Chapter 3
Key issue
3.1
As noted in chapter 1, the committee received just one submission
from the Australian Customs and Border Protection Service, which naturally
enough did not raise any issues with the Bill. The committee is grateful for
the submission as it clarified a number of matters.
3.2
Overall, the committee considers that the amendments made by the Bill
are positive and allow for a streamlining and clarification of procedures under
the Act.
3.3
During the course of the inquiry, however, the committee became aware of
one ambiguity in the Bill that it considers worthy of clarification. The
ambiguity relates to proposed section 186AA, which would allow goods
carried on the domestic legs of international flights or voyages to be examined
by a Customs officer. As noted in chapter 2, proposed
subsection 186AA(2) is a power to examine goods that have not yet been
loaded onto the ship or aircraft, while proposed subsection 186AA(3) gives
a similar power in respect of goods that have already been unloaded.
3.4
Proposed subsections 186AA(2)(d) and 186AA(3)(d) both provide that
'the goods are subject to the control of the Customs while the goods are being
so examined'. As explained in the previous chapter, goods that are subject to
the control of the Customs may, in certain circumstances, be examined,[1]
seized,[2]
forfeited,[3]
or held pending the giving of security.[4]
At present, section 30 defines when goods that are being imported or
exported are subject to the control of the Customs. It provides definite times
at which such control commences and comes to an end.
3.5
It is reasonable to extend the concept of Customs control to goods being
examined pursuant to proposed section 186AA so that such goods can be
forfeited or held if and when the relevant circumstances exist. However, unlike
goods subject to the control of Customs because of the operation of
section 30, it appears that the periods of Customs control brought about
by proposed subsections 186AA(2)(d) and 186AA(3)(d) may not have
sufficiently precise start and end points. It is clear that the period of
Customs control commences when the examination begins and comes to an end when
the examination concludes, but nowhere is it made clear when exactly this is.
This is likely to be less of a problem in the case of the commencement of the
examination but, in the case of conclusion, issues may arise. For example, if a
Customs officer were to stop examining goods so as to confer with a colleague,
or to seek advice from his/her supervisor, or to make a report, would this mean
that the examination had concluded and the goods ceased to be within the control
of the Customs?
3.6
Furthermore, the absence of a defined end point means that there is
nothing preventing an examination from being extended for so long as to operate
as a de facto temporary seizure that is not subject to any of the requirements
imposed on other seized goods.[5]
3.7
This issue does not arise in relation to the general examination power
in section 186 because that power to examine is confined to when the goods
are subject to the control of the Customs, as defined in section 30. Put
another way, section 186 defines when goods are able to be examined by
reference to when they are subject to the control of the Customs, but proposed
section 186AA defines when goods are subject to the control of the Customs
by reference to when they are being examined.
3.8
For this reason, the start and end points of an examination under
proposed section 186AA take on a relevance that they do not have in
relation to an examination under section 186. In those circumstances, the
committee considers that the start and end points of an examination under
proposed section 186AA should be clarified. The committee would appreciate
the Commonwealth government's comment on the committee's understanding of the
provisions, to ensure that the Bill is in all respects as the government
intended and without unintended omissions.
Recommendation 1
3.9
The committee recommends that the Commonwealth government clarify
proposed section 186AA to specify when an examination under that section
begins and ends.
3.10
As noted above, the committee endorses the remainder of the Bill and,
subject to the above clarification, recommends that the Bill be passed.
Recommendation 2
3.11
Subject to the preceding recommendation, the committee recommends that
the Bill be passed.
Senator the
Hon Ian Macdonald
Chair
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