(3) The goods must be dealt with and disposed of in accordance with the directions of the Comptroller‑General of Customs.
(4) Subsections (1) and (2) cease to apply if the infringement notice is withdrawn.
243Z Infringement notices—right of compensation in certain circumstances for goods disposed of or destroyed
(1) Despite the disposal or destruction of goods taken to be condemned as forfeited to the Crown under subsection 243Y(1), a person may apply to a court of competent jurisdiction for compensation under this section.
(2) A right to compensation exists if:
(a) the goods were not prohibited imports; and
(b) the goods were not used or otherwise involved in the commission of an offence; and
(c) the person establishes, to the satisfaction of the court, that he or she is the rightful owner of the goods.
(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 the market value of the goods at the time of their disposal or destruction.
Part XIV—Customs prosecutions
244 Meaning of Customs prosecution
Customs prosecutions are proceedings:
(a) for the recovery of penalties under this Act, other than pecuniary penalties referred to in section 243B; or
(b) for the condemnation of ships, aircraft or goods seized as forfeited.
245 Institution of prosecutions
(1) Customs prosecutions may be instituted by the Comptroller‑General of Customs by action, information or other appropriate proceeding:
(a) in the Supreme Court of a State;
(b) in the Supreme Court of the Australian Capital Territory;
(c) in the Supreme Court of the Northern Territory;
(d) in a County Court or District Court of a State;
(e) in a Local Court, being a Local Court of full jurisdiction, of South Australia or of the Northern Territory; or
(f) in a court of summary jurisdiction of a State, of the Australian Capital Territory or of the Northern Territory.
(2) Where a Customs prosecution for a pecuniary penalty that, but for this section, would exceed 400 penalty units is instituted in a Court referred to in paragraph (1)(d) or (e), the amount of that penalty that exceeds 400 penalty units shall be taken to have been abandoned.
(4) Where a Customs prosecution for a pecuniary penalty that, but for this subsection, would exceed 200 penalty units is instituted in a court referred to in paragraph (1)(f), the amount of that penalty that exceeds 200 penalty units shall be taken to have been abandoned.
247 Prosecutions in accordance with practice rules
Every Customs prosecution in a court referred to in subsection 245(1) may be commenced prosecuted and proceeded with in accordance with any rules of practice (if any) established by the Court for Crown suits in revenue matters or in accordance with the usual practice and procedure of the Court in civil cases or in accordance with the directions of the Court or a Judge.
248 State Court practice
Subject to the provisions of this Act the provisions of the law relating to summary proceedings in force in the State or Territory where the proceedings are instituted shall apply to all Customs prosecutions before a Court of summary jurisdiction in a State or Territory, and an appeal shall lie from any conviction order for condemnation or order of dismissal to the Court and in the manner provided by the law of the State or Territory where such conviction or order is made for appeals from convictions or orders of dismissal, and notwithstanding anything to the contrary in the law of the State or Territory, an appeal shall lie from an order of dismissal to any court to which and in the manner in which an appeal lies from a conviction.
249 Commencement of prosecutions
Customs prosecutions may be instituted at any time within 5 years after the cause thereof.
250 Information to be valid if in words of Act
All informations summonses other originating processes convictions condemnations and warrants shall suffice if the offence or forfeiture is set forth as nearly as may be in the words of this Act.
250A Property in goods subject to customs control
Where in any proceedings on behalf of the Commonwealth in relation to any goods subject to customs control it is necessary to allege any property in the goods, the goods may be alleged to be the property of the Collector without mentioning his or her name.
251 No objection for informality
No objection shall be taken or allowed to any information, summons or other originating process for any alleged defect therein in substance or in form or for any variance between such information, summons or other originating process and the evidence adduced at the hearing in support thereof, and the Court shall at all times make any amendment necessary to determine the real question in dispute or which may appear desirable, and if any such defect or variance shall appear to the Court to be such that the defendant has been thereby deceived or misled it shall be lawful for the Court upon such terms as it may think just to adjourn the hearing of the case to some future day.
252 Conviction not to be quashed
No conviction warrant of commitment or condemnation order or other proceeding matter or thing done or transacted in relation to the execution or carrying out of any Customs Act shall be held void quashed or set aside by reason of any defect therein or want of form and no party shall be entitled to be discharged out of custody on account of such defect.
253 Protection to witnesses
No witness on behalf of the Minister, Comptroller‑General of Customs or Collector in any Customs prosecution shall be compelled to disclose the fact that he or she received any information or the nature thereof or the name of the person who gave such information, and no officer appearing as a witness shall be compelled to produce any reports made or received by the officer confidentially in his or her official capacity or containing confidential information.
254 Defendant competent witness
(1) In every Customs prosecution the defendant shall be competent to give evidence.
(2) In every Customs prosecution except for an indictable offence or for an offence directly punishable by imprisonment the defendant shall be compellable to give evidence.
255 Averment of prosecutor sufficient
(1) In any Customs prosecution the averment of the prosecutor or plaintiff contained in the information, complaint, declaration or claim shall be prima facie evidence of the matter or matters averred.
(2) This section shall apply to any matters so averred although:
(a) evidence in support or rebuttal of the matter averred or of any other matter is given by witnesses; or
(b) the matter averred is a mixed question of law and fact, but in that case the averment shall be prima facie evidence of the fact only.
(3) Any evidence given by witnesses in support or rebuttal of a matter so averred shall be considered on its merits and the credibility and probative value of such evidence shall be neither increased nor diminished by reason of this section.
(4) The foregoing provisions of this section shall not apply to:
(a) an averment of the intent of the defendant; or
(b) proceedings for an indictable offence or an offence directly punishable by imprisonment.
(5) This section shall not lessen or affect any onus of proof otherwise falling on the defendant.
256 Proof of proclamation etc.
The production of the Gazette containing any proclamation gazette notice or regulation appearing to have been issued or made under this Act or the production of any document certified by the Comptroller‑General of Customs to be a true copy of, or extract from any such proclamation, gazette notice, or regulation issued or made under this Act shall be prima facie evidence of the issue or making of such proclamation, gazette notice, or regulation, and that the same is in force.
257 Conduct by directors, employees or agents
(1) Where, in a Customs prosecution in respect of any conduct engaged in by a body corporate, it is necessary to establish the state of mind of the body corporate, it is sufficient to show that a director, employee or agent of the body corporate, being a director, employee or agent by whom the conduct was engaged in within the scope of his or her actual or apparent authority, had that state of mind.
(2) Any conduct engaged in on behalf of a body corporate:
(a) by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body corporate, where the giving of such direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent;
shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate.
(3) Where, in a Customs prosecution in respect of any conduct engaged in by a person other than a body corporate, it is necessary to establish the state of mind of the person, it is sufficient to show that an employee or agent of the person, being an employee or agent by whom the conduct was engaged in within the scope of his or her actual or apparent authority, had that state of mind.
(4) Any conduct engaged in on behalf of a person other than a body corporate:
(a) by an employee or agent of the person within the scope of the actual or apparent authority of the employee or agent; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an employee or agent of the first‑mentioned person, where the giving of such direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent;
shall be deemed, for the purposes of this Act, to have been engaged in also by the first‑mentioned person.
(5) A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person’s reasons for his or her intention, opinion, belief or purpose.
259 Collector may levy on goods in his or her possession
When any pecuniary penalty adjudged against any person is unpaid the Collector may levy the same by sale of any goods belonging to such person which may then or thereafter be subject to customs control.
261 Imprisonment not to release penalty
No person shall be twice imprisoned upon the same conviction but the suffering of imprisonment for non‑payment of a penalty shall not release the penalty or affect the right of the Commonwealth to collect the amount in any manner provided by this Act other than by imprisonment of the person convicted.
263 Parties may recover costs
In a Customs prosecution, whether commenced before or after the commencement of this section, a court may award costs against a party, and, where an amount of costs is awarded against a party other than the prosecutor, section 259 and any provision of a law of a State or Territory that, by virtue of an Act other than this Act, applies in relation to the recovery of pecuniary penalties under this Act apply in relation to the recovery of the amount of costs so awarded as if it were a pecuniary penalty adjudged to be paid by the party under this Act.
264 Application of penalties
(1) All penalties and forfeitures recovered under any Customs Act shall be applied to such purposes and in such proportions as the Comptroller‑General of Customs may direct.
(2) This section does not apply to:
(a) penalties recovered in proceedings under subsection 243B(1);
(b) penalties recovered in proceedings instituted by a member of the Australian Federal Police; or
(c) forfeitures of narcotic‑related goods.
Part XV—Tenders for rights to enter goods for home consumption at concessional rates
265 Interpretation
(1) In this Part:
determined, in relation to a quantity or a value, means determined in accordance with a tender.
item of a Customs Tariff and proposed item of a Customs Tariff have the same respective meanings as in Part XVI.
particular goods includes goods included in a particular class or kind of goods.
scheme means a scheme formulated by the Minister under section 266.
266 Tender schemes
(1) The Minister may, by instrument in writing, formulate a scheme for calling, and dealing with, tenders for the right to enter for home consumption during a period, or each of a number of periods, a determined quantity of particular goods, or particular goods of a determined value, at concessional rates of duty.
(2) A call for tenders that relates to determined quantities of particular goods shall include a statement that, for the purposes of the application of the Customs Undertakings (Penalties) Act 1981 and the Customs Securities (Penalties) Act 1981 in relation to the particular goods the subject of the call, the value of the goods is to be calculated by reference to a value set out in the statement as the value of an appropriate unit of the goods.
(3) In determining the value of an appropriate unit of particular goods to be set out in a statement referred to in subsection (2), the Minister shall have regard to the average value of the corresponding unit in relation to goods of the same kind that were imported into Australia and entered for home consumption during the financial year that ended on the 30 June immediately preceding the date on which the call for tenders is made.
(4) A call for tenders shall include a statement that, for the purposes of the application of the Customs Undertakings (Penalties) Act 1981 and the Customs Securities (Penalties) Act 1981 in relation to the particular goods the subject of the call, the prescribed percentage of the value of the goods is to be the percentage set out in the statement.
267 Undertakings relating to tenders
(1) Where, in accordance with a call for tenders made under a scheme, a person furnishes a tender for the right to enter for home consumption during a period, or each of a number of periods, a quantity to be determined in accordance with that tender of particular goods, or particular goods of a value to be determined in accordance with that tender, at rates of duty to be determined in accordance with that tender, that tender shall not be considered unless it is accompanied by an undertaking in writing by that person, in terms satisfactory to the Comptroller‑General of Customs, that, if that tender is accepted and:
(a) the Customs Tariff Act 1995 is so altered or proposed to be so altered that rates of duty determined in accordance with that tender are set out in items, or proposed items, of a Customs Tariff that are expressed to apply to goods as prescribed by by‑law; and
(b) the Comptroller‑General of Customs makes a determination under section 273 by virtue of which those items or proposed items apply to the quantity determined in accordance with that tender of those goods, or the quantity of those goods having the value determined in accordance with that tender, to be entered for home consumption by that person during that period, or each of those periods, as the case may be;
the person will, during that period, or each of those periods, as the case may be, enter for home consumption under:
(c) any of those items, or proposed items; or
(d) any appropriate item, or proposed item, of a Customs Tariff that is not expressed to apply to goods as prescribed by by‑law;
that quantity of those goods, or the quantity of those goods having that value.
(2) An undertaking referred to in subsection (1) that relates to a determined quantity of goods shall include a statement acknowledging that, for the purposes of the application of the Customs Undertakings (Penalties) Act 1981 and the Customs Securities (Penalties) Act 1981 in relation to the goods to which the undertaking relates, the value of those goods is to be calculated by reference to the value per unit of those goods as set out in the statement, being the value per unit set out in the statement included, in accordance with subsection 266(2), in the relevant call for tenders.
(3) An undertaking referred to in subsection (1) shall include a statement acknowledging that, for the purposes of the application of the Customs Undertakings (Penalties) Act 1981 and the Customs Securities (Penalties) Act 1981 in relation to the goods to which the undertaking relates, the prescribed percentage of the value of the goods is to be the percentage set out in the statement, being the percentage set out in the statement included, in accordance with subsection 266(4), in the relevant call for tenders.
(4) In this section, a reference to the relevant call for tenders in relation to an undertaking, shall be read as a reference to the call for tenders in accordance with which the tender to which the undertaking relates was furnished.
268 Transfers of rights to enter goods for home consumption at concessional rates of duty
(1) A scheme may provide for the transfer, with the approval of the Comptroller‑General of Customs, from one person to another of a right to enter for home consumption during a period, or each of a number of periods, a specified quantity of particular goods, or particular goods of a specified value, at concessional rates of duty.
(2) The Comptroller‑General of Customs shall not give an approval to a transfer under a scheme of a right to enter for home consumption a specified quantity of particular goods, or particular goods of a specified value, unless the transferee: