Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Christopher Martin Ellison)Schedule 6 - protection from criminal responsibility
Customs Act 1901
Item 1 Subsections 233(3A) and (3B)
140. This item repeals subsections 233(3A) and (3B) of the Customs Act, as a consequence of new section 233BABA.
Item 2 Subsection 233(6)
141. This item amends subsection 233(6) to omit the reference to "subsection (3A)" and substitute a reference to "subsection 233BABA(1)", as a consequence of new section 233BABA.
Item 3 After section 233BAB
142. This item inserts new section 233BABA into the Customs Act.
143. New subsection 233BABA(1) provides that an officer of Customs who, in the course of duty, possesses or conveys, or facilitates the conveyance of, prohibited imports, prohibited exports or smuggled goods is not criminally responsible for an offence against a law of the Commonwealth or of a State or Territory relating to the possession, conveyance or facilitation of the conveyance of such goods.
144. New subsection 233BABA(2) provides that a person who possesses or conveys, or facilitates the conveyance of, prohibited imports, prohibited exports or smuggled goods and, in doing so, is acting in accordance with written instructions referring to this section issued by an officer of Customs acting in the course of duty, is not criminally responsible for an offence against a law of the Commonwealth or of a State or Territory relating to the possession, conveyance or facilitation of the conveyance of such goods.
145. These statutory protections from criminal responsibility are currently in section 233 of the Customs Act but do not, under subsection 233(5), currently apply to, or in relation to, narcotic goods. Customs officers have regular contact with narcotics goods in the course of their duties, especially as part of the drug detector dog training programs, and there is increasing concern that the current statutory protections do not extend to narcotic goods.
146. New section 233BABA will ensure that the statutory protections apply in relation to all prohibited imports and prohibited exports, including narcotic goods.