Senate

Replacement Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Nicola Roxon MP)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Customs Amendment (Smuggled Tobacco) Bill 2012

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

The Bill will create new offences for the smuggling of tobacco products and for the conveyance and possession of smuggled tobacco where the person conveying or possessing the tobacco knows the tobacco products were imported with the intent to defraud the revenue.

The existing ability for officers of Customs or the police to arrest a person without warrant where they believe on reasonable grounds that the person has committed or is committing certain offences will be extended to the new offences.

Human rights implication

Minimum guarantees in criminal proceedings

The Bill will create new criminal offences for the smuggling of tobacco. The elements of the new offences are the same as those for the existing smuggling offence in the Act. The new offences include a penalty of up to 10 years imprisonment in addition to a pecuniary penalty that is identical to the pecuniary penalty available for the existing offence.

As the Bill creates new criminal offences it engages the minimum guarantees in criminal proceedings contained in article 14 of the International Covenant on Civil and Political Rights. Although a new criminal offence will be created, the Bill does not affect or limit any of the existing human rights protections, including the minimum guarantees in criminal proceedings contained in Australian law.

Conclusion

The Bill is compatible with human rights. Although it engages the minimum guarantees in criminal proceedings, the Bill maintains all existing protections contained in Australia law and does not seek to limit the minimum guarantees in any way.

NOTES ON CLAUSES

Clause 1 - Short title

1. This clause provides for the Bill, when enacted, to be cited as the Customs Amendment (Smuggled Tobacco) Act 2012 .

Clause 2 - Commencement

2. This clause provides for the Bill to commence on the day after the Act receives the Royal Assent.

Clause 3 - Schedules

3. This clause is the formal enabling provision for the Schedule to the Bill, providing that each Act specified in a Schedule is amended in accordance with the applicable items of the Schedule. In this Bill the Act being amended is the Customs Act 1901 .

4. The clause also provides that the other items of the Schedules have effect according to their terms. This is a standard enabling clause for transitional, savings and application items in amending legislation. In this Bill there is an application provision in item 2 of Schedule 1.