Explanatory Memorandum
(Circulated by authority of the Minister for Home Affairs, the Honourable Bob Debus MP)SCHEDULE 12 - COMMONWEALTH PROPERTY IN CUSTOMS PLACES
Customs Act 1901
Background
198. Customs utilises a wide range of equipment such as motor vehicles, X-ray machines, CCTV cameras and portable scanning devices to facilitate its role in managing the security and integrity of Australia's borders. Customs has identified several circumstances in which CCTV cameras located at Customs-controlled waterfront and airport areas have been damaged. However, it is foreseeable that people may, for example, physically alter the position of a camera, place objects in front of a camera, or attach some form of material or object over the lens of a camera, without necessarily damaging the equipment.
199. It is also possible to interfere with X-ray machines and other Customs equipment. Such interference to Customs equipment represents a serious risk to the integrity and effectiveness of Customs border control operations. For example, intentional repositioning of a camera at the waterfront could conceal the illicit activities of persons intending to interfere with the contents of a container.
200. Section 29 of the Crimes Act 1914 (the Crimes Act) provides that any person who intentionally destroys or damages any property, whether real or personal, belonging to the Commonwealth or to any public authority under the Commonwealth, shall be guilty of an offence. However, this offence is not applicable to circumstances set out above where the Commonwealth equipment is not damaged. This Schedule inserts a new offence in the Customs Act to cover such circumstances.
Item 1 - After section 33B
201. This item amends the Customs Act by inserting new section 33C.
202. New section 33C provides that a person commits an offence if:
- a)
- the person intentionally obstructs or interferes with the operation of a thing; and
- b)
- the thing belongs to the Commonwealth; and
- c)
- the thing is located in a Customs place.
The offence will be punishable by an penalty of 60 penalty units.
203. The term "Customs place" is defined in subsection 183UA(1) of the Customs Act, and includes all of the places at which Customs, and officers of Customs, carry out their functions, for example all proclaimed ports and airports and all Customs Houses.
204. Similar to subsection 29(2) of the Crimes Act, absolute liability applies to the physical element of circumstance of the offence, that the property is property belonging to the Commonwealth. This is considered appropriate in this circumstance as this is a jurisdictional element rather than an element going to the essence of the offence (see Part 4.5 of the "Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers").
Item 2 - Subparagraph 210(1)(a)(ii)
205. This item amends subparagraph 210(1)(a)(ii) (as inserted by Schedule 10 to this Bill) to insert a reference to new section 33C. This means that an officer of Customs or police may without warrant arrest a person if the officer believes on reasonable grounds the person has committed or is committing the offence in new section 33C.