Customs Amendment Act 1979 (Cth)
An Act to amend the
BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:
(2)
The
(2) Sections 5 and 6 shall come into operation on a date to be fixed by Proclamation.
(a) by inserting after the definition of “Collector” in sub-section (1) the following definition:
“‘Commercial quantity’ means—
(a) in relation to a narcotic substance the name of which is specified in Column 1 of Schedule VIII— the quantity that is specified in column 2 of that Schedule opposite to the name of the substance; and
(b) in relation to a narcotic substance that is for the time being declared by the regulations to be a prescribed narcotic substance—the quantity that is prescribed by the regulations to be the commercial quantity in relation to that narcotic substance.”;
(b) by inserting after the definition of “Port” in sub-section (1) the following definition:
“‘prescribed narcotic substance’ means a narcotic substance the name of which is specified in Column 1 of Schedule VIII or any other narcotic substance for the time being declared by the regulations to be a prescribed narcotic substance.”; and
(c) by inserting “to be the traffickable quantity” after “regulations” (second occurring) in paragraph (b) of the definition of “Traffickable quantity” in sub-section (1).
“9. (1) The Minister may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him, delegate to a person any of his powers under the Customs Acts, other than this power of delegation.
“(2) A power so delegated, when exercised by the delegate, shall, for the purposes of the Customs Acts, be deemed to have been exercised by the Minister.
“(3) A delegation under this section does not prevent the exercise of a power by the Minister.
“10. (1) The Comptroller may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him, delegate to a person any of his powers under the Customs Acts, other than this power of delegation.
“(2) A power so delegated, when exercised by the delegate, shall, for the purposes of the Customs Acts, be deemed to have been exercised by the Comptroller.
“(3) A delegation under this section does not prevent the exercise of a power by the Comptroller.
“11. (1) The Governor-General may make arrangements with the Governor of a State—
(a) for the performance by all or any of the persons who from time to time hold office as Judges of the Supreme Court of that State of the functions of a Judge under Division 1a of Part XII; and
(b) for the performance by all or any of the persons who from time to time hold office as Magistrates in that State of the functions of a Magistrate under sections 196 and 196a.
“(2) The Governor-General may make arrangements with the Administrator of the Northern Territory—
(a) for the performance by all or any of the persons who from time to time hold office as Judges of the Supreme Court of that Territory and are not also Judges of the Federal Court of Australia or of the Supreme Court of the Australian Capital Territory of the functions of a Judge under Division 1a of Part XII; and
(b) for the performance by all or any of the persons who from time to time hold office as Magistrates in that Territory of the functions of a Magistrate under sections 196 and 196a.”.
(2) A delegation in force under section 9 of the Principal Act immediately before the date of commencement of this section has effect, on and after that date, as if it were a delegation given by the Minister under section 9 of the Principal Act as amended by this Act.
(3) A delegation in force under section 10 of the Principal Act immediately before the date of commencement of this section has effect, on and after that date, as if it were a delegation given by the Comptroller-General of Customs under section 10 of the Principal Act as amended by this Act.
(a) by omitting “If” and substituting “Subject to section 196b, if”;
(b) by omitting “The officer may detain” and substituting “An officer may detain”;
(c) by omitting “a Justice or” and substituting “a Magistrate or, if the search is not to involve an examination of the body cavities of the suspected person,”; and
(d) by omitting “Justice” (second and third occurring) and substituting “Magistrate”.
“196a. (1) An order shall not be made by a Magistrate under section 196 for the searching of a suspected person unless the Magistrate is satisfied, by information on oath, that there is reasonable ground for suspecting that the person is unlawfully carrying, or has secreted about him, any goods subject to the control of the Customs, any prohibited imports or any prohibited exports.
“(2) An order of a Magistrate under section 196 for the searching of a suspected person shall be in accordance with the prescribed form.
“196b. (1) An officer of Customs or of police who is authorized by or under section 196 to search a suspected person shall not carry out a search by way of an examination of the body cavities of the person, but may, subject to sub-section (2), arrange for a medical practitioner to examine the body cavities of the person.
“(2) Where an officer of Customs or of police is authorized by an order of the Collector to search a suspected person, sub-section (1) does not authorize the officer of Customs or of police to arrange for a medical practitioner to examine the body cavities of that person.
“(3) Where a medical practitioner carries out an examination of the body cavities of a person in pursuance of arrangements made by an officer of Customs or of police under this section, proceedings do not lie against the medical practitioner in respect of anything reasonably done by him for the purpose of the examination.
“(4) A medical practitioner who carries out an examination of the body cavities of a person in pursuance of arrangements made by an officer of Customs or of police under this section may sign a certificate, in accordance with the prescribed form, setting out the results of the examination.
“(5)
In any proceedings under this Act, a certificate by a medical practitioner
under sub-section (4) is
“(6) For the purposes of sub-section (5), a document purporting to be a certificate under sub-section (4) and to be signed by a medical practitioner shall, unless the contrary is proved, be deemed to be such a certificate and to have been duly given.
“(7) Where a medical practitioner furnishes to an officer of Customs or of police a certificate, signed by him, setting out the results of an examination carried out by him of the body cavities of a person, the officer of Customs or of police shall cause a copy of the certificate to be furnished to the person as soon as practicable after the certificate is furnished to him.
“(8) In this section, ‘medical practitioner’ means any person, whether male or female, registered or licensed as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners.”.
“(1) An officer of Customs or police may without warrant arrest any person who he has reasonable grounds to believe is guilty of—
(a) committing, or attempting to commit, or of being concerned in the commission of, any offence against section 231 or 233; or
(b) committing an offence against section 233b.”.
“
“219a. (1) In this Division—
‘Judge’ means—
(a) a Judge of the Federal Court of Australia or of the Supreme Court of the Australian Capital Territory;
(b) a Judge of the Supreme Court of a State in respect of whom an appropriate arrangement in force under section 11 is applicable; or
(c) a Judge of the Supreme Court of the Northern Territory who is not a Judge referred to in paragraph (a) and in respect of whom an appropriate arrangement in force under section 11 is applicable;
‘listening device’ means any instrument, device or equipment capable of being used, whether alone or in conjunction with any other instrument, device or equipment, to record or listen to spoken words;
‘narcotics offence’ means an offence punishable as provided by section 235.
“(2) In this Division, unless the contrary intention appears—
(a) a reference to narcotics inquiries that are being made by officers of Customs shall be read as a reference to—
(i) inquiries that are being made by officers of Customs in relation to a narcotics offence that has been committed or is reasonably suspected of having been committed; or
(ii) if there are circumstances reasonably giving rise to the suspicion that a narcotics offence is likely to be committed—inquiries that are being made by officers of Customs in relation to the likely commission of that offence; and
(b) a reference to narcotics inquiries that have been made by officers of Customs shall be read as a reference to—
(i) inquiries that have been made by officers of Customs in relation to a narcotics offence that has been committed or was reasonably suspected of having been committed; or
(ii) if there have been circumstances that reasonably gave rise to the suspicion that a narcotics offence was likely to be committed—inquiries that have been made by officers of Customs in relation to the likely commission of that offence.
“219b. (1) It is unlawful for an officer of Customs to use, for the purposes of narcotics inquiries that are being made by officers of Customs, a listening device for the purpose of listening to or recording words while they are being spoken by a person unless—
(a) he is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard;
(b) not being a person permitted to listen to or record the words under paragraph (a), he does so with the consent, express or implied, of such a person; or
(c) he does so in accordance with a warrant issued under this Division.
“(2) It is unlawful for a person acting by arrangement with an officer of Customs to use, for the purpose of inquiries that are being made by officers of Customs, a listening device for the purpose of listening to or recording words while they are being spoken by a person unless he is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard.
“(3) It is the duty of the Comptroller to take reasonable steps to ensure that sub-sections (1) and (2) are not contravened.
“(4) Notwithstanding any law of a State or Territory—
(a) an officer of Customs does not act unlawfully by reason only of using a listening device as referred to in sub-section (1) in circumstances to which paragraph (a), (b) or (c) of that sub-section is applicable; and
(b) a person acting by arrangement with an officer of Customs does not act unlawfully by reason only of using a listening device as referred to in sub-section (2) in circumstances in which the use of that device is not declared to be unlawful by that sub-section.
“(5) Where, upon application being made to a Judge by an officer of Customs for the issue of a warrant under this section authorizing the use of a listening device in relation to a particular person, the Judge is satisfied, by information on oath, that—
(a) the person has committed, or is suspected on reasonable grounds of having committed, or of being likely to commit, a narcotics offence; and
(b) the use by officers of Customs of a listening device to listen to or record words spoken by or to that person will, or is likely to, assist officers of Customs in or in connection with—
(i) inquiries that are being made in relation to a narcotics offence that the person has committed or is reasonably suspected of having committed; or
(ii) if there are circumstances reasonably giving rise to the suspicion that the person is likely to commit a narcotics offence—inquiries that are being made in relation to the likely commission, by that person, of that offence,
the Judge may, by warrant under his hand in accordance with the prescribed form, authorize officers of Customs, subject to any conditions or restrictions that he sees fit to specify in the warrant, to use a listening device for the purpose of listening to or recording words spoken by, to or in the presence of that person, and such a warrant may authorize officers of Customs to enter any premises in which the person is, or is likely to be, for the purpose of installing, maintaining, using or recovering a listening device or a part of a listening device.
“(6) A Judge may grant a warrant under sub-section (5) authorizing the use of a listening device for the purpose of listening to or recording words spoken by, to or in the presence of a person anywhere in Australia.
“(7) Where, upon application being made to a Judge by an officer of Customs for the issue of a warrant under this section authorizing the use of a listening device in relation to particular premises, the Judge is satisfied, by information on oath, that—
(a) there are reasonable grounds for suspecting that the premises have been, or are likely to be, used in connection with the commission of a narcotics offence; and
(b) the use by officers of Customs of a listening device to listen to or record words spoken by or to persons in those premises will, or is likely to, assist officers of Customs in, or in connection with, inquiries that are being made in relation to the use, or likely use, of the premises in connection with the commission of a narcotics offence,
the Judge may, by warrant under his hand in accordance with the prescribed form, authorize officers of Customs, subject to any conditions or restrictions that he sees fit to specify in the warrant, to use a listening device for the purpose of listening to or recording words spoken by or to any person while the person is in those premises, and such a warrant may authorize officers of Customs to enter those premises for the purpose of installing, maintaining, using or recovering a listening device or a part of a listening device.
“(8) A Judge may grant a warrant under sub-section (7) authorizing the use of a listening device in respect of premises situated anywhere in Australia.
“(9) Where a warrant under this section authorizes entry on premises, the warrant shall state whether entry is authorized to be made at any time of the day or night or only during specified hours and may, if the Judge issuing the warrant thinks fit, provide that entry may be made without permission first being sought or demand first being made, and authorize measures that he is satisfied are necessary for that purpose.
“(10) A warrant under this section shall specify the period for which it is to remain in force, being a period not exceeding 6 months.
“(11) Sub-section (10) shall not be construed as preventing the issue of any further warrant.
“(12)
Nothing in this section, or in a warrant under this section, applies to or in
relation to the use of a listening device for a purpose that would, for the
purposes of the
“219c. Information furnished to a Judge for the purposes of sub-section (5) or (7) of section 219b—
(a) may be given orally or otherwise; and
(b) shall include the facts and other grounds on which the applicant considers it necessary that the warrant should be issued.
“219d. (1) The authority conferred by a warrant issued under section 219b on officers of Customs shall be exercised only by the Comptroller and officers of Customs approved, for the purposes of that warrant or of warrants issued under that section, by him or by an authorized officer of Customs.
“(2) In sub-section (1), ‘authorized officer of Customs’ means an officer of Customs appointed by the Comptroller, by writing, to be an authorized officer of Customs for the purposes of this section.
“219e. Where, before a warrant under this Division ceases to be in force, the Comptroller is satisfied that the grounds on which the warrant was issued have ceased to exist, he shall—
(a) forthwith take such steps as are necessary to ensure that action in pursuance of the warrant (other than the recovery of a listening device or a part of a listening device) is discontinued; and
(b) by instrument under his hand, revoke the warrant.
“219f. (1) A person shall not divulge or communicate to another person, or make use of or record, any information obtained by using a listening device for the purposes of narcotics inquiries that are being, or have been, made by officers of Customs, being information that has come to his knowledge or into his possession by reason of his being, or having been, an officer of Customs or by reason of his having entered into an arrangement with an officer of Customs to use a listening device for the purpose of those inquiries, except for the purposes of those inquiries.
Penalty: $1,000 or imprisonment for 2 years.
“(2) Notwithstanding sub-section (1), the Comptroller may, in accordance with the following paragraphs, by himself or by an officer of Customs authorized by him, communicate information obtained by using a listening device for the purpose of narcotics inquiries that are being, or have been, made by officers of Customs—
(a) where the information relates, or appears to relate, to the commission or intended commission of an offence against the law of the Commonwealth or of a State or Territory, being an offence punishable by imprisonment for life or for a period, or maximum period, of not less than 3 years—the information may be communicated to an officer of the Commonwealth Police Force or of the Police Force of a State or Territory;
(b) where the information relates, or appears to relate, to matters relevant to security—the information may be communicated to the person holding the office of Director-General of Security under the
Australian Security Intelligence Organization Act 1956.
“(3) Without limiting the purposes for which a person may, in accordance with sub-section (1), divulge information, a person may divulge or communicate information obtained by using a listening device for the purpose of narcotics inquiries that are being, or have been, made by officers of Customs in evidence in a proceeding—
(a) by way of a prosecution for a narcotics offence or for any other offence against the law of the Commonwealth or of a State or Territory punishable by imprisonment for life or for a period or maximum period of not less than 3 years;
(b) by way of an application for an order under sub-section 243b (1); or
(c) for the condemnation or recovery of a ship or aircraft, or of goods, seized under section 203 in connection with the commission of a narcotics offence.
“(4) Where a person is prosecuted before a Court for an offence of a kind referred to in paragraph (a) of sub-section (3), the Court may, in its discretion, refuse to permit information referred to in that sub-section to be given in evidence in the proceedings if it is satisfied that it would be unfair to the accused to admit the information in evidence.
“219g. Where, by virtue of a warrant under this Division, any record or copy has been made and the Comptroller is satisfied—
(a) that the record or copy will not assist, and is not likely to assist, officers of Customs in, or in connection with narcotics inquiries that are being, or have been, made by them; and
(b) that the record or copy is not required, and is not likely to be required—
(i) in, or in connection with, proceedings with respect to any narcotics offence or of a kind referred to in paragraph (b) or (c) of sub-section (3) of section 219f; or
(ii) in, or in connection with, the exercise by officers of Customs of the powers conferred on the Comptroller by sub-section (2) of section 219f,
the Comptroller shall cause the record or copy to be destroyed.
“219h. The Comptroller shall cause to be retained in the records of his Department all warrants issued under section 219b, all documents furnished to a Judge in connection with the issue of those warrants, and all instruments issued under section 219e revoking warrants so issued.
“219j. A person shall not, without reasonable excuse, obstruct or hinder a person acting in pursuance of a warrant under this Division.
Penalty: $1,000.
“219k. (1) The Comptroller shall furnish to the Minister a copy of each warrant issued under section 219b, a copy of all documents furnished to a Judge in connection with the issue of the warrant and each instrument issued under section 219e revoking the warrant as soon as practicable after the issue or revocation of a warrant.
“(2) The Comptroller shall furnish to the Minister, in respect of each warrant issued under section 219b, a report in writing on the extent to which action taken under the warrant has assisted officers of Customs in narcotics inquiries that have been made by them.”.
“(iii) his exporting, or his agreeing to export, narcotic goods from Australia in contravention of this Act;
(iv) his keeping or having kept, or his agreeing to keep, in his possession narcotic goods imported into Australia in contravention of this Act;
(v) his conspiring with another person or other persons to import any narcotic goods into Australia in contravention of this Act or to export any narcotic goods from Australia in contravention of this Act; or
(vi) his aiding, abetting, counselling or procuring, or being in any way knowingly concerned in, the sale of, or other dealing in, narcotic goods imported into Australia in contravention of this Act, the importation of narcotic goods into Australia in contravention of this Act, the exportation of narcotic goods from Australia in contravention of this Act or the keeping in the possession of any person of narcotic goods imported into Australia in contravention of this Act;”.
(a) by inserting in paragraph (c) of sub-section (1) “, or attempts to obtain possession of,” after “in his possession”;
(b) by inserting in paragraph (ca) of sub-section (1) “, or attempts to obtain possession of,” after “in his possession”;
(c) by inserting in sub-section (1), after paragraph (ca), the following paragraph:
“(cb) conspires with another person or other persons to import into Australia any prohibited imports to which this section applies or to export from Australia any prohibited exports to which this section applies; or”; and
(d) by inserting in sub-section (1a) “or of which he attempted to obtain possession” after “in his possession” (wherever occurring).
(a) by omitting paragraphs (c) and (d) of sub-section (2) and substituting the following paragraphs:
“(c) where the Court is satisfied—
(i) that the narcotic goods in relation to which the offence was committed consist of a quantity of a prescribed narcotic substance that is not less than the commercial quantity applicable to that substance; or
(ii) that the narcotic goods in relation to which the offence was committed consist of a quantity of a narcotic substance that is not less than the traffickable quantity applicable to that substance and also that, on a previous occasion, a court has—
(A) convicted the person of another offence, being an offence against a provision referred to in paragraph (a) that involved other narcotic goods which consisted of a quantity of a narcotic substance not less than the traffickable quantity that was applicable to that substance when the offence was committed; or
(B) found, without recording a conviction, that the person had committed another such offence—
imprisonment for life or for such period as the Court thinks appropriate;
“(d) where the Court is satisfied that the narcotic goods in relation to which the offence was committed consist of a quantity of a narcotic substance that is not less than the traffickable quantity applicable to the substance but is not satisfied as provided in paragraph (c)—
(i) if the narcotic substance is a narcotic substance other than cannabis—a fine not exceeding $100,000 or imprisonment for a period not exceeding 25 years, or both; or
(ii) if the narcotic substance is cannabis—a fine not exceeding $4,000 or imprisonment for a period not exceeding 10 years, or both; or
“(e) in any other case—a fine not exceeding $2,000 or imprisonment for a period not exceeding 2 years, or both.”;
(b) by omitting sub-section (3) and substituting the following sub-section:
“(3) Where—
(a) the Court is satisfied that the narcotic goods in relation to which an offence referred to in sub-section (2) was committed consist of a quantity of a narcotic substance that is not less than the traffickable quantity applicable to that substance, but is not satisfied as provided in paragraph (c) of that sub-section in relation to those narcotic goods; and
(b) the Court is also satisfied that the offence was not committed by the person charged for any purposes related to the sale of, or other commercial dealing in, those narcotic goods,
notwithstanding paragraph (d) of that sub-section, the penalty punishable for the offence is the penalty specified in paragraph (e) of that sub-section.”; and
(c) by inserting after sub-section (7) the following sub-section:
“(8) For the purposes of sub-sections (2) and (3), the narcotic substance of which narcotic goods in relation to which an offence has been committed consist is the narcotic substance that is specified in the relevant information, complaint, declaration, claim or indictment as the narcotic substance of which those goods consist.”.
13. After Division 2 of Part XIII of the Principal Act the following Division is inserted in that Part:
“
“243a. (1) In this Division, unless the contrary intention appears—
‘cheque’ includes a bill, promissory note or other security for money;
‘Court’ means the Federal Court of Australia;
‘moneys’ means moneys in the form of cash;
‘official receiver’ means a person holding, or acting in, an office of official receiver for a Bankruptcy District under the
Bankruptcy Act 1966;‘pecuniary penalty’ means a pecuniary penalty referred to in section 243b;
‘petition’ means a petition under the
Bankruptcy Act 1966;‘property’ means real or personal property of every description, whether situated in Australia or elsewhere, and includes any estate, interest or profit, whether present or future, vested or contingent, arising out of or incident to any such real or personal property;
‘The Official Receiver in Bankruptcy’ means the corporation established under the
Bankruptcy Act 1966 by the name of ‘The Official Receiver in Bankruptcy.’.
“(2) Where a person who has obtained possession or control of a cheque, or was paid moneys by a cheque, in any of the circumstances set out in sub-section (3), receives, in respect of the cheque, moneys in the form of cash, the moneys so received shall, for the purposes of this Division, be deemed to be moneys that came into his possession or under his control, or were paid to him, in the circumstances in which he obtained possession or control of the cheque, or was paid the moneys by the cheque.
“(3) For the purposes of this Division, a person shall be taken to engage in a prescribed narcotics dealing if—
(a) he sells or otherwise deals in, or agrees to sell or otherwise deal in, narcotic goods imported into Australia in contravention of this Act;
(b) he imports, or agrees to import, narcotic goods into Australia in contravention of this Act;
(c) he exports, or agrees to export, narcotic goods from Australia in contravention of this Act;
(d) he keeps, or agrees to keep, in his possession narcotic goods imported into Australia in contravention of this Act;
(e) he conspires with another person or other persons to import any narcotic goods into Australia, or to export any narcotic goods from Australia, in contravention of this Act; or
(f) he aids, abets, counsels or procures, or is in any way knowingly concerned in, the sale of, or other dealing in, narcotic goods imported into Australia in contravention of this Act, the importation of narcotic goods into Australia, or the exportation of narcotic goods from Australia, in contravention of this Act, or the keeping in the possession of any person of narcotic goods imported into Australia in contravention of this Act.
“(4) A reference in this Division to the property of a person shall be read as a reference to the property in respect of which the person has a beneficial interest.
“(5) Where, upon application being made to the Court under sub-section 243e(1) and supported by an affidavit made by an officer of Customs stating that he believes that any property is the property of a person, the Court makes an order under that section directing the official receiver to take control of that property, for the purposes of this Division, the property shall, while that order applies to the property, be deemed to be the property of that person.
“(6) A reference in this Division to a proceeding for the recovery of a pecuniary penalty shall be read as a reference to a proceeding instituted under section 243b for an order under sub-section (1) of that section.
“(7) Where, by reason of a person’s having been engaged in a particular prescribed narcotics dealing, or in prescribed narcotics dealings during a particular period, benefits have been derived by another person at the request, or by the direction, of the first-mentioned person, those benefits shall, for the purposes of this Division, be deemed to have been derived by that first-mentioned person by reason of his having been engaged in that prescribed narcotics dealing, or in prescribed narcotics dealings during that period, as the case may be.
“243b. (1) Subject to sub-section (7), the Minister or the Comptroller may institute a proceeding in the Court, on behalf of the Commonwealth, for an order that a person pay a pecuniary penalty to the Commonwealth in respect of—
(a) a particular prescribed narcotics dealing engaged in by him; or
(b) prescribed narcotics dealings engaged in by him during a particular period.
“(2) If, in a proceeding instituted under sub-section (1), the Court is satisfied that the person in relation to whom the order is sought—
(a) has engaged in a particular prescribed narcotics dealing; or
(b) has, during a particular period, engaged in prescribed narcotics dealings,
the Court shall assess, in accordance with section 243c, the value of the benefits derived by the person by reason of his having engaged in that dealing, or in prescribed narcotics dealings during that period, as the case may be, and order the person to pay to the Commonwealth a pecuniary penalty equal to the value as so assessed.
“(3) The Court may order a person to pay a pecuniary penalty under sub-section (2) in relation to a particular prescribed narcotics dealing, or prescribed narcotics dealings during a particular period, whether or not the person has been convicted of an offence, or proceedings have been instituted in respect of any offence, committed in relation to that dealing or any of those dealings and whether or not any moneys or other goods have been seized under section 229a in relation to that dealing or any of those dealings.
“(4) An amount payable by a person to the Commonwealth in accordance with an order made under sub-section (2) shall, for all purposes, be deemed to be a civil debt due by the person to the Commonwealth.
“(5) An order made by the Court under sub-section (2) may be enforced as if it were an order made by the Court in civil proceedings instituted by the Commonwealth against the person to recover a debt due by the person to the Commonwealth.
“(6) This section applies to and in relation to moneys that come, or other property that comes, into the possession or under the control of a person either within or outside Australia, and to benefits that are provided for a person either within or outside Australia.
“(7) A proceeding under sub-section (1) may be commenced—
(a) if the proceeding relates to a particular prescribed narcotics dealing engaged in by a person after the commencement of this section—within 6 years after that dealing took place; or
(b) if the proceeding relates to prescribed narcotics dealings during a particular period, being a period that commenced after the commencement of this section—within 6 years after the end of that period.
“243c. (1) In this section, a reference to the defendant in relation to a proceeding under section 243b shall be read as a reference to a person against whom an order is sought in that proceeding.
“(2) In a proceeding under section 243b, the value of the benefits derived by the defendant by reason of his having engaged in a particular prescribed narcotics dealing, or in prescribed narcotics dealings during a particular period shall be assessed by the Court having regard to the evidence before the Court concerning all or any of the following matters:
(a) the moneys, or the value of the property other than moneys, that came into the possession or under the control of—
(i) the defendant; or
(ii) another person at the request or by the direction of the defendant,
by reason of the defendant’s having engaged in that dealing or in prescribed narcotics dealings during that period;
(b) the value of any benefit, other than a benefit of the kind referred to in paragraph (a) that was provided for—
(i) the defendant; or
(ii) another person at the request or by the direction of the defendant,
by reason of the defendant’s having engaged in that dealing or in prescribed narcotics dealings during that period;
(c) in the case of a prescribed narcotics dealing that consisted of selling or otherwise dealing in narcotic goods—the market value, at the time of the dealing, of similar or substantially similar narcotic goods;
(d) in the case of a prescribed narcotics dealing that consisted of the doing of any act or thing other than selling or otherwise dealing in narcotic goods—the amount that was, or the range of amounts that were, at the time the dealing occurred, ordinarily paid for the doing of a similar or substantially similar act or thing; and
(e) the value of the defendant’s property before and after he engaged in that dealing, or before and after the end of that period, as the case may be.
“(3) Where evidence is given in a proceeding under section 243b that the value of the defendant’s property after he engaged in a particular prescribed narcotics dealing, or after the end of a particular period during which he engaged in prescribed narcotics dealings, exceeded the value of the defendant’s property before he engaged in that dealing, or before the commencement of that period, then, for the purposes of sub-section (2) of that section, the Court shall, subject to sub-section (4), treat the value of benefits derived by the defendant by reason of his having engaged in that dealing or in prescribed narcotics dealings during that period as being not less than the amount of the excess.
“(4) Where, after evidence has been given in a proceeding under section 243b that the value of the defendant’s property after he engaged in a particular prescribed narcotics dealing, or after the end of a particular period, exceeded the value of the defendant’s property before he engaged in that dealing, or before the commencement of that period, the defendant satisfies the Court that the whole or a part of the excess was due to certain causes, being causes unrelated to his having engaged in that prescribed narcotics dealing, or in prescribed narcotics dealings during that period, as the case may be—
(a) if the defendant so satisfies the Court in respect of the whole of the excess—sub-section (3) does not apply to the excess; or
(b) if the defendant so satisfies the Court in respect of a part of the excess—sub-section (3) applies to and in relation to the excess as if it were reduced by the amount of that part.
“(5) In a proceeding under section 243b, an officer of Customs who is experienced in the investigation of narcotics offences may testify—
(a) with respect to the amount that, to the best of his information, knowledge and belief, was the market value of narcotic goods at a particular time or during a particular period; or
(b) with respect to the amount, or the range of amounts, that, to the best of his information, knowledge and belief, was the amount, or range of amounts, ordinarily paid at a particular time or during a particular period for the doing of an act or thing (not being the selling or other dealing in narcotic goods) comprising a prescribed narcotics dealing,
notwithstanding
any rule of law or practice relating to hearsay evidence, and his testimony is
“(6) In calculating, for the purposes of a proceeding under section 243b, the value of benefits derived by the defendant by reason of his having engaged in a particular prescribed narcotics dealing, or in prescribed narcotics dealings during a particular period, any expenses or outgoings of the defendant in connection with that dealing, or those dealings, shall be disregarded.
“243d. Where, in a proceeding under section 243b against a person, the Court is satisfied that the narcotic goods in relation to which the person is alleged to have engaged in a prescribed narcotics dealing or in prescribed narcotics dealings are goods reasonably suspected of having been imported into Australia in contravention of this Act, the Court shall, for the purposes of the proceeding, treat the narcotic goods as narcotic goods which have been imported into Australia in contravention of this Act unless it is established to the satisfaction of the Court that the narcotic goods were not imported into Australia or were not imported into Australia in contravention of this Act.
“243e. (1) Where the Minister or the
Comptroller has instituted a proceeding under section 243b for an order that a person (in this
section referred to as the ‘defendant’) pay a pecuniary penalty in relation to
a particular prescribed narcotics dealing, or in relation to prescribed
narcotics dealings during a particular period, the Minister or the Comptroller
may make application to the Court,
“(2) Where—
(a) an application under sub-section (1) is supported by—
(i) an affidavit of an officer of Customs stating that he believes that—
(a) the defendant has engaged in the prescribed narcotics dealing to which the proceeding under section 243b relates, or in prescribed narcotics dealings during the period to which that proceeding relates; and
(b) benefits were derived by the defendant by reason of the defendant’s having engaged in that prescribed narcotics dealing, or in prescribed narcotics dealings during that period, as the case may be,
and setting out the grounds on which he holds those beliefs; and
(ii) if the application seeks an order directing an official receiver to take control of specified property—an affidavit of an officer of Customs stating that he believes that the property is the property of the defendant and setting out the grounds on which he holds that belief; and
(b) the Court considers that, having regard to the matters contained in that affidavit or those affidavits, there are reasonable grounds for holding those beliefs,
the Court—
(c) shall make an order directing an official receiver to take control—
(i) if the application seeks an order with respect to specified property—of all of that property or such part of that property as the Court thinks fit; or
(ii) in any other case—of all the property of the defendant; and
(d) may, subject to sub-section (3), include in the order such provision (if any) in relation to the operation of the order as the Court thinks fit.
“(3) Paragraph (d) of sub-section (2) does not authorize the Court to include in an order directing an official receiver to take control of property a provision postponing the operation of the order.
“(4) Without limiting the power of the Court under paragraph (d) of sub-section (2), an order directing an official receiver to take control of property—
(a) may set out conditions subject to which the order is to apply to all of that property, or to a specified part of that property;
(b) may make provision for a review of the operation of the order by the Court; and
(c) may make provision for meeting the reasonable living and business expenses of the defendant out of that property, or out of a specified part of that property.
“(5) The Court may refuse to make an order under sub-section (2) directing an official receiver to take control of property if the Commonwealth refuses or fails to give to the Court such undertakings as the Court deems appropriate with respect to the payment of damages or costs, or both, in relation to the making and operation of the order.
“(6) For the purposes of an application under sub-section (1), the Minister or the Comptroller may, on behalf of the Commonwealth, give to the Court such undertakings with respect to the payment of damages or costs, or both, as are required by the Court.
“243f. (1) Where the Court makes, or has made, an order (in this section referred to as the ‘original order’) under sub-section (1) of section 243e directing an official receiver to take control of specified property, or all of the property, of a person (in this section referred to as the ‘defendant’), the Court may, at the time it makes the original order or at any subsequent time, make such orders in relation to that property as the Court considers just and, without limiting the power so conferred on the Court, the Court may, at any time or from time to time, make an order—
(a) varying the original order in respect of the property to which it relates or any provision included in the original order by virtue of paragraph (d) of sub-section (2) of section 243e;
(b) regulating the manner in which the official receiver may exercise his powers or perform his duties under the original order;
(c) determining any question relating to the property to which the original order relates, including any question relating to the liabilities of the defendant, and the exercise of the powers, or the performance of the duties, of the official receiver, with respect to the property to which the original order relates;
(d) directing the defendant to furnish to the official receiver, within a time specified in the order, a statement, verified by the oath or affirmation of the defendant, setting out such particulars of the property of the defendant as the Court deems proper;
(e) for the examination of the defendant or another person before the Court or the Registrar of the Court concerning the nature and location of the property of the defendant; or
(f) with respect to the carrying out of any undertaking with respect to the payment of damages or costs given by the Commonwealth in connection with the making of the original order.
“(2) An application for an order under sub-section (1) may be made—
(a) by the official receiver;
(b) by the Minister or the Comptroller;
(c) by the defendant; or
(d) with the leave of the Court, by any other person.
“(3) Where the defendant or another person is examined before the Court or the Registrar of the Court in pursuance of an order under sub-section (1), a statement or disclosure made by him in answer to a question put to him in the course of the examination is not admissible against him in any civil or criminal proceedings except—
(a) in a proceeding for giving false testimony in the course of the examination; or
(b) in a proceeding for the recovery of a pecuniary penalty for the purpose only of facilitating the assessment of the amount of the pecuniary penalty.
“(4) In this section, unless the contrary intention appears—
(a) references to the original order shall be read as including references to the original order as varied under this section; and
(b) references to the Registrar of the Court shall be read as including references to a Deputy Registrar of the Court, a District Registrar of the Court and a Deputy District Registrar of the Court.
“243g. (1) Where an order (in this section referred to as the ‘first order’) is in force under section 243e directing an official receiver to take control of specified property, or of all of the property, of a person who has been ordered to pay a pecuniary penalty to the Commonwealth, the Court may, on application made by the Minister or Comptroller, make an order (in this section referred to as the ‘second order’) directing the official receiver to pay to the Commonwealth, out of the property of the person that has come into his possession or under his control by virtue of the first order, an amount equal to the amount of the liability of the person in respect of that pecuniary penalty.
“(2) For the purpose of enabling the official receiver to comply with the direction contained in the second order, the Court may, by the second order or by a subsequent order, direct the official receiver to sell or dispose of such of the property that is subject to the charge that was created by sub-section 243j(1) upon the making of the first order as is specified in the second order or in the subsequent order, as the case may be.
“(3) As soon as practicable after the making of the second order, the official receiver—
(a) shall apply the moneys which have come into his possession or under his control by reason of the sale or disposition of any of the property specified in the second order, or the subsequent order, or otherwise in the course of performing his duties in respect of the property to which the first order relates, in payment of the fees payable in connection with, and the expenses incurred by him in or in connection with, his performance of the duties imposed on him under the first order, including the expenses incurred by him in or in connection with the sale or disposition of any of the property to which the first order relates; and
(b) shall, subject to sub-section (4), pay the remainder of the moneys referred to in paragraph (a), after the payments referred to in that paragraph have been made, to the Commonwealth.
“(4) Where the moneys to which paragraph (3)(b) applies exceed the liability of the person in respect of the pecuniary penalty payable by him to the Commonwealth, the official receiver shall—
(a) pay to the Commonwealth, out of those moneys, an amount equal to the amount of that liability; and
(b) pay the balance of those moneys to the person.
“(5) Where the official receiver pays, in accordance with the second order, moneys to the Commonwealth in respect of the liability of a person to pay a pecuniary penalty to the Commonwealth, the liability of the person in respect of the pecuniary penalty shall, to the extent of the payment, be deemed to be discharged.
“(6) For the purposes of facilitating the sale or disposal of any property in accordance with an order under this section, the Court may make an order vesting the property in The Official Receiver in Bankruptcy.
“(7) Where the Court makes an order vesting any property of a particular kind in the corporation referred to in sub-section (6), and the property is subject to the provisions of any law of the Commonwealth or of a State or Territory providing for the registration of title to property of that kind, the vesting of the legal estate in that property in that corporation shall be subject to compliance with the provisions of that law.
“(8) Where the Court vests property in The Official Receiver in Bankruptcy, the provisions of sub-sections (2) to (5) (inclusive) apply to and in relation to that property as if references in those provisions to the official receiver included references to The Official Receiver in Bankruptcy.
“243h. (1) Where, after an order under section 243e has been made in relation to a proceeding for the recovery of a pecuniary penalty—
(a) no pecuniary penalty is imposed upon the determination of that proceeding;
(b) the pecuniary penalty imposed upon the determination of that proceeding is paid; or
(c) the Court is satisfied that it is, in all the circumstances, proper to do so,
the Court may, upon application being made to it by a person authorized to make an application under section 243f, revoke that order.
“(2) The revocation of an order under section 243e that was made in relation to a proceeding for the recovery of a pecuniary penalty does not prevent the Court from making a further order under section 243e in relation to that proceeding.
“(3) Without limiting the powers of the Court to make an order under sub-section (1), the Court may revoke an order under section 243e upon the applicant—
(a) giving security satisfactory to the Court for the payment of any pecuniary penalty that may be imposed on him in the relevant proceeding; or
(b) giving undertakings satisfactory to the Court concerning the property of the applicant.
“(4) Where the Court revokes or has revoked, an order under section 243e, the Court may make such order or orders as it deems proper for or in relation to the discharge of the official receiver concerned from all liability in respect of the exercise by him of the powers conferred on him, and the performance by him of the duties imposed on him, under this Division in respect of the property of the person to whom the order under section 243e related.
“243j. (1) Where the Court makes, in relation to a proceeding (in this section referred to as the ‘relevant proceeding’) for the recovery of a pecuniary penalty from a person, an order under section 243e directing an official receiver to take control of specified property, or of all of the property, of the person, upon the making of the order, there is created, by force of this section, a charge, on all the property to which the order relates, to secure the payment to the Commonwealth of any pecuniary penalty that the person may be ordered to pay in the relevant proceeding.
“(2) Where a charge is created by sub-section (1) on any property of a person upon the making of an order under section 243e, the charge ceases to have effect in respect of the property—
(a) upon the order ceasing to apply to the property by reason of the variation or revocation of the order;
(b) upon the determination of the relevant proceeding by way of the refusal of the Court to make an order for the payment of a pecuniary penalty by the person;
(c) upon payment by the person of any pecuniary penalty that he has been ordered to pay in the relevant proceeding;
(d) upon the person becoming a bankrupt;
(e) upon the sale or other disposition of the property—
(i) in pursuance of an order made by the Court under section 243g; or
(ii) by the owner of the property with the consent of the Court or of the official receiver; or
(f) upon the sale of the property to a
bona fide purchaser for value who, at the time of purchase, has no notice of the charge,
whichever first occurs.
“(3) The charge created on property by sub-section (1) by reason of the making of an order directing an official receiver to take control of the property—
(a) is subject to every charge or encumbrance to which the property was subject immediately before the order was made;
(b) has priority over all other encumbrances whatsoever; and
(c) subject to sub-section (2), is not affected by any change of ownership of the property.
“(4) Where a charge is created by sub-section (1) on property of a particular kind and the provisions of any law of the Commonwealth or of a State or Territory provide for the registration of title to, or charges over, property of that kind, the official receiver may cause the charge so created to be registered under the provisions of that law and, if he does so, a person who purchases or otherwise acquires the property after the registration of the charge shall, for the purposes of sub-section (2), be deemed to have notice of the charge.
“243k. A person shall not, without the consent of the Court or of the official receiver, sell, or otherwise dispose of, or purport to sell or otherwise dispose of, any property that is, to his knowledge, subject to a charge under section 243j.
Penalty: $2,000 or imprisonment for 2 years, or both.
“243l. (1) Where—
(a) the Court has made an order under section 243g directing the official receiver to pay an amount to the Commonwealth in relation to the liability of a person to pay a pecuniary penalty—
(i) within 6 months before the presentation of a petition against the person; or
(ii) after the presentation of a petition against the person; and
(b) the person subsequently becomes a bankrupt on, or by virtue of the presentation of, the petition,
the Commonwealth shall pay to the trustee in the bankruptcy an amount equal to the amount (if any) paid to the Commonwealth in accordance with the order, less the taxed costs of the Minister or Comptroller in respect of the making of the order under section 243g.
“(2) Where the Commonwealth has paid to the trustee in bankruptcy an amount in accordance with sub-section (1), the Commonwealth may prove in the bankruptcy for its debt as an unsecured creditor as if the order under section 243g had not been made.
“(3)
Notwithstanding anything contained in the
“243m. (1) Subject to this section, where notice in writing of the presentation of a creditor’s petition against a person (in this sub-section referred to as the ‘debtor’) is given to an official receiver who has been directed by an order under sub-section (1) of section 243g to pay an amount to the Commonwealth in relation to the liability of the debtor to pay a pecuniary penalty, the official receiver (including The Official Receiver in Bankruptcy)—
(a) shall refrain from taking any action to sell property of the debtor in pursuance of any such direction contained in the order; and
(b) shall not pay to the Commonwealth any moneys in pursuance of the direction contained in the order,
unless and until the petition is withdrawn or dismissed or has lapsed.
“(2) Where a person who is liable to pay a pecuniary penalty becomes a bankrupt (whether on a creditor’s petition or otherwise)—
(a) any property of the person in the possession, or under the control, of the official receiver in accordance with an order made under this Division shall be deemed to be in the possession, or under the control, of the official receiver as trustee in the bankruptcy, and not otherwise; and
(b) any property of the person that is, by virtue of a vesting order made under section 243g vested in The Official Receiver in Bankruptcy shall be deemed to be so vested as part of the estate of the bankrupt.
“243n. (1) Where—
(a) the Court has made an order under section 243e directing an official receiver to take control of all the property of a person;
(b) the official receiver has taken control of any property in the possession, or on the premises, of the person without notice of any claim by another person in respect of that property; and
(c) the person did not, at the date of the order, have any beneficial interest in the property referred to in paragraph (b),
the official receiver is not personally liable for any loss or damage arising from his having taken control of the property sustained by a person claiming the property or an interest in the property, or for the cost of proceedings taken to establish a claim to the property or to an interest in the property, unless the court in which the claim is made is of the opinion that the official receiver has been guilty of negligence in respect of the taking of control of the property.
“(2) Where the official receiver has, in accordance with an order under section 243e, taken control of property of a person specified in the order, the official receiver is not personally liable for any loss or damage arising from his having taken control of the property (being loss or damage sustained by some other person claiming the property or an interest in the property), or for the cost of proceedings taken to establish a claim to the property, or to an interest in the property, unless the court in which the claim is made is of the opinion that the official receiver has been guilty of negligence in respect of the taking of control of the property.
“(3) An official receiver is not personally liable for any rates, land tax or municipal or other statutory charges imposed by or under a law of the Commonwealth or of a State or Territory upon or in respect of property of which he has been directed by an order under section 243e to take control, being rates, land tax or municipal or other statutory charges that fall due on or after the date of that order, except to the extent, if any, of the rents and profits received by the official receiver in respect of that property on or after the date of that order.
“(4) Where an official receiver who has been directed by an order under section 243e to take control of a business carried on by a person carries on that business, he is not personally liable for any payment in respect of long service leave for which the person was liable or for any payment in respect of long service leave to which a person employed by the official receiver in his capacity of manager of the business, or the legal personal representative of such a person, becomes entitled after the date of that order.
“(5) In this section, ‘interest ’, in relation to property, means—
(a) a legal or equitable estate or interest in the property; or
(b) a right, power or privilege over, or in connection with, the property.
“243p. Where the official receiver takes
control of property by virtue of an order of the Court under section 243e, the official receiver is entitled to
receive fees, in respect of the exercise of his powers and the performance of
his duties in relation to the property, equal to the fees that he would be
entitled to receive if he were exercising the powers or performing the duties
in consequence of his having taken control of the property by virtue of a
direction given under section 50 of the
“243q. Where the Court makes an order under section 243e or 243f in relation to property, the official receiver shall give or publish such notices (if any) of, or in respect of, the order as are required by the regulations or as the Court directs.
“243r. (1) Where, before the Court makes an order directing a person to pay a pecuniary penalty in respect of a particular prescribed narcotics dealing engaged in by him, or of prescribed narcotics dealings engaged in by him during a particular period, any property of the person to which section 229a applied by reason of that prescribed narcotics dealing, or of a prescribed narcotics dealing during that period, had been seized as forfeited goods—
(a) if, before the imposition of the penalty, the property had been condemned or was deemed to have been condemned—the penalty shall be deemed to be reduced by an amount equal to the value of the property at the time when it was seized;
(b) if, after the imposition of the penalty and before the penalty is paid, the property is condemned or is deemed to be condemned or the person consents to the forfeiture of the property—the liability of the person in respect of the penalty shall be deemed to be reduced by an amount equal to the value of the property at the time when it was seized; and
(c) if the penalty is paid before the property is condemned or is to be deemed to be condemned—the Commonwealth is liable to pay to the person an amount equal to the value of the property at the date of its seizure.
“(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 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 is conferred on the Court to hear and determine applications under this Division.”.
“273g. The Minister shall, from time to time, and not less frequently than once each year, arrange for the Leader of the Opposition in the House of Representatives to be briefed on matters relating to contraventions of this Act in respect of narcotic substances.”.
“SCHEDULE VIII Section 4
Column 1 | Column 2 |
Name of substance | Commercial quantity |
kilograms | |
Cannabis................................................................................................................ | 100.0 |
Cannabis Resin..................................................................................................... | 50.0 |
Column 1 | Column 2 |
Name of substance | Commercial quantity |
Cocaine................................................................................................................. | 2.0 |
Heroin................................................................................................................... | 1.5 |
Lysergic Acid....................................................................................................... | 0.002 |
Lysergide.............................................................................................................. | 0.002 |
Morphine............................................................................................................... | 1.5 |
Opium................................................................................................................... | 20.0 |
Tetrahydrocannabinols.......................................................................................... | 5.0”. |
(2)The amendments of the Principal Act effected by section 12 do not apply in
relation to any offence against a provision of the
0
0
0