House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Home Affairs, the Honourable Bob Debus MP)

SCHEDULE 9 - SEIZING UNACCOUNTED FOR GOODS AND STORING OR TAKING CUSTODY OF PROHIBITED ITEMS

Customs Act 1901

Background

Goods that are not accounted for

142. Under subsection 229(1) of the Customs Act, certain goods are forfeited to the Crown. In particular, paragraph 229(1)(e) applies to:

"All goods found on any ship or aircraft after arrival in any port or airport and not being specified or referred to in the cargo report made under section 64AB and not being baggage belonging to the crew or passengers and not being satisfactorily accounted for."

Forfeited goods can be seized under the authority of a seizure warrant granted under section 203 of the Customs Act.

143. Paragraph 229(1)(e) applies to goods a Customs officer might find while conducting a search of a ship that has arrived in Australia that are not part of the ship's cargo and which no member of the crew claims as their own. Such goods might include items such as certain types of pornography or a weapon.

144. Since there is no indication that the goods are intended to be taken off the ship and are therefore imported, such goods cannot be seized as prohibited imports even in the case of certain types of pornography or weapons. Goods are only imported into Australia if they are landed in Australia or are brought within a port with the intention of landing them in Australia. If there was an intention to take the goods off the ship, they would be imported and could be seized as prohibited imports without having to first obtain a seizure warrant. (All prohibited imports are special forfeited goods and can be seized without a seizure warrant when they are at a Custom place, which includes a appointed port). However, as they are only forfeited goods, a seizure warrant would have to be obtained before the goods could be seized. This can be a time-consuming process and, by the time the warrant has been obtained, the goods may have been disposed of or the ship may have left Australia.

145. Therefore, the goods that can be seized without a warrant at a Customs place are to be extended to the goods listed in paragraph 229(1)(e). This amendment will ensure, in particular, that the unaccounted for goods do not make their way into the Australian community.

Item 1 Subsection 183UA(1) (definition of special forfeited goods)

146. This item amends the definition of special forfeited goods in subsection 183UA(1) of the Customs Act by inserting a reference to paragraph 229(1)(e). Currently, only goods referred to in paragraphs 229(1)(b) or (n) are special forfeited goods by definition, being prohibited imports and prohibited exports respectively. As referred to above, special forfeited goods can be seized by a Customs officer without a warrant when the goods are at a Customs place. Including goods covered by paragraph 229(1)(e) in this definition will mean that these goods can also be seized without a warrant when they at a Customs place.

Part XIIA of the Customs Act - Approved storage or taking into custody of prohibited items

147. Part XIIA of the Customs Act sets out the regime whereby Customs officers can either lock on board a ship or aircraft, or take into custody, firearms that are prohibited imports for the duration of a ship or aircraft's visit in Australia. This regime was put in place in 1999 to protect the community from the potential danger of firearms that have come into Australia on a ship or aircraft but which are not intended to leave the ship or aircraft. Legally speaking, in such circumstances, these firearms do not need to satisfy any of the requirements set out in the Customs (Prohibited Imports) Regulations 1956 (the PI Regulations) as they are not imported. They also cannot be seized without a warrant as special forfeited goods because they are not imported. However, this regime eliminates the possibility that these firearms may be diverted into the Australian community.

148. In order to strengthen the protection that is given by the regime in Part XIIA of the Customs Act, its coverage is to be extended to all goods listed in the PI Regulations. This will ensure that where goods arriving in Australia that are part of the stores of the ship or aircraft or the personal effects of the crew and that would be subject to restriction under the PI Regulations if imported, but may be freely available in other jurisdictions, either cannot leave the ship or aircraft on which they arrive or can be taken into custody by Customs.

Item 2 Part XIIA (heading)

149. This item substitutes the heading to Part XIIA with a new heading referring to " Special provisions relating to prohibited items " (as opposed to prohibited weapons)

Items 3 and 4 Section 227A

150. These items amend section 227A, which sets out the overview of Part XIIA to replace the references to certain weapons with a reference to certain items. The overview contains a brief description of the goods to which Part XIIA applies and the action that may be taken by Customs officer in relation to such goods in specified circumstances.

Items 5 and 6 Section 227B (definition of prohibited weapon)

151. These items amend section 227B by repealing the current definition of prohibited weapon and inserting a new definition of prohibited item . A prohibited item will mean a thing to which Part XIIA applies because of section 227D (in Part XIIA).

Item 7 Section 227D

152. This item repeals and substitutes section 227D, which sets out the goods to which Part XIIA applies.

153. New section 227D provides that Part XIIA applies to any thing if:

a)

it is on board a ship or aircraft to which Part XIIA applies (which is set out in section 227C in Part XIIA which is unchanged by the Bill). The Part applies to a ship or aircraft that is on a voyage or flight to Australia from a place outside Australia and that is not taken to have been imported into Australia); and

b)

its importation is:

(i)

prohibited absolutely by the PI Regulations; or

(ii)

prohibited by the PI Regulations unless a licence, permission, consent, approval or other document (however described) is granted or given, and such a licence, permission, consent, approval or other document has not been granted or given; and

c)

either:

(i)

it is, or should have been, specified in a report given by the operator under section 64AAA as part of the stores of the ship (section 64AAA sets out the requirement that a report of the ship or aircraft stores must be made to Customs upon the arrival of the ship or aircraft in Australia); or

(ii)

it is part of the personal effects of the crew of the ship or aircraft.

Therefore, Part XIIA will apply to all goods listed in the PI Regulations as opposed to only firearms, firearm accessories etc. New section 227D also updates the reference to the section of the Customs Act under which a stores report must be made, which is now section 64AAA (and no longer section 64AA).

Items 8, 9, 10 and 11

154. These items amend section 227E by omitting references to "prohibited weapon" and "weapon" and substituting these with references to "prohibited item" and "item". This means that section 227E, which sets out the circumstances in which goods to which Part XIIA applies can be stored on board a ship or aircraft, now applies to prohibited items and not just prohibited weapons.

Items 12, 13, 14 and 15

155. These items amend section 227F by omitting references to "weapon" and substituting these with references to "item". This means that section 227F, which sets out the circumstances in which goods to which Part XIIA applies can be taken into custody by a Customs officer, now applies to prohibited items and not just prohibited weapons.