All goods seized under a seizure warrant, under subsection 203B(2) or (2A), 203C(2), 203CA(3) or 203CB(2) or under section 67 of the Maritime Powers Act 2013 that are taken to be condemned as forfeited to the Crown under section 205C or that are so condemned under section 205D or 205EA shall be dealt with and disposed of in accordance with:
(a) in the case of goods other than narcotic‑related goods—the directions of the Comptroller‑General of Customs; or
(b) in the case of narcotic goods—the directions of the Commissioner of Police or a Deputy Commissioner of Police; or
(c) in the case of narcotic‑related goods other than narcotic goods—in accordance with section 208DA.
208DA Disposal of narcotic‑related goods other than narcotic goods
(1) In this section:
condemned goods means goods seized under a seizure warrant or under subsection 203B(2) or (2A), 203C(2), 203CA(3) or 203CB(2):
(a) that are taken to be condemned as forfeited to the Crown under section 205C; or
(b) that are so condemned under section 205D.
Official Trustee means the Official Trustee in Bankruptcy.
prescribed officer means an SES employee, or acting SES employee, in the Department.
(2) All condemned goods that are narcotic‑related goods (other than narcotic goods) must, subject to any direction given under subsection (4) in relation to those goods, be transferred to the Official Trustee to be dealt with under subsection (3).
(3) Where goods are transferred to the Official Trustee under subsection (2), the Official Trustee must, as soon as practicable:
(a) if the goods are money—credit the amount of the money to the Confiscated Assets Account as required by section 296 of the Proceeds of Crime Act 2002; and
(b) if the goods are not money:
(i) sell or otherwise dispose of the goods; and
(ii) apply the proceeds of the sale or disposition in accordance with subsection (3A); and
(iii) credit an amount equal to the remainder of those proceeds to the Confiscated Assets Account as required by section 296 of the Proceeds of Crime Act 2002.
(3A) The proceeds of the sale or disposition of condemned goods transferred to the Official Trustee under subsection (2) must be applied in payment of:
(a) the Official Trustee’s remuneration; and
(b) the other costs, charges and expenses of the kind referred to in section 243P that are payable to, or incurred by, the Official Trustee in connection with the sale or disposition; and
(c) if the goods were seized by, or delivered into the custody of, a member of the Australian Federal Police under a seizure warrant, or under section 203B, 203C, 203CA, 203CB or 204—the costs, charges and expenses incurred by, or on behalf of, the Commonwealth in connection with the transportation, storage, custody and control of the goods before their transferral to the Official Trustee.
(4) If condemned goods consist of, or include, narcotic‑related goods (other than narcotic goods), the Minister, or a prescribed officer authorised by the Minister for the purposes of this section, may, at any time before the condemned goods are transferred to the Official Trustee under subsection (2), direct that those narcotic‑related goods be disposed of, or otherwise dealt with, as specified in the direction.
208E Sales subject to conditions
Where a ship or aircraft is sold under section 206 or sold or otherwise disposed of under section 208D, the ship or aircraft may be sold or disposed of subject to conditions, including, without limiting the generality of the foregoing:
(a) a condition that, before the expiration of a period specified in the condition, the ship or aircraft is to be exported from Australia; or
(b) a condition that, before the expiration of a period specified in the condition, the ship or aircraft is to be broken up.
209 Power to impound certain forfeited goods and release them on payment of duty and penalty
(1) This section applies to dutiable goods that are forfeited by virtue of paragraph 229(1)(a), (g), (o), (p), (q) or (qa) (including forfeited by virtue of the operation of any of those paragraphs and section 230), other than goods that are prohibited imports.
(2) Subject to subsection (3), an officer may impound goods instead of obtaining a seizure warrant to seize them if:
(a) the goods are in a Customs place; and
(b) either:
(i) the goods are goods to which this section applies; or
(ii) the officer has reason to believe that the goods are goods to which this section applies.
(3) An officer must not exercise the power to impound goods under subsection (2) if, in the opinion of the officer, the amount of duty sought to be evaded in respect of the goods exceeds $5,000.
(4) Goods impounded under this section shall be taken to such place of security as the Collector directs.
(5) Where an officer impounds goods under this section, he or she shall as soon as is practicable, but not later than 7 days after the day on which the goods were impounded, serve on the owner of the goods, either personally or by post, a notice in writing:
(a) identifying:
(i) if the goods are an article—the article; or
(ii) if the goods consist of separate articles—each of those articles; or
(iii) in any other case—the goods;
and stating that the article, articles or goods have been impounded under subsection (2); and
(b) setting out the amount of duty demanded in respect of the article, each of the articles, or the goods, identified in the notice; and
(c) setting out the date on which the goods were impounded; and
(d) setting out the terms of, or adequate particulars of the provisions of, subsections (6) and (7); and
(e) specifying the address at which payment under subsection (6) may be made in respect of the goods.
(6) Where the owner of an article or goods identified in a notice served under subsection (5) pays to the Collector, at the address for payment shown in the notice and within 21 days after the day on which the notice was served, the duty demanded in respect of the article or goods (not being a payment under protest in accordance with section 167) together with an amount of penalty equal to:
(a) if the goods were found in the course of a search of the baggage of a person who has arrived in Australia from a place outside Australia—an amount specified in the notice, being an amount equal to the amount of that duty that, in the opinion of the officer issuing the notice, the owner has sought to evade; or
(b) if paragraph (a) does not apply to the goods—an amount specified in the notice, being an amount equal to twice the amount of that duty that, in the opinion of the officer issuing the notice, the owner has sought to evade;
the following provisions apply:
(c) the Collector shall authorize the delivery of the article or goods to the owner;
(d) the article ceases, or the goods cease, to be forfeited; and
(e) proceedings shall not be brought for an offence against this Act in relation to the importation of the article or goods.
(7) Where the owner of an article or goods identified in a notice served under subsection (5) does not pay duty and penalty in respect of the article or goods in accordance with subsection (6), the article or goods are taken:
(a) to have been seized under a seizure warrant at the end of 21 days after the notice is served; and
(b) to have been so seized by the officer who served the notice under subsection (5).
(9) Neither the Commonwealth nor an officer or other person is under any liability in relation to the impounding of any goods under this section for which there was reasonable cause.
(10) For the purpose of the application of section 29 of the Acts Interpretation Act 1901 to the service by post on the owner of goods of a notice under subsection (5), such a notice posted as a letter addressed to the owner at his or her last address known to the officer required to serve the notice shall be deemed to be properly addressed.
(11) A reference in this section to the baggage of a person who has arrived in Australia shall be read as including a reference to goods on his or her person or otherwise with him or her.
(12) A reference in this section to a search of the baggage of a person shall be read as including a reference to a search of such part of the baggage of a person as is available for search at a particular time.
209A Destruction or concealment of evidential material or forfeited goods
A person must not:
(a) destroy, or render incapable of identification, a document or thing that is, or may be, evidential material or a forfeited good; or
(b) render illegible or indecipherable such a document or thing; or
(c) place or conceal on his or her body, or in any clothing worn by the person, such a document or thing;
with the intention of preventing it from being seized by an authorised person in the exercise of the person’s powers under a search warrant, a seizure warrant or section 203B, 203C, 203CA or 203CB.
Penalty: Imprisonment for 2 years.
Subdivision GA—Dealing with goods in transit seized under a section 203DA warrant
209B Subdivision applies to seized transit goods
This Subdivision applies to goods that have been seized under a seizure warrant under section 203DA, except for goods seized under paragraph 203DB(1)(d) (which covers goods suspected of being special forfeited goods).
Note: For other kinds of seized goods, see Subdivision G.
209C Seized goods to be secured
An officer of Customs who seizes any goods to which this Subdivision applies must, as soon as practicable, take the goods to a place approved by a Collector as a place for the storage of goods of that kind.
209D Requirement to serve seizure notices
(1) The officer must serve, within 7 days after the seizure, a seizure notice on the owner of the goods or, if the owner cannot be identified after reasonable inquiry, on the person in whose possession or under whose control the goods were when they were seized.
(2) Subsection (1) applies whether or not an application for the return of the goods seized has been made under section 209F.
(3) The notice must be in writing and must be served:
(a) personally or by post; or
(b) if no person of the kind referred to in subsection (1) can be identified after reasonable inquiry—by publishing a copy of the notice in a newspaper circulating in the location in which the goods were seized.
(4) A seizure notice may be served on a person who is outside Australia.
209E Matters to be dealt with in seizure notices
A seizure notice must set out the following:
(a) a statement identifying the goods;
(b) the day on which they were seized;
(c) the ground, or each of the grounds, on which they were seized;
(d) a statement that, if an application for the return of the goods has not already been made, and is not made within 30 days after the day the notice is served, the goods will be taken to be condemned as forfeited to the Crown.
209F Application for return of seized goods
(1) The owner of the goods may, whether or not a seizure notice has yet been served on the owner, apply to a court of competent jurisdiction for the return of the goods.
(2) An application must be made no later than 30 days after a seizure notice is issued in respect of the goods.
(3) If the court finds that:
(a) the goods are not goods of the kind mentioned in subsection 203DA(1); and
(b) the goods were not used or otherwise involved in the commission of an offence against any law of the Commonwealth, a State or a Territory; and
(c) the person is the rightful owner of the goods;
the court must order that the goods be returned to the owner.
(4) Goods required to be so returned are required to be returned in a condition as near as practicable to the condition in which they were seized.
(5) If the court finds otherwise than as mentioned in subsection (3), the goods are condemned as forfeited to the Crown.
209G Status of goods seized if no application for return is made
If:
(a) a seizure notice has been served; and
(b) at the end of 30 days after the day on which the notice was served, no application has been made for return of the goods;
the goods are condemned as forfeited to the Crown.
209H Right of compensation for certain goods disposed of or destroyed
(1) Despite the disposal or destruction of goods taken to be condemned as forfeited to the Crown because no application for their return was made, a person may apply to a court of competent jurisdiction under this section for compensation.
(2) A right to compensation exists if:
(a) the goods are not goods of the kind mentioned in subsection 203DA(1); and
(b) the goods were not used or otherwise involved in the commission of an offence against any law of the Commonwealth, a State or a Territory; and
(c) the person establishes, to the satisfaction of the court:
(i) that he or she is the rightful owner of the goods; and
(ii) that there were circumstances providing a reasonable excuse for the failure to apply for the return of the goods not later than 30 days after the day the seizure notice was served.
(3) If a right to compensation exists under subsection (2), the court must order the payment by the Commonwealth to the person of an amount equal to:
(a) if the goods have been sold—the proceeds of the sale; and
(b) if the goods have been destroyed or otherwise disposed of—the goods’ market value at the time of their destruction or disposal.
209I Effect of forfeiture
When goods are condemned as forfeited to the Crown under this Subdivision, the title to the goods immediately vests in the Commonwealth to the exclusion of all other interests in the goods, and the title cannot be called into question.
209J Immediate disposal of unsafe goods
(1) If the Comptroller‑General of Customs is satisfied that the retention of goods seized would constitute a danger to public health or safety, the Comptroller‑General of Customs may cause the goods to be dealt with in such manner as he or she considers appropriate (including the destruction of the goods).
(2) As soon as practicable, but not later than 7 days after the goods have been dealt with, the Comptroller‑General of Customs must give or publish a notice in accordance with subsection (4).
(3) The notice must be in writing and must be served:
(a) personally or by post on the owner of the goods or, if the owner cannot be identified after reasonable inquiry, on the person in whose possession or under whose control the goods were when they were seized; or
(b) if no person of the kind referred to in paragraph (a) can be identified after reasonable inquiry—by publishing a copy of the notice in a newspaper circulating in the location in which the goods were seized.
(4) The notice must:
(a) identify the goods; and
(b) state that the goods have been seized under a seizure warrant under section 203DA and give the reason for the seizure; and
(c) state that the goods have been dealt with under subsection (1) and specify the manner in which they have been so dealt with and the reason for doing so; and
(d) set out the terms of subsection (5).
(5) If goods are dealt with in accordance with subsection (1), the owner of the goods may bring an action against the Commonwealth in a court of competent jurisdiction for the recovery of the market value of the goods at the time they were so dealt with.
(6) A right to recover the market value of the goods at the time they were dealt with in accordance with subsection (1) exists if:
(a) the goods were not goods of the kind mentioned in subsection 203DA(1); and
(b) the goods were not used or otherwise involved in the commission of an offence against any law of the Commonwealth, a State or a Territory; and
(c) the owner of the goods establishes, to the satisfaction of the Court, that the circumstances for them to be so dealt with did not exist.
(7) If a person establishes a right to recover the market value of the goods at the time they were dealt with, the Court must order the payment by the Commonwealth of an amount equal to that value at that time.
209K Disposal of forfeited goods
(1) All goods that are condemned as forfeited to the Crown under this Subdivision must be dealt with and disposed of in accordance with the directions of the Comptroller‑General of Customs.
(2) In particular, the Comptroller‑General of Customs may direct that the goods be given to a relevant authority of a foreign country in order that the goods be used in an investigation or prosecution under the laws of that country.
(3) Subsection (2) does not limit the generality of subsection (1).
209L Service by post
For the purposes of the application of section 29 of the Acts Interpretation Act 1901 to the service by post of a seizure notice under section 209D or a notice under subsection 209J(3) on a person, such a notice posted as a letter addressed to that person at the last address of that person known to the sender is taken to be properly addressed.
Subdivision GB—Surrender of prescribed prohibited imports
209M Application of Subdivision
This Subdivision applies to goods that are prohibited imports of a kind prescribed by regulations made for the purposes of this section.
209N Surrender of goods
(1) An officer of Customs may, instead of seizing goods under section 203B, permit a person to surrender the goods to the officer in a section 234AA place if:
(a) the officer has reasonable grounds to believe that the goods:
(i) have been imported by the person; and
(ii) have not been concealed from the officer by the person; and
(iii) are accompanied personal or household effects of the person; and
(b) the person has been informed by the officer, in writing, of the available options for dealing with the goods and the consequences of exercising each of those options; and
(c) the person has indicated to the officer, in writing, that he or she intends to surrender the goods; and