Bills Digest No. 65  1998-99 Customs Legislation Amendment Bill (No.1) 1998


Numerical Index | Alphabetical Index

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
Main Provisions
Endnotes
Contact Officer and Copyright Details

Passage History

Customs Legislation Amendment Bill (No.1) 1998

Date Introduced: 25 November 1998

House: Senate

Portfolio: Attorney-General

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 after the end of that period.

Purpose

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.

Background

This Bill was originally introduced into the House of Representatives on 2 July 1998. It had not passed either House of Parliament when Parliament was prorogued for the 1998 General Election. The Bill lapsed when the election was called. It has now been re-introduced.

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 customs prosecutions.

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 Second Reading Speech states that the Bill:

... 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 November 1997.(4)

The components of the strategy include demand reduction and harm reduction and, in addition, supply reduction through interdiction at the Customs barrier.(5)

The Second Reading Speech continues:

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 agencies.(7)

It is extremely difficult to estimate the quantity of illicit drugs brought into Australia. More than 236 kilograms of heroin was seized by law enforcement agencies during 1996-97-71.6% of this was seized at the Customs barrier.(8) In October 1998, in the largest heroin seizure to occur in Australia, 400 kilograms of heroin was seized on a remote NSW beach in an operation involving the Australian Federal Police, the Customs Service and the Royal Australian Navy.(9) 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. And, in December 1998 a record 225 kg of cocaine was seized by the AFP and Customs from a yacht off Coffs Harbour, NSW. 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. For example, in October 1998, Customs officers and police seized 17kg of ecstasy tablets at Sydney airport.(10) 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(11) herbal cannabis produced locally.(12)

Customs can, at present, search the baggage and, in certain circumstances, the person of passengers and crew arriving in Australia.(13) The Second Reading Speech states, 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.'(14)

Main Provisions

Schedule 1-Amendment of the Customs Act 1901

Definitions

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 below).

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 installations

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.(15) A 'sea installation' is defined in the Sea Installations Act 1987 (Cwlth).

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.(16) Items 15 to 19 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 23 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 so involved.

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. (17)Subsection 175(3) contains similar provisions in relation to the owner or pilot of a prescribed aircraft (ie a coastal aircraft).

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 the following measures-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 'special forfeited goods' without a warrant at a 'Customs place'

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 permission.

What are called '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.(18) 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(19) 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(20) 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 183UA(1)].

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)].

Search & seizure of narcotic goods without a warrant outside a 'Customs place'

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 warrant outside a 'Customs place'.

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 installations

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(21) can be detained and subjected to a frisk search,(22) an external search(23) or an internal search.(24) 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.

The ambit of new subsection 219AC(2A) appears to be very wide and raises the question of how much force would be excusable under its aegis.

Special provisions dealing with prohibited weapons

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 record 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 maximum 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 duties.

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 information.

Item 3 inserts new section 16AA into the Customs Administration Act. New section 16AA relates to the proof of offences under the Customs Administration Act or for secondary offences created by the Crimes Act 1914. For example, in order to prove the state of mind of a corporation in relation to conduct it is enough under new subsection 16AA(2) 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.

Endnotes

  1. The Chief Executive Officer is the person who, under the Minister, controls the Australian Customs Service.

  2. Australian Customs Service, Annual Report 1996-97, p.36.

  3. Attorney-General's Department, Commonwealth Criminal Code, Serious Drug Offences in Commonwealth Criminal Jurisdiction-Criminal Code and Customs Act 1901. Discussion Paper, December 1997.

  4. Second Reading Speech, Customs Legislation Amendment Bill (No.1) 1998, Current Senate Hansard, 25 November 1998, p.384.

  5. Ibid.

  6. Ibid.

  7. Ibid.

  8. Australian Bureau of Criminal Intelligence, Australian Illicit Drug Report 1996-97, December 1997.

  9. See 'Police, Customs crack $400m heroin ring,' Canberra Times, 15 October 1998; 'Heroin haul: a drop in the ocean or enough to make waves?' Sydney Morning Herald, 17 October 1998.

  10. 'Big drug seizure; two men arrested,' Canberra Times, 23 October 1998.

  11. THC or delta-9-tetrahydrocannabinol is the psychoactive ingredient in cannabis.

  12. 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.

  13. Second Reading Speech, op.cit, p.384.

  14. Ibid.

  15. See subsection 4(1).

  16. See subsections 4(1), 4(5) & 4(6), Customs Act.

  17. Prescribed voyages or flights are voyages or flights between places that are outside Australia. See subsection 175(1).

  18. See subsection 183UA(1), Customs Act.

  19. 'Conveyance' is defined in subsection 183UA(1) as an aircraft, railway rolling stock, a vehicle or a vessel.

  20. 'Baggage' is defined in subsection 183UA(1) as goods carried by or for travellers or crew.

  21. 'Prohibited goods' is defined in subsection 4(1) as prohibited imports and exports and goods subject to Customs control.

  22. 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.

  23. 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.

  24. 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 thing.

Contact Officer and Copyright Details

Jennifer Norberry
8 December 1998
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

IRS staff are available to discuss the paper's contents with Senators and Members
and their staff but not with members of the public.

ISSN 1328-8091
© Commonwealth of Australia 1998

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Published by the Department of the Parliamentary Library, 1998.

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