Customs and AusCheck Legislation Amendment (Organised Crime and Other Measures) Act 2013 (52 of 2013)

Schedule 1 Amendment of the Customs Act 1901

Part 2 Amendments relating to cargo terminal operators and cargo handlers

43 After Part V

Insert:

Part VAAA - Cargo terminals

Division 1 - Preliminary

102B Definitions

In this Part:

cargo handler means a person who is involved in any of the following activities at a cargo terminal:

(a) the movement of goods subject to Customs control into, within or out of the terminal;

(b) the loading, unloading or handling of goods subject to Customs control at the terminal;

cargo terminal means a place (other than a depot to which a depot licence relates or a warehouse to which a warehouse licence relates), within the limits of a port, airport or wharf, where:

(a) goods are located immediately after being unloaded from a ship that:

(i) has taken the goods on board at a place outside Australia; and

(ii) carried the goods to a port or wharf in a State or Territory where some or all of the goods are unloaded; or

(b) goods are located immediately after being unloaded from an aircraft that:

(i) has taken the goods on board at a place outside Australia; and

(ii) carried the goods to an airport in a State or Territory where some or all of the goods are unloaded; or

cargo terminal operator , in relation to a cargo terminal, means a person who manages the cargo terminal.

establishment identification , in relation to a cargo handler and a port, airport or wharf, means the handler's identification code provided by Customs for the port, airport or wharf.

executive officer of a body corporate means a person, by whatever name called and whether or not a director of the body, who is concerned in, or takes part in, the management of the body.

place includes an area, a building and a part of a building.

102BA Meaning of fit and proper person

(1) In deciding whether a natural person is a fit and proper person for the purposes of this Part, the decision-maker must have regard to:

(a) any conviction of the person of an offence against this Act committed within the 10 years immediately before the decision; and

(b) any conviction of the person of an offence punishable by imprisonment for 1 year or longer:

(i) against another law of the Commonwealth; or

(ii) against a law of a State or Territory;

if that offence was committed within the 10 years immediately before the decision; and

(c) whether the person has been refused a transport security card, or has had such a card suspended or cancelled, within the 10 years immediately before the decision; and

(d) if a request has been made of the person under subsection 102CF(2) and the CEO is considering giving a direction to the person under Division 5 - any misleading statement given by the person in response to the request.

(2) In deciding whether a company is a fit and proper person for the purposes of this Part, the decision-maker must have regard to:

(a) any conviction of the company of an offence:

(i) against this Act; or

(ii) if punishable by a fine of 100 penalty units or more - against another law of the Commonwealth, or a law of a State or of a Territory;

committed:

(iii) within the 10 years immediately before the decision; and

(iv) at a time when any person who is presently a director, officer or shareholder of the company was such a director, officer or shareholder; and

(b) whether a receiver of the property, or part of the property, of the company has been appointed; and

(d) whether the company has executed, under Part 5.3A of that Act, a deed of company arrangement that has not yet terminated.

Division 2 - Obligations of cargo terminal operators

102C Notifying Customs of cargo terminal

(1) The cargo terminal operator of a cargo terminal must notify Customs of:

(a) the terminal managed by the operator; and

(b) the terminal's physical address.

(2) A notification must:

(a) be in a form approved, in writing, by Customs for the purposes of this section; and

(b) provide all the information, and be accompanied by any documents, required by the form.

102CA Physical security of cargo terminal and goods

(1) The cargo terminal operator of a cargo terminal must ensure:

(a) adequate physical security of the terminal; and

(b) adequate security of goods at the terminal.

(2) At a minimum, the following requirements must be met in relation to a cargo terminal:

(a) the terminal must be protected by:

(i) adequate fencing; and

(ii) a monitored alarm system;

(b) entry or exit to the terminal must be controlled or limited;

(3) The cargo terminal operator of a cargo terminal must give Customs written notice of any substantial change that would affect:

(a) the physical security of the terminal; or

(b) the security of goods at the terminal.

(4) A notice must be given at least 30 days before the change occurs, unless the change is required in response to an emergency or disaster, in which case a notice must be given as soon as practicable.

(5) Within 30 days of being requested to do so by an authorised officer, the cargo terminal operator must provide documentation of the procedures and methods in place for ensuring the security of goods at the terminal.

102CB Movement of signs at or near cargo terminal

(1) If Customs has placed a sign at or near a cargo terminal, the cargo terminal operator of the terminal must ensure that the sign is not concealed, moved or removed without the written approval of an authorised officer.

(2) Subsection (1) does not apply if:

(a) the sign is temporarily moved while maintenance or construction work is carried out; and

(b) the sign is moved for no more than 5 days.

102CC Notification requirements relating to goods

(1) The cargo terminal operator of a cargo terminal must, within the time and in the manner mentioned in subsection (2), notify Customs of any of the following events:

(a) an unauthorised movement of goods subject to Customs control in or from the cargo terminal;

(b) an unauthorised access to goods subject to Customs control:

(i) in the cargo terminal; or

(ii) on a ship or aircraft within, or adjacent to, the terminal;

(c) an unauthorised access to an information system, whether electronic or paper based, relating to goods subject to Customs control;

(d) an enquiry relating to goods subject to Customs control from a person who does not have a commercial connection with the goods;

(e) a theft, loss or damage of goods subject to Customs control;

(f) a break in and entry, or attempted break in, of the cargo terminal;

(g) a change that may adversely affect the security of the terminal;

(h) a suspected breach of a Customs-related law in the cargo terminal.

(2) The notification of an event must:

(a) be in writing; and

(b) be made as soon as practicable, but not later than 5 days after the cargo terminal operator becomes aware of the event.

102CD Unclaimed goods

(1) The cargo terminal operator of a cargo terminal must notify Customs, within the time and in the manner mentioned in subsection (2), of goods not belonging to the operator that remain at the terminal for more than 30 days.

(2) The notification must:

(a) be in writing, including:

(i) a description of the goods; and

(ii) the date the goods were received; and

(b) be made no later than 35 days after the date the goods were received.

102CE Record keeping requirements

(1) The cargo terminal operator of a cargo terminal must keep a record of each person who enters the terminal.

(2) The record may be kept by electronic means.

(3) The record must include such particulars for each person as are prescribed by the regulations.

(4) Within 30 days of being requested to do so by an authorised officer, the cargo terminal operator must provide to the officer the records kept under this section for the period specified in the request.

(5) The disclosure of personal information in response to a request by an authorised officer is taken to be a disclosure that is authorised by this Act for the purposes of the Privacy Act 1988.

(6) Subsection (1) does not apply in relation to a person who is:

(a) an employee of the cargo terminal operator; or

(b) an officer or employee of, or of an authority of, the Commonwealth, a State or a Territory.

102CF Fit and proper person

(1) The cargo terminal operator of a cargo terminal must take all reasonable steps to ensure that:

(a) the operator is a fit and proper person; and

(b) if the operator is a body corporate - each executive officer of the body corporate is a fit and proper person.

(2) Within 30 days of being requested to do so by an authorised officer, the cargo terminal operator must provide to the officer information that would support an assessment that:

(a) the operator is a fit and proper person; and

(b) if the operator is a body corporate - each executive officer of the body corporate is a fit and proper person.

102CG Adequate training of staff

The cargo terminal operator of a cargo terminal must take all reasonable steps to educate and train its employees or other persons involved in the operator's business to ensure their awareness of the operator's responsibilities and obligations in relation to goods subject to Customs control.

102CH Complying with directions

The cargo terminal operator of a cargo terminal must comply with a written direction given by an authorised officer under section 102EB.

102CI Responsibility to provide facilities and assistance

The cargo terminal operator of a cargo terminal must provide an authorised officer with all reasonable facilities and assistance for the effective exercise of their powers under a Customs-related law.

102CJ CEO may impose additional obligations

The CEO may, by legislative instrument, impose additional obligations on cargo terminal operators generally if the CEO considers the obligations to be necessary or desirable:

(a) for the protection of the revenue; or

(b) for the purpose of ensuring compliance with the Customs Acts, any other law of the Commonwealth prescribed by the regulations or a law of a State or Territory prescribed by the regulations; or

102CK Offence - failure to comply with obligations or requirements

(1) A person commits an offence if:

(a) the person is a cargo terminal operator; and

(b) the person fails to comply with an obligation or requirement:

(i) set out in this Division; or

(ii) set out in a legislative instrument made under section 102CJ.

Penalty: 60 penalty units.

(2) Subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Division 3 - Obligations of cargo handlers

102D Certain provisions of Division 2 apply

Sections 102CC and 102CF to 102CI apply to a cargo handler in the same way as they apply to a cargo terminal operator.

102DA Unpacking of goods in containers at cargo terminal

If goods are in a container at a cargo terminal, a cargo handler must not allow the container to be unpacked without the written approval of an authorised officer.

102DB Facilitating transhipment or export of goods

If goods are imported into Australia and are subject to Customs control, a cargo handler must not facilitate the transhipment or export of the goods without the written approval of an authorised officer.

102DC Using establishment identification when communicating with Customs

(1) When communicating electronically with Customs about activities undertaken at a port, airport or wharf, a cargo handler must use his, her or its correct establishment identification for the port, airport or wharf.

(2) Subsection (1) does not apply in relation to a particular port, airport or wharf if a cargo handler has the written approval of an authorised officer for the handler to use a contingency code for the port, airport or wharf.

102DD CEO may impose additional obligations

The CEO may, by legislative instrument, impose additional obligations on cargo handlers generally if the CEO considers the obligations to be necessary or desirable:

(a) for the protection of the revenue; or

(b) for the purpose of ensuring compliance with the Customs Acts, any other law of the Commonwealth prescribed by the regulations or a law of a State or Territory prescribed by the regulations; or

102DE Offence - failure to comply with obligations or requirements

(1) A person commits an offence if:

(a) the person is a cargo handler; and

(b) the person fails to comply with an obligation or requirement:

(i) set out in section 102CC, 102CF, 102CG, 102CH or 102CI; or

(ii) set out in this Division; or

(iii) set out in a legislative instrument made under section 102DD.

Penalty: 60 penalty units.

Note: For subparagraph (b)(i), see section 102D.

(2) Subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Division 4 - Powers of authorised officers

102E General powers

(1) For the purpose of determining whether a provision of any Customs-related law has been, or is being, complied with, an authorised officer may enter a cargo terminal and exercise the following powers:

(a) the power to inspect any document at the terminal;

(b) the power to take extracts from, or make copies of, any such document;

(c) the power to take into the terminal such equipment and materials as the authorised person requires for the purpose of exercising powers under a Customs-related law in relation to the terminal.

(2) While at a cargo terminal, an authorised officer may:

(a) access electronic equipment at the terminal; and

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

(i) is at the terminal; or

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

if the authorised officer has reasonable grounds for suspecting that the electronic equipment, disk, tape or other storage device is or contains information relating to a matter mentioned in subsection (3).

(3) For the purposes of subsection (2), the matters are:

(a) the unloading of goods subject to Customs control from a ship or aircraft or their movement to a particular part of the cargo terminal; or

(b) the receipt of goods subject to Customs control at the cargo terminal; or

(i) in the cargo terminal; or

(ii) on a ship or aircraft within, or adjacent to, the terminal; or

(d) the security of goods subject to Customs control in the cargo terminal; or

(e) where goods subject to Customs control are stacked in the terminal; or

(f) ship bay plans relating to the terminal; or

(g) the rostering and attendance of staff at the terminal.

102EA Power to make requests

(1) An authorised officer may request, in writing, that a cargo terminal operator of a cargo terminal:

(a) provide documentation to the officer of the procedures and methods in place for ensuring the security of goods at the terminal; or

(b) provide to the officer the records relating to each person who enters the terminal for the period specified in the request.

(2) An authorised officer may request, in writing, that a cargo terminal operator of a cargo terminal or a cargo handler:

(a) provide information to the officer that would support an assessment that:

(i) the operator or handler is a fit and proper person; and

(ii) if the operator or handler is a body corporate - each executive officer of the body corporate is a fit and proper person; or

(b) give the officer access to electronic equipment at the terminal for the purpose of obtaining information relating to a matter mentioned in subsection 102E(3).

102EB Power to give directions

Directions relating to cargo terminals

(1) An authorised officer may give a written direction to a cargo terminal operator of a cargo terminal requiring the operator to:

(a) carry out remedial work at or near the terminal to address security concerns; or

(b) install a closed-circuit television system for the terminal; or

Directions relating to goods

(2) An authorised officer may give a written direction to:

(a) a cargo terminal operator of a cargo terminal; or

(b) a cargo handler in relation to a cargo terminal.

(3) A direction given under subsection (2) may relate to all or any of the following:

(a) the movement of goods subject to Customs control into, within or out of the terminal;

(b) the loading, unloading or handling of goods subject to Customs control at the terminal;

(4) A direction given under subsection (1) or (2) is not a legislative instrument.

Other directions

(5) An authorised officer may, for the purpose of:

(a) preventing interference with goods subject to Customs control at a cargo terminal; or

(b) preventing interference with the exercise of the powers or the performance of the functions of the authorised person or another authorised person in respect of a cargo terminal or of goods subject to Customs control at the terminal;

give directions to any person at the terminal.

(6) If a direction is given under subsection (5) in writing, the direction is not a legislative instrument.

Division 5 - Directions to cargo terminal operators or cargo handlers

102F Directions to cargo terminal operators or cargo handlers etc.

(1) The CEO may give a written direction to:

(a) a cargo terminal operator; or

(b) if a cargo terminal operator is a body corporate - an executive officer of the operator;

that the person may not be involved, either indefinitely or for a specified period, in any way in the loading, unloading, handling or storage of goods subject to Customs control in the terminal.

(2) The CEO may give a written direction to:

(a) a cargo handler; or

(b) if a cargo handler is a body corporate - an executive officer of the handler;

that the person may not be involved, either indefinitely or for a specified period, in any way in the loading, unloading, handling or storage of goods subject to Customs control in a cargo terminal specified in the direction.

(3) Before giving a direction, the CEO must be satisfied that:

(a) the person to whom the direction will be given is not a fit and proper person; or

(b) the direction is necessary:

(i) for the protection of the revenue; or

(ii) for the purpose of ensuring compliance with the Customs Acts, any other law of the Commonwealth prescribed by the regulations or a law of a State or Territory prescribed by the regulations.

102FA Offence - failure to comply with direction

(1) A person commits an offence if:

(a) the person is given a direction under section 102F; and

(b) the person fails to comply with the direction.

Penalty: 100 penalty units.

(2) Subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

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