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..... 8
183UC................... Comptroller‑General of Customs may give directions concerning the exercise of powers under this Division............................................................................................ 8
183UD.................. Judges who may issue seizure warrants for goods in transit 8
Subdivision B—General regulatory powers 8
186........................ General powers of examination of goods subject to customs control 8
186AA.................. General powers of examination of goods loaded onto or unloaded from ships or aircraft 9
186A..................... Power to make copies of, and take extracts from, documents in certain circumstances 12
186B...................... Compensation for damage caused by copying.................. 13
187........................ Power to board and search................................................ 13
188........................ Boarding........................................................................... 14
189........................ Searching.......................................................................... 14
189A..................... Officers may carry arms in certain circumstances............. 15
190........................ Securing goods................................................................. 17
191........................ Seals etc. not to be broken................................................ 17
192........................ Seals etc. on ship or aircraft in port bound to another port within Commonwealth 17
193........................ Officers may enter and remain upon coasts etc................. 18
194........................ Ships on service may be moored in any place................... 19
195........................ Power to question passengers etc..................................... 20
195A..................... Power to question persons found in restricted areas......... 20
196C...................... Power to question persons claiming packages.................. 21
197........................ Power to stop conveyances about to leave a Customs place 22
Subdivision C—Search warrants in respect of things believed to be evidential material 23
198........................ When search warrants relating to premises can be issued. 23
199........................ The things that are authorised by a search warrant relating to premises 25
199A..................... When search warrants relating to persons can be issued... 28
199B...................... The things that are authorised by a search warrant relating to a person 29
200........................ Use of equipment to examine or process things................ 32
201........................ Use of electronic equipment on or in premises................. 33
201AA.................. Use of electronic equipment at other place........................ 36
201A..................... Person with knowledge of a computer or a computer system to assist access etc. 37
201B...................... Accessing data held on other premises—notification to occupier of that premises 39
202........................ Compensation for damage to equipment or data............... 39
202A..................... Copies of seized things to be provided............................. 40
202B...................... Relationship of this Subdivision to parliamentary privileges and immunities 41
Subdivision D—Seizure of goods believed to be forfeited goods 41
203........................ When seizure warrants for forfeited goods can be issued. 41
203A..................... The things that are authorised by seizure warrants for forfeited goods 44
203B...................... Seizure without warrant of special forfeited goods, or of evidential material relating to special forfeited goods, at a Customs place............................................................ 45
203C...................... Seizure without warrant of narcotic goods or of evidential material relating to narcotic goods at other places.......................................................................................... 48
203CA................... Seizure without warrant of certain goods on ship or aircraft in the Protected Zone 49
203CB................... Seizure without warrant of certain other goods in the Protected Zone 50
203D..................... How an authorised person is to exercise certain powers... 52
Subdivision DA—Seizure of certain goods in transit 52
203DA.................. When seizure warrants for goods in transit can be issued. 52
203DB................... The things that are authorised by seizure warrants for goods in transit 54
Subdivision E—Provisions applicable both to search and seizure warrants 55
203E...................... Conduct of ordinary searches and frisk searches.............. 55
203F...................... Announcement before entry.............................................. 55
203G..................... Details of warrant to be given to occupier......................... 55
203H..................... Occupier entitled to be present during search or seizure... 56
203HA.................. Requirement to provide name or address etc..................... 57
203J....................... Availability of assistance and use of force in executing a warrant 58
203K...................... Specific powers available to executing officers................. 59
203L...................... Use of animals in executing a warrant.............................. 60
203M..................... Warrants by telephone or other electronic means.............. 60
203N..................... Receipts for things seized under warrant.......................... 61
203P...................... Offence for making false statements in warrants.............. 62
203Q..................... Offences relating to telephone warrants............................ 62
Subdivision F—Dealing with things seized as evidential material 63
203R...................... Retention of things seized as evidential material............... 63
203S...................... Magistrate may permit a thing seized as evidential material to be retained 63
Subdivision G—Dealing with goods seized as forfeited goods 64
203SA................... Subdivision does not apply to seized transit goods........... 64
203T...................... Seizure of protected objects.............................................. 65
204........................ Seized goods to be secured............................................... 65
205........................ Requirement to serve seizure notices................................ 66
205A..................... Matters to be dealt with in seizure notices......................... 67
205B...................... Claim for return of goods seized....................................... 68
205C...................... Treatment of goods seized if no claim for return is made.. 69
205D..................... Treatment of goods seized if a claim for return is made—general 69
205E...................... Magistrate may permit goods seized to be retained........... 73
205EA................... Treatment of goods seized if a claim for return is made—suspected prohibited psychoactive substances.......................................................................................... 74
205EB................... Extending the period for instituting proceedings for recovery of suspected prohibited psychoactive substances.......................................................................................... 75
205EC................... Proceedings for recovery of suspected prohibited psychoactive substances 76
205F...................... Right of compensation in certain circumstances for goods disposed of or destroyed 77
205G..................... Effect of forfeiture............................................................ 77
206........................ Immediate disposal of certain goods................................. 78
207........................ Immediate disposal of narcotic goods............................... 80
208........................ Release of goods on security............................................ 81
208C...................... Service by post................................................................. 82
208D..................... Disposal of forfeited goods.............................................. 83
208DA.................. Disposal of narcotic‑related goods other than narcotic goods 83
208E...................... Sales subject to conditions................................................ 85
209........................ Power to impound certain forfeited goods and release them on payment of duty and penalty 85
209A..................... Destruction or concealment of evidential material or forfeited goods 87
Subdivision GA—Dealing with goods in transit seized under a section 203DA warrant 88
209B...................... Subdivision applies to seized transit goods....................... 88
209C...................... Seized goods to be secured............................................... 88
209D..................... Requirement to serve seizure notices................................ 88
209E...................... Matters to be dealt with in seizure notices......................... 89
209F...................... Application for return of seized goods.............................. 89
209G..................... Status of goods seized if no application for return is made 90
209H..................... Right of compensation for certain goods disposed of or destroyed 90
209I....................... Effect of forfeiture............................................................ 91
209J....................... Immediate disposal of unsafe goods................................. 91
209K...................... Disposal of forfeited goods.............................................. 93
209L...................... Service by post................................................................. 93
Subdivision GB—Surrender of prescribed prohibited imports 93
209M..................... Application of Subdivision............................................... 93
209N..................... Surrender of goods........................................................... 93
209P...................... Effect of surrender............................................................ 94
209Q..................... Right of compensation in certain circumstances for goods disposed of or destroyed 94
209R...................... Disposal of surrendered goods......................................... 95
Subdivision GC—Post‑importation permission 95
209S...................... Definitions........................................................................ 95
209T...................... Application of Subdivision............................................... 96
209U..................... Power to detain goods...................................................... 96
209V..................... Detained goods to be secured........................................... 97
209W..................... Requirement to serve detention notice............................... 97
209X..................... Matters to be dealt with in detention notices..................... 97
209Y..................... Effect of detaining goods.................................................. 99
209Z...................... Evidence not provided or permission not granted or given 99
209ZA................... Evidence provided and permission granted or given....... 101
209ZB................... Service by post............................................................... 101
209ZC................... Liability for detention of goods....................................... 102
Subdivision H—Arrest and related matters 102
210........................ Power of arrest without warrant..................................... 102
210A..................... Use of force in making arrest.......................................... 103
210B...................... Person to be informed of grounds of arrest.................... 104
211........................ Power to conduct a frisk search of an arrested person.... 104
211A..................... Power to conduct an ordinary search of an arrested person 105
212........................ How arrested person to be dealt with.............................. 105
213........................ Requirement to provide name etc.................................... 105
Subdivision HA—Information about people working in restricted areas or issued with security identification cards 106
213A..................... Providing an authorised officer with information about people working in restricted areas 106
213B...................... Provision of information about people issued with security identification cards 108
Subdivision J—General powers to monitor and audit 109
214AA.................. Occupier of premises...................................................... 109
214AB................... What are monitoring powers?......................................... 110
214AC................... Monitoring officers......................................................... 112
214ACA................ Monitoring officer to notify occupier of premises of the occupier’s rights and obligations 113
214AD.................. Notice of proposal to exercise monitoring powers.......... 113
214AE................... Exercise of monitoring powers with consent.................. 113
214AF................... Exercise of monitoring powers under a warrant............. 114
214AG.................. Warrants may be granted by telephone or other electronic means 116
214AH.................. Monitoring officer may ask questions............................ 117
214AI.................... Monitoring officer may ask for assistance...................... 117
214AJ.................... Compensation for damage to electronic equipment......... 118
214B...................... Powers of officers for purposes of Customs Tariff (Anti‑Dumping) Act 1975 119
Subdivision JA—Powers to monitor and audit—Australia‑United States Free Trade Agreement 121
214BAA................ Simplified outline............................................................ 121
214BAB................ Definitions...................................................................... 121
214BAC................ AUSFTA verification powers........................................ 122
214BAD................ Appointment of verification officers............................... 124
214BAE................ Verification officers may enter premises and exercise AUSFTA verification powers with consent 125
214BAF................ US customs officials may accompany verification officers 127
214BAG................ Availability of assistance in exercising AUSFTA verification powers 127
214BAH................ Verification officer may ask questions............................ 128
214BAI................. Verification officer may ask for assistance..................... 128
214BAJ................. Verification officer may disclose information to US....... 128
214BAK................ Operation of electronic equipment at premises................ 128
214BAL................ Compensation for damage to electronic equipment......... 128
Subdivision K—Miscellaneous 130
214BA................... Nature of functions of magistrate under sections 203S and 205E 130
215........................ Collector may impound documents................................. 130
217........................ Translations of foreign invoices...................................... 130
218........................ Samples.......................................................................... 131
218A..................... Disposal of certain abandoned goods............................. 131
Division 1B—Detention and search of suspects 133
Subdivision A—Detention and frisk search of suspects 133
219L...................... Detention for frisk search............................................... 133
219M..................... Frisk search.................................................................... 134
219N..................... Power to require the production of things....................... 135
219P...................... Persons to whom section 219R applies.......................... 135
Subdivision B—Detention and external search of suspects 135
219Q..................... Detention for external search.......................................... 135
219R...................... External search................................................................ 136
219RAA................ Videotape record may be made of external search.......... 140
Subdivision C—Detention and internal search of persons suspected of internally concealing substances etc. 141
219RA................... Certain Judges and Magistrates eligible to give orders under this Subdivision 141
219S...................... Initial detention............................................................... 141
219SA................... Internal non‑medical scan using prescribed equipment... 142
219SB................... Seeking detention order following invitation to consent to internal non‑medical scan 142
219T...................... Initial order for detention................................................ 143
219U..................... Renewal of order for detention....................................... 144
219V..................... Arrangement for internal medical search......................... 145
219W..................... Detention under this Subdivision.................................... 148
219X..................... Detainee becoming in need of protection........................ 149
219Y..................... Applications for orders under this Subdivision.............. 150
219Z...................... Internal medical search by medical practitioner............... 151
Subdivision CA—Prescribed equipment for external searches and internal non‑medical scans 152
219ZAA................ Use of prescribed equipment for external search or internal non‑medical scan 152
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 158
219ZA................... Detention officers........................................................... 158
219ZB................... Detention places.............................................................. 158
219ZC................... Detention under this Division......................................... 159
219ZD................... Detainees not fluent in English....................................... 160
219ZE.................... Release from, or cessation of, detention.......................... 160
Subdivision E—Medical practitioners 161
219ZF.................... Conduct of internal medical search................................. 161
219ZG................... Medical practitioner may take action to preserve detainee’s life 162
219ZH................... Medical practitioner to answer questions and prepare report 162
219ZJ.................... Proceedings against medical practitioners....................... 163
Division 1BA—Detention and search of persons for purposes of law enforcement co‑operation 164
Subdivision A—Preliminary 164
219ZJA................. Definitions...................................................................... 164
219ZJAA.............. Prescribed State or Territory offences............................. 164
Subdivision B—Powers to detain 165
219ZJB.................. Detention of person suspected of committing serious Commonwealth offence or prescribed State or Territory offence............................................................................ 165
219ZJC.................. Detention of person subject to warrant or bail condition. 166
219ZJCA............... Detention of person for national security or security of a foreign country 167
Subdivision C—Matters affecting detention generally 168
219ZJD................. Search of person detained under this Division................ 168
219ZJE.................. Comptroller‑General of Customs must give directions about detaining persons under this Division 170
219ZJF.................. Detainees to be given reasons for detention and shown identification on request 170
219ZJG................. Use of force in relation to detention................................ 170
219ZJH................. Moving detained persons................................................ 171
219ZJI................... Detainees not fluent in English....................................... 171
219ZJJ................... Detention of minors........................................................ 171
Division 1C—Judges and Magistrates 174
219ZK................... Nature of functions of Judge or Magistrate.................... 174
219ZL.................... Protection of Judge or Magistrate................................... 174
Division 2—Protection to officers 176
220........................ Reasonable cause for seizure a bar to action................... 176
221........................ Notice of action to be given............................................ 176
222........................ Defect in notice not to invalidate..................................... 176
223........................ No evidence to be produced but that contained in notice. 177
224........................ Officer may tender amends............................................. 177
225........................ Commencement of proceedings against officers............. 177
226........................ Time for commencing action........................................... 177
227........................ Security may be required................................................ 178
Division 3—Evidence 179
227AA.................. Evidence may be used in prosecutions etc...................... 179
Part XIIA—Special provisions relating to prohibited items 180
227A..................... Overview of Part............................................................ 180
227B...................... Definitions...................................................................... 180
227C...................... Ships and aircraft to which this Part applies................... 180
227D..................... Items to which this Part applies...................................... 182
227E...................... Approved storage for prohibited items........................... 182
227F...................... Officer may take custody of items.................................. 183
227G..................... Compensation for damage etc. to items........................... 184
Part XIII—Penal Provisions 186
Division 1—Forfeitures 186
228........................ Forfeited ships and aircraft............................................. 186
228A..................... Forfeited resources installations...................................... 188
228B...................... Forfeited sea installations................................................ 188
228C...................... Forfeited offshore electricity installations....................... 189
229........................ Forfeited goods............................................................... 189
229A..................... Proceeds of drug trafficking liable to forfeiture.............. 191
230........................ Forfeited packages and goods......................................... 195
Division 2—Penalties 196
231........................ Assembly for unlawful purposes.................................... 196
232A..................... Rescuing goods and assaulting officers.......................... 196
233........................ Smuggling and unlawful importation and exportation.... 197
233A..................... Master not to use or allow use of ship for smuggling etc. 198
233AB................... Penalties for offences against sections 233 and 233A.... 198
233BAA................ Special offence relating to tier 1 goods........................... 199
233BAB................ Special offence relating to tier 2 goods........................... 201
233BABAA.......... UN‑sanctioned goods..................................................... 205
233BABAB.......... Special offences for importation of UN‑sanctioned goods 206
233BABAC.......... Special offences for exportation of UN‑sanctioned goods 209
233BABAD.......... Offences involving tobacco products.............................. 211
233BABAE........... Offence for bringing restricted goods into Australia....... 213
233BABAF........... Using information held by the Commonwealth.............. 214
233BABA............. Protection from criminal responsibility........................... 215
233BAC................ Evidence relating to approval for import or export.......... 215
233BA................... Evidence of Analyst........................................................ 216
233C...................... Offence for giving false or misleading information in relation to UN‑sanctioned goods 217
234........................ Customs offences........................................................... 219
234AA.................. Places set aside for purposes of Act............................... 221
234A..................... Unauthorised entry to places and on ships, aircraft or wharves 222
234AB................... Unauthorised use of cameras and sound recorders......... 224
234ABA................ Officers may direct unauthorised persons to leave restricted areas 226
236........................ Aiders and abettors......................................................... 226
237........................ Attempts......................................................................... 226
239........................ Penalties in addition to forfeitures................................... 226
240........................ Commercial documents to be kept.................................. 227
240AA.................. Authorised officer may require person to produce commercial documents 231
240AB................... Verifying communications to Department...................... 232
240AC................... Authorised officer may require person to produce record 234
Division 3—Recovery of pecuniary penalties for dealings in narcotic goods 235
243A..................... Interpretation................................................................... 235
243AB................... Effective control of property........................................... 238
243B...................... Pecuniary penalties......................................................... 239
243C...................... Assessment of pecuniary penalty.................................... 240
243CA................... Court may lift corporate veil etc...................................... 243
243D..................... Presumption of illegality of importation.......................... 244
243E...................... Court may make restraining order against property........ 245
243F...................... Court may make further orders....................................... 248
243G..................... Official Trustee to discharge pecuniary penalty.............. 252
243H..................... Revocation of order under section 243E......................... 256
243J....................... Pecuniary penalty a charge on property.......................... 257
243K...................... Contravention of restraining orders................................ 258
243L...................... Sale of property before bankruptcy................................. 259
243M..................... Duties of the Official Trustee after receiving notice of presentation of creditor’s petition etc. 260
243N..................... Protection of Official Trustee from personal liability in certain cases 261
243NA.................. Indemnification of Official Trustee................................. 262
243NB................... Indemnification of Official Receivers etc........................ 263
243P...................... Costs etc. payable to Official Trustee.............................. 263
243Q..................... Notices............................................................................ 264
243R...................... Reduction of pecuniary penalty....................................... 264
243S...................... Jurisdiction of the Court................................................. 265
Division 4—Provisions relating to certain strict liability offences 266
243SA................... Failure to answer questions............................................ 266
243SB................... Failure to produce documents or records........................ 267
243SC................... Preservation of the privilege against self‑incrimination... 267
243T...................... False or misleading statements resulting in loss of duty. 267
243U..................... False or misleading statements not resulting in loss of duty 271
243V..................... False or misleading statements in cargo reports or outturn reports 274
243W..................... Electronic communications to Department to be treated as statements to Comptroller‑General of Customs........................................................................................ 275
Division 5—Infringement notices 276
243X..................... Infringement notices—general........................................ 276
243Y..................... Infringement notices—forfeiture of goods that are prohibited imports if infringement notice paid 276
243Z...................... Infringement notices—right of compensation in certain circumstances for goods disposed of or destroyed........................................................................................ 277
Part XIV—Customs prosecutions 278
244........................ Meaning of Customs prosecution................................... 278
245........................ Institution of prosecutions.............................................. 278
247........................ Prosecutions in accordance with practice rules............... 279
248........................ State Court practice......................................................... 279
249........................ Commencement of prosecutions..................................... 279
250........................ Information to be valid if in words of Act...................... 279
250A..................... Property in goods subject to customs control................. 280
251........................ No objection for informality........................................... 280
252........................ Conviction not to be quashed.......................................... 280
253........................ Protection to witnesses................................................... 280
254........................ Defendant competent witness......................................... 281
255........................ Averment of prosecutor sufficient.................................. 281
256........................ Proof of proclamation etc................................................ 282
257........................ Conduct by directors, employees or agents..................... 282
259........................ Collector may levy on goods in his or her possession.... 283
261........................ Imprisonment not to release penalty................................ 283
263........................ Parties may recover costs................................................ 284
264........................ Application of penalties.................................................. 284
Part XV—Tenders for rights to enter goods for home consumption at concessional rates 285
265........................ Interpretation................................................................... 285
266........................ Tender schemes.............................................................. 285
267........................ Undertakings relating to tenders..................................... 286
268........................ Transfers of rights to enter goods for home consumption at concessional rates of duty 288
269........................ Revocation or variation of undertaking........................... 289
269A..................... Recovery of penalties...................................................... 289
Part XVA—Tariff concession orders 290
Division 1—Preliminary 290
269B...................... Interpretation................................................................... 290
269C...................... Interpretation—core criteria............................................ 292
269D..................... Interpretation—goods produced in Australia.................. 292
269E...................... Interpretation—the ordinary course of business............. 293
Division 2—Making and processing TCO applications 295
269F...................... Making a TCO application.............................................. 295
269FA................... The applicant’s obligation............................................... 296
269G..................... Withdrawing a TCO application..................................... 296
269H..................... Screening the application................................................ 297
269HA.................. Comptroller‑General of Customs may reject a TCO application in relation to goods referred to in section 269SJ.................................................................. 298
269J....................... Applications taken to be lodged in certain circumstances 298
269K...................... Processing a valid application......................................... 299
269L...................... Amendment of TCO applications................................... 300
269M..................... Comptroller‑General of Customs may invite submissions or seek other information, documents or material........................................................................................ 302
269N..................... Reprocessing of TCO applications................................. 303
Division 3—Making and operation of TCOs 306
269P...................... The making of a standard TCO....................................... 306
269Q..................... The making of a TCO for goods requiring repair........... 307
269R...................... Notification of TCO decisions........................................ 308
269S...................... Operation of TCOs......................................................... 308
269SA................... Consequence of commencement or cessation of production before TCO decision 309
Division 4—Revocation of TCOs 310
269SB................... Request for revocation of TCOs..................................... 310
269SC................... Processing requests for revocation of TCOs.................. 311
269SD................... Revocation at the initiative of Comptroller‑General of Customs 312
269SE.................... Notification of revocation decisions................................ 315
269SF.................... Comptroller‑General of Customs may seek information, documents or material relating to revocation 315
269SG................... Effect of revocation on goods in transit and capital equipment on order 316
Division 5—Miscellaneous 318
269SH................... Internal review................................................................ 318
269SHA................ Administrative Appeals Tribunal Review of reconsideration decisions 321
269SJ.................... TCOs not to apply to goods described by reference to their end use or certain goods 322
269SK................... TCOs not to contravene international agreements........... 323
Part XII—Officers
Division 1—Powers of officers
Subdivision A—Preliminary
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 subparagraph (a)(i) 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 subparagraph (a)(ii) or paragraph (b) 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
(da) in relation to the exercise of powers under section 203CA or 203CB:
(i) an officer of Customs; or
(ii) a maritime officer who is exercising maritime powers under the Maritime Powers Act 2013 in relation to a ship or aircraft to which section 203CA of this Act applies; or
(iii) an officer of police; or
(iv) a member of the Defence Force; 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.
communication in transit means a communication (within the meaning of the Telecommunications Act 1997) passing over a telecommunications network (within the meaning of that Act).
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 the Commonwealth for use for the purposes of the Customs Acts; or
(a) a port, airport or wharf that is appointed, and the limits of which are fixed, under section 15; or
(aaa) a place to which a ship or aircraft has been brought because of stress of weather or other reasonable cause as mentioned in subsection 58(1), while that ship or aircraft remains at that place; 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 approved in an instrument under subsection (2) 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), (aaa), (b), (c), (d), (g) or (h).
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:
(a) goods described as forfeited to the Crown under:
(i) section 228, 228A, 228B, 228C, 229, 229A or 230 of this Act; or
(ii) section 7, 10, 11 or 13 of the Commerce (Trade Descriptions) Act 1905; or
(b) tobacco forfeited to the Crown under paragraph 116(1)(aa) of the Excise Act 1901 in respect of an offence committed against a provision in Subdivision 308‑A in Schedule 1 to the Taxation Administration Act 1953.
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.
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 or 361 of the Criminal Code; or
(d) an offence against a provision in Subdivision 308‑A in Schedule 1 to the Taxation Administration Act 1953.
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 Comptroller‑General of Customs to assist in executing the warrant.
premises includes a place, a conveyance or a container.
prohibited psychoactive substance means a psychoactive substance (within the meaning of Part 9.2 of the Criminal Code) that:
(a) is not a substance to which subsection 320.2(2) of the Criminal Code applies; and
(b) has been imported into Australia.
prohibited serious drug alternative means a substance:
(a) the presentation of which includes an express or implied representation that the substance is a serious drug alternative (within the meaning of Part 9.2 of the Criminal Code); and
(b) that is not a substance to which subsection 320.3(3) of the Criminal Code applies; and
(c) that has been imported into Australia.
recently used conveyance, in relation to a search of a person, means a conveyance that the person had operated or occupied at any time within 24 hours before the search commenced.
search warrant means a warrant issued under section 198 or 199A.
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.
serious offence has the same meaning as in Part IAA of the Crimes Act 1914.
special forfeited goods means:
(a) forfeited goods referred to in paragraph 229(1)(a) that:
(i) are narcotic goods; or
(ii) are a prohibited psychoactive substance; or
(iii) are a prohibited serious drug alternative; or
(iv) consist of a border controlled precursor; or
(b) forfeited goods referred to in paragraph 229(1)(b), (da), (e), (n) or (na).
telecommunications facility means a facility within the meaning of the Telecommunications Act 1997.
terrorist act has the meaning given by section 100.1 of the Criminal Code.
warrant premises means premises in relation to which a search warrant or a seizure warrant is in force.
(2) For the purposes of paragraph (f) of the definition of Customs place in subsection (1), the Comptroller‑General of Customs may, by legislative instrument, approve a place as a place for the examination of international mail.
(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 or 361 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 or 361 of the Criminal Code is taken to be an offence against that Division.
183UB Law relating to legal professional privilege not affected
This Division does not affect the law relating to legal professional privilege.
183UC Comptroller‑General of Customs may give directions concerning the exercise of powers under this Division
The Comptroller‑General of Customs may, by legislative instrument, give directions 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 Comptroller‑General of Customs concerning the exercise of those powers.
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 B—General regulatory powers
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 customs control, 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 customs control under section 31 do not cease to be subject to customs control merely because they are removed from a ship or aircraft in the course of an examination under this section.
186AA General powers of examination of goods loaded onto or unloaded from ships or aircraft
(1) This section applies in relation to the following:
(a) a ship or aircraft in respect of a voyage or flight to a place in Australia from a place outside Australia;
(b) a ship or aircraft in respect of a voyage or flight to a place outside Australia from a place in Australia.
Goods to be loaded onto the ship or aircraft
(2) If:
(a) an officer has reason to believe that goods are to be loaded onto the ship or aircraft at an examinable place; and
(b) the goods are to be unloaded at another examinable place on the same voyage or flight;
then:
(c) any officer may, subject to subsections (5) and (6), examine the goods while the goods are at the examinable place mentioned in paragraph (a); and
(d) the goods are subject to customs control while the goods are being so examined.
Goods unloaded from the ship or aircraft
(3) If:
(a) goods are loaded onto the ship or aircraft at an examinable place; and
(b) the goods are unloaded from the ship or aircraft at another examinable place on the same voyage or flight;
then:
(c) any officer may, subject to subsections (5) and (6), examine the goods while the goods are at the examinable place mentioned in paragraph (b); and
(d) the goods are subject to customs control while the goods are being so examined.
Rules relating to examination of goods
(4) The expense of an examination referred to in subsection (2) or (3), including the cost of removal to the place of examination, is to be borne by the owner of the goods.
(5) In the exercise of the power to examine goods, 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 goods.
(6) Without limiting subsection (5), 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.
No limit on other provisions
(7) This section does not:
(a) limit the application of any other provision of this Act that provides for goods to be subject to customs control; and
(b) limit the application of any other provision of this Act that provides for the examination of goods.
Definition
(8) In this section:
examinable place means the following:
(a) a port or airport in Australia (whether the first port or airport or any subsequent port or airport on the same voyage or flight);
(b) a place to which a ship or aircraft has been brought because of stress of weather or other reasonable cause as mentioned in subsection 58(1);
(c) a place that is the subject of a permission under subsection 58(2).
186A Power to make copies of, and take extracts from, documents in certain circumstances
(1) If:
(a) a document is examined under section 186 or 186AA; 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
An officer may:
(a) board any ship or aircraft; or
(b) board any Australian resources installation:
(i) that is subject to customs control; or
(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 customs control; or
(c) board a resources installation (other than an Australian resources installation) in respect of which permission under section 5A has been granted; or
(d) board any Australian sea installation:
(i) that is subject to customs control; or
(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 customs control; or
(e) board a sea installation (other than an Australian sea installation) in respect of which permission under section 5B has been granted; or
(ea) board any Australian offshore electricity installation:
(i) that is subject to customs control; or
(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 customs control; or
(eb) board an overseas offshore electricity installation in respect of which permission under section 5BA has been granted; or
(f) search any ship or aircraft or an installation of the kind referred to in paragraph (b), (c), (d), (e), (ea) or (eb); or
(g) secure any goods on any ship or aircraft or on any installation of the kind referred to in paragraph (b), (c), (d), (e), (ea) or (eb).
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: 30 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 Comptroller‑General of Customs, 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 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) The Comptroller‑General of Customs may, by legislative instrument, give directions 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 Comptroller‑General of Customs 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 under subsection (6) 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 authorised under subsection (7) to use approved firearms and approved items of personal defence equipment issued by an authorised arms issuing officer for the purpose specified in paragraph (1)(a).
(6) The Comptroller‑General of Customs may, by writing, authorise an officer of Customs to exercise the powers or perform the functions of an authorised arms issuing officer under this section.
(7) The Comptroller‑General of Customs may, by writing, authorise an officer of Customs to use approved firearms and approved items of personal defence equipment issued by an authorised arms issuing officer for the purpose specified in paragraph (1)(a).
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 customs control.
Penalty: 60 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 commit an offence against this Act.
Penalty: 60 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 Australian Border Force (within the meaning of the Australian Border Force Act 2015) 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), (e), (ea) or (eb); 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: 30 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 customs control 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 commits 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: 60 penalty units.
(7) This offence is an offence of strict liability.
Subdivision C—Search warrants in respect of things believed to be evidential material
198 When search warrants relating to premises 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 the Commonwealth.
199 The things that are authorised by a search warrant relating to premises
(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.
(4A) A warrant that is in force in relation to premises authorises the executing officer or a person assisting:
(a) to use:
(i) a computer, or data storage device, found in the course of a search authorised under the warrant; or
(ii) a telecommunications facility operated or provided by the Commonwealth or a carrier; or
(iii) any other electronic equipment; or
(iv) a data storage device;
for the purpose of obtaining access to data (the relevant data) that is held in the computer or device mentioned in subparagraph (i) at any time when the warrant is in force, in order to determine whether the relevant data is evidential material of a kind specified in the warrant; and
(b) if necessary to achieve the purpose mentioned in paragraph (a)—to add, copy, delete or alter other data in the computer or device mentioned in subparagraph (a)(i); and
(c) if, having regard to other methods (if any) of obtaining access to the relevant data which are likely to be as effective, it is reasonable in all the circumstances to do so:
(i) to use any other computer or a communication in transit to access the relevant data; and
(ii) if necessary to achieve that purpose—to add, copy, delete or alter other data in the computer or the communication in transit; and
(d) to copy any data to which access has been obtained, and that:
(i) appears to be relevant for the purposes of determining whether the relevant data is evidential material of a kind specified in the warrant; or
(ii) is evidential material of a kind specified in the warrant; and
(e) to do any other thing reasonably incidental to any of the above.
Note: As a result of the warrant, a person who, by means of a telecommunications facility, obtains access to data stored in a computer etc. will not commit an offence under Part 10.7 of the Criminal Code or equivalent State or Territory laws (provided that the person acts within the authority of the warrant).
(4B) Subsection (4A) does not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to:
(a) materially interfere with, interrupt or obstruct:
(i) a communication in transit; or
(ii) the lawful use by other persons of a computer;
unless the addition, deletion or alteration, or the doing of the thing, is necessary to do one or more of the things specified in the warrant; or
(b) cause any other material loss or damage to other persons lawfully using a computer.
(4C) It is immaterial whether a thing mentioned in subsection (4A) is done:
(a) at the warrant premises; or
(b) at any other place.
(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.
199A When search warrants relating to persons can be issued
(1) A judicial officer may issue a warrant authorising an ordinary search or a frisk search of a person if the judicial officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that the person has in the person’s possession, or will within the next 72 hours have in the person’s possession, any computer, or data storage device, that is evidential material.
(2) If the person applying for the warrant has, at any time previously, applied for a warrant under this section relating to the same person, the person applying for the warrant 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) the name or description of the person to whom the warrant relates; and
(c) the name of the authorised person who, unless the 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 (4)); and
(e) whether the warrant may be executed at any time or only during particular hours.
(4) The time stated in the warrant under paragraph (3)(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.
(5) The judicial officer is also to state, in a warrant in relation to a person:
(a) that the warrant authorises the seizure of a computer or data storage device found, in the course of the search, on or in the possession of the person or in a recently used conveyance, if the executing officer or a person assisting believes on reasonable grounds that:
(i) the computer or device is evidential material in relation to an offence to which the warrant relates; and
(ii) the seizure of the computer or device is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and
(b) the kind of search of a person that the warrant authorises.
(6) Paragraph (3)(d) and subsection (4) do not prevent the issue of successive warrants in relation to the same person.
199B The things that are authorised by a search warrant relating to a person
(1) A warrant that is in force in relation to a person (the target person) authorises the executing officer or person assisting:
(a) to search:
(i) the target person as specified in the warrant; and
(ii) any recently used conveyance;
for computers or data storage devices of the kind specified in the warrant; and
(b) to:
(i) seize computers or data storage devices of that kind; or
(ii) record fingerprints from computers or data storage devices; or
(iii) to take samples for forensic purposes from computers or data storage devices;
found in the course of the search; and
(c) to seize other things found on or in the possession of the target person or in the conveyance in the course of the search that the executing officer or person assisting believes on reasonable grounds to be:
(i) prohibited goods that are unlawfully carried by the target person; or
(ii) seizable items.
(2) A warrant that is in force in relation to a person (the target person) authorises the executing officer or a person assisting:
(a) to use:
(i) a computer, or data storage device, found in the course of a search authorised under the warrant; or
(ii) a telecommunications facility operated or provided by the Commonwealth or a carrier; or
(iii) any other electronic equipment; or
(iv) a data storage device;
for the purpose of obtaining access to data (the relevant data) that is held in the computer or device mentioned in subparagraph (i) at any time when the warrant is in force, in order to determine whether the relevant data is evidential material of a kind specified in the warrant; and
(b) if necessary to achieve the purpose mentioned in paragraph (a)—to add, copy, delete or alter other data in the computer or device mentioned in subparagraph (a)(i); and
(c) if, having regard to other methods (if any) of obtaining access to the relevant data which are likely to be as effective, it is reasonable in all the circumstances to do so:
(i) to use any other computer or a communication in transit to access the relevant data; and
(ii) if necessary to achieve that purpose—to add, copy, delete or alter other data in the computer or the communication in transit; and
(d) to copy any data to which access has been obtained, and that:
(i) appears to be relevant for the purposes of determining whether the relevant data is evidential material of a kind specified in the warrant; or
(ii) is evidential material of a kind specified in the warrant; and
(e) to do any other thing reasonably incidental to any of the above.
Note: As a result of the warrant, a person who, by means of a telecommunications facility, obtains access to data stored in a computer etc. will not commit an offence under Part 10.7 of the Criminal Code or equivalent State or Territory laws (provided that the person acts within the authority of the warrant).
(3) Subsection (2) does not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to:
(a) materially interfere with, interrupt or obstruct:
(i) a communication in transit; or
(ii) the lawful use by other persons of a computer;
unless the addition, deletion or alteration, or the doing of the thing, is necessary to do one or more of the things specified in the warrant; or
(b) cause any other material loss or damage to other persons lawfully using a computer.
(4) It is immaterial whether a thing mentioned in subsection (2) is done:
(a) in the presence of the target person; or
(b) at any other place.
(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 the target person, a search of the target person different from that so authorised must not be done under the warrant.
200 Use of equipment to examine or process things
(1) The executing officer of a warrant in relation to premises, 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 warrant premises, or a thing found during a search under a warrant that is in force in relation to a person, 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) for a thing found at warrant premises—the occupier of the premises consents in writing; or
(c) for a thing found during a search under a warrant that is in force in relation to a person—the person 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 person referred to in paragraph (2)(b) or (c) (as the case requires) of the address of the place and the time at which the examination or processing will be carried out; and
(b) allow that person 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 whichever of the following is applicable:
(a) if the thing is a computer or data storage device—30 days;
(b) otherwise—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 the time applicable under subsection (3A) or that time as previously extended.
(3C) The executing officer must give notice of the application to the person referred to in paragraph (2)(b) or (c) (as the case requires), and that person is entitled to be heard in relation to the application.
(3D) If the thing is a computer or data storage device, a single extension cannot exceed 14 days.
(4) The executing officer of a warrant in relation to premises, 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 Comptroller‑General of Customs 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 Comptroller‑General of Customs must arrange for:
(c) the removal of the data from any device subject to customs control; and
(d) the destruction of any other reproduction of the data subject to customs control.
(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.
201AA Use of electronic equipment at other place
(1) If electronic equipment is moved to another place under subsection 200(2), the executing officer or a person assisting may operate the equipment to access data (including data held at another place).
(2) If the executing officer or person assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes evidential material, the executing officer or person assisting may copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device.
(3) If the Comptroller‑General of Customs is satisfied that the data is not required (or is no longer required) for:
(a) investigating an offence against a law of the Commonwealth, a State or a Territory; or
(b) judicial proceedings or administrative review proceedings; or
(c) investigating or resolving a complaint under the Ombudsman Act 1976 or the Privacy Act 1988;
the Comptroller‑General of Customs must arrange for:
(d) the removal of the data from any device subject to customs control; and
(e) the destruction of any other reproduction of the data subject to customs control.
(4) If the executing officer or a person assisting, after operating the equipment, finds that evidential material is accessible by doing so, the executing officer or person assisting may:
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the material can be put in documentary form—put the material in that form and seize the documents so produced.
(5) The executing officer or a person assisting may seize equipment under paragraph (4)(a) only if:
(a) it is not practicable to copy the data as mentioned in subsection (2) or to put the material in documentary form as mentioned in paragraph (4)(b); or
(b) possession of the equipment by the person referred to in paragraph 200(2)(b) or (c) (as the case requires) could constitute an offence.
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 or data storage device that:
(i) is on warrant premises; or
(ii) has been seized under this Subdivision; or
(iii) is found in the course of an ordinary search of a person, or a frisk search of a person, authorised by a search warrant;
(b) copy data held in, or accessible from, a computer, or data storage device, described in paragraph (a) to another data storage device;
(c) convert into documentary form or another form intelligible to an executing officer:
(i) data held in, or accessible from, a computer, or data storage device, described in paragraph (a); or
(ii) data held in a data storage device to which the data was copied as described in paragraph (b).
(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 or data storage device; 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 device; or
(iii) an employee of the owner or lessee of the computer or device; or
(iv) a person engaged under a contract for services by the owner or lessee of the computer or device; or
(v) a person who uses or has used the computer or device; or
(vi) a person who is or was a system administrator for the system including the computer or device; and
(c) the specified person has relevant knowledge of:
(i) the computer or device or a computer network of which the computer or device forms or formed a part; or
(ii) measures applied to protect data held in, or accessible from, the computer or device.
Offences
(3) A person commits an offence if:
(a) the person is subject to an order under this section; and
(b) the person is capable of complying with a requirement in the order; and
(c) the person omits to do an act; and
(d) the omission contravenes the requirement.
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
(4) A person commits an offence if:
(a) the person is subject to an order under this section; and
(b) the person is capable of complying with a requirement in the order; and
(c) the person omits to do an act; and
(d) the omission contravenes the requirement; and
(e) the offence to which the relevant warrant relates is a serious offence.
Penalty for contravention of this subsection: Imprisonment for 10 years or 600 penalty units, or both.
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) or 201AA(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) or 201AA(2) or (4)—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, 201 or 201AA; 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 201AA(4)(a); or
(b) possession by the occupier of the document, film, computer file, thing or information could constitute an offence.
202B Relationship of this Subdivision to parliamentary privileges and immunities
To avoid doubt, this Subdivision does not affect the law relating to the powers, privileges and immunities of any of the following:
(a) each House of the Parliament;
(b) the members of each House of the Parliament;
(c) the committees of each House of the Parliament and joint committees of both Houses of the Parliament.
Subdivision D—Seizure 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 an infringement notice might be given for 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) the ship is outside the territorial sea of a foreign country; and
(b) the ship could be boarded under the Maritime Powers Act 2013; and
(c) the ship is exempt from any provision of the Customs Acts under subsection 30A(3) of this Act or the voyage of the ship is exempt from any such provision under subsection 30A(5) of this Act.
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) the aircraft has landed in Australia as a result of a maritime officer requiring the person in charge of the aircraft to land the aircraft under subsection 55(7) of the Maritime Powers Act 2013; and
(b) in the case of an Australian aircraft—the requirement is made when the aircraft is over anywhere except a foreign country; and
(c) in the case of an aircraft that is not an Australian aircraft—the requirement is made when the aircraft is over Australia; and
(d) the flight of the aircraft is exempt from any provision of the Customs Acts under subsection 30A(5) of this Act.
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 section 203C of this Act and subparagraph 67(1)(b)(ii) of the Maritime Powers Act 2013.
(4) If, in the course of searching the ship or aircraft, 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)(c) or (2)(d) 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 section 203C of this Act and subparagraph 67(1)(b)(ii) of the Maritime Powers Act 2013.
(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 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 DA—Seizure 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 E—Provisions 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), 199A(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, fax 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, 199A, 203 or 203DA.
(5) If the judicial officer decides to issue the warrant, the judicial officer is to inform the applicant, by telephone, telex, fax 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 F—Dealing 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 G—Dealing 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‑General of Customs 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 customs control.
(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) the effect of sections 205B and 205C; and
(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 subsections (1A) and (1B), 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 subsection 243Y(1).
(1B) Subsection (1A) ceases to apply in relation to the goods if subsection 243Y(1) ceases to apply in relation to the goods because of the operation of subsection 243Y(4).
(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—the Comptroller‑General of Customs; 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
(1) 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
(c) at the end of 30 days after the day the notice was served, no claim has been made for the return of the goods and subsection 205B(1A) has not applied in relation to the goods;
the goods are taken to be condemned as forfeited to the Crown.
(2) 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
(c) an infringement notice for an offence in relation to the importation of the goods has been given; and
(d) 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
(e) the infringement notice is withdrawn and, as a result, subsection 205B(1A) ceases to apply in relation to the goods; and
(f) at the end of 30 days after the day notice of the withdrawal of the infringement notice is given to the person, no claim has been made for the 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—general
(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) before the end of the 30‑day period referred to in paragraph 205C(1)(c) or (2)(f), a claim is made under section 205B for return of the goods.
(1A) However, this section does not apply in relation to goods seized on the belief or suspicion that they are a prohibited psychoactive substance.
(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 subsection 243Y(1); 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.
(2A) Paragraph (2)(aa) ceases to apply in relation to the goods if subsection 243Y(1) ceases to apply in relation to the goods because of the operation of subsection 243Y(4).
(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:
(a) it is necessary 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) 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.
(4) This section does not apply in relation to goods seized on the belief or suspicion that they are a prohibited psychoactive substance.
205EA Treatment of goods seized if a claim for return is made—suspected prohibited psychoactive substances
(1) This section applies 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 seized on belief or suspicion that they are a prohibited psychoactive substance; and
(c) a claim for the return of the goods may be made under section 205B; and
(d) 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
(b) not later than 30 days after the day the claim is made, the Comptroller‑General of Customs gives the claimant a written notice stating that the goods will be condemned as forfeited if the claimant does not, within 30 days after receiving the notice, institute proceedings against the Commonwealth:
(i) to recover the goods; or
(ii) for a declaration that the goods are not forfeited.
(3) A notice under paragraph (2)(b):
(a) must be served personally or by post; and
(b) may be served on a person who is outside Australia.
(4) The goods are condemned as forfeited to the Crown if:
(a) the claimant does not institute proceedings of a kind referred to in paragraph (2)(b) within the period of 30 days after receiving the notice under that paragraph (or within that period as extended, or further extended, under section 205EB); or
(b) the claimant institutes such proceedings within that period (or within that period as extended or further extended), and at the end of the proceedings there is not:
(i) an order for the claimant to recover the goods; or
(ii) an order for the Commonwealth to pay the claimant the market value of the goods at the time they were disposed of or destroyed, if they have been disposed of or destroyed before the end of the proceedings; or
(iii) a declaration that the goods are not forfeited.
(5) For the purposes of subsection (4), if the proceedings go to judgment, they end:
(a) at the end of the period for lodging an appeal against the judgment, if no appeal is lodged within that period; or
(b) when the appeal lapses or is finally determined, if an appeal is lodged against the judgment within that period.
(6) 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.
205EB Extending the period for instituting proceedings for recovery of suspected prohibited psychoactive substances
(1) A person who has been given a notice under paragraph 205EA(2)(b) in relation to goods may, before the end of the applicable period under paragraph 205EA(4)(a), apply to a magistrate for an extension, or a further extension, of the period.
(2) If the magistrate is satisfied that:
(a) it is necessary that the retention of the goods continue while information is assembled relating to whether the goods are a prohibited psychoactive substance; and
(b) there has been no avoidable delay in assembling that information;
the magistrate may order that the period be extended, or further extended, for a period specified in the order.
205EC Proceedings for recovery of suspected prohibited psychoactive substances
(1) Proceedings of a kind referred to in paragraph 205EA(2)(b) may be instituted or continued even if the goods to which the proceedings relate are disposed of or destroyed.
(2) In proceedings of a kind referred to in paragraph 205EA(2)(b):
(a) the Commonwealth bears the onus of proving that the goods to which the proceedings relate were imported; and
(b) the person instituting the proceedings bears the onus of proving that the goods:
(i) are not a psychoactive substance; or
(ii) are a substance to which, because of subsection 320.2(2) of the Criminal Code, section 320.2 of the Criminal Code does not apply.
(3) If:
(a) the goods to which proceedings of a kind referred to in paragraph 205EA(2)(b) relates have been disposed of or destroyed before the end of the proceedings; and
(b) the court hearing the proceedings decides that, apart from the disposal or destruction, it would have ordered that the goods be returned to a person;
the court must order the Commonwealth to pay the person an amount equal to the market value of the goods at the time they were disposed of or destroyed.
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 or recovery 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 before the end of the 30‑day period referred to in paragraph 205C(1)(c) or (2)(f) (as the case may be).
(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 Comptroller‑General of Customs 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 Comptroller‑General of Customs 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 Comptroller‑General of Customs is satisfied that the retention of the goods would constitute a danger to public health or safety;
the Comptroller‑General of Customs 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 Comptroller‑General of Customs is satisfied that the vessel is so unseaworthy that its custody or maintenance is impracticable;
the Comptroller‑General of Customs may cause the goods to be dealt with in such manner as he or she considers appropriate (including the destruction of the goods).
Prohibited psychoactive substances, tobacco products and prohibited serious drug alternatives
(2A) If:
(a) goods are seized under a seizure warrant or under subsection 203B(2) or (2A), 203CA(3) or 203CB(2); and
(b) the Comptroller‑General of Customs is satisfied that the goods are a prohibited psychoactive substance, tobacco products or a prohibited serious drug alternative;
the Comptroller‑General of Customs 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), (2) or (2A) have been dealt with, the Comptroller‑General of Customs 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), (2) or (2A) 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), (2) or (2A), 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), (2) or (2A) 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:
(i) under a seizure warrant; or
(ii) under subsection 203B(2) or (2A), 203C(2), 203CA(3) or 203CB(2); or
(iii) under section 67 of the Maritime Powers Act 2013; 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 Comptroller‑General of Customs 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 the Commonwealth 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 Comptroller‑General of Customs 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