Customs and Other Legislation Amendment (Illicit Tobacco Enforcement Modernisation and Other Measures) Act 2026

Contents

1Short title#

This Act is the Customs and Other Legislation Amendment (Illicit Tobacco Enforcement Modernisation and Other Measures) Act 2026.

2Commencement#

(1)Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provisions	Commencement	Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day this Act receives the Royal Assent.	26 October 2026
2. Schedules 1 to 4	The day after this Act receives the Royal Assent.	27 October 2026
3. Schedule 5	A single day to be fixed by Proclamation.However, if the provisions do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.
4. Schedule 6	The day after this Act receives the Royal Assent.	27 October 2026

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2)Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3Schedules#

Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1 · Offences relating to illicit tobacco products

Customs Act 1901 #

1 After subparagraph 210(1)(a)(iii)

Insert:

(iiia)an offence against subsection 233BABADA(1) or (2), 233BABADB (1), (2), (3) or (4) or 233BABADC(1);

2 Section 233BABAD (at the end of the heading)

Add “—intention etc. to defraud the revenue”.

3 After subsections 233BABAD(1), (2), (2A) and (2B)

Insert:

Note: See also section 233BABADE (presumptions for offences involving tobacco products—whether goods are tobacco products).

4 Subsection 233BABAD(6)

After “section 233”, insert “, 233BABADA, 233BABADB or 233BABADC”.

5 After section 233BABAD

Insert:

233BABADAOffences involving tobacco products—reasonable suspicion of unlawful importation#

Offence—importation of tobacco products

(1)A person commits an offence if:

(a)the person imports goods; and

(b)the goods are tobacco products; and

(c)it is reasonable to suspect that the importation of the goods would result in a defrauding of the revenue.

Note: See also sections 233BABADD and 233BABADE (presumptions for offences involving tobacco products).

Penalty: Imprisonment for 5 years or 6,000 penalty units, or both.

Offence—conveyance or possession of tobacco products

(2)A person commits an offence if:

(a)the person conveys, or has in the person’s possession, goods; and

(b)the goods are tobacco products; and

(c)it is reasonable to suspect that the goods have been imported unlawfully.

Note: See also sections 233BABADD and 233BABADE (presumptions for offences involving tobacco products).

Penalty: Imprisonment for 5 years or 6,000 penalty units, or both.

(3)In a prosecution for an offence against subsection (2), it is not necessary to prove the identity of the person who imported the goods.

Absolute liability

(4)Absolute liability applies to paragraphs (1)(c) and (2)(c).

Other matters

(5)A person convicted or acquitted of an offence against subsection (1) or (2) in respect of particular conduct is not liable to proceedings under section 233, 233BABAD or 233BABADB in respect of that conduct.

233BABADBOffences involving tobacco products—absence or breach of importation permissions#

Offences—importation of tobacco products

(1)A person commits an offence if:

(a)the person imports goods; and

(b)the goods are tobacco products; and

(c)the importation of the goods is prohibited unless a permission, consent or approval under the Customs Acts to import the goods has been granted; and

(d)no such permission, consent or approval to import the goods has been granted.

Note: See also section 233BABADE (presumptions for offences involving tobacco products—whether goods are tobacco products).

Penalty: Imprisonment for 5 years or 6,000 penalty units, or both.

(2)A person commits an offence if:

(a)the person imports goods; and

(b)the goods are tobacco products; and

(c)a permission, consent or approval under the Customs Acts to import the goods has been granted; and

(d)the permission, consent or approval is subject to a condition or requirement; and

(e)the condition or requirement has been breached.

Note: See also section 233BABADE (presumptions for offences involving tobacco products—whether goods are tobacco products).

Penalty: Imprisonment for 5 years or 6,000 penalty units, or both.

Offences—conveyance or possession of tobacco products

(3)A person commits an offence if:

(a)the person conveys, or has in the person’s possession, goods; and

(b)the goods are tobacco products; and

(c)the goods were imported; and

(d)the importation of the goods was prohibited unless a permission, consent or approval under the Customs Acts to import the goods had been granted; and

(e)no such permission, consent or approval to import the goods had been granted.

Note: See also section 233BABADE (presumptions for offences involving tobacco products—whether goods are tobacco products).

Penalty: Imprisonment for 5 years or 6,000 penalty units, or both.

(4)A person commits an offence if:

(a)the person conveys, or has in the person’s possession, goods; and

(b)the goods are tobacco products; and

(c)the goods were imported by the person; and

(d)a permission, consent or approval under the Customs Acts to import the goods was granted; and

(e)the permission, consent or approval was subject to a condition or requirement; and

(f)the condition or requirement has been breached.

Note: See also section 233BABADE (presumptions for offences involving tobacco products—whether goods are tobacco products).

Penalty: Imprisonment for 5 years or 6,000 penalty units, or both.

(5)In a prosecution for an offence against subsection (3), it is not necessary to prove the identity of the person who imported the goods.

Other matters

(6)A person convicted or acquitted of an offence against subsection (1), (2), (3) or (4) in respect of particular conduct is not liable to proceedings under section 233, 233BABAD or 233BABADA in respect of that conduct.

233BABADCAggravated offences involving tobacco products#

(1)A person commits an offence if:

(a)the person commits an offence against subsection 233BABADA(1) or (2) or subsection 233BABADB(1), (2), (3) or (4) (the underlying offence); and

(b)one or more of the following circumstances exist:

(i)the weight of the goods involved in the commission of the underlying offence is 100 kilograms or more;

(ii)the goods involved in the commission of the underlying offence are of significant commercial scale or value (see subsection (9));

(iii)the commission of the underlying offence involved 3 or more persons acting in concert;

(iv)the person organised, financed, directed or exercised control over one or more other persons in relation to the commission of the underlying offence;

(v)the commission of the underlying offence involved the use of false, misleading or deceptive information, documents, records or representations, or the omission of material information;

(vi)the commission of the underlying offence involved interference with goods under customs control;

(vii)the commission of the underlying offence is part of a continuing course of conduct by the person;

(viii)the commission of the underlying offence involved the misuse of a position of trust or authority;

(ix)the person is the holder of a depot licence, warehouse licence or broker’s licence and the commission of the underlying offence involved a breach of the conditions of the licence;

(x)the commission of the underlying offence involved activities, transactions or participants in Australia and one or more other countries;

(xi)the commission of the underlying offence involved unauthorised access to, use of, or interference with an information system owned or operated by or on behalf of the Commonwealth, or the misuse of authorised access to such a system.

Penalty: Imprisonment for 10 years or 8,000 penalty units, or both.

(2)There is no fault element for the physical element of conduct described in paragraph (1)(a) other than the fault elements (however described), if any, for the underlying offence.

(3)Strict liability applies to subparagraphs (1)(b)(i), (ii), (vi), (vii) and (ix).

(4)To avoid doubt:

(a)a person does not commit an underlying offence for the purposes of paragraph (1)(a) if the person has a defence to the underlying offence; and

(b)a person may be convicted of an offence against subsection (1) even if the person has not been convicted of the underlying offence.

Alternative verdicts

(5)If, on a trial of a person for an offence against subsection (1), the trier of fact:

(a)is not satisfied that the person is guilty of that offence; and

(b)is satisfied beyond reasonable doubt that the person is guilty of the underlying offence;

it may find the person not guilty of the offence against subsection (1) but guilty of the underlying offence.

(6)Subsection (5) only applies if the person has been accorded procedural fairness in relation to the finding of guilt for the underlying offence.

Double jeopardy for an aggravated offence

(7)To avoid doubt, if a person has been acquitted or convicted of an underlying offence, the person cannot be convicted of the corresponding aggravated offence for the same conduct.

Other matters

(8)A person convicted or acquitted of an offence against subsection (1) in respect of particular conduct is not liable to proceedings under section 233 or 233BABAD in respect of that conduct.

(9)For the purposes of this section, goods are of significant commercial scale or value if the duty that would have been payable on the goods if the goods had been entered for home consumption on the day the underlying offence was committed is $200,000 or more.

233BABADDPresumptions for offences involving tobacco products—defrauding the revenue etc.#

(1)Subject to subsection (5), for the purposes of paragraph 233BABADA(1)(c), it is taken to be reasonable to suspect that the importation of goods would result in a defrauding of the revenue if subsection (3) of this section applies to the goods.

(2)Subject to subsection (6), for the purposes of paragraph 233BABADA(2)(c), it is taken to be reasonable to suspect that the goods have been imported unlawfully if subsection (3) or (4) of this section applies to the goods.

(3)This subsection applies to goods if:

(a)neither of the following circumstances exist:

(i)duty of Customs has been paid on the goods;

(ii)duty of Customs is not payable on the goods because of an exemption under a law of the Commonwealth; or

(b)particulars of the goods are not included in a cargo report; or

(c)the goods are not the subject of an import declaration; or

(d)the person who imported the goods does not have a permission, consent or approval under a law of the Commonwealth to import the goods; or

(e)both of the following apply:

(i)the goods are concealed at the time the conduct in paragraph 233BABADA(1)(a) or (2)(a) (as the case requires) is engaged in;

(ii)it is likely that the goods are concealed to avoid detection; or

(f)the goods are not in retail packaging that complies with the requirements in Chapter 3 of the Public Health (Tobacco and Other Products) Act 2023; or

(g)the goods do not comply with the requirements for a tobacco product in Chapter 3 of the Public Health (Tobacco and Other Products) Act 2023; or

(h)a permanent ban under Chapter 4 of the Public Health (Tobacco and Other Products) Act 2023 applies to the goods; or

(i)the person mentioned in subsection 233BABADA(1) or (2) (as the case requires) has not provided any of the following:

(i)a tax invoice (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999) indicating how the person obtained the goods;

(ii)a bill of lading indicating how the person obtained the goods; or

(j)the person mentioned in subsection 233BABADA(1) or (2) (as the case requires):

(i)has stated that the importation, conveyance or possession (as the case requires) was engaged in, on behalf of, or at the request of, another person; and

(ii)has not provided information enabling the other person to be identified and located.

(4)This subsection applies to goods if:

(a)the goods:

(i)have been bought or sold in Australia; or

(ii)are offered or advertised for sale in Australia; and

(b)the price at which the goods have been bought or sold, or are advertised or offered for sale, is less than the sum of the following amounts:

(i)the lower of the amount of duty of Excise or duty of Customs that would apply to the goods, assuming that such duty were applicable to the goods and that no exemption or reduction of such duty were applicable;

(ii)the amount of GST that would apply to the sale of the goods, assuming that GST were applicable to the sale.

Overturning the presumption

(5)Subsection (1) does not apply if the defendant adduces or points to evidence that suggests a reasonable possibility that it is not reasonable to suspect that the importation of the goods would result in a defrauding of the revenue.

Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.

(6)Subsection (2) does not apply if the defendant adduces or points to evidence that suggests a reasonable possibility that it is not reasonable to suspect that the goods have been imported unlawfully.

Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.

233BABADEPresumptions for offences involving tobacco products—whether goods are tobacco products#

(1)This section applies for the purposes of the following provisions:

(a)paragraphs 233BABAD(1)(b), (2)(b), (2A)(b) and (2B)(b);

(b)paragraphs 233BABADA(1)(b) and (2)(b);

(c)paragraphs 233BABADB(1)(b), (2)(b), (3)(b) and (4)(b).

Presumption—goods in the form of cigarettes

(2)Subject to subsection (6), goods are taken to be tobacco products if the goods are in the form of cigarettes.

Presumption—appearance and sampling of goods

(3)Subject to subsection (6), goods (the relevant goods) are taken to be tobacco products if:

(a)the relevant goods are seized at the same time and from the same place; and

(b)a sample of the relevant goods is tested in accordance with a method determined by the Comptroller-General of Customs under subsection (7); and

(c)the results of the test are that the goods in the sample are tobacco products; and

(d)the remainder of the relevant goods are similar, or substantially similar, in appearance to the goods in the sample.

(4)To avoid doubt, goods seized at the same time and from the same place may contain more than one set of relevant goods for the purposes of subsection (3).

Presumption—content and characteristics of goods

(5)Subject to subsection (6), goods are taken to be tobacco products if:

(a)the goods contain nicotine; and

(b)an officer of Customs, who is authorised under subsection (8), reasonably suspects that the goods are tobacco products, having regard to one or more of the following:

(i)the packaging of the goods;

(ii)the labelling of the goods;

(iii)the smell of the goods;

(iv)the appearance of the goods.

Overturning the presumption

(6)Subsections (2), (3) and (5) do not apply if the defendant adduces or points to evidence that suggests a reasonable possibility that the goods are not tobacco products.

Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.

Administrative provisions

(7)The Comptroller-General of Customs may, by legislative instrument, determine a method for testing a sample of goods for the purposes of subsection (3).

(8)The Comptroller-General of Customs may, by writing, authorise an officer of Customs to examine goods for the purposes of subsection (5).

(9)An authorisation made under subsection (8) is not a legislative instrument.

6 Application of amendments

(1) Subsections 233BABADA(1) and 233BABADB(1) and (2) of the Customs Act 1901, as inserted by this Schedule, apply in relation to imports of goods on or after the commencement of this item.

(2) Subsections 233BABADA(2) and 233BABADB(3) and (4) of the Customs Act 1901, as inserted by this Schedule, apply in relation to goods that are conveyed, or goods that are in a person’s possession, on or after the commencement of this item (whether the goods were imported before, on or after that commencement).

(3) Subparagraph 233BABADC(1)(b)(vii) of the Customs Act 1901, as inserted by this Schedule, applies in relation to a continuing course of conduct that starts on or after the commencement of this item.

(4) Section 233BABADE of the Customs Act 1901, as inserted by this Schedule, applies in relation to an offence against subsection 233BABAD(1), (2), (2A) or (2B) if the conduct constituting the offence occurs on or after the commencement of this item.

Schedule 2 · Prescribing tier 1 goods

Customs Act 1901 #

1 After subsection 233BAA(3)

Insert:

(3A)To avoid doubt, paragraphs (1)(a) and (b) do not limit the goods that may be specified for the purposes of paragraph (1)(c).

Schedule 3 · Customs control of goods

Customs Act 1901 #

1 Subsection 4(1)

Insert:

duty-refundable tobacco has the meaning given by section 30AA.

2 After paragraph 30(1)(b)

Insert:

(ba)as to goods that are duty-refundable tobacco (see section 30AA)—for the duration of the period that applies to the goods in subsection 30AA(4);

3 After section 30

Insert:

30AAPeriod of customs control for duty-refundable tobacco#

(1)Goods are duty-refundable tobacco if:

(a)the goods are tobacco products that were imported into Australia; and

(b)duty has been paid on the goods; and

(c)the goods have been sold to:

(i)the proprietor of an inwards duty free shop (within the meaning of subsection 96B(1)); or

(ii)the proprietor of an outwards duty free shop (within the meaning of subsection 96A(1)); or

(iii)the holder of a warehouse licence that covers a warehouse that is licensed to warehouse ship’s stores (within the meaning of section 130C); and

(d)the goods have been received by the proprietor or holder (as the case requires); and

(e)the goods were sold for the purposes of:

(i)if subparagraph (c)(i) applies—selling the goods to a relevant traveller (within the meaning of subsection 96B(1)); or

(ii)if subparagraph (c)(ii) applies—selling the goods to a relevant traveller (within the meaning of subsection 96A(1)); or

(iii)if subparagraph (c)(iii) applies—the operation of the warehouse as a seller of ship’s stores; and

(f)such other circumstances (if any) as are prescribed by the regulations for the purposes of this paragraph apply to the goods.

(2)However, subsection (1) does not apply if regulations are made for the purposes of subsection (3).

(3)Goods are duty-refundable tobacco if the circumstances (if any) prescribed by the regulations for the purposes of this subsection apply to the goods.

(4)The period in this subsection that applies to goods that are duty-refundable tobacco is:

(a)if subsection (1) applies:

(i)unless subparagraph (ii) applies—the period in subsection (5); or

(ii)the period (if any) prescribed by the regulations for the purposes of this subparagraph; or

(b)if regulations are made for the purposes of subsection (3)—the period prescribed by the regulations for the purposes of this paragraph.

(5)The period in this subsection is the period that:

(a)begins at the time the goods are received by the proprietor or holder (as the case requires) mentioned in paragraph (1)(c); and

(b)if subparagraph (1)(c)(i) applies—ends at the earlier of the following times:

(i)the time an application (if any) that is made for a refund of duty paid on the goods is withdrawn, rejected or disallowed;

(ii)the time the goods are sold to a relevant traveller (within the meaning of subsection 96B(1)); and

(c)if subparagraph (1)(c)(ii) applies—ends at the earlier of the following times:

(i)the time an application (if any) that is made for a refund of duty paid on the goods is withdrawn, rejected or disallowed;

(ii)the time the goods are sold to a relevant traveller (within the meaning of subsection 96A(1)); and

(d)if subparagraph (1)(c)(iii) applies—ends at the earlier of the following times:

(i)the time an application (if any) that is made for a refund of duty paid on the goods is withdrawn, rejected or disallowed;

(ii)the time the goods are taken on board a ship for export.

4 Section 35A (heading)

After “dutiable goods”, insert “or duty-refundable tobacco”.

5 Subsection 35A(1)

After “dutiable goods which are subject to customs control”, insert “or goods that are duty-refundable tobacco”.

6 Paragraphs 35A(1A)(a) and (1B)(a)

After “dutiable goods subject to customs control”, insert “or goods that are duty-refundable tobacco”.

7 Application of amendments

(1) The amendments of the Customs Act 1901 made by this Schedule apply in relation to goods for which the transfer time is at or after the commencement of this item.

(2) In this item:

transfer time, for goods, is the time the goods are received by a person mentioned in paragraph 30AA(1)(c) of the Customs Act 1901, as inserted by this Schedule.

Schedule 4 · Seizure and forfeiture

Customs Act 1901 #

1 Subsection 183UA(1) (at the end of the definition of special forfeited goods)

Add:

; or (c) forfeited goods referred to in paragraph 229(1)(ba) that are tobacco products.

2 Section 205 (at the end of the heading)

Add “—general”.

3 Subsection 205(1)

Omit “After goods have been seized”, substitute “Subject to subsection (4A), after goods have been seized”.

4 At the end of subsection 205(1)

Add:

Note: This subsection does not apply to tobacco products seized under subsection 203B(2) or (2A), 203CA(3) or 203CB(2): see subsection (4A) of this section.

5 After subsection 205(4)

Insert:

(4A)Subsection (1) does not apply to goods that are tobacco products seized under subsection 203B(2) or (2A), 203CA(3) or 203CB(2).

Note: Section 205AA sets out notice requirements for the seizure of these goods.

6 Section 205A (at the end of the heading)

Add “—general”.

7 After section 205A

Insert:

205AASpecial notice requirements—seizing tobacco products#

(1)This section applies if:

(a)goods (the seized goods) have been seized under subsection 203B(2) or (2A), 203CA(3) or 203CB(2) in a calendar month; and

(b)the seized goods are tobacco products.

(2)An officer of Customs must, before the day that is the 28th day of the next calendar month, take at least one of the following actions:

(a)serve a notice in relation to the seized goods in accordance with subsection (3);

(b)serve a bulk notice that covers the seized goods in accordance with subsection (6);

(c)publish information in relation to the seized goods in accordance with subsection (12);

(d)take action in relation to the seized goods in accordance with subsection (15).

Notice of seizure

(3)An officer of Customs may serve on the owner of the seized goods or, if the owner cannot be identified after reasonable inquiry, the person in whose possession or under whose control the seized goods were when they were seized, a written notice that sets out the following:

(a)a statement identifying the seized goods;

(b)the day on which the seized goods were seized;

(c)the ground, or each of the grounds, on which the seized goods were seized;

(d)the effect of subsection 205B(1AA) (no claim for return of goods) and section 205CA (forfeiture).

(4)If, before the officer of Customs serves the written notice under subsection (3), the Comptroller-General of Customs has caused the seized goods to be dealt with under subsection 206(2A), the officer of Customs may also include the following in the written notice:

(a)a statement that the seized goods have been so dealt with;

(b)the manner in which the seized goods have been so dealt with;

(c)the terms of subsection 206(6) (right to recover market value of goods).

(5)If the officer of Customs includes the matters in subsection (4) in the written notice and serves the notice not later than 7 days after the seized goods are dealt with, then subsection 206(3) (notices for dealing with goods) does not apply to the seized goods.

Bulk notice of seizure

(6)An officer of Customs may serve on the person mentioned in subsection (7) a written notice (a bulk notice) that covers the seized goods if the seized goods were:

(a)contained in one or more consignments; and

(b)seized from the same depot, or the same warehouse, in the calendar month.

(7)The person mentioned in this subsection is:

(a)if the seized goods were seized from a depot—the holder of the depot licence; or

(b)if the seized goods were seized from a warehouse—the holder of the warehouse licence that covers the warehouse.

(8)The bulk notice must, for all of the seized goods covered by the bulk notice, set out the following:

(a)a statement identifying the seized goods;

(b)the day or days on which the seized goods were seized;

(c)the ground, or each of the grounds, on which the seized goods were seized;

(d)the effect of subsection 205B(1AA) (no claim for return of goods) and section 205CA (forfeiture).

(9)If, before the officer of Customs serves the bulk notice under subsection (6), the Comptroller-General of Customs has caused some or all of the seized goods (the dealt-with goods) to be dealt with under subsection 206(2A), the officer of Customs may also include the following in the bulk notice:

(a)a statement identifying the dealt-with goods;

(b)a statement that the dealt-with goods have been so dealt with;

(c)the manner in which the dealt-with goods have been so dealt with;

(d)the terms of subsection 206(6) (right to recover market value of goods).

(10)If the officer of Customs includes the matters in subsection (9) in the bulk notice and serves the notice not later than 7 days after the dealt-with goods are dealt with, then subsection 206(3) (notices for dealing with goods) does not apply to the dealt-with goods.

Service of written notices

(11)A notice under subsection (3) or (6) must be served personally, by post or by electronic communication (within the meaning of the Electronic Transactions Act 1999).

Publication of seizure information

(12)An officer of Customs may publish information in relation to the seized goods on the Department’s website that sets out the following:

(a)the identity of the seized goods;

(b)the fact that the seized goods have been seized under subsection 203B(2) or (2A), 203CA(3) or 203CB(2) (as the case requires);

(c)the day or days on which the seized goods were seized;

(d)the ground, or each of the grounds, on which the seized goods were seized;

(e)the effect of subsection 205B(1AA) (no claim for return of goods) and section 205CA (forfeiture);

(f)such other matters (if any) that are prescribed by the regulations.

(13)If, before the officer of Customs publishes the information under subsection (12), the Comptroller-General of Customs has caused the seized goods to be dealt with under subsection 206(2A), the officer of Customs may also publish information that sets out the following:

(a)the fact that the seized goods have been so dealt with;

(b)the manner in which the seized goods have been so dealt with;

(c)the terms of subsection 206(6) (right to recover market value of goods);

(d)such other matters (if any) that are prescribed by the regulations.

(14)If the officer of Customs publishes the information in subsection (13) not later than 7 days after the seized goods are dealt with, then subsection 206(3) (notices for dealing with goods) does not apply to the seized goods.

Notification action

(15)An officer of Customs may take action in relation to the seized goods that results in the owner of the seized goods being notified, by electronic means, of the following:

(a)the fact that the seized goods have been seized under subsection 203B(2) or (2A), 203CA(3) or 203CB(2) (as the case requires);

(b)such other matters (if any) that are prescribed by the regulations.

(16)If, before the officer of Customs takes action under subsection (15), the Comptroller-General of Customs has caused the seized goods to be dealt with under subsection 206(2A), the officer of Customs may also take action that results in the owner of the seized goods being notified, by electronic means, of any matters that are prescribed by the regulations.

(17)If the officer of Customs takes the action under subsection (16) not later than 7 days after the seized goods are dealt with, then subsection 206(3) (notices for dealing with goods) does not apply to the seized goods.

8 Subsection 205B(1)

Omit “subsections (1A) and (1B)”, substitute “subsections (1AA), (1A) and (1B)”.

9 After subsection 205B(1)

Insert:

(1AA)A claim may not be made for the return of goods that are tobacco products seized under subsection 203B(2) or (2A), 203CA(3) or 203CB(2).

10 After subsection 205C(1)

Insert:

(1A)Subsection (1) does not apply to goods that are tobacco products seized under subsection 203B(2) or (2A), 203CA(3) or 203CB(2).

Note: Section 205CA applies to these goods.

11 After section 205C

Insert:

205CATreatment of goods seized—special forfeited goods that are tobacco products#

(1)This section applies to goods that are tobacco products seized under subsection 203B(2) or (2A), 203CA(3) or 203CB(2).

(2)The goods are taken to be condemned as forfeited to the Crown at the time the goods are seized.

12 Subsection 205F(1)

After “no claim for their return or recovery was made”, insert “, or because of the operation of subsection 205CA(2)”.

13 Subparagraph 205F(2)(c)(ii)

Before “that there were circumstances”, insert “for goods that are not goods to which subsection 205B(1AA) applies—”.

14 At the end of subsection 206(3)

Add:

Note: This subsection does not apply if a notice or information has already been given or published under section 205AA about the goods being dealt with: see subsections 205AA(5), (10), (14) and (17).

15 Section 208C

After “section 205”, insert “, a notice under subsection 205AA(3) or (6)”.

16 Section 208D

After “section 205C”, insert “or 205CA”.

17 Application of amendments

The amendments of the Customs Act 1901 made by this Schedule apply in relation to goods that are imported into Australia on or after the commencement of this item.

Schedule 5 · Depots, warehouses and customs brokers

Part 1 · Statutory licences

Customs Act 1901 #

1 After subsection 77N(2A)

Insert:

(2B)The holder of a licence must not engage in conduct, in connection with the management or control of, or the operations carried out at, the depot that facilitates, assists or enables:

(a)the importation of tobacco products that are prohibited imports; or

(b)conduct that is inconsistent with another condition of the licence or that contravenes a law of the Commonwealth.

(2C)The holder of a licence must take all reasonable steps to prevent a person from engaging in conduct, in connection with the depot, or the operations carried out at the depot, that facilitates, assists or enables:

(a)the importation of tobacco products that are prohibited imports; or

(b)conduct that is inconsistent with another condition of the licence or that contravenes a law of the Commonwealth.

2 At the end of section 77N

Add:

(12)In this section:

engage in conduct means:

(a)do an act; or

(b)omit to perform an act.

3 After subsection 82(1A)

Insert:

(1B)A warehouse licence is subject to the condition that the holder of the licence must not engage in conduct, in connection with the management or control of, or the operations carried out at, a warehouse covered by the licence, that facilitates, assists or enables:

(a)the importation of tobacco products that are prohibited imports; or

(b)conduct that is inconsistent with another condition of the licence or that contravenes a law of the Commonwealth.

(1C)A warehouse licence is subject to the condition that the holder of the licence must take all reasonable steps to prevent a person from engaging in conduct, in connection with a warehouse covered by the licence, or the operations carried out at a warehouse covered by the licence, that facilitates, assists or enables:

(a)the importation of tobacco products that are prohibited imports; or

(b)conduct that is inconsistent with another condition of the licence or that contravenes a law of the Commonwealth.

4 At the end of section 82

Add:

Interpretation

(12)In this section:

engage in conduct means:

(a)do an act; or

(b)omit to perform an act.

5 After section 82

Insert:

82AAConditions of a warehouse licence—duty-refundable tobacco#

(1)A warehouse licence is subject to the condition that the holder of the licence must not receive duty-refundable tobacco, or tobacco products that would, if they were to be received by the holder, become duty-refundable tobacco, unless the licence covers a warehouse that is:

(a)an inwards duty free shop (within the meaning of subsection 96B(1)); or

(b)an outwards duty free shop (within the meaning of subsection 96A(1)); or

(c)licensed to warehouse ship’s stores (within the meaning of section 130C).

(2)Subsections (3) to (5) apply to a warehouse licence if the holder of the licence receives duty-refundable tobacco.

(3)A warehouse licence is subject to the condition that, if the duty-refundable tobacco is to be stored, the duty-refundable tobacco must be:

(a)stored at a warehouse covered by the licence that is:

(i)an inwards duty free shop (within the meaning of subsection 96B(1)); or

(ii)an outwards duty free shop (within the meaning of subsection 96A(1)); or

(b)securely stored at a warehouse covered by the licence that is licensed to warehouse ship’s stores (within the meaning of section 130C).

(4)A warehouse licence is subject to the condition that, if the duty-refundable tobacco is to be sold, the duty-refundable tobacco must be sold:

(a)to a relevant traveller (within the meaning of subsection 96B(1)), if the licence covers a warehouse that is an inwards duty free shop (within the meaning of that subsection); or

(b)to a relevant traveller (within the meaning of subsection 96A(1)), if the licence covers a warehouse that is an outwards duty free shop (within the meaning of that subsection); or

(c)as ship’s stores (within the meaning of section 130C), if the licence covers a warehouse that is licensed to warehouse ship’s stores.

(5)A warehouse licence is subject to the condition that the holder of the licence must keep a register, by electronic means, of the following information:

(a)details of all duty-refundable tobacco received by the holder;

(b)details of all duty-refundable tobacco sold, disposed of or destroyed by the holder;

(c)details of any loss, theft or other unauthorised removal of duty-refundable tobacco from a place covered by subsection (3);

(d)such other details (if any) relating to duty-refundable tobacco as are prescribed by the regulations.

Note: A Collector may give written directions to a holder of a warehouse licence to give the Collector specified information in relation to the management of controlled goods: see paragraph 87C(2)(h).

6 Subsection 82C(1)

After “section 82”, insert “, 82AA”.

7 After subsection 183CG(4)

Insert:

(4A)A broker’s licence held by a customs broker is subject to the condition that the broker must not engage in conduct, in connection with the work of the customs broker, that facilitates, assists or enables:

(a)the importation of tobacco products that are prohibited imports; or

(b)conduct that is inconsistent with another condition of the licence or that contravenes a law of the Commonwealth.

(4B)A broker’s licence held by a customs broker is subject to the condition that the broker must take all reasonable steps to prevent a person from engaging in conduct, in connection with the work of the customs broker, that facilitates, assists or enables:

(a)the importation of tobacco products that are prohibited imports; or

(b)conduct that is inconsistent with another condition of the licence or that contravenes a law of the Commonwealth.

8 At the end of section 183CG

Add:

Interpretation

(8)In this section:

engage in conduct means:

(a)do an act; or

(b)omit to perform an act.

9 Application of amendments

The amendments of the Customs Act 1901 made by this Part apply in relation to a depot licence, a warehouse licence or a broker’s licence on and after the commencement of this item, whether the licence was granted before, on or after that commencement.

Part 2 · National Customs Licensing Advisory Committee

Customs Act 1901 #

10 Subsection 4(1) (after paragraph (f) of the definition of controlled trial provision)

Insert:

(fa)Part XIA (National Customs Licensing Advisory Committee);

11 Subsection 4(1) (paragraph (h) of the definition of controlled trial provision)

After “(f)”, insert “, (fa)”.

12 Subsection 77F(1)

Insert:

Committee means the National Customs Licensing Advisory Committee continued in existence by subsection 183D(1).

13 After section 77J

Insert:

77JAReference of application to Committee#

(1)If the Comptroller-General of Customs receives an application for a depot licence, the Comptroller-General may refer the application to the Committee for a report relating to the application.

(2)If the Comptroller-General of Customs refers an application to the Committee under subsection (1):

(a)the Committee must investigate the matters that the Comptroller-General of Customs is required to consider in relation to the application and, after its investigation, report to the Comptroller-General of Customs on those matters; and

(b)the Comptroller-General of Customs must not grant, or refuse to grant, the depot licence unless the Comptroller-General of Customs has received and considered the report.

14 Paragraph 77L(1)(b)

Repeal the paragraph, substitute:

(b)if either or both of the following occur:

(i)the Comptroller-General of Customs requires further information or documents relating to the application for the licence to be supplied by the applicant under section 77J and the applicant supplied the information or documents in accordance with that section;

(ii)the Comptroller-General of Customs refers the application for the licence to the Committee under section 77JA;

the time the information or documents are received or the time the report from the Committee relating to the application is received (or whichever occurs later if both subparagraphs apply).

15 Subsection 78(1)

Insert:

Committee means the National Customs Licensing Advisory Committee continued in existence by subsection 183D(1).

16 After section 80A

Insert:

80BReference of application to Committee#

(1)If the Comptroller-General of Customs receives an application for a warehouse licence, the Comptroller-General may refer the application to the Committee for a report relating to the application.

(2)If the Comptroller-General of Customs refers an application to the Committee under subsection (1):

(b)the Comptroller-General of Customs must not grant, or refuse to grant, the warehouse licence unless the Comptroller-General of Customs has received and considered the report.

17 Paragraph 81A(1)(b)

Repeal the paragraph, substitute:

(b)if either or both of the following occur:

(i)the Comptroller-General of Customs, under section 80A, requires the applicant to supply further information or documents in relation to the application and the applicant supplies the information or documents in accordance with that section;

(ii)the Comptroller-General of Customs refers the application to the Committee under section 80B;

the time the information or documents are received or the time the report from the Committee relating to the application is received (or whichever occurs later if both subparagraphs apply).

18 Section 180 (definition of Committee)

Omit “National Customs Brokers Licensing Advisory Committee”, substitute “National Customs Licensing Advisory Committee”.

19 After Division 4 of Part XI

Insert:

Division 4A · Giving of notices

183CTAGiving of notices#

A notice under this Part from the Comptroller-General of Customs to a person must be given to the person by:

(a)sending it by email to:

(i)in any case—the last known email address of the person; or

(ii)in the case of a partnership—the last known email address of a partner in the partnership; or

(b)sending it by other electronic means to:

(i)in any case—the person; or

(ii)in the case of a partnership—a partner in the partnership; or

(c)delivering it personally to:

(i)in any case—the person; or

(ii)in the case of a partnership—a partner in the partnership; or

(d)sending it to the person by pre-paid post or registered post to the person’s last known place of residence or business; or

(e)leaving it at:

(i)the person’s last known place of residence with some person apparently a resident of that place and apparently not less than 16 years of age; or

(ii)the person’s last known place of business with some person apparently employed at that place and apparently not less than 16 years of age.

20 Before Division 5 of Part XI

Insert:

Part XIA · National Customs Licensing Advisory Committee

21 Division 5 of Part XI (heading)

Repeal the heading.

22 Before section 183D

Insert:

183DAASimplified outline of this Part#

The National Customs Licensing Advisory Committee is continued in existence by this Part.

The functions of the Committee are to investigate and report on applications for depot licences, warehouse licences and broker’s licences that are referred to the Committee.

The Committee also has the function of investigating and reporting on questions referred to the Committee about existing broker’s licences.

The Committee consists of a Chair, a Deputy Chair and members that represent customs brokers, the holders of depot and warehouse licences and the Commonwealth.

The Committee may establish and delegate functions to the Customs Brokers Subcommittee and the Depot and Warehouse Licences Subcommittee.

183DABDefinitions#

In this Part:

broker’s licence means a licence to act as a customs broker granted under section 183C and includes such a licence that has been renewed under section 183CJ.

Committee means the National Customs Licensing Advisory Committee continued in existence by subsection 183D(1).

customs broker means a person who holds a broker’s licence that is in force, and in relation to a place, means a person who holds a broker’s licence to act as a customs broker at the place.

depot licence means a licence granted under section 77G and includes such a licence that has been renewed under section 77T.

person means a natural person, a company or a partnership.

warehouse licence means a licence granted under section 79 and includes such a licence that has been renewed under section 84.

23 Section 183D (heading)

Repeal the heading, substitute:

183DNational Customs Licensing Advisory Committee#

24 Subsection 183D(1)

Repeal the subsection, substitute:

(1)The body known immediately before the commencement of this subsection as the National Customs Brokers Licensing Advisory Committee is continued in existence with the new name National Customs Licensing Advisory Committee.

Note: See also section 25B of the Acts Interpretation Act 1901.

25 Before paragraph 183D(2)(a)

Insert:

(aa)to investigate and report on applications referred to it by the Comptroller-General of Customs under section 77JA; and

(ab)where the Comptroller-General of Customs requests the Committee to advise the Comptroller-General of Customs on the standards that the holders of depot licences should meet in the performance of their duties and obligations as holders of depot licences—to advise the Comptroller-General of Customs accordingly; and

(ac)to investigate and report on applications referred to it by the Comptroller-General of Customs under section 80B; and

(ad)where the Comptroller-General of Customs requests the Committee to advise the Comptroller-General of Customs on the standards that the holders of warehouse licences should meet in the performance of their duties and obligations as holders of warehouse licences—to advise the Comptroller-General of Customs accordingly; and

26 At the end of paragraphs 183D(2)(a) and (b)

Add “and”.

27 Subsection 183DA(1)

Omit “shall consist”, substitute “consists”.

28 After paragraph 183DA(1)(a)

Insert:

(aa)the Deputy Chair;

29 After paragraph 183DA(1)(b)

Insert:

(ba)a member to represent holders of depot licences and holders of warehouse licences;

30 Paragraph 183DA(1)(c)

Omit “a member”, substitute “two members”.

31 Subsection 183DA(2)

Omit “shall”, substitute “must”.

32 After subsection 183DA(2)

Insert:

(2A)The Deputy Chair must be a person who:

(a)is or has been a Stipendiary, Police, Special or Resident Magistrate of a State or Territory; or

(b)in the opinion of the Comptroller-General of Customs, possesses special knowledge or skill in relation to matters that the Committee is to advise or report on.

33 Subsection 183DA(3)

Omit “(1)(a) or (b) shall be appointed”, substitute “(1)(a), (aa), (b) or (ba) is to be appointed”.

34 Subsection 183DA(4)

Omit “shall”, substitute “is to”.

35 After subsection 183DA(4)

Insert:

(4A)The member referred to in paragraph (1)(ba) is to be appointed on the nomination of an organisation that, in the opinion of the Comptroller-General of Customs, represents holders of depot licences or holders of warehouse licences (or both).

36 Subsection 183DA(5)

Omit “The member”, substitute “One of the members”.

37 Subsection 183DA(5)

Omit “shall”, substitute “is to”.

38 After subsection 183DA(5)

Insert:

(5A)The other member referred to in paragraph (1)(c) is to be the person for the time being holding, or performing the duties of, the office in the Department that the Comptroller-General of Customs specifies, in writing signed by the Comptroller-General of Customs, to be the office for the purposes of this subsection.

39 Subsection 183DA(6)

Omit “shall”, substitute “must”.

40 Subsection 183DB(1)

Omit “183DA(1)(a) or (b) shall”, substitute “183DA(1)(a), (aa), (b) or (ba) is to”.

41 Subsection 183DB(1)

Omit “he or she shall”, substitute “the member is to”.

42 Subsection 183DB(2)

Omit “183DA(1)(a) or (b) shall”, substitute “183DA(1)(a), (aa), (b) or (ba) is to”.

43 Section 183DC (at the end of the heading)

Add “and Deputy Chair”.

44 Before subsection 183DC(1)

Insert:

Acting Chair

45 Subsection 183DC(2)

Omit “shall”, substitute “must”.

46 Subsection 183DC(3)

Omit “shall”, substitute “is to”.

47 At the end of section 183DC

Add:

Acting Deputy Chair

(4)Subject to subsection (5), the Comptroller-General of Customs may appoint a person to act as Deputy Chair:

(a)during a vacancy in the office of Deputy Chair; or

(b)during any period, or during all periods, when the Deputy Chair is absent from duty or from Australia or is for any other reason unable to perform the functions of the Deputy Chair’s office.

(5)A person must not be appointed to act as Deputy Chair unless the person is qualified, in accordance with subsection 183DA(2A), to be appointed as Deputy Chair.

(6)A person appointed to act as Deputy Chair is to be paid such fees, allowances and expenses as the Comptroller-General of Customs determines.

48 Subsection 183DD(1)

Omit “shall, in the event of the absence of the member from a meeting of the Committee, be entitled”, substitute “, in the event of the absence of the member from a meeting of the Committee, is entitled”.

49 Subsection 183DD(1)

Omit “shall be deemed”, substitute “is deemed”.

50 After subsection 183DD(1)

Insert:

(1A)The Comptroller-General of Customs may appoint a person, on the nomination of an organisation referred to in subsection 183DA(4A), to be the deputy of the member referred to in paragraph 183DA(1)(ba) during the pleasure of the Comptroller-General of Customs and the person so appointed, in the event of the absence of the member from a meeting of the Committee, is entitled to attend that meeting and, when so attending, is deemed to be a member of the Committee.

51 Subsection 183DD(2)

Omit “shall be the deputy”, substitute “is to be the deputy”.

52 Subsection 183DD(2)

Omit “paragraph 183DA(1)(c)”, substitute “subsection 183DA(5)”.

53 Subsection 183DD(2)

Omit “shall, in the event of the absence of that member from a meeting of the Committee, be entitled”, substitute “, in the event of the absence of the member from a meeting of the Committee, is entitled”.

54 Subsection 183DD(2)

Omit “shall be deemed”, substitute “is deemed”.

55 After subsection 183DD(2)

Insert:

(2A)Where the Comptroller-General of Customs specifies an office in the Department for the purposes of this subsection, the person for the time being holding, or performing the duties of, that office is to be the deputy of the member referred to in subsection 183DA(5A) and that person, in the event of the absence of that member from a meeting of the Committee, is entitled to attend that meeting and, when so attending, is deemed to be a member of the Committee.

56 Subsection 183DD(3)

Omit “shall”, substitute “or (ba) is to”.

57 After section 183DD

Insert:

183DESubcommittees#

Establishment

(1)The Committee may establish:

(a)a subcommittee in relation to customs brokers (the Customs Brokers Subcommittee); and

(b)a subcommittee in relation to holders of depot licences and holders of warehouse licences (the Depot and Warehouse Licences Subcommittee).

Membership

(2)If the Committee establishes the Customs Brokers Subcommittee, the subcommittee must consist of the following Committee members:

(a)the Chair of the Committee;

(b)the member representing customs brokers;

(c)a member representing the Commonwealth that is not a member of the Depot and Warehouse Licences Subcommittee.

(3)If the Committee establishes the Depot and Warehouse Licences Subcommittee, the subcommittee must consist of the following Committee members:

(a)the Deputy Chair of the Committee;

(b)the member representing holders of depot licences and holders of warehouse licences;

(c)a member representing the Commonwealth that is not a member of the Customs Brokers Subcommittee.

Committee may delegate functions

(4)The Committee may, in writing, delegate:

(a)to the Customs Brokers Subcommittee—one or more functions under paragraphs 183D(2)(a) to (d); and

(b)to the Depot and Warehouse Licences Subcommittee—one or more functions under paragraphs 183D(2)(aa) to (ad).

Application of provisions of this Part to subcommittees

(5)This Part applies to a subcommittee established by the Committee as if:

(a)references to the Committee included references to the subcommittee; and

(b)references to the Chair of the Committee included references to the Deputy Chair of the Committee.

(6)Subsection (5) does not apply to references in the following sections:

(a)section 183D;

(b)section 183DA;

(c)section 183DB;

(d)section 183DC;

(e)this section.

(7)Paragraph (5)(b) does not apply to references in section 183DD.

(8)A member of a subcommittee is not entitled to any remuneration or allowances other than the remuneration or allowances the member is entitled to as a member of the Committee.

58 Section 183E (heading)

Omit “Committees”, substitute “Committee and subcommittees”.

59 At the end of section 183E

Add “and any subcommittee established by the Committee”.

60 Section 183J (heading)

Omit “Customs broker”, substitute “Person”.

61 Before subsection 183J(1)

Insert:

(1A)This section applies in relation to the following:

(a)an application that is referred to the Committee under section 77JA;

(b)an application that is referred to the Committee under section 80B;

(c)an application that is referred to the Committee under section 183CB;

(d)a question that is referred to the Committee under section 183CQ.

62 Subsection 183J(1)

Omit “is referred to the Committee under section 183CB”.

63 Subsection 183J(1)

Omit “under section 183CQ”.

64 Subsections 183J(1) and (2)

Omit “shall”, substitute “must”.

65 Subsection 183J(4)

Omit “is referred to the Committee under section 183CB”.

66 Subsection 183J(4)

Omit “under section 183CQ”.

67 Subsection 183R(2)

Repeal the subsection, substitute:

(2)The fees and allowances are payable:

(a)in the case of an inquiry relating to a customs broker and a witness summoned at the request of the customs broker—by that customs broker; and

(b)in the case of an inquiry relating to an applicant for a broker’s licence and a witness summoned at the request of the applicant—by that applicant; and

(c)in the case of an inquiry relating to an applicant for a depot licence or warehouse licence and a witness summoned at the request of the applicant—by that applicant; and

(d)in any other case—by the Commonwealth.

68 Subsection 183S(1)

After “customs broker”, insert “, or the applicant for a broker’s licence, depot licence or warehouse licence,”.

69 Division 6 of Part XI (heading)

Repeal the heading.

70 Section 183UAA

Omit “the Comptroller-General of Customs or”.

71 Amendments of listed provisions

The provisions listed in the following table are amended as set out in the table.

Amendments
Item	Provision	Omit	Substitute
1	Subsection 183CF(6) (note)	section 183UAA	section 183CTA
2	Subsection 183CG(7F) (note)	section 183UAA	section 183CTA
3	Subsection 183CGA(2) (note)	section 183UAA	section 183CTA
4	Subsection 183CGB(1) (note)	section 183UAA	section 183CTA
5	Subsections 183CK(1) and (2) (note)	section 183UAA	section 183CTA
6	Section 183CP (note)	section 183UAA	section 183CTA
7	Subsection 183CQ(1) (note)	section 183UAA	section 183CTA
8	Subsection 183CR(2) (note)	section 183UAA	section 183CTA
9	Subsections 183CS(1) and (2) (note)	section 183UAA	section 183CTA
10	Section 183CSA (note)	section 183UAA	section 183CTA

72 Application of amendments

Depot licences

(1) Section 77JA of the Customs Act 1901, as inserted by this Part, applies in relation to an application for a depot licence on and after the commencement of this item, whether the application is made before, on or after that commencement.

Warehouse licences

(2) Section 80B of the Customs Act 1901, as inserted by this Part, applies in relation to an application for a warehouse licence on and after the commencement of this item, whether the application is made before, on or after that commencement.

Schedule 6 · Amendment of the Proceeds of Crime Act 2002

Part 1 · Production orders

Proceeds of Crime Act 2002 #

1 After subsection 202(4)

Insert:

(4A)To avoid doubt:

(a)the fact that proceedings have been instituted or have commenced (whether or not under this Act) does not prevent a magistrate from making a *production order; and

(b)subject to subsection 206(2), a *property-tracking document that is produced or made available to an *authorised officer, or information contained in such a document, may be admissible in evidence in proceedings (whether or not under this Act).

2 Section 208

Repeal the section, substitute:

208Jurisdiction of magistrates#

A magistrate in a State or a *self-governing Territory may issue a *production order relating to one or more documents that are located in, or accessible from, anywhere in Australia.

3 Section 212 (penalty)

Repeal the penalty, substitute:

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Part 2 · Pecuniary penalty orders

Proceeds of Crime Act 2002 #

4 Section 126

Repeal the section, substitute:

126Matters that do not reduce the value of benefits#

(1)In assessing the value of *benefits that a person has derived from the commission of an offence or offences (the illegal activity), none of the following are to be subtracted:

(a)expenses or outgoings the person incurred, or investments the person made, directly or indirectly, in relation to the illegal activity (regardless of when the expenses or outgoings were incurred, or the investments were made);

(b)the value of any benefits that the person derives as *agent for, or otherwise on behalf of, another person (whether or not the other person receives any of the benefits).

(2)Without limiting paragraph (1)(a), the following are taken to be expenses or outgoings incurred, or investments made, in relation to the illegal activity:

(a)expenses or outgoings the person incurred, or investments the person made, in performing a contract or other obligation in connection with the illegal activity;

(b)expenses or outgoings the person incurred, or investments the person made, prior to the illegal activity, that gave rise to the circumstances or state of affairs in which the illegal activity occurred.

5 Section 132 (heading)

Omit “fines etc.”, substitute “amounts paid by way of restitution etc.”.

6 Section 132

Omit “payable by the person by way of fine,”, substitute, “that the person has paid by way of”.

7 Subsection 133(1)

Omit “subsections (2), (2A) or (3) apply”, substitute “subsections (2), (2A), (3) or (3A) apply”.

8 After subsection 133(3)

Insert:

(3A)The *penalty amount may be increased if:

(a)the penalty amount was reduced under section 132 to take account of an amount of restitution, compensation or damages the person paid; and

(b)an amount is repaid or refunded to the person in respect of that restitution, compensation or those damages.

The amount of the increase is equal to the amount repaid or refunded.

9 Paragraph 141(1)(c)

Repeal the paragraph, substitute:

(c)the court is satisfied that particular property is or was subject to the *effective control of the person on the earlier of the following days:

(i)the day on which the *responsible authority applies for the order under this section;

(ii)if there is a *restraining order covering the property—the day on which the responsible authority applies for the restraining order;

10 Paragraph 168(1)(c)

Repeal the paragraph, substitute:

(c)the court is satisfied that particular property is or was subject to the *effective control of the person on the earlier of the following days:

(i)the day on which the *responsible authority applies for the order under this section;

(ii)if there is a *restraining order covering the property—the day on which the responsible authority applies for the restraining order;

11 Paragraph 179S(1)(c)

Repeal the paragraph, substitute:

(c)the court is satisfied that particular property is or was subject to the *effective control of the person on the earlier of the following days:

(i)the day on which the *responsible authority applies for the order under this section;

(ii)if there is a *restraining order covering the property—the day on which the responsible authority applies for the restraining order;

12 In the appropriate position in Schedule 2

Insert:

Part 5 · Customs and Other Legislation Amendment (Illicit Tobacco Enforcement Modernisation and Other Measures) Act 2026

13Definitions#

In this Part:

commencement means the commencement of Schedule 6 to the Customs and Other Legislation Amendment (Illicit Tobacco Enforcement Modernisation and Other Measures) Act 2026.

14Amendments made by Part 2 of Schedule 6 to the Customs and Other Legislation Amendment (Illicit Tobacco Enforcement Modernisation and Other Measures) Act 2026#

The amendments of section 179S made by Part 2 of Schedule 6 to the Customs and Other Legislation Amendment (Illicit Tobacco Enforcement Modernisation and Other Measures) Act 2026 apply in relation to an application for an order under that section that is made on or after commencement.

Part 3 · Calculating total wealth

Proceeds of Crime Act 2002 #

13 Paragraph 179G(1)(b)

After “property”, insert “, other than property owned by the person,”.

14 After subsection 179G(2)

Insert:

(2A)However, the total wealth of a person does not include, in respect of each property that has been disposed of or consumed (other than property disposed of without *sufficient consideration), so much of the value of the property as was used to acquire or realise:

(a)other property owned by the person at any time; or

(b)other property that has been under the *effective control of the person at any time.

Example: A person holds $100,000 in cash. They deposit the cash into their bank account, in effect disposing of the cash and using it to acquire a chose in action. Only the chose in action is to be counted in calculating the person’s total wealth because, under this subsection, the person’s total wealth does not include so much of the value of the property disposed of as was used to acquire other property.

(2B)Subsection (2A) does not apply to property (the disposed property) that has been disposed of or consumed if the value of the disposed property is not reflected in the value of the other property mentioned in that subsection that the disposed property was used to acquire or realise.

Example: A person purchases a house for $1 million and spends $2,000 on conveyancing fees for the acquisition of the house. Subsection (2A) does not apply to the conveyancing fees because the value of the conveyancing fees is not reflected in the value of the house. This means that the $2,000 is not excluded under subsection (2A) from the total wealth of the person.

15 Paragraph 282A(2)(b)

Omit “*total wealth”, substitute “*wealth”.

16 Section 338 (definition of total wealth)

Omit “subsection 179G(2)”, substitute “subsections 179G(2) and (2A)”.

17 In the appropriate position in Part 5 to Schedule 2

Insert:

15Amendments relating to the meaning of total wealth#

(1)Section 179G, as in force immediately before commencement, continues to apply on and after commencement in relation to the following:

(a)an application made before the commencement of this clause for an order covered by subclause (2);

(b)an order covered by subclause (2) if the application for the order was made before commencement, whether the order was made before, on or after that commencement.

(2)This subclause covers the following orders:

(a)a restraining order;

(b)an unexplained wealth order;

(c)a production order.

[Minister’s second reading speech made in—

House of Representatives on 10 September 2026

Senate on 14 October 2026]

(116/26)

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