(1) No fastening, lock, mark, or seal placed by an officer upon any goods or upon any door hatchway opening or place upon any ship, aircraft or installation shall be opened, altered, broken or erased whilst the goods upon which the fastening, lock, mark, or seal is placed or which are intended to be secured thereby shall remain subject to customs control.
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.
(3) Subsection (1) does not apply to an opening, alteration, breaking or erasure by authority.
Note: For by authority, see subsection 4(1).
192 Seals etc. on ship or aircraft in port bound to another port within Commonwealth
(1) No fastening, lock, mark, or seal placed by an officer upon any goods or upon any door, hatchway, opening, or place for the purpose of securing any stores upon any ship or aircraft which has arrived in any port or airport from parts beyond the seas and which is bound to any other port or airport within the Commonwealth shall be opened, altered, broken, or erased; and if any ship or aircraft enters any port or airport with any such fastening, lock, mark, or seal opened, altered, broken, or erased contrary to this section, the master or pilot commit an offence against this Act.
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.
(3) Subsection (1) does not apply to an opening, alteration, breaking or erasure by authority.
Note: For by authority, see subsection 4(1).
193 Officers may enter and remain upon coasts etc.
(1) An officer of Customs may, for the purpose of performing the officer’s duties and functions as an officer, and a person assisting an officer of Customs may, for the purpose of assisting the officer to perform those duties and functions, enter and remain upon any part of the following:
(a) the coast, including but not limited to:
(i) the shores, banks and beaches of the coast; and
(ii) any man‑made structure in or on the coast;
(b) a port, bay or harbour, including but not limited to:
(i) the shores, banks and beaches of the port, bay or harbour; and
(ii) any man‑made structure in or on the port, bay or harbour;
(c) an airport (including an airport that has not been appointed under section 15) or airstrip;
(d) a lake or river, including but not limited to:
(i) the shores, banks and beaches of the lake or river; and
(ii) any man‑made structure in or on the lake or river;
(e) for the purpose of entering and remaining upon a place mentioned in paragraph (a), (b), (c), or (d)—an area of land or water that is adjacent to that place.
For this purpose, reasonable means, including reasonable force, may be used by the officer or the person assisting the officer.
(2) A person commits an offence if:
(a) the person is an owner, occupier or operator of any of the places mentioned in subsection (1); and
(b) the person is present at the place mentioned in subsection (1) at the time the officer, or the person assisting an officer, is exercising, or attempting to exercise, his or her powers under this section; and
(c) the person does not provide the officer, or the person assisting the officer, with all reasonable facilities and assistance, including a means of access to the place, that the person is reasonably capable of providing.
Penalty: 30 penalty units.
194 Ships on service may be moored in any place
(1) The officer in charge of a ship employed in the service of the Australian Border Force (within the meaning of the Australian Border Force Act 2015) may:
(a) moor, or haul up and moor, the ship to:
(i) any part of the coast or the shores, banks or beaches of any port, bay, harbour, lake or river; or
(ii) any man‑made structure at or in any of the places mentioned in subparagraph (i); or
(iii) any man‑made structure anywhere in the territorial sea of Australia, the contiguous zone of Australia, or the exclusive economic zone of Australia; and
(b) remain at the mooring as long as the officer considers necessary.
(2) A person commits an offence if:
(a) the person is an owner, occupier or operator of any of the places mentioned in paragraph (1)(a); and
(b) the person does not provide the officer with all reasonable facilities and assistance that the person is reasonably capable of providing; and
(c) the person does not do so in circumstances where the officer is exercising, or attempting to exercise, his or her powers under this section.
Penalty: 30 penalty units.
195 Power to question passengers etc.
(1) An officer of Customs may question:
(a) any person who is on board a ship or an aircraft or an installation of the kind referred to in paragraph 187(b), (c), (d), (e), (ea) or (eb); or
(b) any person who has, or who the officer has reason to believe has, got off a ship or out of an aircraft; or
(c) any person who the officer has reason to believe is about to board a ship or an aircraft;
as to whether that person or any child or other person accompanying him or her has on his or her person, in his or her baggage or otherwise with him or her any:
(d) dutiable goods; or
(e) excisable goods; or
(f) prohibited goods.
(2) A person shall answer questions put to him or her in pursuance of subsection (1).
Penalty: 30 penalty units.
(3) Subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
195A Power to question persons found in restricted areas
If a person is in a section 234AA place, an officer may ask the person for, and require the person to provide:
(a) the person’s name; and
(b) the person’s reason for being in the section 234AA place; and
(c) evidence of the person’s identity.
Note: Failing to answer a question or produce a document when required to do so by an officer may be an offence (see sections 243SA and 243SB). However, a person does not have to answer if doing so would tend to incriminate the person (see section 243SC).
196C Power to question persons claiming packages
(1) Before an officer of Customs decides whether or not to authorise the delivery into home consumption of goods referred to in section 71, the officer may:
(a) request the person to state his or her full name and residential address; and
(b) ask the person whether he or she is the owner of the goods; and
(c) where the person states that he or she is not the owner of the goods, request the person to state the full name and residential address of the owner of the goods; and
(d) request the person to produce evidence of the correctness of the information given by him or her in compliance with a request made of him or her in pursuance of paragraph (a) or (c).
(2) A person shall not refuse or fail to comply with a request made of him or her, or to answer a question put to him or her, in pursuance of subsection (1).
Penalty: 10 penalty units.
(2A) Subsection (2) does not apply if the person has a reasonable excuse.
(3) Where a person refuses or fails to comply with a request made of him or her, or to answer a question put to him or her, by an officer of Customs in pursuance of subsection (1), the officer may:
(a) detain the person for the purposes of establishing his or her identity; or
(b) if the officer believes on reasonable grounds that there is no reasonable excuse for the person refusing or failing to so comply, detain the person and take him or her, without undue delay, before a magistrate to be charged with an offence against subsection (2).
(4) In this section, owner, in relation to goods, means a person who has an interest in the goods.
197 Power to stop conveyances about to leave a Customs place
(1) If a conveyance is in a Customs place, an officer of Customs may:
(a) require the conveyance to stop; and
(b) check to establish that there is appropriate documentation authorising the movement of any goods in or on the conveyance that are subject to customs control within the meaning of section 30.
(2) For the purposes of subsection (1), an officer of Customs may question the person apparently in charge of the conveyance about any goods in, on, or in a container on, the conveyance.
(3) The power in paragraph (1)(b) includes a power to give directions relating to:
(a) the unloading of any goods from the conveyance; or
(b) their movement to a particular part of the Customs place for further examination.
(4) If a direction under subsection (3) is not complied with, an officer of Customs may do what is necessary to give effect to the direction or to arrange for it to be done.
(5) An officer of Customs must not detain a conveyance under this section for longer than is necessary and reasonable to exercise the powers conferred by this section.
(6) A person in charge of a conveyance commits an offence if:
(a) the conveyance is in a Customs place; and
(b) an officer of Customs requires the conveyance to stop; and
(c) the person does not stop the conveyance as so required.
Penalty: 60 penalty units.
(7) This offence is an offence of strict liability.
Subdivision C—Search warrants in respect of things believed to be evidential material
198 When search warrants relating to premises can be issued
(1) A judicial officer may issue a warrant to search premises if the judicial officer is satisfied by information on oath that there are reasonable grounds for suspecting that there is, or within the next 72 hours there will be, any evidential material, other than evidential material that is also a forfeited good, on or in the premises.
(2) If:
(a) the person applying for the warrant has, at any time previously, applied for a warrant relating to the search of, or the seizure of goods that are on or in, the same premises; and
(b) the premises are not a Customs place;
the person must state particulars of those applications and their outcome in the information.
(3) If a judicial officer issues a warrant, the judicial officer is to state in the warrant:
(a) the offence to which the warrant relates; and
(b) a description of the premises to which the warrant relates; and
(c) the kind of evidential material that is to be searched for under the warrant; and
(d) the name of the authorised person who, unless he or she inserts the name of another authorised person in the warrant, is to be responsible for executing the warrant; and
(e) the time at which the warrant expires (see subsection (3A)); and
(f) whether the warrant may be executed at any time or only during particular hours.
(3A) The time stated in the warrant under paragraph (3)(e) as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.
Example: If a warrant is issued at 3 pm on a Monday, the expiry time specified must not be later than midnight on Monday in the following week.
(4) The judicial officer is also to state in the warrant:
(a) that it authorises the seizure of things (other than evidential material of the kind referred to in paragraph (3)(c)) found on or in the premises in the course of the search that the executing officer or a person assisting believes on reasonable grounds:
(i) to be evidential material in relation to an offence to which the warrant relates or to another offence, or to be evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act); and
(ii) not to be forfeited goods;
if the executing officer or person assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence; and
(b) whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed, if the executing officer or a person assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.
(5) Paragraph (3)(e) and subsection (3A) do not prevent the issue of successive warrants in relation to the same premises.
(6) If the application for the warrant is made under section 203M, this section (other than subsection (3A)) applies as if:
(a) subsection (1) referred to 48 hours rather than 72 hours; and
(b) paragraph (3)(e) required the judicial officer to state in the warrant the period for which the warrant is to remain in force, which must not be more than 48 hours.
(7) A judicial officer of a particular State or Territory may issue a warrant in respect of the search of premises in another State or Territory.
(8) This section is not to be taken to limit any power of search granted to an officer of Customs under any other provision of a law of the Commonwealth.
199 The things that are authorised by a search warrant relating to premises
(1) A search warrant that is in force in relation to premises authorises the executing officer or a person assisting:
(a) to enter the warrant premises; and
(b) to search for and to record fingerprints found on or in the premises, and take samples of things (other than human biological fluid or tissue) found on or in the premises for forensic purposes; and
(c) to search the premises for the kind of evidential material specified in the warrant, and to seize things of that kind found on or in the premises; and
(d) to seize other things found on or in the premises in the course of the search that the executing officer or a person assisting believes on reasonable grounds:
(i) to be evidential material in relation to an offence to which the warrant relates or to another offence, or to be evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act); and
(ii) not to be forfeited goods;
if the executing officer or person assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence; and
(e) if the warrant so allows:
(i) to conduct an ordinary search or a frisk search of a person at or near the premises if the executing officer or a person assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession; and
(ii) to seize any such material or items found in the course of the search.
(2) Without limiting the generality of the powers conferred by a warrant issued in respect of premises that are not a conveyance or a container, the warrant extends to every conveyance or container on the premises.
(3) Without limiting the generality of the powers conferred by a warrant issued in respect of premises that are a conveyance, the warrant:
(a) permits entry of the conveyance, wherever it is; and
(b) extends to every container on the conveyance.
(4) A warrant issued in respect of premises that are a container permits entry of the container, wherever it is, to the extent that it is of a size permitting entry.
(4A) A warrant that is in force in relation to premises authorises the executing officer or a person assisting:
(a) to use:
(i) a computer, or data storage device, found in the course of a search authorised under the warrant; or
(ii) a telecommunications facility operated or provided by the Commonwealth or a carrier; or
(iii) any other electronic equipment; or
(iv) a data storage device;
for the purpose of obtaining access to data (the relevant data) that is held in the computer or device mentioned in subparagraph (i) at any time when the warrant is in force, in order to determine whether the relevant data is evidential material of a kind specified in the warrant; and
(b) if necessary to achieve the purpose mentioned in paragraph (a)—to add, copy, delete or alter other data in the computer or device mentioned in subparagraph (a)(i); and
(c) if, having regard to other methods (if any) of obtaining access to the relevant data which are likely to be as effective, it is reasonable in all the circumstances to do so:
(i) to use any other computer or a communication in transit to access the relevant data; and
(ii) if necessary to achieve that purpose—to add, copy, delete or alter other data in the computer or the communication in transit; and
(d) to copy any data to which access has been obtained, and that:
(i) appears to be relevant for the purposes of determining whether the relevant data is evidential material of a kind specified in the warrant; or
(ii) is evidential material of a kind specified in the warrant; and
(e) to do any other thing reasonably incidental to any of the above.
Note: As a result of the warrant, a person who, by means of a telecommunications facility, obtains access to data stored in a computer etc. will not commit an offence under Part 10.7 of the Criminal Code or equivalent State or Territory laws (provided that the person acts within the authority of the warrant).
(4B) Subsection (4A) does not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to:
(a) materially interfere with, interrupt or obstruct:
(i) a communication in transit; or
(ii) the lawful use by other persons of a computer;
unless the addition, deletion or alteration, or the doing of the thing, is necessary to do one or more of the things specified in the warrant; or
(b) cause any other material loss or damage to other persons lawfully using a computer.
(4C) It is immaterial whether a thing mentioned in subsection (4A) is done:
(a) at the warrant premises; or
(b) at any other place.
(5) If the warrant states that it may be executed only during particular hours, the warrant must not be executed outside those hours.