Question Number
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Question
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1
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Can you provide examples of the range of prohibited
goods that would be subject to the procedures outlined in schedule 1- import
controls?
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2
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Will ACS take into consideration the total value of a
prohibited import in deciding whether to issue an infringement notice?
a. Does
ACS have an upper limit or threshold in mind (provide if applicable) above
which infringement notices will not be issued or will be unlikely to be
issued?
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3
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Can ACS outline the types of persons or entities that
the proposed scheme is aimed or directed towards? For example airline
passengers, importers of parcels, general air freight, freight forwarders.
a. If
any of the above groups are contemplated to be subject to the proposed
scheme, can ACS provide details as to who has been consulted and when, and
can the minutes or outcomes of these consultations be provided to the
committee. If not why not? When will
they be consulted?
b. If
no consultations occurred, how is it proposed to take any of the views of
these groups into consideration, if the bill is now drafted? If their views
were sought and provided, can the ACS provide details of them and indicate
what parts of the bill were changed as a result of this?
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4
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This question relates to the extent to which the new
infringement notice regime could be applicable to importers and exporters
rather than merely passengers and their luggage in a s234AA place.
The regime sets up:
- a surrender of goods mechanism under section 209
N
- a detention of goods under section 209U
- an infringement notice scheme dealing with
concealed goods under section 243ZH.
ACS has indicated that the infringement notice regime
will only apply to ship and aircraft passengers. You will note however that only the
surrender of goods regime under Section 209N and the infringement scheme
s243ZH are limited to goods in a s234AA place. Section 209U which covers goods detained
makes no reference to suggest that it is limited to s234AA places.
These regimes are intended to replace or substitute
for the operation of Section 203B which when we determine what that applies
to, applies to containers and conveyances as well as simply passengers at
airports and customs designated Section 234AA areas. Therefore, 1 of the 3 pillars to the regime
seemingly may have application outside the limitation of Section 234AA
places.
a. In
relation to this detention scheme, does it apply outside of section 243AA
areas (ACS indicated that it may apply to the postal environment)?
b. Could
it also apply to the shipping container environment or the air container
environment?
c. Can
ACS provide the definition and other examples of a 234AA place?
d. Can
you please explain how this will interact with the accredited client program
and any other infringement schemes, or advise how you intend to limit the
application?
e. Will
the infringement notice regime be applicable to persons other than passengers
with their luggage? For example
brokers, importing businesses or freight forwarders.
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If so, will the penalties that apply differ and how
so?
- If so, who will be deemed to be the owner of the
goods for the purposes of the regime?
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5
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What is the penalty regime (i.e. range of penalties,
civil/criminal forfeiture regime), and how is it calculated?
a. How
will the penalty regime be applied to ensure fairness and avoid unjust
outcomes or inconsistent treatment of persons or entities?
b. How
will recovery of unpaid penalties be recovered?
c. How
much revenue is projected to be obtained from introducing the proposed
scheme?
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6
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Has the ACS considered an alternative low-cost
procedure to providing importers with the right to apply to a court for
compensation in respect of goods that have been surrendered? (The Law Council
has argued that the costs of applying to a court would likely exceed the
amount of compensation)
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7
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Have any efficiency gains been forecast from the
introduction of the new scheme? If so,
provide details.
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8
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What training of ACS staff has been undertaken to date,
in respect of the proposed scheme?
a. What
type of training of staff is contemplated for staff of the proposed scheme?
b. Have
the relevant unions been consulted about the proposed changes? If not, why
not?
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9
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Have the regulations contemplated in sections 209M and
209T been drafted, if not why not? If yes, can you provide a copy?
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10
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Are the directions of the CEO under 209R specified?
a. If
yes, can you provide a copy? If not, why not?
b. What
types of directions are contemplated under these directions?
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11
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Have the guidelines provided for under section 243ZG
been developed? If they have been can the ACS provide a copy, if not why not?
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12
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Can the ACS provide a diagrammatic description (i.e.
flow chart) of how the proposed scheme, including the infringement notices under
this bill, will work?
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13
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In respect of the discretion the customs officer has
in deciding to use the power under 209N, can ACS outline the training or
provide a copy of the guidelines that will assist Customs officers in
carrying out there duties?
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14
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What systems or procedures or internal reviews are in
place or will be put in place to ensure that officers carry out their duties
diligently?
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15
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What review mechanisms are available to persons
subject to the exercise of a customs officer discretion contemplated in the
new proposals?
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16
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Is there a complaint handling procedure in place to
deal with the use of the discretion?
a. If
so, can you provide a copy of it? If not why not?
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17
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Can you provide a copy of those items under the PI
regulations that will be subject to the regime?
a. Can
this list be changed, if so what processes will be adopted when changes to
the PI regulations are contemplated?
b. Are
the PI regulations disallowable instruments?
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18
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Will both the infringement scheme and the
post-importation declaration procedures apply to postal articles, either mail
or parcels? If not why not?
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19
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What procedures are provided to ensure the under
subdivision GC a person can be given the option of obtaining a
post-importation permission?
a. Is
any decision on this matter made by the Customs officer subject to either
internal or external review?
b. Is
it subject to judicial review?
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20
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What procedures are in place to ensure the integrity
of the system?
a. If
there are procedures in place, can they be provided to the committee?
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21
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What discretion is available for a customs officer to
decide that there was no intention by the person subject of investigation not
to conceal the goods in accordance with the relevant section? (ie what
happens where a person is unaware that they have concealed a prohibited
item?)
a. If
this discretion exists, is it too broad and open to abuse?
b. If
this discretion does not exist, how are ACS personnel expected to determine
whether an intention existed?
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22
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Will this proposed scheme be available to be used by
part time or casual employees of customs? If yes, what safeguards are put in
place to ensure the power is exercised correctly?
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23
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Can any of the time periods specified in the Bill be
extended?
a. If
so can you provide outline how any extension would operate and on what basis
the periods could be extended?
b. If
not, why not in the cases of hardship or if there exists reasonable grounds?
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24
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This question relates to the disposal of surrendered
goods and forfeited goods which are classified as prohibited imports. Does
the use of the term disposal open up the possibility that the goods are not
necessarily destroyed? For example,
that the goods can be disposed of through sale rather than disposed of
through destruction.
a. If
so, under what circumstances might the goods end up not being destroyed?
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25
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In relation to Section 209V (Detained goods to be
secured), why were the additional instructions of the equivalent ss204 (3) to
(5) not applied here in relation to this new regime for detention of goods?
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26
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How does the new system apply in the circumstances
where a person’s suitcase contains a prohibited import or when a parcel
containing multiple items contains a prohibited import?
a. Are
all contents deemed to be forfeited or just the prohibited item?
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27
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With regards to Section 243ZA subsection (4) as it
exists under the Act, every other reference to infringement notice has been
modified in this Division (now subdivision).
Why has this subsection not been modified to include the terms “served
under this subdivision” or similar?
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28
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In the ACS submission on the Bill, it was indicated
that passengers must pay the infringement notice before leaving the ACS
controlled area to remove liability for the offence and the proposed model
requires the customs officer to accompany the passenger to the duty
collection area while the notice is paid:
a. How
labour intensive is this likely to be?
b. Why
are these people not to be allowed to leave until they have paid?
c. Does
ACS intend to escort people to a place they can obtain the required funds
(e.g. an ATM)?
d. What
will happen should a person wish to pay the penalty but not have immediate
access to electronic funds?
e. In
the above circumstances will the ACS allow the person to arrange for a third
party to arrange the funds to be brought to the duty collection area? For example a friend or relative to bring
the required cash:
f.
In the situation where someone can arrange for a
friend or relative to drop the money off at the airport please advise as to
whether the ACS is planning to keep a Customs officer in accompaniment until
the friend or relative arrives with the cash?
g. Does
ACS intend to set any time limits for the person to arrange the payment of
the penalty? If so, provide details.
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29
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Will there be a public education campaign to inform
the travelling public of the new regime?
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30
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Will there be a trial period before the regime
officially commences?
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31
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There appears to be a drafting error in Item 5 of
Schedule 1 – does paragraph 203(3)(e) of the Customs Act exist?
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32
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Proposed section 209N refers to 'the available
options' for dealing with the goods and the consequence of exercising each of
these options.
a. What
are these options? Can you provide the committee with a copy of the options?
b. What
are all the relevant consequences of exercising the options? Can you provide
the committee with a copy of these?
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33
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Can you provide the committee with an explanation of
what 'concealed' actually means in the context of the proposed regime and
provide the committee with details of all the circumstances/situations where
the term is intended to apply?
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34
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Proposed paragraph 209X(1)(j) refers to notices being
served in a foreign country.
a. How
is this intended to operate in practice?
b. What
legislation underpins the operation of this proposed paragraph (eg mutual
assistance legislation)?
c. Is
a formal relationship with relevant countries required?
d. What
will happen if no diplomatic relationship between Australia and the relevant
country exists?
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35
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The committee has previously requested a flow chart of
how the infringement notices regime will operate (Q.11).
a. Can
the ACS also provide flow charts of how the post-importation permission
scheme will operate and how the seizure of goods scheme will operate –
essentially there will be 3 separate regimes in operation.
b. Could
the ACS also set out how the 3 separate processes will interrelate?
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36
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Why must a passenger pay an infringement notice before
leaving a section 234AA area? Why can't the passenger be given a certain
period of time (eg 28 days) to pay (cf parking infringement notices etc)?
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37
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Why has a distinction been made in proposed
subparagraphs 243ZI(1)(e)(i) and (ii) between persons in section 234AA areas
and 'in any other case'? What does 'in any other case' mean? Please provide
the committee with details of what this is intended to cover. If it is
intended to only cover the postal environment, why isn't this specifically
mentioned in the Bill/EM?
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38
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Is there a definition of the passenger processing area
or the postal environment? If not, why not?
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39
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How does the bill actually differentiate between the
areas of postal environment and the commercial air or sea cargo environments?
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40
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What is the definition of the commercial air or sea
cargo environments that will be used in the bill to differentiate these
services from the actual areas of passenger processing or postal
environments? If there is no definition, how will the ACS decide which is
commercial air or which is postal environments?
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41
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Can ACS provide examples of what is said to be in the
commercial air environment and what is in the postal environments?
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42
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Will all parcel post be subject to the new regime
proposed in the bill?
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43
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Can ACS demonstrate in the bill how the above areas
are separated? If not, can customs explain how the bill will not have application
to the commercial air or sea cargo areas?
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44
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Can ACS confirm that the infringement notice scheme
can apply in any area subject to a 203B seizure, if yes can ACS explain why
it will not operate in the commercial area of sea cargo or air cargo? If yes,
can customs explain how the bill will not apply in these areas?
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45
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Will the infringement notice scheme and the detention
scheme operate in the international postal exchanges? If yes, can you provide
a list of those sites?
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46
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Will the bill apply to the air parcel post operators
such as Fed Ex and DHL etc.? If not, why not? If not, can you explain how the
bill does not apply to these operations?
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47
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Can a person be prosecuted under the bill as well as
having the goods detained and post import permission sought? If not, can you
explain in the bill where that outcome is excluded, if yes, can you explain
what decision-making process will be used to decide whether to prosecute or
not? Will this be dependant on whether a good is granted permission or not or
can a person be prosecuted irrespective of whether the importer is granted
permission to import the good or not? What safeguards are in place to ensure
that the detention regime and the post import permission regime operates
fairly?
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