(2) After a pecuniary penalty is imposed on a person in respect of a particular prescribed narcotics dealing engaged in by the person, or of prescribed narcotics dealings engaged in by him or her during a particular period, property of the person to which section 229A applies by virtue of that dealing, or of such a dealing during that period, shall not be seized as forfeited goods.
(3) The Court may make an order, in respect of property to which section 229A applies, being property that has been seized as forfeited goods, determining the value, at the time when it was seized, of that property for the purposes of this section.
243S Jurisdiction of the Court
Jurisdiction is conferred on the Court to hear and determine applications under this Division.
Division 4—Provisions relating to certain strict liability offences
243SA Failure to answer questions
(1) A person must not fail to answer a question that an officer, pursuant to a power conferred on the officer by this Act (other than section 106J or 195A or subsection 214AH(2)), requires the person to answer.
Penalty: 30 penalty units.
(2) A person must not fail to answer a question that a monitoring officer, pursuant to subsection 214AH(2), requires the person to answer, if:
(a) the person is the occupier of the relevant premises, or a representative of the occupier whom the occupier has nominated to a monitoring officer to answer questions under that subsection; or
(b) the person is not covered by paragraph (a) and no other person of the kind mentioned in that paragraph is present at the premises and available to answer questions put by the monitoring officer.
Penalty: 30 penalty units.
(3) If:
(a) an officer requires a person to answer a question under section 106J or 195A; and
(b) the officer informs the person of the officer’s authority to ask the question; and
(c) the officer informs the person that it may be an offence not to answer the question;
the person must not fail to answer the question.
Penalty: 30 penalty units.
(4) Subsections (1), (2) and (3) are offences of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
243SB Failure to produce documents or records
(1) A person must not fail to produce a document or record that an officer, pursuant to a power conferred on the officer by this Act other than a power conferred by section 71AAAO, 71DA, 71DL, 77Y, 87C, 114A or 118, requires the person to produce.
Penalty: 30 penalty units.
(2) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
243SC Preservation of the privilege against self‑incrimination
(1) Subject to subsection (2), a person who would, apart from this subsection, be required to:
(a) answer a question under section 243SA; or
(b) produce a document or record under section 243SB;
need not comply with the requirement if so complying would:
(c) tend to incriminate the person; or
(d) result in further attempts to obtain evidence that would tend to incriminate the person.
(2) Subsection (1) does not apply, and the person must comply with the requirement, if the person has waived his or her rights under that subsection.
243T False or misleading statements resulting in loss of duty
(1) A person commits an offence if:
(a) the person:
(i) makes, or causes to be made, to an officer a statement (other than a statement in a cargo report or an outturn report) that is false or misleading in a material particular; or
(ii) omits, or causes to be omitted, from a statement (other than a statement in a cargo report or an outturn report) made to an officer any matter or thing without which the statement is false or misleading in a material particular; and
(b) either of the following applies:
(i) the amount of duty properly payable on the goods exceeds the amount of duty that would have been payable if the amount of duty were determined on the basis that the statement was not false or misleading;
(ii) the amount that would have been payable as a refund or drawback of duty on the goods if that amount had been determined on the basis that the statement was not false or misleading exceeds the amount of refund or drawback properly payable (which may be nil).
(2) An offence against subsection (1) is an offence of strict liability.
(3) An offence against subsection (1) is punishable on conviction by a fine not exceeding the greater of:
(a) 60 penalty units; and
(b) the amount of the excess.
(3A) For the purposes of this section, a person is taken to cause to be made a statement (other than a statement in a cargo report or outturn report) that is false or misleading in a material particular if:
(a) the person gives information that is false or misleading in a material particular to another person for inclusion in a statement (other than a statement in a cargo report or outturn report) by the other person or someone else to an officer; and
(b) the other person or someone else makes such a statement including the information to an officer.
This subsection does not limit the ways in which a person may cause such a statement to be made.
(3B) For the purposes of this section, a person is taken to cause to be made an omission (a punishable omission) from a statement (other than a statement in a cargo report or outturn report) of a matter or thing without which the statement is false or misleading in a material particular, if:
(a) the person gives to another person, for inclusion in a statement (other than a statement in a cargo report or an outturn report) by the other person or someone else to an officer, information that is false or misleading in a material particular because of an omission of other information that the person has; and
(b) the other person or someone else makes such a statement including the information to an officer.
This subsection does not limit the ways in which a person may cause a punishable omission to be made.
(4) Subsection (1) does not apply if:
(a) a person (other than an officer) voluntarily gives written notice (an error notice) to an officer doing duty in relation to the matter to which the statement relates, indicating that:
(i) the statement is false or misleading in a material particular; or
(ii) the statement is false or misleading in a material particular because of the omission of a matter or thing; and
(b) between the making of the statement and the person giving the error notice, a notice under section 214AD had not been given to:
(i) a person who made the statement or caused it to be made (the defendant); or
(ii) a person who omitted, or caused to be omitted, from the statement a matter or thing without which the statement was false or misleading (the defendant); and
(c) if subparagraph (1)(b)(i) would apply apart from this subsection—the duty properly payable on the goods is paid in full before either of the following happens:
(i) an infringement notice is given to the defendant for an offence against subsection (1);
(ii) proceedings are commenced against the defendant for an offence against subsection (1); and
(d) if subparagraph (1)(b)(ii) would apply apart from this subsection and an amount of refund or drawback exceeding the amount (if any) properly payable has been paid before the time either of the following happens:
(i) an infringement notice is given to the defendant for an offence against subsection (1);
(ii) proceedings are commenced against the defendant for an offence against subsection (1);
the excess has been repaid before that time.
(4A) For the purposes of paragraph (4)(a), the error notice is taken not to be given voluntarily if it is given after:
(a) an officer exercises a power under a Customs‑related law to verify information in the statement; or
(b) an infringement notice is served under Subdivision A of Division 5 on the defendant for an offence against subsection (1); or
(c) proceedings are commenced against the defendant for an offence against subsection (1).
(5) Subsection (1) does not apply to a statement made by a person to an officer if:
(a) the statement specifies that the person is uncertain about information included in the statement, and considers that, as a result of including that information, the statement might be false or misleading in a material particular; and
(b) the statement identifies the information whose inclusion might make the statement false or misleading in a material particular; and
(c) the statement sets out the reasons why the person is uncertain about the identified information.
(6) Subsection (1) does not apply to a statement made by a person to an officer if:
(a) the statement specifies that the person is uncertain whether, as a result of omitting information from the statement, the statement might be false or misleading in a material particular; and
(b) the statement identifies the omission of information that might make the statement false or misleading in a material particular; and
(c) the statement sets out the reasons for the person’s uncertainty about the effect of omitting the information.
243U False or misleading statements not resulting in loss of duty
(1) A person commits an offence if:
(a) the person:
(i) makes, or causes to be made, to an officer a statement (other than a statement in a cargo report or an outturn report) that is false or misleading in a material particular; or
(ii) omits, or causes to be omitted, from a statement (other than a statement in a cargo report or an outturn report) made to an officer any matter or thing without which the statement is false or misleading in a material particular; and
(b) neither of the following applies:
(i) the amount of duty properly payable on particular goods exceeds the amount of duty that would have been payable if the amount of duty were determined on the basis that the statement was not false or misleading;
(ii) the amount that would have been payable as a refund or drawback of duty on the goods if that amount had been determined on the basis that the statement was not false or misleading exceeds the amount of refund or drawback properly payable (which may be nil).
(2) An offence against subsection (1) is an offence of strict liability.
(3) The penalty for a conviction for an offence against subsection (1) is an amount not exceeding 60 penalty units for each statement that is found by the court to be false or misleading.
(3A) For the purposes of this section, a person is taken to cause to be made a statement (other than a statement in a cargo report or outturn report) that is false or misleading in a material particular if:
(a) the person gives information that is false or misleading in a material particular to another person for inclusion in a statement (other than a statement in a cargo report or outturn report) by the other person or someone else to an officer; and
(b) the other person or someone else makes such a statement including the information to an officer.
This subsection does not limit the ways in which a person may cause such a statement to be made.
(3B) For the purposes of this section, a person is taken to cause to be made an omission (a punishable omission) from a statement (other than a statement in a cargo report or outturn report) of a matter or thing without which the statement is false or misleading in a material particular, if:
(a) the person gives to another person, for inclusion in a statement (other than a statement in a cargo report or an outturn report) by the other person or someone else to an officer, information that is false or misleading in a material particular because of an omission of other information that the person has; and
(b) the other person or someone else makes such a statement including the information to an officer.
This subsection does not limit the ways in which a person may cause a punishable omission to be made.
(4) Subsection (1) does not apply to a statement if:
(a) a person (other than an officer) voluntarily gives written notice (an error notice) to an officer doing duty in relation to the matter to which the statement relates, indicating that:
(i) the statement is false or misleading in a material particular; or
(ii) the statement is false or misleading in a material particular because of the omission of a matter or thing; and
(b) between the making of the statement and the person giving the error notice, a notice under section 214AD had not been given to either of the following:
(i) a person who made the statement or caused it to be made;
(ii) a person who omitted, or caused to be omitted, from the statement a matter or thing without which the statement was false or misleading.
(4A) For the purposes of paragraph (4)(a), the error notice is taken not to be given voluntarily if it is given after:
(a) an officer exercises a power under a Customs‑related law to verify information in the statement; or
(b) an infringement notice for an offence against subsection (1) is given to:
(i) a person who made the statement or caused it to be made; or
(ii) a person who omitted, or caused to be omitted, from the statement a matter or thing without which the statement was false or misleading; or
(c) proceedings are commenced against a person described in subparagraph (b)(i) or (ii) of this subsection for an offence against subsection (1).
(5) In this section:
statement does not include:
(a) a statement made under Part XVA or XVB; or
(b) a statement that a person who is or was a passenger on, or a member of the crew of, a ship or aircraft made in relation to his or her accompanied personal or household effects that were carried on the ship or aircraft.
243V False or misleading statements in cargo reports or outturn reports
(1) A person commits an offence if the person:
(a) makes, or causes to be made, to an officer a statement, in a cargo report or an outturn report, that is false or misleading in a material particular; or
(b) omits, or causes to be omitted, from a statement, in a cargo report or an outturn report, made to an officer any matter or thing without which the statement is false or misleading in a material particular.
(2) An offence against subsection (1) is an offence of strict liability.
(3) The penalty for a conviction for an offence against subsection (1) is an amount not exceeding 60 penalty units.
(4) For the purposes of subsection (1), a person is taken to cause to be made a statement described in paragraph (1)(a) if:
(a) the person gives information that is false or misleading in a material particular to another person for inclusion in a statement, in a cargo report or an outturn report, by the other person or someone else to an officer; and
(b) the other person or someone else makes a statement including the information to an officer, in a cargo report or an outturn report.
This subsection does not limit the ways in which a person may cause to be made a statement described in paragraph (1)(a).
(5) For the purposes of subsection (1), a person is taken to cause an omission described in paragraph (1)(b) to be made if:
(a) the person gives to another person, for inclusion in a statement, in a cargo report or an outturn report, by the other person or someone else to an officer, information that is false or misleading in a material particular because of an omission of other information that the person has; and
(b) the other person or someone else makes a statement including the information to an officer, in a cargo report or an outturn report.
This subsection does not limit the ways in which a person may cause an omission described in paragraph (1)(b) to be made.
243W Electronic communications to Department to be treated as statements to Comptroller‑General of Customs
For the purposes of this Division, any electronic communication to the Department is taken to be a statement made to the Comptroller‑General of Customs.
Division 5—Infringement notices
243X Infringement notices—general
(1) A regulation may make provision enabling a person who is alleged to have committed an offence of strict liability or of absolute liability against this Act to pay to the Commonwealth a penalty specified in a notice (an infringement notice) as an alternative to prosecution.
(2) The penalty must not exceed either:
(a) one‑quarter of the maximum fine that a court could impose on the person as a penalty for that offence; or
(b) subject to subsection (3), whichever of the following applies:
(i) 15 penalty units if the person is an individual;
(ii) 75 penalty units if the person is a body corporate.
Note: Because of subsection 4B(3) of the Crimes Act 1914, the maximum penalty that may be specified in accordance with paragraph (a) in an infringement notice given to a body corporate may be 5 times greater than the maximum penalty that may be specified in accordance with that paragraph in an infringement notice given to an individual.
(3) Paragraph (2)(b) does not apply if:
(a) the penalty for the offence may be determined wholly or partly by reference to:
(i) an amount of duty that may be, or would have been, payable; or
(ii) the value of particular goods; and
(b) it is possible to determine that amount or that value.
243Y Infringement notices—forfeiture of goods that are prohibited imports if infringement notice paid
(1) Goods are taken to be condemned as forfeited to the Crown if:
(a) the goods are prohibited imports of a kind prescribed by a regulation for the purposes of this section; and
(b) a person pays a penalty to the Commonwealth under an infringement notice as an alternative to prosecution for an offence for a contravention of paragraph 233(1)(b) (importing prohibited imports) in relation to the goods.
(2) In addition:
(a) the title to the goods immediately vests in the Commonwealth to the exclusion of all other interests in the goods; and