International Trade Integrity Act 2007 (147 of 2007)
Schedule 1 Enforcing UN sanctions
Customs Act 1901
34 After section 233BAB
Insert:
233BABAA UN-sanctioned goods
(1) The regulations may prescribe specified goods as UN-sanctioned goods.
(2) Regulations made for the purposes of subsection (1) may provide that specified goods are only UN-sanctioned goods if:
(a) they are imported from, or exported to, a specified place; or
(b) the origin, or the final destination, of the goods is a specified place; or
(c) other specified circumstances apply in relation to the goods.
(3) The regulations must not prescribe goods for the purposes of subsection (1) unless:
(a) either:
(i) the importation of the goods is prohibited, either absolutely or on condition, by the Customs (Prohibited Imports) Regulations 1956; or
(ii) the exportation of the goods is prohibited, either absolutely or on condition, by the Customs (Prohibited Exports) Regulations 1958; and
(b) the regulation under which that importation or exportation is prohibited gives effect to a decision that:
(i) the Security Council has made under Chapter VII of the Charter of the United Nations; and
(ii) Article 25 of the Charter requires Australia to carry out;
in so far as that decision requires Australia to apply measures not involving the use of armed force.
Note: Articles 39 and 41 of the Charter provide for the Security Council to decide what measures not involving the use of armed force are to be taken to maintain or restore international peace and security.
(4) For the purposes of paragraph (3)(b), a regulation may be taken to give effect to a decision:
(a) whether or not it is made for the sole purpose of giving effect to the decision; and
(b) whether or not it has any effect in addition to giving effect to the decision.
233BABAB Special offences for importation of UN-sanctioned goods
Offence for individuals
(1) An individual commits an offence if:
(a) the individual intentionally imported goods; and
(b) the goods were UN-sanctioned goods and the individual was reckless as to that fact; and
(c) their importation:
(i) was prohibited under this Act absolutely; or
(ii) was prohibited under this Act unless the approval of a particular person had been obtained and, at the time of the importation, that approval had not been obtained.
(2) Subject to subsection (3), absolute liability applies to paragraph (1)(c).
Note: For absolute liability , see section 6.2 of the Criminal Code.
(3) For the purposes of an offence against subsection (1), strict liability applies to the physical element of circumstance of the offence, that an approval referred to in subparagraph (1)(c)(ii) had not been obtained at the time of the importation.
Note: For strict liability , see section 6.1 of the Criminal Code.
Penalty for individuals
(4) An offence under subsection (1) is punishable on conviction by imprisonment for not more than 10 years or a fine not exceeding the amount worked out under subsection (5), or both.
(5) For the purposes of subsection (4), the amount is:
(a) if the Court can determine the value of the goods to which the offence relates - whichever is the greater of the following:
(i) 3 times the value of the goods; or
(ii) 2,500 penalty units;
(b) if the Court cannot determine the value of those goods - 2,500 penalty units.
Offence for bodies corporate
(6) A body corporate commits an offence if:
(a) the body corporate imported goods; and
(b) the goods were UN-sanctioned goods; and
(c) their importation:
(i) was prohibited under this Act absolutely; or
(ii) was prohibited under this Act unless the approval of a particular person had been obtained and, at the time of the importation, that approval had not been obtained.
(7) Subsection (6) does not apply if the body corporate proves that it took reasonable precautions, and exercised due diligence, to avoid contravening that subsection.
Note: The body corporate bears a legal burden in relation to a matter in subsection (7) (see section 13.4 of the Criminal Code).
(8) Strict liability applies to paragraphs (6)(a) and (b).
Note: For strict liability , see section 6.1 of the Criminal Code.
(9) Subject to subsection (10), absolute liability applies to paragraph (6)(c).
Note: For absolute liability , see section 6.2 of the Criminal Code.
(10) For the purposes of an offence against subsection (6), strict liability applies to the physical element of circumstance of the offence, that an approval referred to in subparagraph (6)(c)(ii) had not been obtained at the time of the importation.
Note: For strict liability , see section 6.1 of the Criminal Code.
Penalty for bodies corporate
(11) An offence under subsection (6) is punishable on conviction by a fine not exceeding:
(a) if the Court can determine the value of the goods to which the offence relates - whichever is the greater of the following:
(i) 3 times the value of the goods;
(ii) 10,000 penalty units; or
(b) if the Court cannot determine the value of those goods - 10,000 penalty units.
Person not liable to other proceedings
(12) A person convicted or acquitted of an offence against subsection (1) or (6) in respect of particular conduct is not liable to proceedings under section 233 in respect of that conduct.
233BABAC Special offences for exportation of UN-sanctioned goods
Offence for individuals
(1) An individual commits an offence if:
(a) the individual intentionally exported goods; and
(b) the goods were UN-sanctioned goods and the individual was reckless as to that fact; and
(c) their exportation:
(i) was prohibited under this Act absolutely; or
(ii) was prohibited under this Act unless the approval of a particular person had been obtained and, at the time of the exportation, that approval had not been obtained.
(2) Subject to subsection (3), absolute liability applies to paragraph (1)(c).
Note: For absolute liability , see section 6.2 of the Criminal Code.
(3) For the purposes of an offence against subsection (1), strict liability applies to the physical element of circumstance of the offence, that an approval referred to in subparagraph (1)(c)(ii) had not been obtained at the time of the exportation.
Note: For strict liability , see section 6.1 of the Criminal Code.
Penalty for individuals
(4) An offence under subsection (1) is punishable on conviction by imprisonment for not more than 10 years or a fine not exceeding the amount worked out under subsection (5), or both.
(5) For the purposes of subsection (4), the amount is:
(a) if the Court can determine the value of the goods to which the offence relates - whichever is the greater of the following:
(i) 3 times the value of the goods;
(ii) 2,500 penalty units; or
(b) if the Court cannot determine the value of those goods - 2,500 penalty units.
Offence for bodies corporate
(6) A body corporate commits an offence if:
(a) the body corporate exported goods; and
(b) the goods were UN-sanctioned goods; and
(c) their exportation:
(i) was prohibited under this Act absolutely; or
(ii) was prohibited under this Act unless the approval of a particular person had been obtained and, at the time of the exportation, that approval had not been obtained.
(7) Subsection (6) does not apply if the body corporate proves that it took reasonable precautions, and exercised due diligence, to avoid contravening that subsection.
Note: The body corporate bears a legal burden in relation to a matter in subsection (7) (see section 13.4 of the Criminal Code).
(8) Strict liability applies to paragraphs (6)(a) and (b).
Note: For strict liability , see section 6.1 of the Criminal Code.
(9) Subject to subsection (10), absolute liability applies to paragraph (6)(c).
Note: For absolute liability , see section 6.2 of the Criminal Code.
(10) For the purposes of an offence against subsection (6), strict liability applies to the physical element of circumstance of the offence, that an approval referred to in subparagraph (6)(c)(ii) had not been obtained at the time of the exportation.
Note: For strict liability , see section 6.1 of the Criminal Code.
Penalty for bodies corporate
(11) An offence under subsection (6) is punishable on conviction by a fine not exceeding:
(a) if the Court can determine the value of the goods to which the offence relates - whichever is the greater of the following:
(i) 3 times the value of the goods;
(ii) 10,000 penalty units; or
(b) if the Court cannot determine the value of those goods - 10,000 penalty units.
Person not liable to other proceedings
(12) A person convicted or acquitted of an offence against subsection (1) or (6) in respect of particular conduct is not liable to proceedings under section 233 in respect of that conduct.