1

Can you provide examples of the range of prohibited goods that would be subject to the procedures outlined in schedule 1- import controls?

2

Will ACS take into consideration the total value of a prohibited import in deciding whether to issue an infringement notice? 

a.       Does ACS have an upper limit or threshold in mind (provide if applicable) above which infringement notices will not be issued or will be unlikely to be issued?

3

Can ACS outline the types of persons or entities that the proposed scheme is aimed or directed towards? For example airline passengers, importers of parcels, general air freight, freight forwarders.

a.       If any of the above groups are contemplated to be subject to the proposed scheme, can ACS provide details as to who has been consulted and when, and can the minutes or outcomes of these consultations be provided to the committee. If not why not?  When will they be consulted?

b.      If no consultations occurred, how is it proposed to take any of the views of these groups into consideration, if the bill is now drafted? If their views were sought and provided, can the ACS provide details of them and indicate what parts of the bill were changed as a result of this?

4

This question relates to the extent to which the new infringement notice regime could be applicable to importers and exporters rather than merely passengers and their luggage in a s234AA place.

The regime sets up:

- a surrender of goods mechanism under section 209 N

- a detention of goods under section 209U

- an infringement notice scheme dealing with concealed goods under section 243ZH.

ACS has indicated that the infringement notice regime will only apply to ship and aircraft passengers.  You will note however that only the surrender of goods regime under Section 209N and the infringement scheme s243ZH are limited to goods in a s234AA place.  Section 209U which covers goods detained makes no reference to suggest that it is limited to s234AA places.

These regimes are intended to replace or substitute for the operation of Section 203B which when we determine what that applies to, applies to containers and conveyances as well as simply passengers at airports and customs designated Section 234AA areas.  Therefore, 1 of the 3 pillars to the regime seemingly may have application outside the limitation of Section 234AA places. 

a.       In relation to this detention scheme, does it apply outside of section 243AA areas (ACS indicated that it may apply to the postal environment)?

b.      Could it also apply to the shipping container environment or the air container environment?

c.       Can ACS provide the definition and other examples of a 234AA place?

d.      Can you please explain how this will interact with the accredited client program and any other infringement schemes, or advise how you intend to limit the application?

e.       Will the infringement notice regime be applicable to persons other than passengers with their luggage?  For example brokers, importing businesses or freight forwarders.

1. If so, will the penalties that apply differ and how so?
2. If so, who will be deemed to be the owner of the goods for the purposes of the regime?

5

What is the penalty regime (i.e. range of penalties, civil/criminal forfeiture regime), and how is it calculated?

a.       How will the penalty regime be applied to ensure fairness and avoid unjust outcomes or inconsistent treatment of persons or entities?

b.      How will recovery of unpaid penalties be recovered?

c.       How much revenue is projected to be obtained from introducing the proposed scheme?

6

Has the ACS considered an alternative low-cost procedure to providing importers with the right to apply to a court for compensation in respect of goods that have been surrendered? (The Law Council has argued that the costs of applying to a court would likely exceed the amount of compensation)

7

Have any efficiency gains been forecast from the introduction of the new scheme?  If so, provide details.

8

What training of ACS staff has been undertaken to date, in respect of the proposed scheme?

a.       What type of training of staff is contemplated for staff of the proposed scheme?

b.      Have the relevant unions been consulted about the proposed changes? If not, why not?

9

Have the regulations contemplated in sections 209M and 209T been drafted, if not why not? If yes, can you provide a copy?

10

Are the directions of the CEO under 209R specified?

a.       If yes, can you provide a copy? If not, why not?

b.      What types of directions are contemplated under these directions?

11

Have the guidelines provided for under section 243ZG been developed? If they have been can the ACS provide a copy, if not why not?

12

Can the ACS provide a diagrammatic description (i.e. flow chart) of how the proposed scheme, including the infringement notices under this bill, will work?

13

In respect of the discretion the customs officer has in deciding to use the power under 209N, can ACS outline the training or provide a copy of the guidelines that will assist Customs officers in carrying out there duties?

14

What systems or procedures or internal reviews are in place or will be put in place to ensure that officers carry out their duties diligently?

15

What review mechanisms are available to persons subject to the exercise of a customs officer discretion contemplated in the new proposals?

16

Is there a complaint handling procedure in place to deal with the use of the discretion?

a.       If so, can you provide a copy of it? If not why not?

17

Can you provide a copy of those items under the PI regulations that will be subject to the regime?

a.       Can this list be changed, if so what processes will be adopted when changes to the PI regulations are contemplated?

b.      Are the PI regulations disallowable instruments?

18

Will both the infringement scheme and the post-importation declaration procedures apply to postal articles, either mail or parcels? If not why not?

19

What procedures are provided to ensure the under subdivision GC a person can be given the option of obtaining a post-importation permission?

a.       Is any decision on this matter made by the Customs officer subject to either internal or external review?

b.      Is it subject to judicial review?

20

What procedures are in place to ensure the integrity of the system?

a.       If there are procedures in place, can they be provided to the committee?

21

What discretion is available for a customs officer to decide that there was no intention by the person subject of investigation not to conceal the goods in accordance with the relevant section? (ie what happens where a person is unaware that they have concealed a prohibited item?)

a.       If this discretion exists, is it too broad and open to abuse?

b.      If this discretion does not exist, how are ACS personnel expected to determine whether an intention existed?

22

Will this proposed scheme be available to be used by part time or casual employees of customs? If yes, what safeguards are put in place to ensure the power is exercised correctly?

23

Can any of the time periods specified in the Bill be extended?

a.       If so can you provide outline how any extension would operate and on what basis the periods could be extended?

b.      If not, why not in the cases of hardship or if there exists reasonable grounds?

24

This question relates to the disposal of surrendered goods and forfeited goods which are classified as prohibited imports. Does the use of the term disposal open up the possibility that the goods are not necessarily destroyed?  For example, that the goods can be disposed of through sale rather than disposed of through destruction.

a.       If so, under what circumstances might the goods end up not being destroyed?

25

In relation to Section 209V (Detained goods to be secured), why were the additional instructions of the equivalent ss204 (3) to (5) not applied here in relation to this new regime for detention of goods?

26

How does the new system apply in the circumstances where a person’s suitcase contains a prohibited import or when a parcel containing multiple items contains a prohibited import?

a.       Are all contents deemed to be forfeited or just the prohibited item?

27

With regards to Section 243ZA subsection (4) as it exists under the Act, every other reference to infringement notice has been modified in this Division (now subdivision).  Why has this subsection not been modified to include the terms “served under this subdivision” or similar?

28

In the ACS submission on the Bill, it was indicated that passengers must pay the infringement notice before leaving the ACS controlled area to remove liability for the offence and the proposed model requires the customs officer to accompany the passenger to the duty collection area while the notice is paid:

a.       How labour intensive is this likely to be?

b.      Why are these people not to be allowed to leave until they have paid?

c.       Does ACS intend to escort people to a place they can obtain the required funds (e.g. an ATM)?

d.      What will happen should a person wish to pay the penalty but not have immediate access to electronic funds?

e.       In the above circumstances will the ACS allow the person to arrange for a third party to arrange the funds to be brought to the duty collection area?  For example a friend or relative to bring the required cash:

f.        In the situation where someone can arrange for a friend or relative to drop the money off at the airport please advise as to whether the ACS is planning to keep a Customs officer in accompaniment until the friend or relative arrives with the cash?

g.       Does ACS intend to set any time limits for the person to arrange the payment of the penalty?  If so, provide details.

29

Will there be a public education campaign to inform the travelling public of the new regime?

30

Will there be a trial period before the regime officially commences?

31

There appears to be a drafting error in Item 5 of Schedule 1 – does paragraph 203(3)(e) of the Customs Act exist?

32

Proposed section 209N refers to 'the available options' for dealing with the goods and the consequence of exercising each of these options.

a.       What are these options? Can you provide the committee with a copy of the options?

b.      What are all the relevant consequences of exercising the options? Can you provide the committee with a copy of these?

33

Can you provide the committee with an explanation of what 'concealed' actually means in the context of the proposed regime and provide the committee with details of all the circumstances/situations where the term is intended to apply?

34

Proposed paragraph 209X(1)(j) refers to notices being served in a foreign country.

a.       How is this intended to operate in practice?

b.      What legislation underpins the operation of this proposed paragraph (eg mutual assistance legislation)?

c.       Is a formal relationship with relevant countries required?

d.      What will happen if no diplomatic relationship between Australia and the relevant country exists?

35

The committee has previously requested a flow chart of how the infringement notices regime will operate (Q.11).

a.       Can the ACS also provide flow charts of how the post-importation permission scheme will operate and how the seizure of goods scheme will operate – essentially there will be 3 separate regimes in operation.

b.      Could the ACS also set out how the 3 separate processes will interrelate?

36

Why must a passenger pay an infringement notice before leaving a section 234AA area? Why can't the passenger be given a certain period of time (eg 28 days) to pay (cf parking infringement notices etc)?

37

Why has a distinction been made in proposed subparagraphs 243ZI(1)(e)(i) and (ii) between persons in section 234AA areas and 'in any other case'? What does 'in any other case' mean? Please provide the committee with details of what this is intended to cover. If it is intended to only cover the postal environment, why isn't this specifically mentioned in the Bill/EM?

38

Is there a definition of the passenger processing area or the postal environment? If not, why not?

39

How does the bill actually differentiate between the areas of postal environment and the commercial air or sea cargo environments?

40

What is the definition of the commercial air or sea cargo environments that will be used in the bill to differentiate these services from the actual areas of passenger processing or postal environments? If there is no definition, how will the ACS decide which is commercial air or which is postal environments?

41

Can ACS provide examples of what is said to be in the commercial air environment and what is in the postal environments?

42

Will all parcel post be subject to the new regime proposed in the bill?

43

Can ACS demonstrate in the bill how the above areas are separated? If not, can customs explain how the bill will not have application to the commercial air or sea cargo areas?

44

Can ACS confirm that the infringement notice scheme can apply in any area subject to a 203B seizure, if yes can ACS explain why it will not operate in the commercial area of sea cargo or air cargo? If yes, can customs explain how the bill will not apply in these areas?

45

Will the infringement notice scheme and the detention scheme operate in the international postal exchanges? If yes, can you provide a list of those sites?

46

Will the bill apply to the air parcel post operators such as Fed Ex and DHL etc.? If not, why not? If not, can you explain how the bill does not apply to these operations?

47

Can a person be prosecuted under the bill as well as having the goods detained and post import permission sought? If not, can you explain in the bill where that outcome is excluded, if yes, can you explain what decision-making process will be used to decide whether to prosecute or not? Will this be dependant on whether a good is granted permission or not or can a person be prosecuted irrespective of whether the importer is granted permission to import the good or not? What safeguards are in place to ensure that the detention regime and the post import permission regime operates fairly?