(a) if the Court can determine the amount of the duty that would have been payable on the goods if the goods had been entered for home consumption on:
(i) if the day on which the offence was committed is known to the Court—that day; or
(ii) if that day is not known to the Court—the day on which the prosecution for the offence was instituted;
5 times the amount of that duty; or
(b) otherwise—1,000 penalty units.
(5A) For the purposes of subsection (4A), the amount is:
(a) if the Court can determine the amount of the duty that would have been payable on the goods if the goods had been entered for home consumption on:
(i) if the day on which the offence was committed is known to the Court—that day; or
(ii) if that day is not known to the Court—the day on which the prosecution for the offence was instituted;
3 times the amount of that duty; or
(b) otherwise—500 penalty units.
(6) A person convicted or acquitted of an offence against subsection (1), (2), (2A) or (2B) in respect of particular conduct is not liable to proceedings under section 233 in respect of that conduct.
233BABAE Offence for bringing restricted goods into Australia
(1) A person commits an offence of strict liability if:
(a) the person brings goods into Australia; and
(b) the goods are restricted goods.
Penalty: 1,000 penalty units.
Note: For strict liability, see section 6.1 of the Criminal Code.
(2) Subsection (1) does not apply if the person brings the goods into Australia in accordance with a written permission given by the Minister for the purposes of this subsection.
(3) For the purposes of this Act, restricted goods are goods:
(a) that, if imported, would be prohibited imports; and
(b) that are prescribed by the regulations for the purposes of this definition.
(4) This section has effect only for purposes related to external affairs, including:
(a) for purposes related to giving effect to an international agreement to which Australia is a party; and
(b) for purposes related to addressing matters of international concern.
233BABAF Using information held by the Commonwealth
Using information to commit offence
(1) A person commits an offence if:
(a) the person obtains information; and
(b) the information is restricted information; and
(c) the person uses the information to commit an offence against a law of the Commonwealth, a State or a Territory.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(2) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the offence was an offence against a law of the Commonwealth, a State or a Territory.
Disclosing information to another person
(3) A person commits an offence if:
(a) the person obtains information; and
(b) the information is restricted information; and
(c) the person discloses the information to another person; and
(d) the person is not authorised or required under:
(i) this Act; or
(ii) the Australian Border Force Act 2015;
to make that disclosure.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(4) In this section:
restricted information means information:
(a) held in a computer owned, leased or operated by the Commonwealth for use for the purposes of the Customs Acts; and
(b) to which access is restricted by an access control system associated with a function of the computer.
233BABA Protection from criminal responsibility
(1) An officer of Customs who, in the course of duty, possesses or conveys, or facilitates the conveyance of, prohibited imports, prohibited exports, smuggled goods or restricted goods is not criminally responsible for an offence against a law of the Commonwealth or of a State or Territory relating to the possession, conveyance or facilitation of the conveyance of such goods.
(2) A person who:
(a) possesses or conveys, or facilitates the conveyance of, prohibited imports, prohibited exports, smuggled goods or restricted goods; and
(b) in doing so is acting in accordance with written instructions referring to this section issued by an officer of Customs acting in the course of duty;
is not criminally responsible for an offence against a law of the Commonwealth or of a State or Territory relating to the possession, conveyance or facilitation of the conveyance of such goods.
233BAC Evidence relating to approval for import or export
(1) In proceedings for an offence against subsection 233BAA(4) or (5), 233BAB(5) or (6), 233BABAB(1) or (4) or 233BABAC(1) or (4), a certificate of an authorised officer to the effect that the person charged with the offence had not obtained, as at the time of the import or export of the goods in respect of which the offence is alleged to have been committed, approval for the import or export is admissible as prima facie evidence that that approval had not been so obtained.
(2) For the purposes of this section, a document purporting to be a certificate referred to in subsection (1) is, unless the contrary is established, to be taken to be such a certificate and to have been duly given.
(3) A certificate is not to be admitted in evidence under subsection (1) in proceedings for an offence unless the person charged with the offence or a solicitor who has appeared for the person in those proceedings has, at least 14 days before the certificate is sought to be so admitted, been given a copy of the certificate, together with reasonable notice of the intention to produce the certificate as evidence in the proceedings.
233BA Evidence of Analyst
(1) The Comptroller‑General of Customs may appoint a person to be an analyst for the purposes of this Act or Part 9.1 of the Criminal Code.
(2) Subject to subsection (4), in any proceedings for an offence against section 233BAA or Part 9.1 of the Criminal Code, or in any proceedings for an offence against section 233BAB, 233BABAB or 233BABAC, in so far as that section relates to specified anti‑personnel sprays or gases, radioactive substances, human body tissue or human body fluid, a certificate of an analyst in an approved form stating, in respect of a substance in relation to which the offence is alleged to have been committed:
(a) that the analyst signing the certificate is appointed under subsection (1); and
(b) when and from whom the substance was received; and
(c) what, if any, labels or other means of identifying the substance accompanied it when it was received; and
(d) what container or containers the substance was contained in when it was received; and
(e) a description, and the weight, of the substance received; and
(f) when the substance, or a portion of it, was analysed; and
(g) a description of the method of analysis; and
(h) the results of the analysis; and
(j) how the substance was dealt with after handling by the analyst, including details of:
(i) the quantity retained; and
(ii) the name of the person, if any, to whom any retained quantity was given; and
(iii) measures taken to secure any retained quantity;
is admissible as prima facie evidence of the matters in the certificate and of the correctness of the result of the analysis.
(3) For the purposes of this section, a document purporting to be a certificate referred to in subsection (2) shall, unless the contrary is established, be deemed to be such a certificate and to have been duly given.
(4) A certificate shall not be admitted in evidence under subsection (2) in proceedings for an offence unless the person charged with the offence or a solicitor who has appeared for the person in those proceedings has, at least 14 days before the certificate is sought to be so admitted, been given a copy of the certificate together with reasonable notice of the intention to produce the certificate as evidence in the proceedings.
(5) Subject to subsection (6), where, under subsection (2), a certificate of an analyst is admitted in evidence in a proceeding for an offence, the person charged with the offence may require the analyst to be called as a witness for the prosecution and the analyst may be cross‑examined as if he or she had given evidence of the matters stated in the certificate.
(6) Subsection (5) does not entitle a person to require an analyst to be called as a witness for the prosecution unless:
(a) the prosecutor has been given at least 4 days notice of the person’s intention to require the analyst to be so called; or
(b) the Court, by order, allows the person to require the analyst to be so called.
233C Offence for giving false or misleading information in relation to UN‑sanctioned goods
Individuals
(1) An individual commits an offence if:
(a) an application is made in respect of UN‑sanctioned goods under:
(i) the Customs (Prohibited Imports) Regulations 1956; or
(ii) the Customs (Prohibited Exports) Regulations 1958; and
(b) the application is made in an approved form; and
(c) the individual signed the form; and
(d) information contained in, or information or a document accompanying, the form:
(i) is false or misleading; or
(ii) omits any matter or thing without which the information or document is misleading.
Penalty: Imprisonment for 10 years or 2,500 penalty units, or both.
Bodies corporate
(2) A body corporate commits an offence if:
(a) an application is made by or on behalf of the body corporate; and
(b) the application is in an approved form; and
(c) the application is made in respect of UN‑sanctioned goods under:
(i) the Customs (Prohibited Imports) Regulations 1956; or
(ii) the Customs (Prohibited Exports) Regulations 1958; and
(d) information contained in, or information or a document accompanying, the form:
(i) is false or misleading; or
(ii) omits any matter or thing without which the information or document is misleading.
Penalty: 12,500 penalty units.
(3) Subsection (1) or (2) does not apply:
(a) as a result of subparagraph (1)(d)(i) or (2)(d)(i)—if the information or document is not false or misleading in a material particular; or
(b) as a result of subparagraph (1)(d)(ii) or (2)(d)(ii)—if the information or document did not omit any matter or thing without which the information or document is misleading in a material particular.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
234 Customs offences
(1) A person shall not:
(a) Evade payment of any duty which is payable;
(b) Obtain any drawback, refund, rebate or remission which is not payable;
(d) do any of the following:
(i) intentionally make or cause to be made a statement to an officer, reckless as to the fact that the statement is false or misleading in a material particular;
(ii) intentionally omit or cause to be omitted from a statement made to an officer any matter or thing, reckless as to the fact that without the matter or thing the statement is misleading in a material particular;
(iii) intentionally give information to another person, knowing that the information is false or misleading in a material particular and that the other person or someone else will include the information in a statement to an officer;
(iv) intentionally give information to another person, knowing that the information is misleading in a material particular because of the omission of other information that the person has and that the other person or someone else will include the information in a statement to an officer;
(h) Sell or offer for sale, any goods upon the pretence that such goods are prohibited imports or smuggled goods.
(2) A person who contravenes subsection (1) commits an offence punishable upon conviction:
(a) in the case of an offence against paragraph (1)(a), by:
(i) where the Court can determine the amount of the duty on goods the payment of which would have been evaded by the commission of the offence if the goods had been entered for home consumption on:
(A) where the date on which the offence was committed is known to the Court—that date; or
(B) where that date is not known to the Court—the date on which prosecution for the offence was instituted;
a penalty not exceeding 5 times the amount of that duty and not less than 2 times that amount; or
(ii) where the Court cannot determine the amount of that duty, a penalty not exceeding 500 penalty units;
(b) in the case of an offence against paragraph (1)(b), by a penalty not exceeding 5 times the amount of drawback, refund, rebate or remission that was obtained by the commission of the offence and not less than 2 times that amount;
(c) subject to subsection (3), in the case of an offence against paragraph (1)(d), by a penalty not exceeding 250 penalty units; or
(d) in the case of an offence against paragraph (1)(h), by a penalty not exceeding 10 penalty units.
(2A) Where an export entry, a submanifest, an outward manifest or a withdrawal of such an entry, submanifest or manifest is taken, under section 119D, to have been communicated to the Department, then, for the purposes of paragraph (1)(d), the part of the communication constituting the transmission to the Department is treated as a statement made to the Comptroller‑General of Customs.
(2B) Where an import entry, a withdrawal of such an entry, or a return for the purposes of subsection 69(8), subsection 70(7) or section 105C is taken, under section 71L, to have been communicated to the Department, then, for the purposes of paragraph (1)(d), the part of the communication constituting the transmission to the Department is treated as a statement made to the Comptroller‑General of Customs.
(2BA) If an application for a refund, rebate or remission of duty is taken, under regulations made for the purposes of subsection 163(1AB), to have been communicated to the Department, then, for the purposes of paragraph (1)(d), the part of the communication constituting the transmission to the Department is treated as a statement made to the Comptroller‑General of Customs.
(2BC) For the purposes of paragraph (1)(d), information provided to the Department under section 71 in the circumstances mentioned in section 71AAAB is taken to be a statement made to the Comptroller‑General of Customs.
(2C) Nothing in subsection (2A), (2B), (2BA) or (2BC) is to be taken to affect the operation of any of the provisions of section 183.
(3) Where a person is convicted of an offence against paragraph (1)(d) in relation to a statement made, or an omission from a statement made, in respect of the amount of duty payable on particular goods, a Court may, in relation to that offence, impose a penalty not exceeding the sum of 100 penalty units and twice the amount of the duty payable on those goods.
234AA Places set aside for purposes of Act
(1) Where a place:
(a) is to be used by officers:
(i) for questioning, for the purposes of this Act or of any other law of the Commonwealth, passengers or crew disembarking from or embarking on a ship or aircraft; or
(ii) for examining, for such purposes, the personal baggage of such passengers or crew; or
(iii) as a holding place for such passengers or crew; or
(b) is covered by a notice under subsection (3);
a Collector, or a person authorized by a Collector to do so, may cause signs to be displayed at or near the place that identify the place and state that entry into it by unauthorized persons is prohibited by this Act.
(2) Where a sign is displayed in relation to a place under subsection (1), a Collector, or a person authorized by a Collector to do so, may cause signs to be displayed at or near the place that identify the place and indicate (whether in words or images) that the use of:
(a) cameras or sound recorders; or
(b) mobile phones or other electronic forms of communication;
at the place by unauthorized persons is prohibited by this Act.
(3) The Comptroller‑General of Customs may publish a notice in the Gazette specifying, as an area to which this section applies, an area of a port, or an airport, appointed under section 15.
(4) An area specified in such a notice must comprise one or more of the following areas:
(a) areas that are used by, or frequented by, passengers who have arrived in Australia until they have passed through the last point at which they or their baggage are normally subject to processing by officers;
(b) areas that are used by, or frequented by, passengers who are about to depart Australia after they have passed through the first point at which they are normally subject to processing by officers;
(c) areas that are in the vicinity of areas referred to in paragraph (a) or (b).
234A Unauthorised entry to places and on ships, aircraft or wharves
(1) A person shall not:
(a) enter into, or be in, a place in relation to which a sign is displayed under subsection 234AA(1); or
(b) enter on or be in or on:
(i) a ship;
(ii) an aircraft;
(iii) the wharf at which, or the part of a wharf adjacent to which, a ship is berthed;
at a time when goods being the personal baggage of passengers or crew disembarking from, or embarking on that ship or aircraft are being examined, for the purposes of this Act, at or in the vicinity of the ship, aircraft, wharf or part of a wharf.
Penalty: 60 penalty units.
(1AA) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(1A) Subsection (1) does not apply if the person:
(a) enters into or is in the place, by the authority of a Collector; or
(ab) is the holder of a security identification card (within the meaning of section 213A) who:
(i) enters into, or is in, the place for the purposes of his or her employment; and
(ii) is not subject to a direction under subsection (1B); or
(b) enters on or is in or on, the ship, aircraft, wharf or the part of a wharf, by the authority of a Collector; or
(c) is a member of a crew disembarking from, or embarking on, a ship or aircraft; or
(d) is a passenger disembarking from, or embarking on, a ship or aircraft; or