Bills Digest no. 108 2007–08
Customs Amendment (Strengthening Border Controls) Bill 2008
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Contact officer & copyright details
Passage history
Customs
Amendment (Strengthening Border Controls) Bill 2008
Date introduced: 20
March 2008
House: House
of Representatives
Portfolio: Home
Affairs
Commencement: Sections
1 to 3 commence upon Royal Assent. Schedule 1 will commence on a day to
be fixed by Proclamation, or, failing that, it will commence 6 months
after the date of Royal Asset. Schedule 2 commences on the 28th
day after Royal Assent.
Links: The relevant
links to the Bill, Explanatory Memorandum and second reading speech
can be accessed via BillsNet, which is at http://www.aph.gov.au/Bills/. When Bills
have been passed they can be found at ComLaw, which is at http://www.comlaw.gov.au/.
The Customs Amendment (Strengthening Border Controls)
Bill 2008 (the Bill) will amend the Customs Act 1901 to:
- allow a person to surrender certain prohibited imports that have
not been concealed
- allow for the granting of post-importation permissions for certain
prohibited imports
- allow infringement notices to be served for certain offences including
importing certain prohibited imports, and border security related offences
- enable Customs officers boarding a ship or aircraft to conduct personal
searches for, and take possession of, weapons or evidence of specified
offences.
Schedule 1 of the Bill amends the Customs Act 1901 (the Customs
Act) to allow for a tiered approach to the importation of prohibited imports.
The Schedule will provide for the surrender of unconcealed prohibited
imports, a post-importation permission scheme and an infringement notice
scheme.
Schedule 2 of the Bill also amends the Customs Act to provide search
and seizure powers of customs officers in the offshore environment.
The Customs Legislation Amendment (Strengthening Border Controls) Bill
2008 (the Bill) contains provisions taken from two earlier Bills. The
import control measures are identical to the Customs Legislation Amendment
(Augmenting Offshore Powers and other Measures) Bill 2006 which was referred
to the Senate Legal and Constitutional Legislation Committee for inquiry
on 22 June 2006. The Committee Report was tabled on 8 August 2006, however
the Bill lapsed with the proroguing of Parliament. The Committee concurred
with the broad purposes of the Bills and noted the merit in streamlining
procedures dealing with the importation of low-end prohibited items to
reduce the administrative burden for Customs. The Committee put forward
seven recommendations.[1]
The recommendations relating to the drafting of the provisions have been
adopted.
Selected text (as described above) from the lapsed Bill is now re-introduced
(without alteration) in this Bill, while the remaining provisions from
the Customs Legislation Amendment (Augmenting Offshore Powers and other
Measures) Bill 2006 have been re-introduced in the Customs Amendment (Modernising)
Bill 2008 (also introduced on 20 March 2008).
The Commonwealth Government controls the import of certain goods into
Australia. Control is exercised through the Customs (Prohibited Import)
Regulations 1956 made under section 50 of the Customs Act. The regulations
provide that the importation of certain goods is prohibited absolutely,
while other goods may only be imported when specified conditions or restrictions
are complied with. The Customs website provides an outline of what goods
are prohibited or restricted imports. There is a wide range of items controlled
under the regulations, from high risk goods such as narcotic drugs, child
abuse material and military style weapons, to lower risk community and
consumer protection related items such as flick knives, blow pipes and
toys with a painted coating that exceeds legislated standards for heavy
metals content.[2]
A restricted good that is imported contrary to the relevant restrictions
or conditions becomes a prohibited import for the purposes of the Customs
Act. Prohibited imports are defined as ‘special forfeited goods’ under
the Customs Act and become subject to seizure without warrant. There are
also offences in the Customs Act that apply to the importation of prohibited
goods. At present, section 203B of the Customs Act requires Customs officers
to seize all prohibited imports to prevent the entry of these goods into
the community. When Customs seizes prohibited imports without warrant,
the Customs Act contains provisions that oblige the Customs officer to
issue a seizure notice to the owner of the goods, hold the goods for thirty
days to provide the owner with an opportunity to make a claim for return
of the goods, and, except in specified circumstances, either return the
goods to the owner who has made such a claim, or destroy them. According
to the Australian Customs Service, ‘[d]ue to the low value of many of
the goods, applications for their return are rarely made and the goods
are destroyed’.[3]
The amendments proposed by this Bill will provide Customs officers with
three alternatives to automatic seizure, but only for certain prohibited
goods which are considered to be of low value and low risk. New regulations
will be made to specify the goods to which the new approach will apply.
The three alternatives are:
- allowing a person to surrender certain prohibited imports that have
not been concealed
- allowing the granting of post-importation permission for certain
prohibited imports, and
- allowing infringement notices to be served for certain offences,
including importing certain prohibited imports and restricted area offences.
Customs officers will be given discretion to choose when to apply the
first two alternatives to seizure, but only for goods that have not been
concealed. In the Bill, the definition of concealment extends beyond physically
concealing the goods, and includes failing to declare them to Customs.
The Explanatory Memorandum says that, if, for example, a person indicated
on the Incoming Passenger Card that they were bringing a prohibited import
into Australia, then they would not be considered to have concealed the
goods from Customs.[4] However,
if the passenger failed to declare the goods on the Incoming Passenger
Card, then they would be considered to have concealed the goods from Customs,
and would not be permitted to surrender them. In those circumstances,
the goods would either be seized by Customs, or be subject to an infringement
notice under the proposed new regime to be introduced by this Bill. In
contrast to the new surrender and post-importation permissions regime,
the new infringement notice scheme will only apply to prescribed prohibited
imports that have been concealed from Customs.
The importation of most goods in the Prohibited Imports Regulations is
prohibited unless a licence or permission to import the goods is obtained.
In some cases, other conditions or restrictions must also be complied
with. The explanatory memorandum provides an example in relation to the
importation of certain firearms. A written confirmation is required from
the police of the State or Territory in which the firearm will be used,
to the effect that the importer holds a licence or authorisation according
to the law of the State or Territory to possess the firearm.[5]
The licence or permission or other document must be obtained prior to
the importation of the goods. If it has not been obtained prior to importation,
the goods will be prohibited imports in accordance with section 51 of
the Customs Act. Prohibited imports are special forfeited goods under
the Customs Act and will become subject to the provisions of the Customs
Act that apply to such goods, which include the power to size the goods
without a warrant when they are in a Customs place. There are also offences
in the Customs Act that apply to the importation of prohibited imports.
Because it is not always possible to obtain a licence or permission to
import goods before their importation, it is proposed to introduce a new
regime whereby, in specified circumstances, the owner of prohibited imports
may apply for the required permission to import the goods after the goods
have been imported. It is a discretionary power whether to grant or give
the required permission. The relevant goods will remain in the custody
of Customs at all times until the required permission is granted or given.
Another aspect of the tiered response to sanctions for dealing with prohibited
imports is the establishment of an infringement notice scheme. The new
infringement notice scheme will apply to an offence under paragraph 233(1)(b)
of the Customs Act (prohibition on the importation of any prohibited import).
An infringement notice can be issued in lieu of prosecution for the offence,
if the offence relates to goods that are prohibited imports prescribed
for the purposes of section 243ZF. The Explanatory Memorandum notes that
the large range of goods that are controlled under the Prohibited Imports
Regulations means that the threat posed to the community by these goods
also varies greatly.[6]
Appropriate prohibited imports will be prescribed, which will balance
the threat posed to the community against the administrative burden the
seizure of such items places on Customs.
The Australian Customs Service (ACS) provided a submission to the Senate
Standing Committee on Legal and Constitutional Affairs on the rationale
for the extension of search and seizure powers. In response to a question
by Senator Ludwig on the general nature of search and seizure powers under
the Act, the ACS responded in writing that:
The amendments in this [now lapsed] Bill are to powers
available to an officer in the unique circumstances that occur in the
offshore environment after making a request to board a ship under section
184A or to land for boarding an aircraft under section 184D of the Customs
Act. This usually occurs where the commander of a Commonwealth ship or
aircraft has formed a view that there is a suspected contravention of
an offence under the Customs Act, Division 307 of the Criminal Code or
another Act.[7]
In its written submissions to the Committee,[8]
the ACS documented recent examples of escalations in the level of resistance
encountered when Customs have boarded vessels ‘suspected of contraventions
of the Customs Act’ or other legislation. The ACS submission outlines
the concerns for officer safety and the risk of evidence being destroyed
as the main driving factors for these amendments:
… an incident occurred during a boarding of an Indonesian
fishing vessel located inside the Australian Exclusive Economic Zone.
The team began to conduct an investigative boarding to determine if
there was evidence of any offences. As a decision had not been made
to detain the vessel, physical pat down searches were unable to
be conducted. During the search of the vessel an Indonesian crew member
produced a weapon and physically threatened the boarding team. A tactical
withdrawal occurred to avoid physical injury to any Customs officers.
During another recent boarding of an Indonesian fishing
vessel, the Customs boarding team identified sufficient evidence for
the vessel to be detained and escorted to port for further enquiries.
A subsequent pat down search of the crew located a concealed Global
Positioning Satellite in the trousers of a crew member. There was potential
for this piece of evidentiary material to be disposed of from the time
of boarding until the search finally took place once the vessel had
been detained. If no other evidence of suspected offences had been
identified, it would not have been possible to detain the vessel and
conduct the searches and the GPS would not have been located. [emphasis
added]
Currently, there are a number of requirements that must
be satisfied before a ‘pat down’ search of persons can take place. These
are: that the ship may be boarded under subsection 185(1) or that the
ship may be detained under subsection 185(3).
In the case of Australian ships, there appears to be no
requirement that the ship is suspected of a contravention of Australian
law before it can be boarded: see paragraph 185(1)(c). Once boarded, an
Australian or foreign ship can only be detained under subsection 185(3)
if there is a reasonable suspicion of a contravention of Australian law.
The proposed amendments will, amongst other things, do away with the requirement
to detain a ship before searches can be made under section 185AA. Thus
they will allow any person on an Australian ship that is boarded to be
subject to a personal search, notwithstanding that there may be no reasonable
suspicion of the ship being involved in a contravention or that the person
themselves has been involved in a contravention. ACS goes on to note:
It is recognised that the proposed personal search
powers are wider in scope than other personal search powers under Commonwealth
legislation. This is due to the remote locations in which offshore patrols
are conducted and the unique circumstances facing officers when conducting
personal searches in confined spaces.[9]
The Senate Standing Committee for the Scrutiny of Bills
reported on Entry Search and Seizure Provisions in Commonwealth Legislation
in 2006. The Twelfth Report, 2006, discusses the ‘national security’ justification
for these measures and notes that the powers are consistent with other
national security law. The discussion is in the framework of the Customs
Legislation Amendment (Airport, Port and Cargo Security) Act 2004 and
the Report notes:
The Minister advised that the purpose of the powers
is to protect Customs officers and prevent the destruction of evidence
when a person is suspected of having committed a serious Commonwealth
offence, is the subject of a Commonwealth arrest warrant, or is on bail
where a condition of the bail is that a person not depart Australia.
The Minister also advised that Customs officers already have broad personal
search powers under the Customs Act 1901 and receive extensive
training in relation to this aspect of their operational activity.
The Explanatory Memorandum[10]
has further background on the proposed provisions and according to the
description of the amending provisions, the ship being boarded is a ship
suspected of being involved in offences against specified Acts.
It states that the amendments ensure the safety of Customs officers from
possible attack while investigating ships ‘suspected of offences’ against
the specified Acts as well as preventing the possibility of evidence of
an offence being thrown overboard.
The Senate Standing Committee accepted the Australian
Customs Service’ evidence that the powers are necessary as an adjunct
to the proposed search and seizure powers and that the retaining of evidence
‘was not likely to occur where no suspicion of the commission of an offence
was present prior to a search being conducted.’
The Explanatory Memorandum notes that the bill has no financial impact.
The main provisions used to set up the new regime of alternatives to
automatic seizure of certain prohibited imports are included in item
14 and item 36. Item 14 sets up a surrender of goods mechanism
under proposed section 209N and a detention of goods arrangement
pending the granting of post-importation permissions under proposed
section 209U. The third alternative, an infringement notice scheme
to deal with concealed goods, is set up under proposed section 243ZH
(item 36).
Proposed Subdivision GB of Division 1 of Part XII of the Customs
Act inserts a new regime that will allow for the surrender of certain
prohibited imports to Customs in specified circumstances. Proposed
section 209N sets out the circumstances when the prescribed prohibited
imports would be able to be surrendered to a Customs officer. Proposed
subsection 209N(1) provides that an officer of Customs may, instead
of seizing the goods under section 203B of the Customs Act, permit the
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 Customs by the person, and
(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 these options, and
(c) the person has indicated to Customs, 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.
The surrender of goods may only take place at airports or ports in a
place that is set aside for the questioning of passengers and the examination
of their baggage.[11]
It therefore does not apply to goods which arrive by post or in containers.
According to the Explanatory Memorandum, it is proposed that the permission
to surrender prescribed imported goods will be granted entirely at the
discretion of the officer of Customs:
‘If the officer decides that the circumstances of
the importation require different action to be taken in respect of the
person and the goods, he or she may refuse to permit the goods to be
surrendered’.[12]
It is also at the discretion of the Customs officer to give the person
the option of seeking a post-importation permission in respect of the
goods.[13] The ACS has
said that it will be developing guidelines for the exercise of discretion
by Customs officers in order to provide for consistent application of
the new regime.
Proposed section 209P sets out the effects of the surrender on
the goods – a person will not be able to be prosecuted for the offence
of importing a prohibited import but they will also lose all title to
the surrendered goods if they are indeed prescribed prohibited imports.
The person will not be able to make a claim for the return of the goods.
However, if in fact the surrendered goods were not prohibited goods but
have been disposed of or destroyed by the Commonwealth, proposed subsections
allows the owner of the goods to seek compensation from a court. Proposed
subsection 209Q(3) provides that if a right to compensation exists,
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. According to the Explanatory Memorandum, these
provisions are similar to other compensation arrangements in the Customs
Act in relation to seized goods that have been disposed of or destroyed.[14]
Proposed Subdivision GC of Division 1 of Part XII of the Customs
Act will insert a new regime that will allow for the granting or giving
of post-importation permissions, licences or other documents in respect
of certain goods whose importation is prohibited in specified circumstances
under the regulations Under the new arrangements, the owner of certain
prohibited imports (yet to be defined in regulations) may apply for the
required permission to import the goods after the goods have been imported.
Proposed section 209U sets out the circumstances in which an officer
of Customs may allow a person to apply for a required permission in lieu
of seizing the goods. This decision will be entirely at the discretion
of the Customs officer. The goods will remain in the custody of the Customs
officer at all times until the required permission is granted or given
(proposed section 209V). A detention notice is required to be served
for all goods detained under section 209U (proposed section 209W).
If the required permission is not subsequently granted or given within
the specified period, then the goods are taken to be seized and the normal
seizure process will follow.
Item 36 inserts proposed Subdivision B of Division 5 of
Part XIII. (Part XIII includes the penal provisions of the Customs Act
and Division 5 deals with penalties in lieu of prosecution for certain
offences.) Subdivision B provides a new scheme to enable the issue
of infringement notices in lieu of prosecution for offences relating to
prohibited imports and restricted Customs areas.
Items 1 and 2 make amendments to the definition of ‘frisk search’
by repealing the existing definition in section 4 of the Act and replacing
it with the definition in existing subsection 183UA(1). Subsection 183UA
(1) is repealed and the new definition in section 4 will apply to the
whole of the Act. A frisk search will be a search of a person conducted
by quickly running the hands over the person’s outer garments, and an
examination of anything worn or carried by the person that is conveniently
and voluntarily removed by the person (being searched). This definition
is the same definition found in the Crimes Act 1914.
Existing section 185 of the Act sets out officers’ powers to board and
search a ship or aircraft in the circumstances set out in the provision
and allows officers to do such things as secure goods, require person
to answer questions and produce documents, make copies of documents, and
make an arrest, without warrant, of any person on the ship or an aircraft
if there is a reasonable suspicion that an offence has been committed
or may be committed by that person. Item 3 inserts new paragraphs
185(2)(cb) and expands the powers by providing that officers may take
possession of any goods found, and documents produced, and retain such
goods or documents. New subsection 185(7) inserted by item 6
sets out the circumstances when the goods or documents found or produced
under new subsections 185(2)(cb) ‘may afford evidence of the commission
of a relevant offence’.
Item 8 repeals existing subsections 185AA(1),(2), and (3) and
inserts new subsections 185AA(1)-(3C). The key amendment is that
the existing requirement that the ship or aircraft firstly has to be detained
before the search powers can be exercised has been removed (in conjunction
with the amendments in items 13 and 14, below).
The amendments also change the circumstances under which the powers may
be exercised. New subsections 185AA(3), (3A), (3B) and (3C) empower
officers (and in some cases non-officers) to examine things or documents
found, and to take possession of and retain weapons, documents or things
that are found.
Item 9 repeals and substitutes a new version of subsection
184AA(6) to extend the existing immunity from civil or criminal suit
for a person who exercises powers at the request of an officer under section
185AA, to now also include an officer who conducts a search under the
section, if the person or officer act in good faith and does not breach
existing subsection 185AA(7) (use of force and maintaining a person’s
dignity).
Item 10 inserts a new provision, subsection 185AA(7A) to
make clear that evidence obtained under section 185AA can be used for
the investigation and/or prosecution of a Commonwealth, State or territory
offence. However, any possible use of such evidence would still be subject
to any State law regarding evidence in proceedings for an offence against
the law of the relevant State.
Item 11 extends the definition of ‘officer’ in new subsection
185AA(8) to reflect that the new search powers apply in respect of
vessels and/or aircraft boarded under either section 185 or section 185A,
rather than just under existing section 185.
Item 12 extends the meaning of a ‘person found on a ship or aircraft’
to include a person suspected on reasonable grounds to have landed from
or left the ship or aircraft. As section 185AA relates only to searches
of people it does not need to also include ‘goods’ as in the similar provisions
in section 185(6) and on which this clause is based.
Item 13 inserts a new section 185AAA which sets out the circumstances
in which Customs can retain, or be required to return, a relevant item
where possession of the item has been taken under new paragraph 185(2)(cb)
or new subsection 185AA(3C). Such a circumstance might be where Customs
no longer has a reason to retain the item (if it is not to be used in
evidence), or a 60 day period has lapsed since Customs took possession
of the item.
Items 14 and 15 repeal subsections 219L(1B) and (1C). These provisions
currently require the detention of a person before a frisk search can
be undertaken in the circumstances of a ship or aircraft being boarded
under the powers contained in section 185. The current provisions allow
an officer to search for, take possession of and retain items on a person,
or in that person’s immediate control. Items 8 to 12 amend section 185AA
to expand the scope of the personal search powers and the circumstances
under which these powers may be exercised. The new provisions subsections
185AA(1) and (1A) allow for a wider search than a frisk search (removal
of garments for example) and also cover the same circumstances of the
subsection to be repealed and therefore make the subsections obsolete.
The effect of the amendments will be that section 219L will only provide
for the frisk search of a person who has been detained. The amendment
in item 17 new subsection 219M(1A) puts back the requirements that
if a person is detained, an officer of customs may carry out a frisk search
‘to determine whether the person is unlawfully carrying prohibited goods’
and to recover any goods found which are to be removed from the definition
of ‘frisk search’ in items 1 and 2.
The Explanatory Memorandum also points out that section 219L and 219M
do not have an explicit power to conduct a frisk search, so one of the
purposes of new subsection 219M(1A) is to provide for an express
power for a Customs officer to conduct such a search. This raises the
issue whether convictions to date based on these provisions and evidence
obtained there under could be in doubt.
Item 16 inserts new subsection 219M(1A) to provide an explicit
power to conduct a frisk search under section 219M. The rationale for
this amendment is set out in the Explanatory Memorandum:
Existing section 219M sets out the manner in which
a frisk search of a person detained under section 219L is to be conducted.
However, although the power to conduct such a search is implied on the
reading of section 219L and 219M, there is no explicit power in either
section to conduct a frisk search. Item 16 inserts new subsection 219M(1A).
New subsection 219M(1A) provides an express power for a Customs officer
to conduct a frisk search on a person detained under section 219L for
[the] purpose of determining if the person is unlawfully carrying prohibited
goods.[15]
Currently, the apparent purpose of a section 219M frisk search is to
search for weapons or anything that could be used to inflict bodily injury:
paragraph 219M(4)(a). However, this paragraph is being repealed by item
17. Item 16 inserts a new purpose which, as mentioned above,
focuses on prohibited goods.
Acknowledgements
The author wishes to acknowledge the assistance of Ms Diane Spooner,
who wrote the Digest for an earlier version of this Bill. The author remains
responsible for any errors and omissions.
Monica Biddington
27 May 2008
Bills Digest Service
Parliamentary Library
© Commonwealth of Australia
This work is copyright. Except to the extent of uses permitted by the
Copyright Act 1968, no person may reproduce or transmit any part of this
work by any process without the prior written consent of the Parliamentary
Librarian. This requirement does not apply to members of the Parliament
of Australia acting in the course of their official duties.
This work has been prepared to support the work of the Australian Parliament
using information available at the time of production. The views expressed
do not reflect an official position of the Parliamentary Library, nor
do they constitute professional legal opinion.
Feedback is welcome and may be provided to: web.library@aph.gov.au.
Any concerns or complaints should be directed to the Parliamentary Librarian.
Parliamentary Library staff are available to discuss the contents of publications
with Senators and Members and their staff. To access this service, clients
may contact the author or the Library’s Central Entry Point for
referral.
|
