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Customs Act 1901

Authoritative Version
  • - C2013C00064
  • In force - Superseded Version
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Act No. 6 of 1901 as amended, taking into account amendments up to Customs Amendment (Malaysia-Australia Free Trade Agreement Implementation and Other Measures) Act 2012
An Act relating to the Customs
Administered by: Attorney-General's
Registered 29 Jan 2013
Start Date 01 Jan 2013
End Date 30 Mar 2013
Table of contents.

Customs Act 1901

Act No. 6 of 1901 as amended

This compilation was prepared on 23 January 2013
taking into account amendments up to Act No. 196 of 2012

Volume 2 includes:     Table of Contents
                                    Sections 183UA – 269SL

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

  

  

  


Contents

Part XII—Officers                                                                                                                 1

Division 1—Powers of Officers                                                                               1

Subdivision A—Preliminary                                                                                   1

183UA.. Definitions.......................................................................................... 1

183UB.. Law relating to legal professional privilege not affected...................... 7

183UC.. CEO may give directions concerning the exercise of powers under this Division    7

183UD.. Judges who may issue seizure warrants for goods in transit............... 8

Subdivision B—General regulatory powers                                                       8

184A..... Power to board a ship......................................................................... 8

184B..... Power to chase foreign ships for boarding........................................ 13

184C..... Power to chase Australian ships for boarding................................... 15

184D..... Identifying an aircraft and requesting it to land for boarding............. 15

185........ Power to board and search etc. ships and aircraft.............................. 17

185A..... Boarding of certain ships on the high seas........................................ 26

185AA.. Searches of people on certain ships or aircraft.................................. 29

185AAA  Retention of relevant items taken possession of under paragraph 185(2)(cb) or subsection 185AA(3C)              32

185AB.. Returning persons to ships................................................................ 34

185B..... Moving or destroying hazardous ships etc........................................ 34

186........ General powers of examination of goods subject to Customs control 36

186A..... Power to make copies of, and take extracts from, documents in certain circumstances            37

186B..... Compensation for damage caused by copying.................................. 38

187........ Power to board and search................................................................ 38

188........ Boarding........................................................................................... 39

189........ Searching.......................................................................................... 39

189A..... Officers may carry arms in certain circumstances............................. 39

190........ Securing goods................................................................................. 41

191........ Seals etc. not to be broken................................................................. 41

192........ Seals etc. on ship or aircraft in port bound to another port within Commonwealth  42

193........ Officers may enter and remain upon coasts etc................................. 42

194........ Ships on service may be moored in any place................................... 43

195........ Power to question passengers etc...................................................... 44

195A..... Power to question persons found in restricted areas......................... 45

196C..... Power to question persons claiming packages.................................. 45

197........ Power to stop conveyances about to leave a Customs place.............. 46

Subdivision C—Search warrants in respect of things believed to be evidential material            47

198........ When search warrants can be issued................................................. 47

199........ The things that are authorised by a search warrant............................ 49

200........ Use of equipment to examine or process things................................ 50

201........ Use of electronic equipment on or in premises.................................. 51

201A..... Person with knowledge of a computer or a computer system to assist access etc.    53

201B..... Accessing data held on other premises—notification to occupier of that premises   54

202........ Compensation for damage to equipment or data................................ 55

202A..... Copies of seized things to be provided.............................................. 55

Subdivision D—Seizure of goods believed to be forfeited goods                 56

203........ When seizure warrants for forfeited goods can be issued................. 56

203A..... The things that are authorised by seizure warrants for forfeited goods 58

203B..... Seizure without warrant of special forfeited goods, or of evidential material relating to special forfeited goods, at a Customs place................................................................................... 60

203C..... Seizure without warrant of narcotic goods or of evidential material relating to narcotic goods at other places         62

203CA.. Seizure without warrant of certain goods on ship or aircraft in the Protected Zone  63

203CB... Seizure without warrant of certain other goods in the Protected Zone 64

203D..... How an authorised person is to exercise certain powers................... 65

Subdivision DA—Seizure of certain goods in transit                                      66

203DA.. When seizure warrants for goods in transit can be issued................. 66

203DB.. The things that are authorised by seizure warrants for goods in transit 67

Subdivision E—Provisions applicable both to search and seizure warrants  68

203E...... Conduct of ordinary searches and frisk searches.............................. 68

203F...... Announcement before entry.............................................................. 68

203G..... Details of warrant to be given to occupier......................................... 69

203H..... Occupier entitled to be present during search or seizure.................... 69

203HA.. Requirement to provide name or address etc..................................... 70

203J...... Availability of assistance and use of force in executing a warrant..... 71

203K..... Specific powers available to executing officers................................. 71

203L...... Use of animals in executing a warrant............................................... 72

203M.... Warrants by telephone or other electronic means.............................. 72

203N..... Receipts for things seized under warrant........................................... 74

203P...... Offence for making false statements in warrants............................... 74

203Q..... Offences relating to telephone warrants............................................ 74

Subdivision F—Dealing with things seized as evidential material              75

203R..... Retention of things seized as evidential material................................ 75

203S...... Magistrate may permit a thing seized as evidential material to be retained                76

Subdivision G—Dealing with goods seized as forfeited goods                     77

203SA... Subdivision does not apply to seized transit goods........................... 77

203T...... Seizure of protected objects............................................................... 77

204........ Seized goods to be secured............................................................... 78

205........ Requirement to serve seizure notices................................................. 78

205A..... Matters to be dealt with in seizure notices......................................... 79

205B..... Claim for return of goods seized....................................................... 80

205C..... Treatment of goods seized if no claim for return is made.................. 81

205D..... Treatment of goods seized if a claim for return is made.................... 81

205E...... Magistrate may permit goods seized to be retained........................... 84

205F...... Right of compensation in certain circumstances for goods disposed of or destroyed               85

205G..... Effect of forfeiture............................................................................. 85

206........ Immediate disposal of certain goods................................................. 85

207........ Immediate disposal of narcotic goods............................................... 88

208........ Release of goods on security............................................................. 89

208C..... Service by post.................................................................................. 89

208D..... Disposal of forfeited goods............................................................... 90

208DA.. Disposal of narcotic‑related goods other than narcotic goods........... 90

208E...... Sales subject to conditions................................................................ 91

209........ Power to impound certain forfeited goods and release them on payment of duty and penalty  92

209A..... Destruction or concealment of evidential material or forfeited goods 94

Subdivision GA—Dealing with goods in transit seized under a section 203DA warrant              95

209B..... Subdivision applies to seized transit goods....................................... 95

209C..... Seized goods to be secured............................................................... 95

209D..... Requirement to serve seizure notices................................................. 95

209E...... Matters to be dealt with in seizure notices......................................... 95

209F...... Application for return of seized goods.............................................. 96

209G..... Status of goods seized if no application for return is made............... 96

209H..... Right of compensation for certain goods disposed of or destroyed... 97

209I....... Effect of forfeiture............................................................................. 97

209J...... Immediate disposal of unsafe goods................................................. 97

209K..... Disposal of forfeited goods............................................................... 99

209L...... Service by post.................................................................................. 99

Subdivision GB—Surrender of prescribed prohibited imports                   99

209M.... Application of Subdivision............................................................... 99

209N..... Surrender of goods........................................................................... 99

209P...... Effect of surrender.......................................................................... 100

209Q..... Right of compensation in certain circumstances for goods disposed of or destroyed               100

209R..... Disposal of surrendered goods....................................................... 101

Subdivision GC—Post‑importation permission                                             101

209S...... Definitions...................................................................................... 101

209T...... Application of Subdivision............................................................. 101

209U..... Power to detain goods..................................................................... 102

209V..... Detained goods to be secured.......................................................... 102

209W.... Requirement to serve detention notice............................................. 103

209X..... Matters to be dealt with in detention notices.................................... 103

209Y..... Effect of detaining goods................................................................ 105

209Z...... Evidence not provided or permission not granted or given............. 105

209ZA... Evidence provided and permission granted or given....................... 106

209ZB... Service by post................................................................................ 107

209ZC... Liability for detention of goods....................................................... 107

Subdivision H—Arrest and related matters                                                    107

210........ Power of arrest without warrant...................................................... 107

210A..... Use of force in making arrest.......................................................... 109

210B..... Person to be informed of grounds of arrest..................................... 109

211........ Power to conduct a frisk search of an arrested person.................... 110

211A..... Power to conduct an ordinary search of an arrested person............ 110

212........ How arrested person to be dealt with.............................................. 110

213........ Requirement to provide name etc.................................................... 110

Subdivision HA—Information about people working in restricted areas or issued with security identification cards                                                                                                       111

213A..... Providing Customs with information about people working in restricted areas        111

213B..... Providing Customs with information about people issued with security identification cards   113

Subdivision J—General powers to monitor and audit                                  114

214AA.. Occupier of premises...................................................................... 114

214AB.. What are monitoring powers?......................................................... 114

214AC.. Monitoring officers......................................................................... 116

214ACA  Monitoring officer to notify occupier of premises of the occupier’s rights and obligations    117

214AD.. Notice of proposal to exercise monitoring powers.......................... 117

214AE... Exercise of monitoring powers with consent.................................. 118

214AF... Exercise of monitoring powers under a warrant.............................. 119

214AG.. Warrants may be granted by telephone or other electronic means... 120

214AH.. Monitoring officer may ask questions............................................. 121

214AI.... Monitoring officer may ask for assistance...................................... 121

214AJ... Compensation for damage to electronic equipment......................... 122

214B..... Powers of officers for purposes of Customs Tariff (Anti‑Dumping) Act 1975        123

Subdivision JA—Powers to monitor and audit—Australia‑United States Free Trade Agreement           124

214BAA  Simplified outline.......................................................................... 124

214BAB Definitions...................................................................................... 125

214BAC AUSFTA verification powers......................................................... 126

214BAD  Appointment of verification officers.............................................. 127

214BAE Verification officers may enter premises and exercise AUSFTA verification powers with consent         128

214BAF US customs officials may accompany verification officers............. 130

214BAG  Availability of assistance in exercising AUSFTA verification powers 130

214BAH  Verification officer may ask questions.......................................... 130

214BAI. Verification officer may ask for assistance...................................... 131

214BAJ. Verification officer may disclose information to US....................... 131

214BAK Operation of electronic equipment at premises................................ 131

214BAL Compensation for damage to electronic equipment......................... 131

Subdivision K—Miscellaneous                                                                           132

214BA.. Nature of functions of magistrate under sections 203S and 205E... 132

215........ Collector may impound documents................................................. 133

217........ Translations of foreign invoices...................................................... 133

218........ Customs samples............................................................................ 133

218A..... Disposal of certain abandoned goods.............................................. 133

219........ General power of Collector............................................................. 134

Division 1B—Detention and search of suspects                                          135

Subdivision A—Detention and frisk search of suspects                                135

219L...... Detention for frisk search................................................................ 135

219M.... Frisk search..................................................................................... 136

219N..... Power to require the production of things....................................... 137

219P...... Persons to whom section 219R applies........................................... 137

Subdivision B—Detention and external search of suspects                         137

219Q..... Detention for external search........................................................... 137

219R..... External search................................................................................ 138

219RAA  Videotape record may be made of external search......................... 141

Subdivision C—Detention and internal search of persons suspected of internally concealing substances etc.      142

219RA.. Certain Judges and Magistrates eligible to give orders under this Subdivision        142

219S...... Initial detention................................................................................ 142

219SA... Internal non‑medical scan using prescribed equipment................... 143

219SB... Seeking detention order following invitation to consent to internal non‑medical scan              144

219T...... Initial order for detention................................................................. 144

219U..... Renewal of order for detention........................................................ 145

219V..... Arrangement for internal medical search......................................... 146

219W.... Detention under this Subdivision.................................................... 149

219X..... Detainee becoming in need of protection......................................... 150

219Y..... Applications for orders under this Subdivision............................... 151

219Z...... Internal medical search by medical practitioner............................... 152

Subdivision CA—Prescribed equipment for external searches and internal non‑medical scans               153

219ZAA Use of prescribed equipment for external search or internal non‑medical scan         153

219ZAB Prescribing equipment for use in external searches and internal non‑medical scans 154

219ZAC Authorising officers to use prescribed equipment for external search or internal non‑medical scan         155

219ZAD Giving a record of invitation and consent, or a copy of order......... 155

219ZAE Records of results of external search or internal non‑medical scan. 156

Subdivision D—Detention generally                                                                 157

219ZA... Detention officers............................................................................ 157

219ZB... Detention places.............................................................................. 158

219ZC... Detention under this Division......................................................... 158

219ZD... Detainees not fluent in English........................................................ 159

219ZE... Release from, or cessation of, detention.......................................... 159

Subdivision E—Medical practitioners                                                              160

219ZF... Conduct of internal medical search.................................................. 160

219ZG... Medical practitioner may take action to preserve detainee’s life...... 161

219ZH... Medical practitioner to answer questions and prepare report........... 161

219ZJ.... Proceedings against medical practitioners....................................... 162

Division 1BA—Detention and search of persons for purposes of law enforcement co‑operation           163

Subdivision A—Preliminary                                                                               163

219ZJA. Definitions...................................................................................... 163

219ZJAA  Prescribed State or Territory offences.......................................... 163

Subdivision B—Powers to detain                                                                       164

219ZJB. Detention of person suspected of committing serious Commonwealth offence or prescribed State or Territory offence........................................................................................................ 164

219ZJC. Detention of person subject to warrant or bail condition................. 165

Subdivision C—Matters affecting detention generally                                166

219ZJD. Search of person detained under this Division................................ 166

219ZJE.. CEO must give directions about detaining persons under this Division 167

219ZJF.. Detainees to be given reasons for detention and shown identification on request     167

219ZJG. Use of force in relation to detention................................................ 167

219ZJH. Moving detained persons................................................................ 168

219ZJI... Detainees not fluent in English........................................................ 168

219ZJJ.. Detention of minors........................................................................ 168

Division 1C—Judges and Magistrates                                                            170

219ZK... Nature of functions of Judge or Magistrate..................................... 170

219ZL... Protection of Judge or Magistrate................................................... 170

Division 2—Protection to officers                                                                      171

220........ Reasonable cause for seizure a bar to action.................................... 171

221........ Notice of action to be given............................................................. 171

222........ Defect in notice not to invalidate..................................................... 171

223........ No evidence to be produced but that contained in notice................. 172

224........ Officer may tender amends............................................................. 172

225........ Commencement of proceedings against officers............................. 172

226........ Time for commencing action........................................................... 172

227........ Security may be required................................................................. 173

Division 3—Evidence                                                                                                174

227AA.. Evidence may be used in prosecutions etc....................................... 174

Part XIIA—Special provisions relating to prohibited items                    175

227A..... Overview of Part............................................................................. 175

227B..... Definitions...................................................................................... 175

227C..... Ships and aircraft to which this Part applies.................................... 175

227D..... Items to which this Part applies....................................................... 176

227E...... Approved storage for prohibited items............................................ 177

227F...... Officer may take custody of items................................................... 178

227G..... Compensation for damage etc. to items........................................... 179

Part XIII—Penal Provisions                                                                                        180

Division 1—Forfeitures                                                                                           180

228........ Forfeited ships and aircraft.............................................................. 180

228A..... Forfeited resources installations...................................................... 180

228B..... Forfeited sea installations................................................................ 180

229........ Forfeited goods............................................................................... 181

229A..... Proceeds of drug trafficking liable to forfeiture............................... 182

230........ Forfeited packages and goods......................................................... 185

Division 2—Penalties                                                                                                186

231........ Assembly for unlawful purposes.................................................... 186

232A..... Rescuing goods and assaulting officers.......................................... 186

233........ Smuggling and unlawful importation and exportation..................... 187

233A..... Master not to use or allow use of ship for smuggling etc................ 188

233AB.. Penalties for offences against sections 233 and 233A..................... 188

233BAA  Special offence relating to tier 1 goods.......................................... 189

233BAB Special offence relating to tier 2 goods............................................ 191

233BABAA  UN‑sanctioned goods.............................................................. 194

233BABAB  Special offences for importation of UN‑sanctioned goods....... 195

233BABAC  Special offences for exportation of UN‑sanctioned goods....... 197

233BABAD  Smuggling etc. tobacco products............................................. 199

233BABA  Protection from criminal responsibility....................................... 200

233BAC Evidence relating to approval for import or export.......................... 201

233BA.. Evidence of Analyst........................................................................ 201

233C..... Offence for giving false or misleading information in relation to UN‑sanctioned goods          203

234........ Customs offences............................................................................ 204

234AA.. Places set aside for purposes of Act................................................ 207

234A..... Unauthorised entry to places and on ships, aircraft or
wharves........................................................................................... 208

234AB.. Unauthorised use of cameras and sound recorders......................... 209

234ABA  Officers may direct unauthorised persons to leave restricted areas 210

236........ Aiders and abettors......................................................................... 211

237........ Attempts.......................................................................................... 211

239........ Penalties in addition to forfeitures................................................... 211

240........ Commercial documents to be kept................................................... 211

240AA.. Authorised officer may require person to produce commercial documents              215

240AB.. Verifying communications to Customs........................................... 215

240AC.. Authorised officer may require person to produce record............... 217

Division 3—Recovery of pecuniary penalties for dealings in narcotic goods    218

243A..... Interpretation................................................................................... 218

243AB.. Effective control of property........................................................... 221

243B..... Pecuniary penalties.......................................................................... 221

243C..... Assessment of pecuniary penalty.................................................... 223

243CA.. Court may lift corporate veil etc...................................................... 225

243D..... Presumption of illegality of importation.......................................... 226

243E...... Court may make restraining order against property......................... 227

243F...... Court may make further orders....................................................... 230

243G..... Official Trustee to discharge pecuniary penalty............................... 233

243H..... Revocation of order under section 243E......................................... 237

243J...... Pecuniary penalty a charge on property........................................... 238

243K..... Contravention of restraining orders................................................. 239

243L...... Sale of property before bankruptcy................................................. 240

243M.... Duties of the Official Trustee after receiving notice of presentation of creditor’s petition etc.  240

243N..... Protection of Official Trustee from personal liability in certain cases 241

243NA.. Indemnification of Official Trustee................................................. 242

243NB.. Indemnification of Official Receivers etc........................................ 243

243P...... Costs etc. payable to Official Trustee.............................................. 243

243Q..... Notices............................................................................................ 244

243R..... Reduction of pecuniary penalty....................................................... 244

243S...... Jurisdiction of the Court.................................................................. 245

Division 4—Provisions relating to certain strict liability offences   246

243SA... Failure to answer questions............................................................. 246

243SB... Failure to produce documents or records........................................ 246

243SC... Preservation of the privilege against self‑incrimination................... 247

243T...... False or misleading statements resulting in loss of duty.................. 247

243U..... False or misleading statements not resulting in loss of duty............ 250

243V..... False or misleading statements in cargo reports or outturn reports.. 252

243W.... Electronic communications to Customs to be treated as statements to CEO             253

Division 5—Penalties in lieu of prosecution for certain offences      254

Subdivision A—Penalties in lieu of prosecution for offences relating to false statements, cargo reporting, movement of goods etc.                                                                                254

243X..... Application of Subdivision............................................................. 254

243XA.. Guidelines for serving infringement notices.................................... 254

243Y..... When an infringement notice can be served.................................... 255

243Z...... Matters to be included in an infringement notice............................. 255

243ZA... Withdrawal of infringement notice.................................................. 257

243ZB... What happens if unpaid duty or unrepaid refund or drawback and penalty are paid 258

243ZC... More than one infringement notice may not be served for the same offence            258

243ZD... Infringement notice not required to be served................................. 258

243ZE... CEO may extend period for payment of penalty............................. 259

Subdivision B—Penalties in lieu of prosecution for offences relating to prohibited imports, restricted areas etc.                                                                                                       259

243ZF... Application of Subdivision............................................................. 259

243ZG... Guidelines for serving infringement notices.................................... 259

243ZH... When an infringement notice can be served.................................... 259

243ZI.... Matters to be included in an infringement notice............................. 260

243ZJ.... Withdrawal of infringement notice.................................................. 261

243ZK... What happens if the infringement notice penalty is paid.................. 262

243ZL... More than one infringement notice may not be served for the same offence            263

243ZM.. Infringement notice not required to be served................................. 263

243ZN... Right of compensation in certain circumstances for goods disposed of or destroyed               263

243ZO... Disposal of forfeited goods............................................................. 264

Part XIV—Customs prosecutions                                                                            265

244........ Meaning of Customs prosecution................................................... 265

245........ Institution of prosecutions............................................................... 265

247........ Prosecutions in accordance with practice rules................................ 265

248........ State Court practice......................................................................... 266

249........ Commencement of prosecutions..................................................... 266

250........ Information to be valid if in words of Act....................................... 266

250A..... Property in goods subject to control of Customs............................ 266

251........ No objection for informality............................................................ 267

252........ Conviction not to be quashed.......................................................... 267

253........ Protection to witnesses.................................................................... 267

254........ Defendant competent witness.......................................................... 267

255........ Averment of prosecutor sufficient................................................... 268

256........ Proof of proclamation etc................................................................ 268

257........ Conduct by directors, servants or agents......................................... 268

259........ Collector may levy on goods in his or her possession.................... 270

261........ Imprisonment not to release penalty................................................ 270

263........ Parties may recover costs................................................................ 270

264........ Application of penalties................................................................... 270

Part XV—Tenders for rights to enter goods for home consumption at concessional rates          271

265........ Interpretation................................................................................... 271

266........ Tender schemes............................................................................... 271

267........ Undertakings relating to tenders...................................................... 272

268........ Transfers of rights to enter goods for home consumption at concessional rates of duty           273

269........ Revocation or variation of undertaking........................................... 275

269A..... Recovery of penalties...................................................................... 275

Part XVA—Tariff concession orders                                                                    276

Division 1—Preliminary                                                                                          276

269B..... Interpretation................................................................................... 276

269C..... Interpretation—core criteria............................................................. 278

269D..... Interpretation—goods produced in Australia.................................. 278

269E...... Interpretation—the ordinary course of business.............................. 279

Division 2—Making and processing TCO applications                          281

269F...... Making a TCO application.............................................................. 281

269FA... The applicant’s obligation............................................................... 282

269G..... Withdrawing a TCO application...................................................... 282

269H..... Screening the application................................................................. 283

269HA.. CEO may reject a TCO application in relation to goods referred to in section 269SJ               283

269J...... Applications taken to be lodged in certain circumstances................ 284

269K..... Processing a valid application......................................................... 284

269L...... Amendment of TCO applications.................................................... 285

269M.... Customs may invite submissions or seek other information, documents or material                287

269N..... Reprocessing of TCO applications.................................................. 288

Division 3—Making and operation of TCOs                                               290

269P...... The making of a standard TCO....................................................... 290

269Q..... The making of a TCO for goods requiring repair............................ 291

269R..... Notification of TCO decisions........................................................ 292

269S...... Operation of TCOs......................................................................... 292

269SA... Consequence of commencement or cessation of production before TCO decision   292

Division 4—Revocation of TCOs                                                                       294

269SB... Request for revocation of TCOs..................................................... 294

269SC... Processing requests for revocation of TCOs................................... 294

269SD... Revocation at the initiative of Customs........................................... 296

269SE... Notification of revocation decisions................................................ 298

269SF... Customs may seek information, documents or material relating to revocation          298

269SG... Effect of revocation on goods in transit and capital equipment on order.. 299

Division 5—Miscellaneous                                                                                     301

269SH... Internal review................................................................................ 301

269SHA Administrative Appeals Tribunal Review of reconsideration decisions 303

269SJ.... TCOs not to apply to goods described by reference to their end use or certain goods              305

269SK... TCOs not to contravene international agreements........................... 305

269SL... TCOs not to be statutory rules........................................................ 306


Part XIIOfficers

Division 1Powers of Officers

Subdivision APreliminary

183UA  Definitions

             (1)  In this Division, unless the contrary intention appears:

authorised person means:

                     (a)  in relation to an application for, or for the execution of, a search warrant—an officer of Customs; and

                     (b)  in relation to an application for, or for the execution of, a seizure warrant in respect of goods referred to in paragraph (a) of the definition of forfeited goods:

                              (i)  an officer of Customs; or

                             (ii)  an officer of police; or

                            (iii)  a member of the Defence Force; and

                     (c)  in relation to an application for, or for the execution of, a seizure warrant in respect of goods referred to in paragraph (c) of the definition of forfeited goods—an officer of Customs; and

                     (d)  in relation to the exercise of powers under section 203B or 203C:

                              (i)  an officer of Customs; or

                             (ii)  an officer of police; or

                            (iii)  a member of the Defence Force; and

                      (f)  in relation to the exercise of powers under section 203CA or 203CB—an officer as defined by subsection 185(5); and

                     (e)  in relation to an application for, or the execution of, a seizure warrant under section 203DA—an officer of Customs.

baggage means goods:

                     (a)  that are carried by or for a traveller, including the captain and crew members, on board the same ship or aircraft as the traveller; or

                     (b)  that a traveller intended to be so carried.

container includes:

                     (a)  a trailer or other like receptacle, whether with or without wheels, that is used for the movement of goods from one place to another; and

                     (b)  any baggage; and

                     (c)  any other thing that is or could be used for the carriage of goods, whether or not designed for that purpose.

conveyance means an aircraft, railway rolling stock, vehicle or vessel of any kind.

Customs place means:

                    (aa)  a place owned or occupied by Customs; or

                     (a)  a port, airport or wharf that is appointed, and the limits of which are fixed, under section 15; or

                     (b)  a place that is the subject of a permission under subsection 58(2); or

                     (c)  a boarding station that is appointed under section 15; or

                     (d)  a place described in a depot licence that is granted under section 77G; or

                     (e)  a place described in a licence for warehousing goods that is granted under subsection 79(1); or

                      (f)  a place that is approved, in writing, by the CEO as a place for the examination of international mail; or

                     (g)  a place from which a ship or aircraft that is the subject of a permission under section 175 is required to depart, between the grant of that permission and the departure of the ship or aircraft; or

                     (h)  a place to which a ship or aircraft that is the subject of a permission under section 175 is required to return, while that ship or aircraft remains at that place; or

                      (i)  a section 234AA place that is not a place, or a part of a place, referred to in paragraph (aa), (a), (b), (c), (d), (g) or (h).

Note:          Subsection (2) provides for parliamentary disallowance of an instrument approving a place under paragraph (f) of the definition.

data held in a computer includes:

                     (a)  data held in any removable data storage device for the time being held in a computer; or

                     (b)  data held in a data storage device on a computer network of which the computer forms a part.

data storage device means a thing containing, or designed to contain, data for use by a computer.

designated container means a container referred to in paragraph (c) of the definition of container.

evidential material, in relation to an offence, whether the offence is indictable or summary, means a thing relevant to the offence, including such a thing in electronic form.

executing officer, in relation to a search warrant or to a seizure warrant, means:

                     (a)  an authorised person named in the warrant by the judicial officer issuing it as being responsible for executing the warrant; or

                     (b)  if that authorised person does not intend to be present at the execution of the warrant—any authorised person whose name has been written in the warrant by the authorised person so named; or

                     (c)  another authorised person whose name has been written in the warrant by the authorised person last named in the warrant.

forfeited goods means goods described as forfeited to the Crown under:

                     (a)  section 228, 228A, 228B, 229, 229A or 230 of this Act; or

                     (c)  section 7, 10, 11 or 13 of the Commerce (Trade Descriptions) Act 1905.

judicial officer means:

                     (a)  in relation to a search warrant, or to a seizure warrant under section 203:

                              (i)  a magistrate; or

                             (ii)  a justice of the peace or other person employed in a court of a State or Territory who is authorised to issue search warrants; or

                     (b)  in relation to a seizure warrant under section 203DA:

                              (i)  a Judge of the Federal Court of Australia or of the Supreme Court of the Australian Capital Territory in relation to whom a consent under subsection 183UD(1), and a nomination under subsection 183UD(2), are in force; or

                             (ii)  a Judge of the Supreme Court of a State in respect of whom an appropriate arrangement in force under section 11 is applicable; or

                            (iii)  a Judge of the Supreme Court of the Northern Territory who is not a Judge referred to in subparagraph (i) and in respect of whom an appropriate arrangement in force under section 11 is applicable.

magistrate means a magistrate who is remunerated by salary or otherwise.

occupier, in relation to premises that are a conveyance or a container, means the person having charge of the conveyance or container.

offence means:

                     (a)  an offence against this Act; or

                     (b)  an offence against the Commerce (Trade Descriptions) Act 1905; or

                     (c)  an offence against section 72.13 or Division 307 of the Criminal Code.

ordinary search means a search of a person or of articles in the possession of a person that may include:

                     (a)  requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes or hat; and

                     (b)  an examination of those items.

person assisting, in relation to a search warrant or to a seizure warrant, means:

                     (a)  a person who is an authorised person and who is assisting in the execution of the warrant; or

                     (b)  a person who is not an authorised person and who has been authorised by the CEO or by a Regional Director for a State or Territory to assist in executing the warrant.

premises includes a place, a conveyance or a container.

search warrant means a warrant issued under section 198.

seizable item means anything that would present a danger to a person or that could be used to assist a person to escape from lawful custody.

seizure notice means:

                     (a)  in relation to Subdivision G—a notice of the kind mentioned in section 205A; and

                     (b)  in relation to Subdivision GA—a notice of the kind mentioned in section 209E.

seizure warrant means a warrant issued under section 203 or 203DA.

special forfeited goods means:

                     (a)  forfeited goods referred to in paragraph 229(1)(a) that are narcotic goods or consist of a border controlled precursor; and

                     (b)  forfeited goods referred to in paragraph 229(1)(b), (e), (n) or (na).

terrorist act means an action or threat of action where:

                     (a)  the action falls within subsection (4) and does not fall within subsection (4A); and

                     (b)  the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

                     (c)  the action is done or the threat is made with the intention of:

                              (i)  coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

                             (ii)  intimidating the public or a section of the public.

It is immaterial whether the action or threat, or any part of the action or threat or anyone or anything affected by the action or threat is within or outside Australia.

warrant premises means premises in relation to which a search warrant or a seizure warrant is in force.

             (2)  An instrument of approval of a place as a place for the examination of international mail is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

       (2AA)  For the purposes of this Part, an offence against section 6 of the Crimes Act 1914 that relates to an offence against section 72.13 of the Criminal Code is taken to be an offence against section 72.13 of the Criminal Code.

          (2A)  For the purposes of this Part, an offence against section 6 of the Crimes Act 1914 that relates to an offence against Division 307 of the Criminal Code is taken to be an offence against that Division.

             (3)  For the purposes of this Part:

                     (a)  an offence against section 141.1, 142.1, 142.2 or 149.1 of the Criminal Code that relates to this Act is taken to be an offence against this Act; and

                    (aa)  an offence against section 141.1, 142.1, 142.2 or 149.1 of the Criminal Code that relates to section 72.13 of the Criminal Code is taken to be an offence against section 72.13 of the Criminal Code; and

                     (b)  an offence against section 141.1, 142.1, 142.2 or 149.1 of the Criminal Code that relates to Division 307 of the Criminal Code is taken to be an offence against that Division.

             (4)  For the purposes of the definition of terrorist act in subsection (1), action falls within this subsection if it:

                     (a)  causes serious harm that is physical harm to a person; or

                     (b)  causes serious damage to property; or

                   (ba)  causes a person’s death; or

                     (c)  endangers a person’s life, other than the life of the person taking the action; or

                     (d)  creates a serious risk to the health or safety of the public or a section of the public; or

                     (e)  seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:

                              (i)  an information system; or

                             (ii)  a telecommunications system; or

                            (iii)  a financial system; or

                            (iv)  a system used for the delivery of essential government services; or

                             (v)  a system used for, or by, an essential public utility; or

                            (vi)  a system used for, or by, a transport system.

          (4A)  For the purposes of the definition of terrorist act in subsection (1), action falls within this subsection if it:

                     (a)  is advocacy, protest, dissent or industrial action; and

                     (b)  is not intended:

                              (i)  to cause serious harm that is physical harm to a person; or

                             (ii)  to cause a person’s death; or

                            (iii)  to endanger the life of a person, other than the person taking the action; or

                            (iv)  to create a serious risk to the health or safety of the public or a section of the public.

             (5)  In subsections (4) and (4A):

                     (a)  a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia; and

                     (b)  a reference to the public includes a reference to the public of a country other than Australia.

183UB  Law relating to legal professional privilege not affected

                   This Division does not affect the law relating to legal professional privilege.

183UC  CEO may give directions concerning the exercise of powers under this Division

             (1)  Without limiting the generality of the power conferred on the CEO under subsection 4(4) of the Customs Administration Act 1985, the CEO may give directions in writing under that subsection concerning:

                     (a)  the circumstances in which the powers in this Division may be exercised; and

                     (b)  the officers of Customs who are entitled to exercise those powers; and

                     (c)  the manner and frequency of reporting to the CEO concerning the exercise of those powers.

             (2)  A direction given for the purposes of subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

183UD  Judges who may issue seizure warrants for goods in transit

             (1)  A Judge of the Federal Court of Australia or of the Supreme Court of the Australian Capital Territory may, by writing, consent to be nominated by the Minister under subsection (2).

             (2)  The Minister may, by writing, nominate a Judge of a court referred to in subsection (1) in relation to whom a consent is in force under that subsection to be a judicial officer for the purposes of paragraph (b) of the definition of judicial officer in subsection 183UA(1).

Subdivision BGeneral regulatory powers

184A  Power to board a ship

General power to board a ship

             (1)  In the circumstances described in subsection (2), (3), (4), (4A), (5), (6), (7), (8) or (9), an officer (within the meaning of section 185) may board a ship.

Note:          Sections 185 and 185A give further powers related to boarding a ship.

Foreign ships in Australian waters

             (2)  The officer may board a ship if:

                     (a)  the ship is a foreign ship; and

                     (b)  the ship is on the landward side of the outer edge of Australia’s territorial sea; and

                     (c)  either:

                              (i)  the boarding would be for the purposes of this Act or an Act prescribed by the regulations for the purposes of this Subdivision, or for the purposes of determining whether a contravention, or an attempted contravention, in Australia of section 72.13 or Division 307 of the Criminal Code is occurring; or

                             (ii)  the commander of a Commonwealth ship or Commonwealth aircraft reasonably suspects that the ship is, will be or has been involved in a contravention, or an attempted contravention, in Australia of section 72.13 or Division 307 of the Criminal Code.

Australian ships outside territorial seas of other countries

             (3)  The officer may board a ship if:

                     (a)  the ship is an Australian ship; and

                     (b)  the ship is outside the territorial sea of any foreign country.

However, this subsection does not apply if the ship may be boarded under subsection (9).

Foreign ships in contiguous zone

             (4)  The officer may board a ship if:

                     (a)  the ship is a foreign ship; and

                     (b)  the ship is in the contiguous zone of Australia; and

                     (c)  the commander of a Commonwealth ship or Commonwealth aircraft:

                              (i)  wishes to establish the identity of the ship; or

                             (ii)  reasonably suspects that the ship is, will be or has been involved in a contravention, or an attempted contravention, in Australia of this Act, section 72.13 or Division 307 of the Criminal Code or an Act prescribed by the regulations for the purposes of this Subdivision.

Foreign ships near installations

          (4A)  The officer may board a ship if:

                     (a)  the ship is a foreign ship; and

                     (b)  the ship is within 500 metres of an Australian resources installation or Australian sea installation (the 500 metre zone); and

                     (c)  the commander of a Commonwealth ship or Commonwealth aircraft:

                              (i)  wishes to establish the identity of the ship; or

                             (ii)  reasonably suspects that the ship is, will be or has been involved in a contravention, or an attempted contravention, in the 500 metre zone of this Act, section 72.13 or Division 307 of the Criminal Code or an Act prescribed by the regulations for the purposes of this Subdivision.

Mother ships on high seas supporting contraventions in Australia

             (5)  The officer may board a ship if:

                     (a)  the ship is a foreign ship; and

                     (b)  the ship is:

                              (i)  outside the outer edge of the contiguous zone of Australia; and

                            (iii)  outside the territorial sea of a foreign country; and

                     (c)  the commander of a Commonwealth ship or Commonwealth aircraft reasonably suspects that the ship is being or was used in direct support of, or in preparation for, a contravention in Australia of this Act, section 72.13 or Division 307 of the Criminal Code or an Act prescribed by the regulations for the purposes of this Subdivision, where the contravention involves another ship (whether a foreign ship or an Australian ship); and

                     (d)  the boarding occurs as soon as practicable after the contravention happens.

Suspicious foreign ships in EEZ

             (6)  The officer may board a ship if:

                     (a)  the ship is a foreign ship; and

                     (b)  the ship is in the exclusive economic zone of Australia; and

                     (c)  the commander of a Commonwealth ship or Commonwealth aircraft reasonably suspects that the ship is, will be or has been involved in a contravention, or an attempted contravention, in Australia’s exclusive economic zone of an Act prescribed by the regulations for the purposes of this Subdivision.

Mother ships on high seas supporting contraventions in EEZ

             (7)  The officer may board a ship if:

                     (a)  the ship is a foreign ship; and

                     (b)  the ship is:

                              (i)  outside the outer edge of the exclusive economic zone of Australia; and

                            (iii)  outside the territorial sea of a foreign country; and

                     (c)  the commander of a Commonwealth ship or Commonwealth aircraft reasonably suspects that the ship is being or was used in direct support of, or in preparation for, a contravention in Australia’s exclusive economic zone of an Act prescribed by the regulations for the purposes of this Subdivision, where the contravention involves another ship (whether a foreign ship or an Australian ship); and

                     (d)  the boarding occurs as soon as practicable after the contravention happens.

Foreign ships on high seas and covered by an agreement etc.

             (8)  The officer may board a ship if:

                     (a)  the ship is:

                              (i)  outside the outer edge of the contiguous zone of Australia; and

                             (ii)  outside the territorial sea of a foreign country; and

                     (b)  the commander of a Commonwealth ship or Commonwealth aircraft reasonably suspects that the ship is a foreign ship that is entitled to fly the flag of a country; and

                     (c)  Australia has an agreement or arrangement with that country which enables the exercise of Australian jurisdiction over ships of that country.

However, this subsection does not apply if the ship may be boarded under subsection (4A), (5), (6) or (7).

Ships without nationality on high seas

             (9)  The officer may board a ship if:

                     (a)  the ship is outside the territorial sea of a foreign country; and

                     (b)  any of the following applies:

                              (i)  the ship is not flying a flag of a country;

                             (ii)  the ship is flying a flag of a country and the commander of a Commonwealth ship or Commonwealth aircraft reasonably suspects that the ship is not entitled to fly that flag;

                            (iii)  the commander of a Commonwealth ship or Commonwealth aircraft reasonably suspects that the ship is not entitled to fly the flag of a country or has been flying the flag of more than one country; and

                     (c)  the commander of a Commonwealth ship or Commonwealth aircraft wishes to establish the identity of the ship.

However, this subsection does not apply if the ship may be boarded under subsection (4A), (5), (6), (7) or (8).

Master must facilitate boarding

           (12)  The master of a ship must facilitate, by all reasonable means, the boarding of the master’s ship under this section (apart from subsection (9)).

Penalty:  Imprisonment for 2 years.

Note:          The powers related to boarding under section 185 or 185A may still be exercised even though the master has not facilitated the boarding of his or her ship under this section.

           (13)  Subsection (12) does not apply if the master has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (13) (see subsection 13.3(3) of the Criminal Code).

           (14)  In this section:

commander, in relation to a Commonwealth ship or Commonwealth aircraft, includes a reference to the following:

                     (a)  a commissioned officer of the Australian Defence Force;

                     (b)  the most senior officer of Customs on board the ship or aircraft;

                     (c)  a warrant officer of the Australian Defence Force;

                     (d)  a non‑commissioned officer of the Australia Defence Force.

commissioned officer of the Australian Defence Force means an officer within the meaning of the Defence Act 1903.

non‑commissioned officer of the Australian Defence Force means a non‑commissioned officer within the meaning of the Defence Force Discipline Act 1982.

warrant officer of the Australian Defence Force means a sailor, soldier or airman who holds the rank of warrant officer.

184B  Power to chase foreign ships for boarding

Generally, a foreign ship may be chased if it may be boarded and an order to stop is given

             (1)  To enable the boarding of a foreign ship under section 184A (apart from subsection 184A(9)), the commander of a Commonwealth ship or Commonwealth aircraft may use it to chase, or continue the chase of, the foreign ship to any place outside the territorial sea of a foreign country if:

                     (a)  a visual or auditory signal:

                              (i)  to bring the foreign ship to a position to enable boarding; or

                             (ii)  to stop the foreign ship;

                            has been given (whether by the commander of the Commonwealth ship or Commonwealth aircraft or otherwise); and

                     (b)  the signal was given in such a way that it could be seen or heard (as the case may be) by the foreign ship; and

                     (c)  at the time the signal was given, the foreign ship was in a maritime zone in which it could be boarded under section 184A (regardless of the location of the Commonwealth ship or Commonwealth aircraft).

Note:          Subsection 184A(9) is about boarding ships without nationality that are on the high seas. Section 185A allows those ships to be boarded, even though the master of the ship has not facilitated the boarding of his or her ship.

Signal made even if not seen or heard by foreign ship

          (1A)  To avoid doubt, a visual or auditory signal mentioned in subsection (1) is still made even if no person on board the foreign ship saw, heard or understood the signal.

Using different Commonwealth ships or aircraft

             (2)  To avoid doubt, a Commonwealth ship or Commonwealth aircraft may be used in the chase:

                     (a)  whether or not it was a Commonwealth ship or Commonwealth aircraft referred to in section 184A in relation to the boarding of the foreign ship under that section; and

                     (b)  whether or not the visual or auditory signal referred to in subsection (1) was given from the ship or aircraft.

When foreign ships may be chased without a request being made

             (3)  The commander of a Commonwealth ship or Commonwealth aircraft may use it to chase, or continue the chase of, a foreign ship to a place outside the territorial sea of a foreign country to enable the boarding of the foreign ship if, immediately before the start of the chase, the foreign ship could have been boarded under subsection 184A(5) or (7).

Chase may continue even if the foreign ship is out of sight

             (4)  A chase under this section may continue even if the crew of all of the Commonwealth ships and Commonwealth aircraft involved in the chase lose sight of the chased ship or lose trace of it from radar or other sensing devices.

Chase may not continue after interruption

             (5)  The commander of a Commonwealth ship or Commonwealth aircraft must not use it to chase, or continue the chase of, a foreign ship under this section if the chase is interrupted (within the meaning of Article 111 of UNCLOS) at a place outside the outer edge of the contiguous zone. This subsection has effect despite subsections (1), (3) and (4).

Means that may be used to enable boarding of the foreign ship

             (6)  Anywhere outside the territorial sea of a foreign country, the commander of a Commonwealth ship or Commonwealth aircraft chasing a ship under this section may use any reasonable means consistent with international law to enable boarding of the chased ship, including:

                     (a)  using necessary and reasonable force; and

                     (b)  where necessary and after firing a gun as a signal, firing at or into the chased ship to disable it or compel it to be brought to for boarding; and

                     (c)  where necessary, using a device designed to stop or impede a ship.

184C  Power to chase Australian ships for boarding

Australian ships may be chased

             (1)  To enable the boarding of an Australian ship, the commander of a Commonwealth ship or Commonwealth aircraft may use it to chase, or continue the chase of, the Australian ship to any place outside the territorial sea of a foreign country.

Chase may continue even if the Australian ship is out of sight

             (2)  A chase under this section may continue even if the crew of all of the Commonwealth ships and Commonwealth aircraft involved in the chase lose sight of the chased ship or lose trace of it from radar or other sensing devices.

Means that may be used to enable boarding of the Australian ship

             (3)  Anywhere outside the territorial sea of a foreign country, the commander of a Commonwealth ship or Commonwealth aircraft chasing a ship under this section may use any reasonable means to enable boarding of the chased ship, including:

                     (a)  using necessary and reasonable force; and

                     (b)  where necessary and after firing a gun as a signal, firing at or into the chased ship to disable it or compel it to be brought to for boarding; and

                     (c)  where necessary, using a device designed to stop or impede a ship.

184D  Identifying an aircraft and requesting it to land for boarding

Application of section

             (1)  This section allows the commander of a Commonwealth aircraft to make requests of the pilot of another aircraft that:

                     (a)  if the other aircraft is an Australian aircraft—is over anywhere except a foreign country; and

                     (b)  if the other aircraft is not an Australian aircraft—is over Australia.

Requesting information to identify an aircraft

             (2)  If the commander cannot identify the other aircraft, the commander may:

                     (a)  use his or her aircraft to intercept the other aircraft in accordance with the practices recommended in Annex 2 (headed “Rules of the Air”) to the Convention on International Civil Aviation done at Chicago on 7 December 1944 (that was adopted in accordance with that Convention); and

                     (b)  request the pilot of the other aircraft to disclose to the commander:

                              (i)  the identity of the other aircraft; and

                             (ii)  the identity of all persons on the other aircraft; and

                            (iii)  the flight path of the other aircraft; and

                            (iv)  the flight plan of the other aircraft.

Requesting aircraft to land for boarding

             (3)  The commander may request the pilot of the other aircraft to land it at the nearest airport, or at the nearest suitable landing field, in Australia for boarding for the purposes of this Act if:

                     (a)  the pilot does not comply with a request under subsection (2); or

                     (b)  the commander reasonably suspects that the other aircraft is or has been involved in a contravention, or attempted contravention, of this Act or section 72.13 or Division 307 of the Criminal Code; or

                     (c)  the commander reasonably suspects that the other aircraft is carrying goods satisfying either or both of the following subparagraphs:

                              (i)  the goods are connected, whether directly or indirectly, with the carrying out of a terrorist act, whether a terrorist act has occurred, is occurring or is likely to occur;

                             (ii)  the existence or the shipment of the goods prejudices, or is likely to prejudice, Australia’s defence or security or international peace and security.

Note:          Section 185 gives power to board the aircraft and search it once it has landed.

Means of making request

             (4)  Any reasonable means may be used to make a request under this section.

Request still made even if pilot did not receive etc. request

             (5)  To avoid doubt, a request is still made under this section even if the pilot did not receive or understand the request.

Pilot must comply with request

             (6)  The pilot of the other aircraft must comply with a request made under this section.

Penalty:  Imprisonment for 2 years.

          (6A)  Subsection (6) does not apply if the pilot of the other aircraft has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (6A) (see subsection 13.3(3) of the Criminal Code).

Definition

             (7)  In this section, Australian aircraft means an aircraft that:

                     (a)  is an Australian aircraft as defined in the Civil Aviation Act 1988; or

                     (b)  is not registered under the law of a foreign country and is either wholly owned by, or solely operated by:

                              (i)  one or more residents of Australia; or

                             (ii)  one or more Australian nationals; or

                            (iii)  one or more residents of Australia and one or more Australian nationals.

For the purposes of this definition, Australian national and resident of Australia have the same meanings as in the Shipping Registration Act 1981.

185  Power to board and search etc. ships and aircraft

Application of section to ships

             (1)  This section applies to a ship that is outside the territorial sea of a foreign country if:

                     (a)  the ship may be boarded under section 184A; or

                     (b)  the ship is a foreign ship described in subsection 184B(3) (which allows foreign ships on the high seas to be chased); or

                     (c)  the ship is an Australian ship.

However, this section does not apply to a ship if the ship may be boarded under subsection 184A(8) or (9) (certain ships on the high seas), unless an officer is satisfied under subsection 185A(3) that the ship is an Australian ship.

Note:          Section 185A gives further powers relating to ships that may be boarded under subsection 184A(8) or (9).

Application to aircraft

          (1A)  This section applies to an aircraft that has landed in Australia for boarding as a result of a request made under section 184D.

Officer’s powers

             (2)  An officer may:

                     (a)  board and search the ship or aircraft; and

                     (b)  search and examine any goods found on the ship or aircraft; and

                   (ba)  secure any goods found on the ship or aircraft; and

                     (c)  require all persons found on the ship or aircraft to answer questions, and produce any documents in their possession, in relation to the following:

                              (i)  the ship or aircraft, its voyage or flight and its cargo, stores, crew and passengers;

                             (ii)  the identity and presence of those persons on the ship or aircraft;

                            (iii)  a contravention, an attempted contravention or an involvement in a contravention or attempted contravention, either in or outside Australia, of this Act or section 72.13 or Division 307 of the Criminal Code; and

                    (ca)  copy, or take extracts from, any document:

                              (i)  found on the ship or aircraft; or

                             (ii)  produced by a person found on the ship or aircraft as required under paragraph (c); and

                   (cb)  take possession of any goods (other than narcotic goods) found on the ship or aircraft, and any documents produced under paragraph (c) by a person found on the ship or aircraft, if the officer has reasonable grounds to believe that the goods or documents may afford evidence of the commission of a relevant offence; and

                     (d)  arrest without warrant any person found on the ship or aircraft if:

                              (i)  in the case of a person found on a ship that is in Australia—the officer reasonably suspects that the person has committed, is committing or attempting to commit, or is involved in the commission of, an offence, either in or outside Australia, against this Act, section 72.13 or Division 307 of the Criminal Code or an Act prescribed by the regulations for the purposes of this Subdivision; or

                             (ii)  in the case of a person found on a ship that is outside Australia—the officer reasonably suspects that the person has committed, is committing or attempting to commit, or is involved in the commission of:

                                        (A)  an offence in Australia against this Act, section 72.13 or Division 307 of the Criminal Code or an Act prescribed by the regulations for the purposes of this Subdivision; or

                                        (B)  an offence in Australia’s exclusive economic zone against an Act prescribed by the regulations for the purposes of this Subdivision; or

                            (iii)  in the case of a person found on an aircraft that is in Australia—the officer reasonably suspects that the person has committed, is committing or attempting to commit, or is involved in the commission of, an offence, either in or outside Australia, against this Act or section 72.13 or Division 307 of the Criminal Code; and

                     (e)  seize without warrant any narcotic goods found on the ship or aircraft.

Note:          Section 185AA gives power to search a person found on a ship or aircraft that has been boarded under paragraph 185(2)(a).

       (2AA)  If one or more officers (other than officers who are members of the Australian Defence Force) board a ship under this section, the most senior of those officers who is an officer of Customs must:

                     (a)  if requested to do so by the master of the ship; and

                     (b)  as soon as reasonably practicable after boarding;

produce, for inspection by the master, written evidence of the fact that the officer is an officer within the meaning of this section.

       (2AB)  If the officer fails to produce the evidence mentioned in subsection (2AA), no officer may remain on board the ship.

          (2A)  Any exercise of the power of arrest referred to in subsection (2) in the contiguous zone in relation to Australia is subject to the obligations of Australia under international law, including obligations under any treaty, convention or other agreement or arrangement between Australia and another country or other countries.

Help to search

          (2B)  Without limiting the generality of paragraph (2)(a), an officer may use a dog to assist in searching the ship or aircraft.

Help to examine goods

          (2C)  In the exercise of the power under paragraph (2)(b) to examine goods, the officer may do, or arrange for another officer or other person having the necessary experience to do, whatever is reasonably necessary to permit the examination of the goods.

Examples of examining goods

          (2D)  Without limiting the generality of subsection (2C), examples of what may be done in the examination of goods include the following:

                     (a)  opening any package in which goods are or may be contained;

                     (b)  using a device, such as an X‑ray machine or ion scanning equipment, on the goods;

                     (c)  testing or analysing the goods;

                     (d)  measuring or counting the goods;

                     (e)  if the goods are a document—reading the document either directly or with the use of an electronic device;

                      (f)  using a dog to assist in examining the goods.

Power to detain and move ship or aircraft

             (3)  An officer may detain the ship or aircraft and bring it, or cause it to be brought, to a port or airport, or to another place (including, in relation to a ship, a place within the territorial sea or the contiguous zone in relation to Australia), that he or she considers appropriate if:

                     (a)  in the case of a ship that is in Australia—the officer reasonably suspects that the ship is or has been involved in a contravention, either in or outside Australia, of this Act, section 72.13 or Division 307 of the Criminal Code or an Act prescribed by the regulations for the purposes of this Subdivision; and

                     (b)  in the case of an Australian ship that is outside Australia—the officer reasonably suspects that the ship is, will be or has been involved in a contravention, either in or outside Australia, of this Act or any other Act; and

                     (c)  in the case of a foreign ship that is outside Australia—the officer reasonably suspects that the ship is, will be or has been involved in a contravention:

                              (i)  in Australia of this Act, section 72.13 or Division 307 of the Criminal Code or an Act prescribed by the regulations for the purposes of this Subdivision; or

                             (ii)  in Australia’s exclusive economic zone of an Act prescribed by the regulations for the purposes of this Subdivision; and

                     (d)  in the case of an aircraft that is in Australia—the officer reasonably suspects that the aircraft is or has been involved in a contravention, either in or outside Australia, of this Act or section 72.13 or Division 307 of the Criminal Code.

However, a ship need not be brought to a port or other place if the CEO makes a direction in relation to the ship under section 185B.

Moving ship on the high seas

  (3AAAA)  To avoid doubt, subsection (3) allows an officer to bring a ship, or cause it to be brought, to a place even if it is necessary for the ship to travel on the high seas to reach the place.

People on detained ships or aircraft

    (3AAA)  If an officer detains a ship or aircraft under this section, any restraint on the liberty of any person found on the ship or aircraft that results from the detention of the ship or aircraft is not unlawful, and proceedings, whether civil or criminal, in respect of that restraint may not be instituted or continued in any court against the Commonwealth, the officer or any person assisting the officer in detaining the ship or aircraft.

Jurisdiction of High Court

     (3AAB)  Nothing in subsection (3AAA) is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.

Powers of officers in respect of people found on detained ships or aircraft

          (3A)  If an officer detains a ship or aircraft under this section, the officer may:

                     (a)  detain any person found on the ship or aircraft and bring the person, or cause the person to be brought, to the migration zone (within the meaning of the Migration Act 1958); or

                     (b)  take the person, or cause the person to be taken, to a place outside Australia.

The definition of place outside Australia in subsection 4(1) does not apply for the purposes of paragraph (b).

Powers to move people

       (3AA)  For the purpose of moving a person under subsection (3A), an officer may, within or outside Australia:

                     (a)  place the person on a ship or aircraft; or

                     (b)  restrain the person on a ship or aircraft; or

                     (c)  remove the person from a ship or aircraft.

Note:          Section 185AA gives power to search a person placed on a ship or aircraft under subsection 185(3AA).

Protection if officers etc. act in good faith

       (3AB)  Proceedings, whether civil or criminal, may not be instituted or continued, in respect of any action taken under subsection (3AA), against the Commonwealth, an officer or any person assisting an officer if the officer or person who took the action acted in good faith and used no more force than was authorised by subsection (3B).

Use of necessary and reasonable force

          (3B)  An officer may use such force as is necessary and reasonable in the exercise of a power under this section.

Limit on use of force to board and search ships or aircraft

          (3C)  In boarding and searching the ship or aircraft and searching or examining goods found on the ship or aircraft, an officer must not damage the ship, aircraft or goods by forcing open a part of the ship, aircraft or goods unless:

                     (a)  the person (if any) apparently in charge of the ship or aircraft has been given a reasonable opportunity to open that part or the goods; or

                     (b)  it is not reasonably practicable to give that person such an opportunity.

This subsection has effect despite paragraphs (2)(a) and (b) and subsection (3B).

Limit on use of force to arrest or detain person on ships or aircraft

          (3D)  In arresting or detaining a person found on the ship or aircraft, an officer:

                     (a)  must not use more force, or subject the person to greater indignity, than is necessary and reasonable to make the arrest or detention or to prevent the person escaping after the arrest or detention; and

                     (b)  must not do anything likely to cause the person grievous bodily harm unless the officer believes on reasonable grounds that doing the thing is necessary to protect life or prevent serious injury of another person (including the officer).

This subsection has effect despite paragraph (2)(d) and subsection (3B).

Limit on use of force to arrest fleeing person

          (3E)  In arresting a person found on the ship or aircraft who is fleeing to escape arrest, an officer must not do anything likely to cause the person grievous bodily harm unless:

                     (a)  the person has, if practicable, been called on to surrender and the officer believes on reasonable grounds that the person cannot be apprehended in any other way; or

                     (b)  the officer believes on reasonable grounds that doing the thing is necessary to protect life or prevent serious injury of another person (including the officer).

This subsection applies in addition to subsection (3D) and has effect despite paragraph (2)(d) and subsection (3B).

If ship covered by agreement, officer may exercise other powers

           (3F)  If:

                     (a)  an officer is satisfied that the ship is a foreign ship that is entitled to fly the flag of a country; and

                     (b)  Australia has an agreement or arrangement with that country which enables the exercise of Australian jurisdiction over ships of that country;

then the officer may exercise any powers prescribed by the regulations consistently with the agreement or arrangement in relation to the ship or persons found on the ship.

Complying with requirement by officer

             (4)  A person shall not refuse or fail to comply with a requirement made by an officer under this section.

Penalty:  100 penalty units.

Reasonable excuse for non‑compliance

       (4AA)  Subsection (4) does not apply if the person has a reasonable excuse.

Evidence may be used in prosecutions etc.

          (4A)  To avoid doubt, if, when exercising powers under this section, an officer obtains evidence of the commission of an offence against a law of the Commonwealth, a State or a Territory, then that evidence may be used, or given to another body for use, in:

                     (a)  investigating the offence; or

                     (b)  proceedings for the prosecution for the offence.

However, this subsection does not override or limit the operation of a law of a State about the evidence that may be used in proceedings for the prosecution for an offence against a law of that State.

Definition of officer

             (5)  In this section, officer means an officer within the meaning of subsection 4(1), and includes:

                     (a)  any person who is in command, or a member of the crew, of:

                              (i)  a Commonwealth ship or Commonwealth aircraft referred to in section 184A in relation to the boarding under that section of the ship to which this section applies; or

                            (ia)  the aircraft from which the relevant request under section 184D was made; or

                             (ii)  a ship or aircraft that was used under section 184B or 184C to chase the ship in relation to which this section applies; and

                     (b)  a police officer or a member of the Australian Defence Force.

Interpretation

             (6)  In this section:

                     (a)  a reference to a person found on the ship or aircraft includes a reference to a person suspected on reasonable grounds by an officer of having landed from or left the ship or aircraft; and

                     (b)  a reference to goods found on the ship or aircraft includes a reference to goods suspected on reasonable grounds by an officer of having been removed from the ship or aircraft.

             (7)  For the purposes of paragraph (2)(cb), goods found on a ship or aircraft, or documents produced by a person found on a ship or aircraft, may afford evidence of the commission of a relevant offence only if:

                     (a)  in a case where the ship is in Australia—the goods or documents may afford evidence of the commission of an offence, either in or outside Australia, against this Act, section 72.13 or Division 307 of the Criminal Code or an Act prescribed by the regulations; or

                     (b)  in a case where the ship is outside Australia—the goods or documents may afford evidence of the commission of an offence:

                              (i)  in Australia against this Act, section 72.13 or Division 307 of the Criminal Code or an Act prescribed by the regulations; or

                             (ii)  in Australia’s exclusive economic zone against an Act prescribed by the regulations; or

                     (c)  in a case where the aircraft is in Australia—the goods or documents may afford evidence of the commission of an offence, either in or outside Australia, against this Act or section 72.13 or Division 307 of the Criminal Code.

185A  Boarding of certain ships on the high seas

             (1)  This section applies to a ship if:

                     (a)  the ship may be boarded under subsection 184A(8) (boarding a ship of a country with which Australia has an agreement), and the ship is:

                              (i)  outside the outer edge of the contiguous zone of Australia; and

                             (ii)  outside the territorial sea of any country (including Australia); or

                     (b)  the ship may be boarded under subsection 184A(9) (boarding a ship without nationality), and the ship is outside the territorial sea of a foreign country.

Powers to establish the identity of the ship

             (2)  An officer may:

                     (a)  board the ship; and

                     (b)  ask all persons found on the ship questions about:

                              (i)  the identity of the ship; and

                             (ii)  the voyage of the ship; and

                     (c)  require all persons found on the ship to produce documents relevant to:

                              (i)  finding out the identity of the ship; or

                             (ii)  the voyage of the ship; and

                     (d)  require the master or a member of the master’s crew to show the commander or a member of the commander’s crew readings of the ship’s navigation instruments relating to the voyage of the ship.

Note:          Section 185AA gives power to search a person found on a ship that has been boarded under paragraph 185A(2)(a).

          (2A)  If one or more officers (other than officers who are members of the Australian Defence Force) board a ship under this section, the most senior of those officers who is an officer of Customs must:

                     (a)  if requested to do so by the master of the ship; and

                     (b)  as soon as reasonably practicable after boarding;

produce, for inspection by the master, written evidence of the fact that the officer is an officer within the meaning of this section.

          (2B)  If the officer fails to produce the evidence mentioned in subsection (2AA), no officer may remain on board the ship.

Officer discovers that the ship is an Australian ship

             (3)  If, after exercising the powers in subsection (2), the officer is satisfied that the ship is an Australian ship, then section 185 applies to the ship.

Note:          If section 185 applies to a ship, then the officer will be able to exercise all of the powers under that section in relation to the ship.

Officer confirms that the ship is covered by an agreement etc.

             (4)  If:

                     (a)  after exercising the powers in subsection (2), the officer is satisfied that the ship is a foreign ship that is entitled to fly the flag of a country; and

                     (b)  Australia has an agreement or arrangement with that country which enables the exercise of Australian jurisdiction over ships of that country;

then the officer may exercise the powers prescribed by the regulations consistently with that agreement or arrangement.

Officer discovers that the ship is not covered by an agreement etc.

             (5)  If:

                     (a)  after exercising the powers in subsection (2), the officer is satisfied that the ship is a foreign ship that is entitled to fly the flag of a country; and

                     (b)  Australia does not have an agreement or arrangement with that country which enables the exercise of Australian jurisdiction over ships of that country;

then the officer must leave the ship as soon as is practicable.

Officer confirms that the ship is without nationality

             (6)  If, after exercising the powers in subsection (2), the officer is satisfied that the ship is a foreign ship that:

                     (a)  is not entitled to fly the flag of a country; or

                     (b)  has been flying the flag of a country that it is not entitled to fly; or

                     (c)  has been flying the flag of more than one country;

then the officer may search the ship and seize without warrant any narcotic goods found on the ship.

             (7)  In this section:

officer has the meaning given by subsection 4(1), and includes:

                     (a)  any person who is in command, or a member of the crew, of:

                              (i)  a Commonwealth ship or Commonwealth aircraft referred to in section 184A in relation to the boarding under that section of a ship; or

                             (ii)  a ship that was used under section 184B to chase the ship in relation to which this section applies; and

                     (b)  a police officer; and

                     (c)  a member of the Australian Defence Force.

185AA  Searches of people on certain ships or aircraft

People found on ships and aircraft boarded under section 185

             (1)  A person may be searched for the purposes set out in subsection (1A) if:

                     (a)  the person is found on a ship or aircraft that has been boarded under paragraph 185(2)(a); or

                     (b)  the person has been placed on a ship or aircraft under subsection 185(3AA).

          (1A)  If a person may be searched for the purposes set out in this subsection, the person, the person’s clothing and any property under the immediate control of the person, may, without warrant, be searched to find out whether the person is carrying, or there is hidden on the person, in the clothing or in the property:

                     (a)  a weapon or other thing capable of being used to inflict bodily injury or to help the person escape; or

                     (b)  a document, or other thing, that the officer or other person has reasonable grounds to believe may afford evidence of the commission of a relevant offence.

Note:          Division 1B of this Part provides search powers in respect of certain persons suspected of unlawfully carrying prohibited goods.

          (1B)  For the purposes of subsection (1A), a document, or other thing, carried or hidden on a person, in a person’s clothing or in a person’s property, may afford evidence of the commission of a relevant offence only if:

                     (a)  in a case where the person is found on a ship in Australia—the document or other thing may afford evidence of the commission of an offence, either in or outside Australia, against this Act, section 72.13 or Division 307 of the Criminal Code or an Act prescribed by the regulations; or

                     (b)  in a case where the person is found on a ship outside Australia—the document or other thing may afford evidence of the commission of an offence:

                              (i)  in Australia against this Act, section 72.13 or Division 307 of the Criminal Code or an Act prescribed by the regulations; or

                             (ii)  in Australia’s exclusive economic zone against an Act prescribed by the regulations; or

                     (c)  in a case where the person is found on an aircraft in Australia—the document or other thing may afford evidence of the commission of an offence, either in or outside Australia, against this Act or section 72.13 or Division 307 of the Criminal Code.

People found on ships boarded under section 185A

             (2)  A person may be searched for the purpose set out in subsection (2A) if the person is found on a ship that has been boarded under paragraph 185A(2)(a).

          (2A)  If a person may be searched for the purpose set out in this subsection, the person, the person’s clothing and any property under the immediate control of the person, may, without warrant, be searched to find out whether the person is carrying, or there is hidden on the person, in the clothing or in the property a weapon or other thing capable of being used to inflict bodily injury.

Power to examine things found

             (3)  If a search is conducted under this section, an officer may examine any thing found in the course of the search (including, if the thing is a document, by reading the document directly or with the use of an electronic device).

          (3A)  In exercising the power to examine things, an officer may do, or arrange for another officer or other person having the necessary experience to do, whatever is reasonably necessary to permit the examination of the things.

          (3B)  However, when examining a thing found in the course of a search, an officer must not damage the thing by forcing it, or a part of it, open unless:

                     (a)  the person being searched has been given a reasonable opportunity to open the thing or part; or

                     (b)  it is not reasonably practicable to give the person such an opportunity.

Powers to take possession and retain things found

          (3C)  If, in the course of a search for a purpose set out in subsection (1A) or (2A), a weapon, document or other thing referred to in that subsection is found, then:

                     (a)  in the case of a search conducted by an officer—an officer may take possession of the weapon, document or thing; and

                     (b)  in the case of a search conducted by a person who is not an officer—the person must take possession of the weapon, document or thing and give it to an officer.

Limit on removal of clothing during search

             (4)  This section does not authorise an officer, or another person conducting a search pursuant to subsection (5), to remove any of the person’s clothing, or to require a person to remove any of his or her clothing, except the person’s outer garments (including but not limited to the person’s overcoat, coat, jacket, gloves, shoes and head covering).

Limit on who may conduct search

             (5)  A search under this section of a person, and the person’s clothing, must be conducted by:

                     (a)  an officer of the same sex as the person; or

                     (b)  in a case where an officer of the same sex as the person is not available to conduct the search—any other person who is of the same sex and:

                              (i)  is requested by an officer; and

                             (ii)  agrees;

                            to conduct the search.

Protection if officers etc. act in good faith

             (6)  An action or proceeding, whether civil or criminal, does not lie against an officer who conducts, or a person who (at the request of an officer) conducts, a search under this section if the officer, or person, acts in good faith and does not contravene subsection (7).

Limit on use of force to conduct search

             (7)  An officer or other person who conducts a search under this section must not use more force, or subject a person to greater indignity, than is reasonably necessary in order to conduct the search.

Evidence may be used in prosecutions etc.

          (7A)  To avoid doubt, if, when exercising powers under this section, an officer or other person who conducts a search under this section obtains evidence of the commission of an offence against a law of the Commonwealth, a State or a Territory, then that evidence may be used, or given to another body for use, in:

                     (a)  investigating the offence; or

                     (b)  proceedings for the prosecution for the offence.

However, this subsection does not override or limit the operation of a law of a State about the evidence that may be used in proceedings for an offence against a law of that State.

Definitions

             (8)  In this section:

officer means any of the following:

                     (a)  an officer within the meaning of subsection 185(5);

                     (b)  an officer within the meaning of subsection 185A(7).

References to person found on a ship or aircraft

             (9)  In this section, a reference to a person found on a ship or aircraft includes a reference to a person suspected on reasonable grounds by an officer of having landed from, or left, the ship or aircraft.

185AAA  Retention of relevant items taken possession of under paragraph 185(2)(cb) or subsection 185AA(3C)

             (1)  Subject to any contrary order of a court, Customs must return a relevant item if:

                     (a)  the reason for the relevant item’s retention by Customs no longer exists or it is decided that the relevant item is not to be used in evidence; or

                     (b)  the period of 60 days after the relevant item was taken possession of ends;

whichever is the earlier, unless the relevant item is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

             (2)  If Customs is required to return a relevant item under subsection (1), Customs must take reasonable steps to return it to the person from whom it was taken or to the owner if that person is not entitled to possess it, unless:

                     (a)  proceedings in respect of which the relevant item may afford evidence were instituted before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or

                     (b)  Customs may retain the relevant item because of an order under subsection (4); or

                     (c)  Customs is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy or dispose of the relevant item.

             (3)  If proceedings in respect of which the relevant item may afford evidence have not commenced:

                     (a)  before the end of 60 days after it was taken possession of; or

                     (b)  before the end of a period previously specified in an order of a magistrate under subsection (4);

Customs may apply to a magistrate for an order that Customs may retain the relevant item for a further period.

             (4)  If the magistrate is satisfied that it is necessary for Customs to continue to retain the relevant item:

                     (a)  for the purposes of an investigation as to whether an offence has been committed; or

                     (b)  to enable evidence of an offence to be secured for the purposes of a prosecution;

the magistrate may order that Customs may retain the relevant item for a period specified in the order.

             (5)  Before making the application, Customs must:

                     (a)  take reasonable steps to discover who has an interest in the retention of the relevant item; and

                     (b)  if it is practicable to do so, notify each person who Customs considers has such an interest.

             (6)  In this section:

relevant item means:

                     (a)  goods taken possession of under paragraph 185(2)(cb); or

                     (b)  a document taken possession of under paragraph 185(2)(cb) or subsection 185AA(3C); or

                     (c)  a weapon taken possession of under subsection 185AA(3C); or

                     (d)  any other thing (other than narcotic goods) taken possession of under subsection 185AA(3C).

185AB  Returning persons to ships

             (1)  An officer, or a person assisting an officer, may return to a ship that is detained under section 185 a person who:

                     (a)  was on the ship when it was initially detained under section 185; and

                     (b)  later leaves the ship.

For this purpose, reasonable means, including reasonable force, may be used by the officer or another person.

             (2)  A person may only be returned to a ship under subsection (1) if the officer or person assisting is satisfied that it is safe to return the person to the ship.

             (3)  In this section, officer has the same meaning as it has in section 185.

185B  Moving or destroying hazardous ships etc.

Application of section to ships in Australia

             (1)  This section applies to a ship that is in Australia and that an officer reasonably suspects is or has been involved in a contravention or an attempted contravention, either in or outside Australia, of this Act, section 72.13 or Division 307 of the Criminal Code or a prescribed Act.

Application of section to ships outside Australia

             (2)  This section also applies to a ship that is outside Australia if:

                     (a)  an officer has detained it under subsection 185(3); and

                     (b)  in the case of an Australian ship—the officer reasonably suspects it is or has been involved in a contravention or an attempted contravention, either in or outside Australia, of this Act, section 72.13 or Division 307 of the Criminal Code or a prescribed Act; and

                     (c)  in the case of a foreign ship—the officer reasonably suspects it is or has been involved in a contravention:

                              (i)  in Australia of this Act, section 72.13 or Division 307 of the Criminal Code or a prescribed Act; or

                             (ii)  in Australia’s exclusive economic zone of a prescribed Act.

When ship may be destroyed or moved

             (3)  The CEO may direct an officer to move, destroy, or move and destroy the ship, or cause such thing to be done, if the CEO has reasonable grounds to believe any of the following:

                     (a)  that the ship is unseaworthy;

                     (b)  that the ship poses a serious risk to navigation, quarantine, safety or public health;

                     (c)  that the ship poses a serious risk of damage to property or the environment.

             (4)  The CEO may direct an officer to destroy, or move and destroy, the ship, or cause such thing to be done, if the CEO has reasonable grounds to believe that the ship is in such poor condition that its custody or maintenance by the Commonwealth would involve an expense that would be likely to be greater than its value.

Giving of notice after the ship has been destroyed

             (5)  As soon as practicable, but not later than 7 days after the ship has been destroyed, the CEO must give a written notice to:

                     (a)  the owner of the ship; or

                     (b)  if the owner cannot be identified after reasonable inquiry—the person in whose possession or under whose control the ship was when it was detained or located.

             (6)  The notice must state:

                     (a)  that the ship has been destroyed under subsection (3) or (4); and

                     (b)  the reason for the destruction; and

                     (c)  that compensation may be payable under section 4AB.

Note:          A person may be paid compensation under section 4AB if the destruction of the ship results in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution).

Failure to give notice not to affect validity

             (7)  A failure to give a notice under this section does not affect the validity of the ship’s destruction.

Section to override certain other provisions

             (8)  This section applies despite Subdivisions D, G and GA (other than sections 205G and 209I) of Division 1 of Part XII.

             (9)  In this section, officer includes a member of the Australian Defence Force.

186  General powers of examination of goods subject to Customs control

             (1)  Any officer may, subject to subsections (2) and (3), examine any goods subject to the control of the Customs, and the expense of the examination including the cost of removal to the place of examination shall be borne by the owner.

             (2)  In the exercise of the power to examine goods, the officer of Customs may do, or arrange for another officer of Customs or other person having the necessary experience to do, whatever is reasonably necessary to permit the examination of the goods concerned.

             (3)  Without limiting the generality of subsection (2), examples of what may be done in the examination of goods include the following:

                     (a)  opening any package in which goods are or may be contained;

                     (b)  using a device, such as an X‑ray machine or ion scanning equipment, on the goods;

                     (c)  testing or analysing the goods;

                     (d)  measuring or counting the goods;

                     (e)  if the goods are a document—reading the document either directly or with the use of an electronic device;

                      (f)  using dogs to assist in examining the goods.

             (4)  Goods that are subject to the control of Customs under section 31 do not cease to be subject to the control of Customs merely because they are removed from a ship or aircraft in the course of an examination under this section.

186A  Power to make copies of, and take extracts from, documents in certain circumstances

             (1)  If:

                     (a)  a document is examined under section 186; and

                     (b)  as a result of that examination, an officer of Customs is satisfied that the document or part of the document may contain information relevant to:

                              (i)  an importation or exportation, or to a proposed importation or exportation, of prohibited goods; or

                             (ii)  the commission or attempted commission of any other offence against this Act or of any offence against a prescribed Act; or

                            (iii)  the performance of functions under section 17 of the Australian Security Intelligence Organisation Act 1979; or

                            (iv)  the performance of functions under section 6 of the Intelligence Services Act 2001; or

                             (v)  security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979);

the officer of Customs may make a copy of, or take an extract from, the document, or arrange for another officer of Customs or other person having the necessary experience, to make such a copy or take such an extract.

             (2)  Without limiting the generality of subsection (1), a copy may be made of, or an extract taken from, a document:

                     (a)  by photocopying the document or a part of the document; or

                     (b)  by photographing the document or a part of the document; or

                     (c)  by electronically scanning the document or a part of the document; or

                     (d)  by making an electronic copy of information contained in the document or a part of the document; or

                     (e)  by making a written copy of information contained in the document or a part of the document.

186B  Compensation for damage caused by copying

             (1)  If an activity undertaken in relation to the copying of a document, or the taking of an extract from a document, causes its loss or destruction or causes damage to the document, and the loss or destruction or the damage occurred wholly or partly as a result of:

                     (a)  insufficient care being exercised in selecting the person to undertake the activity; or

                     (b)  insufficient care being exercised by the person undertaking the activity;

compensation for the damage is payable to the owner of the documents concerned.

             (2)  Compensation is payable out of money appropriated by the Parliament for the purpose.

             (3)  In this section, a reference either to the loss or destruction of a document, or to damage to a document, includes a reference to the erasure or addition of electronic data or the corruption of such data.

187  Power to board and search

             (1)  An officer may:

                     (a)  board any ship or aircraft;

                     (b)  board any Australian resources installation:

                              (i)  that is subject to the control of the Customs;

                             (ii)  at which there is a ship or aircraft that has come to the installation from a place outside Australia; or

                            (iii)  on which an officer has reasonable grounds to believe there are goods that are subject to the control of the Customs;

                     (c)  board a resources installation (other than an Australian resources installation) in respect of which permission under section 5A has been granted;

                     (d)  board any Australian sea installation:

                              (i)  that is subject to the control of Customs;

                             (ii)  at which there is a ship or aircraft that has come to the installation from parts beyond the seas; or

                            (iii)  on which an officer has reasonable grounds to believe there are goods that are subject to the control of the Customs;

                     (e)  board a sea installation (other than an Australian sea installation) in respect of which permission under section 5B has been granted;

                      (f)  search any ship or aircraft or an installation of the kind referred to in paragraph (b), (c), (d) or (e); or

                     (g)  secure any goods on any ship or aircraft or on any installation of the kind referred to in paragraph (b), (c), (d) or (e).

             (2)  A reference in subsection (1) to a ship or aircraft is a reference to a ship or aircraft to which section 185 does not apply.

188  Boarding

             (1)  The power of an officer to board shall extend to staying on board any ship, aircraft or installation and the Collector may station an officer on board any ship, aircraft or installation, and the master or pilot shall provide sleeping accommodation in the cabin and suitable and sufficient food for such officer.

Penalty:  5 penalty units.

             (2)  Subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

189  Searching

                   The power of an officer to search shall extend to every part of any ship, aircraft or installation, and shall authorize the opening of any package, locker, or place and the examination of all goods.

189A  Officers may carry arms in certain circumstances

             (1)  Subject to any directions from the CEO, an authorised arms issuing officer:

                     (a)  may issue approved firearms and other approved items of personal defence equipment to officers authorised to carry arms, for the purpose of:

                              (i)  enabling the use, by such officers, of a firearm in the circumstances set out in subsection 184B(6) or 184C(3); or

                             (ii)  enabling the safe exercise, by such officers, of powers conferred on them under this Act or any other Act; and

                     (b)  must take all reasonable steps to ensure that approved firearms, and other approved items of personal defence equipment, that are available for issue under paragraph (a), are kept in secure storage at all times when not required for use.

             (2)  Without limiting the matters that may be the subject of directions under subsection 4(4) of the Customs Administration Act 1985 as modified by section 183UC, the CEO may give directions under that modified subsection relating to the deployment of approved firearms and other approved items of personal defence equipment under this section. The directions may deal with:

                     (a)  the circumstances in which approved firearms and other approved items of personal defence equipment may be issued; and

                     (b)  the circumstances in which such firearms and other items of equipment are to be recalled; and

                     (c)  the circumstances in which such firearms and other items of equipment can be used and the manner of their use; and

                     (d)  the nature of the secure storage of such firearms and other items of equipment when recalled; and

                     (e)  any other matters relating to the deployment of such firearms and other items of equipment the CEO thinks appropriate.

             (3)  An officer is not required under, or by reason of, a law of a State or Territory:

                     (a)  to obtain a licence or permission for the possession or use of an approved firearm or approved item of personal defence equipment; or

                     (b)  to register such a firearm or other item of equipment.

             (4)  Nothing in this section affects the operation of any other provision of, or of the regulations under, this Act to the extent that that provision relates to the use of firearms in circumstances other than the circumstances referred to in this section.

             (5)  In this section:

approved firearm means a firearm of a kind declared by the regulations to be an approved firearm for the purposes of this section.

approved item of personal defence equipment means an extendable baton, an oleoresin capsicum spray or anti‑ballistic clothing, and includes any other item that is declared by the regulations to be an approved item of personal defence equipment for the purposes of this section.

authorised arms issuing officer means an officer of Customs authorised, in writing, by the CEO to exercise the powers or perform the functions of an authorised arms issuing officer under this section.

officer authorised to carry arms means an officer of Customs who is authorised, in writing, by the CEO to use approved firearms and approved items of personal defence equipment issued by an authorised arms issuing officer for either or both of the purposes specified in subparagraphs (1)(a)(i) and (ii) of this section.

190  Securing goods

                   The power of an officer to secure any goods shall extend to fastening down hatchways and other openings into the hold and locking up, sealing, marking or otherwise securing any goods.

191  Seals etc. not to be broken

             (1)  No fastening, lock, mark, or seal placed by an officer upon any goods or upon any door hatchway opening or place upon any ship, aircraft or installation shall be opened, altered, broken or erased whilst the goods upon which the fastening, lock, mark, or seal is placed or which are intended to be secured thereby shall remain subject to the control of the Customs.

Penalty:  50 penalty units.

             (2)  Subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (3)  Subsection (1) does not apply to an opening, alteration, breaking or erasure by authority.

Note:          For by authority, see subsection 4(1).

192  Seals etc. on ship or aircraft in port bound to another port within Commonwealth

             (1)  No fastening, lock, mark, or seal placed by an officer upon any goods or upon any door, hatchway, opening, or place for the purpose of securing any stores upon any ship or aircraft which has arrived in any port or airport from parts beyond the seas and which is bound to any other port or airport within the Commonwealth shall be opened, altered, broken, or erased; and if any ship or aircraft enters any port or airport with any such fastening, lock, mark, or seal opened, altered, broken, or erased contrary to this section, the master or pilot shall be guilty of an offence against this Act.

Penalty:  50 penalty units.

             (2)  Subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (3)  Subsection (1) does not apply to an opening, alteration, breaking or erasure by authority.

Note:          For by authority, see subsection 4(1).

193  Officers may enter and remain upon coasts etc.

             (1)  An officer of Customs may, for the purpose of performing the officer’s duties and functions as an officer, and a person assisting an officer of Customs may, for the purpose of assisting the officer to perform those duties and functions, enter and remain upon any part of the following:

                     (a)  the coast, including but not limited to:

                              (i)  the shores, banks and beaches of the coast; and

                             (ii)  any man‑made structure in or on the coast;

                     (b)  a port, bay or harbour, including but not limited to:

                              (i)  the shores, banks and beaches of the port, bay or harbour; and

                             (ii)  any man‑made structure in or on the port, bay or harbour;

                     (c)  an airport (including an airport that has not been appointed under section 15) or airstrip;

                     (d)  a lake or river, including but not limited to:

                              (i)  the shores, banks and beaches of the lake or river; and

                             (ii)  any man‑made structure in or on the lake or river;

                     (e)  for the purpose of entering and remaining upon a place mentioned in paragraph (a), (b), (c), or (d)—an area of land or water that is adjacent to that place.

For this purpose, reasonable means, including reasonable force, may be used by the officer or the person assisting the officer.

             (2)  A person commits an offence if:

                     (a)  the person is an owner, occupier or operator of any of the places mentioned in subsection (1); and

                     (b)  the person is present at the place mentioned in subsection (1) at the time the officer, or the person assisting an officer, is exercising, or attempting to exercise, his or her powers under this section; and

                     (c)  the person does not provide the officer, or the person assisting the officer, with all reasonable facilities and assistance, including a means of access to the place, that the person is reasonably capable of providing.

Penalty:  30 penalty units.

194  Ships on service may be moored in any place

             (1)  The officer in charge of a ship employed in the service of the Customs may:

                     (a)  moor, or haul up and moor, the ship to:

                              (i)  any part of the coast or the shores, banks or beaches of any port, bay, harbour, lake or river; or

                             (ii)  any man‑made structure at or in any of the places mentioned in subparagraph (i); or

                            (iii)  any man‑made structure anywhere in the territorial sea of Australia, the contiguous zone of Australia, or the exclusive economic zone of Australia; and

                     (b)  remain at the mooring as long as the officer considers necessary.

             (2)  A person commits an offence if:

                     (a)  the person is an owner, occupier or operator of any of the places mentioned in paragraph (1)(a); and

                     (b)  the person does not provide the officer with all reasonable facilities and assistance that the person is reasonably capable of providing; and

                     (c)  the person does not do so in circumstances where the officer is exercising, or attempting to exercise, his or her powers under this section.

Penalty:  30 penalty units.

195  Power to question passengers etc.

             (1)  An officer of Customs may question:

                     (a)  any person who is on board a ship or an aircraft or an installation of the kind referred to in paragraph 187(b), (c), (d) or (e); or

                     (b)  any person who has, or who the officer has reason to believe has, got off a ship or out of an aircraft; or

                     (c)  any person who the officer has reason to believe is about to board a ship or an aircraft;

as to whether that person or any child or other person accompanying him or her has on his or her person, in his or her baggage or otherwise with him or her any:

                     (d)  dutiable goods; or

                     (e)  excisable goods; or

                      (f)  prohibited goods.

             (2)  A person shall answer questions put to him or her in pursuance of subsection (1).

Penalty:  10 penalty units.

             (3)  Subsection (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

195A  Power to question persons found in restricted areas

                   If a person is in a section 234AA place, an officer may ask the person for, and require the person to provide:

                     (a)  the person’s name; and

                     (b)  the person’s reason for being in the section 234AA place; and

                     (c)  evidence of the person’s identity.

Note:          Failing to answer a question or produce a document when required to do so by an officer may be an offence (see sections 243SA and 243SB). However, a person does not have to answer if doing so would tend to incriminate the person (see section 243SC).

196C  Power to question persons claiming packages

             (1)  Before an officer of Customs decides whether or not to authorise the delivery into home consumption of goods referred to in section 71, the officer may:

                     (a)  request the person to state his or her full name and residential address; and

                     (b)  ask the person whether he or she is the owner of the goods; and

                     (c)  where the person states that he or she is not the owner of the goods, request the person to state the full name and residential address of the owner of the goods; and

                     (d)  request the person to produce evidence of the correctness of the information given by him or her in compliance with a request made of him or her in pursuance of paragraph (a) or (c).

             (2)  A person shall not refuse or fail to comply with a request made of him or her, or to answer a question put to him or her, in pursuance of subsection (1).

Penalty:  10 penalty units.

          (2A)  Subsection (2) does not apply if the person has a reasonable excuse.

             (3)  Where a person refuses or fails to comply with a request made of him or her, or to answer a question put to him or her, by an officer of Customs in pursuance of subsection (1), the officer may:

                     (a)  detain the person for the purposes of establishing his or her identity; or

                     (b)  if the officer believes on reasonable grounds that there is no reasonable excuse for the person refusing or failing to so comply, detain the person and take him or her, without undue delay, before a magistrate to be charged with an offence against subsection (2).

             (4)  In this section, owner, in relation to goods, means a person who has an interest in the goods.

197  Power to stop conveyances about to leave a Customs place

             (1)  If a conveyance is in a Customs place, an officer of Customs may:

                     (a)  require the conveyance to stop; and

                     (b)  check to establish that there is appropriate documentation authorising the movement of any goods in or on the conveyance that are subject to the control of Customs within the meaning of section 30.

             (2)  For the purposes of subsection (1), an officer of Customs may question the person apparently in charge of the conveyance about any goods in, on, or in a container on, the conveyance.

             (3)  The power in paragraph (1)(b) includes a power to give directions relating to:

                     (a)  the unloading of any goods from the conveyance; or

                     (b)  their movement to a particular part of the Customs place for further examination.

             (4)  If a direction under subsection (3) is not complied with, an officer of Customs may do what is necessary to give effect to the direction or to arrange for it to be done.

             (5)  An officer of Customs must not detain a conveyance under this section for longer than is necessary and reasonable to exercise the powers conferred by this section.

             (6)  A person in charge of a conveyance is guilty of an offence if:

                     (a)  the conveyance is in a Customs place; and

                     (b)  an officer of Customs requires the conveyance to stop; and

                     (c)  the person does not stop the conveyance as so required.

Penalty:  45 penalty units.

             (7)  This offence is an offence of strict liability.

Subdivision CSearch warrants in respect of things believed to be evidential material

198  When search warrants can be issued

             (1)  A judicial officer may issue a warrant to search premises if the judicial officer is satisfied by information on oath that there are reasonable grounds for suspecting that there is, or within the next 72 hours there will be, any evidential material, other than evidential material that is also a forfeited good, on or in the premises.

             (2)  If:

                     (a)  the person applying for the warrant has, at any time previously, applied for a warrant relating to the search of, or the seizure of goods that are on or in, the same premises; and

                     (b)  the premises are not a Customs place;

the person must state particulars of those applications and their outcome in the information.

             (3)  If a judicial officer issues a warrant, the judicial officer is to state in the warrant:

                     (a)  the offence to which the warrant relates; and

                     (b)  a description of the premises to which the warrant relates; and

                     (c)  the kind of evidential material that is to be searched for under the warrant; and

                     (d)  the name of the authorised person who, unless he or she inserts the name of another authorised person in the warrant, is to be responsible for executing the warrant; and

                     (e)  the time at which the warrant expires (see subsection (3A)); and

                      (f)  whether the warrant may be executed at any time or only during particular hours.

          (3A)  The time stated in the warrant under paragraph (3)(e) as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.

Example:    If a warrant is issued at 3 pm on a Monday, the expiry time specified must not be later than midnight on Monday in the following week.

             (4)  The judicial officer is also to state in the warrant:

                     (a)  that it authorises the seizure of things (other than evidential material of the kind referred to in paragraph (3)(c)) found on or in the premises in the course of the search that the executing officer or a person assisting believes on reasonable grounds:

                              (i)  to be evidential material in relation to an offence to which the warrant relates or to another offence, or to be evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act); and

                             (ii)  not to be forfeited goods;

                            if the executing officer or person assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence; and

                     (b)  whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed, if the executing officer or a person assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.

             (5)  Paragraph (3)(e) and subsection (3A) do not prevent the issue of successive warrants in relation to the same premises.

             (6)  If the application for the warrant is made under section 203M, this section (other than subsection (3A)) applies as if:

                     (a)  subsection (1) referred to 48 hours rather than 72 hours; and

                     (b)  paragraph (3)(e) required the judicial officer to state in the warrant the period for which the warrant is to remain in force, which must not be more than 48 hours.

             (7)  A judicial officer of a particular State or Territory may issue a warrant in respect of the search of premises in another State or Territory.

             (8)  This section is not to be taken to limit any power of search granted to an officer of Customs under any other provision of a law of Customs within the meaning of the Customs Administration Act 1985.

199  The things that are authorised by a search warrant

             (1)  A search warrant that is in force in relation to premises authorises the executing officer or a person assisting:

                     (a)  to enter the warrant premises; and

                     (b)  to search for and to record fingerprints found on or in the premises, and take samples of things (other than human biological fluid or tissue) found on or in the premises for forensic purposes; and

                     (c)  to search the premises for the kind of evidential material specified in the warrant, and to seize things of that kind found on or in the premises; and

                     (d)  to seize other things found on or in the premises in the course of the search that the executing officer or a person assisting believes on reasonable grounds:

                              (i)  to be evidential material in relation to an offence to which the warrant relates or to another offence, or to be evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act); and

                             (ii)  not to be forfeited goods;

                            if the executing officer or person assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence; and

                     (e)  if the warrant so allows:

                              (i)  to conduct an ordinary search or a frisk search of a person at or near the premises if the executing officer or a person assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession; and

                             (ii)  to seize any such material or items found in the course of the search.

             (2)  Without limiting the generality of the powers conferred by a warrant issued in respect of premises that are not a conveyance or a container, the warrant extends to every conveyance or container on the premises.

             (3)  Without limiting the generality of the powers conferred by a warrant issued in respect of premises that are a conveyance, the warrant:

                     (a)  permits entry of the conveyance, wherever it is; and

                     (b)  extends to every container on the conveyance.

             (4)  A warrant issued in respect of premises that are a container permits entry of the container, wherever it is, to the extent that it is of a size permitting entry.

             (5)  If the warrant states that it may be executed only during particular hours, the warrant must not be executed outside those hours.

             (6)  If the warrant authorises an ordinary search or a frisk search of a person, a search of the person different to that so authorised must not be done under the warrant.

200  Use of equipment to examine or process things

             (1)  The executing officer or a person assisting may bring to the warrant premises any equipment reasonably necessary for the examination or processing of a thing found on or in the premises in order to determine whether it is a thing that may be seized under the warrant.

             (2)  A thing found at the premises may be moved to another place for examination or processing in order to determine whether it may be seized under a warrant if:

                     (a)  both of the following apply:

                              (i)  it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance;

                             (ii)  there are reasonable grounds to believe that the thing contains or constitutes evidential material; or

                     (b)  the occupier of the premises consents in writing.

             (3)  If a thing is moved to another place for the purpose of examination or processing under subsection (2), the executing officer must, if it is practicable to do so:

                     (a)  inform the occupier of the address of the place and the time at which the examination or processing will be carried out; and

                     (b)  allow the occupier or his or her representative to be present during the examination or processing.

          (3A)  The thing may be moved to another place for examination or processing for no longer than 72 hours.

          (3B)  An executing officer may apply to a judicial officer for one or more extensions of that time if the executing officer believes on reasonable grounds that the thing cannot be examined or processed within 72 hours or that time as previously extended.

          (3C)  The executing officer must give notice of the application to the occupier of the premises, and the occupier is entitled to be heard in relation to the application.

             (4)  The executing officer or a person assisting may operate equipment already on or in the warrant premises to carry out the examination or processing of a thing found on or in the premises in order to determine whether it is a thing that may be seized under the warrant if the executing officer or person assisting believes on reasonable grounds that:

                     (a)  the equipment is suitable for the examination or processing; and

                     (b)  the examination or processing can be carried out without damage to the equipment or the thing.

201  Use of electronic equipment on or in premises

             (1)  The executing officer or a person assisting may operate electronic equipment at the warrant premises to access data (including data not held at the premises) if he or she believes on reasonable grounds that:

                     (a)  the data might constitute evidential material; and

                     (b)  the equipment can be operated without damaging it.

Note:          An executing officer can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance: see section 201A.

          (1A)  If the executing officer or person assisting believes on reasonable grounds that any data accessed by operating the electronic equipment might constitute evidential material, he or she may:

                     (a)  copy the data to a disk, tape or other associated device brought to the premises; or

                     (b)  if the occupier of the premises agrees in writing—copy the data to a disk, tape or other associated device at the premises;

and take the device from the premises.

          (1B)  If:

                     (a)  the executing officer or person assisting takes the device from the premises; and

                     (b)  the CEO is satisfied that the data is not required (or is no longer required) for:

                              (i)  investigating an offence against the law of the Commonwealth, a State or a Territory; or

                             (ii)  judicial proceedings or administrative review proceedings; or

                            (iii)  investigating or resolving a complaint under the Ombudsman Act 1976 or the Privacy Act 1988;

the CEO must arrange for:

                     (c)  the removal of the data from any device in the control of Customs; and

                     (d)  the destruction of any other reproduction of the data in the control of Customs.

             (2)  If the executing officer or a person assisting, after operating the equipment, finds that evidential material is accessible by doing so, he or she may:

                     (a)  seize the equipment and any disk, tape or other associated device; or

                     (b)  if the material can, by using facilities on or in the premises, be put in documentary form—operate the facilities to put the material in that form and seize the documents so produced.

             (3)  The executing officer or a person assisting may seize equipment under paragraph (2)(a) only if it is not practicable to copy the material as mentioned in subsection (1A) or to put the material in documentary form as mentioned in paragraph (2)(b).

             (4)  If the executing officer or a person assisting believes on reasonable grounds that:

                     (a)  evidential material may be accessible by operating electronic equipment on or in the premises; and

                     (b)  expert assistance is required to operate the equipment; and

                     (c)  if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;

he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.

             (5)  The executing officer or a person assisting must give notice to the occupier of the premises of his or her intention to secure equipment and of the fact that the equipment may be secured for up to 24 hours.

             (6)  The equipment may be secured:

                     (a)  for a period not exceeding 24 hours; or

                     (b)  until the equipment has been operated by the expert;

whichever first occurs.

             (7)  If the executing officer or a person assisting believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to a judicial officer for an extension of that period.

             (8)  The executing officer or a person assisting must give notice to the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application.

             (9)  The provisions of this Subdivision relating to the issue of warrants apply, with such modifications as are necessary, to the issuing of an extension.

201A  Person with knowledge of a computer or a computer system to assist access etc.

             (1)  An executing officer may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the officer to do one or more of the following:

                     (a)  access data held in, or accessible from, a computer that is on warrant premises;

                     (b)  copy the data to a data storage device;

                     (c)  convert the data into documentary form.

             (2)  The magistrate may grant the order if the magistrate is satisfied that:

                     (a)  there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer; and

                     (b)  the specified person is:

                              (i)  reasonably suspected of having committed the offence stated in the relevant warrant; or

                             (ii)  the owner or lessee of the computer; or

                            (iii)  an employee of the owner or lessee of the computer; and

                     (c)  the specified person has relevant knowledge of:

                              (i)  the computer or a computer network of which the computer forms a part; or

                             (ii)  measures applied to protect data held in, or accessible from, the computer.

             (3)  A person commits an offence if the person fails to comply with the order.

Penalty:  6 months imprisonment.

201B  Accessing data held on other premises—notification to occupier of that premises

             (1)  If:

                     (a)  data that is held on premises other than the warrant premises is accessed under subsection 201(1); and

                     (b)  it is practicable to notify the occupier of the other premises that the data has been accessed under a warrant;

the executing officer must:

                     (c)  do so as soon as practicable; and

                     (d)  if the executing officer has arranged, or intends to arrange, for continued access to the data under subsection 201(1A) or (2)—include that information in the notification.

             (2)  A notification under subsection (1) must include sufficient information to allow the occupier of the other premises to contact the executing officer.

202  Compensation for damage to equipment or data

             (1)  If:

                     (a)  damage is caused to equipment as a result of it being operated as mentioned in section 200 or 201; or

                     (b)  the data recorded on or accessible from the equipment is damaged;

and the damage was caused as a result of:

                     (c)  insufficient care being exercised in selecting the person who was to operate the equipment; or

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

compensation for the damage is payable to the owner of the equipment or the user of the data concerned.

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

             (3)  Compensation is payable out of money appropriated by the Parliament for the purpose.

             (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.

202A  Copies of seized things to be provided

             (1)  Subject to subsection (2), if the executing officer or a person assisting seizes, under a warrant relating to premises:

                     (a)  a document, film, computer file or other thing that can be readily copied; or

                     (b)  a storage device, the information in which can be readily copied;

the executing officer or person assisting must, if requested to do so by the occupier of the premises or another person who apparently represents the occupier and who is present when the warrant is executed, give a copy of the document, film, computer file, thing or information to that person as soon as practicable after the seizure.

             (2)  Subsection (1) does not apply if:

                     (a)  the thing that has been seized was seized under subsection 201(1A) or paragraph 201(2)(b); or

                     (b)  possession by the occupier of the document, film, computer file, thing or information could constitute an offence.

Subdivision DSeizure of goods believed to be forfeited goods

203  When seizure warrants for forfeited goods can be issued

             (1)  A judicial officer may issue a warrant to seize goods on or in particular premises if the judicial officer is satisfied by information on oath that an authorised person:

                     (a)  has reasonable grounds for suspecting that the goods:

                              (i)  are forfeited goods; and

                             (ii)  are, or within the next 72 hours will be, on or in the premises; and

                     (b)  has demonstrated the necessity, in all the circumstances, for seizure of the goods.

             (2)  Subsection (1) does not apply to the seizure of goods under section 203B, 203C, 203CA or 203CB.

             (3)  In considering whether the authorised person has demonstrated the necessity, in all the circumstances, for seizure of the goods, the judicial officer may have regard to, but is not limited to, consideration of the following factors:

                     (a)  the seriousness or otherwise of any offence by reason of the commission of which the goods are believed to be forfeited goods;

                     (b)  the circumstances in which any such offence is believed to have been committed;

                     (c)  the pecuniary or other penalty that might be imposed for any such offence;

                     (d)  the nature, quality, quantity and estimated value of the goods;

                     (e)  whether action might be taken under Subdivision A of Division 5 of Part XIII in connection with any such offence;

                      (f)  the inconvenience or cost to any person having a legal or equitable interest in the goods if they were seized.

             (4)  If:

                     (a)  the person applying for the warrant has, at any time previously, applied for a warrant relating to the search of, or seizure of goods that are on or in, the same premises; and

                     (b)  the premises are not a Customs place;

the person must state particulars of those applications and their outcome in the information.

             (5)  If a judicial officer issues a warrant, the judicial officer is to state in the warrant:

                     (a)  a description of the goods to which the warrant relates; and

                     (b)  a description of the premises on or in which the goods are believed to be located; and

                     (c)  the name of the authorised person who, unless that authorised person inserts the name of another authorised person in the warrant, is to be responsible for executing the warrant; and

                     (d)  the time at which the warrant expires (see subsection (5A)); and

                     (e)  whether the warrant may be executed at any time or only during particular hours.

          (5A)  The time stated in the warrant under paragraph (5)(d) as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.

Example:    If a warrant is issued at 3 pm on a Monday, the expiry time specified must not be later than midnight on Monday in the following week.

             (6)  The judicial officer is also to state in the warrant:

                     (a)  that it authorises the seizure of goods (other than forfeited goods of the kind referred to in paragraph (5)(a)) found on or in the premises in the course of the search that the executing officer or a person assisting believes on reasonable grounds to be special forfeited goods; and

                     (b)  whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed, if the executing officer or a person assisting suspects on reasonable grounds that the person has any forfeited goods of the kind referred to in paragraph (5)(a), special forfeited goods or seizable items in his or her possession; and

                     (c)  whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed, if the executing officer or a person assisting suspects on reasonable grounds that the person has in his or her possession any relevant evidential material.

             (7)  Paragraph (5)(d) and subsection (5A) do not prevent the issue of successive warrants in relation to the same premises.

             (8)  If the application for the warrant is made under section 203M, this section (other than subsection (5A)) applies as if:

                     (a)  subsection (1) referred to 48 hours rather than 72 hours; and

                     (b)  paragraph (5)(d) required the judicial officer to state in the warrant the period for which the warrant is to remain in force, which must not be more than 48 hours.

             (9)  A judicial officer of a particular State or Territory may issue a warrant in respect of the seizure of goods on or in premises in another State or Territory.

           (10)  In this section:

relevant evidential material means evidential material in relation to an offence by reason of the commission of which goods are believed to be:

                     (a)  forfeited goods of the kind referred to in paragraph (5)(a); or

                     (b)  special forfeited goods.

203A  The things that are authorised by seizure warrants for forfeited goods

             (1)  A seizure warrant that is in force under section 203 in relation to premises authorises the executing officer or a person assisting:

                     (a)  to enter the warrant premises; and

                     (b)  to search for the goods described in the warrant; and

                     (c)  to seize the goods described in the warrant; and

                     (d)  to seize other goods:

                              (i)  that are found on or in the premises in the course of searching for the goods the subject of the warrant; and

                             (ii)  that the executing officer or a person assisting believes on reasonable grounds to be special forfeited goods; and

                     (e)  if the warrant so allows:

                              (i)  to conduct an ordinary search or a frisk search of a person at or near the premises if the executing officer or a person assisting suspects on reasonable grounds that the person has any goods that are goods the subject of the warrant, special forfeited goods or seizable items in his or her possession; and

                             (ii)  to seize any such goods or items found in the course of that search; and

                      (f)  if the warrant so allows:

                              (i)  to conduct an ordinary search or a frisk search of a person who is at or near the premises if the executing officer or a person assisting suspects on reasonable grounds that the person has in his or her possession any relevant evidential material; and

                             (ii)  to seize any relevant evidential material found in the course of that search.

             (2)  Without limiting the generality of the powers conferred by a warrant issued in respect of premises that are not a conveyance or a container, the warrant extends to every conveyance or container on the premises.

             (3)  Without limiting the generality of the powers conferred by a warrant issued in respect of premises that are a conveyance, the warrant:

                     (a)  permits entry of the conveyance, wherever it is; and

                     (b)  extends to every container on the conveyance.

             (4)  A warrant issued in respect of premises that are a container permits entry of the container, wherever it is, to the extent that it is of a size permitting entry.

             (5)  If the warrant states that it may be executed only during particular hours, the warrant must not be executed outside those hours.

             (6)  If the warrant authorises an ordinary search or a frisk search of a person, a search of the person different to that so authorised must not be done under the warrant.

             (7)  In this section:

relevant evidential material means evidential material in relation to an offence by reason of the commission of which goods are believed to be:

                     (a)  goods that are the subject of the warrant; or

                     (b)  special forfeited goods.

203B  Seizure without warrant of special forfeited goods, or of evidential material relating to special forfeited goods, at a Customs place

             (1)  This section applies in 2 circumstances, namely:

                     (a)  in a circumstance where an authorised person suspects on reasonable grounds that there are special forfeited goods:

                              (i)  at, or in a container (other than a designated container in the immediate physical possession of a person to whom subparagraph (b)(i) applies) at, a Customs place; or

                             (ii)  in, on, or in a container (other than a designated container in the immediate physical possession of a person to whom subparagraph (b)(i) applies) on, a conveyance at a Customs place; or

                     (b)  in a circumstance where a person:

                              (i)  is at a Customs place that is also a designated place; and

                             (ii)  has a designated container, or has goods reasonably suspected by an authorised person to be special forfeited goods, in his or her immediate physical possession; but

                            (iii)  is not carrying that container or those goods on his or her body.

Note 1:       Container and designated container have special definitions for the purposes only of this Division.

Note 2:       The baggage of a passenger entering or leaving Australia or of the captain or crew of a vessel or aircraft so entering or leaving is not a designated container.

Note 3:       To determine the question whether a person is carrying a designated container, or goods reasonably suspected of being special forfeited goods, on his or her body, see subsection 4(19).

             (2)  In the circumstance referred to in paragraph (1)(a), the authorised person may, without warrant:

                     (a)  search the Customs place, or the container at that place, for special forfeited goods; or

                     (b)  stop and detain at the Customs place the conveyance and search it and any container on it for special forfeited goods;

as the case requires, and seize any goods that the authorised person reasonably suspects are special forfeited goods if the authorised person finds them there.

          (2A)  In the circumstance referred to in paragraph (1)(b), an authorised person who is an officer of Customs may, without warrant:

                     (a)  search any designated container in the immediate physical possession of the person to whom that paragraph applies; and

                     (b)  seize any goods reasonably suspected by the authorised person of being special forfeited goods (whether or not those goods are found as a result of such a search).

          (2B)  An authorised person must not exercise the powers referred to in subsection (2A) unless the person having immediate physical possession of the container to be searched is present at the time when the container is searched.

          (2C)  For the avoidance of doubt, the power of the authorised person under subsection (2) to seize, without warrant, goods found as a result of a search of, or at, a Customs place that are reasonably suspected of being special forfeited goods includes the power to seize, without warrant, any goods that:

                     (a)  have been produced as a result of a frisk search of a person; or

                     (b)  have been discovered on the body of a person as a result of an external search or an internal search of the person;

if the search is conducted under Division 1B at the Customs place and the goods are reasonably so suspected.

             (3)  If, in the course of searching under subsection (2) or (2A) for special forfeited goods, an authorised person finds a thing that the authorised person believes on reasonable grounds is evidential material relating to an offence committed in respect of those special forfeited goods, the authorised person may, without warrant, seize that thing whether or not the authorised person has found any such special forfeited goods.

             (4)  For the purposes of a search conducted under subsection (2) or (2A), the authorised person may question any person apparently in charge of the place, conveyance or container about any goods or thing at the place, in or on the conveyance, or in the container.

             (5)  The authorised person must exercise his or her powers subject to section 203D.

203C  Seizure without warrant of narcotic goods or of evidential material relating to narcotic goods at other places

             (1)  This section applies if:

                     (a)  an authorised person suspects on reasonable grounds that there are special forfeited goods that are narcotic goods:

                              (i)  at, or in a container at, a place other than a Customs place; or

                             (ii)  in, on, or in a container on, a conveyance at a place other than a Customs place; or

                            (iii)  in a container in the immediate physical possession of, but not carried on the body of, a person at a place other than a Customs place; and

                     (b)  it is necessary to exercise a power under this section in order to prevent such goods from being concealed, lost or destroyed.

Note:          Container has a special definition for the purposes only of this Division.

             (2)  The authorised person may, without warrant:

                     (a)  search the place or any container at the place for narcotic goods; or

                     (b)  stop and detain the conveyance about to leave the place, and search it and any container on it for narcotic goods; or

                     (c)  search the container in the immediate physical possession of the person for narcotic goods;

as the case requires, and seize any goods that the authorised person reasonably suspects are narcotic goods if the authorised person finds them there.

          (2A)  For the avoidance of doubt, the power of the authorised person to seize, without warrant, goods found at a place other than a Customs place that are reasonably suspected of being narcotic goods includes the power to seize, without warrant, any goods that:

                     (a)  have been produced as a result of a frisk search of a person; or

                     (b)  have been discovered on the body of a person as a result of an external search or an internal search of the person;

if the search is conducted under Division 1B at a place other than a Customs place and the goods are reasonably so suspected.

             (3)  If, in the course of searching under subsection (2) for special forfeited goods that are narcotic goods, an authorised person finds a thing that the authorised person believes on reasonable grounds is evidential material relating to an offence committed in respect of those goods, the authorised person may, without warrant, seize that thing whether or not the authorised person has found those goods.

             (4)  For the purposes of a search conducted under subsection (2), the authorised person may question any person apparently in charge of the place, conveyance or container about any goods or thing at the place, in or on the conveyance, or in the container.

             (5)  The authorised person must exercise his or her powers subject to section 203D.

203CA  Seizure without warrant of certain goods on ship or aircraft in the Protected Zone

             (1)  This section applies to a ship if:

                     (a)  section 185 applies to the ship; and

                     (b)  the ship is exempt from any provision of the Customs Acts under subsection 30A(3) or the voyage of the ship is exempt from any such provision under subsection 30A(5).

Note:          Section 30A gives effect to provisions of the Torres Strait Treaty in relation to certain traditional activities.

             (2)  This section applies to an aircraft if:

                     (a)  section 185 applies to the aircraft; and

                     (b)  the flight of the aircraft is exempt from any provision of the Customs Acts under subsection 30A(5).

Note:          Section 30A gives effect to provisions of the Torres Strait Treaty in relation to certain traditional activities.

             (3)  An authorised person may seize without warrant any goods (other than narcotic goods) on the ship or aircraft that the authorised person reasonably suspects are special forfeited goods.

Note:          For seizure of narcotic goods without warrant, see paragraph 185(2)(e) and section 203C.

             (4)  If, in the course of searching the ship or aircraft under section 185, an authorised person finds a thing that he or she believes on reasonable grounds is evidential material relating to an offence committed in respect of special forfeited goods, the authorised person may, without warrant, seize that thing.

             (5)  The authorised person must exercise his or her powers subject to section 203D.

203CB  Seizure without warrant of certain other goods in the Protected Zone

             (1)  This section applies if an authorised person suspects on reasonable grounds that:

                     (a)  goods are:

                              (i)  at, or in a container at, a place that is near a ship or aircraft to which paragraph 203CA(1)(b) or (2)(b) applies; or

                             (ii)  in, on, or in a container on, a conveyance at such a place; or

                            (iii)  in a container in the immediate physical possession of, but not carried on the body of, a person at such a place; and

                     (b)  the goods:

                              (i)  in the case of an arriving ship or aircraft—have been unloaded from that ship or aircraft; or

                             (ii)  in the case of a leaving ship or aircraft—will be loaded onto that ship or aircraft; and

                     (c)  the goods are special forfeited goods (other than narcotic goods).

             (2)  The authorised person may, without warrant:

                     (a)  search the place or any container at the place for special forfeited goods (other than narcotic goods); or

                     (b)  stop and detain the conveyance about to leave the place, and search it and any container on it for such goods; or

                     (c)  search the container in the immediate physical possession of the person for such goods;

as the case requires, and seize any goods that the authorised person reasonably suspects are special forfeited goods (other than narcotic goods) if the authorised person finds them there.

Note:          For seizure of narcotic goods without warrant, see paragraph 185(2)(e) and section 203C.

             (3)  If, in the course of searching under subsection (2) for special forfeited goods, an authorised person finds a thing that he or she believes on reasonable grounds is evidential material relating to an offence committed in respect of those goods, the authorised person may, without warrant, seize that thing whether or not the authorised person has found those goods.

             (4)  For the purposes of a search conducted under subsection (2), the authorised person may question any person apparently in charge of the place, conveyance or container about any goods or thing at the place, in or on the conveyance, or in the container.

             (5)  The authorised person must exercise his or her powers subject to section 203D.

203D  How an authorised person is to exercise certain powers

             (1)  An authorised person who exercises powers under section 203B, 203C, 203CA or 203CB in relation to a conveyance must not detain the conveyance for longer than is necessary and reasonable to exercise those powers.

             (2)  An authorised person exercising powers under section 203B, 203C, 203CA or 203CB may use such force as is necessary and reasonable in the circumstances, but must not:

                     (a)  forcibly remove any container or other goods from a person’s physical possession; or

                     (b)  damage any place, conveyance, container or other goods of which the person is apparently in charge;

unless:

                     (c)  the person has been given a reasonable opportunity to facilitate the the exercise of the powers by providing access to the place, conveyance, container or goods or by opening the conveyance or container; or

                     (d)  it is not possible to give that person such an opportunity.

Subdivision DASeizure of certain goods in transit

203DA  When seizure warrants for goods in transit can be issued

             (1)  A judicial officer may issue a warrant to seize goods on or in particular premises if the judicial officer is satisfied by information on oath that the Minister has reasonable grounds for suspecting that:

                     (a)  the goods are, or within the next 72 hours will be, on or in the premises; and

                     (b)  the goods have been or will be brought into Australia on a ship or aircraft and are intended to be kept on board the ship or aircraft for shipment on to a place outside Australia, without being imported into Australia or exported from Australia; and

                     (c)  the goods satisfy either or both of the following subparagraphs:

                              (i)  the goods are connected, whether directly or indirectly, with the carrying out of a terrorist act, whether a terrorist act has occurred, is occurring or is likely to occur;

                             (ii)  the existence or the shipment of the goods prejudices, or is likely to prejudice, Australia’s defence or security or international peace and security.

             (2)  If a judicial officer issues a warrant, the judicial officer is to state in the warrant:

                     (a)  a description of the goods to which the warrant relates; and

                     (b)  a description of the premises on or in which the goods are believed to be located; and

                     (c)  the name of the authorised person who, unless that authorised person inserts the name of another authorised person in the warrant, is to be responsible for executing the warrant; and

                     (d)  the time at which the warrant expires (see subsection (3)); and

                     (e)  whether the warrant may be executed at any time or only during particular hours.

             (3)  The time stated in the warrant under paragraph (2)(d) as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.

Example:    If a warrant is issued at 3 pm on a Monday, the expiry time specified must not be later than midnight on Monday in the following week.

             (4)  The judicial officer is also to state in the warrant that it authorises the seizure of goods found on or in the premises in the course of the search that the executing officer or a person assisting believes on reasonable grounds to be special forfeited goods.

             (5)  Paragraph (2)(d) and subsection (3) do not prevent the issue of successive warrants in relation to the same premises.

             (6)  If the application for the warrant is made under section 203M, this section (other than subsection (3)) applies as if:

                     (a)  subsection (1) referred to 48 hours rather than 72 hours; and

                     (b)  paragraph (2)(d) required the judicial officer to state in the warrant the period for which the warrant is to remain in force, which must not be more than 48 hours.

             (7)  A judicial officer of a particular State or Territory may issue a warrant in respect of the seizure of goods on or in premises in another State or Territory.

203DB  The things that are authorised by seizure warrants for goods in transit

             (1)  A seizure warrant that is in force under section 203DA in relation to premises authorises the executing officer or a person assisting:

                     (a)  to enter the warrant premises; and

                     (b)  to search for the goods described in the warrant; and

                     (c)  to seize the goods described in the warrant; and

                     (d)  to seize other goods:

                              (i)  that are found on or in the premises in the course of searching for the goods the subject of the warrant; and

                             (ii)  that the executing officer or a person assisting believes on reasonable grounds to be special forfeited goods.

             (2)  Without limiting the generality of the powers conferred by a warrant issued in respect of premises that are not a conveyance or a container, the warrant extends to every conveyance or container on the premises.

             (3)  Without limiting the generality of the powers conferred by a warrant issued in respect of premises that are a conveyance, the warrant:

                     (a)  permits entry of the conveyance, wherever it is; and

                     (b)  extends to every container on the conveyance.

             (4)  A warrant issued in respect of premises that are a container permits entry of the container, wherever it is, to the extent that it is of a size permitting entry.

             (5)  If the warrant states that it may be executed only during particular hours, the warrant must not be executed outside those hours.

Subdivision EProvisions applicable both to search and seizure warrants

203E  Conduct of ordinary searches and frisk searches

                   An ordinary search or a frisk search of a person under this Division must, if practicable, be conducted by a person of the same sex as the person being searched.

203F  Announcement before entry

             (1)  The executing officer must, before any person enters premises under a search warrant or a seizure warrant:

                     (a)  announce that he or she is authorised to enter the premises; and

                     (b)  give any person at the premises an opportunity to allow entry to the premises.

             (2)  The executing officer is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure:

                     (a)  the safety of a person (including the executing officer); or

                     (b)  that the effective execution of the warrant is not frustrated.

203G  Details of warrant to be given to occupier

             (1)  If a search warrant or a seizure warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the place where the warrant is executed, the executing officer or a person assisting must make available to that person a copy of the warrant.

             (2)  If a person is searched under a warrant in relation to premises, the executing officer or a person assisting must show the person a copy of the warrant.

             (3)  The executing officer must identify himself or herself to the person at the place where the warrant is executed.

             (4)  At the time of executing the warrant, the executing officer or a person assisting:

                     (a)  is not required to have in his or her possession or under his or her immediate control the original warrant; but

                     (b)  must have in his or her possession or under his or her immediate control a copy of the warrant.

             (5)  In this section:

a copy of the warrant means:

                     (a)  in relation to a warrant issued under section 198, 203 or 203DA —a copy that includes the signature of the judicial officer who issued the warrant; and

                     (b)  in relation to a warrant issued under section 203M—a completed form of warrant that includes the name of the judicial officer who issued the warrant.

203H  Occupier entitled to be present during search or seizure

             (1)  If a search warrant or a seizure warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the place where the warrant is executed, the person is, subject to Part IC of the Crimes Act 1914, entitled to observe the search or seizure being conducted.

             (2)  The right to observe the search or seizure being conducted ceases if the person impedes the search or seizure.

             (3)  This section does not prevent 2 or more areas of the premises being searched at the same time.

203HA  Requirement to provide name or address etc.

Request to provide name or address etc.

             (1)  If:

                     (a)  a search warrant or seizure warrant in relation to premises is being executed; and

                     (b)  the designated warrant officer believes on reasonable grounds that a person who is at or near the premises may be able to assist the officer in the execution of the warrant;

the officer may request the person to provide his or her name or address, or name and address, to the officer.

Offence—person’s refusal or failure to comply with request etc.

             (2)  A person commits an offence if:

                     (a)  a designated warrant officer:

                              (i)  has made a request of the person under subsection (1); and

                             (ii)  has informed the person of the reason for the request; and

                            (iii)  has complied with any request that the person has made under paragraph (4)(b); and

                     (b)  the person refuses or fails to comply with the request, or gives a name or address that is false in a material particular.

Penalty:  5 penalty units.

             (3)  Subsection (2) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

Offence—designated warrant officer’s refusal or failure to comply with request etc.

             (4)  A designated warrant officer commits an offence if:

                     (a)  the officer makes a request of a person under subsection (1); and

                     (b)  the person requests the officer to provide to the person:

                              (i)  his or her name or the address of his or her place of duty; or

                             (ii)  his or her name and that address; or

                            (iii)  if the officer is not in uniform and it is practicable for the officer to provide the evidence—evidence that he or she is an officer; and

                     (c)  the officer refuses or fails to comply with the request, or gives a name or address that is false in a material particular.

Penalty:  5 penalty units.

Definition

             (5)  In this section:

designated warrant officer, in relation to a search warrant or seizure warrant, means:

                     (a)  the executing officer; or

                     (b)  a person who is an authorised person and who is assisting in the execution of the warrant.

203J  Availability of assistance and use of force in executing a warrant

                   In executing a search warrant or a seizure warrant:

                     (a)  the executing officer may obtain such assistance; and

                     (b)  the executing officer, or a person who is an authorised person and who is assisting in executing the warrant, may use such force against persons and things;

as is necessary and reasonable in the circumstances.

203K  Specific powers available to executing officers

             (1)  In executing a search warrant or a seizure warrant in relation to premises, the executing officer or a person assisting may:

                     (a)  for a purpose incidental to the execution of the warrant; or

                     (b)  if the occupier of the premises consents in writing;

take photographs or video recordings of the premises or of things on or in the premises.

             (2)  If a search warrant or a seizure warrant in relation to premises is being executed, the executing officer and the persons assisting may, if the warrant is still in force, complete the execution of the warrant after all of them temporarily cease its execution and leave the premises:

                     (a)  for not more than one hour; or

                     (b)  for a longer period if the occupier of the premises consents in writing.

             (3)  If:

                     (a)  the execution of a search warrant or of a seizure warrant is stopped by an order of a court; and

                     (b)  the order is later revoked or reversed on appeal; and

                     (c)  the warrant is still in force;

the execution of the warrant may be completed.

             (4)  If:

                     (a)  the execution of a search warrant or of a seizure warrant is stopped by an order of a court; and

                     (b)  the order is later revoked or reversed on appeal; and

                     (c)  the warrant has ceased to be in force;

the court revoking or reversing the order may reissue the warrant for a further period not exceeding 7 days.

             (5)  The court must not exercise the power under subsection (4) unless it is satisfied of the matters set out in subsection 198(1), 203(1) or 203DA(1).

203L  Use of animals in executing a warrant

                   In executing a search warrant or a seizure warrant in relation to premises, the executing officer or a person assisting may bring to the premises any animals reasonably necessary for locating things the subject of the warrant.

203M  Warrants by telephone or other electronic means

             (1)  An authorised person may apply to a judicial officer for a search warrant or for a seizure 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 judicial officer:

                     (a)  may require communication by voice to the extent that it is practicable in the circumstances; and

                     (b)  may make a recording of the whole or any part of any such communication by voice.

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

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

                     (a)  a search warrant or a seizure 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 judicial officer may complete and sign the same form of warrant that would be issued under section 198, 203 or 203DA.

             (5)  If the judicial officer decides to issue the warrant, the judicial officer 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 judicial officer, stating on the form the name of the judicial officer 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 executed;

whichever is the earlier, give or transmit to the judicial officer 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 judicial officer must:

                     (a)  attach to the documents provided under subsection (7) the form of warrant signed by the judicial officer; and

                     (b)  give or transmit to the applicant the attached documents.

             (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 judicial officer 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.

203N  Receipts for things seized under warrant

             (1)  If a thing is seized under a search warrant or a seizure warrant, the executing officer or a person assisting must provide a receipt for the thing.

             (2)  If 2 or more things are seized, they may be covered in the one receipt.

203P  Offence for making false statements in warrants

                   A person must not make, in an application for a search warrant or for a seizure warrant, a statement that the person knows to be false or misleading in a material particular.

Penalty:  Imprisonment for 2 years.

203Q  Offences relating to telephone warrants

             (1)  A person must not:

                     (a)  state in a document that purports to be a form of warrant under section 203M the name of a judicial officer; or

                     (b)  state on a form of warrant under that section a matter that, to the person’s knowledge, departs in a material particular from the form authorised by the judicial officer; or

                     (c)  purport to execute, or present to a person, a document that purports to be a form of warrant under that section that the person knows:

                              (i)  has not been approved by a judicial officer under that section; or

                             (ii)  departs in a material particular from the terms authorised by a judicial officer under that section; or

                     (d)  give to a judicial officer a form of warrant under that section that is not the form of warrant that the person purported to execute.

Penalty:  Imprisonment for 2 years.

             (2)  Paragraph (1)(a) does not apply if the judicial officer named in the warrant issued it.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Subdivision FDealing with things seized as evidential material

203R  Retention of things seized as evidential material

             (1)  Subject to any law of the Commonwealth, a State or a Territory permitting the retention, destruction or disposal of a thing seized as evidential material by an officer of Customs under a search warrant or by an authorised person under subsection 203B(3), 203C(3), 203CA(4) or 203CB(3), the officer or authorised person must return it if:

                     (a)  the reason for its seizure no longer exists or it is decided that it is not to be used in evidence; or

                     (b)  120 days after its seizure:

                              (i)  proceedings in respect of which the thing may afford evidence have not been started; and

                             (ii)  an order permitting the thing to be retained has not been made under section 203S; and

                            (iii)  an order of a court of the Commonwealth or of a State or Territory permitting the retention, destruction or disposal of the thing has not been made;

whichever first occurs.

             (2)  For the purposes of this section, the return of a thing requires its return to the person reasonably believed to be the owner of the thing in a condition as near as practicable to the condition in which it was seized.

203S  Magistrate may permit a thing seized as evidential material to be retained

             (1)  If a thing is seized as evidential material by an officer of Customs under a search warrant, or by an authorised person under subsection 203B(3), 203C(3), 203CA(4) or 203CB(3), and:

                     (a)  before the end of 120 days after the seizure; or

                     (b)  before the end of a period previously specified in a magistrate’s order under this section;

proceedings in respect of which the thing may afford evidence have not been started:

                     (c)  if the thing is seized by an officer of Customs under a search warrant—an officer of Customs may apply to a magistrate for an order that the thing be retained; or

                     (d)  if the thing is seized by an authorised person under subsection 203B(3), 203C(3), 203CA(4) or 203CB(3)—an authorised person may apply to a magistrate for an order that the thing be retained.

             (2)  If the magistrate is satisfied:

                     (a)  that it is necessary for the retention of the thing be continued:

                              (i)  for the purposes of an investigation as to whether an offence has been committed; or

                             (ii)  to enable evidence of an offence to be assembled for the purposes of a prosecution; and

                     (b)  that there has been no avoidable delay in conducting the investigation or assembling the evidence concerned;

the magistrate may order that the thing be retained for a period specified in the order.

             (3)  Before making the application, the officer of Customs or the authorised person must:

                     (a)  take reasonable steps to discover who has an interest in the retention of the thing; and

                     (b)  if it is practicable to do so, notify each person who the officer believes to have such an interest of the proposed application.

Subdivision GDealing with goods seized as forfeited goods

203SA  Subdivision does not apply to seized transit goods

                   This Subdivision does not apply to goods that have been seized under a seizure warrant under section 203DA, except for goods seized under paragraph 203DB(1)(d) (which covers goods suspected of being special forfeited goods).

Note:          For seized transit goods, see Subdivision GA.

203T  Seizure of protected objects

             (1)  In this section:

inspector has the same meaning as in the Act.

Minister means the Minister administering the Act.

the Act means the Protection of Movable Cultural Heritage Act 1986.

             (2)  Where:

                     (a)  the Minister is of the opinion that a particular object may become forfeited by virtue of section 9 of the Act; or

                     (b)  a foreign country has requested the return of a particular object exported from that country and the Minister is of the opinion that the object may become liable to forfeiture by virtue of section 14 of the Act;

the Minister may issue a notice in writing to the Comptroller to that effect.

             (3)  An officer may seize a protected object or any object that the officer believes on reasonable grounds is a protected object, being an object that is subject to the control of the Customs.

             (4)  Where an officer seizes an object under subsection (3), the officer shall forthwith deliver the object into the custody of an inspector.

204  Seized goods to be secured

             (1)  In this section:

approved place, in relation to goods, means a place approved by a Collector as a place for the storage of goods of that kind.

             (2)  If an officer of Customs seizes any goods other than narcotic‑related goods under a seizure warrant or under section 203B, 203CA or 203CB, the officer must, as soon as practicable, take those goods to an approved place.

             (3)  If a person other than an officer of Customs seizes any goods other than narcotic‑related goods under a seizure warrant or under section 203B, 203CA or 203CB, the person must, as soon as practicable, deliver the goods into the custody of an officer of Customs.

             (4)  If a person other than a member of the Australian Federal Police seizes:

                     (a)  any narcotic‑related goods under a seizure warrant or under section 203B, 203CA or 203CB; or

                     (b)  any narcotic goods under section 203C;

the person must, as soon as practicable, deliver the goods into the custody of a member of the Australian Federal Police.

             (5)  If goods are delivered to an officer of Customs under subsection (3), the officer must:

                     (a)  if paragraph (b) does not apply—as soon as practicable, deliver the goods to an approved place; or

                     (b)  if the goods are delivered to the officer at an approved place—leave the goods at that place.

205  Requirement to serve seizure notices

             (1)  After goods have been seized under a seizure warrant or under subsection 203B(2) or (2A), 203C(2), 203CA(3) or 203CB(2), the responsible person must serve, within 7 days after the seizure, a seizure notice on the owner of the goods or, if the owner cannot be identified after reasonable inquiry, on the person in whose possession or under whose control the goods were when they were seized.

             (2)  Subsection (1) applies whether or not a claim for the return of the goods seized has been made under section 205B.

             (3)  The notice must be in writing and must be served:

                     (a)  personally or by post; or

                     (b)  if no person of the kind referred to in subsection (1) can be identified after reasonable inquiry—by publishing a copy of the notice in a newspaper circulating in the location in which the goods were seized.

             (4)  A seizure notice may be served on a person who is outside Australia.

             (5)  In this section:

responsible person means:

                     (a)  in relation to goods other than narcotic‑related goods—the officer of Customs who seized the goods or to whom the goods were delivered under subsection 204(3); or

                     (b)  in relation to narcotic‑related goods—the member of the Australian Federal Police who seized the goods or to whom the goods were delivered under subsection 204(4).

205A  Matters to be dealt with in seizure notices

                   A seizure notice must set out the following:

                     (a)  a statement identifying the goods;

                     (b)  the day on which they were seized;

                     (c)  the ground, or each of the grounds, on which they were seized;

                     (d)  a statement that, if a claim for the return of the goods may be made and a claim has not already been made, and is not made within 30 days after the day the notice is served, the goods will be taken to be condemned as forfeited to the Crown;

                   (da)  a statement that a claim for the return of the goods cannot be made if:

                              (i)  an infringement notice for an offence in relation to the importation of the goods has been served with the seizure notice; and

                             (ii)  the penalty specified in the infringement notice is paid within the period within which, or by the time by which, the penalty is required to be paid; and

                            (iii)  the infringement notice is not withdrawn;

                     (e)  if the notice is to be served in a foreign country—a statement that the person served, if that person has not yet made a claim for the return of the goods, may not make such a claim unless he or she has first appointed in writing an agent in Australia with authority to accept service of documents, including process in any proceedings arising out of the matter.

205B  Claim for return of goods seized

             (1)  Subject to subsection (1A), if goods are seized under a seizure warrant or under subsection 203B(2) or (2A), 203C(2), 203CA(3) or 203CB(2), the owner of the goods may, whether or not a seizure notice has yet been served on the owner, make a claim to the appropriate person for the return of the goods.

          (1A)  A claim may not be made for the return of goods that have been taken to be condemned as forfeited to the Crown under section 243ZK.

             (2)  A claim:

                     (a)  must be in writing in an approved form; and

                     (b)  must specify the grounds on which the claim is made; and

                     (c)  if it is made by a person who does not reside or have a place of business in Australia, must:

                              (i)  appoint an agent in Australia with authority to accept service of documents, including process in any proceedings, arising out of the matter; and

                             (ii)  specify the address of the agent for service; and

                            (iii)  be accompanied by the written consent of the agent signed by the agent, agreeing to act as agent.

             (3)  In this section:

appropriate person means:

                     (a)  in relation to goods other than narcotic‑related goods:

                              (i)  the CEO; or

                             (ii)  a Regional Director for a State or Territory; and

                     (b)  in relation to narcotic‑related goods:

                              (i)  the Commissioner of Police; or

                             (ii)  a Deputy Commissioner of Police.

205C  Treatment of goods seized if no claim for return is made

                   If:

                     (a)  goods have been seized under a seizure warrant or under subsection 203B(2) or (2A), 203C(2), 203CA(3) or 203CB(2); and

                     (b)  a seizure notice has been served; and

                   (ba)  a claim for the return of the goods may be made under section 205B; and

                     (c)  at the end of 30 days after the day the notice was served, no claim has been made for return of the goods;

the goods are taken to be condemned as forfeited to the Crown.

205D  Treatment of goods seized if a claim for return is made

             (1)  This section applies if:

                     (a)  goods are seized under a seizure warrant or under subsection 203B(2) or (2A), 203C(2), 203CA(3) or 203CB(2); and

                    (aa)  a claim for the return of the goods may be made under section 205B; and

                     (b)  not later than 30 days after the day the seizure notice was served, a claim is made under section 205B for return of the goods.

             (2)  The authorised person who seized the goods must, subject to any law of the Commonwealth, a State or a Territory permitting their retention, destruction or disposal, return the goods unless:

                     (a)  the goods have been dealt with under section 206 or 207; or

                    (aa)  the goods have been taken to be condemned as forfeited to the Crown under section 243ZK; or

                     (b)  not later than 120 days after the claim for their return is made, proceedings in respect of an offence involving the goods have been commenced and, on completion of the proceedings, a court has made an order for condemnation of the goods as forfeited to the Crown; or

                     (c)  not later than 120 days after the claim for their return is made:

                              (i)  an order permitting the goods to be retained for a specified period has been made under section 205E; and

                             (ii)  before the end of that specified period, proceedings in respect of an offence involving the goods have been commenced and, on completion of the proceedings, a court has made an order for condemnation of the goods as forfeited to the Crown; or

                     (d)  not later than 120 days after the claim for their return is made:

                              (i)  an order permitting the goods to be retained for a specified period has been made under section 205E; and

                             (ii)  before the end of that specified period proceedings have been commenced before a court of summary jurisdiction for a declaration that the goods are special forfeited goods and, on completion of the proceedings, a court has made an order for condemnation of the goods as forfeited to the Crown; or

                     (e)  if the goods were seized as special forfeited goods—not later than 120 days after the claim for their return is made, proceedings before a court of summary jurisdiction for a declaration that the goods are special forfeited goods have been commenced and, on completion of the proceedings, a court has made an order for condemnation of the goods as forfeited to the Crown.

Note:          Subsection (9) gives special forfeited goods a wider meaning for the purposes of this section.

             (3)  If:

                     (a)  goods seized otherwise than as special forfeited goods have not been dealt with under section 206; and

                     (b)  proceedings of the kind referred to in paragraph (2)(b) or (c) are commenced in respect of an offence involving the goods; and

                     (c)  on completion of the proceedings, the court:

                              (i)  finds that the offence is proved; and

                             (ii)  is satisfied, in all the circumstances of the case, that it is appropriate that an order be made for condemnation of the goods as forfeited to the Crown;

the court must make an order to that effect.

Note:          Subsection (9) gives special forfeited goods a wider meaning for the purposes of this section.

             (4)  If:

                     (a)  goods seized as special forfeited goods have not been dealt with under section 206 or 207; and

                     (b)  proceedings of the kind referred to in paragraph (2)(b) or (c) are commenced in respect of an offence involving the goods; and

                     (c)  on completion of the proceedings, the court is satisfied that the goods are special forfeited goods;

the court must make an order for condemnation of the goods as forfeited to the Crown, whether or not the court finds the offence proved.

Note:          Subsection (9) gives special forfeited goods a wider meaning for the purposes of this section.

             (5)  Subject to subsection (6) if:

                     (a)  goods seized as special forfeited goods have not been dealt with under section 206 or 207; and

                     (b)  proceedings of the kind referred to in paragraph (2)(d) or (e) are commenced in respect of the goods; and

                     (c)  on completion of the proceedings, the court is satisfied that the goods are special forfeited goods;

the court must declare the goods to be special forfeited goods and make an order for condemnation of the goods as forfeited to the Crown.

Note:          Subsection (9) gives special forfeited goods a wider meaning for the purposes of this section.

             (6)  A court must not make an order for condemnation of goods under subsection (5) if proceedings for an offence involving the goods have been commenced.

             (7)  If the finding of a court in proceedings under paragraph (2)(b), (c), (d) or (e) in respect of goods that have not been dealt with under section 206 or 207 may be taken on appeal to another court, the goods are not to be returned under subsection (2), or disposed of under section 208D or 208DA, while that appeal may be made, or, if it is made, until the completion of that appeal.

             (8)  For the purposes of this section, the return of goods requires their return to the person reasonably believed to be the owner of the goods in a condition as near as practicable to the condition in which they were seized.

             (9)  In this section:

offence means an offence against any law of the Commonwealth, a State or a Territory.

special forfeited goods includes goods that are forfeited under section 7, 10, 11 or 13 of the Commerce (Trade Descriptions) Act 1905.

           (10)  In this section, a reference to completion of proceedings includes a reference to completion of any appeal process arising from those proceedings.

205E  Magistrate may permit goods seized to be retained

             (1)  If goods are seized under a seizure warrant or under subsection 203B(2) or (2A), 203C(2), 203CA(3) or 203CB(2) and:

                     (a)  before the end of 120 days after the making of a claim for their return; or

                     (b)  before the end of the period previously specified in a magistrate’s order under this section;

proceedings of the kind referred to in paragraph 205D(2)(b) have not been started, an authorised person may apply to a magistrate for an order that the goods be retained.

             (2)  If the magistrate is satisfied that it is necessary:

                     (a)  that the retention of the goods continue while evidence of the offence to which the proceedings referred to in paragraph 205D(2)(b) relate is assembled; and

                     (b)  that there has been no avoidable delay in assembling that evidence;

the magistrate may order that the goods be retained for a period specified in the order.

             (3)  Before making the application, the authorised person must:

                     (a)  take reasonable steps to discover who has an interest in the retention of the goods; and

                     (b)  if it is practicable to do so, notify each person who the officer believes to have such an interest of the proposed application.

205F  Right of compensation in certain circumstances for goods disposed of or destroyed

             (1)  Despite the disposal or destruction of goods taken to be condemned as forfeited to the Crown because no claim for their return was made, a person may apply to a court of competent jurisdiction under this section for compensation.

             (2)  A right to compensation exists if:

                     (a)  the goods are not special forfeited goods within the meaning of section 205D; and

                     (b)  the goods were not used or otherwise involved in the commission of an offence; and

                     (c)  the person establishes, to the satisfaction of the court:

                              (i)  that he or she is the rightful owner of the goods; and

                             (ii)  that there were circumstances providing a reasonable excuse for the failure to claim the goods not later than 30 days after the day the seizure notice was served.

             (3)  If a right to compensation exists under subsection (2), the court must order the payment by the Commonwealth to the person of an amount equal to:

                     (a)  if the goods have been sold—the proceeds of the sale; and

                     (b)  if the goods have been destroyed—the market value of the goods at the time of their destruction.

205G  Effect of forfeiture

                   When goods are, or are taken to be, condemned as forfeited to the Crown, the title to the goods immediately vests in the Commonwealth to the exclusion of all other interests in the goods, and the title cannot be called into question.

206  Immediate disposal of certain goods

Perishable goods and live animals

             (1)  If:

                     (a)  goods are seized under a seizure warrant or under subsection 203B(2) or (2A), 203CA(3) or 203CB(2); and

                     (b)  the goods are perishable goods or live animals; and

                     (c)  the CEO or a Regional Director for a State or Territory is satisfied that the retention of the goods would constitute:

                              (i)  a danger to public health; or

                             (ii)  if the goods are live animals—a danger to the health of other animals or a danger to plants or to agricultural produce;

the CEO or Regional Director concerned may cause the goods to be dealt with in such manner as he or she considers appropriate (including the destruction of the goods).

Dangerous goods

          (1A)  If:

                     (a)  goods are seized under a seizure warrant or under subsection 203B(2) or (2A), 203CA(3) or 203CB(2); and

                     (b)  the CEO or a Regional Director for a State or Territory is satisfied that the retention of the goods would constitute a danger to public health or safety;

the CEO or Regional Director concerned may cause the goods to be dealt with in such manner as he or she considers appropriate (including the destruction of the goods).

Unseaworthy vessels

             (2)  If:

                     (a)  goods are seized under a seizure warrant or under subsection 203B(2) or (2A), 203CA(3) or 203CB(2); and

                     (b)  the goods are a vessel in the possession of an officer of Customs; and

                     (c)  the CEO or a Regional Director for a State or Territory is satisfied that the vessel is so unseaworthy that its custody or maintenance is impracticable;

the CEO or Regional Director concerned may cause the goods to be dealt with in such manner as he or she considers appropriate (including the destruction of the goods).

Notice

             (3)  As soon as practicable, but not later than 7 days after the goods referred to in subsection (1), (1A) or (2) have been dealt with, the CEO or Regional Director concerned must give or publish a notice in accordance with subsection (5).

             (4)  The notice must be in writing and must be served:

                     (a)  personally or by post on the owner of the goods or, if the owner cannot be identified after reasonable inquiry, on the person in whose possession or under whose control the goods were when they were seized; or

                     (b)  if no person of the kind referred to in paragraph (a) can be identified after reasonable inquiry—by publishing a copy of the notice in a newspaper circulating in the location in which the goods were seized.

             (5)  The notice must:

                     (a)  identify the goods; and

                     (b)  state that the goods have been seized under a seizure warrant or under subsection 203B(2) or (2A), 203CA(3) or 203CB(2) and give the reason for the seizure; and

                     (c)  state that the goods have been dealt with under subsection (1), (1A) or (2) and specify the manner in which they have been so dealt with and the reason for doing so; and

                     (d)  set out the terms of subsection (6).

Right to recover market value of goods

             (6)  If goods are dealt with in accordance with subsection (1), (1A) or (2), the owner of the goods may bring an action against the Commonwealth in a court of competent jurisdiction for the recovery of the market value of the goods at the time they were so dealt with.

             (7)  A right to recover the market value of the goods at the time they were dealt with in accordance with subsection (1), (1A) or (2) exists if:

                     (a)  the goods are not special forfeited goods within the meaning of section 205D; and

                     (b)  the goods were not used or otherwise involved in the commission of an offence; and

                     (c)  the owner of the goods establishes, to the satisfaction of the Court, that the circumstances for them to be so dealt with did not exist.

             (8)  If a person establishes a right to recover the market value of the goods at the time they were dealt with, the Court must order the payment by the Commonwealth of an amount equal to that value at that time.

207  Immediate disposal of narcotic goods

             (1)  If:

                     (a)  goods are seized under a seizure warrant or under subsection 185(2), 185A(6), 203B(2) or (2A), 203C(2), 203CA(3) or 203CB(2); and

                     (b)  the goods are reasonably believed by the Commissioner of Police or a Deputy Commissioner of Police to be special forfeited goods that are narcotic goods;

the Commissioner or Deputy Commissioner may cause the goods to be dealt with in such manner as he or she considers appropriate (including the destruction of the goods).

             (2)  If goods are dealt with in accordance with subsection (1), the owner of the goods may bring an action against the Commonwealth in a court of competent jurisdiction for the recovery of the market value of the goods at the time they were so dealt with.

             (3)  A right to recover the market value of the goods at the time they were dealt with in accordance with subsection (1) exists if:

                     (a)  the goods are not special forfeited goods; and

                     (b)  the goods were not used or otherwise involved in the commission of an offence; and

                     (c)  the owner of the goods establishes, to the satisfaction of the Court, that the circumstances for them to be so dealt with did not exist.

             (4)  If a person establishes a right to recover the market value of the goods at the time they were dealt with in accordance with subsection (1) or (2), the Court must order the payment by the Commonwealth of an amount equal to that value at that time.

208  Release of goods on security

             (1)  This section applies to goods:

                     (a)  that have been seized under a seizure warrant; and

                     (b)  that are not special forfeited goods; and

                     (c)  that are not taken to be forfeited to the Crown under section 205C; and

                     (d)  in respect of which proceedings have not yet been brought by the Commonwealth under section 205D.

             (2)  The owner of the goods may apply to a court of summary jurisdiction for an order that the goods be released to the owner on provision to the CEO of security for an amount determined by the court in accordance with subsection (4).

             (3)  In determining whether or not to order the release of the goods on provision of a security, the court may have regard to:

                     (a)  the impact that the continued retention of the goods would have on the economic interests of third parties; and

                     (b)  whether the continued retention of the goods would prevent the provision of services by third parties which would place at risk the health, safety or welfare of the community; and

                     (c)  any other like matters that the court considers relevant.

             (4)  For the purposes of this section, the security to be provided in respect of the goods is security for an amount determined by the court that does not exceed the sum of:

                     (a)  the market value of the goods at the time when the order is made; and

                     (b)  the costs incurred by Customs for storage of the goods from the time of their seizure until the time of their release under this section;

reduced by the amount of any duty that has been paid on the goods.

             (5)  If the security is given, the CEO is to release the goods to the applicant.

208C  Service by post

                   For the purposes of the application of section 29 of the Acts Interpretation Act 1901 to the service by post of a seizure notice under section 205 or a notice under subsection 206(3) on a person, such a notice posted as a letter addressed to that person at the last address of that person known to the sender shall be deemed to be properly addressed.

208D  Disposal of forfeited goods

                   All goods seized under a seizure warrant or under subsection 185(2), 185A(6), 203B(2) or (2A), 203C(2), 203CA(3) or 203CB(2) that are taken to be condemned as forfeited to the Crown under section 205C or that are so condemned under section 205D shall be dealt with and disposed of in accordance with:

                     (a)  in the case of goods other than narcotic‑related goods—the directions of the CEO; or

                     (b)  in the case of narcotic goods—the directions of the Commissioner of Police or a Deputy Commissioner of Police; or

                     (c)  in the case of narcotic‑related goods other than narcotic goods—in accordance with section 208DA.

208DA  Disposal of narcotic‑related goods other than narcotic goods

             (1)  In this section:

condemned goods means goods seized under a seizure warrant or under subsection 203B(2) or 2A, 203C(2), 203CA(3) or 203CB(2):

                     (a)  that are taken to be condemned as forfeited to the Crown under section 205C; or

                     (b)  that are so condemned under section 205D.

Official Trustee means the Official Trustee in Bankruptcy.

prescribed officer means an SES employee, or acting SES employee, in the Attorney‑General’s Department.

             (2)  All condemned goods that are narcotic‑related goods (other than narcotic goods) must, subject to any direction given under subsection (4) in relation to those goods, be transferred to the Official Trustee to be dealt with under subsection (3).

             (3)  Where goods are transferred to the Official Trustee under subsection (2), the Official Trustee must, as soon as practicable:

                     (a)  if the goods are money—credit the amount of the money to the Confiscated Assets Account as required by section 296 of the Proceeds of Crime Act 2002; and

                     (b)  if the goods are not money:

                              (i)  sell or otherwise dispose of the goods; and

                             (ii)  apply the proceeds of the sale or disposition in accordance with subsection (3A); and

                            (iii)  credit an amount equal to the remainder of those proceeds to the Confiscated Assets Account as required by section 296 of the Proceeds of Crime Act 2002.

          (3A)  The proceeds of the sale or disposition of condemned goods transferred to the Official Trustee under subsection (2) must be applied in payment of:

                     (a)  the Official Trustee’s remuneration; and

                     (b)  the other costs, charges and expenses of the kind referred to in section 243P that are payable to, or incurred by, the Official Trustee in connection with the sale or disposition; and

                     (c)  if the goods were seized by, or delivered into the custody of, a member of the Australian Federal Police under a seizure warrant, or under section 203B, 203C, 203CA, 203CB or 204—the costs, charges and expenses incurred by, or on behalf of, the Commonwealth in connection with the transportation, storage, custody and control of the goods before their transferral to the Official Trustee.

             (4)  If condemned goods consist of, or include, narcotic‑related goods (other than narcotic goods), the Attorney‑General, or a prescribed officer authorised by the Attorney‑General for the purposes of this section, may, at any time before the condemned goods are sold or otherwise disposed of under subsection (2), direct that those narcotic‑related goods be disposed of, or otherwise dealt with, as specified in the direction.

208E  Sales subject to conditions

                   Where a ship or aircraft is sold under section 206 or sold or otherwise disposed of under section 208D, the ship or aircraft may be sold or disposed of subject to conditions, including, without limiting the generality of the foregoing:

                     (a)  a condition that, before the expiration of a period specified in the condition, the ship or aircraft is to be exported from Australia; or

                     (b)  a condition that, before the expiration of a period specified in the condition, the ship or aircraft is to be broken up.

209  Power to impound certain forfeited goods and release them on payment of duty and penalty

             (1)  This section applies to dutiable goods that are forfeited by virtue of paragraph 229(1)(a), (g), (o), (p), (q) or (qa) (including forfeited by virtue of the operation of any of those paragraphs and section 230), other than goods that are prohibited imports.

             (2)  Subject to subsection (3), an officer may impound goods instead of obtaining a seizure warrant to seize them if:

                     (a)  the goods are in a Customs place; and

                     (b)  either:

                              (i)  the goods are goods to which this section applies; or

                             (ii)  the officer has reason to believe that the goods are goods to which this section applies.

             (3)  An officer must not exercise the power to impound goods under subsection (2) if, in the opinion of the officer, the amount of duty sought to be evaded in respect of the goods exceeds $5,000.

             (4)  Goods impounded under this section shall be taken to such place of security as the Collector directs.

             (5)  Where an officer impounds goods under this section, he or she shall as soon as is practicable, but not later than 7 days after the day on which the goods were impounded, serve on the owner of the goods, either personally or by post, a notice in writing:

                     (a)  identifying:

                              (i)  if the goods are an article—the article; or

                             (ii)  if the goods consist of separate articles—each of those articles; or

                            (iii)  in any other case—the goods;

                            and stating that the article, articles or goods have been impounded under subsection (2); and

                     (b)  setting out the amount of duty demanded in respect of the article, each of the articles, or the goods, identified in the notice; and

                     (c)  setting out the date on which the goods were impounded; and

                     (d)  setting out the terms of, or adequate particulars of the provisions of, subsections (6) and (7); and

                     (e)  specifying the address at which payment under subsection (6) may be made in respect of the goods.

             (6)  Where the owner of an article or goods identified in a notice served under subsection (5) pays to the Collector, at the address for payment shown in the notice and within 21 days after the day on which the notice was served, the duty demanded in respect of the article or goods (not being a payment under protest in accordance with section 167) together with an amount of penalty equal to:

                     (a)  if the goods were found in the course of a search of the baggage of a person who has arrived in Australia from a place outside Australia—an amount specified in the notice, being an amount equal to the amount of that duty that, in the opinion of the officer issuing the notice, the owner has sought to evade; or

                     (b)  if paragraph (a) does not apply to the goods—an amount specified in the notice, being an amount equal to twice the amount of that duty that, in the opinion of the officer issuing the notice, the owner has sought to evade;

the following provisions apply:

                     (c)  the Collector shall authorize the delivery of the article or goods to the owner;

                     (d)  the article ceases, or the goods cease, to be forfeited; and

                     (e)  proceedings shall not be brought for an offence against this Act in relation to the importation of the article or goods.

             (7)  Where the owner of an article or goods identified in a notice served under subsection (5) does not pay duty and penalty in respect of the article or goods in accordance with subsection (6), the article or goods are taken:

                     (a)  to have been seized under a seizure warrant at the end of 21 days after the notice is served; and

                     (b)  to have been so seized by the officer who served the notice under subsection (5).

             (9)  Neither the Commonwealth nor an officer or other person is under any liability in relation to the impounding of any goods under this section for which there was reasonable cause.

           (10)  For the purpose of the application of section 29 of the Acts Interpretation Act 1901 to the service by post on the owner of goods of a notice under subsection (5), such a notice posted as a letter addressed to the owner at his or her last address known to the officer required to serve the notice shall be deemed to be properly addressed.

           (11)  A reference in this section to the baggage of a person who has arrived in Australia shall be read as including a reference to goods on his or her person or otherwise with him or her.

           (12)  A reference in this section to a search of the baggage of a person shall be read as including a reference to a search of such part of the baggage of a person as is available for search at a particular time.

209A  Destruction or concealment of evidential material or forfeited goods

                   A person must not:

                     (a)  destroy, or render incapable of identification, a document or thing that is, or may be, evidential material or a forfeited good; or

                     (b)  render illegible or indecipherable such a document or thing; or

                     (c)  place or conceal on his or her body, or in any clothing worn by the person, such a document or thing;

with the intention of preventing it from being seized by an authorised person in the exercise of the person’s powers under a search warrant, a seizure warrant or section 203B, 203C, 203CA or 203CB.

Penalty:  Imprisonment for 2 years.

Subdivision GADealing with goods in transit seized under a section 203DA warrant

209B  Subdivision applies to seized transit goods

                   This Subdivision applies to goods that have been seized under a seizure warrant under section 203DA, except for goods seized under paragraph 203DB(1)(d) (which covers goods suspected of being special forfeited goods).

Note:          For other kinds of seized goods, see Subdivision G.

209C  Seized goods to be secured

                   An officer of Customs who seizes any goods to which this Subdivision applies must, as soon as practicable, take the goods to a place approved by a Collector as a place for the storage of goods of that kind.

209D  Requirement to serve seizure notices

             (1)  The officer must serve, within 7 days after the seizure, a seizure notice on the owner of the goods or, if the owner cannot be identified after reasonable inquiry, on the person in whose possession or under whose control the goods were when they were seized.

             (2)  Subsection (1) applies whether or not an application for the return of the goods seized has been made under section 209F.

             (3)  The notice must be in writing and must be served:

                     (a)  personally or by post; or

                     (b)  if no person of the kind referred to in subsection (1) can be identified after reasonable inquiry—by publishing a copy of the notice in a newspaper circulating in the location in which the goods were seized.

             (4)  A seizure notice may be served on a person who is outside Australia.

209E  Matters to be dealt with in seizure notices

                   A seizure notice must set out the following:

                     (a)  a statement identifying the goods;

                     (b)  the day on which they were seized;

                     (c)  the ground, or each of the grounds, on which they were seized;

                     (d)  a statement that, if an application for the return of the goods has not already been made, and is not made within 30 days after the day the notice is served, the goods will be taken to be condemned as forfeited to the Crown.

209F  Application for return of seized goods

             (1)  The owner of the goods may, whether or not a seizure notice has yet been served on the owner, apply to a court of competent jurisdiction for the return of the goods.

             (2)  An application must be made no later than 30 days after a seizure notice is issued in respect of the goods.

             (3)  If the court finds that:

                     (a)  the goods are not goods of the kind mentioned in subsection 203DA(1); and

                     (b)  the goods were not used or otherwise involved in the commission of an offence against any law of the Commonwealth, a State or a Territory; and

                     (c)  the person is the rightful owner of the goods;

the court must order that the goods be returned to the owner.

             (4)  Goods required to be so returned are required to be returned in a condition as near as practicable to the condition in which they were seized.

             (5)  If the court finds otherwise than as mentioned in subsection (3), the goods are condemned as forfeited to the Crown.

209G  Status of goods seized if no application for return is made

                   If:

                     (a)  a seizure notice has been served; and

                     (b)  at the end of 30 days after the day on which the notice was served, no application has been made for return of the goods;

the goods are condemned as forfeited to the Crown.

209H  Right of compensation for certain goods disposed of or destroyed

             (1)  Despite the disposal or destruction of goods taken to be condemned as forfeited to the Crown because no application for their return was made, a person may apply to a court of competent jurisdiction under this section for compensation.

             (2)  A right to compensation exists if:

                     (a)  the goods are not goods of the kind mentioned in subsection 203DA(1); and

                     (b)  the goods were not used or otherwise involved in the commission of an offence against any law of the Commonwealth, a State or a Territory; and

                     (c)  the person establishes, to the satisfaction of the court:

                              (i)  that he or she is the rightful owner of the goods; and

                             (ii)  that there were circumstances providing a reasonable excuse for the failure to apply for the return of the goods not later than 30 days after the day the seizure notice was served.

             (3)  If a right to compensation exists under subsection (2), the court must order the payment by the Commonwealth to the person of an amount equal to:

                     (a)  if the goods have been sold—the proceeds of the sale; and

                     (b)  if the goods have been destroyed or otherwise disposed of—the goods’ market value at the time of their destruction or disposal.

209I  Effect of forfeiture

                   When goods are condemned as forfeited to the Crown under this Subdivision, the title to the goods immediately vests in the Commonwealth to the exclusion of all other interests in the goods, and the title cannot be called into question.

209J  Immediate disposal of unsafe goods

             (1)  If the CEO or a Regional Director for a State or Territory is satisfied that the retention of goods seized would constitute a danger to public health or safety, the CEO or Regional Director may cause the goods to be dealt with in such manner as he or she considers appropriate (including the destruction of the goods).

             (2)  As soon as practicable, but not later than 7 days after the goods have been dealt with, the CEO or Regional Director concerned must give or publish a notice in accordance with subsection (4).

             (3)  The notice must be in writing and must be served:

                     (a)  personally or by post on the owner of the goods or, if the owner cannot be identified after reasonable inquiry, on the person in whose possession or under whose control the goods were when they were seized; or

                     (b)  if no person of the kind referred to in paragraph (a) can be identified after reasonable inquiry—by publishing a copy of the notice in a newspaper circulating in the location in which the goods were seized.

             (4)  The notice must:

                     (a)  identify the goods; and

                     (b)  state that the goods have been seized under a seizure warrant under section 203DA and give the reason for the seizure; and

                     (c)  state that the goods have been dealt with under subsection (1) and specify the manner in which they have been so dealt with and the reason for doing so; and

                     (d)  set out the terms of subsection (5).

             (5)  If goods are dealt with in accordance with subsection (1), the owner of the goods may bring an action against the Commonwealth in a court of competent jurisdiction for the recovery of the market value of the goods at the time they were so dealt with.

             (6)  A right to recover the market value of the goods at the time they were dealt with in accordance with subsection (1) exists if:

                     (a)  the goods were not goods of the kind mentioned in subsection 203DA(1); and

                     (b)  the goods were not used or otherwise involved in the commission of an offence against any law of the Commonwealth, a State or a Territory; and

                     (c)  the owner of the goods establishes, to the satisfaction of the Court, that the circumstances for them to be so dealt with did not exist.

             (7)  If a person establishes a right to recover the market value of the goods at the time they were dealt with, the Court must order the payment by the Commonwealth of an amount equal to that value at that time.

209K  Disposal of forfeited goods

             (1)  All goods that are condemned as forfeited to the Crown under this Subdivision must be dealt with and disposed of in accordance with the directions of the CEO.

             (2)  In particular, the CEO may direct that the goods be given to a relevant authority of a foreign country in order that the goods be used in an investigation or prosecution under the laws of that country.

             (3)  Subsection (2) does not limit the generality of subsection (1).

209L  Service by post

                   For the purposes of the application of section 29 of the Acts Interpretation Act 1901 to the service by post of a seizure notice under section 209D or a notice under subsection 209J(3) on a person, such a notice posted as a letter addressed to that person at the last address of that person known to the sender is taken to be properly addressed.

Subdivision GBSurrender of prescribed prohibited imports

209M  Application of Subdivision

                   This Subdivision applies to goods that are prohibited imports of a kind prescribed by regulations made for the purposes of this section.

209N  Surrender of goods

             (1)  An officer of Customs may, instead of seizing goods under section 203B, permit a person to surrender the goods to the officer in a section 234AA place if:

                     (a)  the officer has reasonable grounds to believe that the goods:

                              (i)  have been imported by the person; and

                             (ii)  have not been concealed from Customs by the person; and

                            (iii)  are accompanied personal or household effects of the person; and

                     (b)  the person has been informed by the officer, in writing, of the available options for dealing with the goods and the consequences of exercising each of those options; and

                     (c)  the person has indicated to Customs, in writing, that he or she intends to surrender the goods; and

                     (d)  the officer has indicated to the person that the goods may be surrendered to the officer.

             (2)  Without limiting the meaning of concealed in subparagraph (1)(a)(ii), a person is taken to have concealed goods from Customs if the person was required to give information about the goods to Customs in accordance with section 71, 71K or 71L and the person failed to do so.

209P  Effect of surrender

                   If goods are surrendered under section 209N:

                     (a)  proceedings cannot be brought for an offence against this Act in relation to the importation of the goods; and

                     (b)  the goods are taken to be condemned as forfeited to the Crown, such that the title to the goods immediately vests in the Commonwealth to the exclusion of all other interests in the goods, and the title cannot be called into question.

209Q  Right of compensation in certain circumstances for goods disposed of or destroyed

             (1)  Despite the disposal or destruction of goods taken to be condemned as forfeited to the Crown because the goods have been surrendered under section 209N, a person may apply to a court of competent jurisdiction under this section for compensation.

             (2)  A right to compensation exists if:

                     (a)  the goods were not prohibited imports; and

                     (b)  the goods were not used or otherwise involved in the commission of an offence; and

                     (c)  the person establishes, to the satisfaction of the court, that he or she is the rightful owner of the goods.

             (3)  If a right to compensation exists under subsection (2), the court must order the payment by the Commonwealth to the person of an amount equal to the market value of the goods at the time of their disposal or destruction.

209R  Disposal of surrendered goods

                   All goods surrendered under section 209N must be dealt with and disposed of in accordance with the directions of the CEO.

Subdivision GCPost‑importation permission

209S  Definitions

             (1)  In this Subdivision:

application period, for goods that have been detained under section 209U, means the period that, in accordance with subparagraph 209X(1)(d)(i), is specified in the detention notice identifying the goods.

detention notice means a notice of the kind mentioned in section 209X.

grant period, for goods that have been detained under section 209U, means the period that, in accordance with subparagraph 209X(1)(d)(ii), is specified in the detention notice identifying the goods.

             (2)  If regulations made under section 50 provide that the importation of goods is prohibited unless a licence, permission, consent, approval or other document (however described) is granted or given, then the licence, permission, consent, approval or other document is a required permission to import the goods.

209T  Application of Subdivision

                   This Subdivision applies to goods that are prohibited imports of a kind prescribed by regulations made for the purposes of this section.

209U  Power to detain goods

             (1)  An officer of Customs may, instead of seizing goods under section 203B, detain the goods if:

                     (a)  the goods have been imported without one or more required permissions to import the goods having been granted or given; and

                     (b)  any other conditions or restrictions specified in regulations made under section 50 in respect of the importation of the goods have been complied with; and

                     (c)  the officer has reasonable grounds to believe that:

                              (i)  the goods have not been concealed from Customs by the person who imported them; and

                             (ii)  no application for any of the required permissions to import the goods has previously been refused; and

                     (d)  if the goods are accompanied personal or household effects of the person—the person:

                              (i)  has been informed by the officer, in writing, of the available options for dealing with the goods and the consequences of exercising each of those options; and

                             (ii)  has indicated to Customs, in writing, that he or she has applied, or intends to apply, for each of the required permissions to import the goods that have not already been granted or given.

             (2)  Without limiting the meaning of concealed in subparagraph (1)(c)(i), a person is taken to have concealed goods from Customs if the person was required to give information about the goods to Customs in accordance with section 71, 71K or 71L and the person failed to do so.

209V  Detained goods to be secured

             (1)  In this section:

approved place, in relation to goods detained under section 209U, means a place approved by a Collector as a place for the storage of goods of that kind.

             (2)  If an officer of Customs detains goods under section 209U, the officer must, as soon as practicable, take those goods to an approved place.

209W  Requirement to serve detention notice

             (1)  If an officer of Customs detains goods under section 209U, the officer must serve, within 7 days after the day on which the goods were detained, a detention notice on:

                     (a)  the owner of the goods; or

                     (b)  if the owner cannot be identified after reasonable inquiry—the person in whose possession or under whose control the goods were when they were detained.

             (2)  The notice must be in writing and must be served:

                     (a)  personally or by post; or

                     (b)  if no person of the kind referred to in paragraph (1)(a) or (b) can be identified after reasonable inquiry—by publishing a copy of the notice in a newspaper circulating in the location in which the goods were detained.

             (3)  A detention notice may be served on a person who is outside Australia.

209X  Matters to be dealt with in detention notices

             (1)  A detention notice must set out the following:

                     (a)  a statement identifying the goods;

                     (b)  the day on which the goods were detained;

                     (c)  the ground, or each of the grounds, on which the goods were detained;

                     (d)  a statement that the goods will be taken to be seized if:

                              (i)  written evidence of the making of an application for each required permission to import the goods that was not granted, or given, by the time the goods were imported is not provided to Customs by the end of a specified period (the application period); or

                             (ii)  not all of the required permissions to import the goods are granted, or given, by the end of a specified period (the grant period); or

                            (iii)  during the application period or the grant period, the owner of the goods notifies Customs, in writing, that an application for a required permission to import the goods has been refused;

                     (e)  a statement that, if the goods are taken to be seized because written evidence is not provided to Customs by the end of the application period, the goods will be taken to be seized on the day after the end of the application period;

                      (f)  a statement that, if the goods are taken to be seized because not all of the required permissions to import the goods are granted, or given, by the end of the grant period, the goods will be taken to be seized on the day after the end of the grant period;

                     (g)  a statement that, if the goods are taken to be seized because during the application period or the grant period the owner of the goods notifies Customs, in writing, that an application for a required permission to import the goods has been refused, the goods will be taken to be seized on the day after Customs is so notified;

                     (h)  the ground, or each of the grounds, on which the goods will be taken to be seized;

                      (i)  a statement that, if the goods are taken to be seized and a claim for the return of the goods has not already been made, and is not made within 30 days after the day the goods are taken to be seized, the goods will be taken to be condemned as forfeited to the Crown;

                      (j)  if the notice is to be served in a foreign country—a statement that the person served, if that person has not yet made a claim for the return of the goods, may not make such a claim unless he or she has first appointed in writing an agent in Australia with authority to accept service of documents, including process in any proceedings arising out of the matter.

             (2)  The application period specified in a detention notice under subparagraph (1)(d)(i) must be the period that:

                     (a)  starts on the day that the notice is served; and

                     (b)  ends 30 days, or such other period as is prescribed by the regulations, after that day.

             (3)  The grant period specified in a detention notice under subparagraph (1)(d)(ii) must be the period that:

                     (a)  starts on the day written evidence of the making of an application for a required permission to import the goods is first provided to Customs; and

                     (b)  ends 30 days, or such other period as is prescribed by the regulations, after the first day on which written evidence of the making of an application for all of the required permissions to import the goods that were not granted, or given, by the time the goods were imported has been provided to Customs.

209Y  Effect of detaining goods

                   While goods are detained under section 209U:

                     (a)  an application for a required permission to import the goods may be made; and

                     (b)  a required permission to import the goods may be granted or given;

despite the goods having already been imported.

209Z  Evidence not provided or permission not granted or given

             (1)  This section applies if:

                     (a)  goods have been detained under section 209U; and

                     (b)  a detention notice identifying the goods has been served; and

                     (c)  any of the following apply:

                              (i)  written evidence of the making of an application for each required permission to import the goods that was not granted, or given, by the time the goods were imported has not been provided to Customs by the end of the application period for the goods;

                             (ii)  not all of the required permissions to import the goods have been granted, or given, by the end of the grant period for the goods;

                            (iii)  during the application period, or the grant period, for the goods, the owner of the goods has notified Customs, in writing, that an application for a required permission to import the goods has been refused.

             (2)  If the goods are at an approved place within the meaning of section 209V, they cease to be detained under section 209U and are taken to be seized under section 203B on:

                     (a)  if, during the application period, the owner of the goods notified Customs, in writing, that an application for a required permission to import the goods was refused—the day after Customs was so notified; or

                     (b)  if paragraph (a) does not apply and written evidence of the making of an application for each required permission to import the goods that was not granted, or given, by the time the goods were imported was not provided to Customs by the end of the application period—the day after the end of the application period; or

                     (c)  if paragraphs (a) and (b) do not apply and, during the grant period, the owner of the goods notified Customs, in writing, that an application for a required permission to import the goods was refused—the day after Customs was so notified; or

                     (d)  if paragraphs (a), (b) and (c) do not apply and not all of the required permissions to import the goods were granted, or given, by the end of the grant period—the day after the end of the grant period.

             (3)  The detention notice is also taken to be a seizure notice that:

                     (a)  is in accordance with section 205A; and

                     (b)  was served:

                              (i)  under section 205 by the responsible person; and

                             (ii)  on the day the goods are taken to be seized.

209ZA  Evidence provided and permission granted or given

             (1)  This section applies if:

                     (a)  goods have been detained under section 209U; and

                     (b)  a detention notice identifying the goods has been served; and

                     (c)  written evidence of the making of an application for each required permission to import the goods that was not granted, or given, by the time the goods were imported has been provided to Customs by the end of the application period for the goods; and

                     (d)  all of the required permissions to import the goods have been granted, or given, on or before the end of the grant period for the goods.

             (2)  An officer of Customs must return the goods to the owner.

             (3)  At the time the last required permission to import the goods is granted or given, the goods cease to be prohibited imports.

             (4)  Proceedings cannot be brought for an offence against this Act in relation to the importation of the goods.

209ZB  Service by post

                   For the purposes of the application of section 29 of the Acts Interpretation Act 1901 to the service by post of a detention notice under this Subdivision on a person, such a notice posted as a letter addressed to that person at the last address of that person known to the sender is taken to be properly addressed.

209ZC  Liability for detention of goods

                   Neither the Commonwealth nor an officer or other person is under any liability in relation to the detention of any goods under this Subdivision for which there was reasonable cause.

Subdivision HArrest and related matters

210  Power of arrest without warrant

             (1)  An officer of Customs or police may without warrant arrest a person if the officer believes on reasonable grounds that:

                     (a)  the person has committed or is committing one or more of the following offences:

                              (i)  an offence against subsection 33(1) or 33(5);

                             (ii)  an offence against section 33C, 231 or 233;

                            (iii)  an offence against subsection 233BAA(4) or (5), 233BAB(5) or (6), 233BABAB(1), 233BABAC(1) or 233BABAD(1) or (2);

                            (iv)  an offence against section 72.13 or Division 307 of the Criminal Code;

                             (v)  an offence against section 308.2 of the Criminal Code where the substance involved in the offence is reasonably suspected of having been imported into Australia, or being intended for export from Australia, in contravention of this Act;

                            (vi)  an offence against section 147.1, 147.2 or 149.1 of the Criminal Code in relation to an officer of Customs; and

                     (b)  proceedings by summons against the person would not achieve one or more of the following purposes:

                              (i)  ensuring the appearance of the person before a court in respect of the offence;

                             (ii)  preventing a repetition or continuation of the offence or the commission of another offence;

                            (iii)  preventing the concealment, loss or destruction of evidence relating to the offence;

                            (iv)  preventing harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence;

                             (v)  preventing the fabrication of evidence in respect of the offence;

                            (vi)  preserving the safety or welfare of the person.

             (2)  A person commits an offence if the person resists, obstructs or prevents the arrest of any person under this section.

Penalty:  10 penalty units.

             (3)  If:

                     (a)  a person has been arrested for an offence under subsection (1); and

                     (b)  before the person is charged with the offence, the officer of Customs or police in charge of the investigation ceases to believe on reasonable grounds:

                              (i)  that the person committed the offence; or

                             (ii)  that holding the person in custody is necessary to achieve a purpose referred to in paragraph (1)(b);

the person must be released.

             (4)  An officer of Customs or police may without warrant arrest a person whom he or she believes on reasonable grounds has escaped from lawful custody to which the person is still liable under this Subdivision.

210A  Use of force in making arrest

             (1)  An officer of Customs or police must not, in the course of arresting a person under section 210, use more force, or subject the person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the person after the arrest.

             (2)  Without limiting the operation of subsection (1), an officer of Customs or police must not, in the course of arresting a person under section 210, do anything that is likely to cause the death of, or grievous bodily harm to, the person unless:

                     (a)  the officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the officer); or

                     (b)  if the person is attempting to escape arrest by fleeing:

                              (i)  the officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the officer); and

                             (ii)  the person has, if practicable, been called on to surrender and the officer believes on reasonable grounds that the person cannot be apprehended in any other manner.

210B  Person to be informed of grounds of arrest

             (1)  An officer of Customs or police who arrests a person under section 210 must inform the person, at the time of the arrest, of the offence for which the person is being arrested.

             (2)  It is sufficient if the person is informed of the substance of the offence, and it is not necessary that this be done in language of a precise or technical nature.

             (3)  Subsection (1) does not apply to the arrest of the person if:

                     (a)  the person should, in the circumstances, know the substance of the offence for which he or she is being arrested; or

                     (b)  the person’s actions make it impracticable for the officer to inform the person of the offence for which he or she is being arrested.

211  Power to conduct a frisk search of an arrested person

                   An officer of Customs or police who arrests a person under section 210, or who is present at such an arrest, may, if the officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying any seizable items:

                     (a)  conduct a frisk search of the person at or soon after the time of arrest; and

                     (b)  seize any seizable items found as a result of the search.

211A  Power to conduct an ordinary search of an arrested person

                   An officer of Customs or police who arrests a person under section 210, or who is present at such an arrest, may, if the officer suspects on reasonable grounds that the person is carrying:

                     (a)  evidential material in relation to the offence for which the person is arrested or another offence; or

                     (b)  a seizable item;

conduct an ordinary search of the person at or soon after the time of arrest, and seize any such thing found as a result of the search.

212  How arrested person to be dealt with

                   An officer of Customs who arrests a person under section 210 must ensure that the person is either:

                     (a)  delivered into the custody of a police officer; or

                     (b)  taken before a magistrate or bail justice;

as soon as practicable to be dealt with according to law.

213  Requirement to provide name etc.

             (1)  An officer of Customs or police may request a person arrested under section 210 to provide his or her name or address, or name and address, to the officer if the person’s name or address is, or name and address are, unknown to the officer.

             (2)  A person commits an offence if:

                     (a)  an officer of Customs or police:

                              (i)  has made a request of a person under subsection (1); and

                             (ii)  has complied with any request that the person has made under paragraph (4)(b); and

                     (b)  the person refuses or fails to comply with the request, or gives a name or address that is false in a material particular.

Penalty:  5 penalty units.

             (3)  Subsection (2) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

             (4)  An officer of Customs or police commits an offence if:

                     (a)  the officer makes a request of a person under subsection (1); and

                     (b)  the person requests the officer to provide to the person:

                              (i)  his or her name or the address of his or her place of duty; or

                             (ii)  his or her name and that address; or

                            (iii)  if he or she is not in uniform and it is practicable for the officer to provide the evidence—evidence that he or she is an officer; and

                     (c)  the officer refuses or fails to comply with the request, or gives a name or address that is false in a material particular.

Penalty:  5 penalty units.

Subdivision HAInformation about people working in restricted areas or issued with security identification cards

213A  Providing Customs with information about people working in restricted areas

             (1)  A person who employs or engages a restricted area employee must, within 7 days after doing so, provide to an authorised officer the required identity information in respect of the employee.

             (2)  If a person (the employer):

                     (a)  employs or engages another person after the commencement of this section; and

                     (b)  at a later time the other person becomes a restricted area employee of the employer;

the employer must, within 7 days after that later time, provide to an authorised officer the required identity information in respect of the employee.

             (3)  If:

                     (a)  a person (the employer) employed or engaged another person before the commencement of this section; and

                     (b)  the other person is a restricted area employee of the employer; and

                     (c)  an authorised officer suspects on reasonable grounds that the other person has committed, or is likely to commit, an offence against a law of the Commonwealth;

the authorised officer may, in writing, request the employer to provide to the authorised officer, within 7 days after receiving the request, the required identity information in respect of the employee. The employer must comply with the request.

             (4)  A person does not comply with an obligation under subsection (1), (2) or (3) to provide information unless the person provides the information:

                     (a)  in writing; or

                     (b)  in such other form as the CEO determines in writing.

             (5)  A person commits an offence if the person fails to comply with subsection (1), (2) or (3).

Penalty:  30 penalty units.

             (6)  Subsection (5) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (7)  In this section:

required identity information, in relation to a person, means any one or more of the following:

                     (a)  the name and address of the person;

                     (b)  the person’s date and place of birth;

                     (c)  any other information prescribed by the regulations.

restricted area employee means a person whose duties include working in an area covered by a notice under subsection 234AA(3), but does not include a person who is issued with a security identification card.

security identification card means a card of a kind specified in the regulations.

213B  Providing Customs with information about people issued with security identification cards

             (1)  If a person has issued a security identification card to another person in respect of an airport appointed under section 15, an issuing authority in relation to the card must, within 7 days after the card is issued, provide to an authorised officer the required identity information in respect of the other person.

             (2)  If:

                     (a)  before the commencement of this section, a person issued a security identification card to another person in respect of an airport appointed under section 15; and

                     (b)  an authorised officer suspects on reasonable grounds that the other person has committed, or is likely to commit, an offence against a law of the Commonwealth;

the authorised officer may, in writing, request an issuing authority in relation to the card to provide to the authorised officer, within 7 days after receiving the request, the required identity information in respect of the other person. The issuing authority must comply with the request.

          (2A)  If a person has issued a security identification card to another person in respect of an airport appointed under section 15, an authorised officer may, at any time, in writing, request an issuing authority in relation to the card to provide to the authorised officer, within 7 days after receiving the request, information for the purposes of updating required identity information previously provided in respect of the other person under subsection (1) or this subsection. The issuing authority must comply with the request.

          (2B)  If a security identification card expires or is revoked, an issuing authority in relation to the card must notify an authorised officer of the expiry or revocation within 7 days after it occurs.

             (3)  A person does not comply with an obligation under subsection (1), (2), (2A) or (2B) to provide information unless the person provides the information:

                     (a)  in writing; or

                     (b)  in such other form as the CEO determines in writing.

             (4)  In this section:

issuing authority, in relation to a security identification card, means any of the following:

                     (a)  the person who issued the card;

                     (b)  a person who is authorised to perform the functions, or exercise the powers, of the person who issued the card.

required identity information has the meaning given by section 213A.

security identification card has the meaning given by section 213A.

Subdivision JGeneral powers to monitor and audit

214AA  Occupier of premises

                   In this Subdivision:

occupier of premises includes a person who is apparently in charge of the premises.

214AB  What are monitoring powers?

Monitoring powers

             (1)  For the purposes of this Subdivision, the following are monitoring powers:

                     (a)  the power to search premises;

                     (b)  the power to take photographs (including a video recording), or make sketches, of premises or anything at premises;

                     (c)  the power to inspect, examine, count, measure, weigh, gauge, test or analyse, and take samples of, anything in or on premises;

                     (d)  the power to inspect any document or record in or on premises;

                     (e)  the power to take extracts from, or make copies of, any document or record in or on premises;

                      (f)  the power to take into or onto premises any equipment or material reasonably necessary for the purpose of exercising a power under paragraph (a), (b), (c), (d) or (e);

                     (g)  the power to test and operate record‑keeping, accounting, computing or other operating systems of any kind that are at premises and may be used to generate or record information or documents of a kind that may be communicated to Customs;

                     (h)  the power to secure a thing that:

                              (i)  is found during a search of premises; and

                             (ii)  a monitoring officer believes on reasonable grounds affords evidence of the commission of an offence against a Customs‑related law and may be lost, destroyed or tampered with;

                            until a warrant is obtained to seize the thing or 72 hours elapses after the securing of the thing, whichever first occurs;

                      (i)  the powers in subsections (2) and (3).

Power to operate equipment to check information

             (2)  For the purposes of this Subdivision, monitoring powers include the power to operate equipment at premises to see whether:

                     (a)  the equipment; or

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

                              (i)  is at the premises; and

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

contains information that is relevant to assessing:

                     (c)  whether a person is complying with a Customs‑related law; or

                     (d)  whether a person’s record‑keeping, accounting, computing or other operating systems of any kind accurately record and generate information to enable compliance with a Customs‑related law; or

                     (e)  the correctness of information communicated by a person to Customs (whether in documentary or other form).

Power to copy information found by operating equipment

             (3)  For the purposes of this Subdivision, monitoring powers include the following powers in relation to information described in subsection (2) that is found in the exercise of the power under that subsection:

                     (a)  the power to operate facilities at the premises to put the information in documentary form and copy the documents so produced;

                     (b)  the power to operate facilities at the premises to transfer the information to a disk, tape or other storage device:

                              (i)  that is brought to the premises for the exercise of the power; or

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

                     (c)  the power to remove from the premises a disk, tape or other storage device to which the information has been transferred in exercise of the power under paragraph (b).

214AC  Monitoring officers

Who is a monitoring officer?

             (1)  A monitoring officer is an officer who is authorised by the CEO under this section to enter premises and exercise monitoring powers (whether the authorisation applies generally, during a specified period or in or on specified premises).

Who may be authorised to be a monitoring officer

             (2)  The CEO must not authorise an officer to enter premises and exercise monitoring powers unless the CEO is satisfied that the officer is suitably qualified, because of the officer’s abilities and experience, to exercise those powers.

Authorising officers to exercise monitoring powers

             (3)  The CEO may authorise in writing an officer to enter premises and exercise monitoring powers:

                     (a)  generally; or

                     (b)  during a specified period; or

                     (c)  in or on specified premises; or

                     (d)  during a specified period in or on specified premises.

Availability of assistance and use of force in exercising monitoring powers

             (4)  In entering premises and exercising monitoring powers:

                     (a)  a monitoring officer may obtain such assistance; and

                     (b)  a monitoring officer or a person assisting a monitoring officer may use such force against things;

as is necessary and reasonable in the circumstances.

Monitoring powers to be used only as authorised

             (5)  This Subdivision does not allow:

                     (a)  an officer who is authorised to enter premises and exercise monitoring powers during a specified period to enter the premises or exercise the powers at a time outside that period; or

                     (b)  an officer who is authorised to enter, and exercise monitoring powers in or on, specified premises to enter, or to exercise the powers in or on, other premises.

214ACA  Monitoring officer to notify occupier of premises of the occupier’s rights and obligations

                   Before exercising monitoring powers in respect of premises, a monitoring officer must give to the occupier of the premises a written notice setting out the occupier’s rights and obligations under this Subdivision.

214AD  Notice of proposal to exercise monitoring powers

                   Before seeking consent under section 214AE to enter premises and exercise monitoring powers there, a monitoring officer may give to the occupier of the premises written notice stating that the officer wishes to enter the premises and exercise monitoring powers and specifying the period from the giving of the notice during which the officer wishes to exercise the powers.

Note:          If the occupier had, before a notice is given under section 214AD, made to Customs a statement that was false or misleading, a voluntary notification made by the occupier after the notice is given is not a defence to a prosecution for an offence against section 243T or 243U in respect of the statement.

214AE  Exercise of monitoring powers with consent

             (1)  A monitoring officer may enter, and exercise monitoring powers in or on, premises to the extent that it is reasonably necessary for the purpose of assessing:

                     (a)  whether a person is complying with a Customs‑related law; or

                     (b)  whether a person’s record‑keeping, accounting, computing or other operating systems of any kind accurately record and generate information to enable compliance with a Customs‑related law; or

                     (c)  the correctness of information communicated by a person to Customs (whether in documentary or other form).

             (2)  However, a monitoring officer must not enter premises under this section unless the occupier of the premises has consented to the monitoring officer entering, and exercising monitoring powers in or on, the premises.

             (3)  Before obtaining such a consent, a monitoring officer must tell the occupier of the premises that he or she can refuse consent.

             (4)  A consent may be expressed to be limited to entry to, and the exercise of monitoring powers in or on, the premises to which the consent relates during a particular period unless the consent is withdrawn before the end of that period.

             (5)  A consent that is not limited as mentioned in subsection (4) has effect in relation to any entry to, and any exercise of monitoring powers in or on, the premises to which the consent relates until the consent is withdrawn.

             (6)  Before a monitoring officer enters premises or exercises any monitoring powers, he or she must produce his or her identity card to the occupier.

             (7)  A monitoring officer must leave the premises if the occupier withdraws the consent.

             (8)  A consent, or a withdrawal of consent, does not have effect unless the consent or withdrawal is in writing.

214AF  Exercise of monitoring powers under a warrant

             (1)  A monitoring officer may apply to a magistrate for a warrant under this section in relation to particular premises.

             (2)  The magistrate must issue a warrant if satisfied, by information on oath or affirmation, that it is reasonably necessary that the monitoring officer should have access to the premises for the purpose of assessing:

                     (a)  whether a person is complying with a Customs‑related law; or

                     (b)  whether a person’s record‑keeping, accounting, computing or other operating systems of any kind accurately record and generate information to enable compliance with a Customs‑related law; or

                     (c)  the correctness of information communicated by a person to Customs (whether in documentary or other form).

             (3)  If the magistrate requires further information about the grounds on which the issue of the warrant is applied for, he or she must not issue the warrant until the monitoring officer or someone else has given the magistrate the further information, either orally (on oath or affirmation) or by affidavit.

             (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

                     (c)  name the monitoring officer who is responsible for executing the warrant; and

                     (d)  authorise any monitoring officer named in the warrant to enter the premises and exercise monitoring powers from time to time while the warrant remains in force, with such assistance, and using such force against things, as are necessary and reasonable; 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 warrant in respect of premises in another State or Territory.

214AG  Warrants may be granted by telephone or other electronic means

             (1)  A monitoring officer may apply to a magistrate for a warrant in relation to premises by telephone, telex, fax or other electronic means (of any kind):

                     (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 application for a warrant under section 214AF but the application may, if necessary, be made before the information is sworn.

             (4)  The magistrate must complete and sign the same form of warrant used under section 214AF as soon as he or she:

                     (a)  has considered the information included in the application under this section, and the further information (if any) required by him or her; and

                     (b)  is satisfied that:

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

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

             (5)  If the magistrate decides to issue the warrant, the magistrate is to tell the applicant, by telephone, telex, fax or other electronic means, of the terms of the warrant and the day and time when 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 and time when the warrant was signed.

             (7)  The applicant must give or send 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. The applicant must do so not later than the day after the earlier of the following days:

                     (a)  the day of expiry of the warrant;

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

             (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.

214AH  Monitoring officer may ask questions

             (1)  If a monitoring officer is in or on premises that he or she entered with the consent of the occupier of the premises, the officer may request the occupier to answer any questions put by the monitoring officer, but the occupier is not obliged to comply with the request.

             (2)  If a monitoring officer is in or on premises that he or she has entered under a warrant issued under section 214AF or 214AG, the officer may require any person on the premises to answer any questions put by the monitoring officer.

Note:          Failure to answer a question put under this subsection may be an offence. See section 243SA.

214AI  Monitoring officer may ask for assistance

             (1)  If a monitoring officer is in or on premises that he or she entered with the consent of the occupier of the premises under section 214AE, the officer may request the occupier to provide reasonable assistance to the officer at any time while the officer is entitled to remain in or on the premises, but the occupier is not obliged to comply with the request.

             (2)  If a monitoring officer is in or on premises that he or she entered under a warrant issued under section 214AF or 214AG, the officer may require the occupier to provide reasonable assistance to the officer at any time while the officer is entitled to remain on the premises.

             (3)  The monitoring officer may request or require the assistance for the purpose of the exercise of monitoring powers by the officer in relation to the premises.

             (4)  A person must not fail to comply with a requirement made of the person under subsection (2).

Penalty:  30 penalty units.

             (5)  An offence against subsection (4) is an offence of strict liability.

214AJ  Compensation for damage to electronic equipment

             (1)  This section applies if:

                     (a)  damage is caused to equipment as a result of it being operated as mentioned in subsection 214AB(2); or

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

because:

                     (c)  insufficient care was exercised in selecting the person who was to operate the equipment; or

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

             (2)  The Commonwealth must pay to the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as they agree on.

             (3)  However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings against the Commonwealth 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 or the occupier’s employees and agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

             (5)  Compensation is payable out of money appropriated by the Parliament.

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

214B  Powers of officers for purposes of Customs Tariff (Anti‑Dumping) Act 1975

             (1)  For the purposes of the Customs Tariff (Anti‑Dumping) Act 1975 an authorized officer may, at all reasonable times, enter premises where there are kept any accounts, books or other records relating to goods exported to Australia or manufactured or produced, or sold, in Australia and may inspect any such accounts, books, documents or other records and make and retain copies of, or take and retain extracts from, any such accounts, books, documents or other records.

             (2)  Where an authorized officer proposes to enter any premises under subsection (1), he or she shall, if requested to do so by the occupier or person in charge of the premises, produce for inspection written evidence of the fact that he or she is an authorized officer and, if he or she fails to do so, he or she is not authorized to enter the premises.

             (3)  The occupier or person in charge of premises referred to in subsection (1) shall provide the authorized officer with all reasonable facilities and assistance for the effective exercise of his or her powers under subsection (1).

Penalty:  10 penalty units.

             (4)  An authorized officer may, by notice signed by him or her, require a person whom he or she believes to be capable of giving information that is relevant to the operation of the Customs Tariff (Anti‑Dumping) Act 1975 and relates to goods exported to Australia or manufactured or produced, or sold, in Australia to attend before him or her at the time and place specified in the notice and there to answer questions and produce to him or her such accounts, books, documents or other records in relation to goods exported to Australia or manufactured or produced, or sold, in Australia as are referred to in the notice.

             (5)  An authorized officer may make and retain copies of, or take and retain extracts from, any accounts, books, documents or other records produced in pursuance of subsection (4).

             (6)  A person is not excused from answering a question or producing any accounts, books, documents or other records when required to do so under subsection (4) on the grounds that the answer to the question, or the production of the accounts, books, documents or other records, might tend to incriminate the person or make him or her liable to a penalty, but the person’s answer to any such question or the production by him or her of any such accounts, books, documents or other records is not admissible in evidence against him or her in proceedings other than proceedings for an offence against this section or proceedings in respect of the falsity of any such answer.

             (7)  An authorized officer may examine, on oath or affirmation, a person attending before him or her in pursuance of subsection (4) and, for that purpose, may administer an oath or affirmation to that person.

             (8)  The oath or affirmation to be made by a person for the purposes of subsection (7) is an oath or affirmation that the answers he or she will give to questions asked of him or her will be true.

             (9)  A person shall not refuse or fail:

                     (a)  to attend before an authorized officer; or

                     (b)  to make an oath or an affirmation; or

                     (c)  to answer a question or produce an account, book, document or other record;

when so required in pursuance of this section.

Penalty:  10 penalty units.

           (10)  Subsection (9) does not apply if the person has a reasonable excuse.

Subdivision JAPowers to monitor and audit—Australia‑United States Free Trade Agreement

214BAA  Simplified outline

                   The following is a simplified outline of this Subdivision:

     This Subdivision allows certain officers (verification officers) to enter premises, and to exercise certain powers (AUSFTA verification powers) in or on the premises, for the purpose of verifying information relating to the export, production or transportation of textile and clothing goods that are exported to the US.

     However, verification officers may only enter premises under this Subdivision with the occupier’s consent.

     In entering premises and exercising AUSFTA verification powers, verification officers may be accompanied by US customs officials, but only with the occupier’s consent.

214BAB  Definitions

                   In this Subdivision:

Agreement means the Australia‑United States Free Trade Agreement done at Washington DC on 18 May 2004, as amended from time to time.

Note:          In 2004 the text of the Agreement was accessible through the website of the Department of Foreign Affairs and Trade.

AUSFTA verification powers has the meaning given by section 214BAC.

Harmonized System has the same meaning as in section 153YA.

occupier of premises includes a person who is apparently in charge of the premises.

textile and clothing goods means goods that are classified to:

                     (a)  subheading 4202.12, 4202.22, 4202.32 or 4202.92 of Chapter 42 of the Harmonized System; or

                     (b)  any of Chapters 50 to 63 of the Harmonized System; or

                     (c)  heading 7019 of Chapter 70 of the Harmonized System; or

                     (d)  subheading 9409.90 of Chapter 94 of the Harmonized System.

US means the United States of America.

US customs official means a person representing the customs administration of the US.

verification officer means a person authorised under section 214BAD to enter premises and to exercise AUSFTA verification powers.

214BAC  AUSFTA verification powers

             (1)  For the purposes of this Subdivision, the following are the AUSFTA verification powers:

                     (a)  the power to search premises;

                     (b)  the power to take photographs (including a video recording), or make sketches, of premises or anything at premises;

                     (c)  the power to inspect, examine, count, measure, weigh, gauge, test or analyse, and take samples of, anything in or on premises;

                     (d)  the power to inspect any document or record in or on premises;

                     (e)  the power to take extracts from, or make copies of, any document or record in or on premises;

                      (f)  the power to take into or onto premises any equipment or material reasonably necessary for the purpose of exercising a power under paragraph (a), (b), (c), (d) or (e);

                     (g)  the power to test and operate record‑keeping, accounting, computing or other operating systems of any kind that are at premises and may be used to generate or record information or documents of a kind that may be communicated to Customs;

                     (h)  the powers in subsections (2) and (3).

Operation of equipment

             (2)  For the purposes of this Subdivision, the AUSFTA verification powers include the power to operate equipment at premises to see whether:

                     (a)  the equipment; or

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

                              (i)  is at the premises; and

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

contains information that is relevant to the verification of information relating to the export, production or transportation of textile and clothing goods that are exported to the US.

Removing documents and disks etc.

             (3)  For the purposes of this Subdivision, the AUSFTA verification powers include the following powers in relation to information described in subsection (2) that is found in the exercise of the power under that subsection:

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

                     (b)  the power to operate equipment or other facilities at the premises to transfer the information to a disk, tape or other storage device:

                              (i)  that is brought to the premises for the exercise of the power; or

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

                            and to remove the disk, tape or other storage device from the premises.

214BAD  Appointment of verification officers

             (1)  The CEO may, by writing, authorise an officer to enter premises, and to exercise AUSFTA verification powers in or on premises, for the purposes of this Subdivision.

Who may be authorised to be a verification officer

             (2)  The CEO must not do so unless the CEO is satisfied that the officer is suitably qualified, because of the officer’s abilities and experience, to exercise AUSFTA verification powers.

Form of authorisation

             (3)  An authorisation may apply:

                     (a)  generally; or

                     (b)  dur