Customs Amendment (Strengthening Border Controls) Act 2008 (74 of 2008)

Schedule 1   Import controls

Customs Act 1901

36   At the end of Division 5 of Part XIII

Add:

Subdivision B - Penalties in lieu of prosecution for offences relating to prohibited imports, restricted areas etc.

243ZF Application of Subdivision

This Subdivision applies to an offence against, or an offence for a contravention of:

(a) paragraph 233(1)(b), if the offence relates to goods that are prohibited imports of a kind prescribed by regulations made for the purposes of this section; or

(b) subsection 234A(1); or

(c) subsection 234AB(3).

243ZG Guidelines for serving infringement notices

The CEO must, by legislative instrument, make guidelines in respect of the administration of this Subdivision to which he or she must have regard when exercising powers under this Subdivision.

243ZH When an infringement notice can be served

(1) If the CEO has reasonable grounds to believe that:

(a) a person has committed an offence; and

(b) for an offence covered by paragraph 243ZF(a) - the person concealed, from Customs, the goods to which the offence relates;

then the CEO may cause an infringement notice to be served on the person in accordance with this Subdivision.

(2) An infringement notice for an offence covered by paragraph 243ZF(a) does not have any effect unless it is served on the person:

(a) if the person to be served is in a section 234AA place - before the person leaves the section 234AA place for the first time after the alleged offence occurs; or

(b) if the person to be served is not in a section 234AA place and the goods to which the offence relates have been seized under section 203B - with the seizure notice served under section 205 in respect of the goods.

(3) An infringement notice for an offence covered by paragraph 243ZF(b) or (c) does not have any effect unless it is served within one year after the day on which the offence is alleged to have been committed.

(4) Without limiting the meaning of concealed in paragraph (1)(b), 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.

243ZI Matters to be included in an infringement notice

(1) An infringement notice served under this Subdivision must:

(a) state the name of the person on whom it is to be served; and

(b) state that it is being served on behalf of the CEO; and

(c) state:

(i) the nature of the alleged offence; and

(ii) the time (if known) at which, the date on which, and the place at which, the offence is alleged to have been committed; and

(iii) the maximum penalty that a court could impose for the alleged offence; and

(d) specify that a penalty of 2 penalty units is payable under the notice in respect of the alleged offence; and

(e) state that, if the person on whom the notice is served does not wish the matter to be dealt with by a court, the person may pay to the CEO the amount of the penalty specified in the notice:

(i) if the notice is served on the person in a section 234AA place and relates to an alleged offence covered by paragraph 243ZF(a) - before the person leaves the place for the first time after the notice is served; or

(ii) in any other case - within 28 days after the date of service of the notice; and

(f) state that compliance with the notice is not an admission of guilt or liability; and

(g) if the notice relates to an alleged offence covered by paragraph 243ZF(a) - state that, if the penalty specified in the notice is paid and the notice is not withdrawn, the goods to which the offence relates will be taken to be condemned as forfeited to the Crown such that:

(i) 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; and

(ii) a claim for the return of the goods cannot be made; and

(iii) if the penalty is paid after a claim for the return of the goods is made, the goods cannot be returned; and

(h) state that the person may make written representations to the CEO seeking the withdrawal of the notice.

(2) An infringement notice served under this Subdivision may contain any other matters that the CEO considers necessary.

243ZJ Withdrawal of infringement notice

(1) A person on whom an infringement notice has been served under this Subdivision may make written representations to the CEO seeking the withdrawal of the notice.

(2) The CEO may withdraw an infringement notice served on a person under this Subdivision (whether or not the person has made representations seeking the withdrawal) by causing written notice of the withdrawal to be served on the person within the period within which, or by the time by which, the penalty specified in the infringement notice is required to be paid.

(3) The matters to which the CEO may have regard in deciding whether or not to withdraw an infringement notice served under this Subdivision include, but are not limited to, the following:

(a) whether the person has previously been convicted of an offence for a contravention of this Act;

(b) the circumstances in which the offence specified in the notice is alleged to have been committed;

(c) whether the person has previously been served with an infringement notice under this Subdivision in respect of which the person paid the penalty specified in the notice;

(d) any written representations made by the person.

(4) If:

(a) the person pays the penalty specified in an infringement notice served under this Subdivision within the period within which, or by the time by which, the penalty is required to be paid; and

(b) the notice is withdrawn after the person pays the penalty;

the CEO must refund to the person an amount equal to the amount paid.

243ZK What happens if the infringement notice penalty is paid

(1) This section applies if:

(a) an infringement notice is served on a person under this Subdivision; and

(b) the person pays the penalty specified in the notice before the end of the period, or by the time, referred to in paragraph 243ZI(1)(e); and

(c) the infringement notice is not withdrawn.

(2) Any liability of the person for the offence specified in the notice is taken to be discharged.

(3) Further proceedings cannot be taken against the person for the offence.

(4) The person is not regarded as having been convicted of the offence.

(5) If the offence specified in the notice is an offence covered by paragraph 243ZF(a), 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.

Note: A right to compensation exists in certain circumstances for goods that are disposed of or destroyed (see section 243ZN).

243ZL More than one infringement notice may not be served for the same offence

This Subdivision does not permit the service of more than one infringement notice on a person for the same offence.

243ZM Infringement notice not required to be served

This Subdivision does not:

(a) require an infringement notice to be served on a person in relation to an offence; or

(b) affect the liability of a person to be prosecuted for an offence if:

(i) an infringement notice is not served on the person in relation to the offence; or

(ii) an infringement notice served on the person in relation to the offence has been withdrawn; or

(c) affect the liability of a person to be prosecuted for an offence if the person does not comply with an infringement notice served on the person in relation to the offence; or

(d) limit the amount of the penalty that may be imposed by a court on a person convicted of an offence.

243ZN 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 under section 243ZK because the penalty specified in an infringement notice was paid, 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.

243ZO Disposal of forfeited goods

All goods that are condemned as forfeited to the Crown under this Subdivision must be dealt with and disposed of in accordance with the directions of the CEO.