An Act relating to charge imposed in respect of the departure of persons from Australia
1 Short title
This Act may be cited as the Passenger Movement Charge Collection Act 1978.
2 Commencement
This Act shall come into operation on the day on which the Departure Tax Act 1978 comes into operation.
3 Interpretation
In this Act, unless the contrary intention appears:
aircraft means any machine or craft that can derive support in the atmosphere from the reactions of the air.
authorised officer means:
(a) an officer of Customs; or
(b) any other person authorised in writing by the Comptroller‑General of Customs to be an authorised officer for the purposes of this Act.
charge means the charge, called passenger movement charge, imposed by the Passenger Movement Charge Act 1978.
charge stamp means a charge stamp issued under this Act.
child: without limiting who is a child of a person for the purposes of this Act, each of the following who is under 18 years old is the child of a person:
(a) an adopted child, stepchild or exnuptial child of the person;
(b) someone who is a child of the person within the meaning of the Family Law Act 1975.
Comptroller‑General of Customs means the person who is the Comptroller‑General of Customs in accordance with subsection 11(3) or 14(2) of the Australian Border Force Act 2015.
crew member, in relation to an aircraft or a ship, includes the person in charge of the aircraft or ship.
de facto partner has the meaning given by the Acts Interpretation Act 1901.
emergency passenger means a person:
(a) who arrives in Australia as a passenger on an aircraft or a ship only because of:
(i) the illness of a person (including that person) on board the aircraft or ship; or
(ii) bad weather conditions; or
(iii) another kind of emergency; and
(b) who departs from Australia as soon as it is reasonably practicable for the person to do so.
exemption stamp means a stamp issued under this Act for denoting exemption from liability to charge.
external Territory does not include:
(aa) Norfolk Island; or
(a) the Territory of Christmas Island; or
(b) the Territory of Cocos (Keeling) Islands.
officer of Customs has the same meaning as in subsection 4(1) of the Customs Act 1901.
positioning crew member means:
(a) a passenger on an aircraft whose departure from Australia is undertaken for the purpose of later becoming a crew member of that aircraft, another aircraft or a ship; or
(b) a passenger on a ship whose departure from Australia is undertaken for the purpose of later becoming a crew member of that ship or another ship.
refund means refund of charge under this Act.
ship means any vessel used in navigation, other than air navigation.
spouse of a person includes a de facto partner of the person.
stepchild: without limiting who is a stepchild of a person for the purposes of this Act, someone is the stepchild of a person if he or she would be the person’s stepchild except that the person is not legally married to the person’s de facto partner.
Torres Strait Treaty means the Treaty between Australia and the Independent State of Papua New Guinea:
(a) that was signed at Sydney on 18 December 1978; and
(b) the text of which is set out in the Schedule to the Torres Strait Fisheries Act 1984.
traditional activities has the same meaning as in the Torres Strait Treaty.
traditional inhabitants has the same meaning as in the Torres Strait Fisheries Act 1984.
transit passenger means a person who arrives in Australia from a place outside Australia for the purpose only of a journey from that place to a place outside Australia and who departs from Australia:
(a) in the case of a person who arrives in Australia on an aircraft and who departs from Australia on that aircraft or another aircraft:
(i) without being immigration cleared within the meaning of section 172 of the Migration Act 1958; or
(ii) if the person is so immigration cleared to enter Australia for reasons beyond the person’s control—as soon as it is reasonably practicable for the person to do so after those reasons no longer exist; or
(b) in any other case:
(i) less than 48 hours after the person arrived in Australia; or
(ii) if the person is prevented from departing from Australia less than 48 hours after the person arrived in Australia for reasons beyond the person’s control—as soon as it is reasonably practicable for the person to do so after those reasons no longer exist.
4 Act binds the Crown
This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
4A Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
5 Persons exempt from passenger movement charge
A person departing from Australia does not have to pay the charge in relation to his or her departure if, at the time of his or her departure, the person:
(a) is under 12 years old; or
(b) is a traditional inhabitant whose departure is undertaken in connection with the performance of traditional activities; or
(c) is a member of the defence force of a country other than Australia whose departure is undertaken:
(i) in the course of his or her duty as such a member; and
(ii) on an aircraft or a ship of a defence force; or
(d) is a spouse or a child:
(i) of a member of the defence force of a country other than Australia to whom paragraph (c) applies; and
(ii) whose departure from Australia is undertaken in the company of the member; or
(e) is a crew member of an aircraft or a ship whose departure from Australia is on the aircraft or ship; or
(f) is a spouse or a child:
(i) of a crew member of a ship to whom paragraph (e) applies; and
(ii) whose departure from Australia is undertaken in the company of the member; or
(g) is a positioning crew member; or
(h) is a transit passenger; or
(i) is an emergency passenger; or
(j) is in the course of a journey that has involved a previous departure by the person from Australia by ship in respect of which the person paid the charge; or
(k) does not have to pay the charge because of the operation of:
(i) the Consular Privileges and Immunities Act 1972; or
(ii) the Diplomatic Privileges and Immunities Act 1967; or
(iii) the International Organisations (Privileges and Immunities) Act 1963; or
(iv) the Overseas Missions (Privileges and Immunities) Act 1995; or
(l) is a passenger whose departure from Australia is undertaken for the purpose of travelling to the Greater Sunrise special regime area (within the meaning of the Seas and Submerged Lands Act 1973) in connection with Petroleum Activities (within the meaning of the Treaty between Australia and the Democratic Republic of Timor‑Leste Establishing their Maritime Boundaries in the Timor Sea done at New York on 6 March 2018, as in force from time to time); or
(m) is a protective service officer (as defined in the Australian Federal Police Act 1979) on an aircraft for the purpose of enhancing the security of the aircraft.
Note: The Treaty between Australia and the Democratic Republic of Timor‑Leste Establishing their Maritime Boundaries in the Timor Sea could in 2019 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
6 Liability to pay passenger movement charge
(1) Charge in respect of the departure of a person from Australia is payable by the person before the departure.
(2) Where charge in respect of the departure of a person from Australia is not paid before the departure, the person commits an offence punishable upon conviction by a fine not exceeding 1 penalty unit.
(2A) Subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) Where a person is convicted of an offence against subsection (2), the court may, in addition to imposing a penalty under that subsection, order the person to pay to the Commonwealth the amount of charge not paid by the person.
7 Powers of authorised officers
An authorised officer may, for the purpose of ascertaining whether charge has been or will be paid in respect of the departure from Australia of a person who, in the opinion of the authorised officer, is about to depart from Australia for another country or for an external Territory, require that person, or any other person who may, in the opinion of the authorised officer, have information with respect to the matter, to answer questions or produce documents to him or her, or both.
8 Offences
(1) A person shall not fail to answer a question or produce a document when required to do so in pursuance of section 7.
Penalty: 1 penalty unit.
(1A) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).
(1B) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) A person shall not obstruct or hinder an authorised officer acting in the performance of his or her functions or the exercise of his or her powers under this Act.
Penalty: 5 penalty units.
(3A) Subsection (3) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3A) (see subsection 13.3(3) of the Criminal Code).
(4) A person shall not assault or threaten an authorised officer acting in the performance of his or her functions or the exercise of his or her powers under this Act.
Penalty: 10 penalty units or imprisonment for 6 months, or both.
(5) For the purposes of an offence against subsection (3) or (4), strict liability applies to the following physical elements of circumstance of the offence:
(a) that the person obstructed or hindered is an authorised officer;
(b) that the authorised officer is acting in the performance of his or her functions or the exercise of his or her powers under this Act.
Note: For strict liability, see section 6.2 of the Criminal Code.
9 Refunds of passenger movement charge
(1) A person is entitled to a refund of charge paid by the person if:
(a) the departure in respect of which the charge was paid does not take place;
(b) the departure in respect of which the charge was paid takes place, but the person returns to Australia without having entered another country;
(c) by virtue of section 5, charge was not payable in respect of the departure in respect of which the charge was paid; or
(d) the person is entitled to a refund under the regulations.
(2) If an authorised officer, by instrument in writing, so directs, a refund to which a person is entitled by virtue of subsection (1) shall be applied in discharge of the liability of the person for charge payable by the person in respect of a departure specified in the instrument, and a refund that is so applied shall be deemed to have been paid to the person.
(3) A person shall not:
(a) obtain a refund that is not payable;
(b) make a statement, in or in connection with a claim for a refund, reckless as to the fact that the statement is false or misleading in a material particular; or
(c) present a document, in connection with an application for a refund, reckless as to the fact that the document is false or misleading in a material particular.
Penalty: 5 penalty units.
(4) Where a person is convicted of an offence against subsection (3), the court may, in addition to imposing a penalty under that subsection, order the person to repay to the Commonwealth the amount of any refund incorrectly paid to the person.
10 Special arrangements for payment of passenger movement charge
(1) The Minister may make an arrangement with a person under which the person agrees to pay to the Commonwealth, in the manner provided in the arrangement, an amount equal to any charge that may become payable by any person to whom the arrangement applies.
(2) Where an arrangement under subsection (1) applies to a person who departs from Australia for another country, the person shall, for the purposes of this Act, be deemed to have paid any charge payable in respect of that departure.
(3) An amount payable by a person to the Commonwealth under an arrangement under subsection (1) may be recovered by the Commonwealth by action against the person in a court of competent jurisdiction.
(4) Despite anything in this section, the Minister must not make an arrangement under this section that is to apply in respect of any person departing from Australia for another country on an aircraft before 1 July 1995.
11 Charge stamps and exemption stamps
(1) The regulations may make provision for and in relation to the payment of charge by the production to authorised officers or such other officers as are prescribed of charge stamps by or on behalf of persons liable to pay charge and, in particular, without limiting the generality of the foregoing, may make provision for and in relation to:
(a) the issue of charge stamps by the Commonwealth;
(aa) the supply (whether by way of sale or otherwise) of charge stamps by the Commonwealth to approved agents;
(ab) the terms and conditions upon which charge stamps may be supplied by the Commonwealth to approved agents;
(ac) the sale of charge stamps by approved agents;
(ad) the terms and conditions upon which charge stamps may be sold by approved agents;
(b) refunds, by the Commonwealth or by approved agents specified in the regulations, of amounts paid for the purchase of charge stamps that are not produced for the purpose of payment of charge or in respect of which a refund is otherwise payable under the regulations; and
(c) the reimbursement of approved agents who pay refunds in accordance with regulations made for the purposes of paragraph (b).
(2) The regulations may make provision for and in relation to the issue by the Commonwealth of stamps (in this subsection referred to as exemption stamps) to or in respect of persons in respect of the departure of whom from Australia charge would be payable but for the operation of section 5 and, in particular, without limiting the generality of the foregoing, may make provision for and in relation to the production to authorised officers or such other officers as are prescribed of exemption stamps by or on behalf of such persons.
(3) Without limiting the generality of subsection (2), the regulations may make provision for and in relation to:
(a) the supply of exemption stamps by the Commonwealth to approved agents;
(b) the terms and conditions upon which exemption stamps may be supplied by the Commonwealth to approved agents;
(c) the supply of exemption stamps by approved agents; and
(d) the terms and conditions upon which exemption stamps may be supplied by approved agents.
12 Recovery of passenger movement charge
Charge that a person has become liable to pay and has not paid is a debt due to the Commonwealth by the person by whom the charge is payable.
13 Averment
(1) In any prosecution for an offence against subsection 6(2) or in any proceedings for the recovery of charge, a statement or averment of the prosecutor or plaintiff in the information, complaint, claim or declaration is prima facie evidence of the matter so stated or averred.
(2) This section shall apply to any matter so averred although:
(a) evidence in support or rebuttal of the matter averred or any other matter is given; or
(b) the matter averred is a mixed question of law and fact, but in that case the averment shall be prima facie evidence of the fact only.
(3) Any evidence given in support or rebuttal of a matter so averred shall be considered on its merits, and the credibility and probative value of such evidence shall be neither increased nor diminished by reason of this section.
(4) This section shall not lessen or affect any onus of proof otherwise falling on the defendant.
14 Delegation
(1) The Minister may, either generally or as otherwise provided by the instrument of delegation, by instrument in writing, delegate to an officer of the Department any of his or her powers under this Act, other than this power of delegation.
(2) A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Minister.
(3) A delegation under this section does not prevent the exercise of a power by the Minister.
15 Regulations
(1) The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Act, and, in particular:
(a) making provision for and in relation to claims for refunds, the allowance or payment of refunds and the recovery of refunds paid incorrectly;
(aa) making provision for and in relation to the appointment of bodies or persons as approved agents; and
(b) prescribing penalties not exceeding 5 penalty units for offences against the regulations.
(2) The regulations may make provision for and in relation to the following:
(a) the charging and recovery of fees in respect of:
(i) the payment of charge; or
(ii) the payment of an amount to the Commonwealth under an arrangement under subsection 10(1);
(b) the way in which such fees are to be paid;
(c) the refund of such fees.
