Replacement Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Honourable Nicola Roxon MP)Schedule 1 - Amendments
Customs Act 1901
Item 1 - Subparagraph 210(1)(a)(iii)
5. This item will amend section 210 of the Act to include a reference to the new offence provision inserted by item 2.
6. Section 210 of the Act allows an officer of Customs or police to arrest a person without a warrant in certain circumstances. The effect of this item will be to allow an officer of Customs or police to arrest a person without warrant where the officer believes on reasonable grounds that the person has committed or is committing an offence against new section 233BABAC relating to the smuggling of tobacco products.
7. Section 210 contains limits on the exercise of the power to arrest without warrant. This power can only be exercised if an officer believes on reasonable grounds that proceedings by summons against the person would not achieve one or more of several purposes including ensuring the appearance of the person before a court in respect of the offence.
8. Section 210B requires the officer of Customs or police who arrests the person without warrant to inform the person, at the time of the arrest, of the offence for which the person is being arrested. In addition, section 212 requires the officer of Customs or police to ensure the person is delivered into the custody of a police officer or taken before a magistrate as soon as practicable.
Item 2 - After section 233BABAC
9. This item inserts new section 233BABAD which creates new offences in relation to smuggling tobacco products and the conveyance or possession of smuggled tobacco products.
10. Section 233 of the Act already creates an offence for the smuggling of any goods, and their conveyance and possession, including tobacco products; however, these offences can only be prosecuted by way of a Customs prosecution and is punishable by a penalty only. The new offences created by this Act will be criminal offences punishable by up to 10 years imprisonment or a fine, or both.
11. The elements of the new offences in section 233BABAD are the same as those in current offences in section 233 as they relates to smuggled tobacco products; however, the new offences are structured differently in section 233BABAD in accordance with the standard approach to formulating offences set out in the Criminal Code Act 1995 (Cth).
12. New subsection (1) will create an offence where a person imports tobacco products with the intention of defrauding the revenue.
13. New subsection (2) will create an offence where a person conveys or possesses tobacco products which the person knows were imported with the intent to defraud the revenue. New subsection (3) provides that when prosecuting a person under subsection (2) it is not necessary to prove the identity of the person who imported the goods.
14. New subsection (4) provides that an offence against subsection (1) or (2) is punishable by up to 10 years imprisonment, a fine calculated under subsection (5), or both.
15. The amount of the fine payable in new subsection (5) is calculated as either, if the court can determine the amount of the duty that would have been payable on the tobacco products had the goods been entered for home consumption, five times the amount of the duty that would have been payable, or otherwise 1000 penalty units.
16. The amount of the fine payable, including the method for calculating the amount, is the same as the amount of the penalty payable for a smuggling offence under section 233 the Act.
17. New subsection (6) provides that a person convicted or acquitted of an offence against new section 233BABAD is not liable for smuggling proceedings under section 233 of the Act in respect of the same conduct. This will ensure that a person cannot be prosecuted twice for the same conduct, consistent with section 4C of the Crimes Act 1914 .
18. New subsection (7) contains a definition of tobacco products. The definition of tobacco products links to goods classified in Schedule 3 of the Customs Tariff Act 1995 (the Tariff Act). In particular, tobacco products means goods classified to headings 2401, 2402 and 2403 of the Tariff Act excluding subheadings 2402.90.00 and 2403.99.10. Subheadings 2402.90.00 and 2403.99.10 are excluded as goods classified by those subheadings do not contain any tobacco.
19. The Tariff Act classifications include a broad range of tobacco products including unmanufactured tobacco, tobacco refuse, cigars, cheroots, cigarillos, cigarettes, other manufactured tobacco, homogenised and reconstituted tobacco, and tobacco extracts and essences.
Item 3 - Application provisions
20. Item 3 contains and application provision.
21. Subitem 3(1) provides that the new offence created by subsection 233BABAD(1) concerning the smuggling of tobacco will apply to goods which have been imported on or after the commencement of this item, being the day after the Royal Assent.
22. Subitem 3(2) provides that the new offence for the conveyance or possession of smuggled tobacco in subsection 233BABAD(2) will apply in relation to goods that are conveyed, or goods that are in a person's possession, on or after commencement of the item whether or not the goods were imported before, on or after commencement of the item.