(b) the goods were tier 1 goods and the person was reckless as to that fact; and
(c) their exportation:
(i) was prohibited under this Act absolutely; or
(ii) was prohibited under this Act unless the approval of a particular person had been obtained and, at the time of the exportation, that approval had not been obtained.
Penalty: Imprisonment for 5 years or 1,000 penalty units, or both.
(5A) Subject to subsection (5B), absolute liability applies to paragraph (5)(c).
Note: For absolute liability, see section 6.2 of the Criminal Code.
(5B) For the purposes of an offence against subsection (5), strict liability applies to the physical element of circumstance of the offence, that an approval referred to in subparagraph (5)(c)(ii) had not been obtained at the time of the exportation.
Note: For strict liability, see section 6.1 of the Criminal Code.
(6) A person convicted or acquitted of an offence against subsection (4) or (5) in respect of particular conduct is not liable to any proceeding under section 233 in respect of that conduct.
233BAB Special offence relating to tier 2 goods
(1) The regulations may provide that:
(a) specified firearms, munitions and military warfare items of any kind including combat vests and body armour; and
(b) specified knives, daggers and other like goods; and
(c) specified chemical compounds; and
(d) specified anti‑personnel sprays and gases; and
(e) specified fissionable or radioactive substances; and
(f) specified human body tissue; and
(g) specified human body fluids; and
(h) items of child abuse material; and
(i) counterfeit credit, debit and charge cards; and
(j) other specified goods;
constitute tier 2 goods.
(2) The regulations must not specify an item for the purposes of subsection (1) unless:
(a) its importation is prohibited, either absolutely or on condition, by the Customs (Prohibited Imports) Regulations; or
(b) its exportation is prohibited, either absolutely or on condition, by the Customs (Prohibited Exports) Regulations.
(4) For the purposes of subsection (1), an item is taken to be an item of child abuse material if it is a document or other goods:
(a) that depicts a person, or a representation of a person, who:
(i) is, or appears to be, under 18 years of age; and
(ii) is, or appears to be, a victim of torture, cruelty or physical abuse;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(b) that describes a person who:
(i) is, or is implied to be, under 18 years of age; and
(ii) is, or is implied to be, a victim of torture, cruelty or physical abuse;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(c) that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who:
(i) is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or
(ii) is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(d) the dominant characteristic of which is the depiction, for a sexual purpose, of:
(i) a sexual organ or the anal region of a person who is, or appears to be, under 18 years of age; or
(ii) a representation of such a sexual organ or anal region; or
(iii) the breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age;
in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(e) that describes a person who is, or is implied to be, under 18 years of age and who:
(i) is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or
(ii) is in the presence of a person who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(f) that describes:
(i) a sexual organ or the anal region of a person who is, or is implied to be, under 18 years of age; or
(ii) the breasts of a female person who is, or is implied to be, under 18 years of age;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(g) that is a doll or other object that resembles:
(i) a person who is, or appears to be, under 18 years of age; or
(ii) a part of the body of such a person;
if a reasonable person would consider it likely that the doll or other object is intended to be used by a person to simulate sexual intercourse (within the meaning of the Criminal Code).
(4A) The matters to be taken into account in deciding for the purposes of subsection (4) whether reasonable persons would regard a particular document or other goods as being, in all the circumstances, offensive, include:
(a) the standards of morality, decency and propriety generally accepted by reasonable adults; and
(b) the literary, artistic or educational merit (if any) of the material; and
(c) the general character of the material (including whether it is of a medical, legal or scientific character).
(5) A person commits an offence against this subsection if:
(a) the person intentionally imported goods; and
(b) the goods were tier 2 goods and the person was reckless as to that fact; and
(c) their importation:
(i) was prohibited under this Act absolutely; or
(ii) was prohibited under this Act unless the approval of a particular person had been obtained and, at the time of the importation, that approval had not been obtained.
Penalty: Imprisonment for 10 years or 2,500 penalty units, or both.
(5A) Subject to subsection (5B), absolute liability applies to paragraph (5)(c).
Note: For absolute liability, see section 6.2 of the Criminal Code.
(5B) For the purposes of an offence against subsection (5), strict liability applies to the physical element of circumstance of the offence, that an approval referred to in subparagraph (5)(c)(ii) had not been obtained at the time of the importation.
Note: For strict liability, see section 6.1 of the Criminal Code.
(6) A person commits an offence against this subsection if:
(a) the person intentionally exported goods; and
(b) the goods were tier 2 goods and the person was reckless as to that fact; and
(c) their exportation:
(i) was prohibited under this Act absolutely; or
(ii) was prohibited under this Act unless the approval of a particular person had been obtained and, at the time of the exportation, that approval had not been obtained.
Penalty: Imprisonment for 10 years or 2,500 penalty units, or both.
(6A) Subject to subsection (6B), absolute liability applies to paragraph (6)(c).
Note: For absolute liability, see section 6.2 of the Criminal Code.
(6B) For the purposes of an offence against subsection (6), strict liability applies to the physical element of circumstance of the offence, that an approval referred to in subparagraph (6)(c)(ii) had not been obtained at the time of the exportation.
Note: For strict liability, see section 6.1 of the Criminal Code.
(7) A person punished for an offence against subsection (5) or (6) in respect of particular conduct cannot be punished, in respect of that conduct, for an offence against:
(a) section 233; or
(b) Division 361 of the Criminal Code (about international firearms trafficking).
Note: A similar provision for the opposite case to paragraph (b) is set out in section 361.6 of the Criminal Code.
233BABAA UN‑sanctioned goods
(1) The regulations may prescribe specified goods as UN‑sanctioned goods.
(2) Regulations made for the purposes of subsection (1) may provide that specified goods are only UN‑sanctioned goods if:
(a) they are imported from, or exported to, a specified place; or
(b) the origin, or the final destination, of the goods is a specified place; or
(c) other specified circumstances apply in relation to the goods.
(3) The regulations must not prescribe goods for the purposes of subsection (1) unless:
(a) either:
(i) the importation of the goods is prohibited, either absolutely or on condition, by the Customs (Prohibited Imports) Regulations 1956; or
(ii) the exportation of the goods is prohibited, either absolutely or on condition, by the Customs (Prohibited Exports) Regulations 1958; and
(b) the regulation under which that importation or exportation is prohibited gives effect to a decision that:
(i) the Security Council has made under Chapter VII of the Charter of the United Nations; and
(ii) Article 25 of the Charter requires Australia to carry out;
in so far as that decision requires Australia to apply measures not involving the use of armed force.
Note: Articles 39 and 41 of the Charter provide for the Security Council to decide what measures not involving the use of armed force are to be taken to maintain or restore international peace and security.
(4) For the purposes of paragraph (3)(b), a regulation may be taken to give effect to a decision:
(a) whether or not it is made for the sole purpose of giving effect to the decision; and
(b) whether or not it has any effect in addition to giving effect to the decision.
233BABAB Special offences for importation of UN‑sanctioned goods
Offence for individuals
(1) An individual commits an offence if:
(a) the individual intentionally imported goods; and
(b) the goods were UN‑sanctioned goods and the individual was reckless as to that fact; and
(c) their importation:
(i) was prohibited under this Act absolutely; or
(ii) was prohibited under this Act unless the approval of a particular person had been obtained and, at the time of the importation, that approval had not been obtained.
(2) Subject to subsection (3), absolute liability applies to paragraph (1)(c).
Note: For absolute liability, see section 6.2 of the Criminal Code.
(3) For the purposes of an offence against subsection (1), strict liability applies to the physical element of circumstance of the offence, that an approval referred to in subparagraph (1)(c)(ii) had not been obtained at the time of the importation.
Note: For strict liability, see section 6.1 of the Criminal Code.
Penalty for individuals
(4) An offence under subsection (1) is punishable on conviction by imprisonment for not more than 10 years or a fine not exceeding the amount worked out under subsection (5), or both.
(5) For the purposes of subsection (4), the amount is:
(a) if the Court can determine the value of the goods to which the offence relates—whichever is the greater of the following:
(i) 3 times the value of the goods; or
(ii) 2,500 penalty units;
(b) if the Court cannot determine the value of those goods—2,500 penalty units.
Offence for bodies corporate
(6) A body corporate commits an offence if:
(a) the body corporate imported goods; and
(b) the goods were UN‑sanctioned goods; and
(c) their importation:
(i) was prohibited under this Act absolutely; or
(ii) was prohibited under this Act unless the approval of a particular person had been obtained and, at the time of the importation, that approval had not been obtained.
(7) Subsection (6) does not apply if the body corporate proves that it took reasonable precautions, and exercised due diligence, to avoid contravening that subsection.
Note: The body corporate bears a legal burden in relation to a matter in subsection (7) (see section 13.4 of the Criminal Code).
(8) Strict liability applies to paragraphs (6)(a) and (b).
Note: For strict liability, see section 6.1 of the Criminal Code.
(9) Subject to subsection (10), absolute liability applies to paragraph (6)(c).
Note: For absolute liability, see section 6.2 of the Criminal Code.
(10) For the purposes of an offence against subsection (6), strict liability applies to the physical element of circumstance of the offence, that an approval referred to in subparagraph (6)(c)(ii) had not been obtained at the time of the importation.
Note: For strict liability, see section 6.1 of the Criminal Code.
Penalty for bodies corporate
(11) An offence under subsection (6) is punishable on conviction by a fine not exceeding:
(a) if the Court can determine the value of the goods to which the offence relates—whichever is the greater of the following:
(i) 3 times the value of the goods;
(ii) 10,000 penalty units; or
(b) if the Court cannot determine the value of those goods—10,000 penalty units.
Person not liable to other proceedings
(12) A person convicted or acquitted of an offence against subsection (1) or (6) in respect of particular conduct is not liable to proceedings under section 233 in respect of that conduct.
233BABAC Special offences for exportation of UN‑sanctioned goods
Offence for individuals
(1) An individual commits an offence if:
(a) the individual intentionally exported goods; and
(b) the goods were UN‑sanctioned goods and the individual was reckless as to that fact; and
(c) their exportation:
(i) was prohibited under this Act absolutely; or
(ii) was prohibited under this Act unless the approval of a particular person had been obtained and, at the time of the exportation, that approval had not been obtained.
(2) Subject to subsection (3), absolute liability applies to paragraph (1)(c).
Note: For absolute liability, see section 6.2 of the Criminal Code.
(3) For the purposes of an offence against subsection (1), strict liability applies to the physical element of circumstance of the offence, that an approval referred to in subparagraph (1)(c)(ii) had not been obtained at the time of the exportation.
Note: For strict liability, see section 6.1 of the Criminal Code.
Penalty for individuals
(4) An offence under subsection (1) is punishable on conviction by imprisonment for not more than 10 years or a fine not exceeding the amount worked out under subsection (5), or both.
(5) For the purposes of subsection (4), the amount is:
(a) if the Court can determine the value of the goods to which the offence relates—whichever is the greater of the following:
(i) 3 times the value of the goods;
(ii) 2,500 penalty units; or
(b) if the Court cannot determine the value of those goods—2,500 penalty units.
Offence for bodies corporate
(6) A body corporate commits an offence if:
(a) the body corporate exported goods; and
(b) the goods were UN‑sanctioned goods; and
(c) their exportation:
(i) was prohibited under this Act absolutely; or
(ii) was prohibited under this Act unless the approval of a particular person had been obtained and, at the time of the exportation, that approval had not been obtained.
(7) Subsection (6) does not apply if the body corporate proves that it took reasonable precautions, and exercised due diligence, to avoid contravening that subsection.
Note: The body corporate bears a legal burden in relation to a matter in subsection (7) (see section 13.4 of the Criminal Code).
(8) Strict liability applies to paragraphs (6)(a) and (b).
Note: For strict liability, see section 6.1 of the Criminal Code.
(9) Subject to subsection (10), absolute liability applies to paragraph (6)(c).
Note: For absolute liability, see section 6.2 of the Criminal Code.
(10) For the purposes of an offence against subsection (6), strict liability applies to the physical element of circumstance of the offence, that an approval referred to in subparagraph (6)(c)(ii) had not been obtained at the time of the exportation.
Note: For strict liability, see section 6.1 of the Criminal Code.
Penalty for bodies corporate
(11) An offence under subsection (6) is punishable on conviction by a fine not exceeding:
(a) if the Court can determine the value of the goods to which the offence relates—whichever is the greater of the following:
(i) 3 times the value of the goods;
(ii) 10,000 penalty units; or
(b) if the Court cannot determine the value of those goods—10,000 penalty units.
Person not liable to other proceedings
(12) A person convicted or acquitted of an offence against subsection (1) or (6) in respect of particular conduct is not liable to proceedings under section 233 in respect of that conduct.
233BABAD Offences involving tobacco products
(1) A person commits an offence if:
(a) the person imports goods; and
(b) the goods are tobacco products; and
(c) the person imports the goods with the intention of defrauding the revenue.
(2) A person commits an offence if:
(a) the person conveys, or has in the person’s possession, goods; and
(b) the goods are tobacco products; and
(c) the person knows that the goods were imported with intent to defraud the revenue.
(2A) A person commits an offence if:
(a) the person imports goods; and
(b) the goods are tobacco products; and
(c) the person imports the goods reckless as to whether there would be defrauding of the revenue.
(2B) A person commits an offence if:
(a) the person conveys, or has in the person’s possession, goods; and
(b) the goods are tobacco products; and
(c) the person is reckless as to whether the goods were imported with intent to defraud the revenue.
(3) In a prosecution for an offence against subsection (2) or (2B), it is not necessary to prove the identity of the person who imported the goods.
(4) An offence against subsection (1) or (2) is punishable on conviction by imprisonment for not more than 10 years, a fine not exceeding the amount worked out under subsection (5), or both.
(4A) An offence against subsection (2A) or (2B) is punishable on conviction by imprisonment for not more than 5 years, a fine not exceeding the amount worked out under subsection (5A), or both.
(5) For the purposes of subsection (4), the amount is: