77VNotice of intended cancellation etc. of a depot licence

77V  Notice of intended cancellation etc. of a depot licence  (1) The Comptroller‑General of Customs may give a notice under this subsection to the holder of a depot licence if:  (a) the Comptroller‑General of Customs is satisfied that:  (i) the physical security of the depot is no longer adequate having regard to the matters referred to in paragraph 77K(1)(h); or  (vii) a condition to which the licence is subject has not been complied with; or  (viii) the depot licence charge payable in respect of the grant of the licence remains unpaid more than 30 days after the grant of the licence; or  (aa) if the licence is held by a natural person—the Comptroller‑General of Customs is satisfied that:  (i) the applicant is not a fit and proper person to hold a depot licence; or  (ii) a person participating in the management or control of, or in the operations carried out at, the depot (whether or not the person is present at the depot) is not a fit and proper person to so participate; or  (ab) if the licence is held by a partnership—the Comptroller‑General of Customs is satisfied that:  (i) a member of the partnership is not a fit and proper person to be a member of a partnership holding a depot licence; or  (ii) a person participating in the management or control of, or in the operations carried out at, the depot (whether or not the person is present at the depot) is not a fit and proper person to so participate; or  (ac) if the licence is held by a company—the Comptroller‑General of Customs is satisfied that:  (i) a director of the company is not a fit and proper person to be a director of a company holding a depot licence; or  (ii) a person participating in the management or control of, or in the operations carried out at, the depot (whether or not the person is present at the depot) is not a fit and proper person to so participate; or  (iii) the company is not a fit and proper company to hold a depot licence; or  (ad) the Comptroller‑General of Customs is satisfied that it is appropriate in all the circumstances to cancel the licence, having regard to the matters covered by subsection (3A); or  (b) the Comptroller‑General of Customs is satisfied on any other grounds that it is necessary to cancel the licence for the protection of the revenue or 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.  (2) In deciding whether a person is a fit and proper person for the purposes of paragraph (1)(aa), (ab) or (ac) (other than subparagraph (1)(ac)(iii)), the Comptroller‑General of Customs must have regard to:  (a) whether or not the person is an insolvent under administration; and  (b) any conviction of the person of an offence against this Act, or of an offence against another law of the Commonwealth, or a law of a State or of a Territory, punishable by imprisonment for one year or longer, that is committed:  (i) if the licence has not been renewed previously—after the grant of the licence or within 10 years immediately before the grant of the licence; or  (ii) if the licence has been renewed on one or more occasions—after the renewal or latest renewal of the licence or within 10 years immediately before that renewal; and  (c) any misleading statement made under section 77H or 77J in relation to the application for the depot licence by or in relation to the person; and  (d) if any such statement made by the person was false—whether the person knew that the statement was false; and  (e) whether the person has been refused a transport security identification card, or has had such a card suspended or cancelled:  (i) if the licence has not been renewed previously—after the grant of the licence or within 10 years immediately before the grant of the licence; or  (ii) if the licence has been renewed on one or more occasions—after the renewal or latest renewal of the licence or within 10 years immediately before that renewal.  (3) In deciding whether a company is a fit and proper company for the purposes of subparagraph (1)(ac)(iii), the Comptroller‑General of Customs must have regard to:  (a) the matters referred to in paragraphs 77K(3)(c) to (g); and  (b) any conviction of the company of an offence against this Act or of an offence against another law of the Commonwealth, or a law of a State or of a Territory, punishable by a fine of $5,000 or more, that is committed:  (i) if the licence has not been renewed previously—after the grant of the licence or within 10 years immediately before the grant of the licence; or  (ii) if the licence has been renewed on one or more occasions—after the renewal or the latest renewal of the licence or within 10 years immediately before that renewal;   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.  (3A) For the purposes of paragraph (1)(ad), the matters covered by this subsection are the following:  (a) if the licence is held by a natural person—the experience of the following in operations that are performed upon, or in relation to, goods at the depot:  (i) the holder;  (ii) each person, known to the Comptroller‑General of Customs, who is participating in the management or control of, or in the operations carried out at, the depot (whether or not the person is present at the depot);  (b) if the licence is held by a company—the experience of the following in operations that are performed upon, or in relation to, goods at the depot:  (iii) each person, known to the Comptroller‑General of Customs, who is participating in the management or control of, or in the operations carried out at, the depot (whether or not the person is present at the depot);  (c) if the licence is held by a partnership—the experience of the following in operations that are performed upon, or in relation to, goods at the depot:  (ii) each person, known to the Comptroller‑General of Customs, who is participating in the management or control of, or in the operations carried out at, the depot (whether or not the person is present at the depot);  (d) in any case—the holder’s operating procedures or processes that apply at the depot in relation to goods at the depot.  (5) The notice under subsection (1):  (a) must state that, if the holder of the depot licence wishes to prevent the cancellation of the licence, he or she may, within 7 days after the day on which the notice is given, give to the Comptroller‑General of Customs at an address specified in the notice a written statement showing cause why the licence should not be cancelled; and  (b) may state that the licence is suspended if the notice is given because of the operation of paragraph (1)(ad) or (b).  (6) If the notice under subsection (1) states that the depot licence is suspended, the licence is suspended on and from the giving of the notice. Note: For revocation of the suspension, see section 77VB.  (7) Despite the giving of a notice under subsection (1) in relation to a depot licence, nothing in this Part prevents:  (a) the Comptroller‑General of Customs giving a notice under subsection 77T(1) in relation to the renewal of the licence; or  (b) the holder of the licence obtaining a renewal of the licence by paying a depot licence charge in accordance with section 77T. Note: A depot licence charge paid in the circumstances described in this subsection may be refunded under section 77W. 77VA  Depot must not be used if depot licence is suspended etc. Offence  (1) If a depot licence is suspended under section 77T or 77V, a person must not use the depot for a purpose referred to in subsection 77G(1). Collector may permit use of depot etc. during suspension  (2) If a depot licence is suspended under section 77T or 77V, a Collector may, while the licence is so suspended and despite subsection (1) of this section:  (a) permit imported goods, or goods for export, that are subject to customs control to be held in the depot; and  (b) permit the unpacking or packing of such goods; and  (c) permit the removal of such goods from the depot, including the removal of such goods to another depot; and  (d) by notice given to the owner of such goods, require the owner to remove the goods to another depot, or to a warehouse, approved by the Collector; and  (e) take such control of the depot, or all or any goods in the depot, as may be necessary:  (ii) for 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; and  (f) by notice in writing to the holder of the licence, require the holder to pay to the Commonwealth, in respect of the services of officers required as the result of the suspension, such fee as the Comptroller‑General of Customs determines having regard to the cost of the services. Note 1: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code). Note 2: See section 77ZA for the ways in which a notice may be given to the owner of goods or the holder of the licence.  (3) Without limiting paragraph (2)(f), the services referred to in that paragraph include services relating to:  (a) the enforcement of the suspension; and  (b) the supervision of activities in relation to the depot that are permitted by a Collector.  (4) If an amount that the holder of a depot licence is required to pay in accordance with a notice under paragraph (2)(f) is not paid, that amount may be recovered as a debt due to the Commonwealth by action in a court of competent jurisdiction. 77VB  Revocation of suspension of depot licences   If a depot licence is suspended under section 77V, the Comptroller‑General of Customs:  (a) may at any time revoke the suspension; and  (b) if the licence has not been cancelled within 28 days after the day on which the licence was suspended—must revoke the suspension. Note: For the cancellation of depot licences, see section 77VC. 77VC  Cancellation of depot licences  (1) The Comptroller‑General of Customs may, by notice in writing given to the holder of a depot licence, cancel the licence if the Comptroller‑General of Customs is satisfied of a matter mentioned in subsection 77V(1) in relation to the licence.  (2) The Comptroller‑General of Customs may, by notice in writing given to the holder of a depot licence, cancel the licence if the Comptroller‑General of Customs receives a written request from the holder of the licence that the licence be cancelled on and after a specified day.  (4) If under this section the Comptroller‑General of Customs cancels a depot licence and goods remain in the former depot, the Comptroller‑General must publish a notice, by any means the Comptroller‑General considers appropriate, informing owners of goods in that former depot of the cancellation and the date of the cancellation.