect
therein in substance or in form or for any variance between such
information, summons or other originating process and the
evidence adduced at the hearing in support thereof, and the Court
shall at all times make any amendment necessary to determine the
real question in dispute or which may appear desirable, and if any
such defect or variance shall appear to the Court to be such that the
defendant has been thereby deceived or misled it shall be lawful
for the Court upon such terms as it may think just to adjourn the
hearing of the case to some future day.
252 Conviction not to be quashed
No conviction warrant of commitment or condemnation order or
other proceeding matter or thing done or transacted in relation to
the execution or carrying out of any Customs Act shall be held
void quashed or set aside by reason of any defect therein or want of
form and no party shall be entitled to be discharged out of custody
on account of such defect.
253 Protection to witnesses
No witness on behalf of the Minister, Comptroller-General of
Customs or Collector in any Customs prosecution shall be
compelled to disclose the fact that he or she received any
information or the nature thereof or the name of the person who
gave such information, and no officer appearing as a witness shall
be compelled to produce any reports made or received by the
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Section 254
270 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
officer confidentially in his or her official capacity or containing
confidential information.
254 Defendant competent witness
(1) In every Customs prosecution the defendant shall be competent to
give evidence.
(2) In every Customs prosecution except for an indictable offence or
for an offence directly punishable by imprisonment the defendant
shall be compellable to give evidence.
255 Averment of prosecutor sufficient
(1) In any Customs prosecution the averment of the prosecutor or
plaintiff contained in the information, complaint, declaration or
claim shall be prima facie evidence of the matter or matters
averred.
(2) This section shall apply to any matters so averred although:
(a) evidence in support or rebuttal of the matter averred or of any
other matter is given by witnesses; or
(b) the matter averred is a mixed question of law and fact, but in
that case the averment shall be prima facie evidence of the
fact only.
(3) Any evidence given by witnesses in support or rebuttal of a matter
so averred shall be considered on its merits and the credibility and
probative value of such evidence shall be neither increased nor
diminished by reason of this section.
(4) The foregoing provisions of this section shall not apply to:
(a) an averment of the intent of the defendant; or
(b) proceedings for an indictable offence or an offence directly
punishable by imprisonment.
(5) This section shall not lessen or affect any onus of proof otherwise
falling on the defendant.
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Section 256
Customs Act 1901 271
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256 Proof of proclamation etc.
The production of the Gazette containing any proclamation gazette
notice or regulation appearing to have been issued or made under
this Act or the production of any document certified by the
Comptroller-General of Customs to be a true copy of, or extract
from any such proclamation, gazette notice, or regulation issued or
made under this Act shall be prima facie evidence of the issue or
making of such proclamation, gazette notice, or regulation, and that
the same is in force.
257 Conduct by directors, employees or agents
(1) Where, in a Customs prosecution in respect of any conduct
engaged in by a body corporate, it is necessary to establish the state
of mind of the body corporate, it is sufficient to show that a
director, employee or agent of the body corporate, being a director,
employee or agent by whom the conduct was engaged in within the
scope of his or her actual or apparent authority, had that state of
mind.
(2) Any conduct engaged in on behalf of a body corporate:
(a) by a director, employee or agent of the body corporate within
the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or
agreement (whether express or implied) of a director,
employee or agent of the body corporate, where the giving of
such direction, consent or agreement is within the scope of
the actual or apparent authority of the director, employee or
agent;
shall be deemed, for the purposes of this Act, to have been engaged
in also by the body corporate.
(3) Where, in a Customs prosecution in respect of any conduct
engaged in by a person other than a body corporate, it is necessary
to establish the state of mind of the person, it is sufficient to show
that an employee or agent of the person, being an employee or
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Section 259
272 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
agent by whom the conduct was engaged in within the scope of his
or her actual or apparent authority, had that state of mind.
(4) Any conduct engaged in on behalf of a person other than a body
corporate:
(a) by an employee or agent of the person within the scope of the
actual or apparent authority of the employee or agent; or
(b) by any other person at the direction or with the consent or
agreement (whether express or implied) of an employee or
agent of the first-mentioned person, where the giving of such
direction, consent or agreement is within the scope of the
actual or apparent authority of the employee or agent;
shall be deemed, for the purposes of this Act, to have been engaged
in also by the first-mentioned person.
(5) A reference in this section to the state of mind of a person includes
a reference to the knowledge, intention, opinion, belief or purpose
of the person and the person’s reasons for his or her intention,
opinion, belief or purpose.
259 Collector may levy on goods in his or her possession
When any pecuniary penalty adjudged against any person is unpaid
the Collector may levy the same by sale of any goods belonging to
such person which may then or thereafter be subject to customs
control.
261 Imprisonment not to release penalty
No person shall be twice imprisoned upon the same conviction but
the suffering of imprisonment for non-payment of a penalty shall
not release the penalty or affect the right of the Commonwealth to
collect the amount in any manner provided by this Act other than
by imprisonment of the person convicted.
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Section 263
Customs Act 1901 273
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263 Parties may recover costs
In a Customs prosecution, whether commenced before or after the
commencement of this section, a court may award costs against a
party, and, where an amount of costs is awarded against a party
other than the prosecutor, section 259 and any provision of a law of
a State or Territory that, by virtue of an Act other than this Act,
applies in relation to the recovery of pecuniary penalties under this
Act apply in relation to the recovery of the amount of costs so
awarded as if it were a pecuniary penalty adjudged to be paid by
the party under this Act.
264 Application of penalties
(1) All penalties and forfeitures recovered under any Customs Act
shall be applied to such purposes and in such proportions as the
Comptroller-General of Customs may direct.
(2) This section does not apply to:
(a) penalties recovered in proceedings under subsection 243B(1);
(b) penalties recovered in proceedings instituted by a member of
the Australian Federal Police; or
(c) forfeitures of narcotic-related goods.
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Part XV Tenders for rights to enter goods for home consumption at concessional rates
Section 265
274 Customs Act 1901
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Part XV—Tenders for rights to enter goods for
home consumption at concessional rates
265 Interpretation
(1) In this Part:
determined, in relation to a quantity or a value, means determined
in accordance with a tender.
item of a Customs Tariff and proposed item of a Customs Tariff
have the same respective meanings as in Part XVI.
particular goods includes goods included in a particular class or
kind of goods.
scheme means a scheme formulated by the Minister under
section 266.
266 Tender schemes
(1) The Minister may, by instrument in writing, formulate a scheme
for calling, and dealing with, tenders for the right to enter for home
consumption during a period, or each of a number of periods, a
determined quantity of particular goods, or particular goods of a
determined value, at concessional rates of duty.
(2) A call for tenders that relates to determined quantities of particular
goods shall include a statement that, for the purposes of the
application of the Customs Undertakings (Penalties) Act 1981 and
the Customs Securities (Penalties) Act 1981 in relation to the
particular goods the subject of the call, the value of the goods is to
be calculated by reference to a value set out in the statement as the
value of an appropriate unit of the goods.
(3) In determining the value of an appropriate unit of particular goods
to be set out in a statement referred to in subsection (2), the
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Section 267
Customs Act 1901 275
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Minister shall have regard to the average value of the
corresponding unit in relation to goods of the same kind that were
imported into Australia and entered for home consumption during
the financial year that ended on the 30 June immediately preceding
the date on which the call for tenders is made.
(4) A call for tenders shall include a statement that, for the purposes of
the application of the Customs Undertakings (Penalties) Act 1981
and the Customs Securities (Penalties) Act 1981 in relation to the
particular goods the subject of the call, the prescribed percentage
of the value of the goods is to be the percentage set out in the
statement.
267 Undertakings relating to tenders
(1) Where, in accordance with a call for tenders made under a scheme,
a person furnishes a tender for the right to enter for home
consumption during a period, or each of a number of periods, a
quantity to be determined in accordance with that tender of
particular goods, or particular goods of a value to be determined in
accordance with that tender, at rates of duty to be determined in
accordance with that tender, that tender shall not be considered
unless it is accompanied by an undertaking in writing by that
person, in terms satisfactory to the Comptroller-General of
Customs, that, if that tender is accepted and:
(a) the Customs Tariff Act 1995 is so altered or proposed to be so
altered that rates of duty determined in accordance with that
tender are set out in items, or proposed items, of a Customs
Tariff that are expressed to apply to goods as prescribed by
by-law; and
(b) the Comptroller-General of Customs makes a determination
under section 273 by virtue of which those items or proposed
items apply to the quantity determined in accordance with
that tender of those goods, or the quantity of those goods
having the value determined in accordance with that tender,
to be entered for home consumption by that person during
that period, or each of those periods, as the case may be;
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Section 267
276 Customs Act 1901
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the person will, during that period, or each of those periods, as the
case may be, enter for home consumption under:
(c) any of those items, or proposed items; or
(d) any appropriate item, or proposed item, of a Customs Tariff
that is not expressed to apply to goods as prescribed by
by-law;
that quantity of those goods, or the quantity of those goods having
that value.
(2) An undertaking referred to in subsection (1) that relates to a
determined quantity of goods shall include a statement
acknowledging that, for the purposes of the application of the
Customs Undertakings (Penalties) Act 1981 and the Customs
Securities (Penalties) Act 1981 in relation to the goods to which
the undertaking relates, the value of those goods is to be calculated
by reference to the value per unit of those goods as set out in the
statement, being the value per unit set out in the statement
included, in accordance with subsection 266(2), in the relevant call
for tenders.
(3) An undertaking referred to in subsection (1) shall include a
statement acknowledging that, for the purposes of the application
of the Customs Undertakings (Penalties) Act 1981 and the Customs
Securities (Penalties) Act 1981 in relation to the goods to which
the undertaking relates, the prescribed percentage of the value of
the goods is to be the percentage set out in the statement, being the
percentage set out in the statement included, in accordance with
subsection 266(4), in the relevant call for tenders.
(4) In this section, a reference to the relevant call for tenders in
relation to an undertaking, shall be read as a reference to the call
for tenders in accordance with which the tender to which the
undertaking relates was furnished.
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Section 268
Customs Act 1901 277
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268 Transfers of rights to enter goods for home consumption at
concessional rates of duty
(1) A scheme may provide for the transfer, with the approval of the
Comptroller-General of Customs, from one person to another of a
right to enter for home consumption during a period, or each of a
number of periods, a specified quantity of particular goods, or
particular goods of a specified value, at concessional rates of duty.
(2) The Comptroller-General of Customs shall not give an approval to
a transfer under a scheme of a right to enter for home consumption
a specified quantity of particular goods, or particular goods of a
specified value, unless the transferee:
(a) gives an undertaking, in writing, in terms satisfactory to the
Comptroller-General of Customs, that, if by virtue of a
determination under section 273 the items, or proposed items,
of a Customs Tariff to which the undertaking given by the
transferor in relation to the goods related were to apply to
goods entered for home consumption by the transferee in the
exercise of the right, the transferee will, in the exercise of
that right, enter for home consumption those goods, or the
quantity of those goods having that value, under any of those
items or proposed items or under any appropriate item, or
proposed item, of a Customs Tariff that is not expressed to
apply to goods as prescribed by by-law; and
(b) if so required by a Collector, gives a security for payment of
any penalty in connection with the undertaking that the
transferee may become liable to pay to the Commonwealth
under the Customs Undertakings (Penalties) Act 1981.
(3) An undertaking referred to in subsection (2) that relates to a
specified quantity of goods shall include a statement
acknowledging that, for the purposes of the application of the
Customs Undertakings (Penalties) Act 1981 in relation to the
goods to which the undertaking relates, the value of those goods is
to be calculated by reference to the value per unit of those goods as
set out in the statement, being a value per unit that was set out in
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Section 269
278 Customs Act 1901
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the corresponding statement in the undertaking given by the
transferor in relation to those goods.
(4) An undertaking referred to in subsection (2) shall include a
statement acknowledging that, for the purposes of the application
of the Customs Undertakings (Penalties) Act 1981 in relation to the
goods to which the undertaking relates, the prescribed percentage
of the value of the goods is to be the percentage set out in the
statement, being the percentage set out in the corresponding
statement in the undertaking given by the transferor in relation to
those goods.
269 Revocation or variation of undertaking
A person who has given an undertaking in accordance with
section 267 or 268 may, with the approval of the
Comptroller-General of Customs, revoke or vary that undertaking.
269A Recovery of penalties
A penalty payable by a person under the Customs Undertakings
(Penalties) Act 1981 or the Customs Securities (Penalties) Act
1981 is a debt due to the Commonwealth, and the Commonwealth
may recover the amount of the penalty by action in a court of
competent jurisdiction.
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Section 269B
Customs Act 1901 279
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Division 1—Preliminary
269B Interpretation
(1) In this Part, unless the contrary intention appears:
capital equipment means goods, which if imported into Australia,
would be goods to which Chapters 84, 85, 86, 87, 89 or 90 of
Schedule 3 to the Customs Tariff Act 1995 would apply.
Customs Tariff Act 1995 includes that Act as proposed to be
altered by a Customs Tariff alteration proposed, or intended to be
proposed, in the Parliament.
gazettal day, in relation to a TCO application, means:
(a) unless paragraph (b) applies—the day on which the
Comptroller-General of Customs publishes a notice in
respect of the application in the Gazette under
subsection 269K(1); or
(b) if, in accordance with section 269N, the Comptroller-General
of Customs publishes a notice in respect of the application in
the Gazette under subsection 269K(1) in substitution for an
earlier notice—the day on which the Comptroller-General of
Customs publishes that substituted notice.
goods produced in Australia has the meaning given by
section 269D.
last day for submission means:
(a) in relation to an original TCO application:
(i) so far as concerns a person invited by the
Comptroller-General of Customs under section 269M to
lodge a submission in respect of the TCO application—
the day fixed in the notice inviting that submission; and
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(ii) so far as concerns any other person—the day occurring
50 days after the gazettal day; and
(b) in relation to an amended TCO application:
(i) so far as concerns a person invited under
paragraph 269L(4B)(a) to lodge a further submission in
respect of the amended TCO application—the day
occurring 14 days after the notification containing that
invitation; and
(ii) so far as concerns any other person—the day occurring
14 days after publication of a notice under
paragraph 269L(4B)(b) inviting submissions in relation
to the amended application.
lodged, in relation to a TCO application, includes taken to be
lodged because of the operation of section 269J.
ordinary course of business has the meaning given by
section 269E.
prescribed item means an item in Schedule 4 to the Customs Tariff
Act 1995 that is expressed to apply to goods that a TCO declares
are goods to which the item applies.
repair, in relation to goods, includes renovate.
substitutable goods, in respect of goods the subject of a TCO
application or of a TCO, means goods produced in Australia that
are put, or are capable of being put, to a use that corresponds with a
use (including a design use) to which the goods the subject of the
application or of the TCO can be put.
TCO means a tariff concession order made under section 269P or
269Q or taken to be made under section 269P or 269Q because of
the operation of section 269SC.
TCO application means:
(a) an application for a TCO under section 269F; or
(b) an application for a TCO under section 269F as amended
under section 269L; or
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(c) a proposal for the issue of a TCO that is to be taken under
section 269J to be a TCO application.
(2) Despite the definition of days in section 4, Sundays and public
holidays are counted as days for the purpose of computing a period
for the purposes of this Part but nothing in this subsection
derogates from the operation of section 36 of the Acts
Interpretation Act 1901.
(3) In determining whether goods produced in Australia are put, or are
capable of being put, to a use corresponding to a use to which
goods the subject of a TCO, or of an application for a TCO, can be
put, it is irrelevant whether or not the first-mentioned goods
compete with the second-mentioned goods in any market.
269C Interpretation—core criteria
For the purposes of this Part, a TCO application is taken to meet
the core criteria if, on the day on which the application was lodged,
no substitutable goods were produced in Australia in the ordinary
course of business.
269D Interpretation—goods produced in Australia
(1) For the purposes of this Part, goods, other than unmanufactured
raw products, are taken to be produced in Australia if the goods are
wholly or partly manufactured in Australia.
(2) For the purposes of this Part, goods are to be taken to have been
partly manufactured in Australia if at least one substantial process
in the manufacture of the goods was carried out in Australia.
(3) Without limiting the meaning of the expression substantial process
in the manufacture of the goods, any of the following operations
or any combination of those operations does not constitute such a
process:
(a) operations to preserve goods during transportation or storage;
(b) operations to improve the packing or labelling or marketable
quality of goods;
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(c) operations to prepare goods for shipment;
(d) simple assembly operations;
(e) operations to mix goods where the resulting product does not
have different properties from those of the goods that have
been mixed.
269E Interpretation—the ordinary course of business
(1) For the purposes of this Part, other than section 269Q, goods (other
than made-to-order capital equipment) that are substitutable goods
in relation to goods the subject of a TCO application are taken to
be produced in Australia in the ordinary course of business if:
(a) they have been produced in Australia in the 2 years before
the application was lodged; or
(b) they have been produced, and are held in stock, in Australia;
or
(c) they are produced in Australia on an intermittent basis and
have been so produced in the 5 years before the application
was lodged;
and a producer in Australia is prepared to accept an order to supply
them.
(2) For the purposes of this Part, substitutable goods, in respect of
goods the subject of a TCO application, are taken to have been
produced in Australia in the ordinary course of business if:
(a) a producer in Australia could produce substitutable goods, in
respect of goods the subject of the TCO application, with
existing facilities; and
(b) the substitutable goods the producer could produce would be
made-to-order capital equipment; and
(c) in the 5 years before the application was lodged, the producer
has made goods requiring the same labour skills, technology
and design expertise as the substitutable goods the producer
could produce; and
(d) the producer is prepared to accept an order to supply
substitutable goods in respect of goods the subject of the
TCO application.
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(3) In this section:
made-to-order capital equipment means a particular item of
capital equipment:
(a) that is made in Australia on a one-off basis to meet a specific
order rather than being the subject of regular or intermittent
production; and
(b) that is not produced in quantities indicative of a production
run.
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Section 269F
284 Customs Act 1901
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Division 2—Making and processing TCO applications
269F Making a TCO application
(1) A person may apply to the Comptroller-General of Customs for a
tariff concession order in respect of goods.
(2) An application must:
(a) be in writing; and
(b) be in an approved form; and
(c) contain such information as the form requires; and
(d) be signed in the manner indicated in the form.
(3) Without limiting the generality of paragraph (2)(c), a TCO
application must contain:
(a) a full description of the goods to which the application
relates; and
(b) a statement of the tariff classification that, in the opinion of
the applicant, applies to the goods; and
(c) if the applicant is not proposing to make use of the TCO to
import the goods to which the application relates into
Australia on the applicant’s own behalf—the identity of the
importer for whom the applicant is acting; and
(d) particulars of all the inquiries made by the applicant
(including inquiries made of prescribed organisations) to
assist in establishing that there were reasonable grounds for
believing that, on the day on which the application was
lodged, there were no producers in Australia of substitutable
goods.
(4) A TCO application may be lodged:
(a) by leaving it at a place that has been allocated for lodgement
of TCO applications by notice published on the Department’s
website; or
(b) by posting it by prepaid post to a postal address specified in
the approved form; or
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Section 269FA
Customs Act 1901 285
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(c) by sending it by fax to a fax number specified in the
approved form;
and the application is taken to have been lodged when the
application, or a fax of the application, is first received by an
officer of Customs.
(5) The day on which an application is taken to have been lodged must
be recorded on the application.
269FA The applicant’s obligation
It is the responsibility of an applicant for a TCO to establish, to the
satisfaction of the Comptroller-General of Customs, that, on the
basis of:
(a) all information that the applicant has, or can reasonably be
expected to have; and
(b) all inquiries that the applicant has made, or can reasonably be
expected to make;
there are reasonable grounds for asserting that the application
meets the core criteria.
269G Withdrawing a TCO application
(1) A person who has lodged a TCO application under section 269F
may withdraw the application at any time before a decision is made
under section 269P or 269Q in relation to that application.
(2) A withdrawal of a TCO application:
(a) must be in writing; and
(b) must be lodged with the Comptroller-General of Customs in
the same manner, and is taken to be lodged on the same day,
as is specified in relation to a TCO application; and
(c) must have the day of its lodgement recorded.
(3) If a notice informing of the lodgement of a TCO application is
published in the Gazette before that application is withdrawn, the
Comptroller-General of Customs must publish in the Gazette, as
soon as practicable after the withdrawal is lodged, a notice:
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(a) stating that the TCO application has been withdrawn; and
(b) describing the goods to which the TCO application related;
and
(c) specifying the Gazette number and date of the previous
notice relating to the TCO application; and
(d) specifying the date of withdrawal of the TCO application.
269H Screening the application
(1) Not later than 28 days after a TCO application is lodged, the
Comptroller-General of Customs must:
(a) if he or she is satisfied:
(i) that the application complies with section 269F; and
(ii) that, having regard to the information disclosed in the
application and to the particulars of the inquiries made
by the applicant, there are reasonable grounds for
believing that the applicant has discharged the
responsibility referred to in section 269FA; and
(b) if he or she is not aware of any producer in Australia of
substitutable goods;
by notice in writing given to the applicant, inform the applicant
that the application is accepted as a valid application; and
(c) if he or she is not so satisfied; or
(d) if he or she is aware of such a producer;
by notice in writing given to the applicant, inform the applicant
that the application is rejected and of the reasons for the rejection.
(2) If the Comptroller-General of Customs has not, within that period,
accepted or rejected the application, this Part has effect as if the
Comptroller-General of Customs had, immediately before the end
of that period, informed the applicant, by notice in writing, that the
application is accepted as a valid application.
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Section 269HA
Customs Act 1901 287
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269HA Comptroller-General of Customs may reject a TCO
application in relation to goods referred to in
section 269SJ
(1) If, at any time during the period starting from the receipt of a TCO
application and ending with the making of a TCO, the
Comptroller-General of Customs becomes satisfied that the goods
to which the application relates are goods in respect of which,
under subsection 269SJ(1), the Comptroller-General of Customs is
prevented from making a TCO, the Comptroller-General of
Customs must:
(a) reject the application; and
(b) by notice in writing given to the applicant, inform the
applicant that the application is rejected and of the reason for
the rejection.
(2) If, at any time after the publication of a notice in the Gazette under
subsection 269K(1), the Comptroller-General of Customs rejects
the application to which the notice relates under subsection (1), the
Comptroller-General of Customs must, as soon as practicable after
rejecting the application, publish a notice in the Gazette stating that
the application has been rejected and giving the reason for the
rejection.
269J Applications taken to be lodged in certain circumstances
(1) If the Comptroller-General of Customs decides that it is desirable
to consider making a TCO despite the absence of a TCO
application, the Comptroller-General of Customs may declare, in
writing, that he or she has so decided.
(2) A declaration under subsection (1) must include a proposal for the
issue of the TCO in respect of the goods referred to in the
declaration.
(3) If the Comptroller-General of Customs makes a declaration under
this section, this Part has effect as if:
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(a) the proposal contained in the declaration were a TCO
application lodged under section 269F on the day on which
the declaration is made; and
(b) the application had been accepted under section 269H as a
valid application on that day.
269K Processing a valid application
(1) As soon as practicable after accepting a TCO application as a valid
application, the Comptroller-General of Customs must publish a
notice in the Gazette:
(a) stating that the application has been lodged; and
(aa) identifying the applicant; and
(ab) if the applicant is not proposing to make use of the TCO to
import the goods to which the application relates into
Australia on the applicant’s own behalf—identifying the
importer for whom the applicant is acting; and
(b) providing a description of the goods to which the application
relates including a reference to the Customs tariff
classification that, in the opinion of the Comptroller-General
of Customs, applies to the goods; and
(c) inviting any persons who consider that there are reasons why
the TCO should not be made to lodge a submission with the
Comptroller-General of Customs not later than 50 days after
the gazettal day.
(2) A submission must:
(a) be in writing; and
(b) be in an approved form; and
(c) contain such information as the form requires; and
(d) be signed in the manner indicated in the form.
(3) A submission:
(a) must be lodged with the Comptroller-General of Customs in
the same manner, and is taken to be lodged on the same day,
as is specified in relation to a TCO application; and
(b) must have the day of its lodgement recorded.
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Section 269L
Customs Act 1901 289
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(4) If a person lodges a submission later than 50 days after the gazettal
day in respect of a TCO application without being invited by the
Comptroller-General of Customs to do so under section 269M, the
Comptroller-General of Customs must not take the submission into
account in determining whether to make a TCO.
269L Amendment of TCO applications
(1) If a person lodges a submission in respect of a TCO application
within 50 days after the gazettal day, the Comptroller-General of
Customs must, within 14 days after the end of that 50 day period,
give the applicant for the TCO a notice in writing setting out:
(a) the name and address of each person who has lodged a
submission within that period; and
(b) a short statement of the grounds on which each submission is
based.
(2) The applicant may, within 28 days of receiving a notice under
subsection (1) and having regard to the grounds on which each
submission was made, notify the Comptroller-General of Customs,
in writing, that he or she proposes to amend the application by
altering the description of the goods the subject of the application,
and set out in that notice the proposed amendment.
(3) The applicant must not, under subsection (2), propose an
amendment of an application:
(a) that would cause the goods to which the application relates to
be covered by a different Customs tariff classification to the
one notified by the Comptroller-General of Customs in the
Gazette under section 269K; or
(b) that would do otherwise than narrow the description of the
goods as set out in the application.
(4) As soon as practicable after, but not more than 7 days after, a
proposed amendment of a TCO application was notified to the
Comptroller-General of Customs, the Comptroller-General of
Customs must consider the proposed amendment and:
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(a) if the Comptroller-General of Customs is satisfied that the
proposed amendment does not contravene subsection (3)—
the Comptroller-General of Customs must inform the
applicant that he or she is so satisfied and that
subsection (4B) applies accordingly; or
(b) if the Comptroller-General of Customs is not so satisfied—
the Comptroller-General of Customs must inform the
applicant that he or she is not so satisfied and of the reasons
for not being so satisfied.
(4A) If the Comptroller-General of Customs is not satisfied that a
proposed amendment of a TCO does not contravene subsection (3),
the Comptroller-General of Customs must continue to consider the
application as it was originally made.
(4B) If the Comptroller-General of Customs is satisfied that the
proposed amendment does not contravene the requirements of
subsection (3), the Comptroller-General of Customs must, within
14 days after becoming so satisfied:
(a) notify the proposed amendment to each person who lodged a
submission referred to in subsection (1) and, subject to the
operation of subsections (5) and (6), invite that person, if he
or she considers there are reasons not dealt with in the
original submission why the TCO as proposed to be amended
should not be made, to lodge a further submission within 14
days after being so notified; and
(b) publish a notice in the Gazette setting out the amended
description in relation to the application and inviting persons
who consider that there are reasons why the TCO as
proposed to be amended should not be made to lodge a
submission with the Comptroller-General of Customs no
later than 14 days after the publication of that notice.
(4C) The notification and subsequent publication of an amendment of a
TCO application does not affect the gazettal day in relation to the
application or any time limits calculated by reference to that
gazettal day.
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Section 269M
Customs Act 1901 291
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(5) If a person who lodged a submission referred to in subsection (1)
notifies the Comptroller-General of Customs, in writing, within 14
days after being notified of a proposed amendment, that he or she
no longer objects to the TCO application, the submission is taken
to have been withdrawn.
(6) If a person who lodged a submission referred to in subsection (1)
does not so notify the Comptroller-General of Customs, he or she
is taken to wish to proceed with the submission as if it were a
submission made in respect of the amended application.
269M Comptroller-General of Customs may invite submissions or
seek other information, documents or material
(1) If the Comptroller-General of Customs considers that, in relation to
a particular TCO application, a person may have reason to oppose
the making of the TCO to which the application relates, he or she
may, by notice in writing, invite the person to lodge a written
submission with the Comptroller-General of Customs within a
period specified in the notice ending not later than 150 days after
the gazettal day.
(2) A submission must:
(a) be in writing; and
(b) be in an approved form; and
(c) contain such information as the form requires; and
(d) be signed in the manner indicated in the form.
(3) A submission:
(a) must be lodged with the Comptroller-General of Customs in
the same manner, and is taken to be lodged on the same day,
as is specified in relation to a TCO application; and
(b) must have the day of its lodgement recorded.
(4) If the Comptroller-General of Customs considers that, in relation to
a particular TCO application, any person (including the applicant
or a person who has lodged a submission with the
Comptroller-General of Customs) may be able to supply
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Section 269N
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information or produce a document or material relevant to the
consideration of the application, the Comptroller-General of
Customs may, by notice in writing, request the supply of the
information in writing or the production of the document or
material within a period specified in the notice and ending not later
than 150 days after the gazettal day.
(5) If a person refuses or fails to lodge a submission under
subsection (1) or to supply information or produce a document or
material under subsection (4) within the period allowed but
subsequently lodges that submission, supplies the information or
produces the document or material, the Comptroller-General of
Customs must not take that submission, information, document or
material into account in determining whether to make a TCO.
(6) At any time during the period of 150 days starting on the gazettal
day, the Comptroller-General of Customs may, for the purpose of
dealing with a TCO application, and despite Part 6 of the
Australian Border Force Act 2015, give a copy of all, or of a part,
of the application to a prescribed organisation with a view to
obtaining the advice of the organisation in relation to the question
whether there are producers in Australia of substitutable goods.
269N Reprocessing of TCO applications
(1) If, after gazettal day in respect of a TCO application but before a
decision is made on the application, the Comptroller-General of
Customs is satisfied that:
(a) because of an amendment of a Customs Tariff; or
(b) having regard to a decision of a court or of the
Administrative Appeals Tribunal; or
(c) having regard to written advice on the matter given by an
officer of Customs;
the tariff classification that was stated in the notice published in the
Gazette under section 269K to apply to the goods the subject of the
application has not, with effect from the gazettal day or a later day,
applied to the goods, the Comptroller-General of Customs must
take action to reprocess the application.
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Section 269N
Customs Act 1901 293
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(2) If the Comptroller-General of Customs is satisfied that, in
publishing a notice in the Gazette under section 269K in relation to
a TCO application, there has been a transcription error in the
description of the goods the subject of the application including the
tariff classification that is stated to apply to the goods, the
Comptroller-General of Customs must take action to reprocess the
application.
(3) Where the Comptroller-General of Customs is required to take
action under subsection (1) or (2), he or she must, as soon as
practicable after becoming so required, notify:
(a) the applicant; and
(b) all persons from whom submissions in relation to the
application have been received; and
(c) all persons from whom submissions in relation to the
application have been sought;
that, for the reasons specified in subsection (1) or (2), it is
necessary to reprocess the application and that a new notice of the
application will be published in the Gazette for that purpose.
(4) As soon as practicable after giving a notice under subsection (3),
the Comptroller-General of Customs must publish in the Gazette a
new notice under subsection 269K(1) in relation to the TCO
application in substitution for the notice previously published.
(5) A person who had lodged a submission in relation to the original
notice published under section 269K in respect of a TCO
application may notify the Comptroller-General of Customs in
writing, not later than 50 days after the day of publication of the
substituted notice under that section, that he or she wishes to
proceed with the submission, or wishes to proceed with it subject
to stated modifications, as if it had been provided in response to the
substituted notice and, where the Comptroller-General of Customs
is so notified, the submission is to be treated as if it had been so
provided on the day of that notification.
(6) If a TCO is made in respect of a TCO application that is
reprocessed in accordance with this section, the day on which the
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TCO is to be taken to come into force is unaffected by the decision
to reprocess that application.
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Section 269P
Customs Act 1901 295
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Division 3—Making and operation of TCOs
269P The making of a standard TCO
(1) If a TCO application in respect of goods, other than goods sent out
of Australia for repair, has been accepted as a valid application
under section 269H, the Comptroller-General of Customs must
decide, not later than 150 days after the gazettal day, whether or
not he or she is satisfied, having regard to:
(a) the application; and
(b) all submissions lodged with the Comptroller-General of
Customs before the last day for submissions; and
(c) all information supplied and documents and material
produced to the Comptroller-General of Customs in
accordance with a notice under subsection 269M(4); and
(d) any inquiries made by the Comptroller-General of Customs;
that the application meets the core criteria.
(2) If the Comptroller-General of Customs fails to make a decision
under subsection (1) in respect of a TCO application within 150
days after the gazettal day, the Comptroller-General of Customs is
taken, for the purposes of subsection (1), at the end of that period,
to have made a decision that he or she is not satisfied that the
application meets the core criteria.
(3) If the Comptroller-General of Customs is satisfied that the
application meets the core criteria, he or she must make a written
order declaring that the goods the subject of the TCO application
are goods to which a prescribed item specified in the order applies.
(4) The TCO must include:
(a) a description of the goods the subject of the order including a
reference to the Customs tariff classification that, in the
opinion of the Comptroller-General of Customs, applies to
the goods; and
(b) a statement of the day on which the TCO is to be taken to
have come into force; and
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Section 269Q
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(c) if subsection 269SA(1) applies in relation to the TCO—a
statement of the day on which it ceases to be in force.
269Q The making of a TCO for goods requiring repair
(1) If a TCO application in respect of goods sent out of Australia for
repair has been accepted as a valid application under section 269H,
the Comptroller-General of Customs must decide, not later than
150 days after the gazettal day, whether or not he or she is
satisfied, having regard to:
(a) the application; and
(b) all submissions lodged with the Comptroller-General of
Customs before the last day for submissions; and
(c) all information supplied and documents and material
produced to the Comptroller-General of Customs in
accordance with a notice under subsection 269M(4);
that there is no one in Australia capable of repairing those goods in
the ordinary course of business.
(2) If the Comptroller-General of Customs fails to make a decision
under subsection (1) in respect of a TCO application within 150
days after the gazettal day, the Comptroller-General of Customs is
taken, for the purposes of subsection (1), at the end of that period,
to have made a decision that he or she is not satisfied of the matters
referred to in that subsection in relation to the application.
(3) If the Comptroller-General of Customs is satisfied of the matters
referred to in subsection (1) in relation to the application, he or she
must make a written order declaring that the goods the subject of
the TCO application are goods to which a prescribed item specified
in the order applies.
(4) The TCO must include:
(a) a description of the goods the subject of the order including a
reference to the Customs tariff classification that, in the
opinion of the Comptroller-General of Customs, applies to
the goods; and
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Customs Act 1901 297
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(b) a statement of the day on which the TCO is to be taken to
have come into force.
(5) For the purposes of this section, a person is taken to be capable of
repairing goods in the ordinary course of business if, in the
ordinary course of business, the person is prepared to accept orders
to repair those goods.
269R Notification of TCO decisions
(1) As soon as practicable after the Comptroller-General of Customs
makes a decision under subsection 269P(1) or 269Q(1), the
Comptroller-General of Customs must:
(a) by notice in writing, inform the applicant of the decision; and
(b) by notice published in the Gazette, inform all other interested
persons of the decision.
(2) If the decision has led to the making of a TCO, the notice given to
the applicant and published in the Gazette must include full
particulars of the TCO.
(3) A failure to comply with subsection (1) or (2) does not affect the
validity of the TCO concerned.
269S Operation of TCOs
(1) Subject to the operation of subsection 269SA(2), a TCO is to be
taken to have come into force on:
(a) unless paragraph (b) applies—the day on which the
application for the TCO was lodged; or
(b) if there was more than one application for the TCO—the day
on which the earliest application for the TCO was lodged.
(2) Subject to section 269SG, a TCO applies in relation to the goods
the subject of the TCO that were or are first entered for home
consumption on or after the day on which the TCO is taken to have
come into force.
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Section 269SA
298 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
(3) Subject to the operation of subsection 269SA(1), a TCO continues
in force until it is revoked under section 269SC or 269SD.
269SA Consequence of commencement or cessation of production
before TCO decision
(1) If the Comptroller-General of Customs is satisfied, in relation to a
TCO application:
(a) that the application meets the core criteria; and
(b) that on a day (the production start-up day) occurring later
than the day on which the application was lodged but before
the making of the decision on the application, substitutable
goods in relation to the goods the subject of the application
commenced to be produced in Australia; and
(c) that if the production start-up day had occurred on the day on
which the application was lodged, the Comptroller-General
of Customs would not have been satisfied that the application
met the core criteria;
the TCO that the Comptroller-General of Customs makes continues
in force only until the production start-up day.
(2) If the Comptroller-General of Customs is satisfied, in relation to a
TCO application:
(a) that the application does not meet the core criteria; and
(b) that on a day (the production close-down day) occurring later
than the day on which the application was lodged but before
the making of the decision on the application, substitutable
goods in relation to the goods the subject of the application
ceased to be produced in Australia; and
(c) that if the production close-down day had occurred on the
day on which the application was lodged the
Comptroller-General of Customs would have been satisfied
that the application met the core criteria;
the Comptroller-General of Customs must make a TCO in
accordance with section 269P, but the TCO is in force only from
the production close-down day.
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Section 269SB
Customs Act 1901 299
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Division 4—Revocation of TCOs
269SB Request for revocation of TCOs
(1) If:
(a) a TCO is in force on a particular day; and
(b) a person claiming to be a producer in Australia of
substitutable goods in relation to the goods covered by the
order is of the view that if:
(i) the TCO were not in force on that particular day; and
(ii) that particular day were the day on which the TCO
application was lodged;
the TCO would not have been made;
the person may request the Comptroller-General of Customs to
revoke the order.
(2) A request must:
(a) be in writing; and
(b) be in an approved form; and
(c) contain such information as the form requires; and
(d) be signed in the manner indicated in the form.
(3) A request for revocation may be lodged:
(a) by leaving it at a place that has been allocated for the
lodgement of TCO applications by notice published on the
Department’s website; or
(b) by posting it by prepaid post to a postal address specified in
the approved form; or
(c) by sending it by fax to a fax number specified in the
approved form;
and the request is taken to have been lodged when the request, or a
fax of the request, is first received by an officer of Customs.
(4) The day on which the request is to be taken to be lodged, must be
recorded on the request.
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Section 269SC
300 Customs Act 1901
Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17
269SC Processing requests for revocation of TCOs
(1) Not later than 60 days after lodgement of a request for revocation
of a TCO, and after having regard to the request and to any other
information, document or material given to the
Comptroller-General of Customs under section 269SF, the
Comptroller-General of Customs must decide whether or not he or
she is satisfied:
(a) that, on the day of lodgement of the request, the person
requesting the revocation of the TCO is a producer in
Australia of goods that are substitutable goods in relation to
the goods the subject of the order; and
(b) that, if the TCO were not in force on that day but that day
were the day on which the application for that TCO was
lodged, the Comptroller-General of Customs would not have
made the TCO.
(1A) As soon as practicable after receiving a request for revocation of a
TCO, the Comptroller-General of Customs must publish a Gazette
notice stating:
(a) that the request has been lodged; and
(b) the date that the request was lodged; and
(c) the full particulars of the TCO to which the request relates.
(2) If the Comptroller-General of Customs fails to make a decision in
respect of a request for the revocation of a TCO within 60 days
after lodgement of the request, the Comptroller-General of
Customs is taken, for the purposes of subsection (1), at the end of
that period, to have decided that he or she is not satisfied of the
matters referred to in that subsection in relation to the request.
(3) If the Comptroller-General of Customs is satisfied of the matters
referred to in subsection (1) in relation to a request for revocation
of a TCO, the Comptroller-General of Customs must make an
order revoking the TCO.
(4) If the Comptroller-General of Customs is satisfied of the matters
referred to in subsection (1) in relation to a request for revocation
of a TCO but is also satisfied that if:
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(a) the TCO were not in force on the day of lodgement of the
request; and
(b) that day were the day of lodgment of an application for
another TCO (the narrower TCO) in respect only of goods
covered by the TCO that are not produced in Australia by the
person making the request;
the Comptroller-General of Customs would have made such a
narrower TCO, he or she must:
(c) revoke the TCO; and
(d) make, in its place, such a narrower TCO.
(5) If the Comptroller-General of Customs is not satisfied of the
matters referred to in subsection (1) in relation to a request for
revocation of a TCO, the Comptroller-General of Customs must
refuse the request.
(6) An order under subsection (3) or (4) revoking a TCO comes into
force on the day on which the request to revoke the TCO was
lodged.
(7) If a narrower TCO is made in place of another TCO that is revoked
in subsection (4), that narrower TCO comes into force, for the
purposes of this Part, from the date of effect of the revocation of
the other TCO, as if it had been made under section 269P or 269Q.
(8) Subsections 269SC(6) and (7) have effect despite section 12 of the
Legislation Act 2003.
269SD Revocation at the initiative of Comptroller-General of
Customs
(1AA) If:
(a) a TCO is in force on a particular day; and
(b) the Comptroller-General of Customs believes that if:
(i) the TCO were not in force on that day; and
(ii) that day were the day on which the application for the
TCO was lodged;
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Section 269SD
302 Customs Act 1901
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the Comptroller-General of Customs would not have made
the TCO;
the Comptroller-General of Customs may, not later than 14 days
after that day, publish a notice in the Gazette:
(c) declaring his or her intention, subject to subsection (1AB), to
make an order revoking the TCO with effect from that
particular day (the intended revocation day); and
(d) inviting any person who might be affected by the revocation
of that TCO to give a written submission to the
Comptroller-General of Customs within 28 days of the notice
concerning the proposed revocation.
(1AB) Within 60 days after the date of publication of the notice referred
to in subsection (1AA), the Comptroller-General of Customs must,
after consideration of the matters raised in any submissions made
in response to the invitation and of any other relevant matters:
(a) decide whether or not he or she is satisfied of the matters
referred to in paragraph (1AA)(b); and
(b) if the Comptroller-General of Customs is so satisfied—make
an order revoking the TCO with effect from the intended
revocation day.
(1) If the Comptroller-General of Customs is satisfied that a TCO is no
longer required because the general tariff rate in respect of the
goods the subject of the order has been reduced to “Free”, the
Comptroller-General of Customs may make an order revoking the
TCO with effect from the day the tariff rate was so reduced.
(1A) If the Comptroller-General of Customs is satisfied on any day that
a TCO is no longer required because, in the 2 years preceding that
day, the TCO has not been quoted in an import entry to secure a
concessional rate of duty, the Comptroller-General of Customs
may make an order revoking the TCO with effect from that day.
(2) If the Comptroller-General of Customs is satisfied that:
(a) because of an amendment of a Customs tariff; or
(b) having regard to a decision of a court or of the
Administrative Appeals Tribunal; or
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(c) having regard to written advice on the matter given by an
officer of Customs;
the tariff classification that is stated in a TCO to apply to the goods
the subject of the TCO has not, with effect from a particular day,
applied to those goods, the Comptroller-General of Customs must:
(d) make an order revoking the TCO with effect from that day;
and
(e) make a new TCO in respect of the goods with effect from the
revocation.
(2A) If, because of an amendment of a Customs Tariff, the
Comptroller-General of Customs is satisfied that the tariff
classification that is stated in a TCO to apply to the goods the
subject of the TCO will not apply to those goods from a particular
day, the Comptroller-General of Customs may:
(a) make an order revoking the TCO with effect from that day;
and
(b) make a new TCO in respect of the goods with effect from
that day.
(3) If the Comptroller-General of Customs is satisfied that, in making
a TCO, there has been a transcription error in the description of
goods the subject of the TCO including the tariff classification that
is stated in the TCO to apply to the goods, the Comptroller-General
of Customs may:
(a) make an order revoking the TCO with effect from the day the
TCO came into force; and
(b) make a new TCO in respect of goods that corrects the error
with effect from the revocation.
(4) The particular day referred to in subsection (2) may be the day on
which the TCO that is revoked came into force or a later day.
(5) If the Comptroller-General of Customs is satisfied that a TCO
contains a description of the goods the subject of the order in terms
of their intended end use, the Comptroller-General of Customs may
make an order revoking the TCO with effect from the revocation.
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Section 269SE
304 Customs Act 1901
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(6) This section has effect despite section 12 of the Legislation Act
2003.
269SE Notification of revocation decisions
(1) As soon as practicable after the Comptroller-General of Customs
makes a decision under subsection 269SC(1), the
Comptroller-General of Customs must:
(a) by notice in writing, inform the applicant of the decision; and
(b) by notice published in the Gazette, inform all other interested
persons of the decision.
(2) As soon as practicable after the Comptroller-General of Customs
makes a decision to make an order under subsection 269SD(1AB),
(1) or (1A), (2), (2A) or (5), the Comptroller-General of Customs
must, by notice published in the Gazette, inform all interested
persons of the decision.
(3) If the decision referred to in subsection (1) or (2) has led to the
making of an order revoking a TCO or both to the making of an
order revoking a TCO and the making of a new TCO, the notice of
that decision given to the applicant and published in the Gazette
must include full particulars of the order or orders.
(4) A failure to comply with subsection (1), (2) or (3) does not affect
the validity of the decision concerned or of any order or orders to
which it has led.
269SF Comptroller-General of Customs may seek information,
documents or material relating to revocation
(1) If the Comptroller-General of Customs considers that, in relation to
a request for revocation of a TCO, any person (including the
person who made the request) may be able to supply information
or produce a document or material relevant to the consideration of
the request, the Comptroller-General of Customs may, by notice in
writing, request the supply of the information or the production of
the document or material within a period specified in the notice
and ending not later than 60 days after receiving the request.
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Customs Act 1901 305
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(2) Any information provided in satisfaction of a request under
subsection (1) must be provided in writing.
(3) If a person refuses or fails to supply information or produce a
document or material under subsection (1) within the period
allowed but subsequently supplies the information or produces the
document or material, the Comptroller-General of Customs must
not take that information, document or material into account in
determining whether to revoke a TCO.
269SG Effect of revocation on goods in transit and capital
equipment on order
(1) Subject to subsection (2), if a TCO is revoked under
subsection 269SC(3) or (4) or 269SD(1AB) or (1A), the TCO
ceases to apply in relation to goods entered for home consumption
on or after the day on which the revocation comes into effect.
(2) Despite the revocation of a TCO under subsection 269SC(3) or (4)
or 269SD(1AB) or (1A) in respect of goods, the TCO continues to
apply in relation to:
(a) goods that:
(i) were imported into Australia on or before the day on
which the revocation came into effect; and
(ii) are entered for home consumption, before, on, or within
28 days after, that day; and
(b) goods that:
(i) were in transit to Australia on that day; and
(ii) are entered for home consumption before, on, or within
28 days after, the day on which they were imported into
Australia.
(3) For the purposes of subparagraph (2)(b)(i), goods shall be taken to
be in transit to Australia if, and only if, they have left for direct
shipment to Australia from a place of manufacture, or a warehouse,
in the country from which they are being exported.
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Section 269SG
306 Customs Act 1901
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(4) Where an officer of Customs is satisfied that, after a TCO in
relation to made-to-order capital equipment comes into force but
before its revocation under subsection 269SC(3) or (4) or
269SD(1AB) or (1A), a firm order had been placed for the
purchase of any such equipment, the TCO continues to apply in
relation to the importation into Australia of that capital equipment.
(5) In this section:
made-to-order capital equipment means a particular item of
capital equipment:
(a) that is made on a one-off basis to meet a specific order rather
than being the subject of regular or intermittent production;
and
(b) that is not produced in quantities indicative of a production
run.
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Section 269SH
Customs Act 1901 307
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Division 5—Miscellaneous
269SH Internal review
(1) Not later than 28 days after gazettal of a decision (the original
decision) on a TCO application or on a request for revocation of a
TCO, any affected person within the meaning of subsection (13)
who objects to the making of the decision may apply to the
Comptroller-General of Customs for its reconsideration.
(2) An application for reconsideration must:
(a) be in writing; and
(b) include the grounds on which the person objects to the
decision (whether or not those grounds had previously been
considered).
(3) An application for reconsideration:
(a) must be lodged with the Comptroller-General of Customs in
the same manner, and is taken to be lodged on the same day,
as is specified in relation to a TCO application; and
(b) must have the day of its lodgement recorded.
(3A) As soon as practicable after receiving a request for reconsideration
of a decision that leads to the making of a TCO or that refuses to
revoke a TCO, the Comptroller-General of Customs must publish a
Gazette notice stating:
(a) that the request has been lodged; and
(b) the date that the request was lodged; and
(c) the full particulars of the TCO to which the request relates.
(4) Where application is made for reconsideration of a decision made
on a TCO application, the Comptroller-General of Customs, having
regard to:
(a) the TCO application; and
(b) the submissions, information, documents and materials which
the Comptroller-General of Customs was entitled to take into
account in considering the TCO application; and
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Section 269SH
308 Customs Act 1901
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(c) any new matter produced to the Comptroller-General of
Customs by the applicant for reconsideration which, under
subsection (7), the Comptroller-General of Customs is not
prevented from taking into account for that purpose;
must decide, not later than 90 days after the last day for lodgement
of the application for reconsideration, whether to affirm the
original decision or to substitute any other decision that the
Comptroller-General of Customs might have made.
(5) Where application is made for reconsideration of a decision on a
request for revocation, the Comptroller-General of Customs,
having regard to:
(a) the request for revocation; and
(b) the information, documents and materials which the
Comptroller-General of Customs was entitled to take into
account in considering the request; and
(c) any new matter produced to the Comptroller-General of
Customs by the applicant for reconsideration which, under
subsection (7), the Comptroller-General of Customs is not
prevented from taking into account for that purpose;
must decide, not later than 60 days after the last day for lodgement
of the application for reconsideration, whether to affirm the
original decision or to substitute any other decision that the
Comptroller-General of Customs might have made.
(6) If the Comptroller-General of Customs fails to make a decision
under subsection (4) or (5) within the period referred to in that
subsection, the Comptroller-General of Customs is taken, for the
purposes of the reconsideration, at the end of that period, to have
made a decision to affirm the original decision.
(7) For the purposes of subsections (4) and (5), the
Comptroller-General of Customs must not take into account any
new material that is not produced to him or her by the applicant for
reconsideration of an original decision within the period of 28 days
after notification of the original decision in the Gazette.
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(8) Where the Comptroller-General of Customs, on reconsidering an
original decision, decides to substitute for that decision any
decision that he or she might have made, the substituted decision is
to be taken to have been made when the original decision was
made.
(9) If the substituted decision involves the making of a TCO, or of an
order revoking a TCO, that TCO or revocation order comes into
force on the day on which, if the original decision had involved
making the TCO or order revoking a TCO, that TCO or order
would have come into force.
(10) As soon as practicable after the Comptroller-General of Customs
makes a decision under subsection (4) or (5) on an application for
reconsideration, the Comptroller-General of Customs must:
(a) by notice in writing inform the applicant for reconsideration
of the decision made on the reconsideration; and
(b) by notice published in the Gazette, inform all other interested
persons of the decision made on that reconsideration.
(11) If the decision on an application for reconsideration has led to the
making of an order or orders, the notice of the decision given to the
applicant for reconsideration and published in the Gazette must
include full particulars of the order or orders.
(12) A failure to comply with subsection (10) does not affect the
validity of any decision on a reconsideration or of any order or
orders to which it has led.
(13) In subsection (1):
affected person means:
(a) in relation to a decision on a TCO application:
(i) the applicant for the TCO; or
(ii) any person who lodged a submission before the last day
for submissions in relation to the TCO application; or
(iii) any person who, in the opinion of the
Comptroller-General of Customs, was not reasonably
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Section 269SHA
310 Customs Act 1901
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able to lodge a submission in relation to the TCO
application within 50 days of the gazettal day; and
(b) in relation to a decision on a request for revocation:
(i) the person requesting the revocation; or
(ii) any other person whose interests are affected by the
decision made on the request.
269SHA Administrative Appeals Tribunal Review of
reconsideration decisions
(1) For the purpose of an application to the Administrative Appeals
Tribunal under section 273GA for review of a decision under
subsection 269SH(4) or (5) (a reconsideration decision),
application may be made by any person who is an affected person
in relation to that decision within the meaning of
subsection 269SH(13).
(2) If an affected person applies to the Tribunal for review of a
reconsideration decision, the Comptroller-General of Customs
must, as soon as practicable after being notified of the application
or of the first such application, publish in the Gazette:
(a) particulars of the decision (including any relevant TCO
number or TCO application number) in respect of which such
an application for review has been made; and
(b) the name of the person who made such an application; and
(c) sufficient particulars to identify the review proceedings
before the Tribunal.
(3) Any person who had not applied under section 273GA for review
of a reconsideration decision but whose interests are affected by
the decision (whether or not that person is an affected person
within the meaning of subsection 269SH(13)) may apply under
subsection 30(1A) of the Administrative Appeals Tribunal Act
1975 to be made a party to the proceedings within 60 days of the
publication under subsection (2) or within such further period as
the Tribunal allows.
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Section 269SJ
Customs Act 1901 311
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(4) The Tribunal must not grant a person applying to be joined as a
party to proceedings for review of a reconsideration decision an
extension of the period of 60 days referred to in subsection (3)
unless it is satisfied that the person was not reasonably able to
apply within the period.
(5) Any document on which a party to proceedings for review of a
reconsideration decision before the Administrative Appeals
Tribunal intends to rely must, subject to the provisions of the
Administrative Appeals Tribunal Act 1975:
(a) be filed with the Tribunal; and
(b) be served on the other parties to the proceeding;
not less than 28 days before the date set for hearing, unless the
Tribunal makes an order permitting the document to be filed and
served within a lesser period or to be introduced at the hearing
without being so filed or served.
(6) In deciding whether to make such an order, the Tribunal must have
regard to whether there is any reasonable cause for the document
not being made available at least 28 days before the date of the
hearing.
269SJ TCOs not to apply to goods described by reference to their
end use or certain goods
(1) The Comptroller-General of Customs must not make a TCO in
respect of goods:
(aa) described in terms other than generic terms; or
(a) described in terms of their intended end use; or
(b) declared by the regulations to be goods to which a TCO
should not extend.
(1A) Without limiting the meaning of the reference in paragraph (1)(aa)
to goods described in generic terms, goods are taken not to be so
described if their description, either directly or by implication,
indicates that they are goods of a particular brand or model, or that
a particular part number applies to the goods.
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Section 269SK
312 Customs Act 1901
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(2) If a regulation is made for the purposes of paragraph (1)(b) in
respect of goods to which a TCO applies, that TCO must be taken,
to the extent that it covers those goods, to have been revoked by
the Comptroller-General of Customs on the day those regulations
came into effect.
(3) Where a TCO is taken to have been revoked under subsection (2)
to the extent that it covers goods the subject of a regulation made
for the purposes of paragraph (1)(b), the Comptroller-General of
Customs must, as soon as practicable after the making of the
regulation, by notice published in the Gazette, inform interested
persons:
(a) of the fact that the regulation has been made; and
(b) of its effect on the TCO; and
(c) of the day on which the TCO is taken to have been so
revoked.
269SK TCOs not to contravene international agreements
If the Comptroller-General of Customs is satisfied that, in
accordance with the obligations of Australia under an agreement
(including a treaty or convention) between Australia and another
country or other countries, the rate of duty attaching to the
importation of goods (whether or not the produce of a particular
country) is not to be less than a particular minimum rate, the
Comptroller-General of Customs must not make a TCO that would
result in a contravention of those obligations.
Authorised Version C2017C00219 registered 12/07/2017