Senate

Replacement Explanatory Memorandum

(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Christopher Martin Ellison)

Schedule 1 - Harmonisation of Customs offences

Customs Act 1901

Items 1 to 5, 7 to 21, 23, 25, 27 to 31, 37, 39 to 41, 43, 49 to 59, 61, 62, 64 to 75, 76 to 83, 86, 88 to 98

There is inconsistency in the presentation of financial penalties in the Customs Act. Monetary penalties and fines are expressed in either penalty units or dollar amounts. It is therefore proposed that the dollar amounts for Customs offences be changed to references to their equivalent number of penalty units.

The amendments contained in each of these items amend those offence provisions in the Customs Act that refer to dollar amounts by deleting the reference to dollar amounts and substituting a reference to the equivalent penalty unit amount.

Items 6, 22, 24, 26, 36, 38, 42, 44, 46, 48, 60, 63, and 87

The Law and Justice Amendment (Application of Criminal Code) Act 2000 ("Application Act") applies:

(a)

Chapter 2 of the Criminal Code to criminal offences in the Customs Act; and

(b)

Parts 2.1, 2.2 and 2.3 of Chapter 2 to offences in the Customs Act that are the subject of Customs prosecutions under Part XIV of the Customs Act.

As a consequence of the application of the Criminal Code , it is also necessary to ensure that provisions creating offences of strict liability expressly provide that an offence is a strict liability offence. A number of offences in Customs legislation that are strict liability offences are not expressly stated to be strict liability offences. The Application Act also amends these offences to expressly state that they are strict liability offences.

There are however, a number of strict liability offences in the Customs Act that have not been amended by the Application Act where further analysis of the offences suggests that they are strict liability offences. It is proposed that these offences be appropriately amended to ensure that after the application of the Criminal Code they continue to be strict liability offences.

The offences being amended are:

(i)

section 19 (failure to provide suitable office accommodation to a Customs officer) - item 6

(ii)

section 64 (failure to provide an impending arrival report) - item 22

(iii)

section 64AA (failure to provide an arrival report) - item 24

(iv)

section 64AC (failure to provide a passenger and crew report) - item 26

(v)

section 67ET (failure to provide reasonable assistance upon request) - item 36

(vi)

section 69 (failure to provide return for like customable goods) - item 38

(vii)

section 71G (communicating further import entry) - item 42

(viii)

section 74(1) (unship goods contrary to Collector's permit) - item 44

(ix)

section 77D(5) (failure to provide return when COMPILE down) - item 46

(x)

section 77E(5) (failure to provide return when COMPILE down) - item 48

(xi)

section 116 (failure to withdraw or amend export entry) - item 60

(xii)

section 122D (failure to withdraw computer export entry) - item 63

(xiii)

section 234A (Unauthorised entry to places and on ships, aircraft or wharves) - item 87

The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added to each of these sections.

Item 32 - Subsection 67ES(4)

This item amends subsection 67ES(4) by deleting the phrase without reasonable excuse.

Item 33 - After subsection 67ES(4)

This item inserts a new subsection 67ES(4A) which provides that subsection (4) does not apply in relation to a failure to comply with subsection 67ES(2) or (3) if a person has a reasonable excuse for the failure.

In combination with the amendment in item 32, this amendment will prevent future interpretation that the current exception is an element of the offence in subsection 67ES(2) or (3). It puts it beyond doubt that it is an exception to the offence. This amendment harmonises this offence with the general principles of criminal responsibility as codified in Chapter 2 of the Criminal Code .

Item 34 - Subsection 67ES(6)

This item amends subsection 67ES(6) by deleting the reference to knowingly or recklessly and substituting intentionally.

Presently, this offence applies the fault element of knowledge or recklessness to the physical element of conduct of making a statement or presenting a document. Following the application of the Criminal Code it will not be possible to apply these fault elements to a physical element consisting of conduct. The only fault element that may be applied to a physical element consisting of conduct is intention. This amendment replaces the present fault elements with the appropriate fault element of intention.

Item 35 - Subsection 67ET(2)

This item amends subsection 67ET(2) by deleting the phrase without reasonable excuse.

Item 36 - At the end of section 67ET

This item inserts a new subsection 67ET(3) which provides that subsection (2) does not apply if a person has a reasonable excuse.

In combination with the amendment in item 35, this amendment will prevent future interpretation that the current exception is an element of the offence in subsection 67ET(2). It puts it beyond doubt that it is an exception to the offence. This amendment harmonises this offence with the general principles of criminal responsibility as codified in Chapter 2 of the Criminal Code .

Item 45 - Subsection 77D(5)

This item amends subsection 77D(5) by deleting the phrase without reasonable excuse.

Item 46 - After subsection 77D(5)

This item inserts a new subsection 77D(5A) which provides that subsection (5) does not apply if a person has a reasonable excuse.

In combination with the amendment in item 45, this amendment will prevent future interpretation that the current exception is an element of the offence in subsection 77D(5). It puts it beyond doubt that it is an exception to the offence. This amendment harmonises this offence with the general principles of criminal responsibility as codified in Chapter 2 of the Criminal Code .

Item 47 - Subsection 77E(5)

This item amends subsection 77E(5) by deleting the phrase without reasonable excuse.

Item 48 - After subsection 77E(5)

This item inserts a new subsection 77E(5A) which provides that subsection (5) does not apply if a person has a reasonable excuse.

In combination with the amendment in item 47, this amendment will prevent future interpretation that the current exception is an element of the offence in subsection 77E(5). It puts it beyond doubt that it is an exception to the offence. This amendment harmonises this offence with the general principles of criminal responsibility as codified in Chapter 2 of the Criminal Code .

Items 84 and 85

These items effect technical amendments to renumber existing provisions of section 234 of the Customs Act.