Customs Amendment Act (No. 1) 2000

No. 7, 2000

An Act to amend the Customs Act 1901, and for related purposes

[Assented to 7 March 2000]

The Parliament of Australia enacts:

This Act may be cited as the Customs Amendment Act (No. 1) 2000.

(1) Subject to subsection (2), this Act commences on the day on which it receives the Royal Assent.

(2) The items of Schedule 1 are taken to have commenced at the same time as items 2 to 7 of Schedule 1 to the Import Processing Charges Amendment Act 2000.

3 Schedule(s)

Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendment of the Customs Act 1901

1 Subsection 4(1)

Insert:

insolvent under administration means a person who:

(a) under the Bankruptcy Act 1966 or the law of an external Territory, is a bankrupt in respect of a bankruptcy from which the person has not been discharged; or

(b) under the law of an external Territory or the law of a foreign country, has the status of an undischarged bankrupt;

and includes:

(i) section 50 or Division 2 of Part X of the Bankruptcy Act 1966; or

(ii) a corresponding provision of the law of an external Territory or the law of a foreign country; or

(d) a person who has, at any time during the preceding 3 years, executed a deed of assignment or a deed of arrangement under:

(i) Part X of the Bankruptcy Act 1966; or

(ii) the corresponding provisions of the law of an external Territory or the law of a foreign country; or

(e) a person whose creditors have, within the preceding 3 years, accepted a composition under:

(i) Part X of the Bankruptcy Act 1966; or

(ii) the corresponding provisions of the law of an external Territory or the law of a foreign country.

2 Subsection 4(1)

Insert:

low value cargo has the same meaning as in section 63A.

3 Subsection 4(1)

Insert:

special reporter has the same meaning as in section 63A.

4 Before section 64

Insert:

Subdivision A—General reporting requirements

63A Definitions

In this Division:

abbreviated cargo report means a computer cargo report, in relation to low value cargo of a particular kind, made by a special reporter in relation to cargo of that kind in accordance with the requirements of section 64AB.

applicant means an applicant under Subdivision C for registration, or for renewal of registration, as a special reporter in relation to low value cargo of a particular kind.

application means an application under Subdivision C for registration, or for renewal of registration, as a special reporter in relation to low value cargo of a particular kind.

dedicated computer facilities, in relation to a person who is seeking to be registered, or is or has been registered, as a special reporter in relation to low value cargo of a particular kind, means computer facilities of that person that meet the requirements of Subdivision C relating to the making of abbreviated cargo reports in relation to cargo of that kind, and the storage of electronic information concerning individual consignments covered by those reports.

house agreement, in relation to a particular mail‑order house and to a particular registered user proposing to handle consignments from that house, means a written agreement between that house and that user that includes provisions:

(a) setting out the arrangements made by the user with the house for the shipment of low value goods consigned by that house and handled by that user; and

(b) providing that all such consignments from that house that are to be handled by that user will be consolidated at a single place of export outside Australia designated or determined in accordance with the agreement; and

(c) providing that the house will transmit electronically to the user full particulars of each such consignment for which an order has been placed including details of the consignment’s transportation to Australia.

low value cargo means cargo of one of the following kinds:

(a) cargo (other than reportable documents) consigned from a particular mail‑order house;

(b) cargo comprising reportable documents;

being cargo in relation to each single consignment of which:

(d) section 68 does not apply because of paragraph 68(1)(f); and

(e) the total liability for import duty and sales tax does not exceed $50 or such other amount, not exceeding $75, as is from time to time prescribed for the purposes of this definition.

mail‑order house means a commercial establishment carrying on business outside Australia that sells goods solely in response to orders placed with it either by mail or electronic means.

notified premises, in relation to a person who is, or has been, a special reporter in relation to low value cargo of a particular kind, means:

(a) the premises or all premises indicated in the application, in accordance with subsection 67EC(3), as places in Australia at which are located:

(i) dedicated computer facilities for the storage of information relating to cargo of that kind; or

(ii) documents relating to such information; and

(b) if a special reporter notifies the CEO under subsection 67EF(2) that, with effect from a particular day, the premises at which all or any of those facilities or documents will be located is to be changed to another place in Australia—with effect from that day, the premises at which all of those facilities and documents will be located.

registered user means a registered user under section 67C in relation to the Sea Cargo Automation System or the Air Cargo Automation System.

reportable document means:

(a) any paper or other material on which there is writing; or

(b) any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or

(d) any article or material from which sounds, images or writing is capable of being produced with or without the aid of a computer or of some other device;

but does not include any such paper, article or other material:

(e) that comprises advertising material; or

(f) that does not yet contain the sounds, images or writing for the carriage of which it was produced.

special reporter means a person who is registered under Subdivision C as a special reporter in respect of low value cargo of a particular kind.

5 After subsection 64AB(3A)

Insert:

(3B) An owner of a ship or an aircraft who is a special reporter in relation to low value cargo of a particular kind must, unless subsection (3C) applies, transmit each cargo report that relates to low value cargo of that kind to Customs by computer.

(3C) Subsection (3B) does not affect the obligations imposed on the owner of a ship or an aircraft to report a particular consignment of low value cargo in relation to which the owner is a special reporter at any time when the owner is temporarily unable to transmit to Customs a computer report that covers that consignment.

(3D) For the purposes of a computer cargo report in relation to low value cargo of a particular kind, the statement approved under subsection (5) must not require the special reporter making the report to include information relating to cargo of that kind at a level of specificity below the level of a submaster air waybill or an ocean bill of lading, as the case requires.

6 Subsection 64ABC(1)

Omit “A person”, substitute “Subject to subsection (1A), a person”.

7 Paragraph 64ABC(1)(a)

Omit “an aircraft at a particular airport”, substitute “a ship or aircraft at a particular port or airport”.

8 After subsection 64ABC(1)

Insert:

(1A) Subsection (1) does not apply to a person who makes a cargo report in relation to goods that are intended to be, or that have been, unshipped from a ship except to the extent (if any) that the goods covered by the report are low value cargo of a particular kind and the person is a special reporter in relation to those goods.

9 Paragraph 64ABC(1)(c)

Repeal the paragraph, substitute:

(i) in the case of a report other than an electronic report made by a special reporter—particulars of the consignment; and

(ii) in the case of an electronic report made by a special reporter in relation to low value cargo of a kind to which the reporter’s registration relates—such information concerning the cargo covered by the report as is required under subsection 64AB(5); and

10 Division 3A of Part IV (heading)

Repeal the heading.

11 Before section 67A

Insert:

Subdivision B—The use of computers in sea and air cargo automation systems

12 Before Division 4

Insert:

Subdivision C—The registration, rights and obligations of special reporters

67EA Special reporters

For the purposes of sections 64AB and 64ABC of this Act, and of section 7 of the Import Processing Charges Act 1997, a person or a partnership may, in accordance with this Subdivision, become a special reporter in relation to low value cargo of a particular kind.

67EB Requirements for registration as a special reporter

(1) The CEO must not register a person as a special reporter if:

(a) the applicant is not a registered user; or

(b) the applicant has not reported as a registered user in relation to low value cargo of that kind in accordance with subsection (2); or

(c) if the applicant is applying to be registered in respect of low value cargo consigned from a particular mail‑order house—the applicant is not a party to a house agreement with that mail‑order house in force at all times during the 3 consecutive months before the making of the application; or

(d) the applicant does not have dedicated computer facilities having such specifications as are determined, in writing, by the CEO for the purpose of this paragraph, in relation to low value cargo generally, including, in particular, specifications to ensure that the information maintained by the applicant in those facilities will not be able to be accessed or altered by unauthorised persons; or

(e) in the CEO’s opinion:

(i) if the applicant is a natural person—the applicant is not a fit and proper person to be registered as a special reporter; or

(ii) if the applicant is a partnership—any of the partners is not a fit and proper person to be a member of a partnership registered as a special reporter; or

(iii) if the applicant is a company—any director, officer or shareholder of a company who would participate in the management of the affairs of the company is not a fit and proper person so to participate; or

(iv) an employee of the applicant who would participate in the management of the applicant’s dedicated computer facilities is not a fit and proper person so to participate; or

(v) if the applicant is a company—the company is not a fit and proper company to be registered as a special reporter.

(2) An applicant for registration as a special reporter in relation to low value cargo of a particular kind will be taken to have reported as a registered user in relation to cargo of that kind in accordance with this subsection if the applicant has, in the capacity of a registered user, made cargo reports covering:

(a) in the case of low value cargo consigned from a particular mail‑order house to consignees in Australia—at least 5,000 such consignments per month from that mail‑order house during the 3 consecutive months immediately before making an application under section 67EC; or

(b) in the case of low value cargo comprising reportable documents consigned from places outside Australia to consignees in Australia—at least 1,000 individual consignments of such documents per month during the 3 consecutive months immediately before making an application under section 67EC; or

(c) in the case of low value cargo of another prescribed kind consigned from a place outside Australia to a consignee in Australia—such number of consignments of that prescribed kind as may be specified by the regulations.

(3) The CEO must, in deciding whether a person is a fit and proper person for the purposes of subparagraph (1)(e)(i), (ii), (iii) or (iv) have regard to:

(a) any conviction of the person of an offence against this Act committed within the 10 years immediately before the decision; and

(b) any conviction of the person of an offence punishable by imprisonment for one year or longer:

(i) against another law of the Commonwealth; or

(ii) against a law of a State or of a Territory;

if that offence was committed within the 10 years immediately before that decision; and

(d) whether the person was, in the 2 years immediately before that decision, a director of, or concerned in the management of, a company that:

(i) had been, or is being, wound up; or

(ii) had had its registration as a special reporter in relation to any low value cargo of any kind cancelled by the CEO because of a breach of any condition to which the registration of the company as a special reporter was subject; and

(e) whether any misleading information or document has been furnished in relation to the person by the applicant under subsection 67EC(2), 67ED(5) or 67EK(12); and

(f) if any information or document given by or in relation to the person was false—whether the applicant knew that the information or document was false.

(4) The CEO must, in deciding whether a company is a fit and proper company for the purpose of subparagraph (1)(e)(v), have regard to:

(a) any conviction of the company of an offence:

(i) against this Act; or

(ii) if it is punishable by a fine of $5,000 or more—against another law of the Commonwealth, or a law of a State or of a Territory;

committed:

(iii) within the 10 years immediately before that decision; and

(iv) at a time when any person who is presently a director, officer or shareholder of a kind referred to in subparagraph (1)(e)(iii) in relation to the company was such a director, officer or shareholder; and

(b) whether a receiver of the property, or part of the property, of the company has been appointed; and

(d) whether the company has executed, under Part 5.3A of that Law, a deed of company arrangement that has not yet terminated; and

(e) whether the company has been placed under official management; and

(f) whether the company is being wound up.

(5) Nothing in this section affects the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieves persons from the requirement to disclose spent convictions and requires persons aware of such convictions to disregard them).

67EC The making of an application

(1) An applicant for registration as a special reporter in respect of low value cargo of a particular kind may make an application under this subsection in relation to cargo of that kind.

(2) An application must:

(a) be in writing; and

(b) be in an approved form; and

(d) be accompanied by such other documentation as the form requires; and

(e) be signed in the manner indicated in the form; and

(f) be lodged as required by subsection (4).

(3) Without limiting by implication the generality of the information that may be required by the approved form, the application must indicate the premises in Australia at which the dedicated computer facilities of the applicant are located and the premises in Australia at which documents relating to information required to be stored on those facilities are or will be located.

(4) An application is taken to have been lodged with Customs when the application is first received by an officer of Customs designated by the CEO to receive such applications.

(5) The day on which an application is taken to have been lodged must be recorded on the application.

(6) For the avoidance of doubt, it is the intention of the Parliament that a person who seeks to be registered as a special reporter:

(a) if the person seeks that registration in relation to low value cargo consigned from more than one mail‑order house—must make a separate application for such registration in relation to each such house; and

(b) if the person seeks that registration in relation to low value cargo comprising reportable documents—must make a separate application for registration in relation to low value cargo of that kind; and

(c) if the person seeks that registration in relation to low value cargo of any other kind prescribed by the regulations—must make a separate application for such registration in relation to each prescribed kind of low value cargo.

67ED Consideration of the application

(1) If an application under section 67EC for registration as a special reporter in relation to low value cargo of a particular kind is lodged, the CEO must, having regard:

(a) to the terms of the application; and

(b) if additional information is supplied in response to a requirement under subsection (5)—to that additional information;

decide whether or not to register the applicant in relation to low value cargo of that kind.

(2) The CEO must make a decision within 60 days after:

(a) if paragraph (b) does not apply—the lodgment of the application; and

(b) if the CEO requires further information to be supplied under subsection (5) and the applicant supplies the information in accordance with that subsection—the receipt of the information.

(3) If the CEO decides to register the applicant in relation to low value cargo of the kind referred to in the application, the CEO must register the applicant as a special reporter in respect of low value cargo of that kind and notify the applicant, in writing, of that decision specifying the day on which the registration comes into force.

(4) If the CEO decides not to register the applicant in respect of low value cargo of that kind referred to in the application, the CEO must notify the applicant, in writing, of that decision setting out the reasons for so deciding.

(5) If, in considering the application, the CEO decides that he or she needs further information on any matter dealt with in the application:

(a) the CEO may, by notice in writing to the applicant, require the applicant to provide such additional information relating to that matter as the CEO specifies within a period specified in the notice; and

(b) unless the information is given to the CEO within that period—the applicant is taken to have withdrawn the application.

67EE Basic conditions attaching to registration as a special reporter

(1) The registration of a special reporter is subject to:

(a) the conditions set out in this section and section 67EF; and

(b) if the special reporter is registered as a special reporter in respect of low value cargo consigned from a mail‑order house—section 67EG; and

(2) The special reporter must give the CEO written information of any of the following matters within 30 days after the occurrence of the matter:

(a) any matter that might, if the reporter were not a special reporter but were an applicant for registration, cause paragraph 67EB(1)(e) to apply in relation to the reporter;

(b) if, after the registration, or renewal of registration, of a company as a special reporter, a person commences to participate, as a director, officer or shareholder, in the management of the affairs of the company—the fact of such commencement; and

(c) if, after the registration, or renewal of registration, of a special reporter, a person commences to participate as an employee of the special reporter in the management of the dedicated computer facilities of the special reporter—the fact of such commencement; and

(d) if the special reporter is a partnership—the fact of any change in the membership of the partnership.

(3) The special reporter must, except in the circumstances referred to in subsection 64AB(3C), communicate such cargo reports by using dedicated computer facilities.

67EF Storage and record maintenance conditions

(1) A person who is or has been a special reporter must:

(a) store in dedicated computer facilities at notified premises all information relating to individual consignments that the reporter would, but for the reporter’s registration under section 67ED or renewal of registration under section 67EK, be required to give to Customs under section 64AB; and

(b) for 2 years after the date that an abbreviated cargo report covering a consignment is transmitted to Customs, retain at notified premises all the information stored under paragraph (a) in relation to that consignment and also all physical documents of a prescribed kind that cover or relate to that consignment.

(2) If, at any time, while a person is, or within 2 years after the person ceased to be, a special reporter in relation to low value cargo of a particular kind, the person intends to change the location of notified premises at which:

(a) all or any of the dedicated computer facilities used to store information relating to cargo of that kind are situated; or

(b) all or any documents containing information relating to cargo of that kind required to be stored in such facilities are situated;

the person must, before so doing, notify the CEO in writing of the intention to change the premises and include particulars of the changes proposed and of the date on which those changes will take effect.

(3) The special reporter must ensure that the changed premises referred to in subsection (2) are located in Australia.

(4) The special reporter must provide Customs with online access to the information stored and retained under subsection (1) and with the capacity to download that information, or a part of that information, at any time as required by Customs.

(5) The special reporter must, despite providing Customs with the capacity to download information referred to in subsection (4), electronically transfer that information, or a part of that information, to Customs at any reasonable time as required by Customs.

67EG Special mail‑order house condition

If a registered user is registered as a special reporter in relation to low value cargo consigned from a particular mail‑order house, the registered user must:

(a) ensure, at all times while that registered user continues to be a special reporter in relation to that mail‑order house, that there is in force between the registered user and that mail‑order house a house agreement within the meaning of section 63A; and

(b) if the agreement expires or for any reason is terminated or there is a breach or an alleged breach of the terms of that agreement—notify the CEO, in writing, of that expiration or termination or of that breach or alleged breach.

67EH Further conditions may be imposed by regulations

The regulations may, at any time, provide that:

(a) if a person is first registered as a special reporter after that time; or

(b) if a person’s registration as a special reporter is renewed after that time;

that registration, or registration as renewed, is subject to such further conditions relevant to registration or renewal of registration as a special reporter under this Subdivision as the regulations specify.

67EI Breach of conditions of registration

(1) A person who is or has been a special reporter must not breach a condition of the person’s registration as a special reporter.

Penalty: 50 penalty units.

(2) An offence against subsection (1) is an offence of strict liability.

67EJ Duration of registration

If a person is registered as a special reporter in relation to low value cargo of a particular kind, that registration:

(a) unless paragraph (b) applies—comes into force on a date specified by the CEO under subsection 67ED(3); and

(b) if it is a renewed registration—comes into force on a date determined under subsection 67EK(8); and

67EK Renewal of registration

(1) A person who is a special reporter in relation to low value cargo of a particular kind may seek renewal of registration in relation to cargo of that kind by making and lodging a further application in accordance with the requirements of section 67EC:

(a) unless paragraph (b) applies—not later than 30 days before the end of the current period of registration; or

(b) if the CEO is satisfied that, for reasons beyond the control of the special reporter, it was not possible to meet the requirements of paragraph (a)—not later than such later date before the end of the period of registration as the CEO specifies.

(2) Subject to subsection (3), sections 67EB and 67EC apply in relation to an application for renewal of registration in the same manner as they applied to the original application.

(3) Subsection 67EB(2) has effect in relation to an application for renewal of registration:

(a) if the registration relates to a low value cargo consigned from a particular mail‑order house—as if that subsection required the applicant, as a special reporter, to have reported at least 15,000 consignments of such cargo from that house during the 3 months immediately before the making of the application; and

(b) if the registration relates to reportable documents—as if that subsection required the applicant, as a special reporter, to have reported at least 3,000 consignments of such cargo during the 3 months immediately before the making of the application; and

(c) if the registration relates to low value cargo of another prescribed kind—as if that subsection required the applicant, as a special reporter, to have reported at least the prescribed number of consignments of cargo of that kind during the 3 months before the making of the application.

(4) In considering an application for renewal of registration as a special reporter, if the CEO has varied the specifications in relation to dedicated computer facilities in any manner, the special reporter must ensure that the computer facilities meet the specifications as so varied.

(5) If an application for renewal of registration as a special reporter in relation to low value cargo of a particular kind is lodged, the CEO must, having regard to the terms of the application and, where additional information is supplied under subsection (12), to the additional information, decide whether or not to renew the registration of the applicant in relation to low value cargo of that kind.

(6) The CEO must make the decision before, or as soon as possible after, the end of the current period of registration.

(7) If, for any reason, the CEO has not completed the consideration of the application for renewal of registration at the time when the current period of registration would, but for this subsection, expire, the current period of registration is taken to continue until the consideration of the application is concluded and a resulting decision made.

(8) If the CEO decides to renew the registration of a special reporter in relation to low value cargo of a particular kind, the CEO must renew the registration and notify the applicant for renewal, in writing, of that decision specifying the day on which, in accordance with subsection (10), the renewal of registration comes into force.

(9) If the CEO decides not to renew the registration of a special reporter in relation to low value cargo of a particular kind, the CEO must notify the applicant for renewal, in writing, of that decision setting out the reasons for so deciding.

(10) If the CEO decides to renew the registration of a special reporter in relation to low value cargo of a particular kind, that renewal takes effect on the day following the end of the current period of registration, or of that period as it is taken to have been extended under subsection (7).

(11) If the CEO refuses to renew the registration of a special reporter in relation to low value cargo of a particular kind, the registration in relation to cargo of that kind continues:

(a) until the end of the current period of registration, unless it is earlier cancelled; or

(b) if the current period of registration is taken to have been extended under subsection (7)—until the making of the decision to refuse to renew registration.

(12) If, in considering an application for renewal of registration, the CEO decides that he or she needs further information on any matter dealt with in the application:

(a) the CEO may, by notice in writing to the applicant, require the applicant to provide such additional information relating to the matter as the CEO specifies within a period specified in the notice; and

(b) unless the information is given to the CEO within that period—the applicant is taken to have withdrawn the application.

67EL CEO to allocate a special identifying code for each special reporter

If the CEO registers an applicant as a special reporter in respect of low value cargo of a particular kind, the CEO must allocate to the reporter a special identifying code for use by the special reporter when making an abbreviated cargo report in relation to cargo of that kind on the Sea Cargo Automation System or the Air Cargo Automation System.

67EM Cancellation of registration as special reporter

(1) The CEO may, at any time, give to a special reporter a notice of intention to cancel the special reporter’s registration if the CEO is satisfied that:

(a) the special reporter has ceased to be a registered user; or

(b) if the special reporter were not a special reporter but were an applicant for registration—circumstances have arisen whereby paragraph 67EB(1)(e) applies in relation to the reporter; or

(c) the special reporter has breached any condition to which the registration as a special reporter is subject in accordance with section 67EE, 67EF, 67EG or 67EH; or

(d) if the special reporter is registered as such in relation to low value cargo consigned from a particular mail‑order house:

(i) there is no longer a house agreement in force between the special reporter and that house; or

(ii) the terms of such an agreement have been breached.

(2) For the purposes of paragraph (1)(b), the expression 10 years immediately before the decision in subsections 67EB(3) and (4) is to be taken to be 10 years immediately before the notice.

(3) The notice of intention to cancel registration must:

(a) specify the ground or grounds for the intended cancellation; and

(b) invite the special reporter to provide a written statement to Customs within 30 days after the notice is given (the submission period) explaining why the registration should not be cancelled; and

(c) state that the CEO may decide to cancel the registration at any time within the 14 days following the end of the submission period, if the grounds or at least one of the grounds exists at that time.

(4) At any time within the 14 days referred to in paragraph (3)(c), the CEO may, by notice in writing, decide to cancel the registration of the special reporter generally in relation to low value cargo of all kinds or of a particular kind, as the CEO considers appropriate, if, having regard to any statements made by the special reporter in response to the notice, the CEO is satisfied that at least one of the grounds specified in the notice exists at the time of the decision.

(5) If the CEO decides to cancel the registration within the 14 days, the registration is cancelled:

(a) if paragraph (b) does not apply—28 days after the CEO’s decision; or

(b) if the special reporter applies to the Administrative Appeals Tribunal for a review of the CEO’s decision—when the Tribunal affirms the CEO’s decision.

(6) The CEO must, by notice in writing, cancel a registration if the CEO receives a written request by the special reporter that the registration be cancelled on or after a specified day indicated in the request letter.

(7) A notice under subsection (1), (4) or (6) may be served:

(a) by post at the address indicated by the special reporter in the application for registration or renewal or at an address subsequently indicated by the special reporter; or

(b) if the special reporter is a company—by post at the registered office of the company; or

(8) Failure to send a notice to a special reporter under subsection (6) does not affect the cancellation of the registration.

(9) The cancellation of the registration of a special reporter does not affect his or her status as a registered user.

Subdivision D—Monitoring and audit powers in respect of special reporters

67EN Definitions

(1) In this Subdivision:

monitoring powers means:

(a) in relation to premises—power:

(i) to search the premises; and

(ii) to examine any information or documents on the premises that may relate to individual consignments of low value cargo in relation to which a special reporter has made an abbreviated cargo report; and

(iii) to take extracts from, and make copies of, any information or document apparently relating to such individual consignments; and

(iv) to take onto the premises any equipment or material reasonably necessary for the purpose of exercising a power under subparagraph (ii) or (iii); and

(b) in relation to any information or document relating to individual consignments of low value cargo covered by such abbreviated cargo report that is found on the premises, the powers described in subsections (2) and (3).

monitoring warrant means a warrant issued under section 67EP.

(2) An authorised officer who enters premises under section 67EO or under a monitoring warrant, and any person assisting that officer, has power to operate equipment on the premises to see whether:

(a) that equipment; or

(b) a disk, tape or other storage device that:

(i) is on the premises; and

(ii) can be used with or is associated with that equipment;

contains information that is relevant to determining whether a special reporter who has made abbreviated cargo reports has complied with the requirements of this Division in relation to individual consignments covered by those reports.

(3) If an authorised officer who enters premises under section 67EO or under a monitoring warrant, or a person assisting that officer, after operating equipment at the premises, finds that the equipment, or that a disk, tape or other storage device on the premises, contains such information, he or she has power:

(a) to operate the equipment or other facilities to put the information in documentary form and copy the documents so produced; or

(b) if the information can be transferred to a disk, tape or other storage device that:

(i) is brought to the premises; or

(ii) is at the premises and the use of which for the purpose has been agreed to, in writing, by the occupier of the premises;

to operate the equipment or other facilities to copy the information to the storage device and remove the storage device from the premises.

67EO Exercise of monitoring powers with occupier’s consent

(1) Subject to subsections (2), (3) and (4), an authorised officer may, to the extent that it is reasonably necessary for the purpose of finding out whether a special reporter who has made abbreviated cargo reports has complied with the requirements of this Division in relation to individual consignments covered by those reports, enter any premises and exercise monitoring powers at any reasonable time.

(2) An authorised officer may not, under subsection (1), enter any premises unless the occupier, or person apparently in charge, of the premises has voluntarily consented to the entry and to the exercise of those powers.

(3) Before obtaining the consent of a person for the purposes of this section, the authorised officer must inform the person that he or she may refuse to give consent.

(4) An authorised officer is not entitled to exercise any powers under subsection (1) unless, before so doing, the officer produces to the occupier, or person apparently in charge, of the premises written evidence of the fact that he or she is an authorised officer.

(5) In this section:

reasonable time, in relation to a person who is or has been a special reporter, means:

(a) unless paragraph (b) applies—any time during the normal working hours of that person; and

(b) in circumstances of urgency—any time of the day or night on any day.

67EP Exercise of monitoring powers under a warrant

(1) An authorised officer may apply to a magistrate for a warrant in relation to any premises that the authorised officer believes, on reasonable grounds, may contain information or documents relating to low value cargo in relation to which a special reporter has made an abbreviated cargo report.

(2) Subject to subsection (3), the magistrate must issue a warrant if satisfied, by information on oath or affirmation, that it is reasonably necessary that the authorised officer should have access to the premises for the purposes of finding out whether a special reporter who has made abbreviated cargo reports has complied with the requirements of this Division in relation to individual consignments covered by those reports.

(3) The magistrate must not issue a warrant unless the authorised officer or someone else has given the magistrate, either orally (on oath or affirmation) or by affidavit, any further information the magistrate may require about the grounds on which the issue of the warrant is being sought.

(4) The warrant must:

(a) state the purpose for which the warrant is issued; and

(b) identify the premises to which the warrant relates; and

(d) authorise any authorised officer named in the warrant, with such assistance and using such force as is necessary and reasonable, from time to time while the warrant remains in force, to enter the premises and exercise monitoring powers; and

(e) state the hours during which entry under the warrant is authorised to be made; and

(f) specify the day (not more than 6 months after the day of issue of the warrant) on which the warrant ceases to have effect.

(5) A magistrate in a particular State or Territory may issue a monitoring warrant in respect of premises in another State or Territory.

67EQ Monitoring warrants may be granted by telephone or other electronic means

(1) An authorised officer may make an application to a magistrate for a monitoring warrant by telephone, telex, facsimile or other electronic means:

(a) in an urgent case; or

(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.

(2) The magistrate may require communication by voice to the extent that is practicable in the circumstances.

(3) An application under this section must include all information required to be provided in an ordinary application for a monitoring warrant but the application may, if necessary, be made before the information is sworn.

(4) If an application is made to a magistrate under this section and the magistrate, after considering the information and having received and considered such further information (if any) as the magistrate required, is satisfied that:

(a) a warrant in the terms of the application should be issued urgently; or

(b) the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;

the magistrate may complete and sign the same form of warrant that would be issued under section 67EP.

(5) If the magistrate decides to issue the warrant, the magistrate is to inform the applicant, by telephone, telex, facsimile or other electronic means, of the terms of the warrant and the day on which and the time at which it was signed.

(6) The applicant must then complete a form of warrant in terms substantially corresponding to those given by the magistrate, stating on the form the name of the magistrate and the day on which and the time at which the warrant was signed.

(7) The applicant must, not later than the day after:

(a) the day of expiry of the warrant; or

(b) the day on which the warrant was first executed;

whichever is the earlier, give or transmit to the magistrate the form of warrant completed by the applicant and, if the information referred to in subsection (3) was not sworn, that information duly sworn.

(8) The magistrate is to attach to the documents provided under subsection (7) the form of warrant completed by the magistrate.

(9) If:

(a) it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a warrant issued under this section was duly authorised; and

(b) the form of warrant signed by the magistrate is not produced in evidence;

the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.

67ER Seizures in emergency circumstances

(1) This section applies when an authorised officer is on premises under section 67EO or by virtue of a monitoring warrant.

(2) If an authorised officer suspects, on reasonable grounds:

(a) that a thing relevant to an offence against this Division is on the premises; and

(b) it is necessary to exercise a power under paragraph (d) or (e) in order to prevent the thing from being concealed, lost or destroyed; and

(c) it is necessary to exercise the power without the authority of a search warrant under section 199 because the circumstances are so serious and urgent;

the authorised officer may:

(d) search the premises for the thing; and

(e) seize the thing if he or she finds it there.

67ES Power to require persons to answer questions etc.

(1) If an authorised officer is on or in premises because the occupier, or person apparently in charge, of the premises consented to the officer’s entry—the officer may ask that occupier or person:

(a) to answer any questions put by the authorised officer; and

(b) to produce any documents requested by the authorised officer.

(2) An authorised officer who is on or in premises that he or she has entered under a monitoring warrant may require any person on the premises:

(a) to answer any questions put by the authorised officer; and

(b) to produce any documents requested by the authorised officer.

(3) The CEO may, by written notice, require any person whom he or she believes, on reasonable grounds, to be capable of giving information relevant to the operation of this Division to attend before an authorised officer specified in the notice, at a time and place specified in the notice:

(a) to answer any questions put by the specified officer; and

(b) to produce to the specified officer such documents as are referred to in the notice.

(4) A person must not, without reasonable excuse, fail to comply with a requirement under subsection (2) or (3).

Penalty: Imprisonment for 6 months.

(5) It is a reasonable excuse for a person to refuse or fail to answer a question or produce a document on the ground that to do so would tend to incriminate the person.

(6) A person must not, knowingly or recklessly:

(a) make a statement to an authorised officer, either orally or in writing, that is false or misleading in a material particular; or

(b) present a document to an authorised officer that is false or misleading in a material particular.

Penalty: Imprisonment for 12 months.

67ET Persons to assist authorised officers

(1) An authorised officer may request the occupier, or person apparently in charge, of any premises entered by the officer:

(a) under section 67EO; or

(b) under a monitoring warrant;

to provide reasonable assistance to the officer, at any time while the officer is entitled to remain on the premises, for the purpose of the exercise of the officer’s powers under those sections in relation to the premises.

(2) A person mentioned in subsection (1) must not, without reasonable excuse, fail to comply with an authorised officer’s request.

Penalty: 30 penalty units.

67EU Compensation for damage to equipment or data

(1) If:

(a) damage is caused to equipment as a result of it being operated in the exercise of monitoring powers; or

(b) the data recorded on the equipment is damaged or programs associated with its use are damaged or corrupted;

because:

(d) insufficient care was exercised by the person operating the equipment;

compensation for the damage or corruption is payable by Customs to the owner of the equipment or the user of the data or programs concerned.

(2) For the purposes of subsection (1), damage to data includes damage by erasure of data or addition of other data.

(3) Customs must pay the owner of the equipment or the user of the data or program such reasonable compensation as Customs and the owner or user agree on. If Customs and the owner or user fail to agree, the owner or user may institute proceedings in the Federal Court of Australia for such reasonable amount of compensation as the Court determines.

(4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises and his or her employees and agents, if they were available at the time, had provided any warning or guidance as to the operation of the equipment that was appropriate in the circumstances.

13 Subsection 77F(1) (definition of insolvent under administration)

Repeal the definition.

14 After paragraph 273GA(1)(aaab)

Insert:

(aaac) a decision by the CEO under section 67ED to refuse to register a person as a special reporter;

(aaad) a decision by the CEO under section 67EK to refuse to renew a person’s registration as a special reporter;

(aaae) a decision by the CEO under section 67EM to cancel the registration of a special reporter generally or in relation to low value cargo of a particular kind;

[Minister’s second reading speech made in—

House of Representatives on 31 March 1999

Senate on 24 May 1999]

(40/99)