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Customs Legislation Amendment Bill
Date Introduced: 2 July 1998
House: House of Representatives
Portfolio: Industry, Science and Tourism
Commencement: The substantive provisions
commence by proclamation. However, provisions not commenced within
six months of the date of Royal Assent, commence on the first day
of the seventh month after Royal Assent.
To amend the
Customs Act 1901 (Cwlth) to extend the powers of
authorised officers to search and seize and to facilitate access to
Customs information by State and Territory law authorities, foreign
governments and international organisations.
The Australian Customs Service is established
under the Customs Administration Act 1985 (Cwlth), as is
the position of Chief Executive of Customs.(1) Customs administers
a number of Commonwealth statutes. Amongst these is the Customs
Act. This Act contains provisions governing the importation and
exportation of goods, customs duties, customs agents, powers of
search, seizure and detention, penalties for customs offences and
Part of the work done by the Australian Customs
Service involves border management-which aims to balance
'facilitation of the legitimate movement of people, goods, vessels
and aircraft with the detection and deterrence of unlawful activity
at the border.'(2)
'Authorised officers' under the Customs Act have
extensive powers of investigation and enforcement. For example,
Customs officers are empowered under sections 186 and 187 to
examine goods and board and search ships and aircraft. Customs
officers, members of the Australian Federal Police and members of
certain Commonwealth services have powers under section 203 to
seize 'forfeited goods' and Customs officers and police officers
have powers under section 210 of the Customs Act to arrest without
warrant for suspected breaches of sections 231, 233 and 233B. These
three sections relate to smuggling, unlawful importation and
exportation, and the importation and exportation of narcotic goods.
Under section 219Q 'authorised officers' can exercise powers of
detention and search.(3)
The Minister's Second Reading Speech states that
... represents the first instalment of legislative
amendments proposed by the Government implementing the 'Tough on
Drugs' strategy, an initiative announced by the Prime Minister on 2
The components of the strategy include demand
reduction and harm reduction and, in addition, supply reduction
through interdiction at the Customs barrier.(5)
The Minister's Second Reading Speech
The Bill amends the Customs Act 1901 ... with the
objective of providing Customs officers with more effective powers
in relation to the detection of illicit drugs at the border. The
Bill also amends the Customs Administration Act 1985 ...(6)
Among other things, the expressed purpose of
amendments to the Customs Administration Act 1985 is to
improve the exchange of intelligence about illicit drugs between
It is extremely difficult to estimate the
quantity of illicit drugs brought into Australia. More than 236
kilograms of heroin was seized in Australia during 1996-97-71.6% of
this was seized at the Customs barrier.(8) All illicit cocaine
reaching Australia appears to be imported from South America.
Cocaine represents only a small proportion of the illicit drug
seizures at the Customs barrier. However, the Australian Bureau of
Criminal Intelligence reports that since 1994-95, the amount and
number of cocaine seizures at the Customs barrier have gradually
increased. Most illicit amphetamine and methylamphetamine consumed
in Australia is manufactured in Australia but the number of
seizures by Customs of amphetamine and euphoric drugs has increased
in recent years. Although herbal cannabis is mostly produced in
Australia, cannabis oil and resin tends to be imported rather than
grown domestically because of the availability of high-THC(9)
herbal cannabis produced locally.(10)
Customs can, at present, search the baggage and,
in certain circumstances, the person of passengers and crew
arriving in Australia.(11) The Minister has stated, however, that
these powers are absent in relation to people with access to ships
and aircraft which arrive in Australia and which may have illicit
drugs on board. In part, the amendments are intended to '...
provide Customs officers with a power to examine the bags or other
containers in the possession of such persons to ensure illicit
drugs are not being landed by them . [and give] Customs officers
... the power to frisk search such persons.'(12)
Schedule 1-Amendment of the
Customs Act 1901
Item 2 inserts a definition of
the expression 'contiguous zone' into the Customs Act. This
expression is defined with reference to the Seas and Submerged
Lands Act 1973 (Cwlth). Amendments relating to this definition
are found in Items 20, 21, 25 & 46 of Schedule 1 (see
Item 9 inserts a definition of
'territorial sea'. This expression is defined as meaning the
territorial sea as described by proclamation under the Seas and
Submerged Lands Act 1973 (Cwlth). The expression 'territorial
sea' is included in proposed amendments to sections 59, 73 and 175
of the Customs Act.
Sea installations and resources
Direct journeys between what are called
'external places' and 'sea installations' are in general prohibited
under the Customs Act unless the person undertaking the journey has
been available for questioning in Australia for the purposes of the
Customs Act. There are similar provisions relating to the
inspection of goods sent from sea installations to external places
(and vice versa). An 'external place' is defined in the Customs Act
as an external Territory or a foreign country.(13) A 'sea
installation' is defined in the Sea Installations Act 1987
The Customs Act also defines what are called
'resources installations.' Resources installations are fixed
structures or mobile units used to explore or exploit natural
resources-generally located off-shore.(14) Items 15 to
18 amend section 58A of the Customs Act to subject the
movement of people or goods between external places and resources
installations attached to the Australian seabed to the same regime
that applies to the movement of people or goods between external
places and sea installations.
Boarding of ships or aircraft for the
purposes of the Customs Act
Subsections 59(1) & (2) of the Customs Act
enable foreign ships within 12 nautical miles of the baseline of
the territorial sea, and Australian ships to be boarded for the
purposes of the Customs Act. It is an offence to refuse a request
to be boarded without a reasonable excuse. Item 20
amends paragraph 59(1)(b) to extend the application of the
paragraph. The provision will apply not only to foreign ships
within 500 metres of an Australian resources installation or
Australian sea installation as it does at present. It will also
apply to foreign ships within the outer limits of the territorial
sea and to foreign ships in the contiguous zone. An identical
amendment is made to paragraph 59(2)(b).
Subsection 59(4) of the Customs Act presently
requires pilots of foreign aircraft flying over Australia or over
waters within 12 nautical miles of the baseline of the territorial
sea, and pilots of Australian aircraft to land their aircraft for
the purposes of boarding under the Customs Act-when requested to do
so. It is an offence to refuse a request to land without a
reasonable excuse. Item 21 repeals subparagraphs
59(4)(b)(ii) & (iia) and inserts a replacement subparagraph
referring to the outer limits of the territorial sea.
Item 25 inserts new
subsection 59(5A) into the Customs Act. This new
subsection provides that a request to board a foreign ship in the
contiguous zone can only be made if there are reasonable grounds to
suspect that the ship has been or is being involved in the
commission of an offence against the Customs Act or is about to be
The coasting trade
Section 175 of the Customs Act deals with what
is called the 'coasting trade.' Subsection 175(2) penalises the
owner or master of a prescribed ship (ie a coastal ship) who
permits goods to be transferred between the ship and a ship making
an international or prescribed voyage or between the coastal ship
and an aircraft making an international or prescribed flight.
(15)Subsection 175(3) contains similar provisions in relation to
the owner or pilot of a prescribed aircraft (ie a coastal
Item 40 inserts new
subsections 175(3A), (3B) & (3C) into the Customs Act.
These new subsections prohibit owners and masters of ships engaged
in international or prescribed voyages and owners and pilots of
aircraft engaged in international or prescribed flights from
allowing goods to be transferred to a coastal ship or coastal
aircraft. Such owners, masters and pilots are not at present caught
by the same offence and penalty provisions that apply to owners,
masters or pilots of coastal ships or coastal aircraft.
General powers to examine goods subject
to Customs control
Item 48 amends section 186 of
the Customs Act which enables Customs officers to open packages and
examine goods subject to Customs control. Item 48 adds two new
subsections to section 186. New subsection 186(2)
enables Customs officers to do what is reasonably necessary to
enable goods to be examined or arrange for 'another officer of
Customs or other person having the necessary experience to do ...'
this. New subsection 186(3) includes in the
examination of goods-opening packages, using x-ray machines or ion
scanning equipment, testing and measuring goods and using dogs.
Item 48 also inserts
new section 186A enabling a Customs officer to
copy and take extracts of certain documents examined under section
186. Item 4 repeals the definition of 'documents'
in section 4(1) which presently reads 'includes books.' As amended,
it will include any paper or other material on which there is
writing, marks, symbols, figures or perforations, paper or other
material on which an image is recorded and articles or materials
from which sounds, images or writing can be produced with or
without the aid of a computer.
Search & seizure of goods without a
The Customs Act empowers authorised officers to
search for and seize certain types of goods. Seizure warrants may
be issued for what are called 'forfeited goods.' These include
goods which are smuggled, concealed dutiable goods, goods whose
importation is absolutely prohibited and goods the importation of
which is prohibited without the requisite licence or
'Special forfeited goods' can be seized without
a warrant in certain circumstances. 'Special forfeited goods' are
all prohibited imports and all prohibited exports which are put on
any ship, boat or aircraft for export or brought to any wharf or
place for export purposes.(16) Under section 50 of the Customs Act,
prohibited imports are imports which the Governor-General prohibits
by way of regulation. Among the many categories of goods designated
as prohibited imports in the Customs (Prohibited Imports)
Regulations are drugs, including drugs covered by the Single
Convention on Narcotic Drugs. These drugs include cannabis,
cannabis resin, cocaine, heroin and lysergic acid.
Section 203B of the Customs Act deals with
search and seizure without warrant of 'special forfeited goods' and
related evidential material at a 'Customs place'. A Customs place
is presently defined in subsection 183UA(1) of the Customs Act as
including customs airports, ports and wharves. Item
44 amends the definition of 'Customs place' found in
subsection 183UA(1) to include places where certain ships and
aircraft which are the subjects of a section 175 permission are
required to depart or return.
Item 50 repeals existing
subsection 203B(1) of the Customs Act and replaces it with a new
subsection. Existing subsection 203B(1) provides that 'special
forfeited goods' can be seized without a warrant if an authorised
person suspects on reasonable grounds that 'special forfeited
goods' are in a container in a 'Customs place' or in a container on
a conveyance(17) at a Customs place. A part of the present
definition of 'container' found in subsection 183UA(1) is replaced
by Item 43. A container will now include not only
trailers and baggage(18) but anything else that could be used to
carry goods. A definition of 'designated container' is inserted by
Item 45. It means anything other than baggage
which could be used to carry goods [new subsection
New subsection 203B(1) will
retain the power of search and seizure without warrant at a
'Customs place'. It will also give an authorised person the power
to seize 'special forfeited goods' without a warrant at a
'designated place' where a person has a 'designated container' or
goods reasonably suspected of being 'special forfeited goods' in
his or her immediate physical possession but he or she is not
carrying the container or goods on his or her body.
A 'designated place' is defined in new
subsection 4(1) to encompass part of the present
definition of a 'Customs place', a place that is the subject of a
permission under section 175 of the Customs Act or a section 234AA
place that is not covered by either of the above. Under section 175
of the Customs Act permission may be given to move goods between
vessels (aircraft and ships) making international voyages. A
'section 234AA place' is a place set aside for questioning
passengers disembarking from ships or aircraft, examining their
personal baggage or holding disembarking passengers for the
purposes of the Customs Act or any other Commonwealth law.
Item 55 inserts a number of new
subsections after existing subsection 203B(2) of the Customs Act.
Existing subsection 203B(2) specifies what and where an 'authorised
person' can search and seize without a warrant. Three new
subsections [new subsections 203B(2A), (2B) and
(2C)] enable 'authorised persons' who are Customs officers
to search designated containers held in the 'immediate physical
possession' of a person and seize goods reasonably suspected of
being 'special forfeited goods.' The power to search and seize
'special forfeited goods' at a 'Customs place' includes the power
to seize without a warrant goods that are produced as a result of a
frisk search, an external search or an internal search of a person
[new paragraph 203B(2C)].
Seizure of narcotic goods without a
Items 58 to 64 amend section
203C of the Customs Act. Section 203C deals with the seizure of
narcotic goods or related evidential material without a
Section 203C(1) is an applications provision. It
provides that section 203C applies if an authorised person believes
on reasonable grounds that there are narcotic goods in a container
or in a container on a conveyance at a place other than a Customs
place and it is necessary to exercise the powers conferred
by the section to prevent the concealment or destruction of those
goods. Item 58 amends paragraph 203C(1)(a) so that
it also applies to goods in a container in the immediate physical
possession of a person at a place other than a 'Customs place'.
Item 60 enables 'authorised
persons' to search containers without a warrant which are in the
immediate physical possession of a person for narcotic goods
[new paragraph 203C(2)(c)]. Item
61 amends subsection 203C(2) of the Customs Act. Instead
of enabling 'authorised persons' to merely to seize narcotic
goods obtained as a result of a warrantless search, it will
enable any goods reasonably suspected of being narcotic
goods to be seized. Item 62 inserts new
subsection 203C(2A) into the Customs Act. This new
subsection provides that, to avoid doubt, the power to seize goods
reasonably suspected of being narcotic goods includes the power to
seize without warrant goods produced as the result of a frisk
search, an external body search or an internal body search
conducted at a place other than a Customs place.
Item 65 repeals existing
subsection 203D(2) of the Customs Act. Existing subsection 203D(2)
provides that an authorised person exercising a power under
sections 203B or 203C can use such force as is necessary and
reasonable in the circumstances. Damage to places, conveyances etc
is not excused unless an opportunity has been given to the person
in charge to provide access to the place, container or conveyance
or it is not possible to provide such an opportunity. New
subsection 203D(2) retains these provisions and adds a
provision prohibiting the forcible removal of a container or goods
from a person's physical possession-with similar exceptions to
those provided in existing subsection 203D(2).
Ships, aircraft and
Under section 185 of the Customs Act, officers
may board and search ships and aircraft to which subsections 59(1),
(2) or (4) apply (see above). In these cases, an officer can arrest
without warrant anyone reasonably suspected of committing offences
against the Act, and detain the ship or aircraft if there is a
reasonable suspicion that it is being used for the commission of an
offence against the Customs Act. Section 187 enables officers to
board and search ships, aircraft and certain resources
installations and sea installations.
Item 71 inserts new
subsection 219L(1A) which provides that where officers
have boarded a ship, aircraft or installation under section 185 or
187 and suspect on reasonable grounds that a person is unlawfully
carrying prohibited goods on his or her body, then the person may
be detained in order to be searched. Item 71 also
inserts new subsection 219L(1B). This provides
that where an officer who has boarded a ship or aircraft under
section 185 has reasonable grounds for suspecting that a person on
the ship or aircraft is carrying a weapon that could be used to
injure that officer, then the officer may detain the person so that
he or she can be searched.
Detention and search of suspects
Division 1B of Part XII of the Customs Act deals
with the circumstances under which persons reasonably suspected of
carrying prohibited goods(19) can be detained and subjected to a
frisk search,(20) an external search(21) or an internal search.(22)
The amendments deal with frisk searches and external searches.
Item 73 repeals paragraph
219L(2)(e) and inserts new paragraphs
219L(2)(e)-(g). Existing section 219L enables a detention
officer to detain a person at a 'section 234AA place' so that he or
she may be frisk searched if the officer suspects on reasonable
grounds that the person is unlawfully carrying prohibited goods.
New paragraphs 219L(e)-(g) add to the grounds of
reasonable suspicion, a suspicion reasonably formed on the basis of
a person's baggage, any visible item carried by the person, the
responses (or non-responses) made by a person to questions asked by
a Customs officer exercising their statutory powers, and the
documents produced (or not produced) by the person in compliance
with obligations under the Customs Act.
Existing section 219M of the Customs Act sets
out the conditions under which a frisk search of a person detained
under section 219L of the Act can be carried out.
Item 6 amends the definition of
'frisk search' contained in subsection 4(1) of the Customs Act in
relation to frisk searches conducted under new subsections 219L(1)
or (1A) or 219L(1B). In the case of the first two subsections, a
frisk search can be conducted to determine whether the person is
unlawfully carrying prohibited goods. In the case of new subsection
219L(1B), the frisk search can be conducted to determine whether
the person is carrying a weapon capable of inflicting injury on the
person carrying out the search.
Item 75 adds two new
subsections to section 219M. New subsection
219M(3) provides that if a person is detained at a
'designated place' that is not a 'section 234AA place', then the
officer conducting the frisk search must attempt to give the
detainee as much privacy as possible. New subsection
219M(4) provides that where a person is detained under
new subsection 219L(1B) so that a frisk search can
be conducted, the Customs officer must inform the person of certain
things before carrying out the search. For example, the person must
be informed why he or she is being searched and that failure to
submit to the search means that reasonable force can be used.
Item 76 inserts new
section 219NA which deals with what happens when a person
detained under section 219L(1B) refuses to submit to a frisk search
or attempts to prevent a Customs officer removing a weapon found as
a result of the search. New subsection 219NA(1)
enables the Customs officer to use reasonable force to conduct the
search or obtain the weapon. New subsection
219NA(3) ensures that prohibited goods found when a search
is carried out under subsection 219L(1B) can be seized.
Section 219R of the Customs Act deals with
external searches of persons detained under sections 219L or 219Q.
Item 81 amends section 219R to require that a
detention officer or police officer can only apply to an authorised
officer for permission to conduct an external search of a detainee
if the detainee has waived his or her right to have the application
dealt with by a Justice or if a Justice is not reasonably available
to consider the application.
Section 219ZC of the Customs Act sets out
general requirements for the detention of suspects. Present
subsection 219ZC(2) provides that a customs officer or police
officer exercising their powers must not use more force or subject
a detainee to greater indignity than is reasonable and necessary.
Item 83 inserts new subsection
219ZC(2A) into the Customs Act. This new subsection
provides that, without limiting the application of subsection
219ZC(2), the use of force in conducting an external search of a
detainee will be regarded as reasonable and necessary if an order
has been made by a Justice for the person to be externally searched
and the person resists. Additionally, the use of force will be
reasonable and necessary if the order has been made by an
authorised person because a Justice is not reasonably available and
the detainee resists.
Special provisions dealing with
Item 87 inserts new
Part XIIA into the Customs Act. New Part XIIA contains
special provisions dealing with prohibited weapons. In certain
cases where ships or aircraft have arrived in Australia, officers
can approve a safe storage place for prohibited weapons on the ship
or aircraft or take the weapons into custody-until the ship or
aircraft leaves Australia. The definition of 'prohibited weapon'
includes firearms, firearm accessories and parts, firearm magazines
or ammunition that would be classed as 'prohibited imports' if they
had been brought into Australia.
Schedule 2-Amendment of the
Customs Administration Act 1985
Item 1 of Schedule
2 repeals existing subsections 16(1), (2) and (3) of the
Customs Administration Act 1985 and substitutes a number
of provisions in their stead.
New subsection 16(2) provides
that a person who is or was an 'authorised person' must not make a
record of or disclose 'protected information.' There are exceptions
to this general prohibition-if the record or disclosure is
authorised by section 16, authorised by any other law or done in
the course of performing the person's duties. The penalty for
breach is 2 years imprisonment.
'Protected information' is defined in
new section 16(1A) as information which directly
or indirectly comes to the knowledge or into the possession of an
'authorised officer' during the performance of his or her
Authorised disclosures may be made in accordance
with authorisations given by the Chief Executive Officer of Customs
under new subsections 16(3A), (3B), (3C) or (3D).
In brief, the CEO may enable an authorised officer to disclose
information held by the Australian Customs Service to a
Commonwealth agency, to a State agency for Commonwealth purposes,
to a State agency for its purposes or to a foreign country, an
instrumentality of a foreign country or an international
organisation in specified circumstances. Such disclosures must be
authorised by the CEO for specified purposes [(new
subsection 16(3E)]. It is also provided that a person can
make a record of or disclose protected information if he or she
believes on reasonable grounds that it is necessary to do so to
avert or reduce a threat to health or life [new subsection
16(3F)]. Special provisions are set out in new
subsection 16(7) relating to the disclosure of personal
Item 3 inserts new
section 16AA into the Customs Administration Act.
New section 16AA relates to the prosecution of
directors, employees or agents of corporations for offences under
the Customs Administration Act or for secondary offences created by
the Crimes Act 1914. Thus, for example, in order to prove
the state of mind of a corporation in relation to conduct it is
enough to show that a director, employee or agent of the
corporation engaged in the conduct within the scope of their
authority and had the requisite state of mind.
- The Chief Executive Officer is the person who, under the
Minister, controls the Australian Customs Service.
- Australian Customs Service, Annual Report 1996-97,
- Attorney-General's Department, Commonwealth Criminal Code,
Serious Drug Offences in Commonwealth Criminal
Jurisdiction-Criminal Code and Customs Act 1901. Discussion
Paper, December 1997.
- Second Reading Speech, Customs Legislation Amendment Bill
(No.1) 1998, Parliamentary Debates (Hansard), House of
Representatives, 2 July 1998, p.5875.
- Ibid, p.5876.
- Australian Bureau of Criminal Intelligence, Australian
Illicit Drug Report 1996-97, December 1997.
- THC or delta-9-tetrahydrocannabinol is the psychoactive
ingredient in cannabis.
- For example, Customs seized 38.7 kilograms in 1995-96 and 88.7
kilograms in 1996-97. The number of seizures by Customs of
amphetamines and euphoric drugs has increased from 120 to 169. See
Australian Illicit Drug Report 1996-97.
- Second Reading Speech, op.cit, p.5875.
- See subsection 4(1).
- See subsections 4(1), 4(5) & 4(6), Customs Act.
- Prescribed voyages or flights are voyages or flights between
places that are outside Australia. See subsection 175(1).
- See subsection 183UA(1), Customs Act.
- 'Conveyance' is defined in subsection 183UA(1) as an aircraft,
railway rolling stock, a vehicle or a vessel.
- 'Baggage' is defined in subsection 183UA(1) as goods carried by
or for travellers or crew.
- 'Prohibited goods' is defined in subsection 4(1) as prohibited
imports and exports and goods subject to Customs control.
- A 'frisk search' is defined in subsection 4(1) as quick search
of the person where hands are run over the person's outer garment
and an examination of anything worn by the person that can be
conveniently removed and is voluntarily removed by the person. This
provision is amended by the Bill-see Item 6.
- An 'external search' is defined in subsection 4(1) as a search
of a person's body or anything worn by or in the possession of the
person in order to determine whether the person is carrying
prohibited goods and to recover those goods. This definition is
amended by the Bill to omit the words 'or in the possession of.'
See Item 5.
- An 'internal search' is defined in subsection 4(1) as an
examination, including an internal examination of a person's body
to determine whether the person is internally concealing a
substance or thing and includes the recovery of any substance or
28 August 1998
Bills Digest Service
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