No proceedings shall be commenced against any officer for anything done in execution of or by reason of his or her office until one month next after notice in writing shall have been delivered to him or her or left at his or her usual place of abode by the plaintiff, or the plaintiff’s attorney or agent, in which notice shall be clearly stated the cause and nature of the proceeding and the court in which the same is intended to be instituted, the name and place of abode of the plaintiff and the name and place of business of such attorney or agent unless the Supreme Court of a State, the Supreme Court of the Australian Capital Territory or the Supreme Court of the Northern Territory of Australia has granted leave to the plaintiff to proceed without notice, which leave the Court may grant on such terms as it thinks just.
222 Defect in notice not to invalidate
No notice under the last preceding section shall be deemed invalid by reason of any defect or inaccuracy therein unless the Court is of opinion that the defect or inaccuracy would prejudice the defendant in his or her defence and the Court may give leave to amend such notice as it thinks just.
223 No evidence to be produced but that contained in notice
Upon any proceeding instituted in pursuance of such notice the plaintiff shall not be at liberty to advance any evidence of any cause of action except such as has been distinctly stated in such notice nor shall the plaintiff be entitled to a verdict without proving on the trial that such notice has been duly served.
224 Officer may tender amends
It shall be lawful for any officer to whom notice of proceeding shall have been given at any time within one month after such notice to tender amends to the plaintiff, or to the plaintiff’s attorney or agent, and in case such amends be not accepted to plead such tender in defence either alone or with other defences and if the amends tendered shall be found to have been sufficient no costs shall be recovered against an officer and he or she shall be entitled to costs if he or she shall have brought the amount into court when entering his or her defence.
225 Commencement of proceedings against officers
Every proceeding against any officer shall except as mentioned in the next section be commenced within 6 months after its cause shall have arisen and not afterwards and the venue shall be local and the defendant may plead the general issue and give any special matter in evidence.
226 Time for commencing action
(1) No proceeding whether against an officer or otherwise for anything done for the protection of the revenue in relation to any Customs Tariff or Customs Tariff alteration proposed in the Parliament shall except as mentioned in the next section be commenced before the close of the session in which such Tariff or Tariff alteration is proposed or before the expiration of 12 months after such Tariff or Tariff alteration is proposed, whichever first happens.
(2) No proceeding, whether against an officer or otherwise, for anything done for the protection of the revenue in relation to a Customs Tariff or Customs Tariff alteration that is intended to be proposed in accordance with an instrument made under section 273EA shall, except as provided in the next succeeding section, be commenced before:
(a) the seventh sitting day of the House of Representatives after the date of registration of the instrument under the Legislation Act 2003, or the day on which the period of 6 months from the date of registration of the instrument under the Legislation Act 2003 expires, whichever is the earlier day; or
(b) where, on or before the earlier of the days referred to in the last preceding paragraph, a Customs Tariff or Customs Tariff alteration that would validate the thing so done is proposed in the Parliament—the close of the session in which the Customs Tariff or Customs Tariff alteration is so proposed, or the expiration of 12 months after the Customs Tariff or Customs Tariff alteration is so proposed, whichever first happens.
227 Security may be required
The Supreme Court of a State, the Supreme Court of the Australian Capital Territory or the Supreme Court of the Northern Territory of Australia on the application of any person who desires to commence any proceeding mentioned in the last section against an officer may require the officer to give security to the satisfaction of the Court to abide the result of the proceeding and in default of the giving of such security may sanction the immediate commencement of the proceeding.
Division 3—Evidence
227AA Evidence may be used in prosecutions etc.
(1) To avoid doubt, if, when exercising powers under this Act, an officer obtains evidence of the commission of an offence against Part 9.1 of the Criminal Code, then that evidence may be used, or given to another body for use, in:
(a) investigating the offence; or
(b) proceedings for the prosecution for the offence.
(2) To avoid doubt, if, when exercising powers under this Act, an officer obtains evidence of the commission of an offence against Subdivision B of Division 72 of the Criminal Code, then that evidence may be used, or given to another body for use, in:
(a) investigating the offence; or
(b) proceedings for the prosecution for the offence.
Part XIIA—Special provisions relating to prohibited items
227A Overview of Part
This Part deals with certain items on board a ship or an aircraft that is in Australia after arriving in Australia from a place outside Australia. The Part empowers an officer, under certain circumstances:
(a) to approve a storage place on the ship or aircraft for the purpose of safekeeping the item; or
(b) to take the item into custody;
for a period that ends when the ship or aircraft departs from Australia or otherwise ceases to be subject to this Part.
227B Definitions
In this Part:
operator means:
(a) in relation to a ship—the owner or master of the ship; and
(b) in relation to an aircraft—the owner or pilot of the aircraft.
prohibited item means a thing to which this Part applies because of section 227D.
227C Ships and aircraft to which this Part applies
(1) This Part applies to a ship if:
(a) the ship is in Australia after undertaking a voyage to Australia from a place outside Australia; and
(b) the ship is not a ship that is taken to have been imported into Australia under subsection 49A(7).
(2) This Part applies to an aircraft if:
(a) the aircraft is in Australia after undertaking a flight to Australia from a place outside Australia; and
(b) the aircraft is not an aircraft that is taken to have been imported into Australia under subsection 49A(7).
(3) This Part ceases to apply to a ship when:
(a) the ship has departed from its last port in Australia for a place outside Australia; or
(b) the ship is taken to have been imported into Australia under subsection 49A(7).
(4) This Part ceases to apply to an aircraft when:
(a) the aircraft has departed from its last airport in Australia for a place outside Australia; or
(b) the aircraft is taken to have been imported into Australia under subsection 49A(7).
(5) If:
(a) this Part ceased to apply to a ship because the ship has departed from its last port in Australia as mentioned in paragraph (3)(a); but
(b) the ship returns to Australia before completing a voyage to a place outside Australia;
then, subject to paragraph (1)(b) and subsection (3), this Part applies to the ship after it has so returned as if it has just undertaken a voyage to Australia from a place outside Australia.
(6) If:
(a) this Part ceased to apply to an aircraft because the aircraft has departed from its last airport in Australia as mentioned in paragraph (4)(a); but
(b) the aircraft returns to Australia before completing a flight to a place outside Australia;
then, subject to paragraph (2)(b) and subsection (4), this Part applies to the aircraft after it has been so returned as if it has just undertaken a flight to Australia from a place outside Australia.
227D Items to which this Part applies
This Part applies to any thing if:
(a) it is on board a ship or an aircraft to which this Part applies; and
(b) its importation is:
(i) prohibited absolutely by the Customs (Prohibited Imports) Regulations 1956; or
(ii) prohibited by those regulations unless a licence, permission, consent, approval or other document (however described) is granted or given, and such a licence, permission, consent, approval or other document has not been granted or given; and
(c) either:
(i) it is, or should have been, specified in a report given by the operator under section 64AAA as part of the stores of the ship or aircraft; or
(ii) it is part of the personal effects of the crew of the ship or aircraft.
227E Approved storage for prohibited items
(1) An officer may, in writing, approve a place on board a ship or an aircraft to which this Part applies as a place in which a prohibited item on board that ship or aircraft must be stored while this Part applies to the ship or aircraft.
(2) An officer must not give the approval unless the officer is satisfied that:
(a) only the operator concerned may access the place; and
(b) the place is otherwise sufficiently secure for the purposes of preventing persons from removing the item from the place.
Example: If a safe on board a ship is sought to be approved under subsection (1), the approval may not be given if a person other than the operator of the ship holds a key to the safe.
(3) An officer may place a fastening, or a lock, mark or seal on an approved place for the purposes of preventing persons from accessing that place.
(4) If an approval under subsection (1) is not revoked at an earlier time, it continues to be in force until this Part ceases to apply to the ship or aircraft concerned.
(5) While an approval under subsection (1) is in force in relation to a prohibited item, a person must not:
(a) interfere in any way with any fastening, lock, mark or seal placed on the approved place by an officer; or
(b) remove the item from the approved place.
Penalty: 60 penalty units.
(6) An offence against subsection (5) is an offence of strict liability.
(7) Subsection (5) does not apply if the person has the written permission of an officer for the interference or removal.
227F Officer may take custody of items
(1) If:
(a) this Part applies to a prohibited item on board a ship or aircraft; and
(b) no approval under section 227E is in force in relation to a place on board that ship or aircraft as the place for storing that item;
an officer must take custody of that item.
(2) Within 48 hours after taking custody of the item, an officer must give a written notice to the operator of the ship or aircraft under this section.
(3) The notice must be in an approved form.
(4) Without limiting subsection (3), the notice must identify the prohibited item concerned.
(5) The Comptroller‑General of Customs must ensure that an item taken into custody under this section is:
(a) securely stored while it is in custody under this section; and
(b) returned to the operator of the ship or aircraft concerned:
(i) if subparagraph (ii) does not apply—when the ship is at its last port of call in Australia, or when the aircraft is at its last airport of call in Australia, and after a Certificate of Clearance referred to in section 118 has been granted in relation to the departure of that ship from that port, or the departure of the aircraft from that airport (as the case requires); or
(ii) when this Part ceases to apply to the ship or aircraft because it is taken to have been imported into Australia under subsection 49A(7).
(6) To avoid doubt, subsection (5) does not affect the power of an officer to seize or otherwise deal with the item under this Act (including provisions in this Act relating to prohibited goods) when this Part ceases to apply to the ship or aircraft concerned.
(7) After an item is returned to the operator under subsection (5) and before the ship or aircraft leaves Australia, the operator concerned must comply with any conditions specified by the Comptroller‑General of Customs in relation to the storage of that item.
227G Compensation for damage etc. to items
(1) If:
(a) an activity undertaken by or on behalf of the Commonwealth in relation to a prohibited item taken into custody under this Part causes the loss or destruction of, or damage to, that item; and
(b) the loss, destruction or damage occurred wholly or partly as a result of:
(i) insufficient care being exercised in selecting the persons to undertake the activity; or
(ii) insufficient care being exercised by the person undertaking that activity;
compensation for the loss, destruction or damage is payable to the owner of the item concerned.
(2) Compensation is payable out of money appropriated by the Parliament for the purpose.
Part XIII—Penal Provisions
Division 1—Forfeitures
228 Forfeited ships and aircraft
(1) The following ships, boats and aircraft shall be forfeited to the Crown:
(a) Any ship or aircraft used in smuggling, or knowingly used in the unlawful importation, exportation, or conveyance of any prohibited imports or prohibited exports.
(b) Any ship the master of which has failed to facilitate, by all reasonable means, the boarding of his or her ship, under the Maritime Powers Act 2013, in circumstances set out in subsection (2) or (3).
(c) Any aircraft failing to land at an airport or landing field for boarding upon its pilot being required to land the aircraft, under the Maritime Powers Act 2013, in circumstances set out in subsection (4), (5) or (6).
(d) Any ship or aircraft from which goods are thrown overboard staved or destroyed to prevent seizure by an officer of Customs.
(e) Any ship or aircraft found within any port or airport with cargo on board and afterwards found light or in ballast or with the cargo deficient and the master or pilot of which is unable to lawfully account for the difference.
(f) Any ship or aircraft which on being boarded is found to be constructed, adapted, altered or fitted in any manner for the purpose of concealing goods.
(2) The circumstances are:
(a) the ship is a foreign ship; and
(b) the ship is on the landward side of the outer edge of Australia’s territorial sea; and
(c) the boarding is for the purposes of this Act or an Act prescribed by the regulations, or for the purposes of determining whether a contravention, or an attempted contravention, in Australia of section 72.13 or Division 307 of the Criminal Code is occurring.
(3) The circumstances are:
(a) the ship is an Australian ship; and
(b) the ship is outside the territorial sea of any foreign country; and
(c) the boarding is for the purposes of this Act or an Act prescribed by the regulations, or for the purposes of determining whether a contravention, or an attempted contravention, in Australia of section 72.13 or Division 307 of the Criminal Code is occurring.
(4) The circumstances are:
(a) either:
(i) the aircraft is an Australian aircraft over anywhere except a foreign country; or
(ii) the aircraft is a foreign aircraft over Australia; and
(b) the requirement to land is made:
(i) in relation to the operation of this Act; and
(ii) because the pilot of the aircraft has failed to comply with a requirement made in the exercise of aircraft identification powers.
(5) The circumstances are:
(a) either:
(i) the aircraft is an Australian aircraft over anywhere except a foreign country; or
(ii) the aircraft is a foreign aircraft over Australia; and
(b) an authorising officer reasonably suspects that the aircraft is or has been involved in a contravention, or attempted contravention, of this Act or section 72.13 or Division 307 of the Criminal Code.
(6) The circumstances are:
(a) either:
(i) the aircraft is an Australian aircraft over anywhere except a foreign country; or
(ii) the aircraft is a foreign aircraft over Australia; and
(b) an authorising officer reasonably suspects that the aircraft is carrying goods satisfying either or both of the following subparagraphs:
(i) the goods are connected, whether directly or indirectly, with the carrying out of a terrorist act, whether a terrorist act has occurred, is occurring or is likely to occur;
(ii) the existence or the shipment of the goods prejudices, or is likely to prejudice, Australia’s defence or security or international peace and security.
228A Forfeited resources installations
Any overseas resources installation that becomes attached to the Australian seabed without the permission of the Comptroller‑General of Customs given under subsection 5A(2) shall be forfeited to the Crown.
228B Forfeited sea installations
Any overseas sea installation that becomes installed in a coastal area without the permission of the Comptroller‑General of Customs given under subsection 5B(2) shall be forfeited to the Crown.
228C Forfeited offshore electricity installations
An offshore electricity installation is forfeited to the Crown if the installation:
(a) was an overseas offshore electricity installation immediately prior to being installed in the Commonwealth offshore area; and
(b) is installed in that area without the permission of the Comptroller‑General of Customs granted under subsection 5BA(4).
229 Forfeited goods
(1) The following goods shall be forfeited to the Crown:
(a) All goods (not being objects forfeited, or liable to forfeiture, under the Protection of Movable Cultural Heritage Act 1986) which are smuggled, or unlawfully imported, exported, or conveyed.
(b) All prohibited imports.
(ba) All goods the importation of which has been prohibited unless a licence or permission containing conditions or requirements has been granted and those conditions or requirements have not been complied with.