Customs Amendment (Strengthening Border Controls) Act 2008 (74 of 2008)
Schedule 1 Import controls
Customs Act 1901
14 After Subdivision GA of Division 1 of Part XII
Insert:
Subdivision GB - Surrender of prescribed prohibited imports
209M Application of Subdivision
This Subdivision applies to goods that are prohibited imports of a kind prescribed by regulations made for the purposes of this section.
209N Surrender of goods
(1) An officer of Customs may, instead of seizing goods under section 203B, permit a person to surrender the goods to the officer in a section 234AA place if:
(a) the officer has reasonable grounds to believe that the goods:
(i) have been imported by the person; and
(ii) have not been concealed from Customs by the person; and
(iii) are accompanied personal or household effects of the person; and
(b) the person has been informed by the officer, in writing, of the available options for dealing with the goods and the consequences of exercising each of those options; and
(c) the person has indicated to Customs, in writing, that he or she intends to surrender the goods; and
(d) the officer has indicated to the person that the goods may be surrendered to the officer.
(2) Without limiting the meaning of concealed in subparagraph (1)(a)(ii), a person is taken to have concealed goods from Customs if the person was required to give information about the goods to Customs in accordance with section 71, 71K or 71L and the person failed to do so.
209P Effect of surrender
If goods are surrendered under section 209N:
(a) proceedings cannot be brought for an offence against this Act in relation to the importation of the goods; and
(b) the goods are taken to be condemned as forfeited to the Crown, such that the title to the goods immediately vests in the Commonwealth to the exclusion of all other interests in the goods, and the title cannot be called into question.
209Q Right of compensation in certain circumstances for goods disposed of or destroyed
(1) Despite the disposal or destruction of goods taken to be condemned as forfeited to the Crown because the goods have been surrendered under section 209N, a person may apply to a court of competent jurisdiction under this section for compensation.
(2) A right to compensation exists if:
(a) the goods were not prohibited imports; and
(b) the goods were not used or otherwise involved in the commission of an offence; and
(c) the person establishes, to the satisfaction of the court, that he or she is the rightful owner of the goods.
(3) If a right to compensation exists under subsection (2), the court must order the payment by the Commonwealth to the person of an amount equal to the market value of the goods at the time of their disposal or destruction.
209R Disposal of surrendered goods
All goods surrendered under section 209N must be dealt with and disposed of in accordance with the directions of the CEO.
Subdivision GC - Post-importation permission
209S Definitions
(1) In this Subdivision:
application period , for goods that have been detained under section 209U, means the period that, in accordance with subparagraph 209X(1)(d)(i), is specified in the detention notice identifying the goods.
detention notice means a notice of the kind mentioned in section 209X.
grant period , for goods that have been detained under section 209U, means the period that, in accordance with subparagraph 209X(1)(d)(ii), is specified in the detention notice identifying the goods.
(2) If regulations made under section 50 provide that the importation of goods is prohibited unless a licence, permission, consent, approval or other document (however described) is granted or given, then the licence, permission, consent, approval or other document is a required permission to import the goods .
209T Application of Subdivision
This Subdivision applies to goods that are prohibited imports of a kind prescribed by regulations made for the purposes of this section.
209U Power to detain goods
(1) An officer of Customs may, instead of seizing goods under section 203B, detain the goods if:
(a) the goods have been imported without one or more required permissions to import the goods having been granted or given; and
(b) any other conditions or restrictions specified in regulations made under section 50 in respect of the importation of the goods have been complied with; and
(c) the officer has reasonable grounds to believe that:
(i) the goods have not been concealed from Customs by the person who imported them; and
(ii) no application for any of the required permissions to import the goods has previously been refused; and
(d) if the goods are accompanied personal or household effects of the person - the person:
(i) has been informed by the officer, in writing, of the available options for dealing with the goods and the consequences of exercising each of those options; and
(ii) has indicated to Customs, in writing, that he or she has applied, or intends to apply, for each of the required permissions to import the goods that have not already been granted or given.
(2) Without limiting the meaning of concealed in subparagraph (1)(c)(i), a person is taken to have concealed goods from Customs if the person was required to give information about the goods to Customs in accordance with section 71, 71K or 71L and the person failed to do so.
209V Detained goods to be secured
(1) In this section:
approved place , in relation to goods detained under section 209U, means a place approved by a Collector as a place for the storage of goods of that kind.
(2) If an officer of Customs detains goods under section 209U, the officer must, as soon as practicable, take those goods to an approved place.
209W Requirement to serve detention notice
(1) If an officer of Customs detains goods under section 209U, the officer must serve, within 7 days after the day on which the goods were detained, a detention notice on:
(a) the owner of the goods; or
(b) if the owner cannot be identified after reasonable inquiry - the person in whose possession or under whose control the goods were when they were detained.
(2) The notice must be in writing and must be served:
(a) personally or by post; or
(b) if no person of the kind referred to in paragraph (1)(a) or (b) can be identified after reasonable inquiry - by publishing a copy of the notice in a newspaper circulating in the location in which the goods were detained.
(3) A detention notice may be served on a person who is outside Australia.
209X Matters to be dealt with in detention notices
(1) A detention notice must set out the following:
(a) a statement identifying the goods;
(b) the day on which the goods were detained;
(c) the ground, or each of the grounds, on which the goods were detained;
(d) a statement that the goods will be taken to be seized if:
(i) written evidence of the making of an application for each required permission to import the goods that was not granted, or given, by the time the goods were imported is not provided to Customs by the end of a specified period (the application period ); or
(ii) not all of the required permissions to import the goods are granted, or given, by the end of a specified period (the grant period ); or
(iii) during the application period or the grant period, the owner of the goods notifies Customs, in writing, that an application for a required permission to import the goods has been refused;
(e) a statement that, if the goods are taken to be seized because written evidence is not provided to Customs by the end of the application period, the goods will be taken to be seized on the day after the end of the application period;
(f) a statement that, if the goods are taken to be seized because not all of the required permissions to import the goods are granted, or given, by the end of the grant period, the goods will be taken to be seized on the day after the end of the grant period;
(g) a statement that, if the goods are taken to be seized because during the application period or the grant period the owner of the goods notifies Customs, in writing, that an application for a required permission to import the goods has been refused, the goods will be taken to be seized on the day after Customs is so notified;
(h) the ground, or each of the grounds, on which the goods will be taken to be seized;
(i) a statement that, if the goods are taken to be seized and a claim for the return of the goods has not already been made, and is not made within 30 days after the day the goods are taken to be seized, the goods will be taken to be condemned as forfeited to the Crown;
(j) if the notice is to be served in a foreign country - a statement that the person served, if that person has not yet made a claim for the return of the goods, may not make such a claim unless he or she has first appointed in writing an agent in Australia with authority to accept service of documents, including process in any proceedings arising out of the matter.
(2) The application period specified in a detention notice under subparagraph (1)(d)(i) must be the period that:
(a) starts on the day that the notice is served; and
(b) ends 30 days, or such other period as is prescribed by the regulations, after that day.
(3) The grant period specified in a detention notice under subparagraph (1)(d)(ii) must be the period that:
(a) starts on the day written evidence of the making of an application for a required permission to import the goods is first provided to Customs; and
(b) ends 30 days, or such other period as is prescribed by the regulations, after the first day on which written evidence of the making of an application for all of the required permissions to import the goods that were not granted, or given, by the time the goods were imported has been provided to Customs.
209Y Effect of detaining goods
While goods are detained under section 209U:
(a) an application for a required permission to import the goods may be made; and
(b) a required permission to import the goods may be granted or given;
despite the goods having already been imported.
209Z Evidence not provided or permission not granted or given
(1) This section applies if:
(a) goods have been detained under section 209U; and
(b) a detention notice identifying the goods has been served; and
(c) any of the following apply:
(i) written evidence of the making of an application for each required permission to import the goods that was not granted, or given, by the time the goods were imported has not been provided to Customs by the end of the application period for the goods;
(ii) not all of the required permissions to import the goods have been granted, or given, by the end of the grant period for the goods;
(iii) during the application period, or the grant period, for the goods, the owner of the goods has notified Customs, in writing, that an application for a required permission to import the goods has been refused.
(2) If the goods are at an approved place within the meaning of section 209V, they cease to be detained under section 209U and are taken to be seized under section 203B on:
(a) if, during the application period, the owner of the goods notified Customs, in writing, that an application for a required permission to import the goods was refused - the day after Customs was so notified; or
(b) if paragraph (a) does not apply and written evidence of the making of an application for each required permission to import the goods that was not granted, or given, by the time the goods were imported was not provided to Customs by the end of the application period - the day after the end of the application period; or
(c) if paragraphs (a) and (b) do not apply and, during the grant period, the owner of the goods notified Customs, in writing, that an application for a required permission to import the goods was refused - the day after Customs was so notified; or
(d) if paragraphs (a), (b) and (c) do not apply and not all of the required permissions to import the goods were granted, or given, by the end of the grant period - the day after the end of the grant period.
(3) The detention notice is also taken to be a seizure notice that:
(a) is in accordance with section 205A; and
(b) was served:
(i) under section 205 by the responsible person; and
(ii) on the day the goods are taken to be seized.
209ZA Evidence provided and permission granted or given
(1) This section applies if:
(a) goods have been detained under section 209U; and
(b) a detention notice identifying the goods has been served; and
(c) written evidence of the making of an application for each required permission to import the goods that was not granted, or given, by the time the goods were imported has been provided to Customs by the end of the application period for the goods; and
(d) all of the required permissions to import the goods have been granted, or given, on or before the end of the grant period for the goods.
(2) An officer of Customs must return the goods to the owner.
(3) At the time the last required permission to import the goods is granted or given, the goods cease to be prohibited imports.
(4) Proceedings cannot be brought for an offence against this Act in relation to the importation of the goods.
209ZB Service by post
For the purposes of the application of section 29 of the Acts Interpretation Act 1901 to the service by post of a detention notice under this Subdivision on a person, such a notice posted as a letter addressed to that person at the last address of that person known to the sender is taken to be properly addressed.
209ZC Liability for detention of goods
Neither the Commonwealth nor an officer or other person is under any liability in relation to the detention of any goods under this Subdivision for which there was reasonable cause.