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1999
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
House of
Representatives
EXPLANATORY
MEMORANDUM
(Circulated
by authority of the Minister for Justice and Customs
Senator the Honourable Amanda
Vanstone)
ISBN: 0642 425167
. The purpose of this Bill is
to:
• amend the Customs Act 1901 (the Customs
Act) to provide for increased penalties for a range of import and export
offences, including custodial sentences;
• amend the Customs Act and the Australian
Postal Corporation Act 1989 (the Australian Postal Corporation Act) to enhance
Customs’ powers to detect illicit drugs;
• amend the Customs Act to make a number of
technical amendments related to the drugs and other prohibited goods
provisions;
and
• amend the
Customs Administration Act 1985 (the Customs Administration Act) in relation
to the appointment of the Chief Executive Officer.
. Schedule 1 of the Bill proposes amendments to the Australian Postal Corporation Act 1989 to provide Customs officers with the power to open international postal articles reasonably believed to consist of, or contain, drugs or certain other chemical compounds. This power is currently limited to Australia Post employees.
. Schedule 2 of the Bill proposes amendments to the Customs Act 1901 to provide for increased penalties for certain import and export offences; to enhance Customs powers to conduct external personal searches by the use of new technology; to extend the power of arrest to cover the new offences; to extend the period for which Customs may retain goods seized for evidentiary purposes and to improve arrangements for disposal of abandoned goods.
. Schedule 3 of the Bill proposes amendments to the Customs Administration Act 1985 to allow for appointment or reappointment of the Chief Executive Officer of Customs for periods of up to 5 years.
. The measures proposed in Schedules 1, 2 and 3 – amendments to the Customs Act 1901 and the Australian Postal Corporation Act 1989 and the Customs Administration Act 1985 – have no direct financial impact, and regulatory impact is minor or machinery in nature. Schedule 1 extends to Customs officers powers currently exercised by employees of Australia Post. Schedule 2 provides for increased penalties for goods that are already controlled under Customs (Prohibited Imports) and Customs (Prohibited Exports) Regulations. Any increased workload arising from the new criminal penalties will be dealt with in the normal budgetary context. Schedule 2 also removes current restrictions on jurisdictional limits, extends existing arrest powers to the new offences and provides for procedural improvements in dealing with abandoned goods and with evidence seized during an investigation. Schedule 3 has no financial impact.
1. This clause provides for the Act to be cited as the
Customs Legislation Amendment (Criminal Sanctions and Other Measures) Act
1999.
Clause
2 Commencement
2. Subclause (1) provides that
subject to subclauses (2) and (3), the Act commences on the day on which it
receives the Royal Assent.
3. Subclause (2)
provides that Schedule 1 (amendments of the Australian Postal Corporation Act
1989 ), Schedule 2 (amendments of the Customs Act 1901) and Schedule 3
(amendments of the Customs Administration Act 1985) commence on a day or days to
be fixed by Proclamation. Subclause (3) provides that if an item of Schedules
1, 2 or 3 has not commenced within 6 months of the day on which the Act receives
the Royal Assent, that item commences at the end of that 6 month period. This
is the standard provision that applies to commencement by
Proclamation.
Clause
3 Schedule(s)
4. This clause is the formal enabling
provision for the 3 Schedules to the Act, providing that each Act that is
specified in a Schedule to this Act is amended as indicated.
5. The clause also provides that any other item in
a Schedule has effect according to its terms. This is a standard enabling
clause for transitional, savings and application items in amending legislation.
They appear in this Act as items 5 and 11 of Schedule 2.
1. This item amends paragraph 90N(1)(a) to provide that
the opening of a mail article as allowed by new section 90T is not
prohibited conduct under the APC Act.
Item
2 Paragraph 90S(1)(a)
2. This items adds a new
paragraph (aa) to subsection 90S of the APC Act to indicate that section 90S
of the APC Act will not apply in the circumstances set out in new section
90T. Section 90S currently requires that a customs officer who has
reasonable grounds to believe that an article of mail contains items on which
customs duty or sales tax is payable, or things that are being carried in
contravention of a law of the Commonwealth relating to the importation into, or
exportation from, Australia of that thing, must request an authorised examiner
to open the article of mail for the Customs officer to inspect. This amendment
will remove the requirement that a customs officer must request an authorised
officer to open the article in the circumstances set out in new section
90T.
Item 3 After section
90S
3. This item inserts new section 90T.
This section provides that where a Customs officer has reason to believe that
the postal article consists of, or contains, drugs or other chemical compounds
that are being carried in contravention of a law of the Commonwealth relating to
the importation into, or exportation from, Australia the article may be opened
by a Customs officer. A Customs officer who opens the article may examine the
article to check whether it consists of such drugs or other chemical
compounds.
4. If the article opened by the Customs
officer does not consist of, or contain, prohibited drugs or other chemical
compounds or any other thing on which duty or sales tax is payable or which is
being carried in contravention of a law of the Commonwealth relating to the
importation into, or exportation from, Australia of that thing, the Customs
officer must close up the article and return it to the normal course of
carriage. If the article does consist of, or contain, prohibited drugs or other
chemical compounds or any other such thing, the article and its contents must be
dealt with in accordance with applicable Commonwealth laws.
5. Regulations may be made prescribing the
procedure to be followed by a Customs officer when closing an article and
returning it to the normal course of post.
Item 4
Subsection 90V(2)
6. This item amends subsection
90V(2) to clarify that that provision only relates to articles opened by
Australia Post.
Item 5 After subsection
90V(2)
7. This item inserts a new subsection
90V(2A) that provides that where an article is opened under section 90T by a
Customs officer, then, before the article is returned to the normal course of
carriage, the Customs officer must cause to be endorsed on the article a
notification that the article has been opened by the Australian Customs Service
and that explains the purpose for which it was
opened.
Item 6 Subsection
90V(3)
8. This item amends subsection 90V(3)
consequent upon the insertion of new subsection
90V(2A).
Item 7 At the end of subsection
90ZC
9. This item adds a new subsection
90ZC(2) to clarify that the indemnity given to Australia Post and employees
of Australia Post in relation to acts done or omitted in good faith extends to
actions carried out by Customs officers under new section 90T or new
subsection 90V(2A).
1. This item increases the period before which things
seized as evidential material by an officer or authorised person must be
returned, from 60 days to 180 days.
2. Under
s.203R anything seized under a search warrant or under section 203B(3) or
203C(3) of the Act must be returned if the reason for its seizure no longer
exists or it is decided that it is not to be used in evidence. Applications may
be made to a magistrate (section 203S) to extend time for retention, but
difficulties have been experienced because of the relatively short period for
which retention is currently permitted.
Item
2 Paragraph 203S(1)(a)
3. This item increases the
period before which a magistrate’s order must be sought for continued
retention of things seized as evidential material by an officer or authorised
person under a search warrant, from 60 days to 180 days. This item is
consequential to the amendment proposed in item
1.
Item 3 Paragraphs 205D(2)(b), (c), (d), and
(e)
4. This item increases the period before which
seized goods which have been claimed must be returned, if proceedings have not
been commenced or a magistrate’s order for continued retention has not
been made, from 60 days to 180 days.
Item
4 Paragraph 205E(1)(a)
5. This item increases the
period before which a magistrate’s order must be sought for continued
retention of things seized as evidential material by an officer or authorised
person under a seizure warrant, from 60 days to 180 days.
Item
5 Application
6. This item provides that the
amendments made by items 1, 2, 3 and 4 do not apply in relation to things seized
before the commencement of those items.
Item
6 Paragraph 210(1)(b)
7. This item extends the
power of an officer of Customs or police to arrest without warrant to take
account of the new offence regime introduced by item
17.
Item 7 After section 218
8. This item inserts a new section 218A which
provides for the disposal of goods that a Collector has reason to believe are
not required to be entered and that have been abandoned at a Customs place.
Where the goods satisfy those criteria, the Collector may dispose of the goods
in any manner he or she thinks fit.
9. New
subsection 218A(2) provides that a Collector is taken to have reason to
believe that goods have been abandoned if no one has claimed ownership of the
goods within a specified period of time. This period of time will be prescribed
in the regulations and will not exceed 120 days.
10. New subsection 218A(4) provides that a
person may at any time seek compensation in relation to goods found at a Customs
place that have been so disposed. New section 4AB of the Customs Act to be
inserted by the Border Protection Legislation Amendment Act 1999 provides for
compensation for acquisition of property and will apply in the circumstances of
disposal of goods under this section.
11. New
subsection 218A(5) provides that the Collector must create and maintain
records specifying in respect of goods found at a Customs place, the date they
were found, the date and manner of disposal and, if the goods are sold, the
amount realised on the sale and the amount offset against that amount in respect
of expenses incurred by Customs in relation to those
goods.
Item 8 After subparagraph
219R(1)(c)(ii)
12. This item amends the power of an
officer of Customs or police officer to carry out a consensual external search,
to include a new requirement, that the officer comply with the provisions of
new section 219RAA which is to be inserted by item
10.
Item 9 After subsection
219R(11)
13. This item inserts new provisions
concerning the use of prescribed equipment in the conduct of an external search.
14. Division 1B of Part XII provides for three
discrete types of personal searches. They
are:
frisk search (Subdivision A);
external search (Subdivision B), and
internal search (Subdivision
C).
15. The amendments proposed in this item
introduce the use of equipment to assist Customs in conducting and recording the
conduct of an external search only.
16. New
subsection 219(11A) permits the use of prescribed equipment (which may
include equipment such as ion scanning, x-ray or thermal imaging equipment) in
the carrying out of an external search, but only if the person to be searched
has consented and the requirements of new section 219RAB are met, or
alternatively, if an order to search made by a Justice or officer under
subsection 219R(2) directs that the equipment may be
used.
17. New subsection 219(11B) ensures
that if equipment is used to obtain samples from a detainee’s body, the
samples must only be taken from the outer surface of the detainee’s
hand.
18. New subsection 219(11C) makes it
clear that the search may be continued without the use of the equipment, if the
use of the equipment produces an indication that the detainee is or may be
carrying prohibited goods.
Item 10 After
219R
19. This item inserts new sections 219RAA,
219RAB, 219RAC, 219RAD, 219RAE, and 219RAF to provide the regime for the use
of prescribed equipment in external searches.
New
section 219RAA Videotape record may be made of external
search
20. New section 219RAA sets out the
conditions with which an officer of Customs must comply in obtaining consent for
the use of videotape or other electronic means to record the conduct of an
external search.
21. The purpose of the conditions
is to ensure that the person who is the subject of the external search may make
an informed decision about whether to have the conduct of the search recorded by
video or other electronic means.
22. New
subsection 219RAA(1) provides that in inviting a detainee to consent to an
external search, an officer of Customs must have told the detainee that a
videotape or other electronic record may be made of the search; that such a
record could be used in evidence against the detainee in a court; that the
detainee would be provided with a copy of the recording, and that the
invitation, and any giving of consent, would itself be recorded by audiotape,
videotape or other electronic means, or in writing.
23. New subsection 219RAA(2) obliges
Customs to record the invitation, and any giving of consent, by audiotape,
videotape or other electronic means, or in writing.
24. New subsection 219RAA(3) requires that
the officer making the record of the conduct of a search must be the same sex as
the detainee.
25. New subsection 219RAA(4)
enables an order to conduct an external search made under subsection 219R(2) to
authorise the making of a record of the conduct of the search using videotape or
other electronic means.
26. New subsection
219RAA(5) provides that if, in the course of conducting an external search,
an officer of Customs or a police officer find prohibited goods, then that
officer may, without further consent of the detainee, take a photograph of the
prohibited goods on the person.
New section
219RAB Use of prescribed equipment for external
search
27. New section 219RAB sets out the
conditions with which an officer of Customs must comply in using equipment for
the conduct of an external search.
28. The purpose
of the conditions is to ensure that the person who is the subject of the
external search and who has been invited to have the search conducted by using
the equipment, may make an informed decision about whether to have the search
conducted by using the equipment or by removing articles of
clothing.
New section 219RAC Prescribing equipment
for use in external searches
29. Because of ongoing
advances in the development of new technology, it is necessary for there to be
an ability for Customs to introduce new equipment resulting from such
developments. This item proposes that new equipment be introduced by regulation,
provided the equipment complies with strict requirements, which are set in place
by this section for the benefit of both the person on whom the equipment will be
used as well as the Customs officer using the
equipment.
30. Besides establishing whether the
equipment is effective in detecting prohibited goods on a person, the Chief
Executive Officer of Customs must provide the Minister with a statement
that:
the equipment is safe to use;
it poses minimal risk to the person who agrees to be subject to its use; and
the equipment does not require professional
qualifications to operate it.
31. Prior to making
that statement, the Chief Executive Officer must consult with Commonwealth
authorities (if any) that have expertise or responsibilities relevant to the
equipment or its use.
New section
219RAD Authorising officers to use prescribed equipment for external
search
32. New section 219RAD provides for
the Chief Executive Officer to authorise an officer of Customs for the purposes
of subsection 219RAB(3) to use equipment only if the officer has successfully
completed the training specified in an approved statement describing training in
the operation of the instrument. By virtue of subsection 4(1) of the Customs Act
1901, this statement is a disallowable instrument under section 46A of the Acts
Interpretation Act 1901. This means if either House of Parliament is not
satisfied with the level of training an authorised officer is to be given, a
motion of disallowance may be moved, thereby stopping the
proposal.
33. Although the type of equipment to be
introduced will not require professional qualifications to operate it, the
manufacturers of such equipment in many cases provide training in the operation
of their product. In other cases written material is provided relating to the
operation of the equipment. Customs, in consultation with the manufacturer, will
develop a training program for each type of new equipment introduced. This will
ensure effective and efficient use of the equipment. Such training programs will
be the subject of an approved statement.
34. Only
officers of Customs who have successfully completed such training will be able
to be authorised by the Chief Executive Officer to operate the
equipment.
New section 219RAE Giving a record of
invitation and consent or of order
35. In the
situation where a person invited to consent to the use of prescribed equipment
for an external search under section 219R requests it, new section 219RAE
requires an officer of Customs to give to that person, as soon as is reasonably
practicable:
a copy of the record of the
invitation; and
if the person gave consent - a copy of the record of the
person’s consent.
New section
219RAF Records of results of external
search
36. New section 219RAF concerns the
retention and destruction of videotape or other electronic records, photographs
or human samples made or obtained during or as a result of an external
search.
37. New subsection 219RAF(2)
requires the photograph, image, videotape, electronic record or sample to be
destroyed as soon as practicable if:
a period of
12 months has elapsed since the record was made or the sample taken;
and
relevant proceedings have not been instituted or have
been discontinued.
38. New subsection
219RAF(3) provides that “relevant proceedings”, for the purposes
of new subsection 219RAF(2), are
proceedings:
against the person the subject of the
search;
relating to the prohibited goods; and
in which the photograph, videotape, image, electronic
record or sample is relevant.
39. New subsection
219RAF(4) permits a magistrate, on application by an officer of Customs or
the DPP, to extend the period for which the photograph, videotape, image,
electronic record or sample may be retained. The magistrate must be satisfied
that there are special reasons for extended
retention.
40. New subsection 219RAF(5)
requires the photograph, videotape, image, electronic record or sample to be
destroyed as soon as practicable if the person the subject of the
search:
is found to have committed a relevant
offence but no conviction is recorded; or
is acquitted of a relevant offence and no appeal is lodged against the acquittal, or an appeal is lodged and the acquittal is confirmed or the appeal withdrawn;
unless there is pending an investigation or other
proceedings concerning another offence relating to the prohibited
goods.
41. New subsection 219RAF(6) provides
that for the purposes of subsection 219RAF(5), an offence is relevant
if:
it relates to prohibited goods; and
the photograph, videotape, image, electronic record or
sample relates to the offence.
42. The purpose of
this provision is to protect the privacy of the person who has been subjected to
the use of prescribed equipment. Customs is mindful that some equipment, for
example an x-ray machine, may produce a permanent record of an image of a
person. Similarly, if a sample is taken from a person’s hand for the
purposes of a swab test, such a sample might in theory be indefinitely
retained.
43. This provision ensures that such
things obtained from the use of prescribed equipment may only be retained for a
period of 12 months unless a magistrate orders otherwise. The retention period
of 12 months is considered necessary for circumstances where a person who has
undergone an external search makes a complaint some time later in relation to
the procedure.
Item
11 Application
44. This item provides that the
amendments made by items 8, 9 and 10 only apply to persons detained under
section 219Q or externally searched pursuant to section 219R by force of section
219P, after the commencement of those items.
Item
12 Paragraph 233AB(1)(a)
45. This item and items
13, 14 and 15 concern the penalties applicable to offences against sections 233
and 233A.
46. Section 233 concerns smuggling, the
unlawful importation or exportation of prohibited goods, possession of smuggled
goods or prohibited imports, and possession of a prohibited export with intent
to unlawfully export, but does not deal with narcotic goods.
47. Section 233A concerns the master of a
ship’s or pilot of an aircraft’s responsibility to ensure that his
or her vessel or aircraft is not used to smuggle goods, or to convey prohibited
imports or prohibited exports.
48. This item omits
the requirement in paragraph 233AB(1)(a) that a penalty applicable to the
offences described in section 233 and 233A be not less than two times the amount
of duty that would have been payable on smuggled goods. The removal of this
minimum penalty will enable courts to make fuller use of the range of sentencing
options, such as community service orders or good behaviour bonds, in punishing
smugglers.
Item 13 Paragraph
233AB(1)(b)
49. Items 13, 14 and 15 are all in similar terms and
increase the maximum penalty applicable to the offences described in sections
233 and 233A, from $50,000 to $100,000.
Item
16 Subsection 233BA(2)
50. Section 233BA concerns
the certification of analysis of goods for the purposes of proceedings for an
offence against section 233B, which concerns the importation and exportation of
narcotic goods.
51. Item 16 expands the scope of
section 233BA to encompass the certification of analysis of goods for the
purposes of proceedings for an offence against new section 233BAA, and
also for the purposes of proceedings for an offence against new section
233BAB in so far as that section relates to specified anti-personnel sprays
or gases, radioactive substances, human body tissue or human body
fluid.
Item 17 After section
233B
52. Section 233AB currently imposes pecuniary
penalties for the offences of smuggling, unlawful importation or exportation of
prohibited goods, possession of smuggled goods or prohibited imports, and
possession of a prohibited export with intent to unlawfully
export.
53. This item introduces a new two-tiered
penalty regime for the unlawful importation or exportation of certain prescribed
prohibited goods, which extends to criminal
sanctions.
New section 233BAA Special offence
relating to tier 1 goods
54. New section
233BAA establishes a special offence relating to the unlawful importation or
exportation of specified drugs and other
goods.
55. New subsection 233BAA(1) provides
that specified performance enhancing drugs, specified non-narcotic drugs and
other specified goods may constitute tier 1 goods. The specification of actual
items that will constitute tier 1 goods will be by
regulation.
56. New subsection 233BAA(2)
provides that the regulations must not specify an item as constituting a tier 1
good unless the importation or exportation of the item is already prohibited
(conditionally or absolutely) by the Customs (Prohibited Imports) Regulations or
the Customs (Prohibited Exports) Regulations. Thus, this new section does not
establish a new class of prohibited goods, rather it creates new penalties
relating to the unlawful importation or exportation of existing classes of
prohibited goods.
57. New subsection
233BAA(3) provides that where a critical quantity is specified for a
particular drug, the drug will not constitute a tier 1 drug unless it is of a
quantity that exceeds that critical
quantity.
58. New subsection 233BAA(4)
establishes the offence for knowingly or recklessly importing goods that were
tier 1 goods where the importation of those goods was prohibited. The subsection
imposes a maximum penalty of a fine not exceeding $100,000, or imprisonment for
5 years, or both.
59. New subsection
233BAA(5) establishes the offence for knowingly or recklessly exporting
goods that were tier 1 goods where the exportation of those goods was
prohibited. The subsection imposes a maximum penalty of a fine not exceeding
$100,000, or imprisonment for 5 years, or
both.
60. New subsection 233BAA(6) provides
that a person convicted or acquitted of an offence against new subsection
233BAA(4) or new subsection 233BAA(5) in respect of particular
conduct is not liable to be proceeded against civilly under section
233.
New section 233BAB Special offence relating
to tier 2 goods
61. New subsection 233BAB(1)
provides that specified items including firearms, munitions, warfare items,
knives, chemical compounds (which are used in the manufacture of chemical
weapons), anti-personnel sprays and gases, fissionable or radioactive
substances, human body tissue and fluids, items of child pornography,
counterfeit credit, debit and charge cards and other specified goods may
constitute tier 2 goods. The specification of actual items that will constitute
tier 2 goods will be by regulation.
62. New
subsection 233BAB(2) confirms that the regulations must not specify an item
as constituting a tier 2 good unless the importation or exportation of the item
is already prohibited (conditionally or absolutely) by regulation. Thus, this
new section does not establish a new class of prohibited goods, rather it
creates new penalties relating to the unlawful importation or exportation of
existing classes of prohibited goods.
63. New
subsection 233BAB(3) defines child pornography for the purposes of the
offence. It provides that for the purposes of new subsection 233BAB(1) an
item is taken to be an item of child pornography if is a document or other goods
that depicts a person who is, or appears to be, under the age of 16 years, who
is involved in a sexual pose or sexual activity, and that depiction is likely to
cause offence to a reasonable adult. Section 4 defines “document” as
including books.
64. New subsection
233BAB(4) establishes the offence for knowingly or recklessly importing
goods that were tier 2 goods where the importation of those goods was
prohibited. The subsection imposes a maximum penalty of a fine not exceeding
$250,000, or imprisonment for 10 years, or
both.
65. New subsection 233BAB(5)
establishes the offence for knowingly or recklessly exporting goods that were
tier 2 goods where the exportation of those goods was prohibited. The subsection
imposes a maximum penalty of a fine not exceeding $250,000, or imprisonment for
10 years, or both.
66. New subsection
233BAB(6) provides that a person convicted or acquitted of an offence
against new subsection 233BAB(4) or new subsection 233BAB(5) in
respect of particular conduct is not liable to be proceeded against civilly
under section 233.
New section 233BAC Evidence
relating to approval for import or export
67. This
items concerns goods which would be prohibited imports or prohibited exports if
the necessary permission for import or export is not obtained prior to
importation or exportation.
68. The Customs
(Prohibited Imports) Regulations and the Customs (Prohibited Exports)
Regulations permit the importation and exportation of certain specified goods
where the permission of a specified Minister or an authorised person has been
granted in writing. Additionally, in the case of firearms, accessories and
ammunition, a specific purpose test must be satisfied before permission may be
granted.
69. New section 233BAC provides
that a certificate of an authorised officer to the effect that a person charged
with an offence against new subsection 233BAA(4) or (5) or new
subsection 233BAB(4) or (5) had not obtained the requisite approval at the
time the offence was allegedly committed, is prima facie evidence that the
approval had not been so obtained. It further provides that before such a
certificate can be admitted as evidence in proceedings it must be given to the
person charged with the offence (or his or her solicitor), at least 14 days
before the certificate is sought to be
admitted.
Item 18 Paragraph
235(2)(c)
70. Section 235 concerns penalties for
offences in relation to narcotic goods.
71. This
item and items 19 and 20 amend the penalties relating to offences concerning
narcotic goods, to reflect a comparable increase in penalties for
non-narcotic-related offences proposed by item
17.
72. This item amends the penalties relating to
offences concerning commercial quantities of narcotic goods, from imprisonment
for life to a fine not exceeding $750,000 or imprisonment for life, or
both.
Item 19 Subparagraph
235(2)(d)(i)
73. This item amends the penalties
relating to offences concerning trafficable quantities of narcotic goods other
than cannabis, increasing the penalty from a fine not exceeding $100,000 to a
fine not exceeding $500,000.
Item 20 Subparagraph
235(2)(d)(ii)
74. This item amends the penalties
relating to offences concerning trafficable quantities of cannabis, increasing
the penalty from a fine not exceeding $4,000 to a fine not exceeding
$250,000.
Item 21 Subsections 245(2) and
(4)
75. This item repeals subsection 245(2) and
subsection 245(4). In practice these subsections operate to constrain certain
courts in setting pecuniary penalties for Customs prosecutions by limiting the
amount of penalty that may be imposed. By repealing these subsections and
expressing the penalty in terms of a maximum penalty, the penalty imposed in a
given instance will only be constrained by the sentencing limits that adhere to
the jurisdiction of the relevant court.
1. The Chief Executive Officer of Customs is currently
appointed for a period of 5 years under section 6(1), but may be reappointed.
Item 1 amends the provision to provide that the Chief Executive Officer is to be
appointed for a period of up to five years. No change is made to the
reappointment option.