US Free Trade Agreement Implementation Act 2004 (120 of 2004)

Schedule 1   Customs amendments

Part 2   Verification powers

Customs Act 1901

8   After Subdivision J of Division 1 of Part XII

Insert:

Subdivision JA - Powers to monitor and audit - Australia-United States Free Trade Agreement

214BAA Simplified outline

The following is a simplified outline of this Subdivision:

• This Subdivision allows certain officers ( verification officers ) to enter premises, and to exercise certain powers ( AUSFTA verification powers ) in or on the premises, for the purpose of verifying information relating to the export, production or transportation of textile and clothing goods that are exported to the US.

• However, verification officers may only enter premises under this Subdivision with the occupier's consent.

• In entering premises and exercising AUSFTA verification powers, verification officers may be accompanied by US customs officials, but only with the occupier's consent.

214BAB Definitions

In this Subdivision:

Agreement means the Australia-United States Free Trade Agreement done at Washington DC on 18 May 2004, as amended from time to time.

Note: In 2004 the text of the Agreement was accessible on the Internet through the web site of the Department of Foreign Affairs and Trade.

AUSFTA verification powers has the meaning given by section 214BAC.

Harmonized System has the same meaning as in section 153YA.

occupier of premises includes a person who is apparently in charge of the premises.

textile and clothing goods means goods that are classified to:

(a) subheading 4202.12, 4202.22, 4202.32 or 4202.92 of Chapter 42 of the Harmonized System; or

(b) any of Chapters 50 to 63 of the Harmonized System; or

(c) heading 7019 of Chapter 70 of the Harmonized System; or

(d) subheading 9409.90 of Chapter 94 of the Harmonized System.

US means the United States of America.

US customs official means a person representing the customs administration of the US.

verification officer means a person authorised under section 214BAD to enter premises and to exercise AUSFTA verification powers.

214BAC AUSFTA verification powers

(1) For the purposes of this Subdivision, the following are the AUSFTA verification powers :

(a) the power to search premises;

(b) the power to take photographs (including a video recording), or make sketches, of premises or anything at premises;

(c) the power to inspect, examine, count, measure, weigh, gauge, test or analyse, and take samples of, anything in or on premises;

(d) the power to inspect any document or record in or on premises;

(e) the power to take extracts from, or make copies of, any document or record in or on premises;

(f) the power to take into or onto premises any equipment or material reasonably necessary for the purpose of exercising a power under paragraph (a), (b), (c), (d) or (e);

(g) the power to test and operate record-keeping, accounting, computing or other operating systems of any kind that are at premises and may be used to generate or record information or documents of a kind that may be communicated to Customs;

(h) the powers in subsections (2) and (3).

Operation of equipment

(2) For the purposes of this Subdivision, the AUSFTA verification powers include the power to operate equipment at premises to see whether:

(a) the equipment; or

(b) a disk, tape or other storage device that:

(i) is at the premises; and

(ii) can be used with the equipment or is associated with it;

contains information that is relevant to the verification of information relating to the export, production or transportation of textile and clothing goods that are exported to the US.

Removing documents and disks etc.

(3) For the purposes of this Subdivision, the AUSFTA verification powers include the following powers in relation to information described in subsection (2) that is found in the exercise of the power under that subsection:

(a) the power to operate equipment or other facilities at the premises to put the information in documentary form and remove the documents so produced;

(b) the power to operate equipment or other facilities at the premises to transfer the information to a disk, tape or other storage device:

(i) that is brought to the premises for the exercise of the power; or

(ii) that is at the premises and the use of which for the purpose has been agreed in writing by the occupier of the premises;

and to remove the disk, tape or other storage device from the premises.

214BAD Appointment of verification officers

(1) The CEO may, by writing, authorise an officer to enter premises, and to exercise AUSFTA verification powers in or on premises, for the purposes of this Subdivision.

Who may be authorised to be a verification officer

(2) The CEO must not do so unless the CEO is satisfied that the officer is suitably qualified, because of the officer's abilities and experience, to exercise AUSFTA verification powers.

Form of authorisation

(3) An authorisation may apply:

(a) generally; or

(b) during a specified period; or

(c) in or on specified premises; or

(d) during a specified period in or on specified premises.

AUSFTA verification powers to be used only as authorised

(4) This Subdivision does not allow:

(a) an officer who is authorised to enter premises and exercise AUSFTA verification powers during a specified period to enter the premises or exercise the powers at a time outside that period; or

(b) an officer who is authorised to enter specified premises and to exercise AUSFTA verification powers in or on the premises to enter other premises or to exercise the powers in or on the other premises.

214BAE Verification officers may enter premises and exercise AUSFTA verification powers with consent

(1) A verification officer may enter premises, and exercise AUSFTA verification powers in or on the premises, to the extent that it is reasonably necessary for the purpose of verifying information relating to the export, production or transportation of textile and clothing goods that are exported to the US.

Occupier's consent required

(2) However, a verification officer must not enter premises under this section unless the occupier of the premises consents to the officer entering the premises and exercising AUSFTA verification powers in or on the premises.

(3) Before obtaining a consent under subsection (2), a verification officer must give to the occupier of the premises a written notice stating:

(a) that the officer wishes to enter the premises and exercise AUSFTA verification powers in or on the premises; and

(b) the period during which the officer wishes to exercise the powers; and

(c) the name of any US customs official who the officer proposes will accompany the officer.

(4) Before obtaining a consent under subsection (2), a verification officer must tell the occupier of the premises that the occupier may refuse consent.

(5) An occupier of premises may express a consent to be limited to entry to the premises, and to the exercise of AUSFTA verification powers in or on the premises, during a particular period unless the occupier withdraws the consent before the end of that period.

(6) An occupier's consent that is not so limited has effect in relation to any entry to the premises, and to any exercise of AUSFTA verification powers in or on the premises, until the occupier withdraws the consent.

Verification officer must leave premises if consent withdrawn

(7) A verification officer must leave the premises if the occupier withdraws the consent.

Consent to be voluntary

(8) A consent of a person does not have effect for the purposes of this section unless it is voluntary.

Consent, or withdrawal of consent, to be in writing

(9) A consent of a person, or a withdrawal of consent by a person, does not have effect for the purposes of this section unless it is in writing.

Notice setting out the occupier's rights and obligations

(10) Before exercising AUSFTA verification powers in respect of premises, a verification officer must give to the occupier of the premises a written notice setting out the occupier's rights and obligations under this Subdivision.

Production of identity card

(11) Before a verification officer enters premises or exercises any AUSFTA verification powers, he or she must produce his or her identity card to the occupier.

214BAF US customs officials may accompany verification officers

Occupier's consent required

(1) In entering premises and exercising AUSFTA verification powers, a verification officer may be accompanied by one or more US customs officials, but only if the officer obtains the consent of the occupier of the premises to those officials accompanying the officer.

(2) Before obtaining such a consent, a verification officer must tell the occupier of the premises that the occupier may refuse consent.

US customs officials must leave premises if consent withdrawn

(3) The US customs officials must leave the premises if the occupier withdraws the consent.

Consent to be voluntary

(4) A consent of a person does not have effect for the purposes of this section unless it is voluntary.

Consent, or withdrawal of consent, to be in writing

(5) A consent of a person, or a withdrawal of consent by a person, does not have effect for the purposes of this section unless it is in writing.

214BAG Availability of assistance in exercising AUSFTA verification powers

In entering premises and exercising AUSFTA verification powers, a verification officer may obtain such assistance as is necessary and reasonable in the circumstances.

214BAH Verification officer may ask questions

(1) If a verification officer is in or on premises that he or she entered under this Subdivision, the officer may request the occupier to answer any questions put by the officer.

(2) The occupier is not obliged to comply with the request.

214BAI Verification officer may ask for assistance

(1) If a verification officer is in or on premises that he or she entered under this Subdivision, then, while the officer is entitled to remain in or on the premises, the officer may request the occupier to provide reasonable assistance to the officer for the purpose of the officer's exercise of AUSFTA verification powers in or on the premises.

(2) The occupier is not obliged to comply with the request.

214BAJ Verification officer may disclose information to US

A verification officer may disclose any information obtained in exercising AUSFTA verification powers to a US customs official for the purpose of a matter covered by Article 4.3 of the Agreement.

214BAK Operation of electronic equipment at premises

A person may operate electronic equipment at premises in order to exercise a power under this Subdivision only if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.

214BAL Compensation for damage to electronic equipment

(1) This section applies if:

(a) as a result of equipment being operated as mentioned in section 214BAC:

(i) damage is caused to the equipment; or

(ii) the data recorded on the equipment is damaged; or

(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and

(b) the damage or corruption occurs because:

(i) insufficient care was exercised in selecting the person who was to operate the equipment; or

(ii) insufficient care was exercised by the person operating the equipment.

(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.

(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court of Australia for such reasonable amount of compensation as the Court determines.

(4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier's employees and agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

(5) Compensation is payable out of money appropriated by the Parliament.

(6) For the purposes of subsection (1):

damage , in relation to data, includes damage by erasure of data or addition of other data.