Strict liability offences
14.41 The customs and border protection regulatory framework hinges upon a risk assessment approach. These risk assessments rely on information provided to Customs officials. Inaccurate, false or misleading information can result in inaccurate risk assessments, and may result in the entry of prohibited imports (e.g. narcotics or weapons) into the community. As a result, the Customs Act 1901 (Cth) (Customs Act) includes a number of strict liability offences relating to the failure to keep records or provide information, and the provision of false or misleading information.
14.42 The Law Council of Australia submitted that
the failure to report the entry of cargo on time or in an untimely or incorrect fashion (s 64AB(10) of the Customs Act) may be an unjustified use of strict liability where the provision of that information has been made in an untimely or incorrect fashion by a contracting party overseas. In that case the imposition of a penalty may be unfair on the Australian party who becomes liable for the offence.
14.43 The Senate Standing Committee on Legal and Constitutional Affairs (Legal and Constitutional Affairs Committee) stated that the imposition of strict and absolute liability was justified in such circumstances during its 1999 inquiry into the Customs Legislation Amendments and Repeal (international Trade Modernisation) Bill 2000, Customs Depot Licensing Charges Amendment Bill 2000 and Import Processing Charges Bill 2000 (the ITM inquiry).
14.44 The strict liability regime was introduced to ‘preserve appropriate border control’ and reflects the view that isolated non-compliance, when viewed in its entirety ‘can have significant consequences for the community as a whole’, as ‘[i]ncorrect information renders ineffective Customs [sic] capacity to detect offences using risk management techniques’.
14.45 However, bodies such as the Australian Federation of International Forwarders (AFIF) and Customs Brokers and Forwarders Council of Australia Inc (CBFCA) raised concerns about the application of strict liability, particularly in relation to false or misleading statements and late reporting.
14.46 AFIF noted that, in some cases, data is simply on-forwarded directly, and shipping companies are reliant on overseas exporters for the accuracy and timeliness of the reporting. CBFCA noted that late reporting is caused by user error, inadequate systems or operating hours and lack of data from overseas sources. It submitted that the first of these could be remedied with training, and contended that it ‘is unreasonable that infringement notices and penalties should apply for late reports caused by the overseas source not supplying data in the time stipulated by the Australian regulatory authorities’. In relation to false or misleading statements, the Legal and Constitutional Affairs Committee noted that a person is not liable if they make a statement that the person is uncertain about the information provided.
14.47 By contrast, in 2002, the Scrutiny of Bills Committee expressed the view that the imposition of strict liability for a failure to provide information in the customs context may trespass on personal rights and liberties. The Scrutiny of Bills Committee said that these provisions did not comply with the principles relating to ‘the protection of people affected by strict liability provisions and for the administration of such provisions’. By way of example, one of the principles for the protection of people affected by strict liability provisions states:
Strict liability should depend as far as possible on the actions or lack of action of those who are actually liable for an offence, rather than be imposed on parties who must by necessity rely on information from third parties in Australia or overseas; offences which do not apply this principle have the potential to operate unfairly.
Absolute liability offences
14.48 In the customs and border protection context, some provisions impose absolute liability on elements other than technical or jurisdictional elements. One such example is ss 233BABAB and 233BABAC of the Customs Act, which impose absolute liability in relation to whether importation was prohibited. In response to concerns raised by the Scrutiny of Bills Committee about the application of absolute liability for offences that are more traditionally subject to strict liability, the Minister stated that this departure from general policy is justified to ‘ensure consistency across similar offences’.
Senate Standing Committee for the Scrutiny of Bills, Parliament of Australia, Fourth Report of 2002 (15 May 2002), 149.
See, eg, Customs Act 1901 (Cth) ss 64–64ABA, 64ACD, 64AE, 64A, 65, 67EI, 71AAAQ, 71G, 74, 90, 101, 102, 102A, 102DG, 105C, 113, 114F, 116, 117AA, 117A, 118, 119, 123, 124, 213A, 214AI, 240, 243SA–SB, 243T–V.
Law Council of Australia, Submission 75.
Senate Legal and Constitutional Legislation Committee, ‘Inquiry into the Customs Legislation Amendment and Repeal (International Trade Modernisation) Bill 2001, Import Processing Charges Bill 2000, and the Customs Depot Licensing Charges Amendment Bill 2000’ (Parliament of the Commonwealth of Australia), [1.27].
Senate Standing Committee for the Scrutiny of Bills, Ninth Report of 2000 (28 June 2000), 374.
Senate Standing Committee for the Scrutiny of Bills, above n 12, 286.
Senate Standing Committee for the Scrutiny of Bills, Eighth Report of 2007 (8 August 2007), 297.