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This is a Bill, not an Act. For current law, see the Acts databases.
1998-99
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Customs
Amendment Bill (No. 2) 1999
No. ,
1999
(Justice and
Customs)
A Bill for an Act to amend the
Customs Act 1901, and for related purposes
ISBN: 0642 391505
Contents
A Bill for an Act to amend the Customs Act 1901,
and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Customs Amendment Act (No. 2)
1999.
(1) Subject to subsection (2), this Act commences on the day on which it
receives the Royal Assent.
(2) The items of Schedule 1 are taken to have commenced at the same time
as items 2 to 7 of Schedule 1 to the Import Processing Charges Amendment Act
1999.
Subject to section 2, each Act that is specified in a Schedule to
this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
1 Subsection 4(1)
Insert:
insolvent under administration means a person who:
(a) under the Bankruptcy Act 1966 or the law of an external
Territory, is a bankrupt in respect of a bankruptcy from which the person has
not been discharged; or
(b) under the law of an external Territory or the law of a foreign
country, has the status of an undischarged bankrupt;
and includes:
(c) a person any of whose property is subject to control under:
(i) section 50 or Division 2 of Part X of the Bankruptcy Act 1966;
or
(ii) a corresponding provision of the law of an external Territory or the
law of a foreign country; or
(d) a person who has, at any time during the preceding 3 years, executed a
deed of assignment or a deed of arrangement under:
(i) Part X of the Bankruptcy Act 1966; or
(ii) the corresponding provisions of the law of an external Territory or
the law of a foreign country; or
(e) a person whose creditors have, within the preceding 3 years, accepted
a composition under:
(i) Part X of the Bankruptcy Act 1966; or
(ii) the corresponding provisions of the law of an external Territory or
the law of a foreign country.
2 Subsection 4(1)
Insert:
low value cargo has the same meaning as in section
63A.
3 Subsection 4(1)
Insert:
special reporter has the same meaning as in section
63A.
4 Before section 64
Insert:
In this Division:
abbreviated cargo report means a computer cargo report, in
relation to low value cargo of a particular kind, made by a special reporter in
relation to cargo of that kind in accordance with the requirements of section
64AB.
applicant means an applicant under Subdivision C for
registration, or for renewal of registration, as a special reporter in relation
to low value cargo of a particular kind.
application means an application under Subdivision C for
registration, or for renewal of registration, as a special reporter in relation
to low value cargo of a particular kind.
dedicated computer facilities, in relation to a person who is
seeking to be registered, or is or has been registered, as a special reporter in
relation to low value cargo of a particular kind, means computer facilities of
that person that meet the requirements of Subdivision C relating to the making
of abbreviated cargo reports in relation to cargo of that kind, and the storage
of electronic information concerning individual consignments covered by those
reports.
house agreement, in relation to a particular mail-order house
and to a particular registered user proposing to handle consignments from that
house, means a written agreement between that house and that user that includes
provisions:
(a) setting out the arrangements made by the user with the house for the
shipment of low value goods consigned by that house and handled by that user;
and
(b) providing that all such consignments from that house that are to be
handled by that user will be consolidated at a single place of export outside
Australia designated or determined in accordance with the agreement;
and
(c) providing that the house will transmit electronically to the user full
particulars of each such consignment for which an order has been placed
including details of the consignment’s transportation to
Australia.
low value cargo means cargo of one of the following
kinds:
(a) cargo (other than reportable documents) consigned from a particular
mail-order house;
(b) cargo comprising reportable documents;
(c) cargo comprising other goods of a kind prescribed by the
regulations;
being cargo in relation to each single consignment of which:
(d) section 68 does not apply because of paragraph 68(1)(f); and
(e) the total liability for import duty and sales tax does not exceed $50
or such other amount, not exceeding $75, as is from time to time prescribed for
the purposes of this definition.
mail-order house means a commercial establishment carrying on
business outside Australia that sells goods solely in response to orders placed
with it either by mail or electronic means.
notified premises, in relation to a person who is, or has
been, a special reporter in relation to low value cargo of a particular kind,
means:
(a) the premises or all premises indicated in the application, in
accordance with subsection 67EC(3), as places in Australia at which are
located:
(i) dedicated computer facilities for the storage of information relating
to cargo of that kind; or
(ii) documents relating to such information; and
(b) if a special reporter notifies the CEO under subsection 67EF(2) that,
with effect from a particular day, the premises at which all or any of those
facilities or documents will be located is to be changed to another place in
Australia—with effect from that day, the premises at which all of those
facilities and documents will be located.
registered user means a registered user under section 67C in
relation to the Sea Cargo Automation System or the Air Cargo Automation
System.
reportable document means:
(a) any paper or other material on which there is writing; or
(b) any paper or other material on which there are marks, figures, symbols
or perforations having a meaning for persons qualified to interpret them;
or
(c) any paper or other material on which a photographic image or other
image is recorded; or
(d) any article or material from which sounds, images or writing is
capable of being produced with or without the aid of a computer or of some other
device;
but does not include any such paper, article or other material:
(e) that comprises advertising material; or
(f) that does not yet contain the sounds, images or writing for the
carriage of which it was produced.
special reporter means a person who is registered under
Subdivision C as a special reporter in respect of low value cargo of a
particular kind.
5 After subsection 64AB(3A)
Insert:
(3B) An owner of a ship or an aircraft who is a special reporter in
relation to low value cargo of a particular kind must, unless subsection (3C)
applies, transmit each cargo report that relates to low value cargo of that kind
to Customs by computer.
(3C) Subsection (3B) does not affect the obligations imposed on the owner
of a ship or an aircraft to report a particular consignment of low value cargo
in relation to which the owner is a special reporter at any time when the owner
is temporarily unable to transmit to Customs a computer report that covers that
consignment.
(3D) For the purposes of a computer cargo report in relation to low value
cargo of a particular kind, the statement approved under subsection (5) must not
require the special reporter making the report to include information relating
to cargo of that kind at a level of specificity below the level of a submaster
air waybill or an ocean bill of lading, as the case requires.
6 Subsection 64ABC(1)
Omit “A person”, substitute “Subject to subsection (1A),
a person”.
7 Paragraph 64ABC(1)(a)
Omit “an aircraft at a particular airport”, substitute “a
ship or aircraft at a particular port or airport”.
8 After subsection 64ABC(1)
Insert:
(1A) Subsection (1) does not apply to a person who makes a cargo report in
relation to goods that are intended to be, or that have been, unshipped from a
ship except to the extent (if any) that the goods covered by the report are low
value cargo of a particular kind and the person is a special reporter in
relation to those goods.
9 Paragraph 64ABC(1)(c)
Repeal the paragraph, substitute:
(c) that provides:
(i) in the case of a report other than an electronic report made by a
special reporter—particulars of the consignment; and
(ii) in the case of an electronic report made by a special reporter in
relation to low value cargo of a kind to which the reporter’s registration
relates—such information concerning the cargo covered by the report as is
required under subsection 64AB(5); and
10 Division 3A of Part IV
(heading)
Repeal the heading.
11 Before section 67A
Insert:
12 Before Division 4
Insert:
For the purposes of sections 64AB and 64ABC of this Act, and of section 7
of the Import Processing Charges Act 1997, a person or a partnership may,
in accordance with this Subdivision, become a special reporter in relation to
low value cargo of a particular kind.
(1) The CEO must not register a person as a special reporter if:
(a) the applicant is not a registered user; or
(b) the applicant has not reported as a registered user in relation to low
value cargo of that kind in accordance with subsection (2); or
(c) if the applicant is applying to be registered in respect of low value
cargo consigned from a particular mail-order house—the applicant is not a
party to a house agreement with that mail-order house in force at all times
during the 3 consecutive months before the making of the application;
or
(d) the applicant does not have dedicated computer facilities having such
specifications as are determined, in writing, by the CEO for the purpose of this
paragraph, in relation to low value cargo generally, including, in particular,
specifications to ensure that the information maintained by the applicant in
those facilities will not be able to be accessed or altered by unauthorised
persons; or
(e) in the CEO’s opinion:
(i) if the applicant is a natural person—the applicant is not a fit
and proper person to be registered as a special reporter; or
(ii) if the applicant is a partnership—any of the partners is not a
fit and proper person to be a member of a partnership registered as a special
reporter; or
(iii) if the applicant is a company—any director, officer or
shareholder of a company who would participate in the management of the affairs
of the company is not a fit and proper person so to participate; or
(iv) an employee of the applicant who would participate in the management
of the applicant’s dedicated computer facilities is not a fit and proper
person so to participate; or
(v) if the applicant is a company—the company is not a fit and
proper company to be registered as a special reporter.
(2) An applicant for registration as a special reporter in relation to low
value cargo of a particular kind will be taken to have reported as a registered
user in relation to cargo of that kind in accordance with this subsection if the
applicant has, in the capacity of a registered user, made cargo reports
covering:
(a) in the case of low value cargo consigned from a particular mail-order
house to consignees in Australia—at least 5,000 such consignments per
month from that mail-order house during the 3 consecutive months immediately
before making an application under section 67EC; or
(b) in the case of low value cargo comprising reportable documents
consigned from places outside Australia to consignees in Australia—at
least 1,000 individual consignments of such documents per month during the 3
consecutive months immediately before making an application under section 67EC;
or
(c) in the case of low value cargo of another prescribed kind consigned
from a place outside Australia to a consignee in Australia—such number of
consignments of that prescribed kind as may be specified by the
regulations.
(3) The CEO must, in deciding whether a person is a fit and proper person
for the purposes of subparagraph (1)(e)(i), (ii), (iii) or (iv) have regard
to:
(a) any conviction of the person of an offence against this Act committed
within the 10 years immediately before the decision; and
(b) any conviction of the person of an offence punishable by imprisonment
for one year or longer:
(i) against another law of the Commonwealth; or
(ii) against a law of a State or of a Territory;
if that offence was committed within the 10 years immediately before that
decision; and
(c) whether the person is an insolvent under administration; and
(d) whether the person was, in the 2 years immediately before that
decision, a director of, or concerned in the management of, a company
that:
(i) had been, or is being, wound up; or
(ii) had had its registration as a special reporter in relation to any low
value cargo of any kind cancelled by the CEO because of a breach of any
condition to which the registration of the company as a special reporter was
subject; and
(e) whether any misleading information or document has been furnished in
relation to the person by the applicant under subsection 67EC(2), 67ED(5) or
67EK(12); and
(f) if any information or document given by or in relation to the person
was false—whether the applicant knew that the information or document was
false.
(4) The CEO must, in deciding whether a company is a fit and proper
company for the purpose of subparagraph (1)(e)(v), have regard to:
(a) any conviction of the company of an offence:
(i) against this Act; or
(ii) if it is punishable by a fine of $5,000 or more—against another
law of the Commonwealth, or a law of a State or of a Territory;
committed:
(iii) within the 10 years immediately before that decision; and
(iv) at a time when any person who is presently a director, officer or
shareholder of a kind referred to in subparagraph (1)(e)(iii) in relation to the
company was such a director, officer or shareholder; and
(b) whether a receiver of the property, or part of the property, of the
company has been appointed; and
(c) whether the company is under administration within the meaning of the
Corporations Law; and
(d) whether the company has executed, under Part 5.3A of that Law, a deed
of company arrangement that has not yet terminated; and
(e) whether the company has been placed under official management;
and
(f) whether the company is being wound up.
(5) Nothing in this section affects the operation of Part VIIC of the
Crimes Act 1914 (which includes provisions that, in certain
circumstances, relieves persons from the requirement to disclose spent
convictions and requires persons aware of such convictions to disregard
them).
(1) An applicant for registration as a special reporter in respect of low
value cargo of a particular kind may make an application under this subsection
in relation to cargo of that kind.
(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 accompanied by such other documentation as the form requires;
and
(e) be signed in the manner indicated in the form; and
(f) be lodged as required by subsection (4).
(3) Without limiting by implication the generality of the information that
may be required by the approved form, the application must indicate the premises
in Australia at which the dedicated computer facilities of the applicant are
located and the premises in Australia at which documents relating to information
required to be stored on those facilities are or will be located.
(4) An application is taken to have been lodged with Customs when the
application is first received by an officer of Customs designated by the CEO to
receive such applications.
(5) The day on which an application is taken to have been lodged must be
recorded on the application.
(6) For the avoidance of doubt, it is the intention of the Parliament that
a person who seeks to be registered as a special reporter:
(a) if the person seeks that registration in relation to low value cargo
consigned from more than one mail-order house—must make a separate
application for such registration in relation to each such house; and
(b) if the person seeks that registration in relation to low value cargo
comprising reportable documents—must make a separate application for
registration in relation to low value cargo of that kind; and
(c) if the person seeks that registration in relation to low value cargo
of any other kind prescribed by the regulations—must make a separate
application for such registration in relation to each prescribed kind of low
value cargo.
(1) If an application under section 67EC for registration as a special
reporter in relation to low value cargo of a particular kind is lodged, the CEO
must, having regard:
(a) to the terms of the application; and
(b) if additional information is supplied in response to a requirement
under subsection (5)—to that additional information;
decide whether or not to register the applicant in relation to low value
cargo of that kind.
(2) The CEO must make a decision within 60 days after:
(a) if paragraph (b) does not apply—the lodgment of the application;
and
(b) if the CEO requires further information to be supplied under
subsection (5) and the applicant supplies the information in accordance with
that subsection—the receipt of the information.
(3) If the CEO decides to register the applicant in relation to low value
cargo of the kind referred to in the application, the CEO must register the
applicant as a special reporter in respect of low value cargo of that kind and
notify the applicant, in writing, of that decision specifying the day on which
the registration comes into force.
(4) If the CEO decides not to register the applicant in respect of low
value cargo of that kind referred to in the application, the CEO must notify the
applicant, in writing, of that decision setting out the reasons for so
deciding.
(5) If, in considering the application, the CEO decides that he or she
needs further information on any matter dealt with in the application:
(a) the CEO may, by notice in writing to the applicant, require the
applicant to provide such additional information relating to that matter as the
CEO specifies within a period specified in the notice; and
(b) unless the information is given to the CEO within that
period—the applicant is taken to have withdrawn the application.
(1) The registration of a special reporter is subject to:
(a) the conditions set out in this section and section 67EF; and
(b) if the special reporter is registered as a special reporter in respect
of low value cargo consigned from a mail-order house—section 67EG;
and
(c) if regulations under section 67EH apply—that section.
(2) The special reporter must give the CEO written information of any of
the following matters within 30 days after the occurrence of the
matter:
(a) any matter that might, if the reporter were not a special reporter but
were an applicant for registration, cause paragraph 67EB(1)(e) to apply in
relation to the reporter;
(b) if, after the registration, or renewal of registration, of a company
as a special reporter, a person commences to participate, as a director, officer
or shareholder, in the management of the affairs of the company—the fact
of such commencement; and
(c) if, after the registration, or renewal of registration, of a special
reporter, a person commences to participate as an employee of the special
reporter in the management of the dedicated computer facilities of the special
reporter—the fact of such commencement; and
(d) if the special reporter is a partnership—the fact of any change
in the membership of the partnership.
(3) The special reporter must, except in the circumstances referred to in
subsection 64AB(3C), communicate such cargo reports by using dedicated computer
facilities.
(1) A person who is or has been a special reporter must:
(a) store in dedicated computer facilities at notified premises all
information relating to individual consignments that the reporter would, but for
the reporter’s registration under section 67ED or renewal of registration
under section 67EK, be required to give to Customs under section 64AB;
and
(b) for 2 years after the date that an abbreviated cargo report covering a
consignment is transmitted to Customs, retain at notified premises all the
information stored under paragraph (a) in relation to that consignment and also
all physical documents of a prescribed kind that cover or relate to that
consignment.
(2) If, at any time, while a person is, or within 2 years after the person
ceased to be, a special reporter in relation to low value cargo of a particular
kind, the person intends to change the location of notified premises at
which:
(a) all or any of the dedicated computer facilities used to store
information relating to cargo of that kind are situated; or
(b) all or any documents containing information relating to cargo of that
kind required to be stored in such facilities are situated;
the person must, before so doing, notify the CEO in writing of the
intention to change the premises and include particulars of the changes proposed
and of the date on which those changes will take effect.
(3) The special reporter must ensure that the changed premises referred to
in subsection (2) are located in Australia.
(4) The special reporter must provide Customs with online access to the
information stored and retained under subsection (1) and with the capacity to
download that information, or a part of that information, at any time as
required by Customs.
(5) The special reporter must, despite providing Customs with the capacity
to download information referred to in subsection (4), electronically transfer
that information, or a part of that information, to Customs at any reasonable
time as required by Customs.
If a registered user is registered as a special reporter in relation to
low value cargo consigned from a particular mail-order house, the registered
user must:
(a) ensure, at all times while that registered user continues to be a
special reporter in relation to that mail-order house, that there is in force
between the registered user and that mail-order house a house agreement within
the meaning of section 63A; and
(b) if the agreement expires or for any reason is terminated or there is a
breach or an alleged breach of the terms of that agreement—notify the CEO,
in writing, of that expiration or termination or of that breach or alleged
breach.
The regulations may, at any time, provide that:
(a) if a person is first registered as a special reporter after that time;
or
(b) if a person’s registration as a special reporter is renewed
after that time;
that registration, or registration as renewed, is subject to such further
conditions relevant to registration or renewal of registration as a special
reporter under this Subdivision as the regulations specify.
(1) A person who is or has been a special reporter must not breach a
condition of the person’s registration as a special reporter.
Penalty: 50 penalty units.
(2) An offence against subsection (1) is an offence of strict
liability.
If a person is registered as a special reporter in relation to low value
cargo of a particular kind, that registration:
(a) unless paragraph (b) applies—comes into force on a date
specified by the CEO under subsection 67ED(3); and
(b) if it is a renewed registration—comes into force on a date
determined under subsection 67EK(8); and
(c) remains in force for 2 years after it comes into force unless, before
that time, it is cancelled under section 67EM.
(1) A person who is a special reporter in relation to low value cargo of a
particular kind may seek renewal of registration in relation to cargo of that
kind by making and lodging a further application in accordance with the
requirements of section 67EC:
(a) unless paragraph (b) applies—not later than 30 days before the
end of the current period of registration; or
(b) if the CEO is satisfied that, for reasons beyond the control of the
special reporter, it was not possible to meet the requirements of paragraph
(a)—not later than such later date before the end of the period of
registration as the CEO specifies.
(2) Subject to subsection (3), sections 67EB and 67EC apply in relation to
an application for renewal of registration in the same manner as they applied to
the original application.
(3) Subsection 67EB(2) has effect in relation to an application for
renewal of registration:
(a) if the registration relates to a low value cargo consigned from a
particular mail-order house—as if that subsection required the applicant,
as a special reporter, to have reported at least 15,000 consignments of such
cargo from that house during the 3 months immediately before the making of the
application; and
(b) if the registration relates to reportable documents—as if that
subsection required the applicant, as a special reporter, to have reported at
least 3,000 consignments of such cargo during the 3 months immediately before
the making of the application; and
(c) if the registration relates to low value cargo of another prescribed
kind—as if that subsection required the applicant, as a special reporter,
to have reported at least the prescribed number of consignments of cargo of that
kind during the 3 months before the making of the application.
(4) In considering an application for renewal of registration as a special
reporter, if the CEO has varied the specifications in relation to dedicated
computer facilities in any manner, the special reporter must ensure that the
computer facilities meet the specifications as so varied.
(5) If an application for renewal of registration as a special reporter in
relation to low value cargo of a particular kind is lodged, the CEO must, having
regard to the terms of the application and, where additional information is
supplied under subsection (12), to the additional information, decide whether or
not to renew the registration of the applicant in relation to low value cargo of
that kind.
(6) The CEO must make the decision before, or as soon as possible after,
the end of the current period of registration.
(7) If, for any reason, the CEO has not completed the consideration of the
application for renewal of registration at the time when the current period of
registration would, but for this subsection, expire, the current period of
registration is taken to continue until the consideration of the application is
concluded and a resulting decision made.
(8) If the CEO decides to renew the registration of a special reporter in
relation to low value cargo of a particular kind, the CEO must renew the
registration and notify the applicant for renewal, in writing, of that decision
specifying the day on which, in accordance with subsection (10), the renewal of
registration comes into force.
(9) If the CEO decides not to renew the registration of a special reporter
in relation to low value cargo of a particular kind, the CEO must notify the
applicant for renewal, in writing, of that decision setting out the reasons for
so deciding.
(10) If the CEO decides to renew the registration of a special reporter in
relation to low value cargo of a particular kind, that renewal takes effect on
the day following the end of the current period of registration, or of that
period as it is taken to have been extended under subsection (7).
(11) If the CEO refuses to renew the registration of a special reporter in
relation to low value cargo of a particular kind, the registration in relation
to cargo of that kind continues:
(a) until the end of the current period of registration, unless it is
earlier cancelled; or
(b) if the current period of registration is taken to have been extended
under subsection (7)—until the making of the decision to refuse to renew
registration.
(12) If, in considering an application for renewal of registration, the
CEO decides that he or she needs further information on any matter dealt with in
the application:
(a) the CEO may, by notice in writing to the applicant, require the
applicant to provide such additional information relating to the matter as the
CEO specifies within a period specified in the notice; and
(b) unless the information is given to the CEO within that
period—the applicant is taken to have withdrawn the application.
If the CEO registers an applicant as a special reporter in respect of low
value cargo of a particular kind, the CEO must allocate to the reporter a
special identifying code for use by the special reporter when making an
abbreviated cargo report in relation to cargo of that kind on the Sea Cargo
Automation System or the Air Cargo Automation System.
(1) The CEO may, at any time, give to a special reporter a notice of
intention to cancel the special reporter’s registration if the CEO is
satisfied that:
(a) the special reporter has ceased to be a registered user; or
(b) if the special reporter were not a special reporter but were an
applicant for registration—circumstances have arisen whereby paragraph
67EB(1)(e) applies in relation to the reporter; or
(c) the special reporter has breached any condition to which the
registration as a special reporter is subject in accordance with section 67EE,
67EF, 67EG or 67EH; or
(d) if the special reporter is registered as such in relation to low value
cargo consigned from a particular mail-order house:
(i) there is no longer a house agreement in force between the special
reporter and that house; or
(ii) the terms of such an agreement have been breached.
(2) For the purposes of paragraph (1)(b), the expression 10 years
immediately before the decision in subsections 67EB(3) and (4) is to be
taken to be 10 years immediately before the notice.
(3) The notice of intention to cancel registration must:
(a) specify the ground or grounds for the intended cancellation;
and
(b) invite the special reporter to provide a written statement to Customs
within 30 days after the notice is given (the submission period)
explaining why the registration should not be cancelled; and
(c) state that the CEO may decide to cancel the registration at any time
within the 14 days following the end of the submission period, if the grounds or
at least one of the grounds exists at that time.
(4) At any time within the 14 days referred to in paragraph (3)(c), the
CEO may, by notice in writing, decide to cancel the registration of the special
reporter generally in relation to low value cargo of all kinds or of a
particular kind, as the CEO considers appropriate, if, having regard to any
statements made by the special reporter in response to the notice, the CEO is
satisfied that at least one of the grounds specified in the notice exists at the
time of the decision.
(5) If the CEO decides to cancel the registration within the 14 days, the
registration is cancelled:
(a) if paragraph (b) does not apply—28 days after the CEO’s
decision; or
(b) if the special reporter applies to the Administrative Appeals Tribunal
for a review of the CEO’s decision—when the Tribunal affirms the
CEO’s decision.
(6) The CEO must, by notice in writing, cancel a registration if the CEO
receives a written request by the special reporter that the registration be
cancelled on or after a specified day indicated in the request letter.
(7) A notice under subsection (1), (4) or (6) may be served:
(a) by post at the address indicated by the special reporter in the
application for registration or renewal or at an address subsequently indicated
by the special reporter; or
(b) if the special reporter is a company—by post at the registered
office of the company; or
(c) by giving it personally to the special reporter, if the special
reporter is a natural person.
(8) Failure to send a notice to a special reporter under subsection (6)
does not affect the cancellation of the registration.
(9) The cancellation of the registration of a special reporter does not
affect his or her status as a registered user.
(1) In this Subdivision:
monitoring powers means:
(a) in relation to premises—power:
(i) to search the premises; and
(ii) to examine any information or documents on the premises that may
relate to individual consignments of low value cargo in relation to which a
special reporter has made an abbreviated cargo report; and
(iii) to take extracts from, and make copies of, any information or
document apparently relating to such individual consignments; and
(iv) to take onto the premises any equipment or material reasonably
necessary for the purpose of exercising a power under subparagraph (ii) or
(iii); and
(b) in relation to any information or document relating to individual
consignments of low value cargo covered by such abbreviated cargo report that is
found on the premises, the powers described in subsections (2) and
(3).
monitoring warrant means a warrant issued under section
67EP.
(2) An authorised officer who enters premises under section 67EO or under
a monitoring warrant, and any person assisting that officer, has power to
operate equipment on the premises to see whether:
(a) that equipment; or
(b) a disk, tape or other storage device that:
(i) is on the premises; and
(ii) can be used with or is associated with that equipment;
contains information that is relevant to determining whether a special
reporter who has made abbreviated cargo reports has complied with the
requirements of this Division in relation to individual consignments covered by
those reports.
(3) If an authorised officer who enters premises under section 67EO or
under a monitoring warrant, or a person assisting that officer, after operating
equipment at the premises, finds that the equipment, or that a disk, tape or
other storage device on the premises, contains such information, he or she has
power:
(a) to operate the equipment or other facilities to put the information in
documentary form and copy the documents so produced; or
(b) if the information can be transferred to a disk, tape or other storage
device that:
(i) is brought to the premises; or
(ii) is at the premises and the use of which for the purpose has been
agreed to, in writing, by the occupier of the premises;
to operate the equipment or other facilities to copy the information to the
storage device and remove the storage device from the premises.
(1) Subject to subsections (2), (3) and (4), an authorised officer may, to
the extent that it is reasonably necessary for the purpose of finding out
whether a special reporter who has made abbreviated cargo reports has complied
with the requirements of this Division in relation to individual consignments
covered by those reports, enter any premises and exercise monitoring powers at
any reasonable time.
(2) An authorised officer may not, under subsection (1), enter any
premises unless the occupier, or person apparently in charge, of the premises
has voluntarily consented to the entry and to the exercise of those
powers.
(3) Before obtaining the consent of a person for the purposes of this
section, the authorised officer must inform the person that he or she may refuse
to give consent.
(4) An authorised officer is not entitled to exercise any powers under
subsection (1) unless, before so doing, the officer produces to the occupier, or
person apparently in charge, of the premises written evidence of the fact that
he or she is an authorised officer.
(5) In this section:
reasonable time, in relation to a person who is or has been a
special reporter, means:
(a) unless paragraph (b) applies—any time during the normal working
hours of that person; and
(b) in circumstances of urgency—any time of the day or night on any
day.
(1) An authorised officer may apply to a magistrate for a warrant in
relation to any premises that the authorised officer believes, on reasonable
grounds, may contain information or documents relating to low value cargo in
relation to which a special reporter has made an abbreviated cargo
report.
(2) Subject to subsection (3), the magistrate must issue a warrant if
satisfied, by information on oath or affirmation, that it is reasonably
necessary that the authorised officer should have access to the premises for the
purposes of finding out whether a special reporter who has made abbreviated
cargo reports has complied with the requirements of this Division in relation to
individual consignments covered by those reports.
(3) The magistrate must not issue a warrant unless the authorised officer
or someone else has given the magistrate, either orally (on oath or affirmation)
or by affidavit, any further information the magistrate may require about the
grounds on which the issue of the warrant is being sought.
(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 authorised officer who is responsible for executing the
warrant; and
(d) authorise any authorised officer named in the warrant, with such
assistance and using such force as is necessary and reasonable, from time to
time while the warrant remains in force, to enter the premises and exercise
monitoring powers; 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 monitoring
warrant in respect of premises in another State or Territory.
(1) An authorised officer may make an application to a magistrate for a
monitoring warrant by telephone, telex, facsimile 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 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 ordinary application for a monitoring warrant but
the application may, if necessary, be made before the information is
sworn.
(4) If an application is made to a magistrate under this section and the
magistrate, after considering the information and having received and considered
such further information (if any) as the magistrate required, is satisfied
that:
(a) a 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 magistrate may complete and sign the same form of warrant that would be
issued under section 67EP.
(5) If the magistrate decides to issue the warrant, the magistrate is to
inform the applicant, by telephone, telex, facsimile 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 magistrate, stating on the
form the name of the magistrate 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 first executed;
whichever is the earlier, give or transmit 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.
(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.
(1) This section applies when an authorised officer is on premises under
section 67EO or by virtue of a monitoring warrant.
(2) If an authorised officer suspects, on reasonable grounds:
(a) that a thing relevant to an offence against this Division is on the
premises; and
(b) it is necessary to exercise a power under paragraph (d) or (e) in
order to prevent the thing from being concealed, lost or destroyed;
and
(c) it is necessary to exercise the power without the authority of a
search warrant under section 199 because the circumstances are so serious and
urgent;
the authorised officer may:
(d) search the premises for the thing; and
(e) seize the thing if he or she finds it there.
(1) If an authorised officer is on or in premises because the occupier, or
person apparently in charge, of the premises consented to the officer’s
entry—the officer may ask that occupier or person:
(a) to answer any questions put by the authorised officer; and
(b) to produce any documents requested by the authorised
officer.
(2) An authorised officer who is on or in premises that he or she has
entered under a monitoring warrant may require any person on the
premises:
(a) to answer any questions put by the authorised officer; and
(b) to produce any documents requested by the authorised
officer.
(3) The CEO may, by written notice, require any person whom he or she
believes, on reasonable grounds, to be capable of giving information relevant to
the operation of this Division to attend before an authorised officer specified
in the notice, at a time and place specified in the notice:
(a) to answer any questions put by the specified officer; and
(b) to produce to the specified officer such documents as are referred to
in the notice.
(4) A person must not, without reasonable excuse, fail to comply with a
requirement under subsection (2) or (3).
Penalty: Imprisonment for 6 months.
(5) It is a reasonable excuse for a person to refuse or fail to answer a
question or produce a document on the ground that to do so would tend to
incriminate the person.
(6) A person must not, knowingly or recklessly:
(a) make a statement to an authorised officer, either orally or in
writing, that is false or misleading in a material particular; or
(b) present a document to an authorised officer that is false or
misleading in a material particular.
Penalty: Imprisonment for 12 months.
(1) An authorised officer may request the occupier, or person apparently
in charge, of any premises entered by the officer:
(a) under section 67EO; or
(b) under a monitoring warrant;
to provide reasonable assistance to the officer, at any time while the
officer is entitled to remain on the premises, for the purpose of the exercise
of the officer’s powers under those sections in relation to the
premises.
(2) A person mentioned in subsection (1) must not, without reasonable
excuse, fail to comply with an authorised officer’s request.
Penalty: 30 penalty units.
(1) If:
(a) damage is caused to equipment as a result of it being operated in the
exercise of monitoring powers; 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;
compensation for the damage or corruption is payable by Customs to the
owner of the equipment or the user of the data or programs concerned.
(2) For the purposes of subsection (1), damage to data includes damage by
erasure of data or addition of other data.
(3) Customs must pay the owner of the equipment or the user of the data or
program such reasonable compensation as Customs and the owner or user agree on.
If Customs and the owner or user 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 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.
13 Subsection 77F(1) (definition of insolvent
under administration)
Repeal the definition.
14 After paragraph
273GA(1)(aaab)
Insert:
(aaac) a decision by the CEO under section 67ED to refuse to register a
person as a special reporter;
(aaad) a decision by the CEO under section 67EK to refuse to renew a
person’s registration as a special reporter;
(aaae) a decision by the CEO under section 67EM to cancel the registration
of a special reporter generally or in relation to low value cargo of a
particular kind;