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

Schedule 2   Search powers on certain ships and aircraft

Customs Act 1901

13   After section 185AA

Insert:

185AAA Retention of relevant items taken possession of under paragraph 185(2)(cb) or subsection 185AA(3C)

(1) Subject to any contrary order of a court, Customs must return a relevant item if:

(a) the reason for the relevant item's retention by Customs no longer exists or it is decided that the relevant item is not to be used in evidence; or

(b) the period of 60 days after the relevant item was taken possession of ends;

whichever is the earlier, unless the relevant item is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

(2) If Customs is required to return a relevant item under subsection (1), Customs must take reasonable steps to return it to the person from whom it was taken or to the owner if that person is not entitled to possess it, unless:

(a) proceedings in respect of which the relevant item may afford evidence were instituted before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or

(b) Customs may retain the relevant item because of an order under subsection (4); or

(c) Customs is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy or dispose of the relevant item.

(3) If proceedings in respect of which the relevant item may afford evidence have not commenced:

(a) before the end of 60 days after it was taken possession of; or

(b) before the end of a period previously specified in an order of a magistrate under subsection (4);

Customs may apply to a magistrate for an order that Customs may retain the relevant item for a further period.

(4) If the magistrate is satisfied that it is necessary for Customs to continue to retain the relevant item:

(a) for the purposes of an investigation as to whether an offence has been committed; or

(b) to enable evidence of an offence to be secured for the purposes of a prosecution;

the magistrate may order that Customs may retain the relevant item for a period specified in the order.

(5) Before making the application, Customs must:

(a) take reasonable steps to discover who has an interest in the retention of the relevant item; and

(b) if it is practicable to do so, notify each person who Customs considers has such an interest.

(6) In this section:

relevant item means:

(a) goods taken possession of under paragraph 185(2)(cb); or

(b) a document taken possession of under paragraph 185(2)(cb) or subsection 185AA(3C); or

(c) a weapon taken possession of under subsection 185AA(3C); or

(d) any other thing (other than narcotic goods) taken possession of under subsection 185AA(3C).