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Introduced into the House of
Representatives on 27 June 2012
Portfolio: Attorney-General
1.2
The committee notes that the statement of compatibility claims that this
bill does not engage human rights as defined in the Human Rights
(Parliamentary Scrutiny) Act 2011. The committee seeks clarification from
the Attorney- General whether it would be more accurate for the statement of
compatibility to state that the bill does in fact engage criminal process
rights as contained in Article 14 of the International Covenant on Civil and
Political Rights (ICCPR), while acknowledging that the bill is compatible with
these rights.
1.3
This bill amends the Customs Act 1901 (the Act) to create new criminal
offences for smuggling tobacco products and for conveying or possessing
smuggled tobacco products. These new offences combine the penalties of the
existing smuggling and fraud offences by providing a pecuniary penalty of up to
five times the duty evaded in addition to up to 10 years imprisonment.
Criminal process rights (Article 14
ICCPR)
1.4
The committee notes that the statement of compatibility claims that
although the bill introduces new criminal offences for the smuggling of
tobacco, the bill does not engage human rights because it does not change any
of the existing human rights guarantees, for example the minimum guarantees in
criminal proceedings in the International Covenant on Civil and Political
Rights (ICCPR).
1.5
Section 233 of the Act currently provides for an offence for the
smuggling of any goods, including tobacco products. Offences under section 233
can only be prosecuted by way of a Customs prosecution and are punishable by a
financial penalty of up to five times the duty evaded. Item 2 of the bill
inserts a new section which creates new offences in relation to the smuggling
of tobacco. The new offences will be criminal offences punishable by up to 10
years imprisonment or a fine, or both.
1.6
Item 1 of the bill will amend section 210 of the Act to include
reference to the new offence provision inserted by Item 2. Section 210 allows
an officer of Customs or police to arrest a person without warrant where the
officer believes on reasonable ground that the person has committed or is
committing an offence against new section 233BABAC in relation to the smuggling
of tobacco products. Section 210 sets out circumstances in which this power may
be exercised.
1.7
In introducing the bill the Attorney-General stated that the current
penalties for illegal tobacco are not necessarily an effective deterrent as
many penalties currently imposed for tobacco smuggling are not paid.
1.8
The explanatory memorandum to the bill notes that on some occasions the
investigation of the smuggling offence results in the identification of
sufficient evidence to warrant the pursuit of fraud offences under the Criminal
Code Act 1995. In these cases offences carry penalties of up to 10
years imprisonment.
1.9
The committee notes that the imprisonment is intended to provide a
strong deterrent to criminals and to demonstrate the seriousness of smuggling
acts.
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