77KRequirements for grant of depot licence

77K  Requirements for grant of depot licence  (1) The Comptroller‑General of Customs must not grant a depot licence if, in his or her opinion:  (a) if the applicant is a natural person:  (i) the applicant is not a fit and proper person to hold a depot licence; or  (ii) the applicant would not be in a position to occupy and control the proposed depot if the licence were granted; or  (iii) a person who would participate in the management or control of, or in the operations carried out at, the proposed depot (whether or not the person would be present at the proposed depot) is not a fit and proper person to so participate; or  (b) if the applicant is a partnership:  (i) any of the partners is not a fit and proper person to be a member of a partnership holding a depot licence; or  (ii) none of the partners in the partnership would be in a position to occupy and control the proposed depot if the licence were granted; or  (iii) a person who would participate in the management or control of, or in the operations carried out at, the proposed depot (whether or not the person would be present at the proposed depot) is not a fit and proper person to so participate; or  (c) if the applicant is a company:  (i) any of the directors of the company is not a fit and proper person to be a director of a company holding a depot licence; or  (ii) the company would not be in a position to occupy and control the proposed depot if the licence were granted; or  (iii) a person who would participate in the management or control of, or in the operations carried out at, the proposed depot (whether or not the person would be present at the proposed depot) is not a fit and proper person to so participate; or  (iv) the company is not a fit and proper company to hold a depot licence; or  (h) the physical security of the proposed depot is not adequate having regard to:  (ii) the procedures and methods that would be adopted by the applicant to ensure the security of goods in the proposed depot if the licence were granted; or  (i) the records that would be kept in relation to the proposed depot would not be suitable to enable an officer of Customs adequately to audit those records; or  (j) it is inappropriate in all the circumstances to grant the licence, having regard to the matters covered by subsection (3A).  (2) The Comptroller‑General of Customs must, in deciding whether a person is a fit and proper person for the purposes of paragraph (1)(a), (b) or (c) (other than subparagraph (1)(c)(iv)), have regard to:  (a) any conviction of the person of an offence against this Act committed within the 10 years immediately before that decision; and  (b) any conviction of the person of an offence against another law of the Commonwealth, or a law of a State or of a Territory, that is punishable by imprisonment for one year or longer, being an offence committed within the 10 years immediately before that decision; and  (d) any misleading statement made under section 77H or 77J in relation to the application for the licence by or in relation to the person; and  (e) if any such statement made by the person was false—whether the person knew that the statement was false; and  (f) whether the person has been refused a transport security identification card, or has had such a card suspended or cancelled, within the 10 years immediately before the decision.  (3) The Comptroller‑General of Customs must, in deciding whether a company is a fit and proper company for the purposes of subparagraph (1)(c)(iv), have regard to:  (a) any conviction of the company of an offence against this Act committed within the 10 years immediately before that decision and at a time when any person who is presently a director, officer or shareholder of the company was a director, officer or shareholder of the company; and  (b) any conviction of the company of an offence against another law of the Commonwealth, or a law of a State or of a Territory, that is punishable by a fine of $5,000 or more, being an offence committed within the 10 years immediately before that decision and at a time when a person who is presently a director, officer or shareholder of the company was a director, officer or shareholder of the company; and  (c) whether a receiver of the property, or part of the property, of the company has been appointed; and  (d) whether the company is under administration within the meaning of the Corporations Act 2001; and  (e) whether the company has executed under Part 5.3A of that Act a deed of company arrangement that has not yet terminated; and  (f) whether the company is under restructuring within the meaning of that Act; and  (fa) whether the company has made, under Division 3 of Part 5.3B of that Act, a restructuring plan that has not yet terminated; and  (g) whether the company is being wound up.  (3A) For the purposes of paragraph (1)(j), the matters covered by this subsection are the following:  (a) if the applicant is a natural person—the experience of the following in operations that would be performed upon, or in relation to, goods at the proposed depot:  (i) the applicant;  (ii) each person, known to the Comptroller‑General of Customs, who would participate in the management or control of, or in the operations carried out at, the proposed depot (whether or not the person would be present at the proposed depot);  (b) if the applicant is a partnership—the experience of the following in operations that would be performed upon, or in relation to, goods at the proposed depot:  (ii) each person, known to the Comptroller‑General of Customs, who would participate in the management or control of, or in the operations carried out at, the proposed depot (whether or not the person would be present at the proposed depot);  (c) if the applicant is a company—the experience of the following in operations that would be performed upon, or in relation to, goods at the proposed depot:  (iii) each person, known to the Comptroller‑General of Customs, who would participate in the management or control of, or in the operations carried out at, the proposed depot (whether or not the person would be present at the proposed depot);  (d) in any case—the applicant’s operating procedures and processes that would apply at the proposed depot in relation to goods at the proposed depot.  (4) The Comptroller‑General of Customs may refuse to grant a depot licence if, in his or her opinion, the place in relation to which the licence is sought would be too remote from the nearest place where officers of Customs regularly perform their functions for those officers to be able to conveniently check whether the Customs Acts are being complied with at the place.  (5) If the place in relation to which the application for a depot licence is sought (the proposed depot) is proposed to be used as a depot for imported goods, the Comptroller‑General of Customs must not grant the licence unless the applicant has, at the proposed depot, facilities that would enable the applicant to communicate with the Department electronically.