(18) A sea installation shall not be taken to be installed in a coastal area for the purposes of this Act unless it is to be taken to be so installed under this section.
(18A) An offshore electricity installation is taken to be installed in the Commonwealth offshore area if the installation:
(a) rests on the seabed in the Commonwealth offshore area; or
(b) is fixed or connected to the seabed in the Commonwealth offshore area (whether or not the installation is floating); or
(c) is attached or tethered to any other offshore electricity installation (including any other offshore electricity installation covered by this paragraph);
but does not include a vessel that is temporarily moored or anchored to the seabed in the Commonwealth offshore area.
(18B) An offshore electricity installation is not taken to be installed in the Commonwealth offshore area for the purposes of this Act unless it is taken to be so installed under subsection (18A).
(19) For the purposes of Part XII, a person will be taken to carry a thing, including a thing constituting or containing special forfeited goods or prohibited goods, on his or her body only if the thing constitutes, or is in or under, clothing worn by the person.
(19A) In subsection (19), the reference to clothing worn by a person includes a reference to any personal accessory or device that is worn by, or attached to, the person.
(19B) Without limiting Part XII, a person is taken to be unlawfully carrying prohibited goods on his or her body if the person is carrying, on his or her body, restricted goods that have been brought into Australia other than in accordance with a permission under subsection 233BABAE(2).
(20) For the purposes of Division 1B of Part XII, a person is in need of protection if, and only if, the person is:
(a) under 18 years of age; or
(b) in a mental or physical condition (whether temporary or permanent) that makes the person incapable of managing his or her affairs.
4AAA Members of family
For the purposes of this Act, the members of a person’s family are taken to include the following (without limitation):
(a) a de facto partner of the person (within the meaning of the Acts Interpretation Act 1901);
(b) someone who is the child of the person, or of whom the person is the child, because of the definition of child in section 4;
(c) anyone else who would be a member of the person’s family if someone mentioned in paragraph (a) or (b) is taken to be a member of the person’s family.
4AA Act not to apply so as to exceed Commonwealth power
(1) Unless the contrary intention appears, if a provision of this Act:
(a) would, apart from this section, have an invalid application; but
(b) also has at least one valid application;
it is the Parliament’s intention that the provision is not to have the invalid application, but is to have every valid application.
(2) Despite subsection (1), the provision is not to have a particular valid application if:
(a) apart from this section, it is clear, taking into account the provision’s context and the purpose or object underlying the Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the Commonwealth’s legislative power; or
(b) the provision’s operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application of the provision had been within the Commonwealth’s legislative power.
(3) Subsection (2) does not limit the cases where a contrary intention may be taken to appear for the purposes of subsection (1).
(4) This section applies to a provision of this Act, whether enacted before, at or after the commencement of this section.
(5) In this section:
application means an application in relation to:
(a) one or more particular persons, things, matters, places, circumstances or cases; or
(b) one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases.
invalid application, in relation to a provision, means an application because of which the provision exceeds the Commonwealth’s legislative power.
valid application, in relation to a provision, means an application that, if it were the provision’s only application, would be within the Commonwealth’s legislative power.
4AB Compensation for acquisition of property
(1) If:
(a) this Act would result in an acquisition of property; and
(b) any provision of this Act would not be valid, apart from this section, because a particular person has not been compensated;
the Commonwealth must pay that person:
(c) a reasonable amount of compensation agreed on between the person and the Commonwealth; or
(d) failing agreement—a reasonable amount of compensation determined by a court of competent jurisdiction.
(2) Any damages or compensation recovered, or other remedy given, in a proceeding begun otherwise than under this section must be taken into account in assessing compensation payable in a proceeding begun under this section and arising out of the same event or transaction.
(3) In this section:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
(4) The Consolidated Revenue Fund is appropriated for the purposes of making payments under this section.
4A Approved forms and approved statements
(1) In this Act, a reference to an approved form is a reference to a form that is approved, by instrument in writing, by the Comptroller‑General of Customs.
(1A) In this Act, a reference to an approved statement is a reference to a statement that is approved, by instrument in writing, by the Comptroller‑General of Customs.
(2) Neither of the following is a legislative instrument:
(a) a form or statement approved as mentioned in this section;
(b) an instrument approving a form or statement as mentioned in this section.
4B What is a Customs‑related law
In this Act:
Customs‑related law means:
(a) this Act; or
(b) the Excise Act 1901 and regulations made under that Act; or
(baa) section 72.13 of the Criminal Code; or
(ba) Division 307 of the Criminal Code; or
(c) any other Act, or any regulations made under any other Act, in so far as the Act or regulations relate to the importation or exportation of goods, where the importation or exportation is subject to compliance with any condition or restriction or is subject to any tax, duty, levy or charge (however described).
4C Identity cards
(1) The Comptroller‑General of Customs must cause an identity card to be issued to an officer who is an authorised officer for the purposes of Division 3A of Part VI or is a monitoring officer for the purposes of Subdivision J of Division 1 of Part XII or is a verification officer for the purposes of Subdivision JA of Division 1 of Part XII.
(2) An identity card:
(a) must be in a form approved by the Comptroller‑General of Customs; and
(b) must contain a recent photograph of the authorised officer, monitoring officer or verification officer.
(3) If a person to whom an identity card has been issued ceases to be an authorised officer, monitoring officer or verification officer for the purposes of the provisions of this Act in respect of which the card was issued, the person must return the card to the Comptroller‑General of Customs as soon as practicable.
Penalty: One penalty unit.
(4) An offence for a contravention of subsection (3) is an offence of strict liability.
(5) An authorised officer, monitoring officer or verification officer must carry his or her identity card at all times when exercising powers in respect of which the card was issued.
5 Penalties at foot of sections or subsections
The penalty, pecuniary or other, set out:
(a) at the foot of a section of this Act; or
(b) at the foot of a subsection of a section of this Act, but not at the foot of the section;
indicates that a contravention of the section or of the subsection, as the case may be, whether by act or omission, is an offence against this Act, punishable upon conviction by a penalty not exceeding the penalty so set out.
5AA Application of the Criminal Code
(1) Subject to subsection (2), Chapter 2 of the Criminal Code applies to an offence against this Act.
(2) For the purposes of a Customs prosecution:
(a) Parts 2.1, 2.2 and 2.3 of the Criminal Code apply; and
(b) Parts 2.4, 2.5 and 2.6 of the Criminal Code do not apply; and
(c) a reference to criminal responsibility in Chapter 2 of the Criminal Code is taken to be a reference to responsibility.
(3) This section is not to be interpreted as affecting in any way the nature of any offence under this Act, the nature of any prosecution or proceeding in relation to any such offence, or the way in which any such offence is prosecuted, heard or otherwise dealt with.
(4) Without limiting the scope of subsection (3), this section is not to be interpreted as affecting in any way the standard or burden of proof for any offence under this Act that is the subject of a Customs prosecution.
(5) In this section:
Customs prosecution has the meaning given in section 244.
Part II—Administration
5A Attachment of overseas resources installations
(1) A person shall not cause an overseas resources installation to be attached to the Australian seabed.
Penalty: 500 penalty units.
(1A) Subsection (1) does not apply if the person has the permission of the Comptroller‑General of Customs given under subsection (2).
(2) The Comptroller‑General of Customs may, by notice in writing given to a person who has applied for permission to cause an overseas resources installation to be attached to the Australian seabed, give the person permission, subject to such conditions (if any) as are specified in the notice, to cause that installation to be so attached.
(3) A person who has been given permission under subsection (2) shall not refuse or fail to comply with any condition (including a condition imposed or varied under subsection (4)), to which that permission is subject.
Penalty: 100 penalty units.
(4) Where the Comptroller‑General of Customs has, under subsection (2), given a person permission to cause an overseas resources installation to be attached to the Australian seabed, the Comptroller‑General of Customs may, at any time before that installation is so attached, by notice in writing served on the person:
(a) revoke the permission;
(b) revoke or vary a condition to which the permission is subject; or
(c) impose new conditions to which the permission is to be subject.
(5) Without limiting the generality of subsection (2), conditions to which a permission given under that subsection may be subject include:
(a) conditions relating to biosecurity risks (within the meaning of the Biosecurity Act 2015); and
(b) conditions requiring the master of an installation to bring the installation to a place specified by the Comptroller‑General of Customs for examination for purposes relating to biosecurity risks (within the meaning of the Biosecurity Act 2015) before the installation is attached to the Australian seabed.
5B Installation of overseas sea installations
(1) A person shall not cause an overseas sea installation to be installed in an adjacent area or a coastal area.
Penalty: 500 penalty units.
(1A) Subsection (1) does not apply if the person has the permission of the Comptroller‑General of Customs given under subsection (2).
(2) The Comptroller‑General of Customs may, by notice in writing given to a person who has applied for permission to cause an overseas sea installation to be installed in an adjacent area or a coastal area, give the person permission, subject to such conditions (if any) as are specified in the notice, to cause that installation to be so installed.
(3) A person who has been given permission under subsection (2) shall not refuse or fail to comply with any condition (including a condition imposed or varied under subsection (4)) to which that permission is subject.
Penalty: 100 penalty units.
(4) Where the Comptroller‑General of Customs has, under subsection (2), given a person permission to cause an overseas sea installation to be installed in an adjacent area or a coastal area, the Comptroller‑General of Customs may, at any time before that installation is so installed, by notice in writing served on the person:
(a) revoke the permission;
(b) revoke or vary a condition to which the permission is subject; or
(c) impose new conditions to which the permission is to be subject.
(5) Without limiting the generality of subsection (2), conditions to which a permission given under that subsection in relation to a sea installation may be subject include:
(a) conditions relating to biosecurity risks (within the meaning of the Biosecurity Act 2015); and
(b) conditions requiring the owner of the installation, to bring the installation to a place specified by the Comptroller‑General of Customs for examination for purposes relating to biosecurity risks (within the meaning of the Biosecurity Act 2015) before the installation is installed in an adjacent area or a coastal area.
5BA Installation of overseas offshore electricity installations
(1) A person commits an offence if:
(a) the person causes an overseas offshore electricity installation to be installed; and
(b) the installation is installed in the Commonwealth offshore area.
Penalty: 500 penalty units.
(2) Subsection (1) does not apply if the person has permission in force under subsection (4).
(3) A person may apply to the Comptroller‑General of Customs for permission to cause an overseas offshore electricity installation to be installed in the Commonwealth offshore area.
(4) The Comptroller‑General of Customs may, by notice in writing given to the applicant, grant the permission, subject to such conditions (if any) as are specified in the notice.
(5) A person commits an offence if:
(a) the person has permission in force under subsection (4); and
(b) the permission is subject to one or more conditions (including a condition imposed or varied under subsection (6)); and
(c) the person fails to comply with any of those conditions.
Penalty: 100 penalty units.
(6) If the Comptroller‑General of Customs has granted a person permission under subsection (4), the Comptroller‑General of Customs may, at any time before the installation is installed, by notice in writing given to the person:
(a) revoke the permission; or
(b) revoke or vary a condition to which the permission is subject; or
(c) impose new conditions to which the permission is to be subject.
(7) Without limiting the generality of subsection (4), conditions to which a permission given under that subsection in relation to an offshore electricity installation may be subject include:
(a) conditions relating to biosecurity risks (within the meaning of the Biosecurity Act 2015); and
(b) conditions requiring the owner of the installation, to bring the installation to a place specified by the Comptroller‑General of Customs for examination for purposes relating to biosecurity risks (within the meaning of the Biosecurity Act 2015) before the installation is installed in the Commonwealth offshore area.
5C Certain installations to be part of Australia
(1) For the purposes of the Customs Acts:
(a) a resources installation that becomes attached to, or that is, at the commencement of this subsection, attached to, the Australian seabed; or
(b) a sea installation that becomes installed in, or that is, at the commencement of this subsection, installed in, an adjacent area or a coastal area; or
(c) an offshore electricity installation that becomes installed in, or that is, at the commencement of this paragraph, installed in, the Commonwealth offshore area;
shall, subject to subsections (2), (3) and (4), be deemed to be part of Australia.
(2) A resources installation that is deemed to be part of Australia because of the operation of this section shall, for the purposes of the Customs Acts, cease to be part of Australia if:
(a) the installation is detached from the Australian seabed, or from another resources installation attached to the Australian seabed, for the purpose of being taken to a place outside the outer limits of Australian waters (whether or not the installation is to be taken to a place in Australia before being taken outside those outer limits); or
(b) after having been detached from the Australian seabed otherwise than for the purpose referred to in paragraph (a), the installation is moved for the purpose of being taken to a place outside the outer limits of Australian waters (whether or not the installation is to be taken to a place in Australia before being taken outside those outer limits).
(3) A sea installation that is deemed to be part of Australia because of the operation of this section shall, for the purposes of the Customs Acts, cease to be part of Australia if:
(a) the installation is detached from its location for the purpose of being taken to a place that is not in an adjacent area or in a coastal area; or
(b) after having been detached from its location otherwise than for the purpose referred to in paragraph (a), the installation is moved for the purpose of being taken to a place that is not in an adjacent area or in a coastal area.
(4) An offshore electricity installation that is deemed to be part of Australia because of the operation of this section ceases to be part of Australia for the purposes of the Customs Acts if:
(a) the installation is uninstalled from its location for the purpose of being taken to a place outside the outer limits of the Commonwealth offshore area; or